3.
This concurring opinion strives to reaffirm, in general, the competence of the
inter-American Court Human Rights in relation to provisional measures, and in
particular those which the Court orders, and can order, during the course of
proceedings for contentious cases —including the monitoring compliance with
judgments phase. All of the above is perfectly coherent with the American
Convention on Human Rights, and the norms and principles of international law that
have supported the constant jurisprudence and the jurisdiction of the Tribunal in this
area.
4.
This opinion is divided into four parts: it begins with a brief analysis of the
competencies of the European Human Rights Court in relation to provisional
measures; followed by an analysis of the competencies of the Inter-American Court
of Human Rights in relation to provisional measures; thirdly, the specific area of the
Tribunal's competence to order provisional measures during the monitoring of
compliance with judgments is discussed; and, finally, the importance of provisional
measures during the monitoring phase is emphasized.
I.
The European Court of Human Rights and its competence to order
provisional measures.
5.
The European Court of Human Rights (hereinafter "European Court" or
"European Tribunal") has argued that the object and purpose of the European
Convention on Human Rights1 (hereinafter "European Convention") is the protection
of persons, and to do so its safeguards must be practical and effective, as part of the
system of individual applications.2 Similarly, it stated that the European Convention
is a living instrument, which must be interpreted in the light of present-day
conditions.3 Also, it is worth noting that the European Court has stated that the
interpretation of a provision of the European Convention should be the that which is
most appropriate for the purposes of achieving the object of the treaty, not that
which would restrict to the greatest possible degree the obligations undertaken by
the Parties.4
6.
Unlike the inter-American System for the Protection of Human Rights
(hereinafter "inter-American System"), the European Convention contains no
provision that expressly authorizes the European Court to order provisional
measures. Thus, for a long time, the European Court abstained from ordering such
measures on the understanding that the treaty contained no provision that
empowered the designated bodies to request the implementation of provisional
measures.5 However, subsequently, the European Court incorporated a provision into
its Rules of Procedure pursuant to which it can order provisional measures. Indeed,
1
Agreement to Protected Human Rights and Fundamental Freedoms.
2
Mamatkulov and Askarov. v. Turkey. Judgment of February 4, 2005, para. 101.
3
Mamatkulov and Askarov. v. Turkey, supra note 2, para. 121.
4
Wemhoff v. Germany. Judgment of June 27, 1968, para. 8.
5
.
Cruz Varas v. Sweden. Judgment of 20
the European Court.
th
March 1991, para. 102. It refers to the Commission and
2