6
system enshrined in the Convention, ineffective.7 If the Court decides to lift the
provisional measures for this reason, the State, in compliance with its duty to safeguard
human rights (infra Considering clause 24), will have to maintain the protective
measures that it may have adopted, and that were deemed effective by the Court, for
as long as the circumstances so require.
*
**
22.
That the representatives believe that another factor that the Court should take
into account when deciding whether or not to lift the provisional measures is the
“elucidation of the facts that led to establish, prima facie, that risks existed.”
23.
That threats usually have a purpose and a form of expression. The purpose is the
aim pursued by the perpetrator of threats. The form of expression is the mechanism
through which threats reach their intended recipients. Both the purpose and the form of
expression determine the type of investigation and the relevant strategies for analysis.
24.
That Article 1(1) of the Convention establishes the general duty of States Parties
to respect the rights and freedoms recognized therein and to ensure to all persons
subject to their jurisdiction the free and full exercise of those rights and freedoms.8
Consequently, regardless of the existence of specific provisional measures, the State
has a special duty to guarantee the rights of persons who are at risk and to set in
motion such investigations as may be necessary to elucidate the facts, followed by such
consequences as the applicable legislation may set forth. Regarding investigations, the
State concerned ought to use its best efforts to establish all the facts that surrounded
the threat and its forms of expression; to determine whether there exists a pattern of
threats against the beneficiary or the group or entity to which they belong; to establish
the purpose or aim of the threat; to ascertain who is behind the threat and, if
appropriate, to punish them. Nevertheless, the Court has pointed out that an alleged
failure to investigate by a State does not necessarily constitute a situation of extreme
gravity and urgency warranting the maintenance of the provisional measures.
Furthermore, on certain occasions, the duty to investigate may take a considerable
amount of time, during which the threat or risk may cease to be of an extreme and
urgent nature. Finally, the Court has observed that the analysis of the effectiveness of
the investigations and proceedings related to the facts that gave rise to the provisional
measures is germane to the examination of the merits of the case.9 In short, noncompliance with the duty to investigate, while reproachable, does not in and of itself
provide enough grounds to maintain the provisional measures. It is for the beneficiaries
7
Cfr. Matter of Luis Uzcátegui. Provisional Measures regarding Venezuela. Order of the Court of
February 20, 2003, considering clause thirteen; Matter of Marta Colomina. Provisional Measures regarding
Venezuela. Order of the Court of July 4, 2006, considering clause eleven, and Case of Raxcacó-Reyes et al.
Provisional Measures regarding Guatemala. Order of the Court of February 2, 2007, considering clause twelve.
8
Cfr. Case of Velásquez-Rodríguez. Provisional Measures regarding Honduras. Order of the Court of
January 15, 1988, considering clause three; Matter of Carlos Nieto-Palma et al. Provisional Measures
regarding Venezuela. Order of the Inter-American Court of Human Rights of January 26, 2009, considering
clause twenty-two, and Matter of Fernández-Ortega et al., supra note 4, considering clause four.
9
Cfr. Matter of Pilar Noriega-García et al. Provisional Measures regarding Mexico. Order of the Court of
February 6, 2008, considering clause fourteen; Matter of Leonel Rivero et al. Provisional Measures regarding
Mexico. Order of the Court of November 25, 2008, considering clause eighteen, and Matter of Luis Uzcátegui,
supra note 5, considering clause thirty-one.