The European Court of Human Rights Refines Rule 39 on Interim Measures

With effect from 28 March, 2024, The European Court of Human Rights has updated its Rule of Court, specifically Rule 39 in relation to interim measures. 

This amendment aims to provide clearer guidance on the use of interim measures, such as when they can be used and the threshold for such requests and grants. It now explicitly references the applicability in cases with “an imminent risk of irreparable harm to a Convention right” as well as detailing the decision making bodies for interim measure requests, which is important. 

When are applications for interim measures made?

An application for an interim measure will usually be made in circumstances where there is a threat to life or a risk of torture or inhumane treatment. These examples usually stem from cases dealing with immigration or extradition proceedings and so an interim measure will be applied to temporarily prevent the immigration or extradition until further proceedings have occurred. 

Other examples of where an interim measure has been made relate to the death penalty and to a person’s health where intervention is required where someone is at imminent risk of irreparable harm to their health and need a transfer to a hospital for example PALADI v. MOLDOVA (coe.int). 

Other examples are in relation to a person’s right to legal representation ÖCALAN v. TURKEY (coe.int) and a fair trial (which can then involve being put into witness protection as a measure) as well as the right to family and private life EVANS v. THE UNITED KINGDOM (coe.int). 

The number of interim measures applied for and the high threshold

Between 2021-2023 178 interim measures were applied for relating to the UK, but only 11 were successful, which shows the difficulty in meeting the high threshold test. 

Revised Practice Direction also provides detailed guidance 

Accompanying the amended Rule 39, the revised Practice Direction provides detailed guidance on the substantive and procedural aspects of the court’s interim measure procedure to assist those wishing to utilise this rule. 

The rule doesn’t appear to provide any significant changes, as much of the inclusions have already been in place through case law. It makes it clear that there needs to be exceptional circumstances and the harm needs to be that which “on account of its nature, would not be susceptible to reparation, restoration or adequate compensation” and the measure will be adopted where necessary in the interests of the parties or proper conduct of proceedings: it cannot just be a hardship.  

The Practice Direction also sets out the procedure to be followed and what documentation will be required - there is no appeal from this application so it's important that as much information is provided from the outset and without delay. 

Conclusion

These changes are expected to bring greater clarity and transparency to the conduct of proceedings involving interim measures by the inclusion of current case law and practice. 

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