the Twenty-Sixth Court of Caracas ruled on December 20, to allow the beneficiary to be
seen, if necessary, by physicians of her choosing, but at State institutions. Additionally, the
Court observes that according to information submitted by the representatives themselves,
the State has complied with this order, especially in the surgery performed on the
beneficiary with the participation of the physician of her choosing. In this sense, the Court
weighs the information presented by the representatives and concludes that the State has
contributed to compliance with another objective of the provisional measures with the
medical attention provided to Ms. Afiuni by physicians of her choosing.
10.
Regarding the request to broaden the provisional measures, the Court observes that
with regard to the restriction on the beneficiary from making statements to the media, the
representatives indicated that the measure places Judge Afiuni “in a situation of extreme
gravity and urgency that would cause irreparable harm to her freedom of expression,”
representing as it does true ‘prior censorship’” (supra Having Seen 12.d.) They also argued
that because of the terms and circumstances under which her arrest was ordered, the
provisional measures are necessary because her detention was ‘arbitrary’ (supra Having
Seen 12.c.). Regarding this, the Court finds that the alleged prior censorship and arbitrary
detention to which Ms. Afiuni’s has been subjected have to do with the case’s merits. In this
sense, an absence of pleadings on the part of the representatives makes it impossible to
differentiate between the aspects related to the character and nature of the provisional
measures ordered and the issues that should be settled on the merits of the petition. The
Court recalls that in the event of a request for the adoption (or broadening) of provisional
measures, it cannot consider any argument that is not strictly related to extreme gravity,
urgency and need to prevent irreparable harm to people. Any other matter should be
resolved in the context of the merits of the case in question.13 Consequently, the Court finds
the request for the extension of provisional measures inadmissible.
11.
Additionally, it must be recalled that this matter is being processed before the InterAmerican Commission, and that it was this entity that requested the provisional measures.
In its brief of February 28, 2011 (supra Having Seen 14), the Commission only requested
the ratification of the measures “to the extent that [they are] applicable to the beneficiary’s
current situation.” However, it did not provide information demonstrating the need to keep
the measures in force under Ms. Afiuni’s current conditions of detention. It is therefore
appropriate to lift the urgent measures. This is without prejudice to what the Inter-American
Commission may later on consider pertinent in the event that Ms. Afiuni’s situation should
change.
12.
Lastly, the Court reiterates that Article 1(1) of the Convention establishes the
general obligations of States parties to respect the rights and freedoms recognized therein
and to ensure their free and full enjoyment by any person subject to its jurisdiction, in any
circumstance. The provisional measures, for their part, are exceptional in nature and
complementary to this general obligation of the States. In this sense, the Court’s lifting of
the provisional measures does not mean that the State is relieved of its obligation to protect
under the Convention. The Court thus emphasizes that regardless of the existence of
13
Cf. Case of James et al. Provisional Measures regarding Trinidad and Tobago. Order of the Inter-American
Court of Human Rights of August 29, 1998, Considering 6; Matter of the Colombian Commission of Jurists
regarding Colombia. Provisional Measures regarding Colombia. Order of the Inter-American Court of Human Rights
of November 25, 2010, Considering 7, and Matter of the “Comisión Intereclesial de Justicia y Paz.” Provisional
Measures regarding Argentina. Order of the Inter-American Court of Human Rights of November 22, 2010,
Considering 7.
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