3
10.
In order for the Court to order provisional measures, Article 63(2) of the
Convention requires the existence of three components: first, “extreme
gravity;” second, the “urgency” in the situation; and third, the purpose should
be “to avoid irreparable damage”. From the language of said Article, it can be
concluded that these measures have to be implemented forthwith, which in
turn shows that provisional measures must be implemented to create tangible
results in the short-term. This bears relationship with the process of oversight
by the Court and with the reports to be presented by the State because —as
stated in the present Order of March 30, 2006— the State not only must
comply with the submission of its reports when and as required by the rule,
but also, essentially, to forward information “on the results obtained by
implementing the measures”22 ordered, which presupposes that the results
must be tangible, concrete and directly in alignment with the purpose of any
such provisional measure.
11.
“Extreme gravity” —as a classification— obviously refers not only to the
gravity of the threat but also to its extreme nature. Therefore, the threat
should not refer to just any risk; this risk must be extreme and of gravity,
and the ordinary tools of apparatus of the State should not suffice to cope
with such threat. The special nature of a penitentiary facility recreates —for
obvious reasons— not the ordinary characteristics of quality of life which can
and must be attained by persons who have not been deprived of their
freedom, but a situation in which one of its basic characteristics is the
deprivation of rights, especially the right to personal freedom and the right to
move, as well as the restriction of freedom to communicate with others.
12.
In this setting of deprivation of certain rights, there are other rights which, in
fact, the penitentiary population should still keep, and that the State is bound
to guarantee. The gravity of the threat to such rights and its qualification as
“extreme” have to be assessed on a per-case basis taking into account each
specific context, but it is evident that if fundamental rights to life and physical
integrity are exposed to such a threat, then, in principle, this calls for
considering the issuance of provisional measures.
13.
The “urgency” component conveys special imperativeness to such extreme
gravity, as it refers to special and exceptional situations which require and
justify an immediate response action to fight against the threat. It is true that
the threat should not necessarily be new threats or citations; such threats
should be those which per se create an imminent risk. To arrive at this
conclusion one should start by analysing the current factual context and
precedents. The “urgent” nature of any such threat calls for a remedy action
as a response to it. Above all, this action should be immediate, and, in
principle, provisional in order to cope with such urgent situation, given that
lack of a response would per se create a risk.
14.
The purpose of “avoiding irreparable damage” usually relates to the nature
and context of the rights under threat. It is evident that irreparability should
logically follow a threat —of extreme gravity and urgent nature— to rights
such as the right to life and physical integrity. Certainly, it might be urgent to
fight off threats “of extreme gravity” to other types of rights. On a per-case
22
Order of Provisional Measures of, March 30, 2006. Considering Clause No. 14.
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