14
And, following the same line of thought, I would like to add in this separate
opinion, the supplementary proposal to the effect that Article 63(2) of the American
Convention should, in an equally significant manner, be amended as follows:
"In cases of extreme gravity and urgency, and when necessary to avoid
irreparable damage to persons, the Court shall adopt such provisional measures as it
deems pertinent in matters it has under consideration. Regarding to a case not yet
submitted to its consideration, it may act at the request of the Commission or of the
alleged potential victims.”
In the protection mechanism of the American Convention, the right of individual
petition will attain its maximum expression when it can be exercised by the petitioners
directly before the Inter-American Court of Human Rights. Hence this proposal to amend
Article 61(1) of the Convention, extended also to Article 63(2), in certain circumstances,
with regard to provisional protection measures. I consider that this is fully justified,
particularly in the case of alleged situations of extreme gravity and urgency, with the
alleged probability of irreparable damage to persons.”
32.
In this matter of the Araraquara penitentiary, the Commission correctly
requested the Court to adopt Provisional Measures of protection, as soon as the gravity
of the situation became evident (cf. supra), and did not try to previously adopt its
precautionary measures. In doing so, it was wise enough to avoid repeating the
mistake it made in the previous Matter of Children Deprived of Liberty in the
"Complexo do Tatuapé" of FEBEM regarding Brazil —which mistake I pointed out in my
Separate Concurring Opinion in the Court’s Order of November 17, 2005—, of
unsuccessfully attempting to previously adopt its precautionary measures for years,
even in the face of the successive reports of fatal victims (which did not occur in this
case). I am satisfied to learn that the Commission heard my warnings.
33.
In effect, in the public hearing held before this Court the day before yesterday,
September 28, 2006, the Commission’s representative himself (Mr. Florentín
Meléndez), confirmed so in replying my question, admitting my argument (supra) that
“definitely, there are no legal grounds that support the view that precautionary
measures must be exhausted before recourse may be had to the Court seeking
Provisional Measures” of Protection.45 Likewise, the representative of the beneficiaries
of these Measures and former President of the Commission (Mr. Hélio Bicudo), held the
same view in responding to another of my questions, pointing out that “precautionary
measures have not the same force as Provisional Measures: precautionary measures
are recommendations made to the State, whereas Provisional Measures are imposed
on it."46
34.
Indeed, it is necessary to seek and apply the legal remedies with conventional
force that assure the most effective protection to those needing it, all the more so in
situations of emergency. It is no coincidence that, when I approached —from the
beginning— the temporal dimension of International Law in my recent General Course
on Public International Law, which I delivered at the Hague Academy of International
Law (2005), I lay particular stress on Provisional Measures of protection, and
specifically those ordered by the contemporary international court that has contributed
Internacional Courts of Human Rights), Bilbao, Universidad de Deusto, 2001, pp. 9–104; A. A. Cançado
Trindade, Tratado de Direito Internacional dos Direitos Humanos (A Treatise on International Human Rights
Law), volume III, Porto Alegre, S.A. Fabris Ed., 2003, pp. 447-497.
45
IACHR, Transcript of the Public Hearing…, op. cit. infra No. (17), p. 39 (internal circulation).
46
IACHR, Transcript of the Public Hearing…, op. cit. supra No. (17), p. 41 (internal circulation).
.
.
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