Strasbourg tightens rule 39
Interim measures available only if there is imminent risk of irreparable harm
The European Court of Human Rights has tightened its controversial rule 39, which deals with interim measures. The changes were approved by the Strasbourg court last month and are in line with a draft I reported last November. They were announced yesterday and took effect immediately.
Interim measures issued in 2022 prevented the UK from sending asylum-seekers to Rwanda, triggering a political debate on whether the UK should remain a party to the human rights convention. That debate seems to have prompted the current reforms.
Rule 39 previously began:
The Chamber or, where appropriate, the President of the Section or a duty judge… 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This has now been replaced by the following paragraphs. I have marked what seem to be the most important changes in bold.
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 5 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.
Practice direction
The court has also published a revised practice direction. After summarising the amended rule, it says:
The circumstances of a case must therefore exceed a high threshold of seriousness for rule 39 to be engaged. Interim measures are indicated only where there is prima facie evidence of an imminent risk of irreparable harm, and not where the applicants would merely endure hardship in the absence of interim measures…
The court thus indicates interim measures, as a matter of principle, only in exceptional cases and on the basis of a rigorous examination of all the relevant circumstances. In most of those cases, the evidence available points to a clearly arguable case of a genuine threat to life and limb, with the ensuing real risk of grave harm in breach of the core provisions of the convention.
There is a warning to applicants facing extradition or expulsion that they must pursue all available legal avenues in the courts of the country where they are held before applying to Strasbourg for interim measures. “Where it remains open to an applicant to pursue domestic remedies which have suspensive effect, the court will not apply rule 39 to prevent the removal.”
Judges involved are now named. Under the new arrangements, it will be possible for a single judge to hold the ring and grant interim measures — perhaps by phone in the middle of the night — and then refer that decision to a panel of judges when one can be assembled.
Applicants who expect an imminent decision that would be enforced immediately, especially in an expulsion or extradition case, can make a provisional application to Strasbourg before the decision is issued. Governments can get their retaliation in first by signalling to the court that an application may be imminent and providing any relevant information when they do so.
The practice direction says there can be no appeal against a decision to grant or refuse interim measures. But governments to which they are addressed may ask the court to reconsider its decision “if they consider that the measures are no longer necessary or where they possess information which was not available at the relevant time or not made available to the court in a timely fashion”.
Rwanda
The UK made an unsuccessful application of this kind after interim measures were granted in the Rwanda case on 14 June 2022. This was not made public until 11 April 2023, which was when I reported it. I reported the court’s full reasons last month.
The practice direction explains why the human rights court regards interim measures as binding. That view has been challenged by former UK justice ministers but seems to be accepted by the government’s legal advisers.
Clause 6 of the current Safety of Rwanda (Asylum and Immigration) Bill says “it is for a Minister of the Crown (and only a Minister of the Crown) to decide whether the United Kingdom will comply” with interim measures relating to the intended removal of a person to Rwanda.
It’s not clear what would happen if:
this clause becomes law; and
the government takes steps to remove migrants to Rwanda; and
challenges to their removal are dismissed by courts in the UK; and
interim measures are granted under rule 39; and
a government minister decides that the UK will not comply with the interim measures; and
the migrants are sent to Rwanda, contrary to interim measures that the court regards as binding.
Watch this space.
This seems like a sensible clarification.
Sorry at Strasbourg!