Clara Burbano Herrera

Letting States off the Hook? The Paradox of the Legal Consequences following State Non-compliance with Provisional Measures in the Inter-American and European Human Rights Systems

Anyone who proves that he or she is in a situation of danger and who is a potential victim of a violation of a right set forth in the American or the European Convention on Human Rights may be protected by interim measures. Interim measures in the human rights systems may be defined as an instrument, the purpose of which is to prevent irreparable harm to persons who are in a situation of extreme gravity and urgency, which a favourable final judgment would therefore not be able to undo. They result in protection offered by the State in compliance with the legally binding order of the Inter-American or European Court on Human Rights. While this legal figure is nowadays applied more and more frequently and in most cases the American and European countries have complied with the order of their respective Court of Human Rights, the question that this contribution would like to answer is what the legal consequences of incompliance are and whether the difference as to the legal basis of the interim measures in both human rights systems has influenced the legal effect that the respective Courts have given to non-compliance with the measures. After an overview of the case-law, it will be shown that in fact each regional system has given different legal consequences to the incompliance with its interim measures, but paradoxically, the effects are not directly related to the type of legal instrument in which the interim measures are contemplated. The issue is relevant because on the one hand interim measures are mostly adopted in dramatic contexts where the life and personal integrity of human beings are endangered and because a survey of the case-law shows that under the European system the cases of incompliance seem to be on the rise, and on the other hand, because it appears that under the Inter-American system there are many cases in which provisional measures have been issued which will be decided soon on the merits, and therefore during the examination of which it will be decided whether the member States have complied or not with the Inter-American Courts interim measures and what consequences incompliance entails.

Staying the return of aliens from Europe through interim measures: the case-law of the European Commission and the European Court of Human Rights

The Strasbourg case-law demonstrates a clear tendency to protect aliens through interim measures in case of imminent deportation. Usually but not uniquely those persons claim(ed) before the supervisory organs to be in a situation of extreme gravity in case of forcible return to their country of origin because they can be subject to the death penalty, life imprisonment, persecution for their political activities, deprived of medicine/adequate medical treatment. This contribution explores which typologies of cases have led the European Commission and Court to apply interim measures in those situations, as well as which rights and freedoms have been protected thereby.

Interim measures in the case law of the European Court for the protection of Human Rights

Under its Rules of Court, the European Court of Human Rights has the power to issue interim measures. Case law shows that an interim measure is generally directed towards the respondent State but it can also or at the same time be directed towards the applicant. It has a proactive or a prohibitive nature: one or both of the parties in the proceedings before the European Court may be required to act in a certain way or to refrain from certain acts. In practice however, provisional measures are virtually only issued by the new Court in cases of imminent expulsion, extradition or deportation of individuals to their country of origin by the State against which the complaint is directed, although exceptionally other factual situations may arise such as extremely severe prison conditions or a hunger strike. As a result, the requests for interim measures will contain references to Articles 2 and/or 3 of the Convention and/or Article 1 of the Sixth Protocol. On the basis of the practice of the former European Commission and the current European Court, an overview is given of the scope of application of interim measures, the prerequisites to request an interim measure and the procedure to be followed by applicants if requesting an interim measure. Although, following two recent judgments of the First Section of the European Court, the European Court has made it clear that interim measures are binding on the respondent State, a viewpoint which is currently being challenged before the Grand Chamber of the Court, it is argued that the applicant not only has a very limited chance of success in obtaining a positive interim order, but that the new European Court is even more reluctant than the former Commission was before, when deciding whether to issue an interim measure or not. Where confronted with some specific kinds of factual situations, it may be arguable that the European Court follows the same line of reasoning towards requests for interim measures as its Interamerican counterpart, thus extending the scope of application of the interim measures to rights and freedoms, other than the above-mentioned.