of the Court, but it also does so in the sense that they are admissible before the
Court orders a judgment on merits in the case, since if they were ordered later,
they would not be related to a matter "under its consideration," as set forth in
Article 63(2) and within which it determines and states the provisions of Article
63(1).
Equally, it should be mentioned that if "the" decision or judgment is damning for
the State in accordance with the terms set forth in the aforementioned Article 63(1)
of the Convention, this latter rule should be understood, then, in accordance with
that provided for in the following Article 63(2), which leads logically to the
conclusion that when the Court decides or rules that there has been a "violation of
a right or freedom protected" by the Convention, consequently, it orders that the
State "guarantees the injured party enjoyment of his right or freedom that was
violated," which necessarily entails an obligation " to prevent irreparable damage to
people," particularly "[i] n cases of extreme gravity and urgency."
In other words, if the judgment on merits ordered is damning, the precautionary
nature of provisional measures makes no sense,22, since they were specifically
intended to preserve a legal situation that would allow for the issuance of the
judgment. And obviously, once issued, as an essential part of its object, the
protective nature of such measures is assumed. Otherwise the "final and nonappealable" nature of that decision would not be understood. It is perhaps for this
reason that on more than one occasion, in judgments of the Court, devices have
expressly been included that are the essence of provisional measures.23
Obviously the provisional measures would be even less justifiable on the
assumption that the ruling was an acquittal.
In short, it is reiterated that the above does not mean anything other than,
effectively, the ruling on merits of the contentious case is "final and nonappealable", i.e., it is "the decision on the case," which, as noted in the doctrine, is
22
Cf. Matter of Alvarado Reyes et al. Provisional Measures regarding the United Mexican States,
supra note 20, Considering Clause 5: "Under the International Law of Human Rights, provisional
measures are not only precautionary in nature, in the sense that they safeguard a legal situation, but
they are also fundamentally protective because they protect human rights, insofar as they seek to avoid
irreparable damage to persons. The measures apply whenever all the basic requirements of extreme
gravity and urgency, and preventing irreparable damage to people, are present. Thus, provisional
measures become a true jurisdictional guarantee which is preventive in nature."
23
Case of Kawas Fernández v. Honduras. Merits, Reparations and Costs. Judgment of April 3,
2009. Series C No. 196, para. 193: "Moreover, it has been established that various witnesses related to
the events of the instant case have been threatened, and that one such witness is a beneficiary of the
provisional measures ordered by this Court in the course of the proceeding before it [...]. Accordingly,
based on the body of evidence in this case, the State must apply its domestic law to provide effective
protection to any witnesses of the events related to the murder of Mrs. Blanca Jeannette KawasFernández and offer guarantees to any person who may wish to testify. The State must guarantee the
enforcement of any and all orders issued by a competent authority restricting or limiting any contact
between said witnesses and the parties who are likely to be responsible for the facts and take the
necessary measures should such orders not be observed. Also, the State must, in a fully diligent manner
and within a reasonable period of time, process and fully deal with any complaint of coercion,
intimidation or threats made by the witnesses in the domestic proceedings and take all legally prescribed
measures for their investigation […]”.
6