Changes follow criticism from UK in wake of 2022 interim measures preventing removal of asylum seekers to Rwanda
The European Court of Human Rights (ECtHR) yesterday announced that it has provisionally adopted amendments to Rule 39 of its Rules of Court on the procedure for interim measures.
A press release issued by the Court is reproduced below.
Interim measures are urgent orders issued by the ECtHR. As Professor Kanstantsin Dzehtsiarou noted in an article for The Conversation in April, the ECtHR typically uses interim measures to temporarily suspend a removal of an asylum seeker until the court can properly hear their case.
In June 2022, the Court granted interim measures preventing the removal of asylum seekers from the UK to Rwanda, which led to criticism from the British Government and a desire for reform of the interim measures procedure.
Lord Bellamy, the Parliamentary Under-Secretary of State for Justice, told the House of Lords in June of this year: "The Government recognise that interim measures can be an important mechanism for securing individuals' convention rights in exceptional circumstances. Nevertheless, the Government want the interim measures process to achieve a better balance between transparency, fairness and the proper administration of justice. Ministers, including the Prime Minister, have had constructive discussions with the Strasbourg court about reform. The court's regular internal review of procedures began to look at the interim measures procedures in November 2022."
Yesterday's press release by the Court announcing the new changes clarifies that interim measures are only to be applied in exceptional circumstances, in cases where there is an imminent risk of irreparable harm.
Legal commentator Joshua Rozenberg notes that the wording of the changes to Rule 39 suggests a much tougher approach from the Court to considering requests for interim measures.
Paragraph 1 of Rule 39 of the ECtHR's Rules of Court currently reads:
"1. The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may, at the request of a party or of any other person concerned, or of their own motion, indicate to the parties any interim measure which they consider should be adopted in the interests of the parties or of the proper conduct of the proceedings."
Under the new changes, it will be amended to say:
"1. The Court may, in exceptional circumstances, whether at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted. Such measures, applicable in cases of imminent risk of irreparable harm to a Convention right, which, on account of its nature, would not be susceptible to reparation, restoration or adequate compensation, may be adopted where necessary in the interests of the parties or the proper conduct of the proceedings. The Court's power to decide on requests for interim measures shall be exercised by duty judges appointed pursuant to paragraph 4 of this Rule or, where appropriate, the President of the Section, the Chamber, the President of the Grand Chamber, the Grand Chamber or the President of the Court."
In addition, the new changes will mean that judges granting interim measures will no longer be able to remain anonymous.
According to Joshua Rozenberg, the changes are not expected to take effect until 2024.
The ECtHR's press release follows below:
issued by the Registrar of the Court
ECHR 308 (2023)
Changes to the procedure for interim measures (Rule 39 of the Rules of Court)
On 26 June and 6 November 2023, in the context of wider procedural reforms, the Plenary Court has adopted several decisions clarifying and codifying its existing practice relating to interim measures.
Under the Convention system, interim measures (Rule 39 of the Rules of Court) are applied in exceptional circumstances, in cases where there is an imminent risk of irreparable harm. They play a vital role in avoiding irreversible situations that would prevent national courts and/or the Court from properly examining Convention complaints and, where appropriate, securing to the applicant the practical and effective benefit of the Convention rights asserted. The Court may indicate interim measures until further notice, or for a limited period of time, depending on the circumstances of the case. Parties to the proceedings may request the Court to reconsider its decision to indicate interim measures or may lodge a fresh request where the initial request has not been granted if the circumstances change.
A failure by a respondent State to comply with interim measures undermines the effectiveness of the right of individual application guaranteed by Article 34 of the European Convention on Human Rights and the State's formal undertaking in Article 1 to protect the rights and freedoms set forth in the Convention. When issuing interim measures, the Court exercises its jurisdiction to ensure observance of the engagements undertaken by the High Contracting Parties in the Convention and Protocols thereto, in accordance with Article 19, which jurisdiction extends to all matters concerning their interpretation and application, as provided in Article 32.
Following the aforementioned decisions of the Plenary Court, certain proposed amendments to Rule 39 have been submitted today to Contracting Parties for written comments, in accordance with Rule 116 of the Rules Court. Similar consultations will be launched with a number of organisations with experience in representing applicants before the Court as well as relevant Bar associations.
An updated Practice Direction accompanying the amended Rule 39 will be prepared and published following the consultation process. Practice directions are issued by the President of the Court to provide clarification on aspects of the Court's procedure. An updated Practice Direction may seek to provide further details on the decision-making process when requests for interim measures are lodged.
The Plenary Court has also decided the following:
• Disclosure of the identity of the judges who render the decisions on interim measure requests;
• Maintaining the practice of providing reasons for Rule 39 decisions on an ad hoc basis and issuing press statements where the circumstances of the cases so require;
• Issuing formal judicial decisions to be sent to the parties;
• Maintaining the established practice of adjourning the examination of the requests for interim measures and requesting the parties to submit information in those circumstances where the situation is not extremely urgent and where the information that the applicants could submit to the Court was not sufficient to enable the Court to examine the request.
The date on which the above changes to the procedure will be implemented will be communicated in due course.
For further information, see the factsheet on interim measures.
This press release is a document produced by the Registry. It does not bind the Court. Decisions, judgments and further information about the Court can be found on www.echr.coe.int. To receive the Court's press releases, please subscribe here: www.echr.coe.int/RSS/en or follow us on Twitter @ECHR_CEDH.
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