to persons are met. Thus, provisional measures are transformed in a true
jurisdictional guarantee of a preventive nature.4
5.
Article 63(2) of the Convention requires that three conditions be present in
order for the Court to grant provisional measures: i) “extreme gravity”; ii)
“urgency”; and, iii) “that they be necessary to avoid irreparable damage to persons.”
These three conditions coexist and must be present in all situations where the
Tribunal’s intervention is requested. Likewise, these three conditions must persist in
order for the Court to maintain provisional measures in place. If one such condition
ceases to remain in effect, it falls to the Court to assess the pertinence of continuing
with the protection ordered.5
6.
When presented with a Request for Provisional Measures, the Court may not
consider the merits of any argument not strictly related to the elements of extreme
gravity, urgency, and the need to avoid irreparable harm to persons. Any other
matter may only be submitted for the Court’s consideration by way of contentious
case proceedings.
Thus, in order to decide whether to maintain provisional
measures in place, the Tribunal must analyze the persistence of the situation of
extreme gravity and urgency which gave rise to their adoption, or whether new
circumstances equally serious and urgent merit their continuance. Any other matter
may only be submitted for the Court’s consideration by way of contentious case
proceedings.6
a) Implementation of provisional measures
7.
that:
Regarding the implementation of provisional measures, the State reported
a)
Together with various federal and Espírito Santo state institutions, it
formalized the “Pact for the Improvement of Socio-Educational Assistance in
the State of Espírito Santo and Compliance with the Provisional Measures
Issued by the Inter-American Court until September 30, 2011,7 which is being
4
Cf. Case of “La Nación” Newspaper. Provisional Measures regarding Costa Rica. Order of the
Inter-American Court of Human Rights of September 7, 2001, Considering clause four; Matter of Pueblo
Indígena Kankuamo. Order of the Inter-American Court of Human Rights of June 7, 2011, Considering
clause five; and Case of Rosendo Cantú et al. Provisional Measures regarding Mexico. Order of the InterAmerican Court of Human Rights of July 1, 2011, Considering clause four.
5
Cf. Case of Carpio Nicolle. Provisional Measures regarding Guatemala. Order of the InterAmerican Court of Human Rights of July 6, 2009, Considering clause fourteen; Matter of the Forensic
Anthropological Foundation of Guatemala. Provisional Measures regarding Guatemala. Order of the InterAmerican Court of Human Rights of February 22, 2011, Considering clause two; and Matter of Various
Venezuelan Prisons, supra note 3, Considering clause four.
6
Cf. Matter of James et al. Provisional Measures regarding Trinidad and Tobago. Order of the
Inter-American Court of Human Rights of August 29, 1998, Considering clause six; Matter of the
Indigenous Community of Kankuamo, supra note 4, Considering clause five; and Case of Rosendo Cantú
et al., supra note 4, Considering clause four.
7
The Pact’s signatory entities are: the Human Rights Secretariat of the President of the Republic;
the Ministry of Foreign Affairs; the Institute of Socio-Educational Assistance for the State of Espírito
Santo; the State Secretariat of Justice; the State Secretariat of Welfare and Human Rights; the Espírito
Santo State Judiciary; the Espírito Santo State Attorney General; and the Espírito Santo Public
Ombudsman.
3