SEPARATE OPINION OF JUDGE A.A. CANÇADO TRINDADE
1.
In my separate opinion I concur with this Order of the Inter-American Court of
Human Rights regarding Provisional Measures of Protection in the matter of the
Integrantes del Equipo de Estudios Comunitarios y Acción Psicosocial (Members of the
Community Studies and Psycho-social Action Team) (Case of the Plan de Sánchez
Massacre) v. Guatemala. In addition, I feel obliged to state in this brief Separate
Opinion —my last Separate Opinion for this Court concerning Provisional Protection
Measures— my views on certain issues I have been rasing before the Court over the
last few months, in order to strengthen this preventive mechanism for the protection
of rights. In particular, I am making reference to some problems that have arisen in
the practice under the American Convention, which arose out of the fact that
provisional measures ordered by the Inter-American Commission on Human Rights
coexist with those ordered by the Inter-American Court, in light of the imperative of
individuals' direct access to international justice. In the following sections I will briefly
discuss, under the usual time constraints, my views on this subject, both de lege lata
and de lege ferenda.
I.
Brief Thoughts de Lege Lata
2.
This IACHR case of the members of the Equipo de Estudios Comunitarios y
Acción Psicosocial (Community Studies and Psychosocial Action Team) (ECAP) (case of
the Plan de Sánchez Massacre) was commenced through a request for Provisional
Protection Measures, filed with this Court on October 15, 2006, by the Centro para la
Acción Legal en Derechos Humanos (Center for Legal Action in Human Rights)
(CALDH), to protect the lives and physical integrity of the members of the Asociación
Civil Equipo de Estudios Comunitarios y Acción Psicosocial (Community Studies and
Psychosocial Action Team Organization). Ever since this Court issued its Judgment of
November 19, 2004 in the case of the Plan de Sánchez Massacre (reparations), the
ECAP has been involved in a number of activities with the survivors of the massacre in
the communities of the municipality of Rabinal, Baja Verapaz, Guatemala, with an aim
to follow up on the reparation measures ordered by this Court.
3.
In consideration of the fact that the above-mentioned request was submitted to
the Court by the representatives of the victims and their relatives in a case —i.e., the
case of the Plan de Sánchez Massacre— proceeding before the Court in the Compliance
with Judgment stage, the Court held that the request for Provisional Protection
Measures met the requirements set forth in Article 63(2) of the American Convention
on Human Rights and Article 25 of the Court's Rules of Procedures, and adopted the
appropriate Measures through the Order of November 25, 2006.
4.
Ironically, the same day the Court took cognizance of the request that
originated these Protection Measures —i.e., the day before yesterday, November 23,
2006— it also received another submission concerning the case of the Movimento dos
Servidores Públicos Aposentados e Pensionistas (MOSAP),9 regarding Brazil, in which
Provisional Protection Measures were being requested. The Court only informed
MOSAP's representative10 that it lacked jurisdiction to hear the request,11 inasmuch as
9
.
Brief of November 10, 2006 filed by MOSAP's legal representative (Mr. L. A. Costa de Medeiros).
10
.
Letter from the Court’s Secretariat of November 24, 2006, to MOSAP’s legal representative.
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