Strasbourg Follows Suit on Provisional Measures

Extract

The decision of the International Court of Justice in LaGrand that its provisional measures under Article 41 of the ICJ Statute were binding (Judgment of 27 June 2001) resolved a question which had occupied international lawyers for many years. The question of the legal effect of provisional measures granted by the European Court of Human Rights (ECHR) recently arose in Mamatkulov and Abdurasulovic v. Turkey (Judgment of 6 February 2003). Like the International Court, the ECHR has the power to “indicate interim measures, but this power is not derived from a provision in its constitutive instrument, the European Convention for the Protection of Human Rights and Fundamental Freedoms, but rather from Rule 39 of the Rules of Court. On the basis of earlier jurisprudence (Cruz Varas v. Sweden, Judgment of 20 March 1991, Series A, No. 201; Conka v. Belgium, Decision of 13 March 2001), it had been thought that interim measures indicated by the ECHR were not mandatory, but in Mamatkulov, the ECHR effectively reversed this position and held that its interim measures had binding force.