Rule 39: An Effective Mechanism for the Protection and Restoration of Human Rights

Sometimes, it is not always possible to effectively protect a client’s rights at the national level, especially in cases where time is of the essence—measured in hours or days—and complaints and petitions to law enforcement agencies, other government bodies, and investigating judges are either not considered or are dealt with only as a formality.

Therefore, when national human rights protection mechanisms fail, the mechanism provided for in Rule 39 of the Rules of Procedure of the European Court of Human Rights—directing the parties to the case to take certain interim measures—can be useful:

“The Chamber or, where appropriate, its President may—at the request of a party or any other interested person, or on its own initiative—direct the parties as to what interim measure, in its opinion, should be taken in the interests of the parties or in the interests of the proper conduct of the proceedings.”

The purpose of interim measures is to safeguard the parties’ asserted rights in cases where there is a risk of serious and irreparable harm and to ensure the effective exercise of their right to an individual application, as guaranteed by Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

The ECHR notes that interim measures play an important role in preventing instances of irreparable harm that could hinder the European Court’s proper consideration of the case, as well as, where necessary, in ensuring the effective and accessible exercise by the applicant of the rights provided for in the Convention. Accordingly, under the circumstances, the respondent State’s failure to comply with the interim measures would undermine the effectiveness of the right to lodge an individual complaint, guaranteed by Article 34 of the Convention, and the State’s formal obligation under Article 1 of the Convention to protect the rights and freedoms set forth therein.

The ECHR’s order for interim measures allows the Court not only to conduct an effective examination of the application but also to ensure that the protection afforded to the applicant by the Convention is effective. The grounds on which Rule 39 may be applied are not set forth in the Rules of the Court but are determined by the Court through its case law.

Although neither the Convention nor the Court’s Rules of Procedure contains specific provisions regarding the areas in which Rule 39 applies, requests for its application generally concern the right to life (Article 2), the right not to be subjected to torture or inhuman treatment (Article 3), the right to respect for private and family life (Article 8), and, very rarely, other rights guaranteed by the Convention. The vast majority of cases in which interim measures have been ordered concern deportation and extradition proceedings.

To ensure a prompt response from the Court, applications for interim measures should be sent to the ECHR via fax at +33 (0)3 88 41 39 00, followed by the submission of the application and its attachments to Strasbourg by regular mail.

When sending a request to the ECHR by fax, please take into account the Court’s working hours (8:00 a.m.–4:00 p.m.), the time difference, as well as holidays and weekends.

Unlike the form used to file an application with the ECHR, there is no specific form for preparing a request for interim measures. A request for interim measures may be drafted in any form, specifying the articles of the Convention that, in the applicant’s opinion, will be violated if such interim measures are not taken, and providing a justification that the applicant will face a real risk of serious and imminent harm if the relevant interim measure is not applied, and providing relevant evidence.

In the case of a request for medical measures, such evidence includes relevant medical documentation regarding the person’s health condition and doctors’ conclusions regarding the need for specialized medical treatment or treatment at specialized medical facilities.

With regard to requests to suspend deportation or extradition—reports from international human rights organizations on the state of human rights in the relevant country, indicating a threat of death or cruel treatment of the applicant in the country of extradition.

In addition, court decisions and correspondence with the relevant authorities must be attached to the motion for interim measures as evidence that the applicant has exhausted all effective domestic remedies. Thus, when filing a motion for interim measures in the form of an order directing the government to provide adequate medical care or to transfer the person to a specialized medical facility, such utilized domestic remedies may include rulings by an investigating judge issued pursuant to Article 206 of the Criminal Procedure Code of Ukraine, and/or correspondence between the applicant or their attorneys and the administration of the correctional facility.

With regard to extradition cases— decisions by immigration authorities to deny refugee status or status as a person in need of subsidiary protection, decisions by investigating judges to order pretrial detention pending extradition, decisions by the competent authority to extradite a person, and the results of appeals against such decisions, which indicate that the actual transfer of the person to another country is imminent and cannot be prevented at the national level.

It should be noted that a request for interim measures may be filed either together with the main application alleging violations or separately. If a separate application for interim measures is filed, the Court will specify in its letter the date by which such an application must be submitted. If these requirements are not met, the ECHR will not consider the application. Furthermore, if the ECHR grants the request and instructs the Government of the Contracting State to take interim measures, the Court must be informed of any changes regarding the applicant’s situation and developments in the proceedings at the national level; otherwise, the Court will consider that the applicant no longer maintains the application and will strike it from the Court’s register of cases.

If the request for interim measures is submitted not by the applicant but by his or her representative, the request must be accompanied by a power of attorney signed by the applicant; the form for this is available on the Court’s official website. If the applicant is unable to sign the power of attorney (in cases of abduction, disappearance, unknown whereabouts, serious illness of the applicant, etc.), the application may be submitted to the ECHR by a representative; but in such a case, clear and well-founded reasons must be provided as to why the applicant is unable to sign the power of attorney.

Typically, upon receipt of a well-founded request, the ECHR decides to issue instructions to the respondent State to take appropriate action (or to refrain from taking such action) within the next few days, but there are instances when the ECHR contacts the applicant or the government of the respondent State to request additional information.

However, in practice, the ECHR rarely resorts to interim measures, and only does so when it concludes that, if such measures are not taken, the applicant will face a real risk of suffering serious and imminent harm.

According to statistics published on the ECHR’s website, in 2017 the European Court issued instructions to the States Parties to the Convention for the Protection of Human Rights and Fundamental Freedoms in only 117 cases, of which 5 involved notifying the Government of Ukraine of the need to take such interim measures.

As for the ECHR’s refusals to grant interim measures, statistics indicate 533 such cases in 2017.

Cases in which the ECHR granted interim measures in cases concerning the expulsion or extradition of a person

The largest category of cases (about 70%) in which the ECHR has ordered interim measures concerns such requests by applicants in cases of expulsion or extradition. In such cases, applicants typically request interim measures in the form of a prohibition on their removal or extradition from the territory of the respondent State, citing the risk of death, the risk of ill-treatment, and, less frequently, the risk of separation from family or the risk of a manifest denial of justice:

—In the case of A.L. (X.W.) v. Russia, the applicant argued that if he were forcibly returned to China, he would face the risk of being sentenced to death and having that sentence carried out, which would constitute a violation of Article 2 of the Convention. The ECHR, acting under Rule 39, instructed the Government of the Russian Federation that the applicant must not be deported or otherwise forcibly returned to China or any other country while the case was pending before the Court.

—In the case of L.M. and Others v. Russia, the applicants argued that their deportation to Syria would result in a violation of Articles 2 and 3 of the Convention, given the fierce fighting that has been taking place in Aleppo and Damascus since 2012, which has affected civilians. Consequently, the ECHR decided to direct the Government of the Russian Federation, pursuant to Rule 39, that the applicants must not be deported to Syria while the proceedings before the Court are ongoing.

- In the case of A. v. Switzerland, the ECHR instructed the Swiss Government not to deport the applicant to Iran for the duration of the proceedings before the Court, taking into account the applicant’s request, which was based on the existence of a real risk that he would be subjected to ill-treatment or the death penalty in Iran, given his conversion from Islam to Christianity in Switzerland.

- In the case of Bajsultanov v. Austria, the applicant argued that the revocation of his refugee status in Austria and his planned deportation to the Russian Federation would result in a real risk of ill-treatment within the meaning of Article 3 and would separate him from his wife and two children, who hold independent refugee status in Austria. The ECHR decided to apply Rule 39, instructing the Austrian Government that, in the interests of the parties and the proper conduct of the proceedings before the Court, it was desirable not to deport the applicant until further notice from the Court.

—In the case of Jabari v. Turkey, the applicant argued that if she were deported to Iran, Turkey would violate Article 3 of the Convention, namely, the right not to be subjected to torture for adultery, an act recognized as a crime under Islamic law and punishable by stoning to death or flogging. The ECHR decided, pursuant to Rule 39, to instruct the Turkish Government not to deport the applicant to Iran until further notice.

—In the case of Lunguli v. Sweden, the ECHR decided, pursuant to Rule 39, to instruct the Swedish Government, in the interests of the parties and the proper conduct of proceedings before the Court, not to deport the applicant to Tanzania, given the applicant’s complaint regarding the risk of being subjected to female genital mutilation in Tanzania, which must be regarded as torture and inhuman and degrading treatment, constituting a violation of Article 3 of the Convention.

- In the case of Nnyanzi v. United Kingdom, the applicant, the daughter of a former Ugandan political figure who was persecuted by the authorities, argued that her removal from the United Kingdom to Uganda would constitute a violation of her rights guaranteed by Articles 3, 5, and 8 of the Convention. The ECHR declared the applicant’s complaint admissible and ordered an interim measure requiring the Government of the United Kingdom to ensure that the applicant could remain in the country until the Court had concluded its examination of her case.

- In the case of Nunez v. Norway, the ECHR instructed the Norwegian government that the applicant, who had complained of the risk of and significant harm resulting from separation from her two minor children in the event of her deportation from Norway, should not be deported to the Dominican Republic until the Court had issued its ruling.

- In the case of Othman (Abu Qatada) v. The United Kingdom, the applicant argued that, if extradited to Jordan, in addition to the risk of ill-treatment in Jordan, there was also a real risk of a manifest denial of justice, contrary to Article 6 of the Convention, given that the court in the applicant’s case had admitted as evidence witness statements obtained through torture (blows to the soles of the feet). However, when examining the merits of the applicant’s complaint, the ECHR found no violations of Articles 3 and 5 of the Convention, but ruled that the applicant’s deportation to Jordan would constitute a violation of Article 6 of the Convention due to the real risk that evidence obtained through the torture of third parties would be admitted during the applicant’s retrial.

Cases in which the ECHR has ordered interim measures

in categories of cases not related to expulsion or extradition

In addition to cases where it instructs the governments of respondent States to take interim measures in cases concerning expulsion and extradition, the ECHR also orders such measures in cases where there is a threat to the applicant’s life (a risk of a violation of the right to life guaranteed by Article 2 of the Convention) or a risk of ill-treatment, including as a result of a failure to provide necessary medical care (a violation of the right guaranteed by Article 3 of the Convention):

- In the case of Lambert and Others v. France, the applicant, who had suffered severe injuries in a car accident, had been receiving artificial nutrition and hydration in a hospital for five years. A doctor decided to discontinue life-sustaining treatment, a decision subsequently upheld by the Council of State. The applicants (some relatives of Vincent Lambert) argued that discontinuing Vincent Lambert’s artificial nutrition and hydration would violate the State’s obligations under Article 2 of the Convention. At their request, the ECHR, pursuant to Rule 39, decided to suspend the implementation of the State Council’s decision for the duration of the proceedings before the ECHR.

- In the case of Aleksanyan v. Russia, the ECHR, pursuant to Rule 39 and in light of the applicant’s serious medical condition, urged the Russian Government to immediately provide the applicant with inpatient treatment at a specialized hospital. The Court also recommended that the Government establish a medical commission comprising representatives of the applicant and the authorities, which would be able to diagnose the applicant’s illnesses and provide advice on their further treatment.

- In the case of Makharadze and Sikharulidze v. Georgia, the ECHR instructed the Georgian Government to transfer the first applicant—who was serving a prison sentence and suffering from tuberculosis and other serious illnesses—to a specialized medical facility capable of providing appropriate anti-tuberculosis treatment.

Requests for interim measures concerning the risk of a gross denial of justice (a violation of the right to a fair trial guaranteed by Article 6 of the Convention) and the risk of a violation of the right to respect for private and family life (guaranteed by Article 8 of the Convention) are granted much less frequently:

—The case of Shtukaturov v. Russia serves as an example of the ECHR’s application of interim measures, specifically in response to a complaint alleging a violation of Article 6 of the Convention. The applicant, who had been declared legally incompetent by a court decision without his knowledge and placed in a psychiatric hospital by his guardian, was denied access to a lawyer by the hospital administration to prepare documents for appealing that decision. Consequently, applying Rule 39, the ECHR instructed the Government of the Russian Federation to grant the applicant and his lawyer the necessary time and opportunity to meet and prepare the case for hearing.

- In the case of X v. Croatia, the applicant, who had been deprived of legal capacity due to paranoid schizophrenia, complained of a violation of Article 8 of the Convention regarding the removal of her child and the initiation of adoption proceedings, which she was unable to challenge in violation of Article 6 of the Convention. Given that the applicant, as a person deprived of legal capacity, was unable under national law to choose her own legal representative, the ECHR, pursuant to Rule 39, decided to instruct the Government of Croatia that a lawyer must be appointed to act as her legal representative to represent her interests before the Court.

- In the case of Knecht v. Romania, the applicant alleged, among other things, a violation of her private and family life in connection with her inability to have a child through IVF using embryos she had previously deposited at a private clinic, from which, due to criminal proceedings against the clinic, the embryos had been seized by state authorities and handed over to the Institute of Forensic Medicine, which was not authorized to function as a genetic bank. The ECHR decided to issue an instruction to the Government, pursuant to Rule 39, regarding the need for the Romanian Government to take appropriate measures to ensure the preservation of the embryos until the Court completes its examination of the case.

— The ECHR issued similar instructions regarding the preservation of embryos to the Government of the United Kingdom in the case of  Evans v. The United Kingdom. In that case, the applicant’s former partner, following their separation, withdrew his consent to the storage of embryos created using their shared genetic material while they were a couple and insisted on their destruction. The national courts agreed with him. The applicant complained that the relevant provisions of the law, which required her former partner’s consent for embryos created using their shared genetic material to be implanted in her uterus, violated her rights under Articles 8 and 14 of the Convention, as well as the embryos’ right to life under Article 2 of the Convention. Consequently, in the interests of the proper conduct of the proceedings, the ECHR instructed the Government of the United Kingdom to take appropriate measures to ensure that the embryos, the destruction of which was the subject of the applicant’s complaints, were preserved until the Court had concluded its examination of the case.

- As an example of interim measures taken in response to a complaint alleging a violation of Article 8 of the Convention, one may also cite the case of Soares De Melo v. Portugal, in which the ECHR requested the Government of Portugal to implement interim measures that would allow the applicant to gain access to her children, who had been removed by court order and placed in adoption agencies, and to reestablish contact between them for the duration of the proceedings.

Cases in Which the ECHR Has Ordered Interim Measures Concerning Applicants

In addition to cases where the ECHR issues instructions to the governments of respondent states, there are instances in the Court’s practice where it orders interim measures concerning the applicants themselves:

- For example, in the case of Rodić and 3 Others v. Bosnia and Herzegovina, the applicants, who had been convicted of war crimes and were serving their sentences in prison, were repeatedly subjected to ethnically motivated attacks by other inmates. Consequently, the applicants went on a hunger strike to draw public attention to their situation. The ECHR decided, pursuant to Rule 39, to ask the applicants to end their hunger strike.

—According to ECHR Secretariat Press Release No. 055 (2015) dated February 13, 2015, in the case of Savchenko v. Russia, the ECHR received a request from Nadiya Savchenko for interim measures under Rule 39, seeking an order directing the Russian authorities to release her immediately from custody, given the risk of being subjected to ill-treatment in the form of force-feeding. However, the ECHR decided not to apply the aforementioned interim measures, but urged Nadiya Savchenko to end her hunger strike.

Cases involving the application of Rule 39 in inter-state cases

As is well known, the ECHR considers not only individual applications but also applications by any State Party to the Convention alleging violations of the Convention’s provisions committed by another State Party (inter-state cases). In such cases, the States Parties also actively utilize the mechanism provided for in Rule 39 of the ECHR Rules of Procedure.

According to information set forth in the ECHR’s December 2017 information note “Armed Conflicts,” five inter-state applications filed by Ukraine against the Russian Federation are currently pending before the ECHR, in which Rule 39 has also been applied by the ECHR. Currently, based on the aforementioned information sheet, as well as ECHR press releases No. 073 (2014), No. 286 (2015), and other materials posted on the Court’s website, the following cases are known:

- In the case of Ukraine v. Russia (I) (No. 20958/14), following Ukraine’s application filed in March 2014 after the events in Crimea and the subsequent escalation of the conflict in southeastern Ukraine, the ECHR decided to apply Rule 39 and called on both parties to refrain from any measures, in particular, military actions that could result in violations of the civilian population’s Convention rights and that endanger their lives and health, and to fulfill their obligations under the Convention, in particular with regard to Articles 2 (right to life) and 3 (prohibition of inhuman or degrading treatment).

- In the case of Ukraine v. Russia (II) (No. 43800/14), based on Ukraine’s application filed in June 2014 concerning the abduction of three groups of children and adults in eastern Ukraine and their subsequent transfer to Russia, Ukraine requested that the ECHR apply Rule 39 and adopt interim measures against the Russian Federation regarding sixteen children and two teachers who had been taken from Ukraine to Russia. On the same day, the ECHR decided to impose an interim measure under Rule 39, requesting that the Russian Federation respect the rights of the aforementioned individuals in accordance with the Convention and immediately return them to Ukraine. At the same time, the ECHR requested information from the Russian Federation regarding the circumstances of these individuals’ removal and their stay on the territory of the Russian Federation, as well as how this interim measure was being implemented. The interim measure was lifted after it was confirmed that the individuals in question had returned to Ukraine.

—in the case of Ukraine v. Russia (III) (No. 49537/14), based on an application filed by Ukraine in July 2014 on behalf of Khaiser Dzhemilev, the son of Mustafa Dzhemilev, a member of the Verkhovna Rada of Ukraine, who had been placed in custody at the Simferopol Pretrial Detention Center, Ukraine requested the application of Rule 39 and the adoption of interim measures against the Russian Federation in connection with the detention of Khaiser Dzhemilev in Simferopol. In addition, an individual application by H. Dzhemilev (No. 49522/14) was filed against Ukraine and the Russian Federation regarding the same subject matter, requesting the imposition of an interim measure. On July 10, 2014, the ECHR applied Rule 39 and noted that the governments of Ukraine and the Russian Federation must ensure that Khaiser Dzhemilev’s rights under the Convention are respected, including, in particular, respect for his personal safety and his right to legal assistance. At the same time, the President of the ECHR Section issued, pursuant to Rule 39, an interim measure with the same content in the context of application No. 49522/14, filed by H. Dzhemilev.

As for examples of the application of Rule 39 in other inter-State cases, one may recall, in particular, the case of Georgia v. Russia (II). This application was filed by Georgia in the context of the armed conflict that took place between Georgia and the Russian Federation in August 2008. The Government of Georgia asserted that during the attacks by Russian and/or separatist forces under their control, hundreds of civilians were injured, killed, detained, or went missing, the property and homes of civilians were destroyed, and more than 300,000 people were forced to flee Abkhazia and South Ossetia, and therefore Georgia alleged that the Russian Federation had breached its obligations under Articles 2, 3, 5, 8, and 13 of the Convention, Articles 1 and 2 of Protocol No. 1 to the Convention, and Article 2 of Protocol No. 4 to the Convention. In this case, the ECHR applied Rule 39, calling on both states to fulfill their obligations under the Convention, in particular with regard to Articles 2 and 3. These interim measures were extended several times and remained in force until the ECHR held a hearing and issued a decision in September 2011 declaring the application admissible.

Cases and Consequences of Non-Compliance with Interim Measures

The governments of the respondent states do not always fully comply with and implement the ECHR’s directives. As evident from the ECHR’s case law, despite the interim measures ordered, there are instances where states fail to provide applicants with adequate medical care, fail to transfer them to specialized medical facilities, and allow for the deportation or extradition of individuals to countries where there is a risk of violation of their rights guaranteed by the Convention, among other things.

In cases where the respondent State fails to comply with interim measures, the ECHR finds a violation of the right guaranteed by Article 34 of the Convention—the effective exercise of the right to an individual application.

For example, in the case of Mamatkulov and Askarov v. Turkey, the applicants were extradited to Uzbekistan despite the ECHR’s imposition of an interim measure under Rule 39.

The ECHR noted that the applicants’ extradition to Uzbekistan prevented their complaints from being examined properly, in accordance with established case law in similar cases, and, ultimately, from protecting them, if necessary, against potential violations of the Convention. The consequence of this impediment is that the applicants were not allowed to effectively exercise their right to lodge an individual application, guaranteed by Article 34 of the Convention, which was rendered meaningless as a result of the extradition. Consequently, the ECHR concluded that by failing to comply with the interim measures ordered under Rule 39, Turkey had failed to fulfill its obligation under Article 34 of the Convention in this case.

In the case of Aleksanyan v. Russia, the ECHR ordered the Government of the Russian Federation to implement two interim measures: to transfer the applicant to a specialized medical facility for treatment of AIDS and related illnesses, and to establish a medical commission to diagnose the applicant’s health problems and make recommendations regarding treatment. However, instead of a specialized medical facility, the applicant was transferred to a general hospital, and the relevant medical commission was never formed. Consequently, the ECHR noted that the failure to comply with the first interim measure was entirely due to the authorities’ unwillingness to cooperate with the Court. Regarding the second interim measure, the ECHR noted that the Government of the Russian Federation had also failed to comply with it, given its failure to ensure that the applicant’s health condition was examined by a joint medical commission that would include doctors of his choice. At the same time, the ECHR noted that the Government of the Russian Federation had not provided adequate justification for its refusal to cooperate with the ECHR in establishing more detailed information about the applicant’s state of health and the medical resources available in prison for appropriate treatment. The ECHR noted that such a position on the part of the authorities, under these circumstances, constituted an attempt to prevent the applicant from exercising his right to file an individual application. In its decision on the applicant’s application, the ECHR found a violation of Article 34 of the Convention due to the failure to comply with the interim measures and ordered the applicant’s release from custody.

In the case of Nizomkhon Dzhurayev v. Russia, the ECHR ordered interim measures directing the Government of the Russian Federation not to extradite the applicant to Tajikistan pending the Court’s consideration of his application. However, according to the applicant’s testimony, after his release from a Russian pretrial detention center, he was abducted by Russian law enforcement officials and forcibly transferred to the Republic of Tajikistan. The ECHR noted that the Russian authorities had failed to conduct an effective investigation into the applicant’s disappearance and unlawful transfer from Moscow to Tajikistan, and consequently, the ECHR concluded that the Russian Federation had violated its positive obligations to protect the applicant from facing a real and immediate risk of torture and ill-treatment in Tajikistan, as well as to conduct an effective domestic investigation into his unlawful and forced transfer to Tajikistan. In the Court’s view, the Russian Federation’s compliance with these obligations was of particular importance in this case, as it would have prevented this egregious situation, which demonstrated a pattern of deliberately circumventing the extradition procedure and the interim measures ordered by the Court. The ECHR noted that the recurrence of such incidents in the respondent State constitutes a gross disregard for the principle of the rule of law and has the most serious consequences for Russia’s domestic legislation, the effectiveness of the Convention system, and the Court’s authority. Following its examination of the application, the ECHR ruled, in particular, a violation of Article 34 of the Convention due to non-compliance with the interim measures, and a violation of Article 38 of the Convention due to the failure of the Government of the Russian Federation to cooperate in providing information regarding the applicant’s disappearance and his forcible return to Tajikistan, as well as information regarding the investigation into these facts.

In the case of Shtukaturov v. Russia, the ECHR ordered interim measures requiring the Government of the Russian Federation to allow the applicant to meet with his attorney on hospital premises and under the supervision of hospital staff in order to present his case before the Court; however, the Russian authorities refused to comply with this order, as they did not consider it their obligation. The ECHR noted that it was struck by the national courts’ interpretation that the interim measure applied by the Court was not binding, as well as their conclusion that his lawyer was not a legal representative. The ECHR noted that such an interpretation contradicts the Convention, and as for the lawyer’s status—it is not for the national courts to determine whether he is the applicant’s representative for the purposes of proceedings before the ECHR; it is sufficient that the Court regard him as such. The ECHR observed that the Russian legal system may lack a legal mechanism for implementing interim measures under Rule 39; however, this does not relieve the respondent State of its obligations under Article 34 of the Convention. Consequently, given the obstacles created to the applicant’s access to the Court, the ECHR found that the Russian Federation had violated its obligations under Article 34 of the Convention.

It should be noted that although there are cases where respondent States have “ignored” interim measures, the majority of States Parties to the Convention comply with them, despite the absence of “direct sanctions” against Contracting States for non-compliance.

The reasons that may motivate States to comply with interim measures lie in both the political and economic spheres, since a finding by the European Court of Human Rights that Article 34 of the Convention has been violated due to a respondent State’s failure to comply with interim measures also leads, in practice, to the award of a higher amount of compensation for non-pecuniary damage to the applicants, the payment of which places a heavy burden on the State’s budget during the subsequent enforcement of the judgment.