30.- In other words, if the judgment on merits results in a conviction, the
precautionary nature of the provisional measures 28 makes no sense, given that these
were specifically intended to preserve a legal situation that would allow for the
issuance of the judgment. And obviously, once delivered, an essential part of the
judgment’s purpose, is the protective nature of such measures. Otherwise, the “final
and non-appealable” nature of that decision would not be understood. It is perhaps for
this reason that on more than one occasion, the judgments of the Court have
expressly included devices that are the very essence of provisional measures. 29
Obviously, the provisional measures would be even less justifiable on the assumption
that said judgment is an acquittal.
31. - In short, it is reiterated that the above means nothing more than, effectively,
that the ruling on merits of the contentious case is “final and not subject to appeal,” in
other words, it is “the decision on the case”, which, as noted in the doctrine, is the
solemn decision of the judge to conclude the process, a statement of legal certainty
regarding the corresponding case. And this also occurs especially "when [the Court]
finds a violation of a right or freedom protected" in the Convention and, consequently,
orders that "the injured party’s right or freedom that was violated be guaranteed," a
judgment that State Parties to the Convention "agree to comply with, 30 and, if they fail
to do so, the Court, after receiving “the pertinent information” obtained by monitoring
compliance31, shall include it in its annual report to the OAS General Assembly,
requesting the relevant "recommendations.”32
32. - From the foregoing, it is also appropriate to note that it can be logically gathered
that, because the judgment on merits is "final" and “not subject to appeal”, after
hearing and ruling on the relevant case, the Court resolves it in its entirety, or
completely and in a single and final instance, and so it can no longer hear or rule on it.
The ruling is the result, then, of the Court’s consideration of the case, i.e., it is the
judgment it makes “relating to the interpretation and application” of the Convention.
28
Cf. Matter of Alvarado Reyes et al. Provisional Measures regarding the United Mexican States, supra
note 20, Considering paragraph 5: “Under international human rights law, provisional measures are not only
preventive in nature, in the sense that they preserve a juridical situation, but they are also essentially
protective inasmuch as they seek to safeguard human rights and avoid irreparable damage to persons. The
measures are applicable provided the basic requirements of extreme gravity and urgency, and the need to
prevent irreparable damage to persons are met. Thus, provisional measures become a true jurisdictional
guarantee of a preventive nature.”
29
Case of Kawas Fernandez V. Honduras. Merits, Reparations and Costs. Judgment of April 3, 2009.
Series C No. 196, para. 193: “Moreover, it has been established that various witnesses related to the events
of the instant case have been threatened, and that one such witness is a beneficiary of the provisional
measures ordered by this Court in the course of the proceeding before it […]. Accordingly, based on the body
of evidence in this case, the State must apply its domestic law to provide effective protection to any
witnesses of the events related to the murder of Mrs. Blanca Jeannette Kawas-Fernández and offer
guarantees to any person who may wish to testify. The State must guarantee the enforcement of any and all
orders issued by a competent authority restricting or limiting any contact between said witnesses and the
parties who are likely to be responsible for the facts and take the necessary measures should such orders
not be observed. Also, the State must, in a fully diligent manner and within a reasonable period of time,
process and fully deal with any complaint of coercion, intimidation or threats made by the witnesses in the
domestic proceedings and take all legally prescribed measures for their investigation. […]”.
30
Article 68(1) of the Convention.
31
Article 69(4) of the Rules of Procedure.
32
Article 65 of the Convention.
8
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents