Inter-American Commission on Human Rights (IACHR)

About Precautionary Measures

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 the precautionary measures in favor of an identified or identifiable person or group of persons who are 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 it is reasonably justified.

The precautionary measures mechanism is provided for in Article 25 of the IACHR Rules of Procedure, according to which, in serious and urgent situations of suffering irreparable damage, 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 that the organs of the Inter-American System are aware of. Likewise, the Regulations indicate that the granting of said measures and their adoption by the State shall not constitute a prejudice 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 on August 1, 2013, of the latest regulatory reform, "the decisions to grant, expand, modify and lift precautionary measures will be issued through well-founded resolutions", available here.

In the last 35 years, precautionary measures have been invoked to protect thousands of people or groups of people who are at risk. Among these groups are, among others, human rights defenders, journalists and trade unionists, vulnerable groups, such as women, children, Afro-descendant communities, indigenous peoples, displaced persons, LGTBI communities, and persons deprived of liberty. Additionally, they have protected witnesses, justice officials, 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. The precautionary measures fulfill two functions related to the protection of the fundamental rights enshrined in the norms of the inter-American system. On the one hand, they have a "precautionary" function in the sense of preserving a legal situation under the knowledge of the IACHR in petitions or cases; on the other, a "tutelary" function in the sense of preserving the exercise of human rights, regardless of whether there is an underlying petition or case.

With regard to the precautionary aspect, the 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 the foregoing can be seen in those situations in which the IACHR has urged the State to suspend the application of the death penalty, in order to allow the Commission to analyze later in the petition or case the alleged violations alleged by the applicants in relation to the applicable instruments.

Regarding the protection aspect, the measures seek to prevent irreparable damage from being consumed and therefore preserve the exercise of human rights. These considerations have led to the ruling of precautionary measures in a wide range of situations in which there are no pending cases before the system, particularly in order to avoid irreparable damage to the life and personal integrity of the beneficiary person (s) (s), as subject (s) of international human rights law. For example, matters related to disappearances, access to medical treatment; situations of threats, harassment, and persecution, including in connection with the work or affiliation of the beneficiary, among other numerous assumptions.

The IACHR wishes to highlight that the analysis of a request for precautionary measures is carried out taking into account the particularities of each specific situation, which cannot be subject to strict and generalized criteria but rather takes into account the nature of the risk and the damage that is intended to avoid. To learn more about its operation and how to file a request, see the Informative Brochure on Precautionary Measures.

In May 2018, Resolution 3/2018 was issued on "Strengthening the procedure for precautionary measures", with the aim of responding diligently and in a timely manner to urgent situations of irreparable damage.

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 breaches of due process and judicial protection in the framework of criminal proceedings or civil (Articles 8 and 25 of the ACHR and Article XVIII of the American Declaration); ii) determine the compatibility in the abstract of regulation with the American Convention or other applicable instruments; iii) payment of pecuniary compensation, which includes civil and commercial proceedings and pensions; iv) allegedly unjustified dismissals from private or public companies of non-popularly elected officials, payment of salaries, determinations on promotions and vacations; v) embargoes of a commercial or civil nature and evictions in which no risk situations are alleged in addition to the right to private property; vi) requests for resources or financial support; and vii) purely administrative procedures, including the issuance of certifications, expedited procedures, and declaratory resolutions. For more information, see Resolution 3/2018 on "Strengthening the processing of precautionary measures".

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