2
initiating, in this way, the procedural dispute (the substantial contentious case is
previous and underlying to such) it is not possible to hold that the Tribunal exercises a
contentious competence identical to the one that shows when the Commission brings
the controversy before the Court. This difference allows identifying the kind of
precautionary judicial authority I have already mentioned.
6.
The foregoing does not modify the radical identity in the design of the measures
adopted by the Court in the several cases that it hears: To protect the rights of the
people, by means of the preservation of the legally protected interest at risk. The
precautionary measures the Inter-American Commission orders have, in effect, the
same design.
7.
In the Order corresponding to the inmates of the Rodeo Prison, to which this
Opinion refers, the Court tries to determine the scope of its ideas regarding the
cautionary and protective nature of the provisional measures. When doing so, the
Court shows the delimitation (projected towards the entity and the specific purposes of
the measures) that is possible to establish between the jurisdiction it has when an
issue is being processed before the Commission and when the merits of the issue are
being considered by the Court, within an adversarial procedure.
8.
The Tribunal deems that the “precautionary nature of the provisional measures
is related to the framework of international adversarial cases” and to the preservation
of such and the execution of the Judgment delivered by the Court (Considering clause
seven). Instead, the “protective nature” of the measures implies “a true judicial
guarantee of preventive nature, inasmuch as they protect human rights, to the extent
that they are intended to avoid irreparable damage to people" (considering clause
eight).
9.
In general terms, I share that effort of conceptual precision that contributes to
making progress in the awareness of international judicial protection of human rights.
My own analysis of the criteria invoked in the aforesaid paragraph leads me to consider
that this is more an issue of emphasis than an essential matter. In effect, I believe
that, in any case, there is a protective (protection of human rights) and cautionary
(preservation of the suit at law) purpose.
10.
When measures are ordered in contentious cases, the precautionary purpose
becomes certain (according to the commonly known characterization of such), but
there can be doubts when dealing with measures ordered in cases that are still being
tried by the Commission. Nonetheless, such cases have- in my opinion- a
precautionary purpose and result: to protect the suit at law that eventually will be
brought before the Court, as well as the effect of the final decision resulting from such
case; and even to protect the proceedings initiated before the own Inter-American
Commission that would face with additional complications, or become unsuccessful
(since the practical point of view that deeply interests the private parties) if such
violations were committed.
11.
The Court has emphasized the need, absolutely inherent to the matter, of
carefully analyzing the extreme seriousness and urgency of the risk hanging over the
right, as well as the possibility of causing irreparable damage to people, grounds on
which the adoption of measures are based on. In terms of the Convention, these are
advisable in "limit" situations whenever those circumstances arise. Clearly, the decision
of the Court can be provided in prima facie weighing -- due to lack of conclusive
evidence, as frequently occurs-- and can and should "assess (the extreme seriousness
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