6
of the final decision. The provisional measures make it possible for the State in
question, in this sense, to comply with the final decision and, if applicable, to go ahead
with the reparations so ordered.
8.
That as to the protective nature of the provisional measures, this Court has
pointed out that, providing the basic requirements of extreme gravity and urgency as
well as avoidance of irreparable damage of people are met, provisional measures are
transformed in a true judicial guarantee of precautionary nature, since they protect
human rights inasmuch as they are intended to avoid irreparable damage to persons.
9.
That the Court considers it is necessary to clarify that, in view of the protective
nature of the provisional measures, the Tribunal may order such measures even when
there is not exactly an adversarial case in the Inter-American system, in situations
that, prima facie, may result in a serious and urgent impairment of human rights.
Therefore, the Court must make an assessment of the proposed problem, the
effectiveness of the State measures regarding the described situation and the degree
of lack of protection in which the people requesting the measures would be if such
measures are not adopted. In order to achieve such goal it is essential that the InterAmerican Commission submits a sufficient ground to comprise the already mentioned
criteria and that the State fails to show, in a clear and sufficient way, the effectiveness
of the specific measures adopted within the domestic jurisdiction.
10.
That the Court cannot, before a request for provisional measures, consider the
merits of any arguments pertaining to issues other than those which relate strictly to
the extreme gravity and urgency and the necessity to avoid irreparable damage to
persons. Such other issues are properly brought before the Court only through
contentious cases.3
11.
That it is appropriate to remember that Article 1(1) of the Convention
establishes the general obligations of the State Parties to respect the rights and
freedoms therein enshrined and to ensure the full and free exercise of those rights and
freedoms to every person subject to such jurisdiction; such obligations are binding not
only on States but also on third parties. This Court has considered that the State is in a
special position of guarantor of the people deprived of their liberty in penitentiaries or
detention centers, due to the fact that penitentiary authorities exercise total control
over them4. Furthermore, “[o]ne of the obligations that the State must inevitably
3
Cf. Matter of James et al. Provisional Measures regarding Trinidad and Tobago. Order of the Court of
August 20, 1998, Considering clause six; Matter of Castañeda Gutman. Request for Provisional Measures
regarding Mexico. Order of the Court of November 25, 2005, considering clause eight; Case of Juan
Humberto Sánchez. Provisional Measures regarding Honduras. Order of the Corut of February 7, 2006,
considering clause seven; Matter of Luisiana Ríos et al. Provisional Measures regarding Venezuela. Order of
the Court of July 3, 2007, considering clause nine; and Matter of “Globovisión” Television Station.
Provisional Measures regarding Venezuela. Order of the Court of November 21, 2007, Considering clause
four.
4
Cf. Matter of Urso Branco Prison. Provisional Measures regarding Brazil. Order of the Court of June
18, 2002, considering clause six and eight; Matter of Children Deprived of Liberty in “Complexo do Tatuapé”
of FEBEM. Provisional Measures regarding Brazil. Order of the Court of July 3, 2007; considering clause six;
Matter of Yare I and Yare II Capital Region Penitentiary Center. Provisional Measures regarding Venezuela.
Order of the Court of March 30, 2006, considering clause nine; and Matter of the Mendoza Prisons.
Provisional Measures Regarding Argentina. Order of the Court of November 22, 2004, Considering clause
six.
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