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Interim Measures at the European Court of Human Rights: Current Practice and Future Challenges

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Provisional Measures Issued by International Courts and Tribunals

Abstract

While the ECtHR often resorts to interim measures, the ECHR does not encompass any specific provision in this regard. However, Rule 39 of the Rules of the Court grants the ECtHR the power to indicate interim measures to be adopted “in the interests of the parties or of the proper conduct of the proceedings”. This chapter sheds some light on the major developments occurred in the last 15 years, by analyzing the practice of the Court in relation to different rights. The drawbacks resulting from the application of Rule 39 call for some improvements in terms of systematic consistency, procedural efficiency and substantive effectiveness; as well as a broader rethinking of the protective function of interim relief in the context of international human rights adjudication. In this respect, it is contended that the Court should promote a more efficient application of the Rule, primarily through the disclosure of the reasoning behind its decisions on interim measures.

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Notes

  1. 1.

    For an overview of the relevant practice of different international jurisdictions regarding the indication of provisional measures, see Oellers-Frahm 1995, p. 69 et seq.; Gaeta 2000; Ruiz Fabri and Sorel 2003; Rosenne 2005; and most recently Cameron 2017, and Miles 2017.

  2. 2.

    On the interim measures adopted by the ECtHR see, among others, Nørgaard and Kruger 1988, p. 109 et seq.; Buquicchio-De Boer 1992, p. 229 et seq.; Spielmann 1992, p. 1303 et seq.; Gaeta 1996, p. 34 et seq.; Garry 2001, p. 399 et seq.; De Schutter 2003, p. 127 et seq. More generally, on provisional measures in international human rights adjudication, see Saccucci 2006; Rieter 2010.

  3. 3.

    Several proposals to provide a treaty legal basis for the Court’s power to indicate interim measures have been considered over the years (notably, at the time of the drafting of Protocol No. 11 of 1994 and of Protocol No. 14 of 2004) but never ultimately adopted.

  4. 4.

    See Rule 39 of the Rules of Court adopted on 4 November 1998 following the entry into force of Protocol No. 11, as amended on 4 July 2005, 16 January 2012 and 14 January 2013. Previously, the Court’s power to indicate provisional measures was envisaged by Rule 34 of the Rules of Court adopted in 1959, which then became Rule 36 of the Rules adopted in 1982.

  5. 5.

    In particular, the Court has attached great weight to the judgment of the International Court of Justice in the LaGrand case where it held for the first time that provisional measures indicated under Article 41 of its Statute were to be regarded as legally binding upon the states parties to the dispute. See International Court of Justice, LaGrand Case (Germany v. United States of America), Judgment of 27 June 2001, spec. paras 92–109.

  6. 6.

    See ECtHR, Mamatkulov and Askarov v. Turkey [GC], Applications nos. 46827/99 and 46951/99, Judgment of 4 February 2005, paras 100–129. For a comment on the Court’s revirement regarding the binding nature of interim measures, see Cohen-Jonathan 2005, p. 421 et seq.; Mowbray 2005, p. 377 et seq.; Frumer 2005, p. 799 et seq.; Tigroudja 2003, p. 601 et seq.; Saccucci 2004, p. 70 et seq.

  7. 7.

    Mamatkulov and Askarov v. Turkey, supra note 6, para 128, where the Court concluded that “by virtue of Article 34 of the Convention Contracting States undertake to refrain from any act or omission that may hinder the effective exercise of an individual applicant’s right of application” and that “[a] failure by a Contracting State to comply with interim measures is to be regarded as preventing the Court from effectively examining the applicant’s complaint and as hindering the effective exercise of his or her right and, accordingly, as a violation of Article 34”.

  8. 8.

    See the thematical statistics on interim measures published periodically by the European Court of Human Rights on its web-site (www.echr.coe.int). In 2019, the Court disposed of 689 requests under Rule 39, out of which 145 were granted and 544 refused. However, the number of requests lodged every year with the Court is much higher than it appears in the statistics, considering that many of such requests are refused by the Registry as being “out of the scope” of Rule 39 and are not submitted to a judge for consideration (see infra Sect. 11.3.2).

  9. 9.

    The legal foundation of the Court’s interim powers (customary law, implied or inherent powers, Court’s treaty competence to adopt its rules of procedure, etc.) remains however unclear. While the issue is largely theoretical and does not have significant practical implications, it is my opinion that the source of such powers can be now firmly grounded in the ECHR itself in light of the long-standing “subsequent practice” of the Contracting States recognizing and accepting the conventional legitimacy of interim measures issued under Rule 39 of the Rules of Court. According to Article 31(3) (b) of the Vienna Convention on the Law of the Treaties (VCLT), this practice established the “agreement of the parties” regarding the interpretation of the ECHR in light of its object and purpose which is to safeguard rights that are “practical and effective”, including the effectiveness of the right of individual application embedded in Article 34 ECHR.

  10. 10.

    See, for instance, Mamatkulov and Askarov v. Turkey, supra note 6, where the Court stated that “[it] applies Rule 39 only in restricted circumstances” (para 103) “if there [is] an imminent risk of irreparable damage” (para 104). In ECtHR, Shamayev and others v. Georgia and Russia, Application No. 36378/02, Judgment of 12 April 2005, para 473, the Court reiterated that, “where there is plausibly asserted to be a risk of irreparable damage to the enjoyment by the applicant of one of the core rights under the Convention, the object of an interim measure is to maintain the status quo pending the Court’s determination of the justification for the measure. As such, being intended to ensure the continued existence of the matter that is the subject of the application, the interim measure goes to the substance of the Convention complaint. (…) Consequently, the interim measure is sought by the applicant, and granted by the Court, in order to facilitate the ‘effective exercise’ of the right of individual petition under Article 34 of the Convention in the sense of preserving the subject matter of the application when that is judged to be at risk of irreparable damage through the acts or omissions of the respondent State”.

  11. 11.

    In this respect, see amplius Saccucci 2006, spec. pp. 285–328.

  12. 12.

    As pointed out in Mamatkulov and Askarov v. Turkey, supra note 6, para 104, “[w]hile 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”.

  13. 13.

    It should be noted that, in accordance with the current practice, requests of interim measures that clearly fall outside the scope of Rule 39 (as presently defined by the Court’s case-law) are not submitted to the President of the Chamber for a decision and are immediately rejected by the special Interim Measures Unit of the Court’s Registry (see also infra Sect. 11.3.2).

  14. 14.

    For an isolated precedent in which the Court has granted provisional measures to ensure preventive compliance with the requirements of Article 6 ECHR in domestic criminal proceedings which had been instituted against the applicant and exposed him to the risk of death penalty see ECtHR, Ocalan v. Turkey [GC], Application No. 46221/99, Judgment of 12 May 2005, para 5.

  15. 15.

    For instance, the application of Rule 39 is regularly denied for the purpose of preventing the imminent demolition of property or of avoiding an imminent insolvency.

  16. 16.

    See, for instance, ECtHR, Sezer v. Turkey, Application No. 35119/08, where the Court rejected a request for interim measure to prevent the Turkish Constitutional Court from ordering the dissolution of a political party.

  17. 17.

    For instance, the American human rights bodies have often granted provisional measures to avoid irreparable harm to the right of freedom of expression (see IACtHR, “La Nación” Newspaper Case (Costa Rica), Order of 7 February 2001, concerning the criminal conviction of a journalist and of the editor in chief of a newspaper, where the Court requested the respondent state to suspend the inclusion of the sentence in the criminal records and the publication on the media of the judgment of conviction). For the relevant practice in the Inter-American system, see Pasqualucci 1993, p. 803 et seq., and more recently Ubeda De Torres and Burgogue-Larsen 2011, p. 193 et seq.

  18. 18.

    In this respect, it is rather telling that the official statistics of the Court concerning the adoption of interim measures are organized by reference to the state of destination of the contested measure of removal.

  19. 19.

    See, among others, Shamayev and others v. Georgia and Russia, supra note 10, para 473.

  20. 20.

    See, for instance, ECtHR, Aoulmi v. France, Application No. 50278/99, Judgment of 17 January 2006, para 5, concerning the applicant’s deportation to Algeria; Al-Sadoon and Mufdhi v. the United Kingdom, Application No. 61498/08, Judgment of 2 March 2010, para 4, concerning the applicants’ detention by British forces in Iraq and their transfer to the Iraqi authorities; and F.G. v. Sweden [GC], Application No. 43611/11, Judgment of 23 March 2016, para 4, concerning the applicant’s deportation to Iran.

  21. 21.

    See, for instance, ECtHR, NO. v. the United Kingdom [GC], Application No. 26565/05, Judgment of 27 May 2008, concerning the deportation to Uganda of an applicant who was HIV-positive.

  22. 22.

    See, for instance, ECtHR, Sharifi and others v. Italy and Greece, Application No. 16643/09, Judgment of 21 October 2014, concerning the applicants’ removal to Greece, where the Court ultimately found a violation of Article 3 ECHR against Italy on account of the real risk to which the applicants would be exposed in Greece owing to the shortcomings of the asylum procedures in that country; K.R.S. v. the United Kingdom, Application No. 32733/08, Decision of 2 December 2008, concerning the applicant’s transfer to Greece under the Dublin Regulation. On the contrary, no interim measure was adopted in M.S.S. v. Belgium and Greece [GC], Application No. 30696/09, Judgment of 21 January 2011.

  23. 23.

    See, for instance, ECtHR, Tarakhel v. Switzerland [GC], Application No. 29217/12, Judgment of 4 November 2014, concerning the transfer of the applicant and his family to Italy under the Dublin Regulation, where the Court ultimately found a violation of Article 3 ECHR on account of the failure by the Swiss authorities to obtain individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together; Paposhvili v. Belgium [GC], Application No. 41738/10, Judgment of 13 December 2016, concerning the applicant’s deportation to Georgia, where the Court ultimately found a violation of Article 3 ECHR on account of the failure to assess the risk faced by the applicant in the light of the information concerning his state of health and the existence of appropriate treatment in Georgia, and of Article 8 ECHR on account of the failure to assess the impact of the removal on the applicant’s right to respect for family life in view of his state of health.

  24. 24.

    See, for instance, Shamayev and others v. Georgia and Russia, supra note 10, para 6, where the Court applied Rule 39 in order to stay the applicants’ extradition to Russia.

  25. 25.

    See, for instance, ECtHR, Olaechea Cahuas v. Spain, Application No. 24668/03, Judgment of 10 August 2006, concerning the applicant’s extradition to Peru; Mostafa and others v. Turkey, Application No. 16348/05, Judgment of 15 January 2008, para 16, concerning the applicant’s extradition to Iraq; Babar Ahmad and others v. the United Kingdom, Application No. 24027/07 and others, Judgment of 10 April 2012, and Trabelsi v. Belgium, Application No. 140/10, Judgment of 4 September 2014, para 39, both concerning the applicants’ extradition to the United States where they would face the risk of an irreducible life sentence; Abdulkhakov v. Russia, Application No. 14743/11, Judgment of 2 October 2012; and Mukhitdinov v. Russia, Application No. 20999/14, Judgment of 21 May 2015, both concerning the applicant’s extradition to Uzbekistan.

  26. 26.

    See, among many examples, ECtHR, Mohammed Hussein and others v. the Netherlands and Italy, Application No. 27725/10, Decision of 2 April 2013, para 18, Halimi v. Austria and Italy, Application No. 53852/11, Decision of 18 June 2013, para 14, and Abubeker v. Austria and Italy, Application No. 73874/11, Decision of 18 June 2013, para 29, all concerning Dublin transfers to Italy, where the Court then declared inadmissible the complaints under Article 3 ECHR as being manifestly ill-founded; Mohammed v. Austria, Application No. 2283/12, Judgment of 6 June 2013, para 4, and Mohammadi v. Austria, Application No. 71932/12, Judgment of 3 July 2014, para 4, concerning Dublin transfers to Greece and Hungary, respectively, where the Court ultimately found no violation of Article 3 ECHR on the merits.

  27. 27.

    For instance, in K.R.S. v. the United Kingdom, supra note 22, the Court applied Rule 39 to a Dublin transfer to Greece pending confirmation from the British authorities that the applicant, if removed to Greece and if he so wished, would have ample opportunity in Greece to apply to the Court for a Rule 39 measure in the event of his onward expulsion to Iran.

  28. 28.

    Provisional measures were exceptionally adopted to stay an extradition to a Contracting State in Shamayev and others v. Russia, supra note 10, where the Court first granted a stay under Rule 39 of the applicants’ extradition to Russia (para 6), but it later lifted the measure in the light of the undertakings given by the Russian Government (paras 21–22); and in Gasayev v. Spain, Application No. 48514/06, Decision of 17 February 2009, concerning the stay of the applicant’s extradition to Russia, where the complaints under Articles 2 and 3 ECHR were later found to be manifestly ill-founded.

  29. 29.

    On this point see also infra Sect. 11.3.3.

  30. 30.

    See, for instance, Paposhvili v. Belgium, supra note 23, paras 57 and 158, where the Court found no violation of Articles 3 and 8 ECHR, but ruled that the stay of the execution of the applicant’s removal under Rule 39 “should continue in force until the present judgment becomes final or until the Court takes a further decision in this connection”. The case was later referred to the Grand Chamber, which reversed the Chamber’s findings and found a violation of Articles 3 and 8 ECHR. For other examples of post-merits interim measures adopted by a Chamber in a judgment of no violation see Mohammed v. Austria, supra note 26, para 112, and Mohammadi v. Austria, supra note 26, para 76, S.J. v. Belgium, Application No. 70055/10, Judgment of 27 February 2014, para 149; R.K. and others v. France, Application No. 68264/14, Judgment of 12 July 2016, para 127; N.A. v. Switzerland, Application No. 50364/14, Judgment of 30 May 2017, para 55; O.D. v. Bulgaria, Application No. 34016/18, Judgment of 10 October 2019, para 68; and A.A. v. Switzerland, Application No. 32218/17, Judgment of 5 November 2019, para 63.

  31. 31.

    It is to be noted however that interim measures are lifted immediately if the application is declared inadmissible as manifestly ill-founded (see, for instance, Mohammed Hussein and others v. the Netherlands and Italy, supra note 26, para 86; Halimi v. Austria and Italy, supra note 26, para 76; and Abubeker v. Austria and Italy, supra note 26, para 74). This may be explained considering that inadmissibility decisions are not subject to any appeal, while post-merits interim measures also pursue the “procedural function” of securing the applicant’s right to seek a referral to the Grand Chamber under Article 43 ECHR (see also infra Sect. 11.2.5).

  32. 32.

    See ECtHR, Othman (Abu Qatada) v. the United Kingdom, Application No. 8139/09, Judgment of 17 January 2012, para 291.

  33. 33.

    This trend is confirmed by those cases in which interim measure have been exceptionally granted by the Court to stay a forcible return of a person which would allegedly breach his or her rights under Article 8 ECHR (see infra Sect. 11.2.4).

  34. 34.

    In the past, the European Commission of Human Rights (ECoHR) had sometimes indicated provisional measures in order to protect detainees from the risk of irreparable damage in prison. See, for instance, ECoHR, P. v. Italy, Application No. 11488/85, Decision of 3 December 1986, where the Commission found that there was a serious risk that the depressive state of the applicant could induce her to commit suicide and invited the Italian Government “à prendre dans les meilleurs délais, les mesures propres à sauvegarder la santé de la requérant, soit par son transfert dans un établissement mieux adapté ò son état psycho-physique, soit par un sursis à l’exécution de la peine”. See also Vakalis v. Greece, Application No. 19796/92, Decision of 15 January 1993, where the Commission considered that the continuation of the applicant’s detention notwithstanding the deterioration of his health conditions posed a serious risk of irreparable damage and invited the Greek Government “à prendre toute mesures nécessaire afin de préserver la santé du requérant”.

  35. 35.

    See ECtHR, Kotsaftis v. Greece, Application No. 39780/06, Judgment of 12 June 2008, para 4; Makharadze and Sikharulidze v. Georgia, 35254/07, Judgment of 22 November 2011, paras 34–39; Sizarev v. Ukraine, Application No. 17116/04, Judgment of 17 January 2013, paras 57–60; Salakhov and Islayamova v. Ukraine, Application No. 28005/08, Judgment of 14 March 2013, para 28; Tymoshenko v. Ukraine, Application No. 49872/11, Judgment of 30 April 2013, paras 121–122; Andrey Lavrov v. Russia, Application No. 66252/14, Judgment of 1 March 2016, paras 18–23; Yunusova and Yunusov v. Azerbaijan, Application No. 59620/14, Judgment of 2 June 2016, para 4; Temchenko v. Ukraine, Application No. 30579/10, Judgment of 16 July 2015, paras 40 and 46. Very recently, the Court has adopted a similar measure against Italy in order to secure the immediate transfer of a mentally ill offender to a special institution for the enforcement of security measures (REMS) or to another appropriate setting where he could receive medical treatment (see ECtHR, Application No. 11791/20, Sy v. Italy).

  36. 36.

    See ECtHR, Paladi v. Moldova [GC], Application No. 39806/05, Judgment of 10 March 2009, paras 54–59.

  37. 37.

    See ECtHR, Aleksanyan v. Russia, Application No. 46468/06, Judgment of 22 December 2008, paras 75–86.

  38. 38.

    See ECtHR, Tehrani and others v. Turkey, Application No. 32940/08 and others, Judgment of 13 April 2010, para 5; Jashi v. Georgia, Application No. 10799/06, Judgment of 8 January 2013, para 20; Amirov v. Russia, Application No. 51857/13, Judgment of 27 November 2014, paras 29–37; Kondrulin v. Russia, Application No. 12987/15, Judgment of 20 September 2016, paras 20–23; Maylenskiy v. Russia, Application No. 12646/15, Judgment of 4 October 2016, paras 15–19.

  39. 39.

    See ECtHR, Ilascu and others v. Moldova and Russia [GC], Application No. 48787/99, Judgment of 8 July 2004, para 11, and Rodic and others v. Bosnia Herzegovina, Application No. 22893/05, Judgment of 27 May 2008, para 4. More recently, see also the controversial case Unsal and Timtik v. Turkey, Application No. 36331/20.

  40. 40.

    Notably, such measures were adopted by the Court in over 100 individual applications lodged against both Ukraine and Russia in relation to the conflict in Eastern Ukraine and involving complaints about various forms of ill-treatment, wounding and disappearances, and unlawful deprivation of liberty. In 14 of the cases, individuals were released from detention and the respective interim measures were subsequently lifted (see ECtHR, Press Release issued by the Registrar, ECHR 345 (2014), 26 November 2014).

  41. 41.

    See also infra Sect. 11.3.2.

  42. 42.

    In this respect, it should be noted that the Court has so far refused to grant interim measures when the removal has already taken place for the purpose of requiring the Contracting State to take steps for ensuring the readmission of the applicant on its own territory. Requests of this kind were, for instance, refused by the Court in Hirsi Jamaa and others v. Italy [GC], Application No. 27765/09, Judgment of 23 February 2012, concerning the applicants’ pushback to Libya, and in Al-Shari and others v. Italy, Application No. 57/03, Decision of 5 July 2005, concerning the applicants’ deportation to Syria.

  43. 43.

    See infra Sect. 11.3.3.

  44. 44.

    As pointed out by the Court in Kondrulin v. Russia, supra note 38, para 47, the purpose of such kinds of interim measure is “to enable the Court, on the basis of relevant, independent medical opinion, to effectively respond to and, if need be, prevent the possible continued exposure of the applicant to physical and mental suffering in violation of the guarantees of Article 3 of the Convention”.

  45. 45.

    See also infra Sect. 11.2.5.

  46. 46.

    See ECtHR, Lambert and others v. France [GC], Application No. 10048/10, Judgment of 5 June 2015, para 4, where the French Government was requested to stay the execution of the decision of the Conseil d’Etat authorizing the withdrawal of the applicant’s nutrition and hydration; and Gard and others v. the United Kingdom, Application No. 39793/17, Decision of 27 June 2017, paras 37–39, where the UK Government was requested to stay the execution of the decision of the Supreme Court authorizing the withdrawal of life-sustaining treatment of a terminally ill child. Similarly, on 21 August 2020, the Court granted a request of interim measures on behalf of Aleksey Navalnyy to ensure access by his family members and medical practitioners to his medical file and his person in order to establish whether he was fit for transfer for further treatment in Germany.

  47. 47.

    See ECtHR, Evans v. the United Kingdom [GC], Application No. 6339/05, Judgment of 10 April 2007, para 5, and Knecht v. Romania, Application No. 10048/10, Judgment of 2 October 2012, para 4, where the Court ordered the respondent Governments to take appropriate measures to ensure that the embryos were preserved until the Court had completed its examination of the case.

  48. 48.

    See ECtHR, R.R. and others v. Hungary, Application No. 19400/11, Judgment of 4 December 2012, para 4.

  49. 49.

    See ECtHR, Evans v. the United Kingdom, supra note 47, paras 54–56, where the Grand Chamber reiterated its conclusion in Vo v. France [GC], Application No. 53924/00, Judgment of 8 July 2004, para 82, according to which “in the absence of any European consensus on the scientific and legal definition of the beginning of life, the issue of when the right to life begins comes within the margin of appreciation which the Court generally considers that States should enjoy in this sphere”. Accordingly, since under English law an embryo does not have independent rights or interests and cannot claim—or have claimed on its behalf—a right to life under Article 2, the Grand Chamber held that the embryos created by the applicant “do not have a right to life within the meaning of Article 2 of the Convention, and that there has not, therefore, been a violation of that provision”.

  50. 50.

    According to a well-established case-law of the Court, the state’s obligation under Article 2 ECHR extends beyond its primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions; it may also imply in certain well-defined circumstances “a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual” (see ECtHR, L.C.B. v. the United Kingdom, Application No. 23413/94, Judgment of 9 June 1998, para 36). Such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, where there is an allegation that the authorities have violated this positive obligation, the Court must establish to its satisfaction that “the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk” (see ECtHR, Osman v. the United Kingdom [GC], Application No. 23452/94, Judgment of 28 October 1998, paras 115–116).

  51. 51.

    On the positive obligations under Article 2 ECHR in the context of domestic violence see the leading case ECtHR, Opuz v. Turkey, Application No. 33401/02, Judgment of 9 June 2009, paras 128–130, and most recently Talpis v. Italy, Application No. 41237/14, Judgment of 2 March 2017, paras 95–106.

  52. 52.

    See ECtHR, Eskinazi and Chelouche v. Turkey, Application No. 14600/05, Decision of 6 December 2005; Neulinger and Shuruk v. Switzerland [GC], Application No. 41615/07, Judgment of 6 July 2010, para 10, and B. v. Belgium, Application No. 4320/11, Judgment of 10 July 2012, paras 35–41.

  53. 53.

    See ECtHR, Hamidovic v. Italy, Application No. 31956/05, Decision of 13 September 2011, concerning the applicant’s expulsion to Bosnia Herzegovina.

  54. 54.

    See ECtHR, Soares de Melo v. Portugal, Application No. 72850/14, Judgment of 16 February 2016, para 4.

  55. 55.

    See ECtHR, Petrache and Tranca v. Italy, Application No. 15920/16, Decision of 4 October 2016, para 9, concerning the applicants’ eviction from an emergency social housing centre, where the application was ultimately declared inadmissible for failure to exhaust domestic remedies which could lead to the suspension and annulment of the municipality’s eviction order; A.M.B. and others v. Spain, Application No. 77842/12, Decision of 28 January 2014, paras 21–25, concerning the applicants’ eviction from an unlawfully occupied flat belonging to a social housing institute; Raji and others v. Spain, Application No. 3537/13, Decision of 16 December 2014, para 15, concerning the applicants’ eviction from an unlawful construction, where the Court ordered a stay of the eviction until the Government had provided the Court with precise and accurate information as to the arrangements made by the domestic authorities for securing adequate housing and social services to the applicants; and Yordanova and others v. Bulgaria, Application No. 25446/06, Judgment of 24 April 2012, para 4, concerning the eviction of Roma from a settlement in Sofia, where the Court ordered a stay of the eviction until such time as the authorities gave assurances about the measures they had taken to secure housing for the children, elderly, disable or otherwise vulnerable people. A similar interim measure has been adopted by the Court on 23 July 2018 to suspend the forced eviction of a Roma community from a settlement located in Rome (Camping River).

  56. 56.

    See Saccucci 2006, pp. 340–346.

  57. 57.

    For one of the rare examples, see ECtHR, Ocalan v. Turkey, supra note 14, para 5, where the Court ordered inter alia that the applicant was able to exercise his right of individual application to the Court effectively through lawyers of his own choosing.

  58. 58.

    The Court’s jurisprudence has emphasized the fundamental importance of the principle, enshrined in Article 38, that the Contracting States have a duty to cooperate with it (see ECtHR, Ireland v. the United Kingdom, Application No. 5310/71, Judgment of 18 January 1978, para 148). Most recently, the Court reiterated that the Contracting States must furnish “all necessary facilities” for the effective conduct of the investigation and that such “facilities” entail, first and foremost, access to the country, to those applicants whom the Court decides to question and to premises that it considers necessary to visit (see Shamayev and others v. Georgia and Russia, supra note 10, para 496). According to the Court, the obligation under Article 38 is of the utmost importance for the effective operation of the system of individual petition insofar as it makes possible a proper and effective examination of applications (see Bazorkina v. Russia, Application No. 69481/01, Judgment of 27 July 2006, para 170, and Tahsin Acar v. Turkey [GC], Application No. 26307/95, Judgment of 6 May 2003, para 253). A failure by the Government to furnish all necessary facilities to the Court without a satisfactory explanation may not only give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations, but may also reflect negatively on the level of compliance with the state’s obligations under Article 38 ECHR (see Imakayeva v. Russia, Application No. 7615/02, Judgment of 9 November 2006, para 200, and Janowiec and others v. Russia [GC], Application No. 55508/07 and Application No. 29520/09, Judgment of 21 October 2013, para 202).

  59. 59.

    See ECtHR, D.B. v. Turkey, Application No. 33526/08, Judgment of 13 July 2010, para 5, where the Court requested the Turkish Government under Rule 39 to allow the applicant’s representative or another advocate to have access to the applicant in the admission and accommodation centre where he was detained with a view of obtaining a power of attorney and information concerning the alleged risks that the applicant would face if returned to Iran.

  60. 60.

    See ECtHR, Shtukaturov v. Russia, Application No. 44009/05, Judgment of 27 March 2008, paras 31–40, where the Russian Government was directed to organize, by appropriate means, a meeting between the applicant and his lawyer. That meeting could take place in the presence of the personnel of the hospital where the applicant was detained, but outside their hearing. The lawyer was to be provided with the necessary time and facilities to consult with the applicant and help him in preparing the application before the European Court. The Government was also requested not to prevent the lawyer from having such a meeting with his client at regular intervals in the future. The lawyer, in turn, was obliged to be cooperative and comply with reasonable requirements of hospital regulations.

  61. 61.

    See ECtHR, Shamayev and others v. Georgia and Russia, supra note 10, para 24, where the Court requested the Russian Government—following the applicants’ extradition from Georgia—to grant their unhindered access to their Georgian lawyers especially for the preparation of the hearing before the Court.

  62. 62.

    See ECtHR, X v. Croatia, Application No. 11223/04, Judgment of 17 July 2008, para 61.

  63. 63.

    See ECtHR, Suleymanov v. Russia, Application No. 32501/11, Judgment of 22 January 2013, paras 98–102, where the interim measures adopted by the Court were intended to provide the investigators examining the claims of unlawful detention and ill-treatment of the applicant’s son with full access to the premises of the District Department of the Interior in Chechnya and to take all necessary steps to establish whether he was detained there.

  64. 64.

    See the cases quoted supra notes 37 and 38. See also the interim measures granted by the Court on 21 August 2020 on behalf of Aleksey Navalnyy (following his alleged poisoning) to ensure access by his family members and medical practitioners to his medical file and his person in order to establish whether he was fit for transfer for further treatment in Germany (Press Release of 21 August 2020, ECHR 235 2020).

  65. 65.

    As pointed out above (see Sect. 11.2.1), in its judgment of the merits the Court may decide to continue in force the application of interim measures to stay the applicant’s removal to a third state until the judgment has become final. Such measures—while being primarily intended to avoid irreparable damage to the rights at stake—also serve a specific procedural purpose, that is to allow the applicant to challenge the Chamber’s findings before the Grand Chamber under the terms of Article 43 ECHR. For an example in which the applicant’s request for a referral was granted and the Grand Chamber reversed the Chamber’s findings of no violation, see Paposhvili v. Belgium, supra note 23.

  66. 66.

    See ECtHR, D.B. v. Turkey, supra note 59, paras 65–67, where the Court found a breach of Article 34 ECHR due to the authorities’ delay of 18 days in allowing the applicant to meet an advocate and sign an authority form empowering this individual to represent him in the proceedings before the Court; and Shtukaturov v. Russia, supra note 60, paras 135–149, where the Court found a breach of Article 34 ECHR due to the authorities’ refusal to allow the applicant to meet his lawyer.

  67. 67.

    See, in particular, Shamayev and others v. Georgia and Russia, supra note 10, paras 492–504, where the Court found that Russia failed to discharge its obligations under Article 38 ECHR by obstructing its fact-finding visit and denying unhindered access to the applicants detained in Russia, thereby unacceptably hindering the establishment of part of the facts in this case.

  68. 68.

    For instance, in D.B. v. Turkey, supra note 59, paras 65–67, the Court considered that the application was put in jeopardy, since the applicant could not sign a power of attorney and provide more detailed information concerning the alleged risks that he would face in Iran, and that “the fact that the applicant was subsequently able to meet a lawyer, sign the authority form and provide information regarding his situation in Iran does not alter the fact that the lack of timely action on the part of the authorities was incompatible with the respondent Government’s obligations under Article 34 of the Convention”. Similarly, in Shtukaturov v. Russia, supra note 60, paras 141–148, the Court noted that “the fact the individual actually managed to pursue his application does not prevent an issue arising under Article 34; should the Government’s action make it more difficult for the individual to exercise his right of petition, this amounts to ‘hindering’ his rights under Article 34”.

  69. 69.

    See, for example, ECtHR, Hussun and others v. Italy, Application No. 10171/05 and others, Decision of 19 January 2010, and Sharifi and others v. Italy and Greece, Application No. 16643/09, Judgment of 21 October 2014, para 134, where the Court decided to strike the case off the list because the applicants had lost contacts with their lawyers following their deportation.

  70. 70.

    See, for example, ECtHR, Shamayev and others v. Georgia and Russia, supra note 10, para 517, where the applicants were denied unhindered access to their lawyers and to the Court after their extradition to Russia and the Court subsequently found that the “examination of the admissible part of the application against Russia has proved impossible”.

  71. 71.

    In fact, the Court may conclude that the state has fully complied with procedural interim measures even in cases where it found a breach on the merits of the substantive rights at stake. See, for instance, ECtHR, Suleymanov v. Russia, supra note 63, paras 161–162, where the Court observed that the Russian authorities took the requested actions and furnished the requested information and that in such circumstances the Russian Federation was not in breach of its obligations under Article 34 of the Convention despite the established violation of Article 3 ECHR on account of the lack of adequate investigations.

  72. 72.

    See ECtHR, Georgia v. Russia (II), Application No. 38263/08, Decision of 13 December 2011, para 5.

  73. 73.

    See ECtHR, Ukraine v. Russia (I), Application No. 20958/14, lodged on 13 March 2014. To make its processing of this case more efficient, the Court decided on 9 February 2016 to divide it geographically. All the complaints related to the events in Crimea up to September 2014 remained as case Application No. 20958/14, while complaints relating to events in Eastern Ukraine and Donbass up to September 2014 were put under Ukraine v. Russia (V), Application No. 8019/16. A further inter-state application Ukraine v. Russia (IV) was lodged on 27 August 2015 in relation to events in Crimea and Eastern Ukraine from September 2014. As with the earlier application, the Court decided, on 25 November 2016, to split the case into two for ease of handling. Events in Crimea remained under the original application number, while those in Eastern Ukraine and Donbass were registered as Ukraine v. Russia (VI), Application No. 70856/16.

  74. 74.

    See ECtHR, Ukraine v. Russia (III), Application No. 49537/14, Decision of 1 September 2015. The case was struck off the list upon the request of the applicant Government owing to the fact that an individual application was meanwhile lodged by one of the individuals concerned in relation to the same subject matter.

  75. 75.

    See ECtHR, Ukraine v. Russia (VII), Application No. 55855/18, lodged on 29 November 2018.

  76. 76.

    For a broader analysis of interim measures in inter-state cases and their legal features, see Saccucci 2009, p. 129 et seq.

  77. 77.

    In relation to the concurrent proceedings before the International Court of Justice, see Georgia v. Russia (II), supra note 72, para 79.

  78. 78.

    See ICJ, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Order of 15 October 2008. In this respect, see also Palchetti 2009, p. 111 et seq.

  79. 79.

    See Case concerning the detention of three Ukrainian naval vessels (Ukraine v. Russian Federation), ITLOS Case No. 26, Provisional Measures, Order of 25 May 2019.

  80. 80.

    See infra Sect. 11.3.3.

  81. 81.

    See in particular the Practice direction on requests for interim measures issued by the President of the Court in accordance with Rule 32 of the Rules of Court on 5 March 2003 and later amended on 16 October 2009 and on 7 July 2011.

  82. 82.

    The importance of this issue in the field of expulsion and extradition cases was particularly emphasized by the Contracting States in the Follow-up Plan appended to the Izmir Declaration adopted on 27 April 2011 by the High Level Conference on the Future of the European Court of Human Rights. While rhetorically welcoming the improvements in the practice of interim measures already put in place by the Court, the Contracting States recalled that the Court should not operate as “an immigration Appeals Tribunal or a Court of fourth instance” and that “the treatment of requests for interim measures must take place in full conformity with the principle of subsidiarity”. Notably, they invited the Court, “when examining cases related to asylum and immigration, to assess and take full account of the effectiveness of domestic procedures and, where these procedures are seen to operate fairly and with respect for human rights, to avoid intervening except in the most exceptional circumstances” (para A.3.).

  83. 83.

    For a case in which the issue of the previous exhaustion arose in connection with the alleged non-compliance with the interim measures indicated by the Court to ensure immediate access to a hospital see ECtHR, Ahmet Tunc and others v. Turkey, Application No. 4133/16 and Application No. 31542/16, Decision of 29 January 2019, paras 141–145.

  84. 84.

    In general, on the preliminary assessment of admissibility requirements for the purpose of indicating interim measures, see amplius Saccucci 2006, p. 361 et seq.

  85. 85.

    As the Court put it in N.A. v. the United Kingdom, Application No. 25904/07, Judgment of 17 July 2008, para 90, “where the applicant seeks to prevent his removal from a Contracting State, a remedy will only be effective if it has suspensive effect” (Jabari v. Turkey (dec.), Application No. 40035/98, 28 October 1999). Conversely, where a remedy does have suspensive effect, the applicant will normally be required to exhaust that remedy (Bahaddar v. the Netherlands, judgment of 19 February 1998, Reports of Judgments and Decisions 1998–I, §§ 47 and 48). Judicial review, “where it is available and where the lodging of an application for judicial review will operate as a bar to removal, must be regarded as an effective remedy which in principle applicants will be required to exhaust before lodging an application with the Court or indeed requesting interim measures under Rule 39 of the Rules of Court to delay a removal” (emphasis added). The same principles have been reiterated in the subsequent case-law (see, for instance, ECtHR, H.S. and others v. Cyprus, Application No. 41753/10, Judgment of 21 July 2015, para 257).

  86. 86.

    See Practice direction on requests for interim measures, supra note 81, para IV.

  87. 87.

    See ECtHR, A.M.B. and others v. Spain, supra note 55, paras 8–11, where the Court granted interim measures while the request of suspension of the contested eviction was awaiting decision by the competent domestic court, given the risk of imminent enforcement.

  88. 88.

    See, for instance, ECtHR, Paposhvili v. Belgium, supra note 23, para 85, where the Court ordered the suspension of the enforcement of the order for the applicant to leave the country “pending the outcome of the proceedings before the Aliens Appeals Board”; B. v. Belgium, supra note 52, para 35, where the Court ordered the suspension of the enforcement of the decision to return the applicant’s daughter to the United States under the Hague Convention “jusqu’à la fin de la procedure devant la Court de cassation”.

  89. 89.

    See Practice direction on requests for interim measures, supra note 81, para III.

  90. 90.

    See ECtHR, A.M. c. France, Application No. 12148/18, Judgment of 29 April 2019, paras 65 and 68.

  91. 91.

    As the Court pointed out in Mamatkulov and Askarov, supra note 6, para 124, the notion of an effective remedy under Article 13 ECHR “requires a remedy capable of preventing the execution of measures that are contrary to the Convention and whose effects are potentially irreversible. Consequently, it is inconsistent with Article 13 for such measures to be executed before the national authorities have examined whether they are compatible with the Convention”.

  92. 92.

    See, for instance, ECtHR, Sabri Ali Al-Jazaeery v. Hungary, Application No. 45163/99, Decision of 4 May 1999, and Zefiri v. Italy, Application No. 55764/00, Decision of 18 April 2002.

  93. 93.

    This is particularly the case when a friendly settlement is reached. For the relevant practice in expulsion and extradition cases, see Saccucci 2006, pp. 168–175.

  94. 94.

    See Petrache and Tranca, supra note 55, para 30, where the Court pointed out that “dans des circonstances exceptionnelles comme celles de la présente affaire, où les requérantes ont été confrontées à un risque soudain de perte de leur domicile, en application d’un acte de l’administration adopté sans aucune forme de contrôle judiciaire préalable et en l’absence d’une alternative de logement (voir Connors c. Royaume-Uni, no 66746/01, §§ 94–95, 27 mai 2004), l’absence de caractère suspensif d’un remède interne donné pourrait exempter le requérant de l’obligation d’épuiser les voies de recours internes et s’analyser sur le terrain de l’article 13 de la Convention”.

  95. 95.

    See ibid., paras 27–29 and 32–33, where the Court also pointed out that—based on the information provided by the Italian Government—in the case of other residents of the same housing centre the administrative court had in fact ordered the stay of the eviction and that in the applicants’ case the municipality of Rome had in the meantime suspended the enforcement of the eviction and undertaken to find alternative accommodation.

  96. 96.

    See ibid., para 35.

  97. 97.

    See A.M.B. and others v. Spain, supra note 55, paras 8–12 and 21–30.

  98. 98.

    As pointed out above, in case of widespread human rights violations taking place in the context of an armed conflict, interim measures may also be granted by the Court in relation to particularized situations upon request of individual applicants (see supra note 40).

  99. 99.

    See ECtHR, N.A. v. the United Kingdom, supra note 85, paras 21–22.

  100. 100.

    As a result of this position, the Court continued to apply Rule 39 in each individual case in respect of 342 Tamil applicants (see ibid., para 22).

  101. 101.

    The judgment in N.A. v. the United Kingdom, supra note 85, was in fact delivered only 9 months after the adoption of the said invitation.

  102. 102.

    The Court ultimately found on the merits that, given the climate of general violence prevailing in Sri Lanka at the relevant time, the applicant’s expulsion would be in violation of Article 3 of the Convention (see ibid., paras 93–147).

  103. 103.

    For a comprehensive review of the relevant practice see the Factsheet—“Dublin cases” prepared by the Press Unit of the European Court of Human Rights, available at: https://www.echr.coe.int/Documents/FS_Dublin_ENG.pdf (last accessed on 7 April 2020). Even before the adoption of the leading judgment in M.S.S. v. Belgium and Greece, supra note 22, the Court has granted many interim measures to stop Dublin transfers to Greece (see ECRE Information Note on Interim Measures (Rule 39) to stop Dublin transfers, available at the following address: http://cmr.jur.ru.nl/cmr/docs/ecre.rule39.pdf (last accessed on 7 April 2020).

  104. 104.

    See ECtHR, Court’s priority policy, available at the following address: https://www.echr.coe.int/Documents/Priority_policy_ENG.pdf (last accessed on 7 April 2020).

  105. 105.

    It is no surprise that the need for an accelerated disposal of interim measures cases was particularly emphasized by the Contracting States in the Follow-up Plan appended to the Izmir Declaration, quoted above, para A.3., where they invited the Court to put in place a system “to trigger expedited consideration, on the basis of a precise and limited timeframe, of the merits of cases, or of a lead case, in which interim measures have been applied” (para A.3.).

  106. 106.

    See the examples referred to supra, Sect. 11.2.4, spec. notes 52–54.

  107. 107.

    Unfortunately, single-judge decisions of inadmissibility adopted pursuant to Article 27 ECHR are not published. For an unreported example of the practice referred to above see the ECtHR, Canessa v. the United Kingdom, Application No. 34016/16, concerning the applicant’s extradition to Peru.

  108. 108.

    See, for instance, ECtHR, Haji Hussein v. Sweden, Application No. 18452/11, Decision of 20 September 2011.

  109. 109.

    See ECtHR, M.S.S. v. Belgium and Greece, supra note 22, para 355.

  110. 110.

    The cases in which interim measures are indicated by a Chamber or by the Grand Chamber are very uncommon. Indeed, when a Rule 39 request is made before or together with the lodging of the principal application, the case is not yet allocated to a judicial formation and the constitution of a Chamber or even more of the Grand Chamber usually takes some time. In addition to post-merits interim measures that are indicated by the Chamber in its judgment (see supra Sect. 11.2.1), a collegial decision is sometimes adopted when the state is invited to submit its observations on the Rule 39 request or when the subject-matter of the application touches upon very sensitive issues which require a more in-depth assessment of the fumus boni juris (for an example, see Gard and others v. the United Kingdom, supra note 26, and Lambert and others v. France, supra note 26, para 4).

  111. 111.

    See, for instance, Jashi v. Georgia, supra note 38, para 20, in relation to the medical examination of the applicant’s mental health; Temchenko v. Ukraine, supra note 35, paras 40 and 46, in relation to the applicant’s transfer to a specialized institution; A.M.B. v. Spain, supra note 55, para 11, in relation to the suspension of an eviction order.

  112. 112.

    The previous jurisprudence of the Court had instead refused to consider interim measures as legally binding upon the Contracting States in the absence of a treaty provision explicitly granting the Court the power to grant interim relief and of a general principle of international law on provisional measures (see, in particular, ECtHR, Cruz Varas and others v. Sweden, Application No. 15576/89, Judgment of 20 March 1991, paras 90–105). For a review of the Court’s previous approach, see Cohen-Jonathan 1991, p. 205 et seq.; Saccucci 2004, spec. p. 98 et seq.

  113. 113.

    See ECtHR, Mamatlulov and Askarov v. Turkey, supra note 6, para 125.

  114. 114.

    See, for instance, Mostafa and others v. Turkey, supra note 25, paras 31–44, where the Court ultimately declared inadmissible as manifestly ill-founded the complaint under Article 3 ECHR, but it found a violation of Article 34 ECHR due to non-compliance with interim measures.

  115. 115.

    See, for instance, Aoulmi v. France, supra note 20, paras 101–112, where the Court ultimately found no violation of Article 3 ECHR, but it found a violation of Article 34 ECHR due to non-compliance with interim measures.

  116. 116.

    See Olaechea Cahuas v. Spain, supra note 25, paras 75–83. On this important development see, among others, Haeck et al. 2008, p. 41 et seq.; Harby 2010, p. 73 et seq.

  117. 117.

    See, for instance, D.B. v. Turkey, supra note 59, paras 65–67, and Shtukaturov v. Russia, supra note 60, paras 135–149, where the Court found a breach of Article 34 ECHR due to the authorities’ failure or delay in allowing the applicants to meet their lawyers notwithstanding this had not prevented them to effectively pursue their case before the Court and to provide all the necessary elements for the examination of their complaints; Mannai v. Italy, Application No. 9961/10, Judgment of 27 March 2012, paras 49–57, where the Court found a breach of Article 34 ECHR due to the authorities’ failure to stop the applicant’s expulsion to Tunisia notwithstanding “le requérant est actuellement libre de ses mouvement et a pu garder les contacts avec son avocat”.

  118. 118.

    See, for instance, Salakhov and Islayamova v. Ukraine, supra note 35, paras 216–224, concerning a three-day delay in the applicant’s transfer to an hospital for treatment, where the Court held “[w]hether or not the three-day delay in fact caused the damage which the interim measure was designed to prevent, is irrelevant for the Court’s assessment”.

  119. 119.

    See, for instance, ECtHR, Trabelsi v. Italy, Application No. 50163/08, Judgment of 13 April 2010, paras 67–70, where the Court noted that “ayant perdu tout contact avec son avocat, [le requérant] a été privé de la possibilité de susciter, dans le cadre de l’administration des preuves, certaines recherches propres à étayer ses allégations sur le terrain de la Convention. Les autorités tunisiennes ont par ailleurs confirmé que le représentant du requérant devant la Cour ne pourra pas être autorisé à visiter son client en prison”, and concluded that “les faits de la cause (…) montrent clairement qu’en raison de son expulsion vers la Tunisie, le requérant n’a pu développer tous les arguments pertinents pour sa défense et que l’arrêt de la Cour risque d’être privé de tout effet utile”.

  120. 120.

    See ECtHR, Hamidovic v. Italy, supra note 53, where the Court noted a regrettable delay in the transmission of the Rule 39 decision from the Italian Permanent Representation to the Ministry of Interior and from the latter to the other competent domestic authorities. In other cases, however, a comparable administrative delay was sufficient to conclude for the violation of Article 34 ECHR: see ECtHR, Kamaliyevy v. Russia, 52812/07, Judgment of 3 June 2010, para 77, where the applicant was put on a plane about 26 h after the notification of the interim measure to the respondent Government, a time-period which included one full working day, when all the relevant offices had been open and no difficulties in communication had been reported.

  121. 121.

    In this decision, the Court seems to have ultimately called into question the very existence of an alleged risk of irreparable damage ensuing from the applicant’s deportation, also in light of the Italian Government’s subsequent undertaking to allow the applicant to return to Italy.

  122. 122.

    See, for instance, ECtHR, Andrey Lavrov v. Russia, supra note 35, para 39.

  123. 123.

    See, for instance, ECtHR, Paladi v. Moldova, supra note 36, para 92, Amirov v. Russia, supra note 38, para 68, and Makharadze and Sikharulidze v. Georgia, supra note 35, para 102.

  124. 124.

    See ECtHR, Paladi v. Moldova, supra note 36, para 104.

  125. 125.

    In addition to Kamaliyevy v. Russia, supra note 120, see also ECtHR, Al-Sadoon and Mufdhi v. the United Kingdom, supra note 20, paras 160–166, where the Court concluded that the British authorities did not take all steps which could reasonably have been taken in order to prevent the applicants’ transfer to the Iraqi authorities and did not inform the Court, for example, of any attempt to explain the situation to the Iraqi authorities and to reach a temporary solution which would have safeguarded the applicants’ rights until the Court had completed its examination; Abdulkhakov v. Russia, Application No. 14743/11, Judgment of 2 October 2012, paras 222–231, concerning an interim measure suspending the applicant’s extradition to Uzbekistan, where the Court found a violation of Article 34 ECHR due to the applicant’s secret transfer to Tajikistan from where he would face removal to Uzbekistan; Mukhitdinov v. Russia, supra note 25, paras 91–96, concerning an interim measure suspending the applicant’s extradition to Uzbekistan, where the Court found a breach of Article 34 ECHR as a result of the applicant’s disappearance and of the failure of the Russian authorities to take appropriate protective measures; M.A. v. France, Application No. 9373/15, Judgment of 1 February 2018, paras 64–71, concerning an interim measure suspending the applicant’s deportation to Algeria, where the Court found a breach of Article 34 ECHR holding that “les autorités françaises ont créé des conditions dans lesquelles le requérant ne pouvait que très difficilement saisir la Cour d’une seconde demande de mesure provisoire”.

  126. 126.

    See ECtHR, Salakhov and Islayamova v. Ukraine, supra note 35, paras 216–224.

  127. 127.

    See, for instance, D.B. v. Turkey, supra note 59, paras 65–67, and Shtukaturov v. Russia, supra note 60, paras 135–149.

  128. 128.

    The lack of cooperation by the applicant or his lawyer with the domestic authorities in the execution of the interim measure may also give rise to an impossibility of performance precluding wrongfulness. See, for instance, ECtHR, Jashi v. Georgia, supra note 38, para 68, where no issue arose under Article 34 ECHR with regard to the delay in the enforcement of the interim measure due to the “applicant’s initial uncooperative conduct”.

  129. 129.

    The issue could be addressed for the first time in the inter-state case Georgia v. Russia (II), supra note 72, where the applicant Government also alleged that the Russian Federation continued to violate their obligations under Articles 2 and 3 ECHR despite the indication of interim measures (para 10).

  130. 130.

    For further analysis of the legal grounds and implications of such an approach, we refer to Saccucci 2009, spec. p. 147 et seq.

  131. 131.

    Rule 39 decisions are not published by the Court, but only reported in the annual numerical statistics. In some exceptional cases, however, the Court’s Registry may issue a press release (not binding on the Court) concerning the adoption (or the refusal) of interim measures which also contain a statement of the relevant facts and of the underlying legal issues. For a recent example of this practice, see Press Release issued by the Registry, ECHR 2040 (2019), 25 June 2019, concerning the Court’s decision not to indicate an interim measure requiring that the applicants be authorized to disembark in Italy from the ship Sea-Watch 3, which was prevented access to the port of Lampedusa after an operation of search and rescue at sea; Press Release issued by the Registry, ECHR 209 (2020), 8 July 2020, concerning an "out of the scope" refusal of interim measures for the purpose of freezing the enforcement of constitutional amendments terminating the office of the applicants as judges of the Constitutional Court.

  132. 132.

    Only exceptionally, the letter of the Registry informing the parties about the indication of provisional measures contains some additional information regarding the grounds on which the decision was taken. For instance, in K.R.S. v. the United Kingdom, supra note 22, this letter stated as follows: “Th[e] indication [of provisional measure] has been made in light of the UNHCR report dated 15 April 2008 (a copy of which is attached). The parties’ attention is drawn to para 26 of the report that states that ‘In view of EU Member States’ obligation to ensure access to fair and effective asylum procedures, including in cases subject to the Dublin Regulation, UNHCR advises Governments to refrain from returning asylum seekers to Greece under the Dublin Regulation until further notice. UNHCR recommends that Governments make use of Article 3(2) of the Dublin Regulation, allowing States to examine an asylum application lodged even if such examination is not its responsibility under the criteria as laid down in this Regulation”.

  133. 133.

    In this regard see, among others, Garry 2001, p. 399, and more recently Haeck et al. 2008, spec. pp. 57–59.

  134. 134.

    Notably, both the Inter-American Court of Human Rights and the African Court of Human Rights adopt fully reasoned decisions on the application of provisional measures containing a brief statement of the relevant facts and of the grounds underlying the granting of such measures. A practice of non-reasoned interim measures may instead be found before non-judicial bodies such as the UN Committees, the Inter-American Commission of Human Rights, and the African Commission on Human and Peoples’ Rights.

  135. 135.

    For instance, in the case Olaechea Cahuas v. Spain, supra note 25, a judge of the Audiencia Nacional refused to suspend the applicant’s extradition to Peru stressing the lack of any reasoning grounding the interim measure adopted by the Court.

  136. 136.

    See the Action Plan appended to the Brussels Declaration adopted on 27 March 2015 by the High Level Conference on the “Implementation of the European Convention on Human Rights, our shared responsibility”, para A.1 (d).

  137. 137.

    The full original texts of Rule 34 of the Rules of Court adopted in 1959, which then became Rule 36 of the Rules adopted in 1982 and was then transfused in Rule 39 of the Rules adopted in 1998 following the entry into force of Protocol No. 11—are reproduced in Saccucci 2006, pp. 28–37.

  138. 138.

    According to Article 46(2) ECHR, the Committee of Ministers is only entrusted with the supervision on the execution of the “final judgments” of the Court.

  139. 139.

    This brings the European system in line with other human rights supervisory mechanisms and international jurisdictions, where the control over the execution of interim measures is generally carried out by the same judicial body that has indicated them.

  140. 140.

    See supra note 40.

  141. 141.

    A similar situation has for instance arisen with regard to the Russian authorities’ repeated failure to comply with the Court’s interim measures in respect of applicants prosecuted in Uzbekistan and Tajikistan in connection with extremist or terrorist charges (see ECtHR, Kasymakhunov v. Russia, Application No. 29604/12, Judgment of 14 November 2013, paras 183–189, Savriddin Dzhurayev v. Russia, Application No. 71386/10, Judgment of 25 April 2013, paras 216–219, and Mukhitdinov v. Russia, supra note 25, paras 92–95, where the Court pointed out that in such circumstances “[it] will consider the previous judgments, the position of the Committee of Ministers, and the unprecedented and recurring nature of similar incidents as a decisive contextual factor in the present analysis”).

  142. 142.

    For instance, in supervising the execution of a number of judgments against Italy where the Court had found a violation of Article 34 ECHR due to the non-compliance with interim measures (namely, ECtHR, Ben Khemais v. Italy, Application No. 246/07, Judgment of 24 February 2009; Trabelsi v. Italy, supra note 119; Toumi v. Italy, Application No. 25716/09, Judgment of 5 April 2011; and Mannai v. Italy, Application No. 9961/10, Judgment of 27 March 2012), the Committee of Ministers stressed once again the fundamental importance of complying with interim measures and urged the Italian authorities “to take all necessary steps to adopt sufficient and effective measures to prevent similar violations in the future” (see Committee of Ministers, Interim Resolution CM/ResDH(2010)83 of 3 June 2010). The Committee of Ministers was later satisfied that the measures adopted by the Ministry of Justice were sufficient under Article 46(1) ECHR to ensure future compliance with interim measures (see Committee of Ministers, Final Resolution CM/ResDH(2015)204 of 17 November 2015).

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Saccucci, A. (2021). Interim Measures at the European Court of Human Rights: Current Practice and Future Challenges. In: Palombino, F.M., Virzo, R., Zarra, G. (eds) Provisional Measures Issued by International Courts and Tribunals. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-411-2_11

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