2
5.
First, in my opinion, the requirement of the prior exhaustion of domestic
remedies is not applicable in requests to the Court for provisional protection
measures. This requirement is a condition for the admissibility of petitions to the
Commission as regards the merits (and possible reparations) of a specific case.
Moreover, the provisional protection measures have a brief procedure, in keeping
with the nature of this preventive and protective juridical mechanism, and because it
in no way prejudges the merits of the case.
6.
Second, I consider that there is no requirement for the Commission’s
precautionary measures to be exhausted before recourse can be had to the InterAmerican Court to request provisional protection measures and I expressly indicated
this in my concurring opinion to a recent Order of the Court on provisional protection
measures.5 Moreover, the Commission’s precautionary measures are based on Rules
of Procedure rather than on the Convention and cannot delay – at times indefinitely
– the application of the Court’s provisional protection measures, which are
Convention-based.
7.
As I added in the above-mentioned concurring opinion, “in all circumstances,
the imperatives of protection should have primacy over apparent institutional
rivalries,” particularly in the midst of situations of “chronic violence.”6 The
Commission’s insistence in its practice with regard to prior precautionary measures
may, in some case, have negative consequences for the potential victims and create
one more obstacle for them. In certain cases, it can constitute a denial of justice at
the international level.
8.
Third, in cases in which the Commission denies precautionary measures, this
decision should be duly justified. The decisions of the Commission and the Court
concerning both precautionary and provisional measures, respectively, should always
be motivated, as a guarantee of respect for the adversary principle – which is a
general principle of law – so that the petitioners have certainty that the matter they
submitted has been duly and carefully considered by the international instance, and
so that the meaning of the decision taken by the latter is clear7 (especially, in an
alleged situation of extreme gravity and urgency with the presumed probability of
irreparable damage to persons).
9.
A decision by the Commission that denies precautionary measures must
necessarily be duly justified always. Moreover, an additional negative by the
Commission to request the Court to order provisional measures, also without
justification, legitimizes the potential victims, as subjects of international human
rights law, to resort to the Court to seek the granting of these provisional measures;
otherwise, there could be a denial of justice at the international level.
.
Cf. Inter-American Court of Human Rights [ICourtHR], Order of November 17, 2005, in the
Children Deprived of Liberty in the “Complexo do Tatuapé” of FEBEM v. Brazil, concurring opinion of Judge
A.A. Cançado Trindade, para. 3.
5
.
6
Ibid., para. 5.
.
Cf. [Several authors] Le principe du contradictoire devant les juridictions internationales (eds. H.
Ruiz Fabri and J.-M. Sorel), Paris, Pédone, 2004, pp. 14, 33, 81, 86, 118 and 168.
7
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