Inter-American Human Rights System
Precautionary and Provisional Measures regarding the protection of
Human Rights Defenders and Freedom of Expression
Precautionary and Provisional Measures have become a key element in the
Inter-American system on Human Rights. The Inter-American Commission on
Human Rights (hereafter “IACHR” or the “Commission”) grants precautionary
measures based on article 25 of its rules of procedure, while the Inter-American
Court of Human Rights (hereafter the “Court” or the “Inter-American Court”)
orders provisional measures based on article 63(2) of the American Convention
on Human Rights. Both mechanisms have been utilized in order to provide a
rapid response to urgent and grave situations in which the right of an individual, a
group of individuals, organizations or communities might be at danger or risk of
irreparable harm. The norms, which have regulated these mechanisms, do not
condition the granting of measures on the existence of a pending or future
petition or case.
The Inter-American Court of Human Rights has established that the purpose of
provisional measures in the national legal systems (internal procedural law) in
general, is to preserve the rights of the parties in controversy, ensuring that the
future judgment on the merits does not become pointless by their actions
pendente lite. However, the purpose of provisional measures in international
human rights law is broader since, in addition to their essentially preventive
character, they search to effectively protect rights and prevent irreparable
damage to persons.1 Therefore, provisional and precautionary measures are of a
twofold nature: precautionary and protective.2
1
I/A Court H.R., Case of Ivcher-Bronstein v. Peru. Provisional Measures. November 21. 2000. Considering
clauses 8-9.
2
I/A Court H.R., Case of Herrera Ulloa. Provisional Measures regarding Costa Rica. Order of the Court of
September 7, 2001, considering clause four; Case of López-Álvarez et al. Provisional Measures regarding Honduras.
Order of the Court of January 26, 2009, considering clause three, and Matter of Fernández-Ortega et al. Provisional
Measures regarding Mexico. Order of the Court of April 30, 2009, considering clause five.
1
The precautionary measures may require a State to take positive actions, such
as providing protection, or refrain from taking an action, for instance, when a
case is pending within the Inter-American system, so as to preserve the subject
matter of the proceedings until a decision on the merits of the complaint is
reached. However, if the potential injury can be compensated by other means,
such as monetary compensation or restoration of the right presumably infringed
(for example, in cases of property disputes or dismissal from employment),
provisional and precautionary measures might not be issued, because the
granting of such measures may represent a decision on the merits of a claim.
Precautionary measures
The rule providing for the mechanism of precautionary measures –prescribed in
today’s Article 25— has formed a part of the Commission’s regulations for a
quarter of a century, and has been the subject of constant examination regarding
its legitimacy and effectiveness as a tool for protecting human rights. Article 25 of
the Rules of Regulations of the Commission requires that in order for the IACHR
to be able to issue precautionary measures three conditions must concur: i)
gravity; ii) urgency, and iii) that they try to avoid irreparable damages to people.
The mechanism has been invoked in thousands of occasions at the request of
members of the civil society, at the initiative of the Commission or by States
themselves. States have been largely receptive to the requests made by the
Commission and have complied with and implemented its recommendations,
fully or partially, through measures intended to respond to situations of imminent
risk of irreparable harm to life or physical integrity of persons under their
jurisdiction. During the last two decades the Commission has extended the use
of precautionary measures to prevent violations of other rights different from the
rights to life and physical integrity.
2
The binding nature of the protective aspect of precautionary measures issued by
the Commission lies in the general obligation of Member States to respect and
guarantee human rights, to adopt legislative or other measures necessary to give
effect to human rights, and to comply in good faith with the obligations
undertaken in the American Convention and the OAS Charter, as well as in the
competence of the Commission to supervise compliance with the obligations
assumed by States Parties established in Article 41 of the American Convention,
and in the Commission’s Statute.
Between April 1980 and January 2011, more that 687 precautionary measures
were granted by the Commission. This number does not take into account the
many extensions of precautionary measure MC 196.09 which served as a
protective mechanism for many during the 2009 coup d’état in Honduras.3
The IACHR receives an average of 325 requests for precautionary measures
each year, although the trend has been moving upward since 2008, increasing
by 10% each year.
The Commission has issued precautionary measures to protect a wide range of
individuals and communities, as well as several categories of rights. The people
or groups of people protected include the following:

Members of human rights organizations, human rights activists and
journalists who are suffering threats, violent acts or intimidation due to
their association to such activities;

Petitioners who file complaints with the Commission or have cases
pending before the Court alleging State responsibility for human rights
abuses and who have been subjected to acts of retaliation;
3
An extension refers to the inclusion of new beneficiaries on an active precautionary measure granted by the
IACHR. In the case of MC 196-09, because of the widespread and systematic abuses taking place in the context of the
Coup d’Etat in Honduras, all the different situations and persons were covered by a single precautionary measure.
3

Judges, attorneys and witnesses who have taken part in cases
where human rights abuses by state-sponsored actors or private
individuals have been alleged and who have been singled out and
threatened due to their activities;

Detainees who confront a threatening situation to their life, health or
personal integrity due to the lack of medical treatment, violence, or prison
conditions;

People awaiting to be extradited to a State in which they will likely
face torture, cruel and inhuman treatment or death;

Condemned individuals on death row, whose irreparable danger to
life is imminent, and who have a petition or case before the Commission
claiming that their right of due process has been violated;

Displaced persons who seek to return to their homes safely; when
they and their families received death threats and were forced to flee their
homes, or their countries;

Indigenous peoples when their life, personal integrity, ancestral
territory, culture and/or survival face a risk of irreparable harm or
extinction;

Alleged enforced disappearance of a person by a State actor, or
the lack of prompt and due investigation of the whereabouts of the person
as soon as the disappearance is known; and

People who, due to their gender, age, sexual orientation, or
immigration status, among others, are subject to discriminatory actions
that place them in a dangerous situation that warrants immediate
measures to prevent irreparable harm.
The categories of rights that the Commission has considered through
precautionary measures include the following:

Life, health and personal integrity;

Freedom of thought and expression;
4

Freedom of movement and of residence;

Freedom of association;

Irreparable harm derived from enforcement, or lack of enforcement,
of a judicial or administrative order;

Determination of the judicial status of a detainee;

Threat to the environment which could lead to risks to the life and
health of people or a community;

Ancestral territories of indigenous peoples.
As early as the late 1970´s the Commission has called on States to adopt
measures of protection on behalf of both human rights defenders and journalists.
In such cases, the Commission has focused on the special work of those
defending and protecting individuals and groups who are victims of human rights
violations, or who report and publicly denounce injustices or who monitor and
publicize irregularities in the actions of public officials and institutions. These
persons play an irreplaceable role in building a solid and lasting democratic
society, and their work may place both defenders and journalists in situations of
risk or make them the direct targets of attacks.
With regard to journalists generally and freedom of expression, the Commission
has identified two areas of particular concern: the first involves threats, attacks
and acts of harassment against those working in the press and other media,
particularly those reporting from the streets; the second refers to judicial
decisions and draft legislation that, if enforced, would severely constrain the full
exercise of freedom of expression. Since its creation in 1998, the Office of the
Special Rapporteur for Freedom of Expression has worked with the IACHR
regarding recommendations on precautionary measures in the area of freedom
of expression. The IACHR has requested on multiple occasions that Member
States adopt precautionary measures to protect the right to freedom of
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expression, including in the cases of (i) Matus Acuña (Chile),4 (ii) Claudy Gassant
(Haiti)5; (iii) Journalist and workers from Globovisión and RCTV (Venezuela)6 (iv)
Rodrigo Callejas Bedoya and his family (Colombia)7 (v) Pelicó Pérez
(Guatemala)8; César Omar Silva Rosales, Honduras 9
4
MC 75.09 CH– The IACHR decision issued June 18, 1999, requesting that the Chilean government adopt
precautionary measures for Bartolo Ortiz, Carlos Orellana, in light of detention orders against the first two and an order
prohibiting the distribution and sale of a book, stemming from the publication of the Libro Negro de la Justicia Chilena
[Black Book of Chilean Justice], written by Mrs. Matus. On July 19, 1999 the IACHR expanded the measures for Alejandra
Matus, requesting the State to guarantees for her security and physical integrity, as well as her right to freedom of
expression and her intellectual property rights.
5
MC 159.01 HI The Inter-American Commission on Human Rights, on July 5, 2001, asked the Haitian State to
adopt precautionary measures for a period of six months with respect to Judge Claudy Gassant, the magistrate in charge
of the investigation into the slaying of the Haitian journalist Jean Dominique on April 3, 2000. He was assigned the case
after two earlier judges received threats against their persons and subsequently withdrew from the investigation. On June
8, 2001, a plot to kill Judge Gassant was uncovered. This situation, together with the lack of adequate protective
measures, forced the judge to withdraw from the case; his withdrawal was, however, not accepted. The Commission, with
the beneficiary’s agreement, has asked the Haitian State to adopt the following precautionary measures: (1) Immediate
adoption of all measures necessary to protect the life and personal integrity of Mr. Claudy Gassant; (2) Adoption of all
measures necessary to ensure the exercise of his right to investigate, receive, and disseminate information with respect to
the investigation of the facts surrounding the death of the journalist Jean Dominique, pursuant to the provisions of Article
13 of the American Convention on Human Rights and the second principle of the Declaration of Principles on Freedom of
Expression.
6
MC 247.02 - On January 30, 2002 the IACHR granted precautionary measures on behalf of Laura
Castellanos, José Antonio Monroy, Argenis Uribe, and David Pérez Hansen, journalists with RCTV and Globovisión.
According to the request submitted to the IACHR, workers at both media outlets were assaulted by a group of roughly 50
persons while they were covering a transmission for the program Aló Presidente. Reporter Laura Castellanos was
attacked by two women belonging to the Círculos Bolivarianos while covering the August 13, 2002 parliamentary session.
They further indicated that cameraman José Antonio Monroy received a gunshot wound while taping the demonstrations.
The State informed the IACHR that the incidents denounced by the petitioners were being investigated by the Attorney
General’s Office. During 2002 the Commission asked the State to adopt precautionary measures and extended them in
2003 and 2004 with the aim of protecting the lives, safety, and freedom of expression of “cameramen, management,
photographers, and facilities of the media attacked”, as well as to abstain from “all [...] intimidating actions regarding the
practice of their profession by the journalists and other employees of the [aforementioned] broadcaster.”
7
PM 36-10 CO. On April 12, 2010, the IACHR granted precautionary measures for Rodrigo Callejas Bedoya
and his family, in Colombia. The request for precautionary measures alleges that Rodrigo Callejas Bedoya has subject to
threats and harassment, allegedly because of his work as an independent journalist; as a result, his life and personal
integrity, as well as that of his family, are at risk. The Inter-American Commission asked the State of Colombia to adopt
the necessary measures to guarantee the life and physical integrity of journalist Rodrigo Callejas Bedoya and his family;
to reach agreement with the beneficiaries and their representatives on the measures to be adopted; and to inform the
Commission about the steps taken to investigate the facts that led to the adoption of precautionary measures.
8
MC 295-08 GU On November 3, 2008, the IACHR granted the request for precautionary measures on behalf
of Mr. José Pelicó Pérez and his family. The request seeking precautionary measures alleges that the beneficiaries have
been receiving threats and have been followed since April 2008, presumably because of Mr. Pelicó Pérez’ work as an
investigative journalist with the Centro de Reportes Informativos sobre Guatemala (CERIGUA) [Center of News Reports
on Guatemala]. The request states further that on October 5, 2008, Mr. Pelicó’s wife and son had been threatened with a
firearm. Given the situation, the IACHR asked the Guatemalan state to take the measures necessary to preserve the life
and physical integrity of the beneficiaries and to report the measures taken to conduct a judicial inquiry into the events
that warranted the adoption of precautionary measures.
9
PM 196-09 HO - On December 31, 2009, the IACHR expanded Precautionary Measure PM 196-09 for César
Omar Silva Rosales, in Honduras. The request for precautionary measures alleges that journalist Silva Rosales was
kidnapped on December 28, 2009, by three armed individuals and that they interrogated him every 10 minutes over a
period of approximately 24 hours, during which time he was mistreated, beaten, and threatened with death. The request
indicates that he was freed in the vicinity of the Cerro Grande neighborhood, in eastern Tegucigalpa, a place used in the
1980s as a dumping ground for bodies. The Inter-American Commission asked the State to adopt the necessary
measures to guarantee the life and personal integrity and the right to freedom of expression of César Omar Silva Rosales,
and to investigate the facts that led to this request.
6
Most of these cases can be associated with the first hypothesis for granting
precautionary measures: the need to avert grave, imminent, or irremediable harm
to one of the rights protected in the American Convention of Human Rights,
particularly freedom of expression, life and personal integrity.
However, the two cases, Herrera Ulloa (Costa Rica)10 and Rafael Rodríguez
Castañeda (Mexico)11, request precautionary measures to maintain jurisdiction in
the cases pending in the Commission so the subject of the action does not
disappear. Precautionary measures were granted, therefore, in order to
safeguard the object of the petition, while emphasizing that granting of said
measures does not imply any prejudgment on the merits of the underlying
complaint.
With regard to human rights defenders who are beneficiaries of precautionary
measures, the Commission has intervened in those situations in which human
rights defenders have been subject of treats and attacks due to their involvement
in protests against the policies of a government12, judicial investigations of
10
MC 191.01 CR (connected to Case 12.367)– The IACHR granted preacautionary measures on March 1,
2001, based on the petitioners clam that the journalist Mauricio Herrera Ulloa had been convicted on criminal charges in
Costa Rica for his reports in La Nación about a controversial official from that country’s foreign service. The judgment
ordered, inter alia, Herrera Ulloa to pay a fine; it also admitted a civil suit for damages in which Herrera Ulloa and the
newspaper company La Nación S.A., represented by Fernán Vargas Rohrmose, were held jointly liable. The Commission,
basing itself on a recommendation from the Special Rapporteur for Freedom of Expression, asked the State of Costa Rica
to suspend execution of the sentence until the Commission could examine the case; to refrain from any act tending
toward the inclusion of the journalist Herrera Ulloa in the Costa Rican Judicial Register of Criminals; and to refrain from
any act or action affecting the right of free expression of the aforesaid journalist or of the newspaper La Nación.
11
PM 102/08 MX - On July 3, 2008, the IACHR granted a request for precautionary measures to preserve
journalist Rafael Rodríguez Castañeda’s right to access information. The request seeking precautionary measures is
associated with petition P492/08 which alleges, inter alia, that the courts’ refusal to provide access to leftover ballots,
unused ballots, ballots declared to be valid and those nullified in the election held on July 2, 2006, before those ballots
were destroyed, is a violation of Article 13 of the American Convention. The Commission asked the Mexican state to
suspend plans to destroy the ballots until it is able to rule on the merits of the petition filed by Rafael Rodríguez
Castañeda. The granting of precautionary measures does not imply any prejudgment on the merits of the complaint.
12
PM 214-10 CB - On July 20, 2010, the IACHR granted precautionary measures for Reina Luisa Tamayo
Danger, in Cuba. The request for precautionary measures alleges that Reina Luisa Tamayo Danger has suffered constant
threats and acts of harassment, in light of her involvement in various public protests since the death of her son Orlando
Zapata Tamayo in February 2010. The request further indicates that she has been the victim of acts of violence, in which
she allegedly was beaten and one of her arms was fractured. The Inter-American Commission asked the State of Cuba to
adopt the necessary measures to guarantee the life and physical integrity of Reina Luisa Tamayo Danger, reach
agreement with the beneficiary on the measures to be adopted, and inform the Commission on the actions taken to
investigate the facts that led to the adoption of precautionary measures. Also, in PM 196/09 – On August 7, 2009, the
IACHR decided a new extension of precautionary measures PM 196-09, in order to safeguard the life and personal
integrity of persons in Honduras, who, according to information received, are at risk. The following persons are now
included in the framework of precautionary measures 196-09: Norma Estela Mejía, vice president of the Sitrajerzeesh
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serious violations of human rights such as forced disappearances, extrajudicial
executions, forced displacement13, torture, and other cruel, inhuman, and
degrading treatment. Other beneficiaries of such measures may work overseeing
the power of the state in matters such as denouncing corruption, denouncing
police brutality, and denouncing acts of collusion between authorities and
paramilitary or parapolice groups. In addition, persons dedicated to protecting the
rights of children, the rights of LGTBI persons14, the right of migrants15, and the
cultural and territorial rights of indigenous peoples and Afro-descendant
communities, have been victims of threats and risks to their life and integrity
related to their work. The Commission has received requests related to trade
union leaders, social leaders, and student leaders in several countries as they
seek redress for their grievances.
Another group whom the Commission and Rapporteurship on Human Rights
Defenders has given attention, are justice operators, that is: magistrates,
prosecutors and other workers of the judiciary branch, and ombudsman, who
union, which is affiliated with the Central General de Trabajadores (CGT), has received death threats because of her
opposition to the coup d’état. Daniel Durón, national leader of the Central General de Trabajadores (CGT), has received
death threats. These threats have included text messages sent to his mobile phone. Evangelina Argueta leader of the
Central General de Trabajadores (CGT), has received threats via telephone because of her opposition to the coup d’état.
13
PM 319/09 CO – On November 18, 2009, the IACHR granted precautionary measures for Doris Berrio
Palomino and her family, in Colombia. The request for precautionary measures alleges that on August 31, 2009, Jair
Pantoja Berrio, Doris Berrio Palomino's son and the founder of the Youth League of the League of Displaced Women
(LMD), was killed in Cartagena. The request indicates that the murder took place even though the family of Doris
Berrio Palomino has security measures in place provided by the State of Colombia. It adds that the Constitutional
Court on three occasions had pronounced itself on the situation of risk faced by members of the LMD and that
members of the League had informed the Ministry of the Interior about the inadequacy of the security measures, but it
alleges that the Colombian State had not acted with diligence to ensure that the security schemes were effective. The
request indicates as well that in 2009, various leaders of nongovernmental organizations that work to protect the rights
of the displaced population in Cartagena had allegedly been killed and that beginning in March 2001, members of the
LMD were victims of acts of violence and threats, allegedly perpetrated by armed groups operating outside of the law.
14
PM 80/11 JA - On March 21, 2011, the IACHR granted precautionary measures for Maurice Tomlinson, in
Jamaica. The request for precautionary measures alleges that Maurice Tomlinson is facing a situation of risk due to
his work as a defender of the rights of lesbian, gay, bisexual, trans, and intersex (LGBTI) persons in Jamaica. It
indicates that he has been receiving death threats via e-mail, and that the State authorities have not adopted
protection measures.
15
PM 250-09 MX - On April 23, 2010, the IACHR granted precautionary measures for José Alejandro
Solalinde Guerra, David Álvarez Vargas, Areli Palomo Contreras, Mario Calderón López, and Norma Araceli Doblado
Abrego, who work or can be found at the Hermanos en el Camino Migrant Shelter in Ixtepec, in the state of Oaxaca,
Mexico. In the request for precautionary measures it is alleged that the beneficiaries had been subject to acts of
intimidation and that in February 2010, Father Solalinde Guerra was detained and held at gunpoint by the Federal
Police when he went to the Office of the Public Prosecutor of Oaxaca state in the context of investigations underway
for the alleged murder of three migrants.
8
have taken part in cases where corruption or human rights abuses by statesponsored actors or private individuals have been alleged and who have been
singled out and threatened due to their investigations or decisions on such
cases.
The first group of measures relates to human rights defenders who have been
placed in situations of risk to their lives, personal security or that of their families,
because of their activities. One of the earliest requests issued (which has the
same spirit as the language for considering and granting precautionary measures
adopted in the Rules of Procedures of April 1980), was on March 1981 when the
Commission requested information from the Argentina military junta via a
cablegram concerning the detention of six human rights defenders whom the
Commission met during its on-site visit. In another case, in 1995 the Commission
requested the Guatemalan authorities to adopt precautionary measures to
protect Mr. César Ovidio Sánchez, who was a staff member of the Myrna Mack
Foundation
and
also
participated
in
an
indigenous
organization
of
Huehuetenango, and had been threatened and attacked by local military and
paramilitary groups on account of his work in favor of human rights. Likewise, in
1998 the Commission requested the State of Colombia to adopt precautionary
measures in order to protect the lives and security of twelve leaders of the Páez
(Nasa) indigenous people who had been threatened, due to their leadership and
activism, by a local paramilitary squadron.
A second group of precautionary measures issued by the Commission seek to
deter the adverse effects of the harnessing of intelligence activities, such as
wiretaps. Human rights defenders, members of the judiciary16, community and
16
MC 119.09 CO - On November 17, 2009, the IACHR granted precautionary measures for Magistrate César
Julio Valencia Copete, in Colombia. The request for precautionary measures alleges that Magistrate Valencia Copete had
received threats to his life stemming from his participation in investigations into alleged ties between public officials and
armed groups operating outside of the law. It adds that in March 2008, Magistrate Valencia Copete learned that his
cellular telephone had been tapped by the Administrative Department of Security. It was allegedly learned that an official
in the Office of Protection who was also assigned to the Counterintelligence Section was in possession of personal
information about Magistrate Valencia Copete; that the State had still not taken the measures necessary to investigate the
surveillance and telephone wiretapping to which Magistrate Valencia Copete had been subject; and that even though the
State had provided him with a security scheme, neither he nor his representatives have been able to participate in its
design and implementation, and the authorities responsible for implementing it were apparently not receptive to his
9
political leaders, witnesses to human rights violations, and opposition leaders.
Applicants have denounced that such intelligence activities place them in a
situation of risk because they are followed by an increase in acts of harassment,
campaigns of stigmatization and threats17. Additionally, such intelligence reports,
in some cases, were used publicly by authorities to discredit these persons, with
accusations or suggestions that human rights organizations or judges were
acting improperly or unlawfully—when they are merely doing their work,
investigating or deciding on a case which entails the participation of public
officials in human rights violations. In some cases human rights defenders have
indicated that such intelligent activities might have resulted in the search and
seizure of computers or materials related to cases which they were working on to
either bring to the Inter-American system or to pursue cases in their countries. In
this regard, the IACHR has requested on multiple occasions that Member States
adopt precautionary measures to protect the life and personal integrity of human
rights defenders and members of the judiciary as well as to be given access to
the intelligence files, and to investigate those responsible for the intelligence
activities, searches and confiscation of materials.
A third group of precautionary measures, to protect the work and activity of
human rights defenders as well as journalists, relates to the rights of movement
and residence. In the past years the Commission has received various requests
for precautionary measures when acts of constant surveillance, threat and attack
have forced human rights defenders and journalists to leave their countries of
requests. The Inter-American Commission asked the government of Colombia to adopt the measures necessary to
guarantee the life and physical integrity of César Julio Valencia Copete; guarantee access to information in the
intelligence files that would be necessary to protect his personal security; and report on the steps taken to judicially clarify
the acts that warrant the adoption of precautionary measures.
17
PM 242/09 CO- On November 16, 2009, the IACHR granted precautionary measures for Enrique Rojas
Rodríguez, Marco Romero Silva, and Edna Bibiana Ortiz, members of the Consultancy on Human Rights and
Displacement (Consultoría para los Derechos Humanos el Desplazamiento, CODHES), in Colombia. The request for
precautionary measures alleges that these three individuals had had their telephones tapped, had been tailed, and had
been subject to other intelligence activities on the part of agents of the Administrative Department of Security (DAS). It
adds that the proposed beneficiaries would seem to be at risk in light of the fact that high-level public officials had made
speeches against their activities in defense of people who had been subject to forced displacement The Inter-American
Commission asked the State of Colombia to adopt the measures necessary to guarantee the life and physical integrity of
the beneficiaries; provide a nexus and/or protection system for members of CODHES who travel to conflict zones in the
course of their work; provide protection around the perimeter of CODHES headquarters; and guarantee access to any
information in intelligence files that may be necessary to protect their personal security.
10
residence or areas in which they develop their activities. In such situations the
IACHR has requested the States to guarantee their safe return to the areas of
work.
Elements taken into account by the IACHR when evaluating the
seriousness and urgency of the situation for an individual or for a group
When evaluating the element of seriousness of the situation for an individual or
for a group, the Commission looks into the following information so as to assess
the merits of the request:
a) A description of the facts that support the request, such as the type of
threats received (oral, written or symbolic messages);
b) Identification of the origin of the threats or situation denounced (agents of
the state, private individuals, or individuals with a relation to state actors,
etc.);
c) Previous circumstances of similarly situated individuals or groups of
people facing comparable threats; and the context of the situation
surrounding the proposed beneficiaries;
d) Whether the threat or aggression is directly targeted or perpetrated
against the proposed beneficiary;
e) Whether there exists an increase in the alleged acts of aggression,
violence or threats, which would demonstrate a need to take steps to
prevent future acts;
f) Acts of incitement to violence against a person or group of people due to
their association with an organization, a group or a community;
g) The source of the action/lack of action that generates the injury or
deterioration in the health, wellbeing and/or survival of the people affected,
and the type of harm;
h) When a petition or a case before the IACHR alleges violations of the
American Declaration or the American Convention on Human Rights, and
11
that petition is connected to a request for precautionary measures, the
Commission determines whether any modification of the situation could
deem the favorable resolution of the case into a merely abstract measure
of restitution or compensation, in order to decide whether precautionary
measures are necessary to prevent such alteration of the status quo.
When evaluating the element of urgency of the situation for the individual or
collective group the Commission might take into account the following factors:
(a) A cycle of threats and aggression that shows the need for a rapid
response;
(b) Chronology, proximity and imminence of the threats;
(c) The existence of a credible “ultimatum”;
(d) Whether the situation of risk has been brought to the attention of the
pertinent national authorities (or the reasons why it might not have been
possible to do so); and the effectiveness of the actions, if any, taken by
the State to prevent any harm (including the measures taken and why they
are claimed as ineffective);
Other elements which the IACHR may take into account to analyze a request for
precautionary measures are the following:
(a) Whether the situation is framed within the context of an armed conflict;
(b) Whether there exists a state of emergency;
(c) Level of effectiveness of the judicial system and the levels of control of the
Executive branch over the other branches of State power;
(d) Systematic discrimination against a vulnerable group;
(e) The specific protective measures requested.
Hence, when the Commission receives a request to take a precautionary
measure, where serious and urgent circumstances are presented, it assesses
12
different types of information in order to reach an understanding of the likelihood
of irreparable damage, as well as an assessment on whether the measures
requested of the State could serve to safeguard against substantial, or not easily
compensated, loss or harm.
Acceptance and compliance by member states
An OAS General Assembly Resolution (AG/RES. 2227 (XXXVI-O/06)) adopted in
June, 2006, reaffirms the essential value of the Commission’s work to enhance
the protection and promotion of human rights and the reinforcement of the rule of
law in the Hemisphere and encourages the member states to “follow up on the
recommendations of the IACHR, including, inter alia, precautionary measures
[...]”18 In this manner the OAS Member States gave recognition to precautionary
measures, as a mechanism for the protection of human rights, that they
undertake to implement at the request of the Commission.
Even earlier, in 1994, when adopting the Inter-American Convention on the
Forced Disappearance of Person at the OAS General Assembly, member states
established in Article XIII of that Treaty that for the purposes of the instrument
“the processing of petitions or communications presented to the Inter-American
Commission on Human Rights alleging the forced disappearance of persons shall
be subject to the procedures established in the American Convention on Human
Rights and to the Statue and Regulations of the Inter-American Commission on
Human Rights and to the Statute and Rules of Procedure of the Inter-American
Court of Human Rights, including the provisions on precautionary measures.” That
is to say all Member States, and particularly those that have ratified the
Convention, have extended conventional recognition to precautionary measures.
Apart from this formal recognition, the evaluation of the levels of acceptance and
implementation of precautionary measures is positive. The majority of member
18
AG/RES. 2227 (XXXVI-O/06) Observations and Recommendations on the Annual Report of the InterAmerican Commission on Human Rights (Adopted by the Plenary at its fourth session, held on June 6, 2006)
13
States have shown their acceptance of the Commission’s competence to issue
precautionary measures and there have been very few open objections to the
invocation of the mechanism in the absence of a pending claim on the violation of
the American Convention. The member States have thus generally accepted the
preventative character of precautionary measures and the authority of the IACHR
to grant them.
The precautionary measures mechanism has also gained recognition at the
governmental, jurisprudential, and legislative levels, in terms of its legitimacy as
well as its scope and connection with States. Specifically in the decision T558/03 of July 10, 2003 of the Constitutional Court of Colombia took the first of a
series of decisions sanctioning officials for failing to comply with precautionary
and provisional measures, without distinction as to the nature of the measure, on
the basis of the State’s obligation to ensure respect for the rights protected under
the American Convention, in accordance with Article 1(1) of such Convention. In
Peru, Law No. 23506, the “Law of habeas corpus and amparo”, recognizes the
right of Peruvian residents to resort to the Inter-American Commission to provide
effective actions in the case of threats to constitutional rights. (Articles 2 and 39).
With regard to the specific programs which States have developed in order to
adopt the decisions and recommendations of the Inter-American System, it is
pertinent to mention a few examples from the countries that have the largest
numbers of precautionary measures. For example, Colombia established the
"Protection Program for Human Rights Defenders, Trade Unionists, Journalists and
Social Leaders",19 which now covers 10,421 individuals.20 Also, the State through
19
The Protection Program was created in 1997 as a result of the joint efforts between the Government and civil
society, to protect certain especially vulnerable groups of the population, due to the activities of illegal armed
organizations, in their rights to life, integrity, freedom and personal security. The objectives of the Program are: (1) to
strengthen the competent State authorities at the national, regional and local level so they take joint, concerted, integrated
and permanent action tending towards the prevention and protection of the human rights of inhabitants of communities at
specific risk; (2) to strengthen the traditional organized forms, traditional authorities, and the social organizations of the
communities at specific risk, so that they can develop initiatives, present proposals, liaise with public authorities and
become involved in the implementation, follow-up and control of preventative and protective measures for human rights
and International Humanitarian Law; (3) to reestablish or improve relations between the State and the community for the
coordination, development, follow-up and evaluation of the preventative and protective measures in plans of action.
20
Hearing on the situation of human rights defenders in Colombia and the implementation of precautionary
measures, held on October 28, 2010, in the context of the 140th period of sessions of the Commission.
14
its July 15, 2010 Directive No. 012 "Directions to guarantee the right of human
rights defenders to exercise their calling", issued by the National Procurator
General's Office asserted "the legal and constitutional duty of all the authorities to
respect, encourage and protect the work of human rights defenders"; similarly, it
insists that the authorities "refrain from behavior that undermines, disqualifies,
harasses or incites harassment or stigma of the work itself of a human rights
defender and their organizations." The Directive also contains a series of provisions
designed to facilitate the work of the human rights defenders;21 to investigate the
acts committed against them;22 and to urge the authorities to adopt timely,
appropriate and effective protective measures in favor of the defenders.23 As for the
judicial clarification of crimes committed against human rights defenders, the
Commission has received information showing that the Prosecutor General's Office
has designated a group of prosecutors to follow-up on the issue of human rights
defenders, and that to date it is pursuing 69 proceedings related to this theme.24
The State informed that it has trained more than 5,000 officials in their duty to
facilitate the work of human rights defenders.25
http://www.cidh.oas.org/prensa/publichearings/advanced.aspx?Lang=ES. The State reported that between July and
December 2010 there were 44 follow up meetings of precautionary measures granted by the IACHR, with the
participation of state entities and with the petitioners and/or beneficiaries of the measures. It also indicated that in the
case of the beneficiaries of the Protection Program without precautionary measures there were 37 CRER sessions. It
also indicated that during 2010, apart from cases of territorial order, there were 119 cases request ing protection for
journalists - 871 cases involving requests for protection of union leaders - 676 cases with protection requests for
social leaders and leaders of human rights organizations. Observations of Colombia on the Draft Country Report of the
Inter-American Commission on Human Rights for the year 2010, February 25, 2011, page 43.
21
The mentioned Directive, inter alia, "urges that all public services attend promptly and respond in an
opportune way to all complaints, requests for information, queries and petitions drafted by organizations and defenders of
human rights in conformity with the provision in the Political Constitution and laws." See disposition 2.a. Available at:
http://www.procuraduria.gov.co/descargas/Directiva_012_Defensores_julio_15_2010.pdf.
22
The directive "urges that the competent authorities promptly investigate denouncements and complaints due
to
threats
against
human
rights
defenders."
See
disposition
5.a.
Available
at:
http://www.procuraduria.gov.co/descargas/Directiva_012_Defensores_julio_15_2010.pdf.
23
The Directive "urges the Interior and Justice Ministry's protective measures adopted in favor of human rights
defenders
be
timely,
suitable
and
effective".
See
disposition
12.
Available
at:
http://www.procuraduria.gov.co/descargas/Directiva_012_Defensores_julio_15_2010.pdf.
24
Hearing on the situation of human rights defenders in Colombia and the implementation of precautionary
measures, held on October 28, 2010, in the context of the 140th period of sessions of the Commission.
http://www.cidh.oas.org/prensa/publichearings/advanced.aspx?Lang=ES.
25
Hearing on the situation of human rights defenders in Colombia and the implementation of precautionary
measures, held on October 28, 2010, in the context of the 140th period of sessions of the Commission.
http://www.cidh.oas.org/prensa/publichearings/advanced.aspx?Lang=ES.
15
With regard to Guatemala, the authority in charge of coordinating among the
Executive and Judiciary Branch and security organs the compliance of
precautionary measures for human rights defenders and journalist is the
Coordination of the Executive Policies on maters of Human Rights (Coordinadora
de la Política del Ejecutivo en materia de Derechos Humanos COPREDEH)26. To
comply with the recommendations of the Inter-American System, COPREDEH
has meeting with the beneficiaries the Ministry of Governance and the National
Civil Police. The divisions in charge of placing the measure varies in accordance
to the type of security advised. The Division of Protection and Security
(DIPROSE) is in charge in protection scheme which include perimetral or fixed
police position; on the other hand, if it is a question of personalized
measurements, the order would be sent to the Division of Protection to Persons
of the National Civil Police, so that they proceed to the appointment of the
necessary safety elements for the beneficiary of precautionary or provisional
measures27.
In México, the Secretary of Government has implemented interinstitutional talks
as mechanisms of cooperation and coordination between the involved authorities
and it also has its own mechanism for the adoption of precautionary measures
developed by the National Human Rights Commission (NHRC) (Comision
Nacional de Derechos Humanos, CNDH) is established in article 40 of the law
that govern the NHRC28. In accordance with the Regulation that governs the
functioning of the mechanism, once the NHRC receives the news of the claimed
violation, the general visitor requests the competent authorities the protection
26
http://copredeh.gob.gt/media/File/Mision,vision,POA.pdf
Response of the Guatemalan State to a questionaire on the followup of the report on the Situation of Human
Rights Defenders in the Americas, January 2009.
27
28
In accordance with the Law of the CNDH the General Visitor has the faculty to request in any moment, to the
competent authorities, to take the precautionary measures to avoid the irreparable consummation of the denounced or
claimed violations, or the production of damages of difficult repair to the affected ones, as well as to request modifications
when the circumstances justify the change. See Art. 40 of the Law of the National Commission of Human Rights
published
in
the
Official
Newspaper
of
the
Federation
on
June
29,
1992.
Available
at:
http://www.cndh.org.mx/normat/leycndh/LEYCNDH2010.pdf
16
measurements29. In accordance with the rules of procedure of the NHRC, the
protection measurements would be prepared in coordination with the advocates
of human rights or his representatives and would be granted for a period of 30
days that can be extended30.
Challenges with regard to the implementation of precautionary measures
Some of the challenges in the implementation of the precautionary measures
include:

Beneficiaries repeatedly undergo an internal "risk demonstration" process in
order to receive State protection, even when the IACHR has already
determined that they are subject to risk, at the moment of granting
precautionary measures.

Inadequacy of the measures provided by the State due to lack of
consultation with the beneficiary31.

Public officials with no capacity to make decisions are assigned to the
meetings for the drafting measures or the evaluation of their effectiveness.

Security authorities assigned for the protection of beneficiaries, sometime
belong to the same agency which presumably was engaged in the
situation that placed the human right defender or journalist at risk.

Lack of material resources (gas for transportation, and repairs of security
cars in some cases had to be subsidized by the beneficiaries).

Limited protection when moving or travelling to other regions in which the
beneficiaries might still be at risk.
29
See Art. 117 of the Internal Rules of the National Commission of Human Rights, September 29, 2003.
Available at: http://www.cedhslp.org.mx/Documnst/Normatividad/29092003.pdf
30
CNDH, Guides to implement precautionary measures for human rights defenders in Mexico, October, 2010.
Available at: http://www.cndh.org.mx/GuiaDefensores8oct10.pdf
31
For example in Colombia, the State has indicated that once the Technical Study of Risk level is conducted,
this is evaluated within the Regulatory Committee and Risk Assessment (CRER), to determine appropriate protective
measures to be implemented, according to the level of risk shown by the previous study.
17

Lack of coordination between the units that offer protection to monitor the
efficiency and efficacy of the measure carried out. Also, sometimes the
security personnel has withdrawn without previously notifying the human
rights defender or journalist.

In some States there are no clear procedures or a catalogue of measures
of protection, nor any system of monitoring and evaluation of the risk.
Provisional Measures of the Court requested by the IACHR
The Court’s ability to grant provisional measures is based on Article 63(2) of the
American Convention on Human Rights, which states:
In cases of extreme gravity and urgency, and when necessary to
avoid irreparable damage to persons, the Court shall adopt such
provisional measures as it deems pertinent in matters it has under
consideration. With respect to a case not yet submitted to the
Court, it may act at the request of the Commission.
In this sense, the Convention requires that, for the Court to order the adoption of
provisional measures, three conditions must be met: i) “extreme gravity”; ii)
“urgency”, and iii) when needed to “avoid irreparable damage to persons.” These
three conditions coexist and must be present in all the situations in which the
intervention of the Inter-American Court is requested by the Commission.32
Additionally, Article 27 of the Rules of Procedure of the Inter-American Court of
Human Rights indicates, inter alia, that: “1. At any stage of proceedings involving
cases of extreme gravity and urgency, and when necessary to avoid irreparable
damage to persons, the Court may, on its own motion, order such provisional
measures as it deems appropriate, pursuant to Article 63(2) of the Convention. 2.
With respect to matters not yet submitted to it, the Court may act at the request
of the Commission.”
32
I/A Court H.R., Case of Carpio-Nicolle et al. v. Guatemala. Provisional Measures. July 6, 2009. Considering
14.
18
The Court –that has granted the vast majority of its provisional measures
pursuant to Article 63(2) of the American Convention--at the request of the
Commission— has acknowledged the legal status of the precautionary measures
provided for in Article 25 of the Commission’s Regulations. It has also extended
the interpretation of Article 63(2) of the Convention to admit requests on
provisional measures that –in view of the preventative purpose of the intervention
by the organs of the system— are not linked to petitions relating to consummated
violations to the American Convention or other applicable instruments.33
Both the Court and the IACHR have used provisional and precautionary
measures to protect human rights defenders, journalists and freedom of
expression. However, the Court and the IACHR do not always agree.
So far, both organs of the Inter-American system have agreed on cases and
issues where the protection of human rights defenders and freedom of
expression is strongly linked to the protection of the life and integrity of a person.
Such is the case in relation to journalists like Luisiana Ríos, “El Nacional” and
“Así es la Noticia,” and Globovisión Television Station, all from Venezuela; and
Mr. Galdamez from Honduras. In these five cases, journalists, media outlets, and
employees of media outlets received protective measures to their life, security
and freedom of expression by the Inter-American Court at the request of the
IACHR. The Court assumed that the evidence submitted in each particular case
demonstrated prima facie the existence of a situation of extreme gravity and
urgency regarding the life and physical safety of the alleged victims. 34 The same
approach was taken with precautionary measures ordered with regard to the
33
At a meeting of the Commission and Court that took place in 1999, it was agreed that Art. 63(2) of the
American Convention would be interpreted in a manner allowing for the request for provisional measures to prevent
irreparable harm to persons in urgent situations even when there was no pending petition. Since then, the Court has
issued provisional measures outside of the context of a case, at the Commission’s request, in various occasions. 33 The
misunderstanding leading to the Court´s confusing decision relating to the existence of a pending petition as a
requirement for provisional measures, issued in the first February, 2006 Resolution in the Yare case, was rectified in later
Resolutions in its decisions in Yare (Second Resolution), Fundación de Antropología Forense de Guatemala and
Guerrero Gallucci et al., where it adopted provisional measures in the absence of a petition.
34
I/A Court H.R., Matter of "Globovisión" Television Station regarding Venezuela. Provisional Measures.
September 4, 2004. I/A Court H.R., Matter of "El Nacional" and "Así es la Noticia" Newspapers regarding Venezuela.
Provisional Measures. July 6, 2004. I/A Court H.R. Matter of Luisiana Ríos et al. regarding Venezuela. Provisional
Measures. November 27, 2002.
19
protection of Human Rights Defenders. Such is the cases of Helen Mack Chang
et al.,(Guatemala); Liliana Ortega et al.,(Venezuela); Gladys Lanza Ochoa,
(Honduras); and Alvarado Reyes et al.,(Mexico), among others.
In the past years the Court has rejected some of the requests for provisional
measures related to freedom of expression as well as the protection of human
rights defenders. Such cases include:
Belfort Istúriz et al (Venezuela), in which the IACHR requested provisional
measures before the Inter-American Court in favor of the owners and four
journalists of a chain of five radio stations known as “Circuito Nacional Belfort”
[Belfort National Circuit]. In the frame of a mayor legislative election the State
revoked the license of at least 34 radio stations mostly know for their criticism of
the government, and often reassigned their frequencies to stations allied with
State points of views. The Commission understood there was a need for
provisional measures to protect freedom of expression in both its individual and
collective dimensions. The Commission argued that undermining free speech at
a crucial moment, such as the electoral process taking place in 2010, could
cause irreparable damages regardless of the reparations the Court could
eventually allow, if the petition was resolved in favor of the beneficiaries. The
Inter-American Court however, decided not to grant provisional measures in this
particular case. The Court focused on the requirements for provisional measures-the three basic conditions that must coexist and be present in all the situations in
which the intervention of the Tribunal is requested: i) “extreme gravity”; ii)
“urgency”, and iii) an attempt to “avoid irreparable damage to persons.” The
Court found that the elements of ‘extreme gravity’ and ‘urgency’ were duly
accounted for, however it considered that the Commission failed to proof the
irreparability of the damage against the free expression of the alleged
beneficiaries and could only find proof of reparable damages. As for the freedom
of expression in general, the Court considered that provisional measures could
20
not be granted since the beneficiaries would have been undetermined and
unidentifiable.35
With regard to human rights defenders, after handling two matters for over one
year in request of information to the State, the Court decided to reject the two
requests for provisional measures for members of certain human rights
organizations--the Comisión Interesclesial de Justicia y Paz and the Comisión
Colombiana de Juristas, and a request for extension for the representatives of
the Alvarado family. In these matters, the Court rejected the request for
provisional measures because the Court considered that the Commission did not
individualized who were the persons from such organizations who had been
harassed or received attacks or threats.
Particularly, in the case of the
Colombian Comisión of Jurists (CCJ),36 the Court decided to reject the request
for provisional measures for CCJ based on two considerations. First, the facts
and allegations of the IACHR with regard to presumed illegal intelligence
gathering activities of members of a State, relate to a possible contentious case,
and not simply to the provisional measures case alone.
Secondly, that the
allegations of the IACHR did not meet the requirements of Article 63.2 of the
Convention necessary for precautionary measures.37 Additionally, the Court
established that the requirements of Article 63.2 must be demonstrated in
respect of the specific persons for whom the provisional measures are intended
to benefit. 38 Thus, the Court observed that the IACHR referred in general terms
to the facts, […] without clarifying who were the aggravated parties and how the
facts were set forth,39 adding that the State “has indicated its willingness to adopt
35
I/A Court H.R., Matter of Belfort Istúriz et al. regarding Venezuela. Provisional Measures. April 15, 2010.
36
On November 9 2009, the IACHR presented a proposal for provisional measures on behalf of the Colombian
Commission of Jurists requesting that the Court order Colombia to protect the life and personal integrity of the members
of such organization. The facts related to such request were (a) alleged death threats against CCJ members, (b)
presumed illegal intelligence gathering activities by specialized officials tracking human rights groups, including the CCJ;
(c) the small amount of specific information provided by the State related to the worked carried out by such intelligence
groups; and (d) declarations made by civilian and military authorities who aggressively sought to discredit the work of the
human rights defenders, by linking them to guerrilla groups.
37
Resolution of December 25, 2010, consideration 10.
38
Resolution of December 25, 2010, consideration 14.
39
Resolution of December 25, 2010, consideration 15.
21
concrete measures so as to provide immediate effective attention to the
members of the CCJ,” which had earlier been rejected.
Notwithstanding the decision of the Court regarding the Comisión Interesclesial
de Justicia y Paz, and the Colombian Commission of Jurists [Comisión
Colombiana de Juristas], the Commission decided to continue the processing of
the precautionary measures granted in favor of the members of these two
organizations.
In addition to precautionary measures, the Commission has used other
instruments in order to bring attention to situations that place human rights
defenders and journalist at risk. Such instruments include requesting information
from States under the general monitoring capacity of the Commission
established in Art. 41 de Convention, or requesting information under the InterAmerican on Forced Disappearance of Persons and issuing press communiqués.
Although much could be done to improve the system of protection and its
effectiveness, the different instruments mentioned above and the follow-up
mechanisms developed by the IACHR such as the exchange of communications,
the public hearings, working meetings and on site visits, together with the good
faith of the States to implement the precautionary measures, has helped to
protect and secure the life of many human rights defenders an journalists.
22