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under Article 49 of the Convention. According to the Commission, the petitioners recently
requested "that the agreement not be approved." Regarding this, the State highlighted that
it has been requesting approval of the agreement for two years and has gotten no
response.
49. Representatives indicated that, in their judgment, the "Friendly Settlement
Agreement on the issue of the Mendoza Penitentiary does not cover the Provisional
Measures, and the petitioners will not block their removal if the Nation and the Province
fully comply with the agreement." They indicated that "in this case, the petitioners and the
State want the [Commission] to evaluate and supervise the agreement, not put an end to
the matter with its signature," for which reason "if the National State has sent its request
for [the application of Article] 49 of the Convention, it does so within the framework of the
commitments made," but they indicated that "it is the [Commission] that must decide if
the agreement meets inter-American standards and if it has been complied with." During
the public hearing in November of 2010, they indicated that although the friendly
settlement does not form part of the provisional measures, Law No. 17.930 establishing
compliance with it came out of these provisional measures, for which reason it is closely
linked, and the measures on which they have reached an agreement would help to improve
democratic institutions in order to rectify the situation of individuals deprived of liberty.
50. For its part, the Commission highlighted that the provisional measures were
requested independently and "apart from the existence of the case," with their purpose
being to protect rights rather than to prevent the result of the petitions brought before the
Commission. It indicated that it is true that there is a friendly settlement agreement
presented by "one of the petitioning groups" and the Commission "is evaluating it in order
to issue a report pursuant to Article 49 of the Convention." In particular, it found that the
State request for the Court to rule on the urgency of the approval of the friendly settlement
agreement is inadmissible given that the preceding is independent of the provisional
measures and it falls solely and exclusively to the Commission under its independence and
autonomy to rule on cases being processed before it.
51. The Court views positively the conciliatory attitude of the petitioners and the State,
manifested in this matter through the agreements reached in the so-called “Asuncion
Accords,” (supra Having Seen 3) as it reflects a commitment to comply with obligations
under the Convention. The Court observes that the Commission indicated that it has not
yet approved the agreement but that it is studying the possibility of doing so pursuant to
Article 49 of the Convention. It is possible for some of the measures agreed upon between
the State and the petitioners in the "friendly settlement" intended to remedy situations
apparently not compatible with the American Convention taking place in the Mendoza
penitentiaries to include elements also pertaining to the purpose of these provisional
measures. Although the provisional measures proceeding should not imply a forum for
debate on questions of the merits that could imply a pre-judgment in a case, it is clear that
the jurisdiction to weigh and supervise that friendly settlement agreement falls exclusively
to the Inter-American Commission. Consequently, upon lifting these provisional measures,
the Tribunal limits itself to ruling on whether the situation of risk that led to this proceeding
persists in the terms indicated (Considering 39), for which reason it does not fall to the
Tribunal to rule on what the State has indicated as far as the need to approve the
aforementioned agreement. It is enough to find that the Inter-American Human Rights
May 29.