Title: Precautionary Measures (copia)
Course: Inter-American Human Rights System - 2nd. Edition > Section: Resources admin

Preventive mechanisms |

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 To begin, we invite you to watch this video to learn about the mechanism of precautionary measures.

A precautionary measure is a protection mechanism of the IACHR, through which a State is requested to protect an individual or group at risk of suffering irreparable harm, when the situation is serious and urgent.

The classic example of these measures is when a person receives serious threats to his or her life or integrity. However, this is not the only situation in which these measures are used. They also serve to protect communities when they are displaced from their territory, which has the effect of endangering their survival. Precautionary measures are intended to protect people's health, freedom of expression, political rights, identity or family life, among other rights. They have also been used to prevent the implementation of the death penalty while a case is pending before the Commission.

  Read about the history and legal framework of the mechanism here.

  Listen to this audio to learn more about what rights can be protected by this mechanism.

1️⃣Listen to this audio to know more about rights protected within this mechanism.

Portal Educativo OEA · 1. Human Rights protected

2️⃣Listen to this audio to know more about the regulations that govern the precautionary measures.

A precautionary measure is a preventive mechanism stipulated in Article 25 of the Rules of Procedure of the IACHR, which occurs before the violation takes place. The measures are founded in the functions assigned to the IACHR in the OAS Charter (Article 106), as well as the obligations of the States established in Articles 1, 2, and 41 of the American Convention. The Inter-American Convention on the Forced Disappearance of Persons also establishes the possibility of activating this mechanism in Article XIII.

Portal Educativo OEA · 2. Precautionary measures

3️⃣Listen to this audio to know more about the meaning of serious.

What does serious mean? This implies the serious impact that an action or omission may have on a protected right or on the eventual effect of a pending decision in a case or petition before the system.

Portal Educativo OEA · 3. Meaning of serious

4️⃣Listen to this audio to know about the meaning of urgent.

What does urgent mean? This indicates that the risk or threat is imminent and may materialize, thus requiring preventive or protective action.

Portal Educativo OEA · 4. Meaning of urgent

5️⃣ Listen to this audio to know more about the meaning of irreparable harm.

Portal Educativo OEA · 5. Meaning of irreparable harm

6️⃣Listen to this audio to know more about the functions of the precautionary measure.

Portal Educativo OEA · 6. Precautionary measure

The nature and purpose of the precautionary measures granted by the Commission differ to those available in national jurisdictions. Precautionary measures have two functions related to protecting the fundamental rights enshrined in the regulations of the Inter-American system.

They may be precautionary when they aim to protect the result of a pending petition or case before the Commission. In these situations, the measures may be intended to prevent the implementation of judicial, administrative, or other types of measures, when they could potentially make the Commission’s eventual decision on an individual petition ineffective. For example, in a case related to the death penalty, they can postpone the execution until the Commission resolves the case.

They can be protective to protect a right that, if violated, could not be repaired, regardless of whether the Commission has a pending case or not. As such, the Commission has requested measures to protect the life, personal integrity, health, or livelihood of communities, among many other situations. For example, when a person does not receive medications that are necessary to treat an illness that could be fatal.

7️⃣Listen to this audio to learn more about who can benefit from precautionary measures.

Portal Educativo OEA · 7. Benefit from precautionary measures

Who can request them? Petitioner
- Any person or organization can request a precautionary measure. They can be requested by the person who is at risk, their family members, an organization or group, or by anyone. Having a lawyer is not necessary to request precautionary measures.
- Having written authorization from the person that requires protection is not necessary, but they must be aware of the request unless this is not possible, for example, because the person is out of reach or disappeared.
- The petitioner can request that their identity not be revealed to the State.
- The Commission can request these measures to the State through their own decision, without the existence of a request. States can also ask that the Commission request measures to other States to protect their nationals.

Who can benefit? Beneficiary
- These measures can be requested on behalf of a person or a group of people, identified or identifiable. For example, they can be requested on behalf of a specific community, without having to name its members.
- The State must be informed of the beneficiary’s identity so that it is aware of who to protect.

What is the difference between a precautionary measure and a petition/case?

Precautionary measures undergo a different process than a petition or case, and can be decided in a few days or several weeks, depending on the urgency and information provided.  It is therefore important to know the mechanism and adjust the information to obtain a response as quickly as possible.

It is not necessary to exhaust domestic remedies in order to request this type of measure. However, it is important to inform the Commission of any steps taken at the national level to request protection from the authorities, especially when the measures are requested for acts that are not attributed to State agents, but to private individuals.

➡️ It is important to understand that a measure cannot replace a case; if the measure refers to a situation already before the Commission as a case, it most likely will not be granted. Therefore, it is important to know which situations do NOT activate this mechanism. They are as follows:

  - Structural issues that depend on public policies;
  - Judicial disputes, for example when a petitioner alleges violations of the due process protected by Articles 8 and 25 of the American Convention and articles XVIII and XXVI of the American Declaration;
  - The interpretation of norms in the abstract, or the creation of rights;
  - Requests for administrative procedures, or for expediting their procedures, such as the issuance of certifications;
  - Resolution of labor issues, such as unjustified dismissals in private or public companies of non-elected officials, and issues in relation to salaries, promotions, and vacations, among others;
  - Avoidance of economic problems, such as lack of salaries, payment of fines or embargoes;
  - Evictions, unless a right beyond property is affected, for example, the eviction of an entire community from its ancestral territory, which will affect its survival.

To learn more about the processing of the measures read 👉 Resolution 3/2018 .

 What should the application include?

  - Name and contact information of the applicant
  - Name of the beneficiary person or group
  - An explanation of the situation
  - Details of whether any complaint has been filed or the situation has been brought to the attention of any State body, and if not, the justification or impediments encountered; in doing so, and
  - Specific measures that are being requested.

You can review the brochure on how to file a request for precautionary measures 👉 here .

Requests received vs. granted/extended by year

Source here.

What will the IACHR analyze in order to request the precautionary measures?

The analysis of a request for precautionary measures takes into account the particularities of each situation, and therefore cannot be subject to strict and generalized criteria. Instead, the analysis is based on the nature of both the risk and the harm to be prevented.

Criteria for granting a precautionary measure

 In deciding to grant a meassure, the Commission will take into account:

- The urgency of the situation, which is determined by information indicating that the risk or threat is imminent and may materialize, thus requiring preventive or protective action.

- The threat of irreparable harm, which means the violation of rights that, by their very nature, are not susceptible to reparation, restoration or adequate compensation. When considering the request, the Commission takes into account its context, among other aspects.

- The nature of the threats received (oral, written, symbolic messages, etc.) and whether they are made against one or more members of a group of persons.

- The identification of the origin of the threats or the situation.

- The history of acts of aggression against individuals or groups of individuals in similar situations and the context in which the potential beneficiaries are found.

- Whether the situation has been reported to the relevant authorities, or the reasons why this could not be done.

- The gravity of the situation, which means the serious impact that an action or omission may have on a protected right or on the eventual effect of a pending decision in a case or petition before the organs of the system.

Before making a decision on the request for precautionary measures, the Commission requests the State to provide information on the reported situation. When the immediacy of the potential harm does not permit any delay, the Commission may decide to request the measures directly and then review the decision taken as soon as possible or, at the latest, at the following session, in view of the information provided by the parties.

It is also important to mention that the granting of a precautionary measure does not imply a prejudgment of a violation of a right protected by the American Convention or Declaration or any other applicable instrument.

The type of measures to be adopted are not decided by the Commission, but rather by the parties, the beneficiary or their representatives together with the State, who must agree on the appropriate measures according to the situation. The type of measures adopted, their adequacy to protect persons at risk, and any issues related to their implementation are reviewed during the monitoring of the measures, as we will see later on.

How does the IACHR follow up on precautionary measures?

Once the Commission requests the State to adopt precautionary measures for an individual or group, a mechanism for monitoring and following up on the precautionary measures is initiated.

- Working meetings

- Bilateral meetings

- Portfolio meetings

- Hearings

- On-site and working visits

- Follow-up resolutions

For this, the Commission will use the information submitted by both the State and the applicants regarding compliance with the measures. Therefore, it is very important that both parties provide information explaining what specific measures were implemented and the challenges any of them have experienced with the implementation.

In addition to requesting written information from the parties, the Commission has other tools to follow up on the precautionary measures in place.

In the process of monitoring the implementation of the measures, a differentiated approach is used for groups in a particularly vulnerable situation, as well as a gender perspective, considering the risk that people belonging to these groups face in specific contexts.

How are the measures lifted?

By its nature, a precautionary measure is intrinsically temporary: it must be maintained only for the duration of the serious and urgent situation that led it to be issued in the first place.

Therefore, the Commission periodically evaluates, either on its own initiative or at the request of one of the parties, whether the precautionary measure in force still complies with the requirements of Article 25 of the Rules of Procedure.

 If the Commission considers that the circumstances have changed, for example, in the case that the person has left the country, or that there is no longer a serious and urgent risk of irreparable harm, the Commission may decide to lift the measure. The decision to lift the meassures is never taken by the State, but rather by means of a Resolution by the Commission, and these measures  remain in force until the Commission decides otherwise.

In deciding to lift a measure, the Commission takes into account the actions and measures taken by the State to implement them. The Commission also takes into account the opinions of the beneficiaries and/or their representatives.

The IACHR may also decide to lift a measure if the beneficiary fails to respond or provide information for a considerable period of time.

Over the past 35 years, precautionary measures have been used to protect thousands of people who are at risk. These groups include, among others, human rights defenders, judges and justice operators, journalists and trade unionists, and groups that may be in situations of vulnerability, such as women, children, Afro-descendant communities, indigenous peoples, displaced persons, LGBTQ communities, and persons deprived of their liberty. In addition, they have protected witnesses, persons being deported to a country where they could face torture or be subjected to cruel and inhuman treatment, and persons sentenced to death, among others.

Let's see what you remember...

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 More information on precautionary measures

  - To learn more about how it works and how to file an application, please check the following link Informational booklet on precautionary meassures.
  - To see previous precautionary measures granted by the IACHR visit precautionary meassures.
  - Learn about Resolution 3/2018 on Strengthening of the processing of requests for precautionary measures.

 Watch the following video of Thais Detoni Rocha, IACHR Specialist: