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 non-appealable" 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 non-appealable", i.e., it is "the
decision on the case," which, as noted in the doctrine, is the solemn decision of the judge
to conclude the process, a statement of legal certainty regarding the corresponding case.
And this also happens especially "when [the Court] finds a violation of a right or freedom
protected" in the Convention and, consequently, orders that "the injured party’s right or
freedom that was violated be guaranteed," a judgment that State Parties to the
Convention "agree to comply with,"24 and, failing to do so, the Court, after receiving "the
relevant information" obtained by monitoring compliance,25 shall include it in its annual
report to the OAS General Assembly, requesting the relevant "recommendations."26
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 Kawas-Fernández 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 […]”.
24
Art. 68(1) of the Convention.
25
Art. 69(4) of the Rules of Procedure.
26
Art. 65 of the Convention.
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