7
10.
Article 63(2) of the Convention demands that for the Court to be able to order
provisional measures three conditions must be present: i) “extreme gravity”; ii) “urgency,”
and iii) that it try to “avoid irreparable damages to the persons.” These three conditions are
coexistent and shall be present in all situations in which the intervention of the Tribunal is
requested.10 In the present matter, the extreme magnitude and intensity of the situation of
risk due to the alleged disappearance of Mr. Natera Balboa while he was under state
custody has been indicated. Likewise, the Court considers that an intervention in this case
cannot be delayed in order to avoid the threat since a delay or a lack of response would in
itself imply a danger. Finally, the irreparable nature of the situation of extremely grave and
urgent risk, with regard to the rights to life and humane treatment that the Tribunal has the
obligation to protect when the circumstances established in Article 63(2) of the American
Convention are present, is evident.
11.
Upon ordering that the State adopt urgent measures, the President observed, in its
Order, that the next of kin and their representatives denounced the fact before different
state authorities, such as: a) The Public Prosecutors’ Office with Competence in
Fundamental Rights of the city of Bolívar; b) The Attorney General of the Republic; c) The
National Office of Penitentiary Services, and d) The Court on Duty in Control Functions of
the Second Circuit of the Criminal Legal Jurisdiction of the Bolivar State. Regarding said
processes, this Court has not been informed of results or specific progress that would allow
it to determine with clarity what occurred or what Mr. Natera’s whereabouts are.
12.
Additionally, the President observed the response the State had offered to the
request for urgent information forwarded by the Inter-American Commission on November
20, 2009, in the terms of Article XIV of the Inter-American Convention on Forced
Disappearance of Persons (supra Having Seen paragraphs 2(d) and 2(e)). Even though the
State informed of some investigations in progress at a domestic level regarding Mr. Natera’s
situation, there is no evidence that the initiated criminal investigation had any positive
results regarding precise and specific information on Mr. Natera’s fate or whereabouts.
13.
In this sense, it is necessary to point out that every time there is reasonable grounds
to suspect that a person has disappeared, prompt and immediate action by the prosecuting
and judicial authorities ordering appropriate and necessary measures to determine the
whereabouts of the victim or the place where he had been detained, is indispensable.11 On
the other hand, in situations of imprisonment such as those of the present case, the habeas
corpus petition represents, within the indispensable judicial guarantees, the ideal means to
both guarantee the person’s liberty and to control the respect for life and protect the
individual’s personal integrity, in order to guarantee that the detainee be brought before the
judicial body in charge of verifying the legality of the arrest, as well as to prevent his
disappearance or the indetermination of his place of arrest and protect him against torture
or other treatments or cruel, inhuman, or degrading punishments.12 However, from the
10
Cfr. Case of Carpio Nicolle. Provisional measures regarding Guatemala. Order of the Inter-American Court
of Human Rights of July 6, 2009, Considering clause fourteen, and Matter of Guerrero Larez, supra note 6,
Considering clause ten.
11
Cfr. Case of Anzualdo Castro v. Peru. Preliminary Objection, Merits, Reparations, and Costs. Judgment of
September 22, 2009. Series C No. 202, para. 134.
12
Cfr. Case of Neira Alegría et al. v. Peru. Merits. Judgment of January 19, 1995. Series C No. 20, para. 82;
Case of Anzualdo Castro v. Peru, supra note 10, para. 72; Case of La Cantuta v. Peru. Merits, Reparations, and
Costs. Judgment of November 29, 2006. Series C No. 162, para. 111, and Case of the Serrano Cruz Sisters v. El
Salvador. Merits, Reparations, and Costs. Judgment of March 1, 2005. Series C No. 120, para. 79. See also Habeas