4
basis, possible resulting damage should be analysed in order to assess the
irreparability to which the term “irreparable” —as used in the language of
Article 63(2)— refers, as not just any threatened or affected right necessary
creates such situation.
15.
Therefore, what is generally required for the Court to order the issuance of
provisional measures are “extreme gravity” and “urgency” as components of
a threat, and the “irreparability” of the damage that could be occasioned
marks the specific and exceptional nature of provisional measures, as this is
the jurisprudential and conceptual framework designed to strictly and
specifically produce concrete results with which to fight against the detected
threat. This means that, in the specific context of a penitentiary center, the
restrictive framework of rights which, by definition, is in effect generally
attributes said circumstances to threats against life and physical integrity. No
provisional measure could be required or be oriented to produce results in
ambits that do not have a bearing on the exceptionality and imminent nature
of certain threats as well as on the possible “irreparable damage” that could
result from said threats.
16.
The factual conditions of the penitentiary system in the region, such as
overcrowding, high proportion of untried prisoners, lack of material resources
and deficiencies in food or heath care assistance, are some of the many
structural characteristics of the system. In addition, they constitute the
framework and the context of specific threats “of extreme gravity” and
“urgency” that may cause “irreparable damage”. In the specific case of
persons deprived of their freedom, this general duty puts the State in a
special position as guarantor because it is the authority that exercises control,
as stated in the Order. Said structural deficiencies could amount to elements
from which the international responsibility of the State could be inferred —in
concrete contentious cases— upon the State’s breach of the general duty to
guarantee full enjoyment of rights by all the persons subject to its
jurisdiction.
17.
In this order of ideas, the provisional measures adopted by the Court by
Order of March 30, 2006, have established “[t]hat 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 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.23
18.
It is of particular importance that the State itself has expressed —at the
hearing held in Brasilia— that it was not arguing for or requesting the
suppression of the provisional measures ordered, as the State agrees with
petitioners on the fact that the situation prevailing in the Mendoza Provincial
23
Order of provisional measures of March 30, Considering Clause No. 12.
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