15
of such Convention.6 Special duties arise from these general obligations, which duties
are determinable in view of the particular needs for protection of the legal persons,
whether as to their personal conditions or due to the specific situation that they have
to endure. Article 1(1) of the convention imposes on the States Party the
fundamental obligations to respect and protect rights. Hence, any violation to those
human rights recognized in the Convention which, according to International Law
rules, can be attributable to an act or omission of any public authority, constitutes an
act attributable to the State, which becomes internationally responsible to the extent
prescribed in the said Convention.7
19.
That the provisions embodied in Article 63(2) of the Convention generate an
obligation for the State to adopt the provisional measures that this Court may order.
This being so, since according to a basic principle of the international responsibility of
the States, supported by international case-law, the States must comply with their
conventional obligations in good faith (pacta sunt servanda.) The failure to comply
with an order to adopt provisional measures issued by the Court may give rise to the
international responsibility of the State.8
20.
That after having examined the facts and the circumstances that led to the
Order issued on July 28, 2006 by the President in consultation with the Judges of the
Court, which order provided for the adoption of urgent measures in favor of those
persons deprived of their liberty in the Penitenciaría “Dr. Sebastião Martins Silveira”
(“Dr. Sebastião Martins Silveira” Penitentiary,) in Araraquara, state of San Paulo,
Brazil, and which order further provided for the protection of the lives and physical
integrity of all the persons that may be admitted to such penitentiary in the future as
inmates or detainees (supra Having Seen clause No. 4;) and after having examined
the allegations that the State, the Commission and the representatives presented at
the public hearing, (supra Having Seen clauses No. 11, 12 and 13,) and in view of
the lack of specific information regarding the current situation of the beneficiaries,
and considering the prior circumstances that they had to endure (supra Considering
clause No. 13,) the Court cannot avoid exercising its power to guarantee the human
rights of those persons that are deprived of their liberty, since the said beneficiaries
are, prima facie, still suffering a situation of extreme gravity and urgency; and
therefore, the adoption of provisional measures in their favor becomes necessary.
The prima facie standards applied to a case and the assumptions made about the
need for protection have led the Court to order measures on several occasions.9
6
Cf. Matter of the Mendoza Prisons, Provisional Measures, supra note 4 Considering clause No. 6;
Case of the Pueblo Bello Massacre, supra note 6 para. 111; and Case of the “Mapiripán Massacre” Order of
the Inter-American Court of Human Rights of September 2, 2005, para. 111.
7
Cf. Matter of the Mendoza Prisons, Provisional Measures, supra note 4 Considering clause No. 9;
Case of the Pueblo Bello Massacre, supra note 6 para. 111; and Case of the “Mapiripán Massacre” note 6,
para. 108.
8
Cf. Matter of the Mendoza Prisons, Provisional Measures, supra note 4 Considering clause No. 10;
Matter of the Communities of Jiguamiandó and Curbaradó. Provisional Measures. Order of the InterAmerican Court of Human Rights of February 7, 2006, Considering clause No. 7.
9
Cf. Matter of Millacura Llaipén et al. Provisional Measures. Order of the Inter-American Court of
Human Rights of July 6, 2006, Considering clause No. 9. Case of 19 Tradesmen. Provisional Measures.
Order of the Inter-American Court of Human Rights of July 4, 2006, Considering clause No. 13. and Matter
of the Forensic Anthropology Foundation. Provisional Measures. Order of the Inter-American Court of
Human Rights of April 21, 2006, Considering clause No. 10.
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