March 15, 2024
By Ezgi Özlü
At the Opening of the Judicial Year 2024 on 26 January, ECtHR President O’Leary emphasised her concerns about the criticism and disregarding of interim measures of certain member states. She also underlined the ongoing work for further transparency. In this respect, on 26 June and 6 November 2023, the Plenary Court adopted several decisions clarifying and codifying its practice relating to interim measures. Below, I outline these developments as a part of the Court’s response to the discontent of member states regarding the Court’s interim measures practice.
While interim measures emerged through an informal practice of the European Commission on Human Rights (Denmark, Norway, Sweden and the Netherlands v. Greece, 1970), in 1974, the Commission added this measure in its Rules of Procedure (Rule 36). The provision still features in the new ECHR setting (Oetheimer and Cano Palomares, 2013, 4). Accordingly, under Rule 39
The Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it.
The purpose and nature of an interim measure is to preserve and protect the rights and interests of the parties to a dispute before the Court, pending its final decision. In the Court’s words, this power of the Court is exercised in limited spheres where there is an imminent risk of irreparable damage (Mamatkulov and Askarov v. Turkey [GC], para 104). Commentators argued that despite the broad terms of Rule 39, the Court initially had a practice of applying the rule in a limited scope (e.g. Haeck and Burbano Herrera, 2003, p. 631).
The Court gradually deployed its powers more assertively and addressed the consequences of noncompliance with provisional measures. Accordingly, Rule 39 has a vital role in the Convention system; it is linked to the right of individual application, and therefore, noncompliance with an interim measure could give rise to a violation of Article 34 ECHR (Mamatkulov and Askarov v. Turkey [GC]; Paladi v. Moldova [GC], para 86). In summary, over the years, the ECtHR has consistently expanded the scope of interim measures in relation to ECHR Articles which previously were not considered suitable for such protection; it has requested respondent states to undertake a broader spectrum of obligations which previously did not fall within the scope of interim measures; and finally with this mechanism, in some inter-state cases, the Court has indicated interim measures of general application concerning an indeterminate number of people (Keller and Marti, 2013; Dzehtsiarou and Tzevelekos, 2021; Leach, 2021; Saccuccci, 2021).
On the one hand, interim measures have been developed mainly through practice and, according to some, remained relatively informal and obscure. On the other hand, it appears that the urgency and the rights at stake require a certain flexibility of the ECtHR, and a rigid procedural framework would limit this flexibility (Marti, 2018, para 7). According to the Court, to prevent an imminent risk of irreversible harm, a decision on whether to apply interim measures is generally made within a very short lapse of time and often based on limited information. It is to safeguard the Court’s ability to render such a judgment after an adequate examination of the complaint that such measures are indicated. Until then, it may be unavoidable for the Court to indicate interim measures based on facts which are subsequently added or challenged to the point of calling into question the measures’ very justification (Mamatkulov and Askarov v. Turkey [GC], paras 104 and 125; Paladi v. Moldova [GC], para 86).
Partially as a result of these developments in the case law, which should be reflected together with the accession of new members to the Council of Europe in the 1990s, the decisions taken on interim measures increased from 444 in 2006 to 1179 in 2007, 3185 in 2008, 2402 in 2009 and 3775 in 2010 (CDDH(2013)R77 Addendum III, para 10). From October 2010 to January 2011, the Court received around 2,500 requests concerning only returns to Iraq, which led the Court to adopt a ‘quasi-systematic’ approach involving a presumption in favour of the application of Rule 39 for a short period in late 2010 (Ibid., para 3; para 3, fn. 6). At more or less the same time, there were also a significant number of requests concerning returns under the Dublin Regulation (Ibid., para 3). As a response, on 11 February 2011, the then ECtHR President issued a public statement describing the situation as ‘alarming’ with implications for an already over-burdened Court and reminded Governments and applicants of the role of the Court on immigration and asylum law matters, and emphasised their respective responsibilities (Ibid). This triggered discussions on interim measures in the reform process.
In the reform process, states explicitly called upon the Court to restrict the scope of interim measures. In the follow-up to the Izmir Declaration, they recalled that ‘the Court is not an immigration Appeals Tribunal or a Court of fourth instance [emphasising] that the treatment of requests for interim measures must take place in full conformity with the principle of subsidiarity’ (para A.3). It further recalled that applicants and their representatives should fully respect the Practice Direction on requests for interim measures for their cases to be considered, and invited the Court to draw the appropriate conclusion if this Direction was not respected (para A.3). In this respect, the Izmir Declaration expressed ‘its expectation [of] a significant reduction in the number of interim measures granted by the Court…’ (Implementation, para 4).
Rapidly after this development, several measures were taken by the Court. On 7 July 2011, a revised Practice Direction of the Court on requests for interim measures was introduced. To improve the efficiency, consistency and rapid identification of groups of similar cases, a specialised unit of interim measures (Rule 39 Unit) and a centralised procedure with a standard checklist were established in September of the same year (CDDH(2013)R77 Addendum III, para 11). These developments resulted in a considerable decrease in the length of the decision-making process of interim measures (Keller and Marti, p. 335).
Interim measures do not contain any reasoning or explanation as to the assessment on which they are premised. This lack of transparency has already been criticised by the ECHR scholarship (Garry, 2001, p. 399; Haeck, Burbano Herrera, Zwaak, 2008, pp. 57-59; Rieter, 2010, p. 1083). In the Brussels Declaration, member states invited the Court to consider providing brief reasons for its decisions (Action Plan, para A.1.d). This call was supported by the Steering Committee for Human Rights (CDDH(2013)R77 Addendum III, paras 33 and 51). At that time, the ECtHR Registry indicated that providing reasons would represent a considerable burden for the Court, likely to slow down a process that, by its nature, must operate rapidly (para 20). Instead, the Court applied some other strategies, namely the rapid communication of applications to the respective Government and, especially since 2013, deferring its decision on an interim measure in order to request additional information from the Government (para 20).
Furthermore, to further transparency, the Court started publishing statistical information. In 2023, 91% of the Rule 39 requests granted concerned immigration issues in Belgium (Analysis of Statistics 2023, p. 4). Belgium had the highest number of granted interim measures from 2020 to 2022, followed by Greece, where 220 requests were granted and 125 were refused. The situation for Türkiye is quite the opposite, where most of the interim measure requests were found to be out of scope. Another interesting example is Germany, where the Court did not grant any interim measure despite the significant number of requests (295 in total).
At the Reykjavik Summit, the President of the Court stated that reflections had been ongoing within the Court on the reform of Rule 39 since November 2022.
While the proposed reform of Rule 39 seems to be a move towards further transparency, it at the same time repeats what is evident, that is, the already existing case law. According to some, the new wording suggests a tougher approach by the Court when considering interim measure requests. According to the proposed changes to Rule 39 as published in several sources (e.g. see here, here and here), interim measures are
applicable in cases of imminent risk of irreparable harm to a Convention right, which, on account of its nature, would not be susceptible to reparation, restoration or adequate compensation, may be adopted where necessary in the interests of parties or the proper conducts of proceedings. The Court’s power to decide on requests for interim measures shall be exercised by duty judges appointed pursuant to paragraph 4 of this Rule or, where appropriate, the President of the Section, the Chamber, the President of the Grand Chamber, the Grand Chamber or the President of the Court.
According to the press release, the Plenary Court also decided to ‘maintain the established practice of adjourning the examination of the requests and requesting the parties to submit information in those circumstances where the situation is not extremely urgent and where the information that the applicants could submit was not sufficient to enable the Court to examine the request’. Again, this puts the case law in more explicit terms. As held in K.I. v. France, in view of the urgency of the matter, however, the Court may invite the respondent state to provide further information before deciding on the request for an interim measure or decide to apply Rule 39 temporarily pending the receipt of such information from both parties (para 116).
Finally, in response to further transparency claims, the Plenary Court decided to disclose the identity of the judges who render the decisions on interim measure requests. This modification may be in response to the reactions following the interim measure in N.S.K. v. the United Kingdom, where the Court ordered a measure to stop an asylum seeker from being deported to Rwanda. The UK Government claimed that interim measures were adopted in an opaque process which was flawed and claimed possible reforms to Rule 39 procedure. If it is going to be applied as in the example of I.A. v. France, this development does not seem to put at risk the procedural protection of ECtHR judges. Nevertheless, the modifications should be assessed in the context of the states’ resistance to interim measures.
Although the Member States accepted the binding effect of provisional measures in the Brussels Declaration, as a report of the Parliamentary Assembly demonstrates and scholars argue (e.g. Haeck, Burbano Herrera, Zwaak, 2008), there has been a worrying level of state resistance. As an illustration, in Trabelsi v. Belgium, despite the Court’s decision of interim measures, the Belgian Government proceeded with the extradition of the applicant, which the Court found in breach of Article 34. Similarly, in M.A. v. France, the Court found the application of Rule 39 very difficult because the applicant, convicted of terrorism offences, was removed to Algeria within less than seven hours.
The discontent of states has only increased over the years. In A.Y. and Others v. Russia, the Court, referring to its earlier case law (e.g. Savriddin Dzurayev), found a violation of Article 34 and noted Russia’s recurring failure to comply with the interim measures in cases of applicants whose extradition was sought on extremism and terrorism-related crimes in Uzbekistan and Tajikistan and who disappeared or were illegally transferred there (para. 15). According to a press release issued in early 2023, the Polish Government refused to apply the interim measures in three cases related to the transfer of judges to another division against their will (see also here). In their application, the Polish judges alleged that these decisions were taken because of their judicial decisions taken in application of the case law of the ECtHR and the Court of Justice of the European Union, and their refusal to adjudicate in panels composed of judges appointed on recommendations of the new National Council of the Judiciary. Consequently, at the Opening of the Judicial Year 2024, ECtHR President O’Leary emphasised that the criticism previously directed at the Court is now redirected at national judges
National judges who act in accordance with the rule of law, perform their essential judicial role, comply with the rule of law perform their essential judicial role, comply with their fundamental obligations under national law, the Convention system or other instruments of international law and uphold the right to effective judicial protection, preserving individual rights to physical integrity, liberty and life itself.
Lastly, a recent example from France attracted our attention regarding the expulsion of a person of Uzbek origin because of suspicions of his radicalisation despite the interim measure of the Court). In the aftermath of the Arras attack on 13 October 2023, the French Minister of the Interior expressed his wish to resume referrals to Russia, which had been interrupted since the war in Ukraine (here, here). The Minister was clear about his intention to ‘assume’, in general, ‘not to wait for the decision of the ECtHR when the administrative court, the court of appeal and the Conseil d’Etat ruled in favour of the State …’. Meanwhile, on 28 November 2023, the Court granted an interim measure accepting the request of a Russian national of Chechen origin to suspend his expulsion to Russia. Especially considering the Russian authorities’ request for his extradition, the Court decided that in I.A. v. France an imminent risk of irreparable harm could not be ruled out at this stage of the proceedings if the applicant was deported to Russia. Concerning the expulsion of the applicant of Uzbek origin, on 7 December 2023, the French Conseil d’Etat ordered the French Government to take all measures for his return to the French territory in accordance with the Court’s interim measure.
In the ECtHR President’s words, ‘the binding nature of interim measures does not mean that the Court does not listen to those who call on it to review its decision-making process’. Accordingly, the discussions are ongoing, and the modified Rule and Practice Direction will be published once the consultation and codification processes have been completed. The ECHR scholarship has written extensively on how the Court adopts a more balanced approach and gives weight to states’ concerns over individual applicants (see e.g. Voeten, 2022; Helfer and Voeten, 2020; Stiansen and Voeten, 2020). In this respect, whether the Court adopts a more balanced approach to states claims regarding interim measures should be assessed in due course. Most recently, on 15 February, the Court held that the enforcement of a decision to remove a Russian national of Chechen origin to Russia would not breach Article 3 ECHR on two grounds. First of all, the French authorities had conducted a thorough and in-depth examination of the applicant’s situation at each stage of the proceedings to enforce the removal measure. Secondly, according to the Chamber’s assessment, the applicant had failed to demonstrate that there were serious, proven grounds to believe that he would run a real and present risk of being subjected to a treatment breaching Article 3 ECHR if he were returned to Russia. At least in this example, it would seem that the scope of Rule 39 has already been limited in comparison with previous Court practice.
[1] ECtHR, Solemn Hearing Opening of the Judicial Year 2024, Speech by the President Síofra O’Leary, Strasbourg, 26 January 2024.
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