36.
Lastly, regarding the requirement of the irreparability of the harm, in its Order
of May 28, 2010, the Court verified the concurrence of the said requirement in the
preventive and protective dimensions and concluded that it:
Has been complied with, in its protective dimension, because of the risk of harm to
the right to life owing to the possibility of an irremediable measure such as the
death penalty. Indeed, the possible application of the death penalty entails the
most extreme and irreversible situation. Regarding the preventive dimension,
[Wong Ho] Wing’s extradition would thwart compliance with an eventual decision of
the organs of the system concerning the existence of a violation of Article 8 and 25
of the Convention. Indeed, if the examination of the petition lodged with the
Commission leads to the conclusion that the alleged flaws in the extradition
process truly existed, the damage caused could not be remedied. Thus, the right of
petition embodied in Article 44 of the Convention would be affected irreversibly. 16
37.
The Court recalls that, based on these and other considerations, in order that
the Inter-American Commission could fulfill its treaty-based mandate and rule on the
alleged violations in the extradition procedure in which there is a risk of the eventual
application of the death penalty, this Court opportunely decided to adopt provisional
measures (supra considering paragraph 21).
38.
The Court reiterates that in the proceeding on provisional measures, it only has
competence to make a prima facie analysis of the elements provided to the case file.
Consequently and owing to the uncertainty of the State concerning the possibility of
extradition (supra considering paragraphs 18, 19, 23 and 26), the Court finds that the
preceding considerations regarding the existence of a situation of extreme gravity and
urgency and the need to avoid irreparable damage are applicable to the actual
situation of the proposed beneficiary.
39.
The Court emphasizes that, regarding the preventive aspect, the object and
purpose of provisional measures is to preserve the rights that may be at risk until the
dispute has been settled. Their object and purpose are to ensure the integrity and
effectiveness of the decision on merits and, in this way, avoid any harm to the rights in
litigation, a situation that could render ineffective or detract from the usefulness of the
final decision. Regarding the protective nature of the provisional measures, they
represent a real jurisdictional guarantee of a preventive nature, because they protect
human rights insofar as they seek to avoid irreparable harm to persons. 17
40.
The Court stresses that, in this matter, the preventive aspect of the measures
seeks to avoid precluding compliance with an eventual decision of the organs of the
inter-American system and, thus, to prevent “irreversible [harm] to the right of
petition embodied in Article 44 of the Convention” (supra considering paragraph
¡Error! No se encuentra el origen de la referencia.), especially taking into account
that, in this matter, the proposed beneficiary would be extradited to a State beyond
the scope of the protection of the inter-American human rights system.
16
Matter of Wong Ho Wing. Order of the Court of May 28, 2010, supra note ¡Error! Marcador no
definido., fourteenth considering paragraph.
17
Cf. Case of the “La Nación” Newspaper. Provisional measures with regard to Costa Rica. Order of
the Court of September 7, 2001, fourth considering paragraph; Matter of Wong Ho Wing. Order of the Court
of March 4, 2011, supra note ¡Error! Marcador no definido., tenth considering paragraph, and Matter of
Wong Ho Wing. Order of the Court of July 1, 2011, supra note ¡Error! Marcador no definido., twelfth
considering paragraph.
13