5
application. Hence, provisional measures enable the State concerned to comply with the
final decision and, if applicable, to go ahead with the reparations so ordered.5 As
regards the protective nature of provisional measures, this Court has pointed out that
they are a true judicial guarantee of a preventive nature, since, inasmuch as they seek
to avoid irreparable damage to persons, they protect human rights.6
17.
That in the instant case the representatives remarked that “for a provisional
measure to be lifted there must have been a change in the situation of extreme gravity
and urgency initially verified by the Court” and that “the party requesting the
modification or lifting has the burden of proof with regard to said change in the
situation. If such information is missing, provisional measures ought to be maintained.”
According to the representatives, “the fact [that] a significant amount of time has
elapsed without new threats or acts of harassment or violence being targeted at the
beneficiaries could be taken into account as a factor to assess whether risks have
diminished or ceased. Nevertheless, [...] it should be neither the only factor nor a major
one."
18.
That the Court shares the representatives’ view that if a State requests the lifting
or modification of the ordered provisional measures, it ought to produce enough
evidence and arguments to enable the Court to realize that the risks or threats no
longer meet the requirements of extreme gravity and urgency to avoid irreparable
damage. In turn, the representatives of the beneficiaries who want the measures to be
maintained have to file evidence of the reasons supporting their position.
19.
That the Court acknowledges that a lack of threats does not necessarily imply
that there exist no risks for a person. However, if a certain amount of time elapses
without any threats, the Court has to analyze the causes of said absence of threats to
determine whether it is appropriate to maintain the provisional measures, taking into
account that they should be of a provisional and temporary nature.
20.
That the Commission has held that one of the reasons for the absence of threats
is that "the adopted [provisional] measures may have contributed towards the
protection of the beneficiaries.”
21.
That, in this regard, the Court should bear in mind that, pursuant to the
Preamble of the American Convention, international protection of a conventional nature
should reinforce or complement the protection afforded by the domestic law of American
states. Thus, if it is proved that the State involved has developed effective mechanisms
or measures to protect the beneficiaries of the provisional measures, the Court may
decide to lift the provisional measures and impose the obligation to provide said
protection on the body that is duly responsible for it, that is, the State. It is worth
reiterating that this decision belongs to the Court and not to the State, since it would be
unacceptable to subject the mechanism set forth in the American Convention to
restrictions rendering the role of the Court, and hence the human rights protection
5
Cfr. Matter of Capital El Rodeo I & El Rodeo II Judicial Confinement Center. Provisional Measures
regarding Venezuela. Order of the Court of February 8, 2008, considering clause seven; Matter of "El
Nacional" and "Así es la Noticia" Newspapers. Provisional Measures regarding Venezuela. Order of the Court of
November 25, 2008, considering clause twenty-three, and Matter of Luis Uzcátegui. Provisional Measures
regarding Venezuela. Order of the Court of January 27, 2009, considering clause nineteen.
6
Cfr. Matter of Capital El Rodeo I & El Rodeo II Judicial Confinement Center, supra note 5, considering
clause eight; Case of Bámaca-Velásquez. Provisional Measures regarding Guatemala. Order of the Court of
January 27, 2009, considering clause forty-five; and Matter of Fernández-Ortega et al., supra note 4,
considering clause five.