Interim measures — judicial orders aimed at preserving the status quo pending the resolution of a dispute — represent a critical, albeit exceptional, instrument within the framework of international litigation. Recently, the European Court of Human Rights (ECtHR) amended its Rules of Court concerning the issuance of such measures, specifically revising Rule 39. The updated rule is now in effect, accompanied by a revised Practice Direction and a factsheet, the latter of which, while informative, lacks legal authority.
What is Interim Measure?
Interim measures, also known as Rule 39 orders, are urgent directives issued by the European Court of Human Rights (ECtHR) in situations where there is an imminent risk of irreparable harm to an individual’s rights under the European Convention on Human Rights. These measures are designed to prevent irreversible damage while a case is being considered by the Court and are legally binding on the state concerned.
The ECtHR may issue interim measures in exceptional circumstances, often involving threats to life or risks of torture or inhuman or degrading treatment. For instance, interim measures were instrumental in securing the evacuation of Russian opposition leader Alexei Navalny to Germany in 2020 after he was poisoned. Typically, these measures are requested to halt actions such as expulsions or extradition that could lead to significant harm.
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Interim measures can be applied for a fixed period or until further notice, depending on the specifics of the case. They do not determine the outcome of the case but ensure that the rights of the parties are protected during the legal proceedings. The decision to grant interim measures is not based on the likelihood of success in the case but rather on the necessity to prevent imminent harm. The ECtHR can lift these measures at any time, particularly if the case is discontinued. While they are occasionally applied in cases concerning the right to respect for private and family life, interim measures are primarily used in cases involving threats to life or risks of torture and inhuman treatment.
If you’re facing a situation where interim measures may be necessary to prevent imminent harm, our human rights attorney can provide you with the guidance and support you need. We can offer expert advice on how to proceed with a request for interim measures, and our human rights lawyers will ensure that your rights are protected during ongoing legal proceedings.
Textual Revisions and Their Implications
The core modification centres on Rule 39(1). The prior text provided:
“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.“
This has been supplanted by the new text of Rule 39(1):
“The Court may, in exceptional circumstances, whether at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted. Such measures, applicable in cases of imminent risk of irreparable harm to a Convention right, which, on account of its nature, would not be susceptible to reparation, restoration or adequate compensation, may be adopted where necessary in the interests of the parties or the proper conduct of the proceedings.” (emphasis added).
The revisions are conspicuous — particularly the inclusion of “exceptional circumstances” and the introduction of a threshold based on “imminent risk of irreparable harm to a Convention right.” These textual changes might initially appear to erect a new barrier to the invocation of interim measures. However, in practice, they merely codify the standards that the Court has long applied.
Form Vs Substance
The amendment’s substantive impact lies in its codification of a threshold already articulated in the Court’s case law. Nearly two decades ago, in Mamatkulov and Askarov v. Turkey (2005) 41 EHRR 25, the Court observed at §104 (emphasis added):
“Interim measures have been indicated only in limited spheres. Although it does receive a number of requests for interim measures, in practice the Court applies Rule 39 only if there is an imminent risk of irreparable damage. While there is no specific provision in the Convention concerning the domains in which Rule 39 will apply, requests for its application usually concern the right to life (Article 2), the right not to be subjected to torture or inhuman treatment (Article 3) and, exceptionally, the right to respect for private and family life (Article 8) or other rights guaranteed by the Convention. The vast majority of cases in which interim measures have been indicated concern deportation and extradition proceedings.“
The language now enshrined in the revised Rule 39 mirrors this jurisprudential standard. While the new Rule introduces the phrase “exceptional circumstances,” this is arguably redundant in light of the stringent criteria of “imminent” and “irreparable.” Moreover, as delineated below, the issuance of interim measures has always been the exception, even when requested. The revised Rule also refers to the necessity of such measures, which likely has minimal impact on the Court’s established practices.
Mamatkulov and Askarov was also the first case in which the ECtHR determined that non-compliance with interim measures constitutes a violation of the Convention itself. It is this decision, rather than any specific provision of the Convention, that imbues such measures with binding force under international law. The Court reaffirmed this principle in Paladi v. Moldova (app. no. 29806/05). Despite occasional critiques as an overreach of judicial authority, this principle has endured for nearly twenty years without State repudiation.
Practical Consequences
The recent amendment to Rule 39 is unlikely to significantly change how requests for interim measures are adjudicated. While the new rule appears to limit judges’ discretion to indicate measures without an imminent risk of irreparable harm, this addresses a non-existent problem, as international judges rarely act arbitrarily. States can still request the Court to reconsider measures in exceptional cases. From 2021 to 2023, only 36% of interim measure requests were granted, with a significant portion involving Belgium and its treatment of asylum seekers. In the UK, only 6% of requests were successful, and ongoing debates, such as those concerning the “Rwanda” asylum scheme, are unlikely to be impacted by the changes. The core scenario for indicating interim measures remains the forced removal of individuals in violation of Article 2 or 3 rights. The amendment emphasizes the need to exhaust domestic remedies with suspensive effect before seeking the Court’s intervention. Overall, the amendment clarifies the Court’s approach without altering it, enhancing clarity and transparency in line with existing case law.
The Future of Rule 39
The recent amendments to Rule 39 have codified and thereby clarified the threshold for the issuance of interim measures. While the threshold itself may remain unchanged, this will ultimately be demonstrated by the Court’s treatment of future applications. For those applicants, adherence to the new Rule and Practice Direction will be crucial to the likelihood of success.
For the Court, the exercise of this authority remains delicate, as State non-compliance — despite its illegality — undermines the Court’s legitimacy. And for States that may chafe under this authority, they must consider the implications of outright defiance.
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