Precautionary measures: their practice as a guarantee of respecting fundamental rights and preventing irreparable damage

A precautionary measure is a protection mechanism of the Inter-American Commission on Human Rights (IACHR), through which it requests a State to protect one or more persons who are in a serious and urgent situation from suffering irreparable harm. Any person or organization may submit a request for precautionary measures in favor of an identified or identifiable person, or group of persons who find themselves in a situation of risk. It is important to have the consent of the person in whose favor the request is filed, or failing that, the inability to obtain this consent should be reasonably justified.

The precautionary measures mechanism is provided for in Article 25 of the IACHR's Rules of Procedure, according to which, in serious and urgent situations of suffering irreparable harm, the Commission may, on its own initiative or at the request of a party, request that a State adopts measures precautionary measures. Such measures may or may not be related to a petition or case pending before the organs of the Inter-American System. The Rules of Procedure also indicate that the granting of precautionary measures and their adoption by the State in question do not constitute a prejudgment on the violation of the rights protected in the American Convention on Human Rights and/or other applicable instruments. Likewise, since the entry into force of the latest regulatory reform on August 1, 2013, decisions to grant, expand, modify and lift precautionary measures will be issued through well-founded resolutions, available here.

Over the last 35 years, precautionary measures have been granted to protect thousands of individuals or groups of individuals who are at risk. The beneficiaries of precautionary measures include, among others, human rights defenders, journalists and trade unionists, members of vulnerable groups such as women, children, Afro-descendant communities, indigenous peoples, displaced persons, LGTBI communities, and persons deprived of their liberty. Additionally, precautionary measures have protected witnesses, justice operators, people in the process of being deported to a country where they could face torture or be subjected to cruel and inhuman treatment, and people sentenced to the death penalty, among others.

The nature and purpose of the precautionary measures granted by the Inter-American Commission are different from those available in national jurisdictions. Precautionary measures fulfill two functions related to the protection of the fundamental rights enshrined in the instruments of the inter-American system. On the one hand, they have a "precautionary"¯ function in the sense that they aim to preserve legal situations while the bodies of the inter-American system analyze a petition or case. On the other hand, they have a "¯protective"¯ function in that they seek to protect the exercise of human rights, regardless of the existence of an underlying petition or case.

With regard to the precautionary aspect, precautionary measures may be designed to prevent the execution of judicial, administrative or other measures, when it is alleged that their execution could render an eventual decision of the IACHR on an individual petition ineffective. An example of this are situations in which the IACHR has urged a State to suspend the application of the death penalty, so that the Commission can analyze the alleged human rights violations presented by the applicants in the petition or case.

Regarding the protection aspect, precautionary measures seek to prevent irreparable harm from occurring and therefore preserve the exercise of human rights. These considerations have led to precautionary measures being granted, particularly in order to avoid irreparable harm to the life and personal integrity of the beneficiaries. For example, matters related to disappearances, access to medical treatment, and, situations of threats, harassment and persecution, including in connection with the work or affiliation of the beneficiary, among other numerous aspects.

The IACHR wishes to highlight that the analysis of a request for precautionary measures takes into account the particularities of each specific situation, and the nature of the risks and harm that the request seeks to avoid from occurring. To learn more about how the precautionary measures mechanism functions and how to file a request, see the Informative Brochure on Precautionary Measures.

In May 2018, the IACHR issued Resolution 3/2018 on "Strengthening the procedure for precautionary measures"¯, with the aim of effectively and efficiently responding to urgent situations of irreparable harm.

The Inter-American Commission wishes to point out that, in accordance with its consolidated practice, the precautionary measures mechanism is not suitable to address requests that deal strictly with matters or claims such as: i) alleged lack of due process and legal protection in the framework of criminal or civil proceedings (Articles 8 and 25 of the ACHR and Article XVIII of the American Declaration); ii) determination of the compatibility, in abstract terms, of a regulation with the American Convention or other applicable instruments; iii) payment of pecuniary compensations, which include civil, mercantile and pension proceedings; iv) allegedly unjustified dismissals of personnel of private or public companies not elected by popular vote, payment of salaries, determinations on promotions and vacations; v) commercial or civil attachment of property and evictions which represent no additional situations of risk other than impacts on the right to private property; vi) requests for resources or financial support; vii) strictly administrative proceedings, including the issuance of certificates, expediting proceedings and declaratory resolutions. Ā For more information, see >Resolution 3/2018 "Strengthening the processing of precautionary measures"¯.

In this regard, in a wide range of matters, the Commission has considered that it is not appropriate to grant precautionary measures. In matters where a petition has been filed, the IACHR has chosen to assess the information presented through the Individual Petitions System, as the allegations require a substantive analysis of their compatibility with the American Convention or other applicable instruments.