Interim Measures at the European Court of Human Rights - Form, Substance, Future

Interim measures – steps that a court indicates to maintain the status quo until it decides the dispute – can be a key feature of international litigation.  Last week the European Court of Human Rights amended its Rules of Court in relation to the indication of interim measures. The relevant amendment, to Rule 39, is now in force. The Court’s Practice Direction on Rule 39 has been updated as its factsheet (which is informative but does not carry legal authority).

While there is a significant textual change, it seems unlikely that this will translate into a change in practice, given the existing case-law. Knottier challenges in relation to interim measures, including their scope and enforcement, remain unresolved. The amendment to Rule 39 is a useful change, however, as it improves the clarity and accessibility of the law. Applicants, states, and the Court itself should all keep in mind the importance of this exceptional but vital feature of the system.

The Textual Change

The key provision is Rule 39(1). The previous text said:

“The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may, at the request of a party or of any other person concerned, or of their own motion, indicate to the parties any interim measure which they consider should be adopted in the interests of the parties or of the proper conduct of the proceedings.”

In place of this is the new text of Rule 39(1):

“The Court may, in exceptional circumstances, whether 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. Such measures, 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 the parties or the proper conduct of the proceedings.”

The differences in the text are obvious – in particular the reference to “exceptional circumstances” and the introduction of a threshold of “imminent risk of irreparable harm to a Convention right”. These changes to the text might be thought to present a new hurdle for the indication of interim measures. However, in practice they do little more than reflect the test already imposed by the Court through long-standing practice.

Form and Substance

The substantive effect of the rule amendment is to bring into Rule 39 the threshold that is already set out in the Court’s case law. Almost two decades ago, in Mamatkulov and Askarov v Turkey (2005) 41 EHRR 25, the Court held at §104 (emphasis added):

“Interim measures have been indicated only in limited spheres. Although it does receive a number of requests for interim measures, in practice the Court applies Rule 39 only if there is an imminent risk of irreparable damage. While there is no specific provision in the Convention concerning the domains in which Rule 39 will apply, requests for its application usually concern the right to life (Article 2), the right not to be subjected to torture or inhuman treatment (Article 3) and, exceptionally, the right to respect for private and family life (Article 8) or other rights guaranteed by the Convention. The vast majority of cases in which interim measures have been indicated concern deportation and extradition proceedings.”

The highlighted text is precisely the language now brought into the new Rule 39. While the new Rule also refers to “exceptional circumstances” it is not clear that that adds anything to the already high threshold set by “imminent” and “irreparable”. Moreover, as set out below, the indication of interim measures is already the exception, even when they are requested. The new rule also refers to the measures being “necessary” which, again, likely changes little in terms of the Court's practice.*

Mamatkulov and Askarov was also the first case in which the European Court held that the failure to comply with interim measures was, itself, a violation of the Convention. It is to this that the measures owe their binding nature in international law – rather than the text of the Convention itself. It later reaffirmed this in Paladi v Moldova (app. no. 29806/05). Although sometimes subject to criticism as an arrogation of power it is also not something the States have reversed in the near twenty years since.

Practical Impact

It is difficult to conceive of circumstances in which the recent amendment will impact on the decision-making in any given request for interim measures. The new Rule 39 might be said to narrow the scope for a judge to ignore the Court’s well-established practice and indicate measures where there is not an imminent risk of irreparable harm, or which are not “necessary”.* That, though, would appear to be a solution in want of a problem. The international judiciary tend not to go rogue (and, in any case, states could always ask the Court to reconsider measures indicated in such circumstances).

Indeed, requests for interim measures are refused more often than they are granted. Across 2021-2023, only 2,745 of 7,676 requests were successful (36%). Of these, 2,047 related to Belgium, principally in respect of its treatment of asylum seekers (see Camara v Belgium, app no. 49255/22). In contrast, 18 states had no interim measures indicated in respect of them in that period. 

In United Kingdom cases, in 2021-2023, of 178 requests made, only 11 (6%) were successful. Recent debate here focusses on interim measures in relation to the treatment of those seeking asylum (in particular the proposed “Rwanda” scheme). However, at first reading, the change to Rule 39 is unlikely to impact such cases. The removal of a person from the state contrary to their Article 2 or 3 rights is the classic example of when the Court will indicate measures. The Practice Direction makes clear that domestic remedies with suspensive effect must first be exhausted. Once that is done, however, the European Court may step in to preserve a victim’s rights.

There is a positive impact to the amendment even if, perhaps especially if, it does not alter the Court’s approach. The rule of law requires clarity and accessibility. The new Rule 39 more clearly, and more accessibly, reflects the Court’s actual practice. In that sense it is a useful codification of the case-law.

Knottier Problems

In some respects the recent amendment is more interesting in what it does not do. 

It does not define in any real way what “interim measures” may be. An instruction not to remove a person to a territory where their Article 2 or 3 ECHR rights are at imminent risk of irreparable harm is relatively straightforward. As Dzhetsiarou and Tzevelekos have explored, other cases are not so straightforward.

For example, in relation to press freedom, the Court has previously indicated measures that Georgia should not close a TV station in that country, and that Ukrainian authorities should not access a journalist’s sources. Interim measures are therefore an opportunity not only to secure the rights of an individual – but also to secure broader rights that underpin democracy. This raises obvious questions about the scope of measures the Court may indicate on the basis of what is often an ex parte application. It remains to be seen if the Court seeks to rely on the requirement of 'necessity' as a limiting criterion.

Alongside scope is the question of enforcement and effectiveness – something the Rules of Court cannot themselves ensure. In 2020 the Court indicated that Russia should facilitate the transfer of Alexei Navalny to Germany for medical treatment. He was transferred, and treated, but later reimprisoned upon his return to Russia. In 2021 further interim measures called for Navalny’s release because of the risk to his life. Russia refused to comply (despite urgings from, amongst others, the UK Government). In 2023 Navalny died in a Russian “corrective colony”.

The Future of Rule 39

The amendments to Rule 39 this month have codified, and in doing so clarified, the threshold for indication of interim measures. It is likely that the threshold has not actually changed – but the proof of that will be in how the Court treats future applicants. For those applicants, it is obvious that compliance with the new Rule, and Practice Direction, will be essential to the prospects of success.

For the Court, its use of this power remains a delicate one, as non-compliance by states – however illegal – undermines the Court’s own authority. And for states that may bristle in the face of that authority, it is worth remembering the company that would be kept if they were to reject it outright. Interim measures may be an exceptional component of the international legal system – but they are also a vital one.

*This post was amended on 4 April 2024 to include these three brief references to the inclusion of “necessary” in the new text of Rule 39(1).