17
11.
That this Court is aware of the fact that the correction of and solution to the
situation affecting the Mendoza Prisons is a process with short-, mid-, and long-term
goals; that this takes a set of actions on the part of federal and provincial
authorities, with of administrative, judicial or even legislative powers, to cure the
conditions of defective confinement and detention. However, given the order of this
Court to adopt provisional measures, the subject-matter of which is the protection of
life and integrity of the persons held in custody in said penitentiary units and of
those found within such facilities, the State cannot assert defenses based on the
State’s domestic law to avoid taking firm, concrete, and effective action in
compliance with the measures ordered so that no further deaths occur. Nor can the
State rely on the defense of lack of coordination between federal and provincial
authorities in order to prevent the deaths and acts of violence that have taken place
during the effective term of these provisional measures. Regardless of the unitary or
federal structure of government of any State Party to the Convention, in the
international jurisdiction scenario it is the State as such that is to be held
accountable to the oversight bodies created in said treaty and it is the only State
that is obliged to adopt such measures. Failure of the State to adopt said provisional
measures triggers such State’s international responsibility.
12.
That under the circumstances of this case, the measures adopted by the State
must include those directly designed to protect the right to life and integrity of the
beneficiaries, considering the relationship both among them and with penitentiary
and governmental authorities. Particularly, and in light of the allegations made by
the parties at the public hearing held on the date hereof in Brasilia (supra Having
Seen Clause No. 50), it is essential for the State to adopt —in an immediate and
inexcusable fashion— effective and necessary measures to actually eradicate the risk
of violent death and serious assaults to personal integrity, especially in connection
with the deficient conditions of security and internal control affecting confinement
centers. The measures to implement, notwithstanding the adoption of others referred
to elsewhere herein (supra Having Seen Clause No. 5) and others that may be
deemed pertinent, are described below:
•
•
•
•
•
An increase in the number of penitentiary personnel in order to guarantee
security in the institutions;
Elimination of weapons within the facilities;
Changes in surveillance pattern in such a manner that they ensure adequate
control and actual presence of penitentiary personnel inside the facilities;
Those actions identified as measures of immediate implementation for the
“progressive improvement in detention conditions” (supra Having Seen Clause
No. 5); and
Immediate reactivation of the so-called “follow-up commission” (supra Having
Seen Clauses No. 5 and 12).
13.
That, to these effects, the Court deems it of paramount importance that the
measures are implemented in effective and transparent joint efforts of provincial and
7
Cfr. Matter of the Communities of Jiguamiandó and Curbaradó. Provisional Measures. Order of the
Inter-American Court of Human Rights of February 7, 2006, considering No. 7; Case of Hilaire,
Constantine, Benjamin et. al. Judgment of June 21, 2002. Series C No. 94, paras. 196-200. See also,
Matter of James et al. Provisional Measures. Order of May 25, 1999. Series E No. 2, Operative Clause
2(b); Orders of June 14, 1998, of August 29, 1998, and of May 25, 1999; Order of August 16, 2000.
Series E No. 3, Having Seen Clauses No. 1 and 4; and Order of November 24, 2000. Series E No. 3,
Having Seen Clause No. 3.
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