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‘A Risk of Irreparable Damage’: Interim Measures in Proceedings before the European Court of Human Rights

Published online by Cambridge University Press:  27 October 2017

Pamela McCormick
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Abstract

Interim measures can be indicated by most international decision-making bodies which monitor compliance with human rights norms to the parties involved in the proceedings before them, in order to prevent the commission of any irreversible actions which would either preclude the proper examination of a complaint or render the final judgment meaningless. The availability of interim measures is an essential feature of any effective judicial system, particularly where fundamental rights are at stake. They play a particularly important role in proceedings before the European Court of Human Rights (‘the Court’). The volume of requests for an indication of interim measures received by the Court each year is substantial and increasing. This presents the Court with a number of legal and practical problems. This chapter examines the circumstances in which an indication of interim measures may be made, as well as the consequences of non-compliance with such an indication, although it is acknowledged that the incidence of non-compliance is low. With its recent case law, the Court has brought the existence of interim measures to the attention of a wider audience, which is desirable as only such an awareness will render the protection of Convention rights practical and effective rather than theoretical and illusory, a stated goal of the Court. However, such a wider awareness will in turn increase the volume of requests again, making it likely that the Court will in years to come have to make significant changes to the scope of requests for interim measures, as well as to its practices and procedures for considering such requests.

Type
Research Article
Information
Cambridge Yearbook of European Legal Studies , Volume 12 , 2010 , pp. 313 - 336
Copyright
Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2010

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References

1 See, eg, Art 41 of the Statute of the International Court of Justice and Art 86 of the Rules of Procedure of the United Nations’ Committee on Human Rights.

2 See, eg, the decision of the International Court of Justice in LaGrand (Germany v United States of America), 27 June 2001, and the judgment of the Grand Chamber of the European Court of Human Rights in Mamatkulov and Askarov v Turkey (App nos 46827/99 and 46951/99) (2005) 41 EHRR 494.

3 From 13 December 1974 to 1 January 1983 the power was contained in Rule 36 of the Rules of Procedure of the European Commission of Human Rights. From 1 January 1983 to 1 November 1998 the power was contained in Rule 36 of the Rules of Procedure of the European Court of Human Rights.

4 See, eg, Mamatkulov and Askarov v Turkey (App nos 46827/99 and 46951/99) (2005) 41 EHRR 494, para 103.

5 Ibid, para 103; Al-Saadoon and Mufdhi v The United Kingdom (App no 61498/08), judgment of 2 March 2010, para 160.

6 See, eg, Ilascu v Russia and Moldova, Reports of Judgments and Decisions 2004-VII 179,

(2005) 40 EHRR 1030.

7 The Court has held that force-feeding a prisoner on hunger strike may violate his or her rights under Art 3 ECHR if the measures taken are not medically necessary and if certain procedural guarantees are not complied with (see Nevmerzhitsky v Ukraine (App no 54825/00) (2006) 43 EHRR 32). Consequently, it would be inappropriate for the Court to order a State to force-feed an applicant when it is not in a position to assess either the medical necessity or the effectiveness of the procedural guarantees.

8 The Convention does not guarantee the right to reside in a particular Member State (East African Asians v United Kingdom (App nos 4403/70–4419/70, 4422/70, 4423/70, 4434/70, 4443/70, 4476/70–4478/70, 4486/70, 4501/70 and 4526/70–4530/7) (1973) 3 EHRR 76).

9 Biraga and Others v Sweden (App no 1722/10), decision to communicate 11 February 2010.

10 See, eg, AD and OD v United Kingdom (App no 28680/06), judgment of 16 March 2010, para 84.

11 (App no 6339/05), judgment of 10 April 2007 (Grand Chamber).

12 See also Knecht v Romania (App no 10048/10).

13 Mamatkulov and Askarov v Turkey (App nos 46827/99 and 46951/99) (2005) 41 EHRR 494.

14 Paladi v Moldova (App no 39806/05), judgment of 10 March 2009, para 91.

15 Ibid, para 89.

16 The Court’s judgments become final three months after they are adopted. If, during this three-month period, one of the parties seeks a referral to the Grand Chamber, and the referral is granted, interim measures will remain in place until the Grand Chamber’s judgment has been adopted.

17 See, eg, Mamatkulov and Askarov v Turkey (App nos 46827/99 and 46951/99) (2005) 41 EHRR 494, where interim measures were initially granted for one week before being extended indefinitely.

18 The Court has, for example, granted priority status in a number of cases in which the applicants are elderly or in ill-health, or have been deported.

19 Al-Saadoon and Mufdhi v The United Kingdom (App no 61498/08), judgment of 2 March 2010.

20 Conka v Belgium (App no 51564/99) (2002) 34 EHRR 1298; Mamatkulov and Askarov v Turkey (App nos 46827/99 and 46951/99) (2005) 41 EHRR 494.

21 Above n 20.

22 Caflisch, L, ‘Provisional Measures in the International Protection of Human Rights: The Mamatkulov Case’, Common Values in International Law: Essays in Honour of Christian Tomuschat (Kehl, Engel, 2006) 493 Google Scholar.

23 G Letsas, ‘International Human Rights and the Binding Force of Interim Measures’ (2003) 5 EHRLR 527.

24 See, eg, Cruz Varas v Sweden Series A no 201 (1991) 14 EHRR 1 and Conka v Belgium (App no 51564/99) (2002) 34 EHRR 1298, in which the Court held that the indication of interim measures was not binding on the parties.

25 LaGrand (Germany v United States of America), judgment of 27 June 2001.

26 App Nos 46827/99 and 46951/99 (2005) 41 EHRR 494.

27 Ibid, paras 110 and 111.

28 Ibid, para 128.

29 See, eg, the partly dissenting opinions of Judges Caflisch, Türmen and Kovler in Mamatkulov and Askarov v Turkey (App nos 46827/99 and 46951/99) (2005) 41 EHRR 494.

30 (App no 39806/05), judgment of 10 March 2009.

31 Paladi v Moldova (App no 39806/05), judgment of 10 July 2007, para 98.

32 Paladi v Moldova (App no 39806/05), judgment of 10 March 2009, paras 87–92.

33 (App no 61498/08), judgment of 2 March 2010.

34 Paladi v Moldova (App no 39806/05), judgment of 10 March 2009, para 88.

35 Ibid, para 92.

36 Muminov v The Russian Federation (App no 42502/06), judgment of 8 December 2008.

37 Olaechea Cahua v Spain (App no 24668/03), judgment of 10 August 2006; Mostafa & Others v Turkey (App no 16348/05), judgment of 15 January 2008; Ben Khemais v Italy (App no 246/07), judgment of 24 February 2009; Al-Saadoon and Mufdhi v The United Kingdom (App no 61498/08), judgment of 2 March 2010; Paladi v Moldova (App no 39806/05), judgment of 10 March 2009; Aleksanyan v Russia (App no 46468/06), judgment of 22 December 2008; Shtukaturov v Russia (App no 44009/05), judgment of 27 March 2008; Grori v Albania (App no 25336/04), judgment of 7 July 2009; Kamaliïev v The Russian Federation (App no 52812/07), judgment of 3 June 2008; and Trabelsi v Italy (App no 50163/08), judgment of 13 April 2010.

38 Hamidovic v Italy (App no 31956/05); Mannai v Italy (App no 9961/10); Labsi v Slovakia (App no 33809/08).

39 See, eg, Sunday Times v The United Kingdom Series A no 30 (1979-80) 2 EHHR 245.

40 Van de Hurk v Netherlands Series A no 288 (1994) 18 EHRR 481.

41 (App no 17056/06), judgment of 15 October 2009.

42 (App no 1820/08), judgment of 24 Novermber 2009.

43 See, eg, ABS v United Kingdom (App no 26970/07), judgment of 6 October 2009, and Andrews v United Kingdom (App no 46263/06), judgment of 29 September 2009.

44 Mamatkulov and Askarov v Turkey (App nos 46827/99 and 46951/99) (2005) 41 EHRR 494, para 125. See also Paladi v Moldova (App no 39806/05), judgment of 10 March 2009, para 87.

45 (App no 13229/03) (2008) 47 EHRR 17.

46 (App no 27770/08), decision to communicate 9 June 2009.

47 It should be borne in mind, however, that the Court only began keeping records of the number of requests that were found to be out of scope in 2007. The actual number of requests received in 2005 and 2000 will therefore be somewhat higher than that stated.

48 UNHCR ‘Asylum Levels and Trends in Industrialised Countries: First Half 2009’, 21 October 2009, available at <http://www.unhcr.org/4adebcal>,accessed 12 July 2010.

49 Other factors will also play an important role, such as domestic asylum procedures and policies, the existence or non-existence of suspensive domestic remedies, and media interest following the indication of interim measures in high-profile cases in certain Member States.

50 Mamatkulov and Askarov v Turkey (App nos 46827/99 and 46951/99) (2005) 41 EHRR 494, para 105.

51 Eg, the facts of Al-Saadoon and Mufdhi v The United Kingdom (App no 61498/08), judgment of 2 March 2010, were widely reported in the British media.

52 See, eg, Airey v Ireland Series A no 32 (1979) 2 EHRR 305, para 24.