Urgency and Human Rights: The Protective Potential and Legitimacy of Interim Measures 9789462654143, 9789462654150

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Urgency and Human Rights The Protective Potential and Legitimacy of Interim Measures

Eva Rieter Karin Zwaan Editors

Urgency and Human Rights

Eva Rieter Karin Zwaan •

Editors

Urgency and Human Rights The Protective Potential and Legitimacy of Interim Measures

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Editors Eva Rieter Centre for State and Law Radboud University Nijmegen, The Netherlands

Karin Zwaan Centre for State and Law Radboud University Nijmegen, The Netherlands

ISBN 978-94-6265-414-3 ISBN 978-94-6265-415-0 https://doi.org/10.1007/978-94-6265-415-0

(eBook)

Published by T.M.C. ASSER PRESS, The Hague, The Netherlands www.asserpress.nl Produced and distributed for T.M.C. ASSER PRESS by Springer-Verlag Berlin Heidelberg © T.M.C. ASSER PRESS and the authors 2021 No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. This T.M.C. ASSER PRESS imprint is published by the registered company Springer-Verlag GmbH, DE part of Springer Nature. The registered company address is: Heidelberger Platz 3, 14197 Berlin, Germany

This book is dedicated to Prof. Theo C. van Boven whose incessant commitment to addressing urgent human rights cases continues to inspire.

Preface

This book aims to contribute to the ongoing discussion about how interim measures can be legitimate and well-functioning tools to address urgent human rights cases. Preventing irreparable harm in urgent situations requires a multifaceted approach by litigants, adjudicators and other official authorities at the international level. The book discusses urgency and human rights from the vantage point of various practitioners and scholars in international and regional adjudicatory systems. It does so with the aim of identifying how interim measures could be legitimate and protective and to single out obstacles to their implementation. As the editors, we joined forces, first to organise an expert seminar on Urgency and Human Rights (29–30 May 2015), together with Rosa Möhrlein, and now to publish this book. Clara Burbano, Yves Haeck and Andrea Saccucci supported the venture. Several of the contributors to this book also took part in that seminar, with its call for papers. We thank Radboud University International Office, the Centre for State and Law of Radboud University and Ghent University Human Rights Centre for the funds provided, which enabled us to organise this seminar. We very much appreciate the patience of the contributing authors throughout this project. They submitted (the new versions of) their chapters between Summer 2019 and the first half of 2020. We are now writing this preface in the awareness that worldwide crises, such as currently the COVID-19 pandemic and its impact on the enjoyment of human rights, only heighten the need to properly address urgent human rights situations. We see calls for urgent action from many quarters, including UN Special Rapporteurs. The question is what will be the role of international adjudicators. We already see interim measures requests specifically referring to COVID-19. The insights on judicial decision-making in urgent cases provided by the authors of the various chapters are directly relevant in this context. They show diverse perspectives on the protective potential and legitimacy of interim measures and other urgency mechanisms pending international proceedings. We gratefully acknowledge the important support from Meryem Sayin and Lorin Derwish during the editorial process, with regard to the book as a whole, as well as the earlier input by Rosa Möhrlein and by Mary Dickson and Marc Veenbrink. We

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also thank Jeske Jansen for preparing the book for publication. Furthermore, we thank Frank Bakker and Kiki van Gurp at Asser Press for their patience and trust in the project. This book is dedicated to Theo van Boven, who has always shown his conviction that preventing and halting human rights violations and providing a substantive remedy for such violations are closely related. This is evident from his UN reports on the right to a remedy and reparation, his scholarly publications, his work as UN Special Rapporteur against Torture (including issuing urgent appeals) and earlier as the director of the human rights division in Geneva. It is also clear from the research projects he initiated, such as on interim measures and human rights. He was the thesis advisor for one of the editors and he gave one of the keynote speeches at the abovementioned expert seminar on urgency and human rights, where he actively engaged in critical discussion with the participants on their papers. He continues to be a motor for positive action. Nijmegen, The Netherlands

Eva Rieter Karin Zwaan

Contents

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Introduction: Perspectives on the Protective Potential of Interim Measures in Human Rights Cases and the Legitimacy of Their Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Eva Rieter

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Urgency and Human Rights: The Necessary and Legitimate Role of Regional Human Rights Tribunals . . . . . . . . . . . . . . . . . . . Dinah Shelton

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Urgency and Human Rights in EU Law: Procedures Before the Court of Justice of the EU . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sacha Prechal and Aniel Pahladsingh

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The Politics of Interim Measures in International Human Rights Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Roísín Pillay

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Provisional Measures in the African Human Rights System: Lingering Questions of Legitimacy . . . . . . . . . . . . . . . . . . . . . . . . . Solomon T. Ebobrah

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The Legitimacy of Interim Measures from the Perspective of a State: The Example of Canada . . . . . . . . . . . . . . . . . . . . . . . . 115 Joanna Harrington

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Urgency in Expulsion Cases Before the European Court of Human Rights and the UN-Committees: A Bird’s Eye View . . . . . 135 Karin Zwaan

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Irreparable Harm in the Ukraine Conflict: Protection Gaps and Interim Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161 Brian Griffey

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Urgency at the European Court of Human Rights: New Directions and Future Prospects for the Interim Measures Mechanism? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197 Philip Leach

10 The Innovative Potential of Provisional Measures Resolutions for Detainee Rights in Latin America Through Dialogue Between the Inter-American Court and Other Courts . . . . . . . . . . . . . . . . . 223 Clara Burbano Herrera and Yves Haeck 11 Conclusion: The Protective Potential and Legitimate Use of Interim Measures in Human Rights Cases . . . . . . . . . . . . . . . . . 245 Eva Rieter Table of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315

Contributors

Clara Burbano Herrera Faculty of Law & Criminology, Ghent University, Ghent, Belgium Solomon T. Ebobrah Niger Delta University, Bayelsa State, Amassoama, Nigeria; Centre for Human Rights, University of Pretoria, Pretoria, South Africa; ICourts, Centre of Excellence for International Courts, University of Copenhagen, Copenhagen, Denmark Brian Griffey Amnesty International, Washington, D.C., USA Yves Haeck Faculty of Law & Criminology, Ghent University, Ghent, Belgium Joanna Harrington Faculty of Law, University of Alberta, Edmonton, Canada Philip Leach Law School, Middlesex University, The Burroughs, London, UK; European Human Rights Advocacy Centre (EHRAC), Middlesex University, The Burroughs, London, UK Aniel Pahladsingh Raad van State [Council of State], The Hague, The Netherlands Roísín Pillay Europe and Central Asia Programme, International Commission of Jurists (ICJ), Brussels, Belgium Sacha Prechal Department of Law, Faculty of Law, Economics and Governance, Utrecht University, Utrecht, The Netherlands Eva Rieter Centre for State and Law, Radboud University Nijmegen, Nijmegen, The Netherlands Dinah Shelton George Washington University Law School, Washington, USA Karin Zwaan Centre for State and Law, Department of Migration Law, Radboud University Nijmegen, Nijmegen, The Netherlands

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Introduction: Perspectives on the Protective Potential of Interim Measures in Human Rights Cases and the Legitimacy of Their Use Eva Rieter Contents 1.1 Contended Interim Measures: Time and Urgency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1.2 Legitimate Use of Interim Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1.3 The Protective Potential of Interim Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1.4 Protection Gaps and Obstacles in the Face of Urgency . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 1.5 Existing Literature and the Approach Taken in This Book . . . . . . . . . . . . . . . . . . . . . . . . 8 1.6 The Contributions by Scholars and Practitioners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Abstract In the face of time constraints, adjudicators have developed practices dealing with urgent cases, including through interim measures. Indeed, in urgent human rights cases, petitioners continue to request the use of interim measures. At the same time, at UN and regional level states have at times shown their displeasure with the use of interim measures and have sometimes done so in a concerted manner. Thus, there is a need to consider how these measures can be as persuasive as possible. This chapter explores the issues of legitimacy and the protective potential of interim measures and refers to obstacles undermining this potential, which are discussed further by different authors throughout this book. This chapter sets out the approach taken in this book, and introduces the subsequent chapters, where various practitioners and scholars further analyse the protective potential and legitimate use of interim measures and other practices dealing with urgent cases. Keywords Interim measures · provisional measures · urgency · protective potential · legitimacy · normative legitimacy · social legitimacy · (quasi-)judicial proceedings · appropriateness criteria · plausibility · protection gaps · obstacles · compliance · time-sensitivity · Court of Justice of the European Union · European Court of Human Rights · International Court of Justice

E. Rieter (B) Centre for State and Law, Radboud University Nijmegen, Montessorilaan 10, 6525 HR Nijmegen, The Netherlands e-mail: [email protected] © T.M.C. Asser Press and the authors 2021 E. Rieter and K. Zwaan (eds.), Urgency and Human Rights, https://doi.org/10.1007/978-94-6265-415-0_1

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1.1 Contended Interim Measures: Time and Urgency The issue of how international (and domestic) courts and quasi-judicial bodies deal with urgent human rights cases has been recurring since the first discussion on interim measures, or provisional measures, in human rights cases. Three examples illustrate certain interim measures practices in Europe. The Court of Justice of the European Union (CJEU) granted the European Commission’s request for interim measures and ordered Poland to immediately suspend the application of the provisions of national legislation relating to the lowering of the retirement age for Supreme Court judges.1 The European Court of Human Rights (ECtHR) granted interim measures in the ‘SeaWatch 3’ case involving a vessel with 47 migrants. It ordered the Italian Government “to take all necessary measures, as soon as possible, to provide all the applicants with adequate medical care, food, water and basic supplies as necessary. As far as the 15 unaccompanied minors were concerned, the Government was requested to provide adequate legal assistance (e.g. legal guardianship)”.2 The ECtHR ordered the Hungarian government “to give food to migrants in detention in the transit zone at the southern Hungarian border”. As the Hungarian Helsinki Committee put it, “Pending the enforcement of the expulsion, adults, unless they are pregnant or nursing women, are starved in detention”. This interim measure Order by the ECtHR was not the first since August 2018.3 This book deals with urgency and human rights. Urgent is a word that is used often, in very different contexts. Yet together with a reference to human rights violations, the word “urgent” likely triggers images of people caught up in armed conflict, people facing terror from the state or from gangs, paramilitaries, terrorists. Or it triggers images of people fleeing terror and facing walls, fences and deadly seas. Or of people at risk of being returned to terror, or ignored, neglected, abused, deprived from access to justice and basic facilities, facing death, torture and cruel treatment. These are all cases/examples of ongoing violations. In this book examples of urgent situations are explored in the context of (quasi-)judicial proceedings. Increasingly, international tribunals and domestic courts are called upon to order interim measures or accelerate proceedings in such cases. In the face of urgent human rights situations and threats to the rule of law, international courts are confronted with requests for interim measures, even if, or exactly because, the states addressed do not always respect them. Or because in response 1 CJEU

(Grand Chamber) Order in Case C-619/18 R Commission v Poland, 17 December 2018. On 19 October 2018, the Vice-President had already ordered Poland to suspend the effects of the Judiciary Reform Act and, in particular, to ensure that no sitting judge is removed as a result of the new retirement age. On the practice of the CJEU see Chap. 3 by Prechal and Pahladsingh. 2 Council of Europe Special Representative of the Secretary General on migration and refugees, ‘ECHR grants an interim measure in case concerning the Sea-Watch 3 vessel’, Newsletter February 2019. On the interim measures practice of the ECtHR in the context of non-refoulement see Chap. 7 by Zwaan. 3 The Hungarian Helsinki Committee, ‘Hungary Continues to Starve Detainees in the Transit Zones, Information update by the Hungarian Helsinki Committee (HHC), 23 April 2019 https://www.hel sinki.hu/wp-content/uploads/Starvation-2019.pdf.

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they may tackle the individual situation at issue, but at the same time fail to address the underlying situation. States are not fond of interim measures and they have at times shown so in a concerted manner. In this light, there is a need to consider how interim measures can be as persuasive as possible. Time matters here. Firstly, proper decision-making takes time. Secondly, all the same, this decision-making must be quick to prevent (further) irreparable harm. Thirdly, there are urgent cases where time-sensitivity means that both the decision not to take interim measures and the decision to take them could result in an anticipation of the merits.4 Fourthly, unfortunately, the discussion of urgency in this context is always timely. Based on popular elections there may be developments resulting in even greater human rights violations, in the name of security and of “own people first”. Worldwide, established courts are under attack, judicial independence is undermined and the voice of “the other” is under attack. There have been political and practical overhauls in the different human rights systems which also have an impact on the use of interim measures. The political willingness of the great powers to tackle ongoing violations is decreasing. At the same time, individuals and states concerned with a specific human rights situation invoke international law in their arguments to achieve change. They also invoke international law when time matters, when the human rights situation is urgent. Sometimes they do so simply to point out the dire situation and thereby hope to raise awareness and trigger action by the international community. They resort to international adjudicators in the hope that their decisions can be used as a tool to strengthen their case, and even if there will be no decisions in their favour, that the hearings will generate publicity and pressure. In this setting, the use of interim measures becomes highly contentious. Are requests for interim measures legitimate? Is the decision by adjudicators to grant such a request legitimate? Do interim measures work? Thus, the enduring questions of legitimacy and effectiveness also arise in the context of urgent decision-making by international adjudicators. This book concerns the protective potential of the tool of interim measures in international human rights cases and the legitimacy of its use. It discusses gaps in protection and obstacles to the persuasive use of the tool, to clarify how the legitimacy and protective potential of interim measures could be enhanced in the context of concrete legal cases. Examining this is especially pressing when courts and quasijudicial bodies have used interim measures in response to requests by individuals and organisations in the context of issues that are unpopular with governments and/or controversial within society. It is in this context that states have used political pressure to limit the use of interim measures. This introductory chapter explores the issues of legitimacy (Sect. 1.2), the protective potential of interim measures (Sect. 1.3) and obstacles to their use (Sect. 1.4), followed by references to existing literature and a discussion of the approach taken in this book (Sect. 1.5) and finally presenting the contributions by various scholars and practitioners (Sect. 1.6). 4 See

e.g. Shelton’s contribution, Chap. 2.

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1.2 Legitimate Use of Interim Measures Legitimacy relates to the “quality or state of being legitimate”. Here “legitimate” means “accordant with law or with established legal forms and requirements” or “conforming to recognized principles or accepted rules and standards”.5 There are discussions on the legitimacy of international governance as such,6 and specifically of international adjudicatory bodies.7 These discussions often relate to social legitimacy, the question of how these bodies are perceived. It is assumed that the protective potential of interim measures depends in part on their reputation and therefore is linked to their social legitimacy. Yet this does not exist without criteria for normative (internal) legitimacy. Normative (internal) and social (external) legitimacy are closely connected.8 The scholarship on international judicial functions9 and particularly on the legitimacy of decision-making by international adjudicators, is just starting and has not caught up yet with the scholarship on the legitimacy of international courts and tribunals as such. This book focuses on the legitimacy of the decisions made by international adjudicators rather than on the legitimacy of these adjudicators as such. The question is whether these decisions are taken in conformity with recognised principles. Certain criteria must be met for appropriate decision-making.10 In general, process matters for legitimacy of decision-making. The procedure followed in each case is relevant for the legitimacy of the outcome. Related to procedural fairness is also the question of the clarity of communication and access to information. Next to procedural fairness11 and the way a decision is presented, what is central to normative legitimacy of decisions is obviously their substance and motivation.12 Whether urgent intervention is in the form of interim measures or by way of informal ‘diplomatic’ (soft) inquiries, there is always a reference to international legal obligations. These international obligations are the first substantive element. The principled and binding nature of the law is invoked. Moreover, the choice whether to order interim measures must be based on criteria. The clarity of the criteria applied is crucial for the legitimacy of the decisions, both those decisions ordering interim measures and those denying requests for interim measures. The same applies for the consistency with which they 5 Merriam-Webster Dictionary 2017, also noting that ‘legitimate may apply to a legal right or status

but also, in extended use, to a right or status supported by tradition, custom, or accepted standards.’ e.g. Bodansky 1999; Kumm 2004; Peters 2006; and Weiler 2004. 7 See e.g. Keller and Ulfstein 2012; Grossman 2009, 2013; Dzehtsiarou and Coffey 2014; Føllesdahl 2013a; Helfer and Alter 2013; Thomas 2014; Ulfstein 2014; Voeten 2013; and Von Bogdandy and Venzke 2012a, b. 8 See e.g. Franck 1990. 9 See e.g. Hernández 2014; Von Bogdandy and Venzke 2012a, b, 2013; Petersen 2011; Tzanakopoulos 2011; and Ulfstein 2009. 10 See e.g. Føllesdal 2013b. 11 Thomas Franck focused on procedural legitimacy, ‘generally accepted principles of right process’. Franck 1990. 12 On motivation, see e.g. Ruiz Fabri and Sorel 2008. 6 See

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are applied. Consistency is one of the properties identified by Thomas Franck in 1990. Determinacy is another property. The specificity and explanation of interim measures could be labelled elements of this determinacy. A third property is symbolic validation.13 The ritual of calling for and ordering interim measures could be an example. The ensuing chapters do not draw extensively from the practice of the International Court of Justice (ICJ), a matter discussed elsewhere,14 yet when discussing appropriateness criteria, those developed by the ICJ over the years should be mentioned. These criteria are: prima facie jurisdiction on the main application, plausibility, link between the interim measures requested and the rights claimed on the merits, urgency and irreparable damage.15 While the judicial function of the ICJ may differ from that of the human rights courts, most of the criteria16 identified by the ICJ are applied by other international adjudicators as well. Only the ICJ’s steep plausibility requirement introduced in Ukraine v Russian Federation (2017) is controversial and does not appear to be adhered to by the other adjudicators.17 The unanimous ICJ Order three years later, in Gambia v Myanmar (2020), may indicate that it is not diverging from the approach taken by the other adjudicators after all.18 In this Order, the ICJ did not expect the applicant state to meet steep plausibility requirements at the stage of provisional measures.19 Apart from meeting appropriateness criteria to enhance normative legitimacy, there are also other factors strengthening the persuasiveness of interim measures decisions, and thereby their protective potential. A convergence in approaches by various courts and quasi-judicial bodies can be one of them. A research concluded in 2008 found that there was a commonality in approaches by various human rights adjudicators and the ICJ. The conclusion reached was that there appeared to be a convergence in the practice of the human rights adjudicators in ordering interim measures in similar situations, and on the merits in identifying certain rights for their elevated status within the applicable treaty. Moreover, even the ICJ, as a Court of

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1990, 52, 94, 142. e.g. Rieter 2019. On the approach by the ICJ to provisional measures in general see the contributions by Thirlway, Wittich, Sparks and Somos, Le Floch, Rieter, Tanaka, and Marotti in: Palombino et al. 2021. On the approaches of the ICJ, ITLOS and arbitral tribunals, see Miles 2017. 15 See e.g. ICJ Order for provisional measures in Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of all forms of Racial Discrimination (Ukraine v Russian Federation), 19 April 2017, para 99. 16 In the context of the ICJ now often referred to as conditions. 17 On the controversy, see e.g. the individual opinions attached to the ICJ Order for provisional measures in Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of all forms of Racial Discrimination (Ukraine v Russian Federation), 19 April 2017. See further Rieter 2019 and the discussions on the ICJ in Palombino et al. 2021. 18 ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (the Gambia v. Myanmar), Order of 23 January 2020. 19 See e.g. Rieter 2021. 14 See

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general jurisdiction, seemed to confirm this convergence.20 The argument was that this commonality of approaches strengthened the specific interim measures ordered, and enhanced their persuasiveness.21 Since 2008 the attitude of some states towards international human rights adjudicators has changed negatively and the ICJ sometimes appears to have reverted to a more statist approach. In 2016 another research, examining the practice of the ICJ, the International Tribunal on the Law of the Sea (ITLOS) and arbitral and investment tribunals, but not of the human rights adjudicators, nevertheless concluded that while there is “no uniform checklist” for interim measures, there is a convergence of approaches. It also suggested that “a commonality of approach” will improve the acceptance of interim measures by the parties. Moreover, it will “improve the prospects for the development of a harmonious system of international dispute settlement—to the benefit of international society as a whole”.22 In that sense convergence, too, plays a role in the legitimacy of interim measures decisions. Public responses to interim measures decisions, questioning their normative legitimacy, may be a package of true concerns and arguments of convenience aimed at undermining their social legitimacy. In other words, there may be true concern about a specific decision or a specific decision-making process, involving the normative legitimacy also explored in this book, and/or about the standing of the decisionmaker given its previous decisions, its proceedings and the judicial independence and expertise of its members.23 Yet states (and other players) may also invoke these concerns to achieve other goals, for instance to diffuse attention away from states’ unwillingness to respect international obligations.

1.3 The Protective Potential of Interim Measures The criterion of effectiveness is often used by lawyers, but it has proven difficult to identify what constitutes effectiveness.24 Often what is really meant by effectiveness is the compliance of states. In this respect, it is assumed that the measures taken by a state are indeed taken in response to the international decision examined. The question of compliance with international decisions can be answered differently depending on the level of compliance required.25 This book does not present empirical research on compliance and on causality between Orders for interim 20 Rieter

2010. also Rieter 2012. 22 Miles 2017. 23 E.g. Bodansky 1999. 24 More closely, see e.g. Shany 2014; Shaw 2011; https://www.asil.org/blogs/idea-effective-intern ational-law; Couvreur 2017. 25 E.g. is the test whether a state has paid compensation? Or is the test whether it has taken concrete measures to help prevent similar violations in the future, and if so, how concrete should these measures be? 21 See

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measures and their implementation in practice. Instead it presents approaches and ideas by legal scholars and practitioners on the question whether interim measures can be useful tools in the face of urgent human rights situations and, if so, how they can be the best possible tools. There is obviously no single answer to this question. It may be that interim measures are most useful, or only useful in certain situations and if certain conditions are met. The participants at a 2015 expert meeting appeared to agree on the following:26 interim measures should be geared to the situation at hand and the persons at risk should themselves consider worthwhile the efforts to obtain them. Interim measures must be sufficiently specific so that the state knows what is expected of it to address the urgent situation. They also must be sufficiently flexible to allow the state to properly meet its primary obligations. Other relevant factors or conditions that may determine their protective potential are the moment at which they are ordered in the first place, how closely they are followed up and what the strength of their wording is. Moreover, interim measures are only useful if they do not invite such serious backlash against the rights holders (the beneficiaries of the measures) that they would have preferred that the measures would not have been requested. They should also avoid backlash in terms of the attitude of the public towards human rights and towards the adjudicator.

26 Expert seminar Urgency and Human Rights, Radboud University Nijmegen, 29-30 May 2015. The seminar was organised by Rosa Möhrlein and Eva Rieter (Research Centre for State and Law, Radboud University, in collaboration with Karin Zwaan (Centre for Migration Law, Radboud University), Yves Haeck and Clara Burbano Herrera (Ghent University) and Andrea Saccucci (Università della Campania “Luigi Vanvitelli”) and with financial contribution from Radboud University International Office and Ghent University. Next to the contribution of scholars, wellknown practitioners offered new and refreshing insights. Speakers were Clara Burbano Herrera & Yves Haeck (Ghent University); Oksana Chelisheva (journalist), Carla Ferstman (REDRESS; University of Essex)), Brian Griffey (OSCE Office for Democratic Institutions and Human Rights); Jelle Klaas (director Public Interest Litigation Program); Philip Leach (Middlesex University; European Human Rights Advocacy Centre); Placide Ntole (SOS Information Juridique Multisectorielle, South Kivu), Róisín Pillay (International Commission of Jurists), Sacha Prechal (judge at the Court of Justice of the European Union; Utrecht University), Andrea Saccucci (Università della Campania “Luigi Vanvitelli”; Saccucci & Partners; Doughty Street Chambers); Dinah Shelton (George Washington University; former President Inter-American Commission on Human Rights); Amrit Singh (Open Society Justice Initiative); Özlem Ülgen (Birmingham City University); Richard van Elst (Radboud University); Theo van Boven (Maastricht University, former UN Special Rapporteur against Torture); William Worster (Hague University of Applied Sciences). The participating scholars and practitioners argued from diverse perspectives but agreed on the need for further development of ideas to improve the tools available in urgent human rights cases importance arrived at a common understanding of the importance of improving the legitimacy and protective potential of interim measures. This book aims to contribute to the further discussion in this respect.

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1.4 Protection Gaps and Obstacles in the Face of Urgency There are protection gaps in international litigation involving urgent situations, sometimes because courts have not ordered interim measures, or because their interim measures were insufficiently specific for proper state compliance. There are also other obstacles to the effective implementation of interim measures. Many of these obstacles coincide with the increase in urgent situations. The causes triggering the urgent situations are also the obstacles hindering relief. Moreover, there are controversies on how to deal with societal problems. These play out within communities, states, regions and at international fora. There is a rise in populism worldwide, with fears and anger sometimes organised in specific directions, such as asylum-seekers, the internally displaced, minority religious or ethnic backgrounds, or simply the disenfranchised (including detainees). In the context of armed conflict, or “wars on terror”, these are directed against those associated with the enemy, for instance through proximity (e.g. drone strikes) or otherwise guilty by association.

1.5 Existing Literature and the Approach Taken in This Book A small selection of books has been published on interim measures in a range of international legal systems. Two cater for the French language market: Cohen-Jonathan and Flauss 2005; and Le Floch 2008; and one for the English language market: Bernhardt 1994, taking a system-by-system approach, some dealing with human rights and others not. Two comprehensive monographs have been published concerning the use of interim measures in all human rights systems, as well as the International Court of Justice, and taking a thematic approach, integrating the case law of the various systems on a range of aspects of interim measures: Saccucci 2006; and Rieter 2010. Since the publication of the above-mentioned thematic books, there have been many political and practical overhauls in the different human rights systems which have had an impact on the use of interim measures, triggering questions regarding the legitimacy and protective potential of interim measures in human rights cases. Some of those are taken up in this volume. More recent works, focusing on the ICJ, ITLOS and arbitral tribunals, should also be noted here: Miles 2017; and Palombino et al. 2021. Different from the above monographs on the concept of interim measures in human rights cases, this book discusses urgency and human rights in international adjudication from the vantage point of various practitioners and scholars. Moreover, this edited volume takes a thematic, rather than a system by system approach to urgency in human rights adjudication, exploring the legitimacy and protective potential of urgency tools applied in international adjudication.

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The question when the use of interim measures is legitimate arises with regard to classic as well as newer themes, but there is also the question whether requesting interim measures is worth the effort from the perspective of civil society. This concerns the protective potential of interim measures. How does litigation in urgent cases work at the international level? The book zooms in on protection gaps and obstacles faced by human rights adjudicators in dealing with interim measures, especially in the context of systemic problems.27 The issue is examined from various angles, from an academic and a practitioner’s perspective. A broad range of adjudicators has dealt with urgent cases.28 They are courts of general jurisdiction, like the ICJ and the Court of Justice of the European Union (CJEU), as well as specific human rights courts and quasi-judicial bodies; and next to cases brought by individuals or groups against a state, there are also inter-state cases.29 The examination of the approach to urgency and human rights by courts of general jurisdiction provides different and very relevant perspectives, also on the question whether such courts deal differently with urgent human rights matters than human rights courts do. As to the ICJ, reference is made to recent studies providing a further discussion on the relevance of its provisional measures in human rights cases.30 This volume devotes a chapter to the approach to urgent human rights cases by the Court of Justice of the European Union, a regional court that is not exclusively dealing with human rights. The approach of the CJEU is interesting because it increasingly faces rule of law issues and because, in addition to facing requests for interim measures, it also has to deal with the issue of urgency and human rights in the context of the preliminary ruling procedure, triggering a different type of legitimacy concerns. As to human rights courts and quasi-judicial bodies, this book gives examples of the practice of a number of them. The selection of adjudicators from which practices are drawn is based on their relevance for the discussion on the legitimacy of decision-making and processes of legitimation.31 The examples provided are often derived from the European context and the Americas, but either way they deserve wider attention. Moreover, the chapter discussing examples from the African system considerably adds to the existing legitimacy discussion. The book does not aim to be comprehensive, but instead to be illustrative, to consolidate some of the existing research and to invite further research on these issues. Several contributions deal with elements of both legitimacy and protective function. As to the latter, certain difficult situations are singled out where there are protection gaps and where societal controversy and fears, or pressure by third parties, 27 See e.g. Griffey (Chap. 8); Leach (Chap. 9); Zwaan (Chap. 7); Burbano Herrera and Haeck (Chap. 10). 28 See the literature referenced above. 29 See e.g. Griffey (Chap. 8). 30 Recently on the ICJ, as a court of general jurisdiction, and its approach to provisional measures specifically in human rights cases, see Rieter 2019. In general on the ICJ’s approach to provisional measures, see the contributions in Palombino et al. 2021. 31 See e.g. Shelton (Chap. 2); Prechal and Pahladsingh (Chap.3); Pillay (Chap. 4); Ebobrah (Chap. 5); and Harrington (Chap. 6).

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hinder the implementation of the urgent measures required to protect against (further) irreparable harm. The focus here is on the implementation of the obligations in the context of anti-immigration sentiments and of lack of interest in the situation of detainees as well as in the context of armed conflict.

1.6 The Contributions by Scholars and Practitioners Preventing irreparable harm in urgent situations requires a multifaceted approach by litigants, adjudicators and other official authorities at the international level. This book aims to contribute to the ongoing discussion in this respect by offering the perspectives of several scholars and practitioners.32 In Chap. 2 Dinah Shelton posits that both the scope of the use of interim measures and the adherence to procedural rules may impact their legitimacy. The chapter discusses the inherent powers of the regional adjudicators, with a focus on the InterAmerican Commission on Human Rights. It refers to specific violations that trigger urgent action, such as executions and disrespect for land rights of indigenous peoples. The author combines her scholarly insights on this type of urgent remedy and on the function of the various regional human rights tribunals with her experience as a member of the Inter-American Commission at a crucial time for the functioning of its precautionary measures. She observes that urgent cases often concern sensitive matters in domestic law and politics, generating considerable internal resistance. She discusses the major reform of the Inter-American Commission’s Rules of Procedure and observes that this has resulted in a more legitimate process. While this overhaul satisfied the states, Shelton expresses concern for the expansion in the subject matter of precautionary measures to situations without risk of irreparable harm. In Chap. 3 Sacha Prechal and Aniel Pahladsingh discuss how the CJEU deals with urgent cases involving human rights. They discuss the European Union (EU) law and procedure in urgent human rights cases, especially as pending before domestic courts. The authors first address the practice of ordering interim measures in direct actions before the General Court and the Court of Justice Court of Justice of the European Union (CJEU). Then they show the relevance of European Union (EU) law for interim measures or other forms of provisional protection at the domestic level. Following this, they zoom in on the preliminary ruling procedure to secure rights of Union citizens. In urgent cases the CJEU has introduced tools for accelerating the proceedings. Depending on the area of law, these tools are the urgent preliminary ruling procedure (PPU), and the expedited or accelerated preliminary ruling procedure (PPA). The chapter focuses on a review of these tools. It deals with 32 The contributors work in academia, with practical experience in the field, or are specialists in international organisations. Most of the contributors are both scholar and practitioner, most notably Dinah Shelton (former Commissioner with the Inter-American Human Rights Commission), Sacha Prechal (Judge at the Court of Justice of the European Union), Aniel Pahladsing (lawyer at the Dutch Council of State) and Philip Leach (director at the European Human Rights Advocacy Centre).

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the criteria of serious and irreparable damage and gives examples involving immigration law (Return Directive and non-refoulement), criminal law (e.g. European Arrest Warrant) and civil law (e.g. child custody cases). Róisín Pillay, in Chap. 4, zooms in on the politics of interim measures from the perspective of the international rule of law. She analyses the political resistance to effective interim measures and the consequences of this resistance. In this chapter the focus is on the European Court of Human Rights and UN treaty bodies, discussing the reform of the European system and the negotiation of protocols on individual petition to the Children’s Rights Convention and the Convention on Economic, Social and Cultural Rights. She also discusses political developments with regard to the Inter-American Commission and touches upon urgent measures by the European Social Rights Committee. She argues that interim measures are not only a tool for applicants, but also have a wider purpose in the fair and proper administration of justice: preserving the factual situation of the parties pending consideration of the case to ensure the integrity and effectiveness of the adjudicator’s eventual judgment. Moreover, interim measures can only be useful when “irreparable harm” is interpreted in light of the rule of law principle that the circumstances of the case must be preserved pending adjudication. Therefore, she argues, interim measures should not be limited by express or implied criteria of exceptionality. In Chap. 5, Solomon Ebobrah presents a critical analysis of case law of the African Commission and Court on Human and Peoples’ Rights on provisional measures, as well as archival documents of the African Union. Next to the legal foundation of provisional measures in the African system, he discusses a range of situations that have been submitted by complainants as urgent, of extreme gravity and carrying the risk of irreparable harm to persons. The chapter examines how the supervisory mechanisms have decided upon the use of provisional measures. The compliance situation is analysed in the light of legitimacy considerations. While the states do not question the legal foundation of provisional measures, he argues that certain other legitimacy concerns can be detected and suggests some strategies for addressing these, in order to enhance the protective value of the system. Joanna Harrington, in Chap. 6, equally discusses the legitimacy of interim measures, as well as their protective potential. She does so from the perspective of a state, taking the example of Canada. While Canada has long been supportive of the international legal protection of human rights, it has refused to abide by interim measures requests. The author critically discusses the practice of Canada, including its courts, as well as its public record of objection before the Human Rights Committee and the Committee against Torture. She argues that while Committee Views on the merits are not generally considered legally binding, states cannot automatically assume that their interim measures requests have no legal force, making note of the important regulatory role these measures serve. Yet in order to encourage state compliance, she stresses that process matters. She suggests that the UN Committees look at the procedural reforms made by the Inter-American Commission as this would result in greater transparency and trust in the system. She also points out the need for making the format and terminology of UN documents more user-friendly

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for the domestic context. Finally, as to the substance of interim measures, she argues in favour of providing detailed reasons for interim measures decisions. In Chap. 7, Karin Zwaan focuses on the issue of urgency in expulsion cases. She analyses case law of the European Court of Human Rights, as well as the UN Human Rights Committee (HRCtee), UN Committee on the Elimination of Discrimination against Women (CEDAW), UN Committee on the Rights of the Child (CRC) and the UN Committee against Torture (CAT). The question is addressed how these bodies deal with evidentiary matters and how, within the time constraints, they deal with the requirements of elaboration and reasoning. Also—from a practitioner’s perspective—the choice of forum will be dealt with. The chapter takes a thematic, rather than a system by system approach to urgency in human rights litigation. To discuss the legitimacy and protective potential of the tool of interim measures from the perspective of urgency in expulsion cases, a case study on Female Genital Mutilation (FGM) gives insight in different aspects of urgency, evidentiary matters, choice of forum and the protective potential of interim measures in expulsion cases. This contribution also seeks to address the question how the persuasiveness and effectiveness of these interim measures could be enhanced by improved coordination between treaty bodies. One urgent situation specifically singled out in the book, is that of armed conflict. In Chap. 8, Brian Griffey provides an illustrative case study of a specific time period in the Ukraine and of individual as well as inter-state cases brought before the European Court of Human Rights.33 The question addressed is whether the tool of interim measures is at all useful in this context.34 The chapter discusses claims of potential abuses and violations that threaten irreparable harm and identifies practical challenges in the seeking and enforcement of interim measures and other forms of urgent intervention. Courts facing urgent questions in the context of armed conflict not only have to grapple with the interrelationship between human rights law and humanitarian law, but also with the question what should be the content of interim measures to have protective potential in the setting of an armed conflict. Through the Ukraine case study, Griffey discusses how protection gaps were (and were not) dealt with by the various international, governmental and nongovernmental actors in the region. He also identifies opportunities for further engagement by practitioners to seek and/or enforce interim measures. In Chap. 9, Philip Leach also asks what role human rights courts could play in the face of urgent cases during, or immediately following, an armed conflict. He explores the question whether interim measures can be a useful instrument to preserve the Convention rights of applicants in such a context. Could they help ensure alleviation of a humanitarian situation? Could they order the preservation of evidence of serious violations of human rights law? Then he discusses the expanding scope of the interim 33 As discussed elsewhere, the ICJ has also ordered provisional measures in the context of armed conflict, including in response to provisional measures requests by Ukraine. Specifically on ICJ Ukraine v Russia, see e.g. Rieter 2019. See also the discussions in Palombino et al. 2021. See further ITLOS Case concerning the detention of three Ukrainian Naval Vessels (Ukraine v. Russian Federation), Order for provisional measures of 25 May 2019. 34 See Griffey (Chap. 8).

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measures by the European Court of Human Rights. In this contribution, other urgent cases than those involving non-refoulement are highlighted, such as detainees’ access to a lawyer and the right to receive adequate medical treatment. In his analysis of the evolving practice he detects a broadening of the scope of situations in which interim measures are applied. Yet the question is whether this is sufficient. Moreover, the question is how compliance with interim measures should be assessed and what could be the role of the Court in this respect. Subsequently, in Chap. 10, Clara Burbano Herrera and Yves Haeck equally discuss the detention context, and systemic issues. They reflect on the role that provisional measures have played, and may play in the future, in the context of detention. Their discussion of the legal basis of the provisional measures in the Inter-American system complements the discussions by Shelton (Chap. 2) and Harrington (Chap. 6) on the Commission’s precautionary measures. Following this, they give a general overview of the current conditions of detention in Latin America. In particular, they analyse a specific provisional measures resolution: Case of the Instituto Penal Placido de Sá Carvalho (IPPSC) v. Brazil (2018). This resolution requires a close analysis for three reasons. Firstly, it outlines the current detention conditions in Brazilian prisons. Secondly, it is a clear example of an Order in which the Inter-American Court takes into account the case law of various national courts of OAS States and of the European Court of Human Rights when examining the Brazilian prison problem. Thirdly, in this resolution the Court clarifies what are, and what are not, appropriate measures to address overcrowding in detention. In Chap. 11 Eva Rieter concludes the book. This chapter contains overall reflections on common threads between the various contributions. This chapter explores the different mechanisms and legitimacy aspects highlighted throughout the book, by reference to the various contributions. It reviews the range of urgent mechanisms used by regional and international (quasi-)judicial bodies and refers to mechanisms obstructing the protective potential, discussing situations of non-compliance and state pressure to control the practices developed by different adjudicators as well as measures enhancing the protective value. The capacity to protect against harm decreases when the (perceived) legitimacy of interim measures decreases. The contributions in this book show awareness of the importance of substantive legitimacy, of principled procedure, for social or external legitimacy. While often the criticisms expressed by states may in fact serve as excuses, rather than constitute real concerns, it is nonetheless important to discuss how adjudicators can enhance the substantive legitimacy of their interim measures decisions. Legitimacy aspects explored are the authority of adjudicators to take urgent measures and the consequences of non-compliance, the scope of interim measures and other urgency mechanisms, the fairness of the proceedings and differences and commonalities between the systems. While some of the observations were made before, what is new is the confirmation by the various authors, looking at these questions through different lenses, involving specific subject matter or systems.

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References Bernhardt R (ed) (1994) Interim measures indicated by international courts. Springer-Verlag, Heidelberg/Berlin Bodansky D (1999) The legitimacy of International Governance: A Coming Challenge for International Environmental Law? AJIL p 601 Cohen-Jonathan G, Flauss J-F (eds) (2005) Mesures Conservatoires et Droits Fondamentaux. Bruylant, Brussels Couvreur P (2017) The International Court of Justice and the Effectiveness of International Law. OUP Dzehtsiarou K, Coffey DK (2014) Legitimacy and Independence of International Tribunals: An Analysis of the European Court of Human Rights. Hastings International and Comparative Law Review 37(2):271–322 Føllesdahl A (2013a) LJIL Symposium: Explaining and Justifying International Courts as Agents and Actors (9 April 2013) Føllesdal A (2013b) The Legitimacy Deficits of the Human Rights Judiciary: Elements and Implications of a Normative Theory. Theoretical Inquiries in Law 14:339 Franck Th (1990) The power of legitimacy among nations. OUP, pp 24, 52, 94, 142 Grossman N (2009) Legitimacy and International Adjudicative Bodies. Geo. Wash. Int’l L. Rev. 41:107, 115 Grossman N (2013) The Normative Legitimacy of International Courts. Temple Law Review 2013, p 68–79 (Dec. 2012) Helfer L, Alter K (2013) Legitimacy and Lawmaking: A Tale of Three International Courts. Theoretical Inquiries in Law 14(2):479–504 Hernández GI (2014) The International Court of Justice and the Judicial Function. OUP Keller H, Ulfstein G (eds) (2012) UN Treaty Bodies, Law and Legitimacy. CUP Kumm M (2004) The Legitimacy of International Law: A Constitutionalist Framework of Analysis EJIL 15(5):907–931, 929 Le Floch G (2008) L’urgence devant les juridictions internationales. Pedone, Paris Miles C (2017) Provisional measures before international courts and tribunals. CUP, pp 275–476 Palombino F, Virzo R, Zarra G (eds) (2021) Provisional Measures Issued by International Courts and Tribunals. T.M.C. Asser Press, The Hague Peters A (2006) Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structures. Leiden JIL 19:579–610 Petersen N (2011) Lawmaking by the International Court of Justice - Factors of Success. German Law Journal 12(5):1295–1316 Rieter E (2010) Preventing Irreparable Harm: Provisional Measures in International Human Rights Adjudication. Intersentia, Antwerp Rieter E (2012) Provisional measures: binding and persuasive? Enabling human rights adjudicators to follow up on state disrespect? NILR pp 165–198 Rieter E (2019) The ICJ and provisional measures involving the fate of persons. In: Kadelbach S, Rensmann T, Rieter E (eds) Judging international human rights. Courts of General Jurisdiction as Human Rights Courts. Springer, Heidelberg/Berlin Rieter E (2021) Autonomy of Provisional Measures. In: Palombino FM, Virzo R, Zarra G (eds) Provisional Measures Issued by International Courts and Tribunals. T.M.C. Asser Press, The Hague Ruiz Fabri H, Sorel J-M (eds) (2008) La motivation des décisions des juridictions internationales. Pedone Saccucci A (2006) Le misure provvisorie nella protezione internazionale dei diritte umani. Turin Shany Y (2014) Assessing Effectiveness of International Courts. OUP Shaw GJ (2011) The idea of effective international law. ASIL 11 April 2011 Thomas C A (2014) Uses and Abuses of Legitimacy in International Law. Oxford Journal of Legal Studies 34(4):729–758, 746

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Tzanakopoulos A (2011) Domestic Courts in International Law: The International Judicial Function of National Courts L.A. Int’L Comparative Law Review Ulfstein G (2009) The International Judiciary. In: Klabbers J et al (eds) The Constitutionalization of International Law. OUP Ulfstein G (2014) International Courts and Judges: Independence, Interaction, and Legitimacy. New York University Journal of International Law and Politics 46(3): 849–866 Voeten E (2013) Public Opinion and the Legitimacy of International Courts/ Theoretical Inquiries in Law 14(2):411–436 Von Bogdandy A, Venzke I (2012a) In Whose Name? An Investigation of International Courts & Tribunals; Public Authority and its Democratic Justification. European Journal of International Law 23(1):78–41 Von Bogdandy A, Venzke I (2012b) Beyond Dispute: International Judicial Institutions as Lawmakers. German Law Journal, p 986 Von Bogdandy A, Venzke I (2013) On the Functions of International Courts: An Appraisal in Light of their Burgeoning Public Authority. Leiden Journal of International Law 926:49–72 Weiler J (2004) The Geology of International Law – Governance, Democracy and Legitimacy. ZaöRV

Eva Rieter is senior researcher and lecturer public international law and human rights law in the Department of International and European Law at the Centre for State and Law, Radboud University Nijmegen, The Netherlands.

Chapter 2

Urgency and Human Rights: The Necessary and Legitimate Role of Regional Human Rights Tribunals Dinah Shelton Contents 2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Legal Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 The Rights Violations That Trigger Urgent Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4 Procedural Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5 Legal Consequences When Urgent Measures Are Indicated . . . . . . . . . . . . . . . . . . . . . . . 2.6 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

18 19 28 30 32 34 35

Abstract This chapter explores the use and development of the power to grant interim measures of international human rights institutions. The legal basis of such judicial power is often not explicitly found in treaties. Therefore, some states do not consider themselves legally bound as such. The chapter argues that the two needs that give rise to implied powers to take urgent measures are the administration of justice, on the one hand, and effective protection of the fundamental rights of individuals and groups within the jurisdiction of member states, on the other hand. Thus, the legal authority for this power is inherent in the judicial function and applies also to quasi-judicial bodies such as the Inter-American Commission on Human Rights. Yet precautionary measures, as they are called by this Commission, often concern sensitive matters in domestic law and politics, generating considerable internal resistance. The chapter discusses the major reform of the Inter-American Commission’s Rules of Procedure, resulting in a more legitimate process. While this overhaul satisfied the states, the chapter expresses concern for the expansion in the subject matters of precautionary measures without risk of irreparable harm. Yet the author concludes that the legal systems put in place by the agreements the states wrote, have given human rights bodies the mandate and the obligation to carefully and fairly respond to imminent threats of irreparable harm. They should continue to do so when the facts and the law justify action.

D. Shelton (B) George Washington University Law School, 2000 H St NW, Washington, DC 20006, USA e-mail: [email protected] © T.M.C. Asser Press and the authors 2021 E. Rieter and K. Zwaan (eds.), Urgency and Human Rights, https://doi.org/10.1007/978-94-6265-415-0_2

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Keywords Inter-American system · European system · African system · inherent powers · implied powers · interim measures · legal basis · legitimacy · irreparable harm · imminent risk · legally binding · provisional measures · Rules of Procedure

2.1 Introduction This chapter introduces the possibilities of, and challenges to, how international human rights institutions can act promptly when individuals claim to be threatened while exercising their fundamental rights. The comments are based on teaching and scholarship as well as being a member of the Inter-American Commission on Human Rights (IACHR) from 2010 to 2013. During this period, human rights claims in urgent situations became a public source of controversy among states, non-governmental organisations (NGOs), the Commission itself, and the Inter-American Court. The controversy led to a major reform of the Commission’s Rules of Procedure in March 2013,1 enhancing transparency, instituting new procedural guarantees for states and petitioners, and imposing obligations on the IACHR to justify its decisions to issue, maintain, or lift requests for precautionary measures. The result is a more legitimate process, with which states are largely, but not unanimously, comfortable. Notably, the reform did not, as some expected, result in fewer requests for, or grants of, precautionary measures. Measures continue to expand, generating resistance and problems of compliance on the part of some governments. It may seem somewhat mysterious that the development of human rights law has not been accompanied by a clear mandate for international and domestic tribunals to take action to prevent imminent and irreparable harm to human rights. Most international agreements omit all mention of urgent action. Governments have been reluctant to confer on human rights courts and tribunals the authority to restrain abuses by their agents and third parties, or the power to direct government conduct. Tribunals are criticised for overstepping their functions by interfering with executive or administrative decisions, often allegedly at the expense of economic development,2 or national security. In this light, this chapter discusses several important questions that arise when there is a need for urgent action, especially: – whether human rights bodies may rely on implied powers to issue such measures in the absence of a specific treaty provision on point;

1 See

Article 25, amended at the 147th Regular Period of Sessions, 8–22 March 2013, available at www.iachr.org/Rulesofprocedure. 2 See e.g. the Belo Monte example discussed in note 34.

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– what the circumstances are that justify preventive measures. In particular, whether these measures protect the litigation process (administration of justice) or protect the persons requesting the measures, allowing such measures to be granted even when no case is pending; – what standards the human rights bodies should apply in deciding whether to ask states to adopt preventive measures; – what procedures should be followed, including the question of whether the government should be given a chance to comment or respond to requests for preventive measures before they are issued; – what the legal status is of such measures and the question if they impose binding obligations on the state to which they are addressed.

2.2 Legal Authority All human rights bodies and certainly most domestic courts have faced requests for protection from individuals and groups threatened with what they perceive as an imminent menace of harm to their lives or well-being. By now, most such bodies have determined and analysed the scope of their authority to respond to requests for protection, whether in the context of pending proceedings or as an independent matter. Temporary restraining orders, injunctions, mandamus, interim measures, precautionary or provisional measures are all terms familiar to judges and human rights litigators. These kinds of measures are found to be of fundamental importance for two different reasons. On the one hand, measures are deemed necessary to preserve the subject matter of pending proceedings. Specifically, measures are ordered for the proper administration of justice in the interest of the tribunal. On the other hand, human rights tribunals and domestic courts see the issuance of such measures as an inherent part of their mandate to protect individuals from violations of law by state or non-state actors. Since the creation of the first international tribunals, at the end of the nineteenth century,3 debates have arisen about the scope of judicial mandates, with scholars and governments criticising or supporting activism and the independence of international bodies,4 with particular attention given to questions of inherent and implied judicial powers.5 States can delegate specific functions to international adjudicative bodies:

3 The

first such bodies were the Permanent Court of Arbitration and the short-lived Central American Court of Justice (1907–1918), followed later by the Permanent Court of International Justice (“PCIJ”), predecessor to the current International Court of Justice (“ICJ”). For an introduction to international courts and tribunals, see: Janis 1992. 4 For general discussions of the powers of international tribunals, see Bilder 1986; Noyes 1995. On the nature of the international judicial function, see e.g. Amerasinghe 2007. 5 See generally Gaeta 2003; Orakhelashvili 2005; Brown 2005.

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dispute settlement and redress,6 compliance assessment,7 enforcement,8 and legal advice (advisory opinions).9 These functions in turn give rise to various inherent or implied powers. As a result of the complex and varied reasons that lead states to

6 The

function of the ICJ, as the principal judicial organ of the UN, “is to decide in accordance with international law such disputes as are submitted to it.” Statute of the International Court of Justice (1945), Article 38(1) 59 Stat 1031 (“ICJ Statute”). The panels and Appellate Body of the World Trade Organization are also dispute settlement bodies, although the states parties declined to establish a court to decide trade disputes. Understanding on Rules and Procedures Governing the Settlement of Disputes, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, reprinted in 33 ILM 1226, 1227 (1994) (“DSU”). The functions of the International Tribunal for the Law of the Sea include dispute settlement, but also include compliance monitoring. United Nations Convention on the Law of the Sea (1982), 1833 UN Treaty Ser 3, Annex VI (1994) (“ITLOS Statute”). 7 While international human rights courts have jurisdiction to redress violations of human rights, they are created “to ensure the observance of the engagements undertaken by the High Contracting Parties.” European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), Article 17, 213 UN Treaty Ser 221 (1953) (“European Convention on Human Rights”). Or, similarly, these courts “have competence with respect to matters relating to the fulfilment of the commitments made by the States Parties” to the human rights treaty. American Convention on Human Rights (1969), Article 33, 1114 UN Treaty Ser 123 (1978). 8 The Rome Statute of the International Criminal Court grants the court “the power to exercise its jurisdiction over persons for the most serious crimes of international concern” in order to ensure that they do not go unpunished and that their effective prosecution may put an end to impunity. Statute of the International Criminal Court (1998), Article 1 and preamble, 4–5, 2187 UN Treaty Ser 91 (2002). 9 See, for example, Article 63(1) of the American Convention on Human Rights, supra n. 6, which gives the Inter-American Court of Human Rights (IACtHR) broad advisory jurisdiction in contrast to Articles, 47 and 48 of the European Convention on Human Rights and Fundamental Freedoms, id., which provides more limited ability for the European Court of Human Rights (ECtHR) to render advice. Yet see also Protocol 16, extending the jurisdiction of the ECtHR by enabling it to give advisory opinions in response to requests from the highest courts or tribunals of states parties to the Convention. It entered into force on 1 August 2018. The African Court of Human and Peoples’ Rights (ACtHPR) “may provide an opinion on any legal matter relating to the Charter or any other relevant human rights instruments, provided that the subject matter of the opinion is not related to a matter being examined by the Commission.” (Article 4(1) Protocol to the African Charter on

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create international courts and tribunals,10 controversy emerges over the institution’s primary purpose or function and utilisation of implied and inherent powers. Current debates over further reform of the European Court of Human Rights (ECtHR) and the Inter-American Commission on Human Rights (IACHR), as well as UN treaty bodies, in part, reflect these disagreements. In specific matters, the use of implied powers occasionally causes backlash from states which are subject to the exercise of those powers. Extensive and long-standing jurisprudence supports the view that any institution that carries the name ‘court’ or ‘tribunal’ has certain inherent powers, 11 that are necessary to allow it to fulfil the judicial function, irrespective of limitations placed on the court’s jurisdiction or the type of proceedings it conducts.12 These inherent attributes extend to human rights commissions and committees when they are hearing and deciding cases or otherwise exercising their explicitly-conferred quasi-judicial or protective mandates. Human rights tribunals in general are created by, and have jurisdiction in respect to, a specific treaty or treaties, wherein the rights and obligations are set forth in detail and indications are given of the norms that the tribunal may apply.13 Unlike the International Court of Justice (ICJ), the functions of human rights tribunals are not limited to, or even primarily about, dispute settlement. International human rights bodies are created expressly ‘to ensure the observance of the engagements undertaken by the High Contracting Parties’,14 as stated in the European Convention on Human Rights (ECHR), or, in the language of the American Convention on Human Rights (ACHR), they ‘have competence with respect to matters relating to the fulfilment of the commitments made by the States Parties’ to the agreement.15 These functions centre on monitoring and promoting compliance. Human And Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, 10 June 1998 (entry into force 25 January 2004). 10 On the multiple motivations behind the establishment of international criminal courts, see Caron 2006. 11 For a more extensive discussion, see Shelton 2017. 12 Inherent power is “[a] power that necessarily derives from an office, position or status.” Black’s Law Dictionary 1208 (West 8th edn. 2004). Inherent “[exists] in something as a permanent attribute or quality; forming an element, esp[ecially] a characteristic or essential element of something; belonging to the intrinsic nature of that which is spoken of.” 7 Oxford English Dictionary 969 (Clarendon 2nd edn. 1989). 13 In some instances, human rights treaties give the commission or court an expansive list of normative sources they may apply in interpreting the guaranteed human rights. See, e.g., African Charter on Human and Peoples’ Rights, Articles 60, 61. More generally, the rules of treaty interpretation found in the Vienna Convention on the Law of Treaties, Article 31, especially para 3(c), call for taking into account “any relevant rules of international law applicable in the relations between the parties.” Vienna Convention on the Law of Treaties (1969) Article 31, 1155 UN Treaty Ser 331. Human rights tribunals are increasingly utilizing this provision to place specific treaties in a broader legal context to interpret their guarantees or to reconcile conflicting international obligations. See, for example, Al-Adsani v UK, 34 Eur Ct HR 11 (2002). 14 European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950), Article 17, 213 UN Treaty Ser 221 (1953) (“European Convention on Human Rights”). 15 American Convention on Human Rights (1969), Article 33, 1114 UN Treaty Ser 123 (1978).

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Certainly, states have the power to mandate that only one side to a dispute be heard and to require a ‘court’ to decide on the basis of the evidence and arguments of that party alone. However, most (human rights) observers would not consider such an institution a ‘court of justice’ operating under the rule of law.16 In general, courts must have the powers necessary to make independent decisions, because ‘[t]he essence of the judicial power or function requires independence of every judicial organ in every sense’.17 Judges have a duty to conduct a fair hearing and decide impartially on the matters before them. Judicial independence and impartial decision-making are essential to fair proceedings and, therefore, are more likely to submit their differences to judicial resolution and comply with decisions if they expect and are afforded procedural fairness, resulting in a judgment based on the facts presented and the applicable law. This will further the interest of society by seeing disputes settled by peaceful means. The ICJ has consistently identified a bundle of inherent powers founded in the judicial function: [. . .] it should be emphasized that the Court possesses an inherent jurisdiction enabling it to take such action as may be required, on the one hand, to ensure that the exercise of its jurisdiction over the merits, if and when established, shall not be frustrated, and on the other, to provide for the orderly settlement of all matters in dispute, to ensure the observance of the “inherent limitations on the exercise of the judicial function” of the Court, and to “maintain its judicial character” [. . .] [s]uch inherent jurisdiction, on the basis of which the Court is fully empowered to make whatever findings may be necessary for the purposes just indicated, derives from the mere existence of the Court as a judicial organ established by the consent of States, and is conferred upon it in order that its basic judicial functions may be safeguarded.18

International courts sometimes refer to their inherent powers as deriving from the proper administration of justice.19 The statutes of most international tribunals, including human rights bodies,20 expressly allow them to make procedural orders for the conduct of proceedings. Judge Fitzmaurice has commented that such procedural or incidental jurisdiction need not be expressly mentioned because it is ‘really an

16 Thirlway has noted that “[i]f states setting up an international body classify it as a court or tribunal, then there is no need for them to spell out in its constitutive document that it is under an obligation to hear both sides before deciding; by calling it a court they are already implicitly giving it that instruction.”; Thirlway 1984. See also Blackman 1995. 17 Amerasinghe 2007 (cited in note 3). 18 ICJ Nuclear Tests (Austl v Fra), 1974 ICJ 253, 259–60 (20 December 1974). 19 See, for example, ICJ Legality of Use of Force (Serb and Mont v Belg), 44 ILM 299 (ICJ 18 February 2005), especially the separate opinions of Judge Higgins, id at 341–42, and Judge Kooijmans, id at 345, 349. 20 See, for example, European Convention on Human Rights, Article 26(d); American Convention of Human Rights, Article 60; Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, Article 15, 32 ILM 1159 (1993) (25 May 1993) (“ICTY Statute”).

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inherent jurisdiction, the power to exercise which is a necessary condition of the Court – or any court of law – being able to function at all’.21 Human rights bodies often focus on the broad public aim of the regime in which they operate.22 The ECtHR has referred to the public order of Europe and expressed its role as being one to provide advice for states on compliance with their human rights obligations under the ECHR.23 That Convention has a ‘special character’ as a treaty for the collective enforcement of human rights, comprising a network of mutual undertakings rather than reciprocal engagements between contracting states.24 The role of the ECtHR, in light of the object and purpose of the Convention, is to interpret and apply its provisions ‘so as to make its safeguards practical and effective’.25 As such it may look beyond the litigated facts, parties, or Convention language, to achieve a decision that will guide all states bound by the same substantive obligation. In this context, the ECtHR has held that its functions are ‘not only to decide those cases brought before it, but more generally, to elucidate, safeguard and develop the rules instituted by the Convention’.26 Clearly, the narrower purpose of a human rights proceeding, to vindicate the rights of the applicant, may be defeated by actions taken during the pendency of the matter for example, if the respondent state executes or deports the petitioner. Even without a pending case, individuals within the jurisdiction of a state party may be threatened with imminent and/or irreparable injury. The power of international tribunals to take urgent action aimed at preventing such harm is exercised by all human rights bodies that hear petitions. It could be argued that such power is inherent to the administration of justice and within judicial powers, even without express authority, as a means of ensuring the effectiveness of the ultimate decision. Human rights bodies have articulated two needs that give rise to such implied powers to take urgent measures: administration of justice, one the one hand, and effective protection of the fundamental rights of individuals and groups within the jurisdiction of member states, on the other hand.27 Recent treaties, such as the Inter-American Convention 21 ICJ Northern Cameroons (Cameroons v UK), 1963 ICJ 15, 103 (20 December 1963) (separate opinion of Judge Fitzmaurice). 22 On courts as compliance bodies, see Moremen 2006. 23 See e.g. ECtHR Loizidou v. Turkey (Preliminary Objections) Application no. 15318/89 (1995), para 75. 24 See e.g. ECtHR Soering v UK, judgment of 7 July 1989, Series A no. 161: when “interpreting the Convention regard must be had to its special character as a treaty for the collective enforcement of human rights and fundamental freedoms”, para 87 or Loizidou v Turkey (preliminary objections) [GC], Judgment of 23 Mar 1995, Series A no. 310: “Unlike international treaties of the classic kind, the Convention comprises more than mere reciprocal engagements between Contracting States. It creates, over and above a network of mutual, bilateral undertakings, objective obligations which, in the words of the Preamble, benefit from a ‘collective enforcement’”, para 70. 25 ECtHR Mamatkulov, 4 February 2005, App No 46827/99, p. 101. 26 Ireland v United Kingdom, 25 Eur Ct HR (ser A) p. 154 (1978). 27 In the Fisheries Jurisdiction case, for example, the ICJ indicated a provisional measure to prevent Iceland from immediately implementing its proposed regulations, because application of the regulations would “prejudice the rights claimed by the United Kingdom and affect the possibility of their full restoration in the event of a judgment in its favor.” Fisheries Jurisdiction Case (UK v Ice), 1972

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on Forced Disappearance of Persons, expressly confer the power to issue requests for interim or precautionary measures, but most tribunals have recognised the implied power to do so in the absence of express language on point. Various judges of the ECtHR have pointed out that a proposal to include an article on provisional measures in the ECHR, similar to Article 41 of the ICJ Statute, was omitted from the final draft as adopted. For this reason, they suggest that states thereby deliberately withheld this power from the Court. By 1957, however, it became clear that the European supervisory bodies and processes could not function effectively without the possibility of indicating such measures. The 1957 European case giving rise to the practice was a death penalty case in which the (former) European Commission on Human Rights sent an urgent request to the United Kingdom to halt a planned execution in Cyprus, then under British control.28 The practice was somewhat inconsistent thereafter, until in 1974 the it adopted Rule 36 of its Rules of Procedure to govern provisional measures. The European Court’s Rule on point was added in 1982 and became operative in January 1983. Today, Rule 39 of the European Rules of Court provides that the Chamber or its President may, at the request of a party or any other person concerned, or of its own motion, ‘indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it’.29 This Rule seems to envisage the issuance of such measures only in respect to pending matters, in order to prevent irreparable damage to the enjoyment of human rights and safeguard the effectiveness of any decision by preventing particularly harmful violations, that would not be reparable by a decision on the merits.30 But the Court has extended the practice to afford interim measures prior to an application being filed, as long as the request discloses enough elements to suggest that an arguable case exists.31 The original Rules of Procedure of the IACHR had no text on this issue. During the 1970s and 1980s the Commission informally requested information regarding disappeared persons based on information it received. Precautionary measures were established by the IACHR’s Rules of Procedure adopted in 1980, following the entry into force of the ACHR. This document defined the purpose of the procedure as being not only to preserve the matter of dispute in a contentious case, but also to respond to situations of imminent risk of irreparable harm to the life or personal integrity of persons under the jurisdiction of member states. Thus, the IACHR deliberately chose ICJ 12, 22 (17 August 1972). Compare Fisheries Jurisdiction Case with Aegean Sea Continental Shelf Case (Greece v Turkey), 1976 ICJ 3, 17, 33 (11 September 1976) (refusing to exercise its “extraordinary power” to indicate provisional measures because reparation by “appropriate means” could be made following any judgment in favour of the applicant). 28 European Commission on Human Rights, Application of the ECHR to the Island of Cyprus (Greece v United Kingdom), 26 September 1958, no, 176/56, p. 34. See further Rieter 2010, pp. 173–174, 214–215 and references therein. 29 Interim measures are issued pursuant to Rule 39(1) of the Rules of Court, amended by the Plenary Court on 14 January and 6 February 2013. On the European Court’s practice, see Keller and Marti 2013. 30 Rieter 2010. 31 Keller and Marti 2013, supra n. 29, at 331.

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to establish precautionary measures as a mechanism separate from the processing of complaints, to protect those whose rights are at risk in any member state. The power to issue precautionary measures was retained in improved language in the Commission’s revised Rules of Procedure adopted in 2001, which were again revised in 2012 after further controversy. One source of the controversy is that in 1969, the states drafting the ACHR chose not to include a provision on the Commission’s power to take such action, but instead provided that the Commission could request the Inter-American Court to order ‘provisional measures’ in urgent cases which involve danger to persons, even where a case has not yet been submitted to the Court.32 Some states have argued that by implication this means that the Court is the only body with a mandate to take urgent action. One problem with this interpretation is that not all members of the Organization of American States (OAS) have ratified the ACHR, leaving in particular those in North America and the Caribbean without protection through urgent measures, unless the IACHR can act. It seems unlikely that the states envisaged a two-tier system where states parties would only be subject to measures issued by the Court, while non-parties would be under the mandate of the IACHR with respect to urgent action. Legally, it can be argued that OAS member state acquiescence over nearly four decades, plus positive affirmation, gives legitimacy to the IACHR practice of issuing requests for precautionary measures. Resolution AG/RES. 2227 (XXXVI-O/06) adopted by the gathering of the OAS General Assembly held in June 2006 reaffirmed the essential value of the work carried out by the Commission to enhance the protection and promotion of human rights and the reinforcement of the rule of law in the hemisphere. It expressly encouraged the member states to ‘follow up on the recommendations of the IACHR, including, inter alia, precautionary measures’.33 In the Inter-American system, the present-day source for the Commission’s practice relating to precautionary measures lies in Article 25 of its Rules of Procedure, which is the most extensively elaborated provision relating to protective measures in any of the regional human rights bodies.34 In receiving and reviewing petitions, or upon the filing of a separate request, the IACHR, pursuant to Article 25 of its Rules 32 American Convention Article 63(2) makes clear that the measures can be taken at any time during the litigation. In fact, the Court in some early cases used provisional measures following a judgment on the merits, even respecting reparations. It now consolidates these later stages in its supervision of judgments. Compare Article 35 of the Protocol on the Statute of the African Court of Justice and Human Rights (2008): 1. The court shall have the power, on its own motion or on application by the parties, to indicate, if it considers that circumstances so require any provisional measures which ought to be taken to preserve the respective rights of the parties. 2. Pending the final decision, notice of the provisional measures shall forthwith be given to the parties and the Chairperson of the Commission, who shall inform the Assembly. 33 AG/RES. 2227 (XXXVI-O/06) Observations and Recommendations on the Annual Report of the

Inter-American Commission on Human Rights, 6 June 2006. 34 Approved by the Commission at its 137th regular period of sessions, held from 28 October to 13 November 2009, and modified on 2 September 2011 and during the 147th Regular Period of Sessions, held from 8 to 22 March 2013, for entry into force on 1 August 2013. See also the

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of Procedure, may, at its own initiative or at the request of a party, request that a state adopt precautionary measures concerning serious and urgent situations presenting a risk of irreparable harm to persons or to the subject matter of a pending petition or a case before the organs of the Inter-American system. The Article thus explicitly applies to urgent situations, even when no petition has been filed. Like other human rights bodies, the IACHR is receiving a growing number of petitions each year, as well as an increasing number of requests for precautionary measures, the latter reaching almost five times the number from the total requested in 2005, which is 265 to 1061 in 2016, 1037 in 2017 and 1618 in 2018.35 The IACHR granted or extended 54 precautionary measures in 1998, 52 in 1999 52 in 2000, and 50 during 2001; 91 in 2002; 56 in 2003, 37 in 2004, 33 in 2005, 37 in 2006, 40 in 2007, 28 in 2008 34 in 2009, 68 in 2010, 57 in 2011, 35 in 2012, 26 in 2013, 33 in 2014, 45 in 2015, 42 in 2016, 45 in 2017, and 120 in 2018. The reduction in favourable responses in later years may reflect the ‘chilling effect’ of Brazil’s campaign from 2011 to 2013 to restrict the IACHR’s power to issue precautionary measures, as a consequence of the Belo Monte dispute.36 Especially relevant are the low figures for 2012–2014. Resolution 1/2013, Reform of the Rules of Procedure, Policies and Practices, the Commission’s explanatory statement of 18 March 2013, Corr.1. 35 Annual Report of the IACHR 2018, Chapter II, p. 77, available at http://www.oas.org/es/cidh/. “In 2018 the IACHR received a total of 1,618 requests for precautionary measures, which was the highest number of such requests that it has received in one year and 50% more than the previous year. Of that total, 90% were evaluated in the light of the requirements contained in Article 25 the Rules of Procedure. The Commission granted 120 precautionary measures in 2018, which was at once its highest number in one year, and the highest percentage of precautionary measures adopted (7.2%) relative to the number received since the amendment of its Rules of Procedure in 2013. Due to the serious situation of risk in which the applicants were, The Commission also granted a significant number of precautionary measures without requesting information in advance from the State, in accordance with the exception envisaged at Article 25.5 of its Rules of Procedure. At the same time, the Rapid and Integrated Response Coordination Unit (SACROI) set up in response to the human rights crisis in Nicaragua, evaluated around 400 requests for precautionary measures.” 36 On 1 April 2011, the IACHR granted precautionary measures for the members of the indigenous communities of the Xingu River Basin in Pará, Brazil. The request was based on allegations that the life and physical integrity of the beneficiaries was at risk due to the impact of the construction of the Belo Monte hydroelectric power plant. The Inter-American Commission requested that the State of Brazil immediately suspend the licensing process for the Belo Monte Hydroelectric Plant project and stop any construction work from moving forward until the state (1) conducted free, informed consultations, in good faith, culturally appropriate, and with the aim of reaching an agreement; (2) guaranteed that the indigenous communities have access beforehand to the project’s Social and Environmental Impact Study, in an accessible format, translated into the respective indigenous languages; (3) adopted measures to protect the life and physical integrity of the members of the indigenous peoples in voluntary isolation of the Xingu Basin, and to prevent the spread of diseases and epidemics among the indigenous. This includes any diseases derived from the massive influx of people into the region as well as the exacerbation of transmission vectors of water-related diseases such as malaria. The request was modified on 29 July 2011 after information was received from the state and the petitioners. After receiving the initial request, the state withdrew its OAS ambassador and nominee for the IACHR, and halted its financial contributions to the organization. It joined other critics of the IACHR in launching the “strengthening” process to reform the Commission, including through challenging the IACHR’s ability to issue precautionary measures.

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It should also be noted that, different from the European system, the number of precautionary measures granted is well below the number of individuals affected, because the measures can protect more than one person or group of persons, often covering entire local populations or communities.37 Indeed, the total number of persons protected by precautionary measures is in fact impossible to determine, because sometimes a community is identified without specifying the number of individuals it contains.38 This has been one of the objections of states to some of the requests issued by the IACHR: they claim it is impossible to protect a group that is neither identified nor easily identifiable. The revised Rules of Procedure of 2014 now specify that ‘precautionary measures may protect persons or groups of persons, as long as the beneficiary or beneficiaries may be determined or determinable through their geographic location or membership in or association with a group, people, community or organization’.39 The African Charter on Human and Peoples’ Rights (ACHPR) mirrors the other regional systems, with no provision specifically authorising the African Commission on Human and Peoples’ Rights (AComHPR) to issue provisional or precautionary measures. Instead, several provisions of the Rules of Procedure permit the AComHPR to take actions including adopting provisional measures.40 During the period of time between the receipt of a communication and before the decision on the merits, the AComHPR may, on its own initiative or at the request of a party, request the adoption of provisional measures. This could be done to, according to Rule 98(1), to ‘prevent irreparable harm to the victim or victims of the alleged violation as urgently as the situation demands’. The granting of these measures and their implementation shall not constitute a ‘prejudgment on the merits’ of a Communication, as stated in Rule 98(5). If the AComHPR is not in session, the Chairperson or, in his or her absence, the Vice-Chairperson shall request the concerned state to adopt provisional measures on behalf of the Commission. In these circumstances, the members of 37 In a single request involving Paraguay, for example, on 8 August 2001 the Commission requested that precautionary measures be adopted on behalf of 255 minors who had been held at the Panchito López Reeducation Center for Minors (petition 11.666). 38 For example, on 4 June 2001, the IACHR granted precautionary measures on behalf of Kimi Domicó, Uldarico Domicó, Argel Domicó, Honorio Domicó, Adolfo Domicó, Teofan Domicó, Mariano Majore, Delio Domicó, Fredy Domicó, and “other [unnamed] members of the Embera Katio indigenous community of Alto Sinú” who had been abducted from the community’s main town and neighbouring areas. The State was asked, as a matter of urgency, to take the steps necessary to clarify the whereabouts of these persons and to protect their lives and persons; to take the steps needed to protect the other members of the Embera Katio indigenous community of Alto Sinú, working in collaboration with the petitioners; and to investigate, judge, and punish those responsible for the attacks perpetrated against the community. After the State replied, the parties continued to submit information and comments in connection with these precautionary measures. See: https:// www.oas.org/en/iachr/indigenous/protection/precautionary.asp, accessed 10 May 2020. 39 IACHR Rules, Article 25(3). 40 There is also a more political mechanism for structural urgent situations, as referred to in Article 58(3) ACHPR and Rules 79 and 80 of the commission’s Rules of Procedure. http://www.achpr. org/files/instruments/rules-of-procedure-2010/rules_of_procedure_2010_en.pdf (accessed 21 July 2019).

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the AComHPR shall be informed (Rule 98(2)). Pursuant to the third paragraph, the request for provisional measures shall be transmitted to the state concerned and a copy shall be sent to the victim, the Assembly, the Peace and Security Council and the African Union Commission. As to follow-up, the AComHPR shall request the state to report back on the progress of the implementation. Such information must be submitted within 15 days after the receipt of the request for provisional measures (Rule 98(4)). Rule 118 lays out a non-compliance possibility. If the Commission considers that the state has not complied with the provisional measures requested, the Commission may refer the communication to the Court and inform the complainant and the state concerned. It can do so if a situation in a case that has come to its attention constitutes a serious or massive violation of human rights. The Commission may seize the Court at any stage of the examination of a communication if it deems necessary. As for the African Court, the Protocol establishing it provides in Article 27(2) that ‘[i]n cases of extreme gravity and urgency, and when necessary to avoid irreparable harm to persons, the Court shall adopt such provisional measures as it deems necessary’. These two conditions are generally thought to be cumulative. Despite this seemingly high threshold, the African Court issued 33 orders for provisional measures between 2011 and 2019.41

2.3 The Rights Violations That Trigger Urgent Action In an early assessment of provisional measures in inter-state matters, one scholar posited that the measures ‘should go no further than necessary to fulfil their purpose’, and should cause the ‘least harm’ to the state.42 The early use of precautionary or interim measures in the regional human rights systems, mostly concerned matters of life and death or other threats to physical integrity. In the Inter-American system, requests often involve application of the death penalty or extrajudicial killings. The single largest group of measures to date have concerned death row inmates. The IACHR has issued nearly 100 requests for precautionary measures on capital punishment matters, primarily involving Jamaica, Trinidad and Tobago and the United States (US). Because the death penalty is not prohibited as such by the American Declaration or Convention, the petitioners in these cases generally raise questions on the fairness of the proceedings that resulted in the conviction and penalty. If a trial is unfair, then imposition of the death penalty is deemed to violate the right to life. In contrast to the Inter-American practice, most requests for interim measures in the European system concern other issues, given the abolition of the death penalty. They concern in particular staying removals or deportations of aliens who allege that 41 See

Ebobrah, Chap. 5 in this volume, on legitimacy in the African system. See Burbano Herrera and Haeck, Chap. 10 in this volume, on the Inter-American Court and the context of systemic detention issues. 42 Dumbauld 1932.

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their expulsion would violate the principle of non-refoulement because of the risk of torture, ill-treatment, threats to life and, exceptionally, other serious violations of human rights that may cause irreparable harm. Although most cases in which urgent measures are requested involve threats to life or physical security, these are not the only types of matters in which individuals have sought and received precautionary measures. In a number of instances in the Inter-American system, indigenous communities have sought and received protection when threatened with expulsions or forcible evictions from their ancestral lands, to make way for development projects. These situations are often complex and difficult, involving not only the indigenous communities and state agents, but often multinational companies and the state where they are headquartered or incorporated.43 Most recently, the types of matters deemed suitable for urgent measures has increased in a manner that may threaten the future of the systems. It has long been accepted that loss of liberty is not an irreparable injury, but may be compensated if it is later determined that the trial or law on which the incarceration was based, violated human rights standards. There has generally been no willingness to grant precautionary measures to avoid the imposition of a sentence of imprisonment while the matter is being adjudicated. The IACHR, however, accepted a request for precautionary measures in a case from Ecuador involving criminal defamation charges against a journalist and publisher, asking the state not to enforce the judgment until the Commission could review the matter.44 This decision opens the door for requests from every convicted criminal for the issuance of measures to avoid going to prison, on the basis that the underlying law or the unfairness of the trial requires enjoining application of the sentence.45 Another case goes further, prohibiting the state of Colombia from removing an impeached mayor from office on corruption charges, pending an IACHR decision 43 See, in particular, the lengthy proceedings and precautionary measures involving the Marlin Mine in Guatemala. 44 PM 406/11—Emilio Palacio, Carlos Nicolás Pérez Lapentti, Carlos Pérez Barriga and César Pérez Barriga, Ecuador (11 February 2011). The decision was based on information received by the Commission regarding a process of libel and slander initiated by President Rafael Correa against journalist Emilio Palacio, the three directors of the newspaper El Universo and the newspaper El Universo. The National Court of Justice of Ecuador confirmed the judgment sentencing the beneficiaries to three years in prison and ordering them to pay 40 million dollars. The Commission found that the facts reported could cause irreparable damage to the right to freedom of expression of the petitioners and it requested the Government of Ecuador to immediately suspend the effects of the judgment. On 9 March 2012, the IACHR lifted the precautionary measures and archived the file, after receiving a communication from the petitioners asking that the measures be lifted. 45 See also: PM 30/14—Fernando Alcibíades Villavicencio Valencia et al., Ecuador (24 March 2014). The IACHR requested that precautionary measures be adopted in the context of an individual petition alleging violations of the rights enshrined in Articles 8 (right to fair trial), 9 (freedom from ex post facto laws), 13 (freedom of thought and expression), and 25 (judicial protection), in conjunction with the general obligations established in Articles 1(1) and 2 of the American Convention on Human Rights. Specifically, the petitioners asked for precautionary measures “in order for the State to suspend the implementation of the cassation ruling issued against them on January 14, 2014” until the IACHR has ruled on individual petition P-107-14.

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on the merits of whether the removal was justified and procedurally correct.46 In this case, the Commission has likely rendered the case moot, because by the time it will reach the merits of the dispute, the mayor’s term of office will have been completed. The decision on precautionary measures in fact prejudges the outcome of the case.

2.4 Procedural Issues The procedures through which precautionary measures are applied by the InterAmerican and African Commissions are not detailed in the Rules of Procedure and have developed somewhat ad hoc. In this respect, the procedures have reflected some, though not all, of the processes applied in processing individual petitions. In particular, because both the precautionary and protective elements of precautionary measures are intended to address cases of extreme gravity and urgency,47 the Inter-American Commission expedites the processing of precautionary measures requests. The Commission Secretariat attempts to evaluate them within 48 hours from the moment of receipt. In addition, the Inter-American Commission, like the Inter-American Court, does not require persons or groups requesting precautionary measures to present definitive proof of the facts alleged, but rather proceeds on the basis of a reasonable prima facie presumption that the facts alleged are accurate, taking into account the general credibility of the source or sources of available information. 46 PM 374/13—Gustavo Francisco Petro Urrego, Colombia (18 March 2014). The precautionary measures were requested on behalf of Gustavo Francisco Petro Urrego, Mayor of Bogotá in the context of individual petition P-1742-13. The petitioners asked that, “in order to prevent irreparable harm to persons or to the subject matter of the petition, the judicial action being brought by the Attorney General’s Office against Gustavo Petro be suspended.” After analysing the allegations of fact and law presented by the parties, the Commission found that the information presented showed prima facie that the situation involving the petitioner’s political rights, is serious and urgent, as the implementation of the effects of the decision removing him from office and ruling him ineligible to exercise his political rights could render ineffective an eventual decision on petition P-1742-13. The Commission requested that the State of Colombia immediately suspend the effects of the decision of 9 December 2013, issued and ratified by the Attorney General’s Office on 13 January 2014, so as to ensure that Mr. Gustavo Francisco Petro Urrego can exercise his political rights and complete his term as Mayor of Bogotá, for which he was elected on 30 October 2011, until the IACHR has ruled on individual petition P1742-13. 47 See e.g. IACtHR Matter of the Peace Community of San Jose de Apartado, Provisional measures regarding Colombia, Order of 30 August 2010, 5th considering Clause (referring to, e.g., Case of “La Nación” Newspaper. Provisional Measures regarding Costa Rica. Order of the Inter-American Court of Human Rights of 7 September 2001, 4th Considering Clause): “In International Human Rights law, provisional measures have a character not only precautionary, in the sense that they preserve a legal situation, but fundamentally protective, insofar as they protect human rights by seeking to prevent irreparable harm to persons. Accordingly, provisional measures are transformed into a true legal guarantee of a preventative character.” In other words, the Court distinguishes between preventive (or precautionary) elements of irreparable harm, which is in relation to maintaining the integrity of the proceedings/complaint system and the protective elements in relation to preventing irreparable harm to persons.

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If the Commission has questions or doubts concerning the information presented, it may and frequently does, request additional information from the applicant concerning the details, before deciding whether to grant or reject the request for precautionary measures. Similarly, in the event that the Commission considers that information in the possession of the state may shed light upon the necessity of precautionary measures, the Commission may, and frequently does, request that information from the state concerned before deciding whether to grant or deny precautionary measures. Nonetheless, in some cases, due to the urgency of a situation, the relevant state is not always consulted or notified prior to a decision to grant precautionary measures. It could be argued that this violates a fundamental principle of juridical equality between the parties in adversarial proceedings. In part to alleviate such concerns, Article 25 of the Inter-American Commission’s Rules does require the Commission to seek information from the state prior to adopting precautionary measures, ‘unless the urgency of the situation warrants the immediate granting of the measures’. In the event that the Commission decides to grant precautionary measures, it transmits the necessary information to the state concerned, together with the Commission’s request, and asks for information within an abbreviated period of time concerning the measures taken by the state to implement the Commission’s measures. Based upon the information received, the Commission has numerous procedural options, including requesting further information from the parties or, should the situation be resolved, lifting the measures. There is no clearly defined procedure in place for periodic review and reconsideration of measures that have been granted, but Article 25(6) of the Inter-American Commission’s Rules does establish a general responsibility of the Commission to evaluate periodically whether they should be maintained. In addition, reconsideration may be requested at any time by one of the parties. Litigants in the various systems have expressed concern over the lack of transparency in procedures and the bases on which decisions are taken. Urgency sometimes means that a decision must be taken immediately, without the delay occasioned by requesting a response from the state to the assertions made on the need for urgent action. Such ex parte action is and should be exceptional, but remains necessary in practice. In the IACHR, the 2013 revision of the Rules judicialised the procedure by insisting on a reasoned decision with a published vote of the Commissioners. The Rules also sets forth for the first time the procedure for granting, lifting, prolonging, or amending the requested measures. It further elucidates the relationship between the IACHR’s precautionary measures and the Court’s provisional measures, indicating that a decision by the Court not to grant provisional measures will have the effect of terminating IACHR measures previously granted.48 As was the case for the IACHR before the revision of the Rules, the European Court communicates its decision to grant or deny interim relief to the parties only without

48 The

IACHR normally will address the Court for provisional measures if a state fails to comply with requested precautionary measures and the threat of imminent irreparable harm remains.

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giving reasons for the decision.49 Although discussions have been held about giving reasoned decisions, the Registry has argued that for practical reasons, this should be done only on an ad hoc and exceptional basis.50 A state can ask for the lifting of an interim measure at any time. In response to the expressed desire of some states for ‘a significant reduction in the number of interim measures granted’,51 the ECtHR created a special unit within the Registry in 2011 to deal with requests for interim measures. The number of requests granted declined significantly after the creation of the Registry unit, from 40% in 2010 to 5% in 2012.52 Despite this, the 2012 Brighton Declaration ‘invited the Committee of Ministers to consider further the question of interim measures’, and ‘propose any necessary action’ in this respect.53 The objection of states seems to be less the quantity than the subject matter of decisions taken. In other words, the problem for objecting states seems to be situated in the material issues in which the Court interferes, such as matters dealing with immigration, national security, and social security.

2.5 Legal Consequences When Urgent Measures Are Indicated Beyond exercising their implied power to issue interim measures, human rights tribunals have held that such measures are legally binding. The Inter-American Court has stated on several occasions that compliance with provisional measures is necessary to ensure the effectiveness of its decisions on the merits.54 The ECtHR initially 49 Council of Europe, Steering Committee for Human Rights (CDDH), Report on Interim Measures under Rule 39 of the rule of Court, CDDH(2013)R77, Addendum III, 22 March 2013, para 33. 50 Drafting Group C on the Reform of the Court (GT-GDR-C), Article 39 of the Rules of Court: Modalities of Application and Procedure, Information document by the Registry of the Court, GT-GDR-C(2012)009, 7 December 2012, para 31. 51 High Level Conference on the Future of the European Court of Human Rights, Izmir Declaration, 27 April 2011, Follow-up Plan, para 4 (implementation): https://www.echr.coe.int/Docume nts/2011_Izmir_FinalDeclaration_ENG.pdf. 52 Keller and Marti 2013, supra n. 29, at 336. The official statistics report on the percentage of decisions taken, not on the percentage of requests submitted; they are available at http://www.echr. coe.int. 53 High Level Conference on the Future of the European Court of Human Rights, Brighton Declaration, 20 April 2012, para 12 e. 54 See, for example provisional measures orders in Chunimá v Guatemala (1 August 1991); Caso Loayza Tamayo v Perú, (2 July 1996) (13 September 1996) (11 November 1997) (13 December 2000) (3 February 2001) (28 August 2001); James et al v Trinidad and Tobago (16 August 2000) (24 November 2000) (3 September 2002); Haitians and Dominican Nations of Haitian Origin in the Dominical Republic v Dominican Republic, (7 August 2000) (18 August 2000) (26 May 2001); Álvarez et al v Colombia (10 August 2000) (12 November 2000) (30 May 2001). These interim orders are all available online at http://www.corteidh.or.cr/CF/Jurisprudencia2/busqueda_ medidas_provisionales.cfm (accessed 29 January 2020). See also Hilaire, Constantine, Benjamin

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decided that it could not derive the power to order interim measures that were binding from the ECHR or from other sources,55 but later reversed itself and concluded that ‘in the light of the general principles of international law, the law of treaties and international case-law’ such measures are binding on states parties.56 The ECtHR noted the importance of interim measures in preserving the rights of the parties in the face of the risk of irreparable damage and concluded that it should be considered ‘an inherent Convention requirement in international proceedings before the Court’.57 The IACHR first indicated that at least some of its requests for precautionary measures are legally binding in a case concerning state actions following the 11 September 2001 terrorist attacks on the US. On 25 February 2002, the Center for Constitutional Rights, requested precautionary measures in respect to detainees held by the US in Guantánamo Bay, Cuba. The Commission accepted the request and on 12 March 2002 requested the US ‘to take the urgent measures necessary to have the legal status of the detainees at Guantanamo Bay determined by a competent tribunal’58 In the letter to the government, the Commission stated that decisions on precautionary measures, when considered essential to preserving the Commission’s mandate, are legally binding. In communicating the decision to the US, the IACHR requested that the US provide the Commission with information concerning compliance with the requested measures within 30 days of receipt of the communication, and thereafter on a periodic basis. In view of the observations of the parties on compliance, the Commission will then decide whether to extend or lift the measures. In a response to the Commission’s decision, the US asserted that the Commission acted without basis in fact or law and without jurisdictional competence. According to the US, humanitarian law, not human rights law, governs the capture and detention of enemy combatants during armed conflict and, therefore, the Commission, ‘whose mission […] is to interpret human rights’ lacks the jurisdictional competence to interpret and apply humanitarian law.59 The US also pointed out that it is not a party to either ACHR or any other convention giving competence to the Commission to consider the application of international humanitarian law. On 23 July 2013, the IACHR extended, on its own initiative, the scope of the precautionary measures in favour of the detainees held by the US at the Naval Station

et al v Trinidad & Tobago, Judgment of the Inter-American Court on Human Rights, Ser C No 92 (21 June 2002). 55 ECtHR Cruz Varas v Swed, 201 Eur Ct HR (ser A) (1991); Conka v Belg, App No 51564/99, 34 Eur HR Rep 54 (5 February 2002). 56 ECtHR Mamatkulov and Askarov v Turk, App Nos 46827/99, 46951/99, 41 Eur HR Rep 25, 123–29 (4 February 2005). 57 Id, 124. See Pasqualucci 2005. Pasqualucci argues that judicial organs have the inherent authority to order interim measures. See also Buergenthal 1994. 58 IACHR Decision on Request for Precautionary Measures (Detainees at Guantánamo Bay, Cuba), 12 March 2002, 259/02, 41 ILM, p. 532. 59 Response of the United States to Request for Precautionary Measures—Detainees in Guantánamo Bay, Cuba (12 April 2002).

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in Guantánamo Bay, requiring the closure of the facility.60 The extension was based on the failure of the US to comply with the earlier precautionary measures, the persistence of situations of prolonged and indefinite detention, and allegations of widespread abuse and mistreatment, including unnecessary and humiliating searches, force feeding of detainees who chose to participate in a hunger strike, and increasing segregation and isolation of detainees. The Commission phrased it as follows: Taking into account the human rights obligations of the US as a member state of the OAS, and given the ongoing risk of irreparable harm to the rights of detainees that is aggravated with the passage of time, the IACHR has decided to extend the scope of these precautionary measures and require the Government of the US to proceed to immediately close the detention facilities at the Naval Station at Guantánamo Bay; to transfer the detainees to home or third countries in observance of human rights guarantees, principally the obligation of non-refoulement; to release those who have already been cleared for transfer should be expedited; and to house in appropriate conditions and accord applicable due process rights to any detainees subject to trial.61

2.6 Conclusions Urgent human rights situations often involve sensitive matters in domestic law and politics, touching on ethnic conflict, national security, immigration, economic development, and citizen security. States that are the recipients of requests to take protective measures may find themselves faced with considerable internal resistance to complying with the measures indicated. Yet, to abstain from acting would often leave the most vulnerable members of society without the necessary guarantees afforded by human rights law, at risk of their lives or well-being. The legal systems put in place by the agreements the states wrote, have given human rights bodies the mandate and the obligation to carefully and fairly respond to imminent threats of irreparable harm. They should continue to do so when the facts and the law justify action. Doing so serves both the institutional aim of helping to ensure that human rights procedures and bodies are effective, but perhaps more importantly, will protect the very objective of such procedures by preventing irreparable harm to the human beings. This is the ultimate purpose of all human rights regimes. Yet this purpose does not mean that it is acceptable to ignore all procedural safeguards for states. After all, adhering to norms of procedure and having a transparent process may enhance compliance with the requested measures of protection.

60 PM

259/02 (extended scope)—Detainees in the US Military Base in Guantanamo, 23 July 2013, 259/02, at https://www.oas.org/en/iachr/pdl/decisions/GuantanamoMC.asp (accessed 29 January 2020). 61 Ibid. See also its resolution of 28 October 2005 extending the scope from legality issues to the prohibition of torture and ill-treatment (investigation and non-refoulement).

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References Amerasinghe CF (2007) Reflections on the Judicial Function in International Law. In: Ndiaye TM, Wolfrum R (eds) Law of the Sea, Environmental Law and Settlement of Disputes. Martinus Nijhoff, The Hague, pp 121, 123 Bilder RB (1986) International Dispute Settlement and the Role of Adjudication. Institute Legal Studies, pp 47–95 Blackman RJ (1995) There is There: Defending the Defenseless with Procedural Natural Law. Ariz. L. Rev 37:285 Brown C (2005) The Inherent Powers of International Courts and Tribunals. 76 British YB Intl L 76:195 Buergenthal T (1994) Interim Measures in the Inter-American Court of Human Rights. In: Bernhardt R (ed) Interim Measures Indicated by International Courts. Springer-Verlag Caron D (2006) Towards a Political Theory of International Courts and Tribunals. Berkeley J Intl L 24:401, 410 Dumbauld E (1932) International Measures of Protection in International Controversies. Martinus Nijhoff, p 167 Gaeta P (2003) The Inherent Powers of International Courts and Tribunals. In: Vohrah LC et al (eds) Man’s Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese. Kluwer International, p 353 Janis MW (ed) (1992) International Courts for the Twenty-First Century. Martinus Nijhoff, The Hague Keller H, Marti C (2013) Interim Relief Compared: Use of Interim Measures by the UN Human Rights Committee and the European Court of Human Rights. ZaöRV 73, pp 325–72 Moremen PM (2006) Private Rights of Action to Enforce Rules of International Regimes. Temple L Rev 79:1127, 1147–48 Noyes JE (1995) The Third-Party Dispute Settlement Provisions of the 1982 United Nations Convention on the Law of the Sea: Implications for States Parties and for Nonparties. In: Nordquist MH, Moore JN (eds) Entry into Force of the Law of the Sea Convention. Martinus Nijhoff, The Hague, p 213 Orakhelashvili A (2005) Judicial Competence and Judicial Remedies in the Avena Case. Leiden J Intl L 18:31 Pasqualucci J (2005) Interim Measures in International Human Rights: Evolution and Harmonization. Vand J Transnatl L 1, 38:13–14 Rieter E (2010) Preventing Irreparable Harm: Provisional Measures in International Human Rights Adjudication. Intersentia, Antwerp Shelton D (2017) Inherent and Implied Powers of Regional Human Rights Tribunals. In: William Schabas and Shannonbrooke Murphy, Research Handbook of International Courts and Tribunals. Edward Elgar Publishing Thirlway H (1984) Dilemma or Chimera? Admissibility of Illegally Obtained Evidence in International Adjudication. Am J Intl L 78:622, 626

Professor Dinah Shelton is the Manatt/Ahn Professor of law emeritus at the George Washington University Law School, Washington D.C., USA.

Chapter 3

Urgency and Human Rights in EU Law: Procedures Before the Court of Justice of the EU Sacha Prechal and Aniel Pahladsingh Contents 3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Provisional Legal Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.1 Interim Measures in the General Court and the CJEU . . . . . . . . . . . . . . . . . . . . . . 3.2.2 Interim Measures in the General Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.3 Interim Measures in the Court of Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.4 EU Law and Provisional Legal Protection before National Courts . . . . . . . . . . . . 3.3 The Preliminary Procedure—‘Normal’, Urgent and Expedited . . . . . . . . . . . . . . . . . . . . . 3.3.1 Preliminary Ruling Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.2 The Urgent Preliminary Procedure (PPU) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.3 The Expedited Procedure (PPA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This chapter delves into the European Union (EU) law and procedure in urgent human rights cases, especially as pending before domestic courts. The Court of Justice of the European Union (CJEU) is regularly faced with urgent cases involving human rights issues. The authors first address the practice of ordering interim measures in direct actions before the General Court and the Court of Justice; and then the relevance of EU law for interim measures or other forms of provisional protection at the domestic level. Following this, they zoom in on the preliminary ruling procedure to secure rights of (Union) citizens. In urgent cases the CJEU has certain tools for accelerating the proceedings. Depending on the area of law, these tools are the urgent preliminary ruling procedure (PPU), and the expedited or accelerated preliminary ruling procedure (PPA). The chapter focuses on a review of these tools. It deals with the criteria of serious and irreparable damage and gives examples involving immigration law (Return Directive and non-refoulement), criminal law (e.g. European Arrest Warrant) and civil law (e.g. child custody cases). The authors S. Prechal (B) Department of Law, Faculty of Law, Economics and Governance, Utrecht University, Newtonlaan 201, 3584 BH Utrecht, The Netherlands e-mail: [email protected] A. Pahladsingh Raad van State [Council of State], Kneuterdijk 22, 2514 EN The Hague, The Netherlands e-mail: [email protected] © T.M.C. Asser Press and the authors 2021 E. Rieter and K. Zwaan (eds.), Urgency and Human Rights, https://doi.org/10.1007/978-94-6265-415-0_3

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also stress the importance of proper procedure and the need to make limited use of these tools, so as not to threaten the legitimacy of the normal judicial process before the CJEU. Keywords European system · interim measures · domestic courts · decentralised model of judicial protection · effective judicial protection · provisional measures · suspensory effect · preliminary procedure · urgent preliminary procedure · expedited procedure · fundamental rights · respect for private life · right to family life · interest of the child · detention under criminal law · asylum detention · non-refoulement · inhuman or degrading treatment · independence of the judiciary

3.1 Introduction Due to the decentralised model of application of European Union law (EU law or Union law), cases involving the protection of human rights are often a matter for national courts. In other words, EU law is implemented, applied, and enforced within the framework of national law. National authorities and national courts apply these EU rules and protect these EU rights in their domestic legal systems, although the substantive legislation is created by EU institutions. This decentralised model differs from, for example, the United States, which has a system of parallel application of state and federal law. The application and enforcement of substantive EU rules through the national courts implies that national remedies and rules of procedure are used when applying EU law. In this setting, it is primarily the domestic courts which are responsible for protecting fundamental rights that litigants derive from EU law. However, when performing this task, the courts may—and sometimes must—cooperate with the Court of Justice of the European Union (CJEU or Court) by using the preliminary ruling procedure established in what is now Article 267 of the Treaty on the Functioning of the European Union (TFEU). The preliminary ruling procedure is not characterised by hierarchy, but rather by cooperation. It is an incidental and non-contentious procedure through which the national courts refer questions on the interpretation, or—less often—the validity of Union law provisions, whenever the answers to those questions are decisive for adjudicating the case before the domestic court. Obviously, the preliminary questions may also concern fundamental rights, including their meaning, scope and effects. The most important function of the preliminary ruling procedure is, first of all, to ensure the uniform interpretation of EU law. The judgment given by CJEU is binding upon the national court hearing the case in which the decision is given. However, the binding effect extends further, at least de facto, to all other national courts of the Member States of the EU. Secondly, the procedure facilitates the application of EU law by offering national courts a helping hand in resolving the problems that sometimes accompany the application of EU law. Thirdly, the preliminary ruling procedure may serve as a means to protect the rights that citizens derive from EU law.

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The action of referring one or more questions to the CJEU implies the suspension of the proceedings before the national court. However, the impact can often be larger as, while the CJEU’s judgment is pending, the referring court or even other national courts may well have other similar cases before them which, for practical reasons, also need to be suspended. For these reasons, the duration of the preliminary ruling procedure has been a matter of concern. In 2014, the average duration of a preliminary ruling case amounted to 15 months, while in 2018 it was 16 months. Comparing these numbers to 2003, when the average duration was 25.5 months, leads to the conclusion that there has been a considerable reduction in waiting time for the domestic courts. Nevertheless, the preliminary ruling procedure is still too long in some urgent situations when certain fundamental rights are at stake. In order to enable the Court to respond quickly in particularly urgent cases, a new procedure was introduced: the ‘PPU’. While this procedure was put in place in 2008, an explicit reference in Article 267 TFEU was inserted by the Lisbon Treaty to the necessity for the CJEU to give its ruling with minimum delay in cases concerning a person held in custody. The PPU applies only in the Area of Freedom, Security and Justice (AFSJ) and its inception was, basically, fuelled by fundamental rights considerations. In areas outside the AFSJ, the accelerated procedure (PPA) may apply, though again only where there is genuine urgency. While the focus of the present contribution is on the PPU and the PPA procedures, in order to understand the differences, we will briefly discuss the ‘normal’ preliminary procedure as well. First, however, we will address two related topics in order to complete the picture: interim measures in direct actions before the General Court and the Court of Justice; and the relevance of EU law for interim measures or other forms of provisional protection at the domestic level. We will conclude with an assessment of the different procedures and measures that are, in the EU context, available to protect fundamental rights in situations of urgency.

3.2 Provisional Legal Protection 3.2.1 Interim Measures in the General Court and the CJEU According to Articles 278 and 279 TFEU, actions brought before the Court shall not have suspensory effect. The Court may order, however, if it considers that circumstances so require, the suspension of the application of the act appealed, or adopt other necessary measures. In other terms, there are two main categories of measures that may be adopted according to Articles 278 and 279 TFEU: – a specific interim measure, namely, the suspension of the application or enforcement of the contested act, and; – other measures which are not further specified but which the Court deems necessary, for instance, relating to what procedures should be followed, including the

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question of whether the government should be given a chance to comment or respond to requests for preventive measures before they are issued. The purpose of the proceeding for interim measures is to guarantee the full effectiveness of the Court’s future final decision and to avoid a lacuna in the judicial protection by the Court of Justice.1 Applications for interim relief must specify ‘the subject matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measure applied for’.2 Accordingly, the court hearing an application for interim relief may order an interim measure only if a number of conditions is satisfied: – it must be established that granting such a measure is justified, prima facie, in fact and in law (fumus boni juris); – there should be urgency and a threat of serious and irreparable harm to the applicant’s interests, and; – the order should produce its effects before a decision is reached in the main action. The court hearing the application for interim relief must, where appropriate, also balance the interests involved. The aforementioned conditions are cumulative, so that an application for interim measures must be dismissed if one of them is not met.3

3.2.2 Interim Measures in the General Court While the preliminary ruling procedure starts in the national courts, direct actions against Union bodies are typically brought before the General Court.4 The most important type of direct actions is the action for annulment, which can be initiated, under certain—rather strict—conditions by natural or legal persons who seek annulment of acts of the institutions, bodies, offices or agencies of the EU.5 Natural and legal persons, when bringing such an action, may seek provisional legal protection

1 Order

of 21 January 2014 in Case C-574/13 P(R), French Republic/European Commission, ECLI:EU:C:2014:36, para 19. 2 Article 160(3) of the Rules of Procedure of the Court and Article 156 of the Rules of Procedure General Court. 3 Order of 20 November 2017 in Case C-441/17 R, Commission/ Republic of Poland, EU:C:2017:877, paras 29 and 30 and the case law cited) and Order of 17 December 2018 in Case C-619/18 R, European Commission/Republic of Poland, ECLI:EU:C:2018:1021, para 29. 4 Apart from interim measures, under Article 76a of its Rules of Procedure, the General Court may, on application by the applicant or the defendant decide, having regard to the particular urgency and the circumstances of the case to adjudicate under an expedited procedure. Cf. also Annual Report 2018, p. 246 (interim measures) and p. 247 (expedited procedures). 5 Article 263 TFEU. For action for the failure to act see Article 265 TFEU. We limit our discussion to actions brought by natural or legal persons only as it is mainly in these actions that issues of urgency in combination of fundamental rights protection occur.

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by applying for interim measures in order to prevent serious and irreparable harm.6 As was already indicated above, bringing an action before the General Court does not suspend the operation of the contested act. Yet the General Court may order suspension of the application of the act or any other measure necessary, provided that the conditions set out above are satisfied.7 The judge hearing the application for interim measures—often the President of the General Court—rules on such an application by reasoned order. Purely hypothetical harm, based on future and uncertain events, cannot justify the granting of interim measures.8 Damage of a pecuniary nature cannot, except in exceptional circumstances, be regarded as irreparable. As a general rule, pecuniary compensation is capable of restoring the aggrieved person to the situation that prevailed before he suffered the damage. Any such damage could be remedied by the applicant bringing an action for compensation on the basis of Articles 268 TFEU and 340 TFEU.9 An example of an order concerning fundamental rights protection is the Order in the case Akzo Nobel.10 This Order prohibited the European Commission (Commission) from publishing certain information because by so doing the applicants’ fundamental rights might be seriously and irreparably harmed.11 In the situation of the case at hand, there was a risk that the applicants’ fundamental right to the protection of professional secrecy (laid down in Article 339 TFEU, Article 8 European Convention on Human Rights (ECHR) and Article 7 of Charter of Fundamental Rights the European Union (CFR)), would irreversibly lose any meaning in relation to that specific information. At the same time, it was likely that the applicants’ fundamental right to an effective remedy (laid down in Article 6 ECHR and Article 47 CFR), would be jeopardised if the Commission were to be allowed to publish the information at issue before the General Court had ruled on the main action. Another area in which applications for interim measures in relation to fundamental rights protection may occur before the General Court are cases on restrictive measures taken by the Council against certain persons and entities with a view to combating

6 Articles

278 TFEU and 279 TFEU in conjunction with Article 256(1) TFEU. Note, however, that interim relief is possible in relation to all kinds of direct actions that might be brought before the EU courts. See Sect. 3.2.3 below. 7 Order of 19 July 1995 in Case C-149/95 P(R), Commission v Atlantic Container Line and Others, ECLI:EU:C:1995:257, para 22 and Order of 13 February 2014 in Case T-578/13R, Luxembourg Pamol, ECLI:EU:T:2014:103, para 44. 8 Order of 7 May 2010 in Case T-410/09R, Almamet, ECLI:EU:T:2010:179, para 32 and the case law cited. 9 Order of 3 May 2018 in Case T-203/18 R, VQ, ECLI:EU:T:2018:261, para 16; Order of 23 April 2015 in Case C-35/15 P(R), Commission v Vanbreda Risk & Benefits, C-35/15 P(R), EU:C:2015:275, para 24. 10 Order of 16 November 2012 in Case T-345/12 R, Akzo Nobel, ECLI: EU:T:2012:605. 11 See also Order of 16 November 2012 in Case T-341/12R, Evonik Degussa GmbH, ECLI: EU:T:2012:604.

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terrorism. In these cases applicants may incur financial harm, as they are deprived from accessing frozen funds or from receiving social allowances.12

3.2.3 Interim Measures in the Court of Justice Before the Court of Justice, interim measures can be applied for in direct actions. This may happen in appeals brought against a decision of the General Court as well as in proceedings in which the Court of Justice is the court of first instance. These entail certain actions brought by the institutions or Member States and cases brought by the Commission against a Member State for failure to fulfil obligations under EU law. We will briefly discuss two recent examples which concern the protection of the rule of law. The first example is the decision of 19 October 2018 of the Vice-President of the Court of Justice, ordering the Republic of Poland to suspend the effects of the Judiciary Reform Act and, in particular, to ensure that no sitting judge is removed as a result of the new retirement age. In April 2018, a new ‘Law on the Supreme Court’ entered into force in Poland. Under that law, the retirement age for Supreme Court judges was lowered to 65. The new age limit applied as from the date of entry into force of that law, and included judges of that Court appointed before that date. It was possible for Supreme Court judges to continue in active judicial service beyond the age of 65, yet this was subject to a declaration of fitness to work and authorisation by the President of the Republic. The President was not bound by any criterion and his decision was not subject to any form of judicial review. On 2 October 2018, the Commission brought an action against Poland before the Court for failure to fulfil obligations under Union law. The Commission argued that by lowering the retirement age and applying it to judges already appointed to the Supreme Court, as well as granting the President of the Republic the discretion to extend the active judicial service of judges, Poland was infringing EU law. The Commission also requested the Court to order Poland to comply with a number of interim measures, inter alia, to suspend the application of the provisions of the law at stake and to ensure that the Supreme Court judges concerned by the provisions at issue may continue to perform their duties in the same post. To start with, the Vice-President did not grant ordinary interim relief on the grounds of Article 279 TFEU, but a particularly urgent kind of relief. The Order was issued in accordance with Article 160(7) of the Rules of Procedure, which allows the Court to rule on a provisional basis and even before hearing the defendant party. These interim measures are used when the urgency is of such a level that the Order

12 Cf. the Order of 15 May 2003 in Case T-47/03 R, Sison, ECLI:EU:T:2003:143. However, the application for the interim measure was rejected in this case because the applicant could make an application before the national authorities to obtain financial support.

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must be granted immediately. The Order is provisional in the sense that it stays valid until the moment another Order is made which closes the interim proceedings.13 On 15 November 2018, the President of the Court decided to apply the expedited procedure (or PPA).14 According to the President, a response from the Court within a short time was deemed necessary for reasons of legal certainty, and as being in the interest of both the EU and Poland. There existed serious uncertainties in relation to fundamental questions of EU law, which concerned in particular the existence of possible interference with certain fundamental rights safeguarded by EU law and the effects which the interpretation of that law was likely to have for the actual composition and working conditions of the Supreme Court of Poland. The President also pointed out that the subject matter and the conditions triggering an application for interim relief and those triggering the expedited procedure are not identical and therefore one procedure does not necessarily interfere with the other.15 In the meantime, while the case was pending and dealt with in the expedited procedure, on 17 December 2018 the Grand Chamber decided in favour of the Commission’s application for interim measures. As to the fumus boni juris, the Court considered the arguments put forward by the Commission did not appear, prima facie, unfounded and that it could not be excluded that the provisions at issue jeopardised the principles of the irremovability of judges and of judicial independence. Therefore, it could not be excluded that Poland did not comply with its obligation to ensure effective legal protection in the fields covered by EU law.16 Furthermore, the Commission had, according to the Court, also established that, in the event of a refusal to grant the requested interim measures, the application of the provisions at issue pending delivery of the final judgment was likely to cause serious and irreparable damage to the EU legal order. Consequently, the Court considered that the requirement of urgency was satisfied.17

13 Order of the Vice-President of the Court of 19 October 2018 in Case C-619/18 R, Commission/Republic of Poland, EU:C:2018:852. 14 Order of the President of the Court of 15 November 2018, in Case C-619/18, European Commission/Republic of Poland, ECLI:EU:C:2018:910, The expedited procedure is laid down in Article 23a of the Statute of the Court and in Article 133 of the Rules of Procedure. Article 133(1) of the Rules of Procedure states that, at the request of the applicant or defendant, the President of the Court may, where the nature of the case requires that it be dealt with within a short time, after hearing the other party, the Judge-Rapporteur and the Advocate General, decide that a case is to be determined pursuant to an expedited procedure derogating from the provisions of those rules. Also in appeals procedure the case can be dealt within the expedited procedure. See Case C-104/16 P, Council v Front Polisario, ECLI:EU:C:2016:973, para 49. 15 Order of the President of the Court of 15 November 2018 in Case C-619/18, European Commission/Republic of Poland, ECLI:EU:C:2018:910, paras 25–28. 16 Order of the Court (Grand Chamber) of 17 December 2018 in Case C-619/18R, Commission/Republic of Poland, ECLI:EU:C:2018:1021, paras 45–46. 17 Order of the Court (Grand Chamber) of 17 December 2018 in Case C-619/18R, Commission/Republic of Poland, ECLI:EU:C:2018:1021, in particular paras 65–78.

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In this context, the Court also underlined that the fact that the final judgment will be delivered at the end of an expedited procedure is not such as to prevent the serious and irreparable damage from occurring before the delivery of that judgment.18 Finally, on 24 June 2019 the Court found that, first, by lowering the retirement age of the judges of the Polish Supreme Court who were appointed to that Court before 3 April 2018 and, second, by granting the President of the Republic the discretion to extend the active judicial service of Supreme Court judges beyond the newly fixed retirement age, the Republic of Poland had failed to fulfil its obligations under the second subparagraph of Article 19(1) of the Treaty on European Union (TEU).19 The second example is the case in which the Commission brought an action regarding the primeval forest in the Bialowieza region against the Republic of Poland. The infringement concerned certain EU rules on environmental protection, namely the Habitats Directive and the Birds Directive.20 The Vice-President of the Court issued, upon a request of the European Commission, a first interim injunction on 27 July 2017.21 As in the case of the Polish Supreme Court judges, the Vice-President granted that request pending the adoption of an Order terminating the proceedings for interim measures. In the further course of proceedings, the Commission, claiming that Poland had not respected the first interim injunction, asked the Court to order the Republic of Poland to pay a periodic penalty payment in case the interim measures which it was applying for would not be respected. The Grand Chamber decided on 20 November 2017. It granted the Commission’s application for interim measures.22 However, as far as the request of the periodic penalty was concerned, the Court ordered Poland to send to the Commission, within 15 days after the notification of the Order, the details of all measures that it had adopted in order to comply with the Order given by the Court. If the Commission were to consider that Poland had failed to comply fully with the Order, it might then request that proceedings be resumed. At that point, the Court would decide, by way of a new Order, whether the Order of 20 November had been infringed. If that were to be the case, a periodic penalty payment of at least 100,000 euros per day would be imposed. In relation to the penalty payment the Court considered that an effective application of Union law, compliance with interim measures included, is an essential component of the rule of law, a value enshrined in Article 2 TEU and on which the European Union is founded.

18 Order of the Court (Grand Chamber) of 17 December 2018 in Case C-619/18R, Commission/Republic of Poland, ECLI:EU:C:2018:1021, para 89. 19 Case C-619/18, Commission/Republic of Poland, ECLI:EU:C:2019:531. 20 Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, OJ 1992 L 206, p. 7; Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds, OJ 2010 L 20, p. 7. 21 Order of the Vice-President of 27 July 2017 in Case C-441/17R, Commission/Republic of Poland, ECLI:EU:C:2017:622. 22 Order of the Court of the Grand Chamber of 20 November 2017 in Case C-441/17R, Commission/Republic of Poland, ECLI:EU:C:2017:877.

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3.2.4 EU Law and Provisional Legal Protection before National Courts When deciding on interim relief, national courts may, but are not obliged to refer a question to the CJEU, provided that a substantive action is pending or at least possible. The Court itself has no power to order interim measures in a preliminary reference case. However, EU law is not entirely silent on provisional legal protection at the national level. Indeed, a number of arguments can be derived from EU law to compel a national court to order interim measures, or use other forms of provisional legal protection. While the conduct of cases in general, including the availability of interim measures in particular, are a matter of national (procedural) law, this law has to comply with the principle of effectiveness, which prohibits national procedural rules that render it virtually impossible or excessively difficult to exercise rights conferred by EU law. National law also has to comply with the principle of equivalence.23 This principle requires that the domestic rules governing a dispute with a Union dimension may not be less favourable than those governing similar purely domestic actions. Furthermore, the principle of effective judicial protection, which is now in substance set out in Article 47 CFR (the right to an effective remedy and to a fair trial), may imply an obligation to give provisional legal protection. It should also be noted that there are specific provisions of secondary EU law which provide for certain temporary protection measures, such as certain guarantees to remain in the territory of a Member State for international protection applicants,24 provisions on the possibility to suspend the enforcement of a return decision,25 or to postpone surrender,26 and provisions concerning prompt judicial review if a person is detained.27 Moreover, general provisions on remedies must be interpreted as seeking effective protection which may,28 under certain circumstances, mean swift protection. The case-law of the CJEU has played a crucial role in ensuring such temporary protection. In cases involving EU law, the Member States must provide for the possibility of immediate and provisional judicial protection when this is necessary in order to make legal protection effective.29 In Factortame, the Court based this obligation on

23 Rewe,

Case 33/76, ECLI:EU:C:1976:188, para 5 and Safalero, Case C-13/01, ECLI:EU:C:2003:447, para 49. 24 Article 46 of Directive 2013/32, Article 27 of Regulation 604/2013. The full references to the legislation quoted are listed at the end of this contribution. 25 Article 13 of Directive 2008/115. 26 Article 23 of Framework Decision 2002/584, Article 23 of Regulation 604/2013. 27 Article 9 of Directive 2013/33, Article 15 of Directive 2008/115, Article 26 of Directive 2013/32, Article 28 of Regulation 604/2013. 28 Such as Article 18 of Directive 2003/86, Article 46 of Directive 2013/32, Article 13 of Directive 2008/115, Article 26 of Directive 2013/33, Article 27 of Regulation 604/2013. 29 Factortame, Case C-213/89, ECLI:EU:C:1990:257; Case C-416/10, Križan, ECLI:EU:C: 2013:8.

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the principle of sincere cooperation (Article 4(3) TEU) and on the principle of effectiveness.30 In Unibet, the basis shifted to the principle of effective judicial protection. According to the Court, this principle ‘requires that it be possible in the legal order of a Member State for interim relief to be granted until the competent court has given a ruling on whether national provisions are compatible with Union law, where the grant of such interim relief is necessary to ensure the full effectiveness of the judgment to be given on the existence of such Union law rights in the main proceedings.’31 In short, effective judicial protection requires that the Member States must provide for the possibility of provisional and immediate judicial protection.32 Other cases have made clear that national courts have the power to temporarily suspend the application of an EU legal act where its validity is in dispute,33 pending the CJEU’s decision on the act’s validity. Additionally, the national court concerned also has the power to take a positive measure in relation to that Union act.34 The form of interim relief, as such, is a matter for the Member States. National law governs all procedural matters and, in particular, the conditions for interim relief and the assessment and balancing which is usually required. Nevertheless, as was already observed above, the principles of equivalence and effectiveness must be respected as well as those requirements stemming from effective judicial protection and Article 47 CFR. Obviously, fundamental right considerations may play a role in this context. The Court’s case-law provides some indications as to the conditions to be fulfilled in interim relief actions. For instance, and somewhat unsurprisingly, there should be urgency and a threat of serious and irreparable damage to the applicant seeking relief, inter alia, in the sense that the application of a decision pending the preliminary proceedings may have irreversible consequences; purely financial damage is only regarded as irreversible if there is a real threat of bankruptcy. An element to be taken into account is also that granting interim relief may have serious financial consequences for certain individuals. Although not a case on interim measures as such, Abdida is a good illustration of provisional legal protection through the suspensive effect of a judicial remedy.35 Mr. Abdida, a Nigerian national, was suffering from a particularly serious illness. In Belgium, he applied for residence on medical grounds. His application was, however, rejected, on the ground that his country of origin has adequate medical infrastructure for caring for persons suffering from such an illness. Consequently, Mr. Abdida was ordered to leave Belgium. He sought to challenge that order but, according to the national court, under the relevant national rules, no judicial remedy was available to Mr. Abdida to suspend the decision refusing him residence and thus, pending the decision on his appeal, he was not entitled to any form of social assistance other than emergency medical assistance. 30 Case

C-213/89, Factortame, ECLI:EU:C:1990:257. C-432/05, Unibet, ECLI:EU:C:2007:163, para 77. 32 For a more detailed discussion, see Jans et al. 2007, pp. 421–433. 33 Joined Cases C-143/88 and C-92/89, Zuckerfabrik, ECLI:EU:C:1991:65. 34 Case C-465/93, Atlanta, ECLI:EU:C:1995:369. 35 Case C-562/13, Abdida, ECLI:EU:C:2014:2453. 31 Case

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The CJEU qualified the Belgian decision as a ‘return decision’ within the meaning of Article 3(4) of Directive 2008/115 (or Return Directive). Pending the return, the remedies provided for in Articles 13 and 14 of Directive 2008/115 are applicable. The key question was whether those remedies preclude national legislation which does not endow an appeal with the power of suspensory effect. The Court held that Directive 2008/115 does not require that the remedy provided for in Article 13(1) should necessarily have suspensive effect. However, it also found that where the person concerned may be exposed to a serious risk of grave and irreversible deterioration in his state of health, a remedy that has no suspensive effect is contrary to Article 5 of Directive 2008/115, the non-refoulement principle. In its extensive reasoning, the CJEU recalled that remedies must be consistent with Article 47 CFR, according to which ‘everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that Article’.36 Article 19(2) CFR provides, inter alia, that no one may be removed to a State where there is a serious risk that he or she would be subjected to inhuman or degrading treatment. The CJEU also referred to the case-law of the European Court of Human Rights (ECtHR) according to which ‘a decision to remove a foreign national suffering from a serious physical or mental illness to a country where the facilities for the treatment of the illness are inferior to those available in that State may raise an issue under Article 3 ECHR in very exceptional cases, where the humanitarian grounds against removal are compelling’.37 The CJEU found that in EU law ‘[i]n the very exceptional cases in which the removal of a third country national suffering a serious illness to a country where appropriate treatment is not available would infringe the principle of non-refoulement, Member States cannot therefore, as provided for in Article 5 of Directive 2008/115, taken in conjunction with Article 19(2) [CFR], proceed with such removal.’38 Another example is the case of Gnandi which concerned a request for a preliminary ruling by the Belgian Council of State regarding the adoption of a return decision within the meaning of Directive 2008/115 before the legal remedies against a rejection of an asylum decision have been exhausted and the asylum procedure has been concluded. The CJEU reiterated that implementation of the Return Directive must respect fundamental rights and legal principles, in particular those enshrined in the CFR.39 With regard to a return decision and a possible removal, the right to an effective remedy and the principle of non-refoulement requires Member States to grant an asylum applicant the right to challenge the execution of a return decision at least before one judicial body, and this appeal must have automatic suspensive effect. According to the CJEU, it follows that while a Member State can adopt a return decision following a negative decision on an asylum application, that Member State is required to provide an effective remedy in accordance with the principle of 36 Para.

45 of the judgment. 47 of the judgment. 38 Para. 48 of the judgment. 39 Case C-181/16, Gnandi, ECLI:EU:C:2018:465. 37 Para.

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equality of arms, which means, in particular, that all the effects of the return decision must be suspended during the period prescribed for lodging such an appeal and, if an appeal is lodged, until a decision is taken by the judicial body. To comply with its obligations, Member States must go beyond simply refraining from enforcing the return decision: it is necessary that the period for voluntary departure does not start running as long as the person concerned is allowed to stay and that the person is not placed in pre-deportation detention. Moreover, Member States must inform the applicant, in a transparent manner, about his or her right to appeal against a negative decision and about the nature of this appeal.

3.3 The Preliminary Procedure—‘Normal’, Urgent and Expedited 3.3.1 Preliminary Ruling Procedure In order to facilitate the comparison of the PPU and the PPA, it is necessary to describe briefly the various stages of the ‘normal’ preliminary ruling procedure. There are no EU rules as to the form in which the preliminary reference must be submitted. However, some indications exist as to the content of such a reference. The most important is Article 94 of the Court’s Rules of Procedure. According to this provision, a reference for a preliminary ruling must, firstly and indeed in addition to the actual question put to the CJEU, contain ‘a summary of the subject-matter of the dispute and the relevant findings of fact as determined by the referring court or tribunal, or, at least, an account of the facts on which the questions referred are based’ and ‘the tenor of any national provisions applicable in the case and, where appropriate, the relevant national case-law’. Secondly, the referring court is required ‘to give the reasons which prompted [it] to inquire about the interpretation or validity of certain provisions of EU law, and the relationship between those provisions and the national legislation applicable to the main proceedings’.40 Once the national court’s reference has been received by the Registry of the Court, and has been assigned a case number, it is translated into all the official languages of the EU.41 The reference is communicated by the Registrar to the parties to the national proceedings, the Member States, the Commission as well as to other Union institutions and bodies which adopted the act whose validity or interpretation is in dispute.42 This process takes approximately six weeks.

40 See further also the Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings, OJ 2019, C 380, p. 1. For a practical discussion of the communication between the CJEU and the national courts, see Prechal 2014. 41 I.e. the languages listed in Article 36 of the Rules of Procedure. 42 Article 23 of the Statute of the CJEU.

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After communication of the reference, ‘interested persons’ may submit written observations within the strict and non-extendable two-month deadline,43 to which an extra period of ten days ‘on account of distance’ is added. This takes altogether ten weeks. The purpose of these observations is to suggest, in a reasoned fashion, solutions to the Court to the questions raised by the referring national court. These written observations are translated into French (the working language of the CJEU)44 and into the language of the case i.e. the language of the referring court.45 A period of approximately eight weeks is reserved for translation. Next, the reporting judge has to produce the so-called rapport préalable (preliminary report). This document, drawn up in French, contains a brief summary of the facts, the applicable legislation and the arguments presented by the parties. It also contains the reporting judge’s appraisal of the case. This judge also proposes the organisational arrangements for the proceedings, such as the need for a hearing, what formation of the Court is appropriate (whether a chamber of three or five judges is needed or whether the case should be decided by the Grand Chamber), possible written questions to be posed to the parties, and whether to dispense with an Opinion of the Advocate General. The Court then decides in its weekly general meeting, after hearing the Advocate General,46 what action to take on the basis of the proposals made in the preliminary report.47 This process (drafting the preliminary report, hearing the Advocate General and the submission of the preliminary report to the general meeting) takes approximately nine weeks. If the Court decides to hold a hearing,48 this will take place within five weeks after the general meeting. The hearing is the only opportunity for the parties to reply to each other’s observations made in the case at hand. At the hearing, the Court may ask further questions and clarifications. If it has been decided that the case would benefit from an Opinion of an Advocate General, the latter has approximately ten weeks in which to do this, translation and publication included. After the delivery of the Advocate General’s Opinion the oral procedure is closed,49 and the competent chamber of the Court begins its deliberations of the case. A period of approximately 11 weeks is reserved for the drafting of the judgment, the judges’ deliberations and linguistic—French—revision of the judgment by the so-called lecteur d’arrêts. The translation of the judgment should take place within five weeks after its adoption. In parallel to this some other actions take place, 43 Usually the parties to the main proceedings, the Commission, the Member State from whence the reference originates and any other Member States which wish to submit observations in the case at hand. 44 For an insightful discussion of various aspects of the organisation and working of the Court, including its language regime, see Kokott and Sobotta 2014, pp. 4–11. 45 Cf. Article 37(3) of the Rules of Procedure. In preliminary ruling proceedings, the language of the case is the language of the referring court. 46 In practice, this means that the Advocate General reads the preliminary report and makes additional suggestions before the report goes to the general meeting. 47 Article 59(3) of the Rules of Procedure. 48 Article 76 of the Rules of Procedure. 49 Article 82(2) of the Rules of Procedure.

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including the preparation of a press release. On the day of its delivery, the judgment is published. This last stage (encompassing the drafting, deliberations, translation and delivery) takes approximately 16 weeks. In total, a standard preliminary procedure takes some 63–65 weeks, that is, 15–16 months to complete.

3.3.2 The Urgent Preliminary Procedure (PPU) 3.3.2.1

Circumstances That Trigger the Urgent Procedure

As was already indicated in the ‘Introduction’ (Sect. 3.3.1), the PPU applies only in the AFSJ, which covers three distinct areas of law. The first area of cases that can be dealt with under the urgent preliminary ruling procedure concerns the rules on ‘visa, asylum and immigration’ for example in cases concerning family reunification or cases relating to the question which Member State is competent to examine asylum applications (the Dublin Regulation cases). Unsurprisingly, decisions on the status of asylum seekers (refugee status or secondary protection) as well as the removal or return of illegal migrants are included in this area. The second sort of cases concern criminal law. These cases usually, not only,50 concern the European Arrest Warrant issued for the purposes of prosecution,51 or for execution of the sentence imposed,52 as well as surrenders as such under a European Arrest Warrant.53 The third area concerns judicial cooperation in civil law and more particularly problems related to parental responsibility and custody. These cases often concern the wrongful removal or retention (abduction) of children by a parent not having custody, and/or taking the child away to another Member State without the consent of the other parent. However, a case concerning jurisdiction in relation to the detention of a child, for her own protection, in a secure care institution was also treated in a PPU.54 The fundamental rights often at stake in AFSJ cases include, inter alia, the right to liberty, right to life, prohibition of inhuman or degrading treatment, the rights of the child, the right to family life and, obviously, the ‘meta-right’ to effective judicial protection. In such cases the national court may urgently require a swift response from the CJEU. This is where the PPU comes into play.

50 Cf. for instance Case C-310/18 PPU, Milev, ECLI:EU:C:2018:732, concerning the interpretation

of Directive 2016/343 (the presumption of innocence and of the right to be present at the trial in criminal proceedings), OJ 2016, L 65, p. 1. 51 Case C-396/11, Radu, ECLI:EU:C:2013:39. This case concerned surrender for the purposes of conducting criminal prosecutions in respect of robbery. Pre-trial detention might be possible in such cases. 52 Case C-399/11, Melloni, ECLI:EU:C:2013:107. 53 Case C-129/14 PPU, Spasic, ECLI:EU:C:2014:586. 54 Case C–92/12 PPU, Health Service Executive, ECLI:EU:C:2012:255.

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Until recently, two scenarios have been considered by the Court as being of such urgency as to justify the application of the PPU.55 The first scenario is where a person is in custody, detention, or otherwise deprived of his liberty and the answer to the question referred is decisive to the assessment of that person’s legal situation.56 These two conditions are cumulative and strict; if one them is not fulfilled the PPU will not be granted.57 The situation must be assessed as it stands at the time when the request for a PPU is examined by the Court.58 Furthermore, a PPU has not been granted in a case where the criminal procedure itself has already been particularly long,59 or where the person’s liberty has been only partially limited.60 In a number of cases the referring courts have indicated that many persons or legal situations are potentially affected by the referring court’s decision. However, the CJEU has not found such reasons to be sufficient for it to initiate a PPU.61 The second situation relates to a risk of serious, and potentially irreparable, harm to a parent/child relationship or some other psychological damage. This may, for example, occur in proceedings concerning parental authority, the custody of children, or in applications for the return of a child who has been deprived of contact with one of his or her parents.62 Considerations including the age of the child, the distance between the child’s place of residence and the parent concerned, the child’s own preferences and the risks to good integration of the child in the social and family

55 Cf. also the Report on the use of the urgent preliminary ruling procedure by the CJEU, delivered to the Council in accordance with the statement annexed to its decision of 20 December 2007, OJ 2008 L 24, p. 44, and the Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings, OJ 2019, C 380, p. 1, point 36; both documents are also available at http://curia.europa.eu/. 56 Some examples are Case C-388/08 PPU, Leymann and Pustovarov, ECLI:EU:C:2008:669; Case C-61/11 PPU, El Dridi, ECLI:EU:C:2011:268; Case C-168/13 PPU, F., ECLI:EU: C:2013:358; Case C-383/13 PPU, G. and R., ECLI:EU:C:2013:533; Case C-129/14 PPU, Spasic, ECLI:EU:C:2014:586; Case C-146/14 PPU, Mahdi, ECLI:EU:C:2014:1320 and Case C-237/15 PPU, Lanigan, ECLI:EU:C:2015:474; Case C-695/15 PPU, Mirza, ECLI:EU:C:2016:188; Case C-269/18 PPU, C et al, ECLI:EU:C:2018:544. 57 Case C-123/08, Wolzenburg, ECLI:EU:C:2009:616; Case C-261/09, Mantello, ECLI:EU:C: 2010:683; Case C-329/11, Achughbabian, ECLI:EU:C:2011:807. 58 C–327/18 PPU, RO, ECLI:EU:C:2018:733, para 30. If, pending the case, the urgency ceases to apply, the case will not be dealt with anymore in accordance with the PPU. See Case C–492/18 PPU, TC, ECLI:EU:C:2019:108, para 35. 59 Case C-261/09, Mantello, ECLI:EU:C:2010:683. 60 Cf. Case C-241/15, Bob-Dogi, ECLI:EU:C:2016:385. In this case, the person was placed under judicial supervision, which implied, inter alia, that the person concerned had to present himself before the judge whenever called on to do so as well as to present himself to his local police station, in accordance with a supervision programme. 61 Case C-329/11, Achughbabian, ECLI:EU:C:2011:807; Case C-648/11, MA e.a., ECLI:EU:C: 2013:367; Case C-175/11, D. and A., ECLI:EU:C:2013:45; Case C-277/11, M., ECLI:EU:C: 2012:744. 62 Case C-491/10 PPU, Aguirre Zarraga, ECLI:EU:C:2010:828, with further references.

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environment play an important part in the assessment of the situation.63 Another important aspect is the question as to how far the national judge can remedy the situation by issuing provisional measures. The questions submitted to the CJEU in these types of cases concern primarily the identity of the court having jurisdiction to deal with the case. However, comparable considerations, pertaining to emotional damage or harm to the parent/child relationship can also play a part in, for instance, cases of family reunification.64 Since 2017, the Court has somewhat broadened the scope of application of the PPU, taking on board, as criterion, the existence of a real risk that certain fundamental rights, such as the protection against inhuman and degrading treatment, of the persons concerned will be violated.65 In two cases the problem was that, under national law, during the preliminary procedure, the transfer or return decisions could not be suspended, while the transfer or return implied the risk of a fundamental right violation. Therefore, a quick decision by the CJEU was necessary.66 In another case, concerning Regulation 2201/2003, the Court focused on the child’s welfare that was arguably seriously compromised and the existing risk of causing serious, possibly irreparable, harm to that child’s development. An additional argument to grant PPU was the fact that the child was very young and that made her stimulation and development particularly delicate.67 Due to the extreme urgency with which such a decision as to whether or not to initiate the urgent procedure has to be taken, the Court’s decisions are very brief, without giving specific reasons.68 Yet, when making its assessment, the CJEU very carefully considers the specific circumstances of each case. Although the urgent character of the case at hand is a matter to be explained and substantiated by the referring court, the Court often completes the assessment by ‘ex officio’ considerations.69 Between 2014 and 2018, 32 applications for PPU have been granted, while 29 applications have been rejected.70 Since 2015, the statistics show a considerable increase in PPU cases; for 2019, the Court decided to designate two chambers as

63 Case C-497/10 PPU, Mercredi, ECLI:EU:C:2010:829; Case C-85/18 PPU, CV, ECLI:EU:C: 2018:220. 64 Case C-155/11 PPU, Imran, ECLI: EU:C:2011:387. 65 Case C–638/16 PPU, X and X, ECLI:EU:C:2017:173, para 33 and, implicitly, Case C– 578/16 PPU, C.K., ECLI:EU:C:2017:127, paras 48–51. 66 Case C–578/16 PPU, C.K., ECLI:EU:C:2017:127, paras 48–51; C–422/18 PPU, FR, ECLI: EU:C:2018:784, para 27. 67 Case C–393/18 PPU, UD, ECLI:EU:C:2018:835, paras 26–27. 68 The reasons for granting a PPU are usually set out briefly in the final judgement. See for instance Case C–271/17 PPU, Zdziaszek, EU:C:2017:629, paras 68–74. 69 Article 107(1) Rules of Procedure. In this regard, Article 107(3) Rules of Procedure provides that the President of the Court may, if the application of that procedure appears, prima facie, to be required, ask the designated Chamber to consider whether it is necessary to deal with the reference under that procedure. Cf. for instance Case C-491/10 PPU, Aguirre Zarraga, ECLI:EU:C:2010:828, para 38. 70 Cf. Annual Report 2018, p. 138.

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PPU Chambers which can treat the cases in parallel.71 Interestingly, there is an increase of requests in asylum and immigrations cases, with cooperation in criminal matters still ‘leading’.

3.3.2.2

The Procedure

The PPU may be started at the request of the national court or tribunal or, exceptionally, of the CJEU’s own motion. It is a matter for the referring court to set out the circumstances of law and fact that prove the urgency and, in particular, the risks that would be incurred if the question referred were to follow the normal preliminary reference track. Within the limits of what is reasonably possible, the referring court is called upon to indicate what should be, in its view, the solution to the questions referred.72 Such a clarification makes things easier for other parties to the proceedings as well as for the Court itself and hastens the treatment of the case. Moreover, the referring court is required to make a clear and explicit reference to the relevant provisions on PPU in the Rules of Procedure since this triggers special treatment by the Court’s Registry. According to Articles 106 and 114 Rules of Procedure, procedural documents in the PPU can be lodged or served to the Registry by email, telefax or other technical means of communication available to the CJEU. Functional mailboxes have been specifically set up for electronic communication in relation to the urgent preliminary ruling procedure within the Court. The reference in which a request for an urgent procedure is made is immediately notified, in the original language, to the parties to the main proceedings, the Member State from which the reference is made, and the Commission.73 In parallel, the reference is immediately translated into French. This translation allows the PPU Chamber to decide, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, whether to apply the PPU procedure or not.74 In contrast to the ‘normal’ procedure, the Court does not await the translation of the reference into all the other official languages and the notification to other Member States. Moreover, the case does not go through the general meeting of the Court.

71 The PPU Chamber is a Chamber of five judges that is designated as such every judicial year. This Chamber may also decide to sit in a formation of three judges (Article 113(1) of the Rules of Procedure) or may request the Court to assign the case to a greater formation, usually the Grand Chamber. Cf. Article 113(2) of the Rules of Procedure; see for example, Case C-357/09 PPU, Kadzoev, ECLI:EU:C:2009:741; Case C-237/15 PPU, Lanigan, ECLI:EU:C:2015:474; Case C-216/18 PPU, Minister for Justice and Equality (Deficiencies in the system of Justice), EU:C:2018:586. 72 Article 107(2) of the Rules of Procedure. 73 And again to the Union institutions and bodies that adopted the act whose validity and interpretation is in dispute. 74 Article 108(1) of the Court’s Rules of Procedure.

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In order to ensure maximum speed, the PPU’s written procedure is only open to the parties,75 the Member State from which the reference is made and the Commission.76 Pursuant to Article 109(2) of the Rules of Procedure, the time limit for presenting written observations is set by the Chamber hearing the case. In contrast to the normal preliminary reference procedure, the Rules of Procedure do not lay down a fixed period for the submission of written observations. However, in a non-binding statement the Council has called upon the CJEU to respect a period of at least ten working days for written observations.77 In the interest of efficiency and speed, the CJEU may specify limitations as to the length of observations and invite those who may present such observations to concentrate only on certain issues. Once submitted, these observations are translated into French. In cases of extreme urgency, the PPU Chamber may decide to omit the written part of the procedure.78 Other ‘interested parties’, i.e. other Member States, are informed of the reference: they may participate at the hearing and make observations on the basis of the reference, and the written observations, which are available in the language of the procedure and in French. The possibility of oral observations is important because the other Member States do not have the opportunity to submit written observations. Partially due to this, a hearing in a PPU case can be longer than is typical in the normal preliminary ruling procedure. The Chamber will decide the case shortly after the hearing after having heard the Advocate General, who presents his or her view within 1–3 days after the hearing. The judgment will be translated into all languages in the usual way, but as a matter of priority into the language of the case, in order to deliver judgment as quickly as possible. Hence, language versions other than the language of the case (and French) might not be available on the day the judgment is rendered. Altogether, the duration of a PPU is between 2 and 3 months.79

3.3.3 The Expedited Procedure (PPA) 3.3.3.1

The Procedure

According to Article 105 of the Rules of Procedure, the President of the Court may decide to apply an expedited procedure, thereby derogating from the normal preliminary ruling procedure. Application of the PPA can be decided at the request of the national court and, exceptionally, by the President on his own motion, after

75 Article

109(2) of the Rules of Procedure. again possibly the institutions that adopted the act whose validity or interpretation is in dispute. 77 Broberg and Fenger 2014. 78 Article 111 of the Rules of Procedure. 79 Annual Report 2018, p. 134. 76 And

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hearing the reporting judge and the Advocate General.80 Application of Article 105 Rules of Procedure is only possible where the nature of the case requires that it be dealt with within a short time.81 In these cases, the President of the Court will immediately fix the date for the hearing and communicate this date to the parties to the main proceedings and the other interested persons together with the text of the reference.82 Written observations may be submitted by interested persons within a reduced time-limit, which is also set by the President. However, the time-limit may not be less than 15 days (plus the usual extension by a period of ten days on account of distance according to Article 51 of the Rules of Procedure). The President may also request that matters addressed in the observations be restricted to the essential points of law raised by the question referred.83 The work of the Court’s translation service is thereby alleviated as the time spent on translating the observations is shortened. Prior to the hearing, the written observations are notified to all those entitled to submit observations. While according to the Rules of Procedure the Advocate General is merely heard, in practice he or she presents an Opinion. In contrast to the PPU, the PPA essentially consists of shortening the different steps of the normal preliminary ruling procedure without dispensing with any of them. The length of the procedure varies between 2.5 and 8 months.84

3.3.3.2

Circumstances That Trigger the Expedited Procedure—Comparison with the PPU

The expedited procedure puts extra strain on both those entitled to submit observations and on the Court itself, including its services. It is obvious that it cannot be used too often. The CJEU is restrictive in deciding cases under a PPA. Between 2014 and 2018, the Court granted the use of PPA in 20 cases and rejected it in some 93 cases.85 Neither the risk of economic loss,86 nor the economic or social character of

80 Until 2019, the President decided by an order. Since 2019 he takes a simple decision, the reasons for acceptance or refusal of a PPA request being briefly mentioned in the final judgement. 81 This is a change of wording from ex Article 104a of the previous Rules of Procedure according to which it was a precondition that there was exceptional urgency. In the preparatory works there is no indication that this change of wording implies a relaxation of the conditions for the PPA. 82 Article 105(2) of the Rules of Procedure. 83 Article 105(3) of the Rules of Procedure. 84 Annual Report 2018, p. 134. 85 Annual Report 2018, p. 137. Note that the figures include all expedited procedures, i.e. direct actions, appeals and preliminary question procedures. In 2018, 32 requests for an expedited preliminary ruling have been lodged. 86 Orders of 18 March 2005 in Case C-11/05, Friesland Coberco Dairy Foods, ECLI:EU:C:2005:814, paras 12 and 13; 4 December 2008 in Case C-384/08, Attanasio Group, ECLI:EU:C:2008:693, para 11.

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the main proceedings,87 were found to be sufficient to demonstrate the existence of ‘exceptional urgency’, as the criterion then was.88 Likewise, economic interests, as important and legitimate as they may be, are not capable of justifying, in themselves, use of the expedited procedure. Neither is the fact that the national proceedings are urgent and that the referring court is required to do everything possible to resolve the case in the main proceedings swiftly. Legal uncertainty about the rights affecting the parties in the main or similar proceedings, is also not in itself sufficient to justify the use of the expedited procedure.89 The same holds true when the deterioration of evidence can be prevented by provisional measures at national level.90 Furthermore, the Court has held that the duration of a criminal case before the national court is not a consideration which, in itself, can justify the use of the PPA.91 Similarly, a large number of individuals or legal situations potentially affected by the decision to be delivered by the referring court does not, in itself, constitute an exceptional circumstance that would justify the use of the expedited procedure.92 This was, for instance, the case in NS and ME and others,93 concerning proceedings between asylum seekers who were to be returned to Greece pursuant to Regulation 343/2003 and the United Kingdom and Irish authorities respectively. The Court did not grant PPA since the sole interest of individuals in determining as rapidly as possible the scope of their rights was not a sufficient argument. Moreover, it did not appear that, for the duration of the preliminary ruling proceedings, the applicant must be made the subject of a detention measure or a removal order, or that the referring court was required to give a ruling within a prescribed period. The PPA was granted for the first time in a case concerning public health. Ms. Jippes kept as a hobby four sheep and two goats at her residential address in an area outside of a foot-and-mouth disease vaccination zone. Ms. Jippes wished her animals to be vaccinated against the disease and challenged both a Council Directive and a Commission Decision which permitted such vaccination only in certain zones. The national court considered that those questions needed to be answered as a matter of exceptional urgency and therefore requested that they be examined in an expedited procedure. The Court took account of the number of outbreaks of foot-and-mouth disease in the Netherlands, the rapidity of the spread of the disease, 87 Cf.

for instance Orders of 24 September 2004 in Case C-344/04, IATA and ELFAA, ECLI:EU:C:2004:564; of 15 November 2005 in Case C-341/05, Laval un Partneri, ECLI:EU:C:2005:687 and of 19 October 2009 in Case C-310/09, Accor, ECLI:EU:C:2009:638. 88 Cf. note 67 above. 89 Order of 29 November 2017 in Case C–603/17, Bosworth & Hurley, ECLI:EU:C:2017:933, paras 8–10 with further references. 90 Order of 27 November 2014 in Case C-486/14, Kossowski, ECLI:EU:C:2014:2419. 91 Order of 29 September 2008 in Case C-375/08, Pontini, ECLI:EU:C:2008:528. 92 Cf. for instance the Order 3 December 2008 in Case C-403/08 and C-429/08, Football Association Premier League et al. and Murphy, ECLI:EU:C:2008:675; Order of 23 October 2009 in Case C240/09, Lesoochranárske zoskupenie, ECLI:EU:C:2009:657, Order of 5 October 2012 in Case C-394/12, Abdullahi, ECLI:EU:C:2012:623 and Order of 29 November 2017 in Case C–603/17, Bosworth & Hurley, ECLI:EU:C:2017:933, paras 11–12 with further references. 93 Order of 1 October 2010 in Case C-411/10, N. S., ECLI:EU:C:2010:575.

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the uncertainty as to the manner in which it would continue to spread and the number of animals liable to be slaughtered, weighed against the fact that vaccination constitutes a means of protection against the virus.94 The Court’s judgment was rendered in 2.5 months following the lodging of the national court’s preliminary reference. Comparable considerations in granting the request for a PPA played a role in Pesce et al, concerning measures against the spread of the Xylella Fastidiosa microbe (seriously affecting olive trees) on the one hand and the protection of environment and irreversible damage to the parties on the other hand.95 The exceptional circumstances of the financial crisis of 2007 and onwards have also justified the use the PPA. In Pringle, the referring Irish court asked questions about the validity of the European Stability Mechanism Treaty (ESM Treaty). The use of the accelerated procedure was deemed necessary in order to dispel as soon as possible the uncertainty which adversely affected the objective of the ESM Treaty, namely to maintain the financial stability of the Euro area.96 In Morcillo and Garcia, PPA was granted because of the risk, for the owner, of losing his main dwelling which would put him and his family in a particularly fragile situation.97 An important factor in this case was that even if the persons concerned would eventually win the case, they would be entitled to financial compensation, but the dwelling would not be restored to them. Although, as was already mentioned above, a large number of individuals potentially affected does not, in itself, justify the use of the expedited procedure, in Megesteab and Jafari cases were submitted to a PPA. In the context of the refugee crisis, characterised by an exceptionally high number of applications for asylum, there was a risk of obstructing the functioning of the Dublin III system and, consequently, of seriously weakening the common asylum system. Likewise, the questions concerned central aspects of the Dublin III system and the Court’s answer might have overall consequences for the cooperation of the authorities under that system.98 In M.A.S. and M.B. the Italian Constitutional Court had asked for an expedited procedure because of profound uncertainties as to the consequences of the judgment in Taricco which concerned the principle of legality of criminal offences and penalties and affected a large number of pending criminal cases.99 The use of the PPA was justified in this case in order to dispel serious uncertainties which affect fundamental issues of national constitutional law and EU law.100 94 Case

C-189/01, Jippes, ECLI:EU:C:2001:420. of 13 April 2016 in Joined cases C-78/16 and C-79/16, Pesce et al, ECLI:EU:C:2016:251. 96 Order of 4 October 2012 in Case C-370/12, Pringle, ECLI:EU:C:2012:620. 97 Order of 5 June 2014 in Case C-169/14, Sánchez Morcillo and Abril García, ECLI:EU:C:2014:1388, para 11. 98 Orders of 15 February 2017 in Case C–670/16, Mengesteab, ECLI:EU:C:2017:120 and in Case C–646/16, Jafari, ECLI:EU:C:2017:138. 99 Case C-105/14, Taricco, ECLI:EU:C:2015:555. 100 Order of 28 February 2017 in Case C-42/17, M.A.S. and M.B., ECLI:EU:C:2017:168. Serious uncertainties affecting fundamental issues of national constitutional law and EU law were also the reason for allowing a PPA in Order of 19 October 2018 in Case C–621/18, Wightman, ECLI:EU:C:2018:851 (interpretation of Article 50 TEU in the context of Brexit). 95 Order

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Upon request of the Polish Supreme Court the President of the Court granted the PPA Joint Cases of the Krajowa Rada S˛adownictwa. Dealing with this case within a short time pursuant to Article 105(1) of the Rules of Procedure was deemed necessary in order to dispel the serious uncertainties the referring court is facing and which relate to fundamental questions of EU law and concerning, in particular, the independence of the judiciary and the effects which the interpretation of that Union law is likely to have as regards the actual composition and working conditions of the Supreme Court of that Member State. Moreover, the uncertainties could also have an impact on the proper working of the judicial cooperation system embodied by the preliminary ruling mechanism under Article 267 TFEU.101 There exists, indeed, a partial overlap between the PPU and PPA and the circumstances that trigger the application of the PPA or the PPU may be very similar. While PPU is limited to the AFSJ, the expedited procedure may apply to the entirety of EU law. In some cases, where the Court dismissed an application for a PPU, it nevertheless proceeded under the expedited procedure. An example of this is Achughbabian.102 Mr. Achughbabian had been placed in police custody and, later, in detention, for his illegal stay in French territory. He argued that the detention was not compatible with the Return Directive. The referring court asked the Court for a PPU, but in the meantime terminated Mr. Achughbabian’s detention. For this reason, the Court dismissed the application for the PPU, but continued with the case under the PPA. The main reason was that many others in France were in in a similar situation and a swift answer was needed from the CJEU.103 In other cases, the national court itself, while the matter does fall within the AFSJ, requests that the case follow the PPA track rather than the PPU.104 Like in the case of a PPU, in a situation where the applicant is detained and the answer to the question raised is decisive as to the assessment of that person’s legal situation, the PPA will usually be granted. In the case of G,105 the request had been made by the national court in criminal proceedings brought against G, who was accused of having sold herbal mixes containing, in particular, various synthetic cannabinoids which did not, at the material time, come within the scope of the

101 Order of 26 November 2018 in Joined Cases C–585/18, C–624/18 and C–625/18, Krajowa Rada

S˛adownictwa, ECLI:EU:C:2018:977. C-329/11, Achughbabian, ECLI:EU:C:2011:807. 103 See also the Order of 12 May 2010 in Joined Cases C-188/10 and C-189/10, Melki and Abdeli, ECLI:EU:C:2010:270 and Order of 3 July 2015 in Case C- 215/15, Gogova, ECLI:EU:C:2015:466, concerning an interpretation of Regulation 2201/2003. 104 Cf. Case C-296/10, Purrucker, ECLI:EU:C:2010:665 and Case C-411/10, N. S., ECLI:EU:C: 2011:865. 105 Order of the President of the Court 6 May 2014, Case C-181/14, G., ECLI:EU:C:2014:740, Cf. also Order of 22 February 2008 in Case C-66/08, Kozlowski, ECLI:EU:C:2008:116, where the applicant was in custody because of the execution of a European arrest warrant. In contrast to that the application for PPA was dismissed since there was since no detention by Order of 27 November 2014 in Case C-486/14, Kossowski, ECLI:EU:C:2014:2419. 102 Case

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German Law on Narcotics.106 As G’s continued detention depended solely on the answer to be given to the question referred and as stated in Article 267(4) TFEU, and because the Court is to act with the minimum of delay when a person is in custody, the nature of the case justified its being dealt with within a short time.107 Similarly, as under the PPU, an expedited procedure can be granted in cases in which the interests of a child are at stake or there is the possibility of serious interference with fundamental rights. In Purrucker, the referring court asked the CJEU for the case to be conducted in accordance with the PPA pursuant to ex Article 104a of the Rules of Procedure. This reference was made in the context of proceedings between Ms. Purrucker and Mr. Vallés Pérez concerning custody rights of their son.108 PPA has also been applied, for instance, in a case concerning the right to parental leave.109 In Davis the request for a PPA was granted because the retention of all electronic communications data and subsequent access to that data, permitted under domestic legislation, was liable to cause serious interference with the fundamental rights laid down in Articles 7 and 8 of the Charter.110 In those migration cases that are outside the AFSJ, PPA can be granted for instance where there is great uncertainty for the applicants as to the possibility to have a normal family life within the meaning of Article 8 ECHR. In Metock and others,111 all of the applicants were seeking, inter alia, an order of certiorari quashing the decision of the competent Minister who refused to grant a residence card to a third country national married to a Union citizen.112 The referring court requested that the expedited procedure be applied in this case because some of the third country nationals were being held under arrest and all of them were deprived of the opportunity of leading a normal family life with their spouse and children. According to the Court, a reply within a very short period was indeed indicated since it could bring a swifter end to the uncertain situation which was preventing the persons concerned from leading a normal family life.113 In contrast to Metock, in ZZ the referring court did not demonstrate that there was great uncertainty for the applicant in particular as to the possibility to have a normal family life within the meaning of Article 8 ECHR. This case concerned a decision of 106 This request for

a preliminary ruling concerned the interpretation of Article 1(2)(b) of Directive 2001/83 (Community code relating to medicinal products for human use), as amended by Directive 2004/27. 107 Order of 6 May 2014 in Case C-181/14, G., ECLI:EU:C:2014:740. 108 Case C-296/10, Purrucker, ECLI:EU:C:2010:665. 109 Order of 12 May 2010 in Case C-194/10, Chatzi, ECLI:EU:C:2011:182. 110 Order of 1 February 2016 in Case C–698/15, Davis et al, ECLI:EU:C:2016:70. 111 Order of 17 April 2008 in Case C-127/08, Metock and others., ECLI:EU:C:2008:235, paras 12–16. 112 The legislation at issue was Directive 2004/38 (free movement of citizens of the Union and their family members). 113 See also order of 9 September 2011 in Case C-256/11, Dereci and others, ECLI:EU: C:2011:571. In this case, third country nationals with EU family members (children, spouses) made applications for residence permits in Austria. These applications were rejected and some of the applicants were subject to expulsion orders and individual removal orders from Austria. The PPA was applied.

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the Secretary of State for the Home Department refusing ZZ admission to the United Kingdom on grounds of public security. A PPA was not granted because it did not appear that the referring court was required to give a ruling within a prescribed period or that the proceedings commenced by ZZ, or the appeal brought by him before the referring court had been dealt with as a matter of urgency. In addition, the proceedings before the referring court had twice been stayed at ZZ’s request. Moreover, it did not appear from the Order for reference that ZZ, who had French nationality and was resident in France, was threatened with deportation from the whole of the European Union.114 In conclusion, while the PPA’s scope of application is broader, the considerations which justify the use of either PPU or PPA are often very similar. As to what extent the criterion contained in Article 105 of the Rules of Procedure, namely the need to deal with the case ‘within a short time’, differs from the requirement of ‘urgency’ that guides the decisions on PPU has yet to crystallise. The practice so far may suggest that the PPA is very slightly ‘less urgent’ than the PPU.

3.4 Conclusions In procedures before the EU Courts a number of mechanisms make it possible to intervene promptly and to offer protection in case of urgency. In direct actions before the Court, the party may ask for interim measures. If necessary, interim measures can be ordered on a provisional basis without even having heard the defendant. A final decision on interim measures will always follow within a short period of time. An important difference with certain domestic legal systems is that interim measures are admissible only if the applicant has challenged the measure at issue in a regular action before the Court. In other words, an application for interim measures, as such, is not a possible avenue. As was briefly discussed in the present contribution, the request for interim measures can be introduced not only by individuals (physical or legal persons), but also by the Commission.115 Recently, the Commission has used this possibility in infringement proceedings against Poland which touch directly or indirectly upon the protection of fundamental rights. Another possibility to speed up the treatment of a case is the use of the so called expedited procedure in direct actions. Overall it would seem that the means available before the Court of Justice and the General Court are sufficient to provide protection in case of urgency where fundamental rights are involved. In cases which are introduced before the national courts, the availability of provisional or swift judicial protection in case of urgency is a matter of national law. However, also here EU law may impose certain obligations. In particular, the principle of effective judicial protection, which is now reaffirmed in Article 47 CFR 114 Order 115 And

of 10 October 2011 in Case C-300/11, ZZ, ECLI:EU:C:2011:646. indeed by a Member State or another institution, as the case may be.

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(the right to an effective remedy and to a fair trial), may imply an obligation to give provisional legal protection. Moreover, a type of provisional protection may also be granted through the suspensive effect of a judicial remedy that in certain circumstances may be imposed as a matter of EU law. In a preliminary procedure before the Court of Justice no interim measures can be ordered. Instead, in order to speed up the proceedings before the Court in such a procedure two avenues can be envisaged: the expedited procedure (PPA) and, in the AFSJ, the urgent procedure (PPU). Both procedures have been discussed in quite some detail above. From the point of view of the speed of the procedures, both the PPA but especially the PPU have great advantages and are no doubt suitable to address urgent situations, notably where fundamental rights are at stake, while remaining within the basic structure of the preliminary procedure. However, both tracks must be used with great caution. From the Court’s internal perspective, including its services, and externally, both procedures impose great constraints on all those involved. In particular when a case is dealt with under the PPU the situation resembles a sort of ‘pressure cooker’. The most important drawbacks as regards the PPU is the limited participation of parties during the written stage of the proceedings, who, moreover, have to work under considerable time constraints. The time available for the judges and the Advocate General for thorough reflection is also limited. Moreover, in the PPU there is no involvement of the ‘whole court’ in the very first stage of the procedure, i.e. the case does not go through the general meeting of the Court. These constraints and limitations are potentially problematic given that the PPU is applicable in new areas of rather sensitive EU law, with a limited number of jurisprudential precedents. Moreover, the legislation at issue is often the result of political compromise which often has consequences for its quality. Yet the judgment given has an impact in—at the time of writing of the present contribution—28 Member States. It is trite to state that speed often has consequences on the quality of work. Unsurprisingly, there is a certain risk the Court may be criticised for the quality of its reasoning in PPU cases, which in turn may lead to the questioning of the overall persuasiveness of the judgments and, as a consequence, the legitimacy of the Court. While the PPA may ‘do better’ in terms of parties potentially involved, the time constraints imposed on the Court’s services as well as for the judges and the Advocate General remain. Finally, and from a macro perspective, one must also realise that the time and effort of all actors concerned invested into a PPU or PPA have a negative knock-on effect on the treatment of other—normal—preliminary cases as well as the remainder of the Court’s caseload.

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References Broberg M, Fenger N (2014) Preliminary references to the European Court of Justice. Oxford University Press, p. 404 Jans JH, Prechal S, Widdershoven RJGM (eds) (2007) Europeanisation of Public Law, 2nd edn. Europa Law Publishing Kokott J, Sobotta Ch (2014) The CJEU – An Insiders’ View of an Integration Workshop. HRLJ 2014, pp. 4–11 Prechal S (2014) Communication within the preliminary rulings procedure: responsibilities of the national courts. MJ 2014, pp. 753–761

Legislation Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States – Statements, OJ L 190, 18.7.2002, p. 1, lastly amended by Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial, OJ L 81, 27.3.2009, p. 24. Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, OJ L 251, 3.10.2003, p. 12. Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, OJ L 311, 28.11.2001, p. 67, as amended by Directive 2004/27/EC of the European Parliament and of the Council of 31 March 2004, OJ L 136, 30.4.2004, p. 34. Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, OJ L 338, 23.12.2003, p. 1, repealing Regulation (EC) No 1347/2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses, OJ L 160, 30.6.2000, p. 19. Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, OJ L 158, 30.4.2004, p. 77. Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, OJ L 348, 24.12.2008, p. 98. Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, OJ L 337, 20.12.2011, p. 9 (recast; repeal Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, OJ L 304, 30.9.2004, p. 12). Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, OJ L 180, 29.6.2013, p. 60 (recast; repeal Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, OJ L 326, 13.12.2005, p. 13).

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Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (Dublin III), OJ L 180, 29.6.2013, p. 31 (repeal Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (Dublin II), OJ L 50, 25.2.2003, p. 1).

Sacha Prechal is Judge at the Court of Justice of the EU and honorary professor of European law at Utrecht University. Aniel Pahladsingh is an EU lawyer at the Dutch Council of State in The Hague. All views expressed in this contribution are strictly personal. The contribution was finalized in December 2019.

Chapter 4

The Politics of Interim Measures in International Human Rights Law Roísín Pillay

Contents 4.1 4.2 4.3 4.4

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Legal Basis for the Binding Force of Interim Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . Legal Challenges to the Obligation to Comply with Interim Measures . . . . . . . . . . . . . . Challenges to Interim Measures at Inter-Governmental Level . . . . . . . . . . . . . . . . . . . . . . 4.4.1 European Convention System: Interim Measures and the Interlaken Reform Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.2 Precautionary Measures and the Process of ‘Strengthening’ the IACHR . . . . . . . 4.4.3 Interim Measures in UN Optional Protocol Negotiations . . . . . . . . . . . . . . . . . . . 4.5 Conclusions: Ensuring Practical and Effective Protection . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This chapter scrutinises the discomfort of states in accepting legally binding urgent measures, granted by international and regional tribunals or committees. The unwillingness of states to accept the binding power of interim measures, and the questioning of their legitimacy, can be seen on a judicial level as well as on a political level. Firstly, the legal challenges to the binding nature of interim measures are considered. Secondly, on the political level, this chapter discusses the inter-governmental negotiations about treaty reform and the creation of new rules of procedure. The European Court of Human Rights and the United Nations treaty bodies serve as the main examples, but one section concerns the developments in the Inter-American system, where a Special Working Group was set up to reflect on this topic. Keywords interim measures · precautionary measures · provisional measures · protect · preserve · effectiveness · legitimacy · binding force · political level · Rules of Court · Rules of Procedure · sensitive issues · migration policy

R. Pillay (B) Europe and Central Asia Programme, International Commission of Jurists (ICJ), Rue de la Source 66, 1060 Brussels, Belgium e-mail: [email protected] © T.M.C. Asser Press and the authors 2021 E. Rieter and K. Zwaan (eds.), Urgency and Human Rights, https://doi.org/10.1007/978-94-6265-415-0_4

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4.1 Introduction Interim, precautionary or provisional measures have become an essential feature of the procedures of both global and regional human rights mechanisms. Although their legal basis and regulation varies, in the majority of such mechanisms, interim measures are clearly established as legally binding. The fact that the binding effect of interim measures has been affirmed, irrespective of whether they are provided for in the relevant treaty or in the rules of court, and even where the final decisions of bodies concerned are not in themselves legally binding on states, is a testament to the significance attached to interim measures as a means of ensuring the effectiveness of international human rights law. Indeed, interim measures go to the heart of the function of international human rights mechanisms. Not only, as before other international courts or tribunals, do they serve to preserve the facts of the situation pending adjudication of the case,1 and to prevent irreparable damage to the interests of one of the parties, they also ensure that the mechanism can provide real and effective protection of the human rights guaranteed by its governing treaty and an effective remedy for breach of those rights. Interim measures are thus closely linked with the substance of the rights protected by the relevant treaty and with the Contracting Parties’ undertaking to abide by those rights in good faith.2 While interim measures have become more and more entrenched in the rules of international human rights mechanisms, their legal force has been subject to challenge, becoming a flashpoint for contention over the perceived intrusion of international human rights law into national sovereignty. The considerable power of interim measures—and perhaps an appreciation of their developing potential to further empower international human rights courts and tribunals—has led to questioning of their legitimacy by states, both in litigation and at a political level. States’ discomfort with interim measures may be partly attributable to the sensitivity of the cases in which there is most need for urgent measures to prevent irreparable harm. For example, in the European Convention system, such cases often touch on the sensitive issues of migration policy, extraditions involving security or counter-terrorism, or relationships with other states,3 although the great majority of interim measures are indicated in a relatively narrow range of cases related to non-refoulement.4 Recent applications of interim measures raising obvious political

1 ICJ

LaGrand (Germany v USA) ICJ, Judgment of 27 June 2001, ICJ Reports 2008, p. 466. Piandiong v. the Philippines, Comm. No. 869/1999, CCPR/C/70/D/869/1999, para 5.1. See further Sect. 4.2 infra. 3 See, for example, ECtHR Al-Saadoon and Mufdhi v UK App. No 61498/08, Judgment of 2 March 2010; Babar Ahmed and Others v UK, App. No 24027/07, Judgment of 10 April 2012; Othman (Abu Qatada) v UK, App No. 8139/09, 17 January 2012. 4 European Court of Human Rights, Statistics: Interim measures by respondent state and country of destination: https://www.echr.coe.int/Documents/Stats_art_39_02_ENG.pdf. Accessed 20 January 2020. 2 HRCtee

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sensitivities have included measures of the Inter-American Court of Human Rights,5 which were later withdrawn,6 to block the consideration of legislation concerning an amnesty law in the El Salvador Parliament, and of the European Committee of Social Rights to ensure the protection, security and health of migrant children accommodated in insanitary and dangerous conditions in Greece,7 and to provide accommodation for evicted Roma communities in Italy.8 For many years, the InterAmerican Court and Commission have issued interim measures in a wide range of cases, from situations of evictions of indigenous peoples from their ancestral lands,9 to the capacity to stand for election.10 But the provision for interim measures in more recent individual UN treaty body communications mechanisms under the Optional Protocols to the Convention for the Elimination of Discrimination against Women (CEDAW), Convention on the Rights of the Child (CRC) and Convention on the Rights of Persons with Disabilities (CRPD), suggests an expanding scope of application of interim measures at the global level, which is only likely to increase their political sensitivity. This chapter analyses the rules and jurisprudence of global and regional human rights courts and mechanisms that have developed doctrines of the legally binding nature of interim measures, and considers how the assertion of their legal effect has been met with resistance and accusations of illegitimacy by states before the courts, and attempts to impose restrictions through intergovernmental negotiations relating to the reform of existing human rights mechanisms and the establishment of new systems. It focuses mainly on the European Court of Human Rights and United Nations treaty bodies, with additional reference to other international human rights mechanisms, in particular the Inter-American Court of human rights and the Inter-American Commission on Human Rights.

5 IACtHR,

Case of the Massacres of El Mozote and surrounding areas v. El Salvador. Urgent Measures and Monitoring Compliance with Judgment. Order of President of the Inter-American Court of Human Rights of 28 May 2019. 6 IACtHR, Case of the Massacres of El Mozote and surrounding areas v. El Salvador. Request for Provisional Measures and Monitoring Compliance with Judgment. Order of the Inter-American Court of Human Rights of 3 September 2019. 7 European Committee of Social Rights, International Commission of Jurists (ICJ) and European Council for Refugees and Exiles (ECRE) v. Greece, Decision on Admissibility and on Immediate Measures, 23 May 2019, Complaint No. 173/2018. See further Pillay 2019. 8 European Committee of Social Rights, Amnesty International v. Italy, Decision on Admissibility and on Immediate Measures, 4 July 2019, Complaint No. 178/2019. 9 IACHR Teribe and Bribri of Salitre Indigenous People, Costa Rica, Resolution on Precautionary Measures, 30 April 2015, OAS Doc No. PM 321/12. 10 Gustavo Francisco Petro Urrego v Colombia, IACHR, Resolution on Precautionary Measures, OAS Doc No. PM 374/13, 18 March 2014.

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4.2 Legal Basis for the Binding Force of Interim Measures The challenge to interim measures by states has often been articulated as a dispute about the sufficiency of their legal basis, since in regard to many of the longer established mechanisms, they are not specifically provided for by treaty. Mostly, these rules are to be found in the mechanism’s own rules of procedure, and the binding Interim measures are thus closely linked with the substance of the rights protected by the relevant treaty and with the Contracting Parties’ undertaking to abide by those rights in good faith.11 UN treaty bodies have affirmed the binding nature of interim measures under their individual complaints procedures, regardless of whether such measures have a basis in the relevant treaty, or of whether the treaty or rules of procedure expressly indicate that they have binding effect. Although the UN Human Rights Committee’s individual complaints procedure under the Optional Protocol to the ICCPR does not itself provide for interim measures, Rule 94.1 of the Committee’s Rules of Procedure allows the Committee to ‘request that the State party concerned take on an urgent basis such interim measures as the Committee considers necessary to avoid possible actions which could have irreparable consequences for the rights invoked by the author’.12 Despite the absence of an explicit treaty basis, longstanding jurisprudence as well as the General Comments of the Committee establish an obligation to comply with interim measures deriving from obligations under the Optional Protocol to cooperate with the Committee and the petitions procedure in good faith, and to allow the Committee to consider the merits of the case and forward its views to the parties.13 In Piandiong v. the Philippines,14 the Committee considered that a State Party commits grave breaches of its obligations under the Optional Protocol if it acts to prevent or frustrate consideration of communications by the Committee, or to render examination by the Committee moot and “the expression of its views nugatory and futile”.15 The Committee further considered that disregard of its interim measures, especially

11 HRCtee

Piandiong v. the Philippines, Comm. No. 869/1999, CCPR/C/70/D/869/1999, para 5.1. See further Sect. 4.2 infra. 12 Rules of Procedure of the Human Rights Committee, CCPR/C/3/Rev.11 (2019). 13 Piandiong v. the Philippines, Comm. No. 869/1999, CCPR/C/70/D/869/1999, para 5.1. Validzhon Khalilov v. Tajikistan Comm. No. 973/2001, CCPR/C/83/D/973/2001 para 4.1; Mansaraj and others v. Sierra Leone Comm. No. 841/98, CCPR/C/77/D/1086/2002, para 5.1; Glen Ashby v. Trinidad and Tobago, Com. No. 580/1994, CCPR/C/74/D/580/1994, para 4.11. KB v Russia Comm. No. 2193/2012, 2 May 2016, paras 8.1–8.3; General Comment 33, The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights, CCPR/C/GC/33, 5 November 2008, para 19. The Committee has also stated that implementation of interim measures may be required in some circumstances under the right to an effective remedy, General Comment No. 31, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add. 13, para 19. 14 Piandiong, above n. 15. 15 Ibid., para 5.2.

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by irreversible action, such as execution or deportation, undermined the substance of the Covenant rights.16 The Committee’s Rules of Procedure, as revised in 2019, now expressly provide that ‘[w]hen the Committee requests interim measures under the present rule it will indicate that the request does not imply a determination on the admissibility or the merits of the communication, but that failure to implement such measures is incompatible with the obligation to respect in good faith the procedure of individual communications established under the Optional Protocol’.17 In individual complaints proceedings before the Committee Against Torture, interim measures, provided for under Rule 114 of the Committee’s Rules of Procedure,18 are ‘requested’ rather than imposed by the Committee. Nevertheless, the Committee, in a series of cases where the authors of communications have been transferred from the territory despite requests under Rule 114, has stated unequivocally that it considers its requests for interim measures to be binding on States that have accepted the right of individual petition under Article 22 of the Convention Against Torture (CAT).19 Adopting a purposive interpretation of Article 22, the Committee has pointed to States’ undertaking in good faith, in accepting Article 22, to co-operate with the Committee in its consideration of individual communications. The rules adopted by the Committee, including Rule 114, must also be observed by State Parties, since they are an integral part of the Convention, which give meaning and scope to the right of individual communication and to the substantive Convention rights.20 The Committee has found that compliance with a request for interim measures is essential to protect against irreparable harm to the individual, pending the decision of the Committee, and to ensure that any eventual finding by the Committee is not ‘nullified’ or rendered purely academic because of action taken whilst the process is ongoing.21 More recently concluded Optional Protocols providing for individual complaints mechanisms to UN treaty bodies do include express provision for interim measures, as opposed to leaving such measures to be provided for in the Rules of Procedure. These include the Optional Protocols to the Convention on the Elimination of All

16 Ibid., para 5.3 These points were reiterated by the Committee in Validzhon Khalilov, above n. 15, para 4.1–4.2. Mansaraj and others, above n. 15, paras 5.1–5.2; and Sholam Weiss v. Austria Comm. No. 1086/2002, CCPR/C/77/D/1086/2002, 3 April 2003. 17 Rules of Procedure of the Human Rights Committee, op cit, Rule 94.2. 18 Committee against Torture, Rules of Procedure, 1 September 2014, CAT/C/3/Rev.6. 19 CAT Rosana Nuñez Chipana v. Venezuela, Comm. No. 110/1998, CAT/C/21/D/110/1998, para 8; TPS v. Canada, Comm. No. 999/1997, CAT/C/24/D/99/1997, para 15.6; Brada v. France, Comm. No. 195/2002; Pelit v. Azerbaijan, Comm. No. 281/2005, CAT/C/38/D/281/2005; Dar v. Norway Comm. No. 249/2004, CAT/C/38/D/249/2004. 20 CAT, RS v Switzerland Communication No. 482/2011 19 January 2015, para 7. 21 CAT, TPS v Canada, above n. 19, para 15.6; Rosana Nuñez Chipana v Venezuela, above n. 19, para 8; Brada v France, above n. 19, para 13.4; Pelit v Azerbaijan, above n. 19, para 10.1; Dar v Norway, above n. 19, para 16.3.

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Forms of Discrimination against Women (CEDAW),22 the Convention on the Rights of Persons with Disabilities (DRPD),23 the International Covenant on Economic, Social and Cultural Rights (CESCR),24 and the Convention on the Rights of the Child (CRC) ,25 as well as the Convention for the Protection of All Persons from Enforced Disappearance (CED). 26 None specify the binding nature of interim measures, each providing that the committee ‘may transmit to the State Party concerned for its urgent consideration a request that the State Party take’ interim measures.27 However, it seems likely that, by analogy with the jurisprudence of the Human Rights Committee and the Committee against Torture, these measures do have such force. Notably, at an early stage in the development of its individual complaints system, the Committee on the Rights of the Child has made clear in guidelines on interim measures its view that ‘interim measures issued under Article 6 of the Optional Protocol on a Communications Procedure (OPIC) impose an international legal obligation on State parties to comply. A failure by the State party concerned to implement the interim measures would undermine the effectiveness of the individual communications procedure and render the case moot. Such non-compliance would entail a violation of Article 6 of the OPIC, which expressly establishes the Committee’s competence to issue interim measures’.28 This has recently been affirmed in the Committee’s jurisprudence in AL v. Spain,29 where the Committee found that a failure to comply with its interim measures violated Article 6 of the Protocol, since ‘by ratifying the Optional Protocol, States parties take on an international obligation to comply with the interim measures requested under Article 6 of the Optional Protocol, which, by preventing irreparable harm while a communication is pending, ensure the effectiveness of the individual communications procedure’.30 At a regional level, in the European Convention system, interim measures are provided for under Rule 39 of the Rules of Court, rather than in the Convention itself. The binding nature of interim measures indicated under Rule 39 of the Rules of Court has, however, been repeatedly affirmed, including by the Grand Chamber 22 Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women, UN General Assembly Resolution A/RES/54/4, 6 October 1999, Article 5. 23 Optional Protocol to the Convention on the Rights of Persons with Disabilities, UN General Assembly Resolution A/RES/61/106, 13 December 2006, Article 4. 24 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, UN General Assembly Resolution A/RES/63/117, 10 December 2008, Article 5. 25 Optional Protocol to the Convention on the Rights of the Child on a communications procedure, UN General Assembly Resolution A/RES/66/138, 19 December 2011, Article 6. 26 Article 31.4 of the Convention for the Protection of All Persons from Enforced Disappearance, UN General Assembly Resolution A/RES/61/177, 20 December 2006. 27 Article 5 Optional Protocol to CEDAW, op cit; Article 4 Optional Protocol to DRPD, op cit, Article 5 Optional Protocol to CESCR, op cit, Article 6 Optional Protocol to CRC, op cit. 28 Guidelines for Interim measures under the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, Adopted by the Committee on the Rights of the Child at its 80th session (14 January to 1 February 2019), para 9. 29 CRC, AL v Spain, above n. 12, para 12.12. 30 Ibid., see also MT v Spain CRC/C/82/D/17/2017, 5 November 2019, para 13.11.

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of the European Court of Human Rights, as being a necessary consequence of the obligations of States under Article 34 of the Convention, not to hinder the exercise of the right of individual petition, and under Article 1 of the Convention, to protect the Convention rights.31 In the leading case of Mamatkulov and Askarov v. Turkey,32 the Grand Chamber’s finding that interim measures were binding, was based on the necessity of such measures to prevent irreparable damage to the rights of the parties to a case, pending the decision of the Court, and to ensure effective operation of the individual petition system, and to the Court’s role in securing the Convention rights.33 The binding nature of interim measures in the ECHR system therefore has its roots in both procedure and substance; necessary to preserve the rights of the parties from irreparable harm,34 and to permit the Court to give practical and effective protection to the Convention rights by which the Member States have undertaken to abide.35 . Furthermore, as the Court has recognised, interim measures ultimately protect the capacity of the individual petitions system to provide victims of human rights violations with an effective remedy. This reflects the substantive right to a remedy under Article 13 of the Convention, which functions as an inherent requirement in proceedings before the Court.36 Interim measures may also ultimately serve to allow enforcement of obligations under Article 46 of the Convention, since they may be required for the State to discharge its obligation to comply with the final judgment of the Court.37 The Court has sent repeated and clear signals that the binding nature of interim measures will not be qualified in any way.38 For example, in the 2013 case of Nizomkhon Dzhurayev v. Russia,39 it stressed that ‘the Court cannot emphasise enough the special importance attached to interim measures in the Convention system’.40 The Court noted that the ‘vital role played by interim measures […] commands the utmost importance to be attached to the question of the State Parties’

31 ECtHR

Mamatkulov and Askarov v. Turkey, Application Nos. 46827/99 and 46951/99, Grand Chamber, 4 February 2005; Shamayev and Others v. Georgia and Russia Application No. 36378/02; Aoulmi v. France, App No. 50278/99; Paladi v. Moldova Application No. 39806/05; Aleksanyan v. Russia, Application No. 46468/06; Shtukaturov v. Russia, Application No. 44009/05; Ben Khemais v. Italy Application No. 246/07, Judgment of 24 February 2009. 32 Op cit. 33 Mamatkulov and Askarov v. Turkey, op cit, paras 123–125. 34 Ibid., paras 101–108, Paladi v. Moldova para 87 Ben Khemais v. Italy Application No. 246/07, 24 February 2009, para 81. 35 Mamatkulov, op cit, para 125; See also Aoulmi v. France Application No. 50278/99, para 103 36 Mamatkulov, op cit, para 124. 37 Mamatkulov op cit, para 125. 38 See Savriddin Dzhurayev v Russia, App. No. 71386/10, Judgment of 25 April, 2013; Amirov v Russia, App. No. 51857/13, Judgment of 27 November 2014 paras 65–75; Khloyev v Russia, App. No. 46404/13, paras 63–67. 39 Nizomkhon Dzhurayev v Russia, App. No. 31890/11, Judgment of 3 October 2013. 40 Ibid., para 35. See also Andrey Lavrov v Russia, application No. 66252/14, Judgment of 1 March 2016, para 32.

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compliance with the Court’s indications’.41 and warned that ‘[a]ny laxity on this question would unacceptably weaken protection of the core rights in the Convention and would not be compatible with its values and spirit […] it would also be inconsistent with the fundamental importance of the right of individual application and, more generally, undermine the authority and effectiveness of the Convention as a constitutional instrument of European public order’.42 The Court has stressed the need to comply with both the letter and the spirit of interim measures and has found that attempts to circumvent the intent of interim measures by for example, transferring an applicant by means other than the extradition prohibited by a Rule 39 measure, will lead to a violation of the obligation not to hinder individual petition to the Court, under Article 34 of the Convention.43 In Andrey Lavrov v. Russia,44 the Court considered that the authority of interim measures is partly derived from the fact that they were granted ‘only in truly exceptional cases’.45 Furthermore, the serious consideration which the Court gave to requests takes place ‘on the basis of a rigorous examination of all the relevant circumstances’.46 But it stressed that in this context, the effectiveness of the system required interim measures to be complied with: ‘[t]he vital role played by interim measures in the Convention system not only underpins their binding legal effect on the States concerned, as upheld by the established case-law, but also requires that the utmost importance be attached to the question of the States Parties’ compliance with the Court’s indications in that regard’.47 The Inter-American Court’s provisional measures are expressly provided for under Article 63.2 of the American Convention on Human Rights (ACHR), which states that they can be issued ‘[i]n cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons’. The binding nature of provisional measures has been confirmed in the Inter-American Court’s jurisprudence. In the case of Constitutional Court v. Peru, where the Court held ‘[t]hat, under the International Law of Human Rights, the purpose of provisional measures goes further, as, besides their essentially preventive character, they effectively protect fundamental rights, inasmuch as they seek to avoid irreparable damage to persons’.48 The Court further stressed that ‘the provision established in Article 63(2) of the Convention makes it mandatory for the State to adopt the provisional measures ordered by this Tribunal, since there stands “a basic principle of the law of international state responsibility,

41 Ibid.,

para 156. para 156. 43 Savriddin Dzhurayev v Russia, op cit; Nizomkhon Dzhurayev v Russia, op cit para 157; Kondrulin v Russia, App. No 12987/15, Judgment of 20 September 2016, para 47. 44 Andrey Lavrov v Russia, Application No. 66252/14, 1 March 2016. 45 Ibid, para 33. 46 Ibid. 47 Ibid. 48 IACtHR Constitutional Court v. Peru. Order of the President of the Inter-American Court of Human Rights of April 07, 2000, para 11. 42 Ibid.,

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supported by international jurisprudence, according to which States must fulfil their conventional international obligations in good faith (pacta sunt servanda)”.49 Precautionary measures issued by the Inter-American Commission, enshrined in Article 25 of its Rules of Procedure,50 are similarly considered by the Inter-American Commission to be ‘binding upon the States because of the general obligation incumbent upon them to respect and guarantee human rights, to adopt the legislative or other measures necessary for ensuring effective observance of human rights, and to carry out in good faith the obligations contracted under the American Convention and the Charter of the OAS’,51 as well as the Commission’s competence under those instruments and its own Statute to monitor and ensure States’ compliance with their human rights commitments.52

4.3 Legal Challenges to the Obligation to Comply with Interim Measures The jurisprudence of UN treaty bodies and regional courts affirming the binding nature of interim measures has always been challenged by some states in litigation before these bodies, and the recent case-law shows that some states have continued to explicitly dispute or seek to limit interim measures’ binding force. An example of an outright challenge to any obligation to comply with interim measures is the 2012 case of Lyubov Kovaleva and Tatyana Kozyar v. Belarus,53 which concerned the respondent State’s failure to comply with the Committee’s request not to execute Mr. Kovalev pending full consideration of the case. Belarus argued that ‘such a request is beyond the mandate of the Committee and is not binding in terms of its international legal obligations. Accordingly, the Criminal Code is the only source of criminal law in Belarus’.54 The Committee, reiterating its

49 Constitutional

Court v. Peru, Order of 14 August 2000, para 14. amended by the Inter-American Commission at its 147th Regular Period of Sessions, held from March 8–22, 2013. Article 25 bases the precautionary measures on “Articles 106 of the Charter of the Organization of American States, 41.b of the American Convention on Human Rights, 18.b of the Statute of the Commission and XIII of the American Convention on Forced Disappearance of Persons Article 25.1. 51 Second report on the situation of human rights defenders, IACHR, OAS Doc. No. OEA/Ser.L/V/II, Doc. 66, 31 December 2011, original Spanish, OAS translation (‘IACHR Second report on human rights defenders’), para 438, citing I Case of Penitentiaries in Mendoza, IACHR, Order of 22 November 2004, para 16. 52 Ibid. See further, Precautionary Measures of the Inter-American Commission on Human Rights Legal Status and Importance, Rodriguez-Pinzón 2014. 53 HRCtee Lyubov Kovaleva and Tatyana Kozyar v Belarus CCPR, Comm. No. 2120/2011, 27 November 2012. 54 Ibid., para 6.3. 50 As

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jurisprudence as to the essential nature of interim measures to the Committee’s role under the Optional Protocol, found that Article 1 of the Protocol had been violated.55 As late as 2016, before the European Court of Human Rights, in Andrey Lavrov v. Russia,56 Russia argued that ‘it could not be inferred from Article 34 of the Convention or “from any other source” that the interim measure indicated under Rule 39 of the Rules of Court was legally binding. […] the Rules of Court, and accordingly the interim measure applied, did not have binding force on the State Party and that, accordingly, their failure to submit answers to the questions raised by the Court […] did not entail a violation of Article 34, or of any other provision of the Convention’.57 These arguments were also, unsurprisingly, rejected, and the Court found a violation of Article 34 of the Convention. In Kondrulin v. Russia, where a similar argument was made, the Court emphasised that ‘in view of the vital role played by interim measures in the Convention system, they must be strictly complied with by the State concerned. The Court therefore cannot conceive of allowing authorities to circumvent an interim measure’ and thereby frustrating its purpose.58 Earlier legal challenges by states sought, and in general failed, to carve out exceptions to the obligation to comply with interim measures, based on impediments related to national law or procedures, or international obligations, or on arguments that the indication of interim measures was incorrect. These attempts were rejected from an early stage in the case-law on interim measures, as well as consistently in more recent jurisprudence. Both the Human Rights Committee and the European Court of Human Rights have rejected arguments that competing international law obligations override the obligation to comply with interim measures.59 Before the European Court of Human Rights, in the 2010 case of Al-Saadoon and Mufdhi v. UK,60 the government sought to justify the transfer of the applicants to the Iraqi authorities, contrary to interim measures indicated by the Court on the grounds that, given agreements entered into with the Iraqi authorities, they had no option but to make the transfer. The government ‘took the view that, exceptionally, it could not comply with the measure indicated by the Court; and further that this action should not be regarded as a breach of Article 34 in this case. The Government regards the circumstances of this case as wholly

55 Ibid.,

para 9.5. Andrey Lavrov v Russia Application No. 66252/14), 1 March 2016. 57 Ibid., para 28. Similar arguments were made and rejected in the cases of Amirov v. Russia, above n. 40, para 62 and Khloyev v Russia, Appl. No. 46404/13, Judgment of 5 February 2015, Appl. No. 46409/13, para 63 and Kondrulin v Russia: Appl. No. 12987/15, Judgment of 20 September 2016, para 37. 58 Kondrulin v Russia Application No. 12987/15, 20 September 2016, para 47. 59 ECtHR Soering v UK App. No. 14038/88, Judgment of 7 July 1989 para 31, para 111; ECtHR Mamatkulov and Askarov v Turkey, op cit, para 107; ECtHR Rrapo v Albania App. No. 58555/10, Judgment of 25 September 2012, para 86, HRCtee Weiss v Austria, CCPR, Comm. No. 1086/2002 15 May 2003, paras 5.2–5.3 and 7.1–7.2. 60 ECtHR Al-Saadoon and Mufdhi v UK App. No. 61498/08, Judgment of 2 March 2010. 56 ECtHR

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exceptional. It remains the Government’s policy to comply with Rule 39 measures […] as a matter of course where it is able to do so’.61 The Court considered however, that the UK had not met the obligation to take all steps reasonably available to it to comply with the interim measures indicated. If it does not comply, then it is for the State to identify an ‘objective impediment’ which the authorities had been unable to remove.62 In this case the government had not shown that there were no realistic or practicable means available to them by which to safeguard the applicant’s human rights.63 Although on the day of the transfer, there was little alternative left to the authorities but to hand over the applicant to the Iraqi authorities, this situation ‘was of the respondent State’s own making’.64 Therefore, there had been a violation of Article 34 ECHR.65 The European Court has also refused to accept arguments from states that lack of compliance with interim measures can be justified where the interim measures were incorrect. It has held that the obligation to comply with such measures applies irrespective of the merits of the case, and of whether the non-compliance would cause or has caused irreparable harm or violation of Convention rights. In Paladi v. Moldova,66 whilst the government did not dispute its obligation to comply with interim measures under Article 34, regarding the urgent provision of medical attention, it contended that the applicant’s medical situation had not in fact been as urgent as had been thought at the time, and therefore their delay in providing medical care had not led to irreparable damage.67 The Court nevertheless found a violation of Article 34, noting that, on the basis of what was known at the time the interim measures were indicated, the authorities had been negligent in risking such irreversible damage.68 It held that ‘the fact that the damage which an interim measure was designed to prevent subsequently turns out not to have occurred despite a State’s failure to act in full compliance with the interim measure is equally irrelevant for the assessment of whether this State has fulfilled its obligations under Article 34’.69 A fortiori, the Court has held that the State Party’s belief as to the merits of the case (including on issues of jurisdiction) is irrelevant to the obligation to comply with interim measures. A State Party cannot substitute its own judgment for that of the Court, in deciding whether to comply with interim measures, or to what extent or within what time limits they should be complied with.70 Therefore, if a party considers the interim measures to be unworkable or incorrect, it must apply to the Court for their revision or removal. It cannot unilaterally decide to substitute its 61 Ibid.,

para 81. para 161. 63 Ibid., para 162. 64 Ibid, para 162. 65 Ibid., para 166. 66 Paladi v Moldova, App. No. 39806/05, Judgment of 10 March 2009. 67 Ibid, paras 83 and 103–104. 68 Ibid., para 93. 69 Ibid., para 89. 70 Paladi v. Moldova, op cit para 90. 62 Ibid.,

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views for that of the Court, since ‘[i]t is for the Court to verify compliance with the interim measure, while a State which considers that it is in possession of materials capable of convincing the Court to annul the interim measure should inform the Court accordingly’.71 In Ben Khemais v. Italy,72 for example, the government sought to justify its failure to comply with interim measures preventing the expulsion of the applicant, on the grounds that the measures were wrongly indicated, as domestic remedies against the expulsion had not been fully exhausted.73 This argument was rejected by the Court; it noted that the government had not asked for the lifting of the interim measures prior to carrying out the expulsion, though it had been possible for it to do so.74 In Trabelsi v. Belgium,75 the Belgian government requested that the interim measures preventing the extradition of the applicant to the US should be lifted, as they were premature. The government made four applications for the measures to be lifted, each of which was rejected. Despite this, the extradition was carried out. The government argued that there was in fact no real risk of violation of the Convention rights following transfer, and relied on a judgment of the Belgian Conseil d’État to that effect.76 The Court held that these arguments did not justify non-compliance with the interim measure. It stressed that, by carrying out the expulsion contrary to the interim measures indicated, the state had ‘deliberately and irreversibly lowered the level of protection of the rights set out in Article 3 of the Convention which the applicant had endeavoured to uphold by lodging his application with the Court’.77 It was not for the state to substitute its own appraisal for the Court’s assessment of the assurances given and of the merits of the application and to decide to override the interim measure indicated by the Court.78

71 Ibid.

See further Olaechea Cahuas v. Spain, ECtHR, Application No. 24668/03, Judgment of 10 August 2006, para 81. 72 Ben Khemais, ECtHR, Application No. 246/07, Judgment of 24 February 2009. 73 Ibid., para 74. 74 Ibid., para 86. 75 Trabelsi v. Belgium, ECtHR, Application No. 140/10, Judgment of 4 September 2014. 76 Ibid., para 143. 77 Ibid., para 150. 78 Ibid., para 151.

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4.4 Challenges to Interim Measures at Inter-Governmental Level 4.4.1 European Convention System: Interim Measures and the Interlaken Reform Process The European Court’s affirmation of the binding nature of interim measures, and its insistence on the importance of strict compliance, formed the background to attempts to open questions at an inter-governmental level about the role and status of interim measures in the Convention system. The more immediate cause of this debate was a significant increase in the number of requests for interim measures between 2006 and 2010, reflecting the importance and effectiveness of interim measures as a preventative mechanism, in particular in deportation and extradition cases. The increase in such requests related mainly to transfers to Iraq, as well as to transfers to Council of Europe member states under the Dublin Regulation System, the EU system which determines the EU country in which an asylum application will be processed.79 The sharp increase in requests for interim measures raised concern in the Court as well as amongst Member States and led to a public statement issued by the then President of the Court, Judge Jean-Paul Costa in 2011, drawing attention to the ‘alarming’ rise in such requests in deportation cases and noting that ‘where national immigration and asylum procedures carry out their own proper assessment of risk and are seen to operate fairly and with respect for human rights, the Court should only be required to intervene in truly exceptional cases’.80 The Court also amended a Practice Direction setting out the requirements for applicants seeking interim measures,81 and took steps to streamline its procedures for their consideration.82 These developments triggered an inter-governmental debate on interim measures, which was initiated by Council of Europe Member States within the wider context of measures for the reform of the Convention system that followed the Interlaken Declaration of 2010.83 The Interlaken programme of work was intended to address the problems of the increased caseload of the Court, and to help it to deal with an overwhelming backlog of cases. Although questions relating to interim measures were only tenuously related to this agenda, they became one of the primary issues in the debate on the reform of 79 Press Release, Governments, applicants and their lawyers urged to co-operate fully with European Court, following “alarming rise” in requests to suspend deportation, No. 127, 11 February 2011. 80 Ibid. 81 Practice Direction, Requests for Interim Measures, issued by the President of the Court in accordance with Rule 32 of the Rules of Court on 5 March 2003 and amended on 16 October 2009 and on 7 July 2011. 82 See, CDDH, Report on Interim measures under Rule 39 of the Rules of Court, CDDH(2013)R77 Addendum III, 22 March 2013, para 11. 83 High Level Conference on the Future of the European Court of Human Rights, Interlaken Declaration, 19 February 2010.

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the Court, roughly between 2010 and 2014, and featured particularly prominently in the negotiation of the Izmir Declaration of 2011, shortly after the European Court President’s public statement on interim measures. This debate took place in the Council of Europe Steering Committee on Human Rights (CDDH), and its subcommittees, including the Committee on a Simplified Procedure for the Amendment of certain Provisions of the European Convention on Human Rights (DH-PS),84 and in the preparation of the Izmir and Brighton Conferences on the future of the Convention system. In CDDH, DH-PS and related discussions, Member States’ concern about interim measures was largely articulated as a concern that, because of their legal basis in the Rules of Court, and in the Court’s jurisprudence, rather than in the Convention itself, such measures lacked legitimacy. Governments did not expressly challenge the binding nature of interim measures or the obligations arising from such measures under the jurisprudence of the Court, and indeed many gave repeated assurances that they did not wish to make changes to the substantive rules on interim measures. However, proposals were made in DH-PS to ‘upgrade’ certain provisions of the Rules of Court to an instrument which could be subject to amendment by, or with some influence by, the Member States: either a new instrument such as a Statute of the Court, or the Convention itself, possibly amongst provisions to be made subject to a new ‘flexible amendment’ procedures allowing for amendment through a simplified procedure. Although these proposals were intended to apply to a range of Rules of Court, it was notable that discussion focused disproportionately on Rule 39, illustrating the significance which interim measures had taken on for all actors in the Convention system.85 Proposals were made to take the opportunity of promotion of Rule 39 to the Convention or a Statute of the Court to ‘clarify’ the circumstances in which interim measures could be indicated, or to include a reasonableness criterion for their indication.86 Proposals to ‘promote’ interim measures to the Convention or a Statute, ostensibly designed with the twin purposes of allowing the Court to respond more flexibly to the demands of its caseload, and increasing the ‘legitimacy’ of the most significant elements of the Rules of Court, were viewed with scepticism by some commentators, including the observer NGOs to the Committee. NGOs, including the International Commission of Jurists, expressed repeated concern that a new ‘flexible amendment procedure’ or ‘promotion’ of Rule 39 to an instrument within the control of Member States rather than the Court, would lead to weakening of the binding force of such measures. More generally, they raised concerns that the power of the Court to regulate

84 As

well as subsequently in the Drafting Group “G” on the Reform of the Court (GT-GDR-G) established following the Brighton Conference and its Drafting Group “C” on Reform of the Court (GT-GDR-C). 85 See for example, DH-PS Meeting Report, 3rd Meeting, 19–21 October 2011, DH-PS(2011)R3, para 25. 86 Ibid.

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its own operating procedures under the Rules of Court would be diminished, eroding the independence of the Court.87 While these discussions were ongoing, the Izmir Conference on the Future of the European Court, organised by the Turkish Chairmanship of the Council of Europe, provided a focus for the debate on interim measures, which became a contentious point in the preparation of the conference and its declaration.88 The final Izmir Declaration, adopted at the High-Level Conference on the future of the European Court of Human Rights of April 2011,89 expressed concern at recent increases in the number of interim measures requested under Rule 39.90 In controversial language, it recalled ‘that the Court is not an immigration Appeals Tribunal or a Court of fourth instance’, and emphasised that ‘the treatment of requests for interim measures must take place in full conformity with the principle of subsidiarity’.91 The Declaration invited the Court to consider how it can best ensure that this was the case and to consider the possibility of an expedited consideration of the merits of a case or of a related lead case, once interim measures had been indicated. While stressing the importance of national remedies, such as suspensive remedies in case of expulsion, which would avoid the need for applicants to apply to the court for interim relief, the Declaration also notably ‘invites the Court, when examining cases related to asylum and immigration, to assess and take full account of the effectiveness of domestic procedures and, where these procedures are seen to operate fairly and with respect for human rights, to avoid intervening except in the most exceptional circumstances’.92 In the event, DH-PS did not reach agreement on action to establish either a Statute of the Court or a flexible amendment procedure for the Convention.93 In the final report of the group agreed by the CDDH, it was concluded that whilst provisions of the rules including Rule 39 would benefit from ‘upgrading’, they should not be subject to a simplified amendment procedure. It was concluded that given the complexity of the legal issues raised by the proposals, such steps should not be proceeded with for the time being, but could be reconsidered in the future.94

87 Committee of experts on a simplified procedure for amendment of certain provisions of the European Convention on Human Rights (DH-PS), Comments of the International Commission of Jurists, Amnesty International, Liberty, JUSTICE, the AIRE Centre and Interights, March 2011, https://www.amnesty.org/en/documents/ior61/0002/2011/en/. Accessed 20 January 2020. 88 See comments of Amnesty International, the International Commission of Jurists, the AIRE Centre and Interights on the Draft Declaration for the Izmir High Level Conference (Draft of 22 March 2011), http://www.icj.org. 89 High Level Conference on the Future of the European Court of Human Rights, Izmir, Turkey, 26–27 April 2011, Declaration of 27 April 2011. 90 Ibid., preamble, para 12. 91 Ibid., para A.3. 92 Ibid., para A.3. 93 Report of the CDDH, CDDH(2012)R75 Addendum I. 94 CDDH Final Report on a simplified procedure for amendment of certain provisions of the Convention CDDH(2012)R75, Addendum I.

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With this final report, the states had not relinquished their ideas for influencing the interim measures practice. Following the Brighton Conference and Declaration on the Future of the Convention System, in April 2012,95 a new working group of the CDDH was established, charged by the Committee of Ministers with preparing ‘conclusions and possible proposals for action concerning the procedure of the amendment of the Rules of Court and the possible “upgrading” to the Convention of certain provisions of the Rules of Court’.96 In November 2014, the CDDH report on the work of this group, whilst setting out several possible models for upgrading elements of the Rules, once again concluded that a simplified amendment procedure that would itself require amendment of the Convention should not be considered at present, ‘although the question might be reconsidered, if appropriate, in the context of future work on follow-up to the CDDH final report on the longer-term future of the Convention system and the Court’.97 The Brighton Declaration also called for an assessment by the Committee of Ministers of whether there had been a significant reduction in the numbers of requests for interim measures, and whether applications in which interim measures were applied were dealt with sufficiently quickly.98 The Declaration further invited the Court ‘to consider providing brief reasons for its decisions indicating provisional measures and decisions by its panel of five judges on refusal of referral requests’.99 The report of the CDDH in response, issued in March 2013,100 found that the number of indications of interim measures had fallen significantly since 2010, and that applications in which interim measures were indicated were now dealt with more speedily.101 It stressed the importance of effective national remedies (in particular suspensive remedies in regard to expulsions) in averting the need to resort to interim measures of the Court.102 The report decided not to recommend a more adversarial process prior to the indication of interim measures, or the giving of reasons for such measures, recognising that these elements would be impractical in the context of such an urgent procedure. However, it encouraged ‘effective dialogue’ between the Court and the respondent state prior to an indication of interim measures,103 and suggested that the Court could consider giving reasons for interim measures in exceptional circumstances.104 95 High Level Conference on the Future of the European Court of Human Rights, Brighton Declaration, 20 April 2012. 96 CDDH Report containing conclusions and possible proposals for action concerning the procedure of the amendment of the Rules of Court and the possible “upgrading” to the Convention of certain provisions of the Rules of Court, CDDH(2014)R82 Addendum 1, 21 November 2014, para 1. 97 Ibid., para 20. 98 Brighton Declaration, op cit, para 12.e. 99 Ibid., para A.1.d. 100 CDDH Report on Interim Measures under Rule 39 of the Rules of Court, CDDH(2013)R77 Addendum III, 22 March 2013. 101 Ibid., paras 42–43. 102 Ibid., para 45. 103 Ibid., para 48. 104 Ibid., para 51.

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It was notable that by the time of the next inter-governmental conference within the Interlaken process, the Brussels Conference of 27 March 2015,105 the issue of interim measures was much less central to the debate, whose focus had moved to questions of national implementation and execution of judgments. In the Brussels Declaration agreed at the Conference, Member States simply expressed welcome support for interim measures, underlining ‘the obligations of States Parties under Article 34 of the Convention not to hinder the exercise of the right to individual application, including by observing Rule 39 of the Rules of the Court regarding interim measures’.106 Ultimately, in 2016, in the European Court of Human Rights’ paper, The Interlaken Process and the Court,107 the Court rejected the Brighton Conference’s recommendation to give reasons for interim measures, noting that ‘providing reasons for the application of Rule 39 would represent a considerable burden for the Court, likely to slow down a process that by its nature must operate rapidly. Instead, by the rapid communication of such applications, the Government concerned is informed of the factual basis for the interim measure’. At the same time, the Court noted that it had developed its practice so as to on occasion ‘defer its decision on an interim measure, circumstances permitting, so as to request additional information from the Government’.108 It appears therefore that the reform process—together with the Court’s own initiatives—has had some influence in reducing the numbers of interim measures indicated,109 and in strengthening the understanding that such measures are exceptional. However, attempts to call into question the legitimacy of interim measures, due to their lack of basis in the Convention or in a Statute, or due to the absence of reasons provided to the State, have made little progress, and the Court’s insistence on the need to ensure speedy and effective procedures to uphold the rights of the parties pending consideration of a case has remained the overriding consideration.

4.4.2 Precautionary Measures and the Process of ‘Strengthening’ the IACHR Initiatives to revise the system of interim measures have had more significant impact within the Inter-American system. The debate within this system has also involved contention between the legitimacy of interim measures and their effectiveness,

105 High-level

Conference on the “Implementation of the European Convention on Human Rights, our shared responsibility”, Brussels Declaration, 27 March 2015. 106 Ibid., preamble. 107 The Interlaken Process and the Court (2016 Report) 1 September 2016. 108 Ibid., para 20. 109 According to the European Court of Human Rights 2018 statistics, in 2018 62 requests for interim measures were granted and 269 refused.

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centring on the frequency or exceptionality of their use, due process for their indication and the provision of reasons, but also involving questioning of their binding legal effect. At its meeting of 29 June 2011, the Organization of American States’ Permanent Council decided to create a Special Working Group to Reflect on the Workings of the Inter-American Commission on Human Rights with a view to Strengthening the Inter-American Human Rights System.110 This launched a process which led to amendment of the rules of the Inter-American Commission in 2013, including the rules on interim measures. The process of ‘strengthening’ of the system appears to have been triggered by the reaction of Brazil to the issuance of precautionary measures by the Inter-American Commission on Human Rights to suspend the construction of a dam at Belo Monte, that threatened the existence of the indigenous communities in the Rio Yingu Basin. In response, Brazil withdrew its ambassador to the Organization of American States, withheld its annual dues and pressed for a review of precautionary measures.111 On 4 May 2011, the Secretary General of the Organization of American States in a BBC interview on the Belo Monte case stated that ‘[…] the Inter-American Commission on Human Rights issues recommendations. These orders are never binding for the countries. This means that no country would be breaching any treaty if it fails to do what the Commission asks. The Commission as such does not have mandatory powers.’112 The Special Working Group published its report on 13 December 2011, in which it affirmed that ‘the system of precautionary measures of the IACHR has been and continues to be of practical value and usefulness’.113 It considered that, ‘in order to give greater clarity to the system of precautionary measures, procedural aspects of the system could be refined and strict observance of the regulatory framework of the IACHR be ensured, clear rules could also be introduced on the system’s workings and operation, without impairing its ultimate purpose of requesting prompt protection for persons in circumstances that warrant it’.114 The recommendations of the report tend towards a restrictive interpretation and use of precautionary measures, and to the increase of transparency and due process guarantees in their decisional process. Some recommendations, however, appear to be more designed to serve the needs of states than the functionality and effectiveness of precautionary measures, such as the recommendation to introduce a qualified

110 See

Documents of the Extraordinary Session of the OAS Permanent Council, OAS Doc OEA/Ser.G CP/ACTA 1809/11, 29 June 2011. 111 Amato 2012, p. 4. 112 BBC, “Comissão da OEA deve ‘revisar decisão’ sobre Belo Monte, diz secretário-geral”, 4 May 2011, original Portuguese, unofficial translation, http://www.bbc.co.uk/portuguese/noticias/-2011/ 05/110502_insulza_jc.shtml. 113 Report of the Special Working Group to Reflect on the Workings of the Inter-American Commission on Human Rights with a View to Strengthening the Inter-American Human Rights System for Consideration by the Permanent Council, OAS Doc, OEA/Ser G GT/SIDH-13/11 rev.2, 13 December 2011, Original in Spanish, OAS translation, para VIII(ii)(2), p. 10. 114 Ibid.

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majority to approve an interim measure, or the recommendation to grant ‘a reasonable amount of time for states to implement precautionary measures, taking into consideration not only the seriousness and urgency, but also the nature and scope of the measures, the number of beneficiaries, and the overall circumstances of the case’.115 The report was approved by the Permanent Council on 25 January 2012. On 23 October 2012, the Inter-American Commission on Human Rights issued its reply to the Permanent Council of the Organization of American States regarding the report of the Special Working Group to Reflect on the Working of the IACHR with a View to Strengthening the Inter-American Human Rights System. With regard to precautionary measures, the IACHR responded to the recommendation to ‘define and disseminate more precise objective criteria for granting, reviewing, and, as applicable, extending or lifting’,116 such measures that it is ‘appropriate to adopt reasoned resolutions for the decision to grant’ them, 117 including a description of the facts presented, of the measure, and any response of the State, and committed to ‘develop and subsequently publish a digest […] that systematizes and explains the standards set in precautionary measures and best practices in designing protective measures’.118 The IACHR agreed with the Group’s recommendation to ‘confine the assessment for granting precautionary measures to the “seriousness” and “urgency” of the situations, and avoid considerations on the merits of the matter’.119 In respect of observations stressing the temporary nature of precautionary measures, the IACHR reaffirmed its ‘commitment to continue periodically reviewing [them], at the request of a party or on its own initiative, in order to evaluate whether they should be maintained, modified or lifted’.120 The IACHR committed to ‘a practice, by which, when it grants a precautionary measure without having first requested information from the State, it will proceed to request information from the parties as soon as possible in order to review whether it should remain in force, be modified, or be lifted during the next period of sessions’.121 Furthermore, in granting precautionary measures, the IACHR ‘will present the reasoning and the legal and factual considerations on which it bases its decision’.122 Following a consultation process, the IACHR published new Rules of Procedure in March 2013.123 The General Assembly of the OAS approved and concluded this 115 Ibid.,

para VIII (ii)(2)(A)(j), p. 11. Reply of the Inter-American Commission on Human Rights to the Permanent Council of the Organization of American States regarding the recommendations contained in the Report of the Special Working Group to Reflect on the Workings of the IACHR with a View to Strengthening the Inter-American Human Rights System, Washington D.C., 23 October 2012, p. 18. 117 Ibid., para 62. 118 Ibid., para 63. 119 Ibid., para 65. 120 Ibid., paras 72–73. 121 Ibid., para 77. 122 Ibid., para 80. 123 Resolution 1/2013 of the Inter-American Commission on Human Rights of 18 March 2013 on Reform of the rules of procedure, policies and practices. 116 IACHR,

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consultation process, but left the door open for further discussion.124 Overall, the changes brought by the ‘strengthening’ process were definitions of the concepts of ‘seriousness’, ‘urgency’ and ‘irreparable harm’, an express reference to the sources of law justifying the issuance of precautionary measures, increased procedural requirements to reinforce the adversarial character of the system, the express mention in the rules of the obligation to provide reasons for the resolutions, and rules addressing potential conflicts with the Inter-American Court’s provisional measures procedure. These adjustments, while increasing transparency, constrain to some extent the Commission’s capacity to act speedily and flexibly in urgent situations. Nevertheless, for the time being, as in the European Court of Human Rights system, precautionary measures appear to have been preserved as an effective procedural tool of the IACHR.

4.4.3 Interim Measures in UN Optional Protocol Negotiations Although, as has been described above, provisions for interim measures in relation to recent UN instruments on communications procedures have been included in the treaty itself or in protocols to the treaty, the wording of these provisions as well as the contention they created during negotiations show how sensitive the issue of interim measures remains. The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR) provides an interesting example of the tensions at play in making provision for interim measures.125 The Optional Protocol (OP-ICESCR) was a long awaited procedural addition to the ICESCR, adopted only in 2008, more than 40 years after the agreement of the treaty, following decades of civil society advocacy and a long process of discussion, first within the UN Commission on Human Rights and then the UN Human Rights Council.126 Scepticism concerning ESC rights, and their ‘justiciability’ was omnipresent in the negotiations of the OP-ICESCR and was notably reflected in the discussions on the procedural mechanisms that the Committee on Economic, Social and Cultural Rights (CESCR) should have at its disposal. In this context, the inclusion of interim measures in the treaty itself was particularly contentious. By way of example, Japan questioned the application of such measures for ESC rights as a whole and, as captured in the records of the negotiations: ‘[Japan] 124 OAS General Assembly Resolution AG/RES.1 (XLIV-E/13) of 22 March 2013—Results of the Process of Reflection on the Workings of the Inter-American Commission on Human Rights with a View to Strengthening the Inter-American Human Rights System, adopted at the plenary session, held on 22 March 2013. 125 It should be noted that the OPIC, the third optional protocol to the CRC, is modelled on the ICESCR Protocol. 126 In 2002, the UN Commission on Human Rights established the Open-ended working group to discuss options for an Op-ICESCR. However, it is only in 2006 with its resolution 1/3, that the Human Rights Council changed the mandate of the Working Group to start negotiating the text of an Optional Protocol.

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found it difficult to imagine an urgent situation requiring interim measures given the nature of economic, social and cultural rights and questioned the need for such measures’.127 The eventual formulation of Article 5 of the OPIC (and Article 6 of the third Optional Protocol to the Convention on the Rights of the Child (third OP-CRC) reflects the tensions underlying the negotiations of the provisions on interim measures. Indeed, although it might seem an unnecessary addition, Article 5 specifies that the interim measures will be requested to avoid possible irreparable damage as necessary ‘in exceptional circumstances’.128 The addition of the criterion of exceptionality is, to a certain extent, derived from the prejudices and scepticism of states regarding the rights guaranteed by the governing treaties. How much impact it may have in practice is unclear, given that the jurisprudence of number of international human rights mechanisms already identify interim measures as exceptional, without noticeably inhibiting their robust application.129 It nevertheless leaves room for a narrow interpretation of the circumstances in which interim measures are appropriate.

4.5 Conclusions: Ensuring Practical and Effective Protection In the procedure and jurisprudence of international human rights courts and mechanisms, interim measures have two related roles. First, the role to preserve the situation of the parties pending adjudication of the merits of the case, in situations where there is an imminent risk of irreparable harm to those interests that would prejudice the outcome. In this light, interim measures are a means to uphold the international rule of law, by enabling the eventual decision of the tribunal to be effectively complied with. Second, to prevent violations of human rights where there is an imminent risk that they will occur before the case can be heard, causing irreparable harm to an applicant’s human rights. This second purpose is closely related to the first, but it adds a further imperative to the need to preserve the status quo, grounded in the substantive human rights which the mechanism is charged with protecting, and which the State Party to the relevant treaty has undertaken in good faith to protect. It is from these twin considerations—the common interest in the international rule of law, and the imperative of protecting human rights guaranteed by treaty through complaints 127 Report

of the third session of the Open-Ended Working Group, UN Doc. E/CN.4/2006/47, page 12. Paras 66–68. 128 See ICJ-IIDH, Commentary on the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, pp. 70–72, 2008 (English edition 2010). 129 See. e.g. ECtHR, Andrey Lavrov v Russia, Application No. 66252/14, 1 March 2016 and ECSR, International Commission of Jurists (ICJ) and European Council for Refugees and Exiles (ECRE) v. Greece, Complaint No. 173/2018, Decision on Admissibility and on Immediate Measures, 23 May 2019.

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mechanisms which states have agreed to be bound by—that interim measures derive their legitimacy. As the jurisprudence of both UN treaty bodies and regional human rights courts makes clear, interim measures with binding legal force are a necessary, intrinsic element of an effective international human rights complaints mechanism. It is therefore crucial that international human rights mechanisms retain discretion to impose interim measures in appropriate cases, irrespective of the rights at issue, where there is a risk of irreparable harm, through speedy, efficient and flexible procedures. The criterion of “exceptionality” needs to be interpreted in light of these imperatives. The tension surrounding interim measures are part of a wider context in which the capacity of international mechanisms to provide real, enforceable protection for human rights remains extremely fragile. Legally binding interim measures are one of the most practical tools available to such mechanisms in overcoming this fragility, and thereby upholding the human rights, as well as preserving the international rule of law. For international human rights courts and tribunals to fulfil their function, it is essential that the standards and procedures for the indication of interim measures are preserved from politically motivated interference and attempts to qualify the obligation of full and immediate compliance.

References Amato V (2012) Taking Stock of the Reflection on the Workings of the Inter-American Commission on Human Rights. Aportes DPLf, 5 (16) ICJ-IIDH (2008) Commentary on the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (English edition 2010), pp. 70–72 Pillay R (2019) Irreparable harm and ESC Rights: Immediate measures of the European Committee of Social Rights. Opinio Juris, 7 August 2019, http://opiniojuris.org/2019/08/07/ irreparable-harm-and-esc-rights-immediate-measures-of-the-european-committee-of-social-rig hts/. Accessed 20 January 2020 Rodriguez-Pinzón D (2014) Precautionary Measures of the Inter-American Commission on Human Rights Legal Status and Importance. Aportes DPLf, 7 (19)

Róisín Pillay is Director of the Europe and Central Asia Programme at the International Commission of Jurists (ICJ). This chapter is written in a personal capacity and does not represent the views of the ICJ. The author would like to thank Massimo Frigo, Sandra Ratjen and Ian Seiderman for research, information and comments provided for an earlier draft of this chapter. Any errors are the author’s alone.

Chapter 5

Provisional Measures in the African Human Rights System: Lingering Questions of Legitimacy Solomon T. Ebobrah Contents 5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 The Legal Foundations for Provisional Measures in the AHRS . . . . . . . . . . . . . . . . . . . . 5.3 Urgency, Extreme Gravity and Irreparable Harm in the African Human Rights System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.1 The African Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.2 The African Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4 (Non-)Compliance and the Legitimacy Question . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5 Strategies for Improving Compliance with Provisional Measures in the AHRS . . . . . . . 5.6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

88 89 92 93 99 105 111 112 112

Abstract This chapter critically analyses the jurisprudence of the African Commission and the Court on Human and Peoples’ Rights on provisional measures, as well as archival documents of the African Union. Next to the legal foundation of provisional measures in the African system, it discusses a range of situations that have been submitted by complainants as urgent, of extreme gravity and carrying the risk of irreparable harm to persons. It then deals with how the supervisory mechanisms have themselves decided upon the use of provisional measures. It examines the compliance situation and analyses it from the perspective of legitimacy. It shows that the users of the system and the adjudicators continue to play their roles in the cooperative tripod, but that African states have remained the weak point in their failure to implement most of the measures issued in cases involving them. The states do not question the legal foundation of provisional measures, but certain other legitimacy concerns can be detected. The chapter suggests some strategies for addressing such legitimacy concerns, which the adjudicators could employ to enhance the protective value of the system. S. T. Ebobrah (B) Niger Delta University, Bayelsa State Amassoama, Nigeria e-mail: [email protected]; [email protected] Centre for Human Rights, University of Pretoria, Pretoria, South Africa ICourts, Centre of Excellence for International Courts, University of Copenhagen, Copenhagen, Denmark © T.M.C. Asser Press and the authors 2021 E. Rieter and K. Zwaan (eds.), Urgency and Human Rights, https://doi.org/10.1007/978-94-6265-415-0_5

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Keywords Access to lawyer · Adversarial balance · African Commission on Human and Peoples’ Rights · African Court of Human and Peoples’ Rights · African human rights system · African Union · Compliance · Death row · Death sentence · Deportation · Due process · Ex parte applications · Executive interference · Gross violations · Health detainees · Indigenous · Interim measures · Irreparable harm · Legitimacy · Organisation of African Unity · Peer learning · Preventive · Property · Proprio motu · Protective · Provisional measures · Quasi-judicial adjudicator · Reasoning · Release · Rules of procedure · Supervision · Strategies · Survival · Traditional livelihood · Treaty-based · Urgent appeal · Whereabouts

5.1 Introduction The need to address urgent, serious and massive violations of human rights by state actors in Africa partly justified the establishment of the African Human Rights System (AHRS) on the auspices of of African Unity (OAU)—an organisation set up primarily to engage colonialism but redirected following its transformation into the African Union.1 Decades after its establishment, complaints of urgent, serious and massive violations continue to confront the AHRS and the mechanisms set up to supervise the protection of human rights in Africa. Albeit to different degrees, the African Commission on Human and Peoples Rights (the ‘African Commission’ or ‘Commission’; the African Court on Human and Peoples’ Rights (the ‘African Court’; and the African Committee of Experts on the Rights and Welfare of the Child (the ‘African Committee of Experts’) have been confronted with situations requiring urgent intervention. This chapter examines how two of these three main mechanisms have applied provisional measures to engage situations of urgent and serious threats or violations of human rights in the course of their work. From 1987 when the first set of Commissioners of the African Commission on Human and Peoples’ Rights was inaugurated to 2004 when the protocol establishing the African Court on Human and Peoples’ Rights entered into force,2 the African Commission almost singlehandedly supervised the protection of human rights within the framework of the AHRS. Despite its best efforts, the African Commission was perceived by a section of the human rights community and by some scholars as ineffective.3 In relation to urgent human rights situations, one eminent commentator took the view that, ‘the Commission has been ineffective in dealing with urgent matters that require interim relief’.4 In the face of such negative perceptions, the 1 See for instance Ssenyonjo 2012, p. 6 (asserting that gross human rights abuses in Uganda, Equato-

rial Guinea and the Central African Republic forced the attention of the OAU to the need to protect human rights). The OAU was transformed into the African Union (AU) in May 2001 when the Constitutive Act of the AU entered into force. 2 The Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, OAU Doc OAU/LEG/MIN/AFCHPR/PROT(1) Rev.2 adopted 10 June 1998 and entered into force on 25 January 2004. 3 For instance, see Muigai 2012, p. 271. 4 Viljoen 2012, p. 417.

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clamour for the establishment of an African Human Rights Court to strengthen the protection of rights in the AHRS system became even more aggressive, leading to the eventual adoption, in 1998, of the protocol establishing the court.5 Thus, the establishment of the African Court is supposed to, inter alia, also improve response to situations of urgent and serious violations of human rights on the continent.6 Endowed with judicial powers to make orders and deliver judgments that are binding on its states parties, the African Court was expected to improve the level of state compliance in the AHRS. Based on analysis of the jurisprudence of both the African Commission and the African Court, as well as other archival documents of the mechanisms and the African Union (AU), this chapter traces the trajectory of provisional measures in the AHRS. Using selected jurisprudence of both bodies as case studies, I describe the practices of the Commission and the Court with regards to provisional measures. I then discuss how African states have responded to provisional measures ordered or recommended to them. I demonstrate that compliance with provisional measures remains low even with the involvement of the Court and I argue that this level of non-compliance is partly an indication of lingering legitimacy questions that the mechanisms themselves need to confront. The chapter is divided into six parts. This introduction is followed by Sect. 5.2 which describes the legal foundation for provisional measures in the AHRS. In Sect. 5.3, I describe a range of situations that have been submitted in cases before the mechanisms of the AHRS as urgent, of extreme gravity and carrying the risk of irreparable harm to a person and analyse how the supervisory mechanisms have responded to the various situations in their consideration of provisional measures. Section 5.4 examines the compliance situation and analyses it from the perspective of the legitimacy question. In Sect. 5.5, I offer strategies for improving the preventive and protective value of provisional measures in the AHRS. I conclude with a recap of the main points of the chapter.

5.2 The Legal Foundations for Provisional Measures in the AHRS Understanding the legal foundations7 for provisional measures is important since states are known to justify negative reactions to such measures partly by arguing that there is no obligation to comply when the relevant treaty document does not empower a supervisory mechanism to order provisional measures.8 In the AHRS, 5 The

idea of a human rights court for the continent in the 1960s and later during the drafting of the African Charter on Human and Peoples Rights (African Charter). 6 See for instance Mutua 1999, pp. 351–353, 357. 7 As would become evident, different legal foundations apply for provisional measures by the African Commission and the African Court. 8 See Pasqualucci 2005, p. 2.

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the legal foundations for provisional measures by the Commission and the Court are different. First, there is the Rule of Procedure-based foundation on which the Commission’s power to recommend provisional measures rests. Since the African Charter on Human and Peoples’ Rights (African Charter) which established the African Commission9 is silent on provisional measures, the Commission has had to apply its Rules of Procedure to empower itself to indicate provisional measures. Rule 109 of the Commission’s first Rules of Procedure (adopted in 1988) was the initial vehicle for the introduction of provisional measures into the AHRS. Rule 109 was later reproduced in Rule 111 of the revised Rules adopted in 1995. According to Rule 111, the Commission ‘may inform the state party concerned of its views on the appropriateness of taking provisional measures to avoid irreparable danger being caused to the victim of the alleged violation’. By Rule 111, the Commission may indicate provisional measures ‘before making its final views known to the Assembly’.10 This means that the affected state party may be confronted with the Commission’s recommended measure(s) before the decision arising from the communication is adopted by the AU political organs—a precondition for its finality and (arguably) bindingness. The point to note here is that the competence to indicate provisional measures is self-conferred since it is the Commission’s own Rules, adopted by the Commission itself that constitute the legal foundation for the Commission’s power to indicate provisional measures. In the 2010 (further revised) Rules of Procedure of the Commission, Rule 98 provides for provisional measures. According to Rule 98(1): At any time after the receipt of a Communication and before a determination on the merit, the Commission may on its own initiative or at the request of a party to the Communication, request that the State concerned adopt Provisional Measures to prevent irreparable harm to the victim or victims of the alleged violation as urgently as the situation demands.

Comprised of five sub-rules which clearly define the grounds, criteria and steps for the indication of provisional measures, Rule 98 of the 2010 Rules of Procedure is more elaborate than the earlier two versions. For instance, Rule 98(4) in the 2010 Rules innovatively authorises the Commission to request the State concerned to report back on the implementation of provisional measures within fifteen (15) days of receipt of the notice of the measures. In other words, since 1988 the Commission applies its Rules to confer on itself the legal authority to indicate provisional measure (thereby filling a lacuna in the African Charter)11 and since 2010 also to impose a report-back duty on States. This is one legal foundation for provisional measures in the AHRS. The second legal foundation is in Article 27(2) of the Protocol to the African Charter on Human and Peoples’ Rights establishing the African Court on Human and 9 Article

30 of the African Charter. African Charter requires that the Commission sends its Activity Report to the Assembly of Heads of State for authorisation before the recommendations which are the outcomes of its communications procedure become final. 11 Also see Pasqualucci 2005, n 8 above, p. 12. 10 The

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Peoples’ Rights (African Court Protocol).12 Placed under Article 27 that deals with ‘Findings’ of the Court, sub-Article 27(2) provides that ‘In cases of extreme gravity and urgency, and when necessary to avoid irreparable harm to persons, the Court shall adopt such provisional measures it deems necessary’.13 Located in the Court’s Protocol—a treaty adopted by Member States of the OAU (now AU), the Court’s power to order provisional measures is conferred by the States themselves. In other words, applicable principles and obligations relating to treaties in international law apply to States which are parties to the African Court Protocol. Notwithstanding this treaty-based foundation, the Court has fortified its powers on provisional measures through its own Rules of Procedure, expanding the scope in some areas and reinforcing the provisions of the Protocol in other areas.14 Linking itself to Article 27(2) of the Court’s Protocol, Rule 51 of the Court’s Rules stipulates that provisional measures may be prescribed at the request of either a party or the African Commission or it may be initiated by the Court itself insofar as the Court considers the measure(s) to be in the interest of the parties or of justice to do so.15 In addition to specifying who may request measures (omitted in the Court’s Protocol), Rule 51 adds that the Court may grant provisional measures if such measures are considered to be either in the interest of the parties or of justice.16 Thus, while it has the advantage of a treaty-based-legal foundation for provisional measures, the Court relies on both its Protocol and the Rules of Procedure as legal foundation for ordering provisional measures. A first point to note is that the legal foundations for provisional measures in the AHRS reflect prevailing practices in international law where international institutions base provisional measures on powers derived either from founding treaties or rules of procedure. Established after the International Court of Justice (ICJ) and the older regional human rights mechanisms, the mechanisms of the AHRS have had the benefit of existing models to learn from. Arguably, a significant difference is supposed to exist between the two legal foundations described above. As the practice in a number of international regimes shows and scholars emphasise, originally where the power to order or recommend provisional measures is founded on a mechanism’s own Rules of Procedure, the binding quality of such measures is debatable.17 While UN and regional human rights mechanisms seem to have evolved towards asserting the 12 Ssenyonjo

2012, note 1 above.

13 Perhaps motivated by the location of these provisions in the article dealing with ‘findings’, Viljoen

for instance argues that provisional orders are judgements under the Protocol and are therefore binding on State Parties. See Viljoen 2012, n 4 above, pp. 417–418. 14 Rule 51 of the 2010 Rules of the African Court of Human and Peoples’ Rights. Pasqualucci 2005, n 8 above, p. 12 also notes that some enforcement bodies apply their own rules to supplement broad terms in the relevant treaty. 15 Rule 51(1) of the 2010 Rules of Procedure of the African Court. Emphasis added. 16 While in Johnson v Ghana, Application no 016/2017 at para 8 of the dissenting opinion in the Order for Provisional Measures, this is the interpretation suggested by the judges who dissented, these words could also mean that the Court may initiate the measures only if it considers it in the interest of the parties or in the interest of justice to do so. 17 See De Schutter 2005, p. 20; Naldi 2004, pp. 445, 447.

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binding legal quality of provisional measures founded on provisions in Rules of Procedure,18 debates remain. Hence, in theory the provisional measures ordered by the African Court ought to have more authority and a greater compliance pull than those of the African Commission since the former rests on treaty-based foundations. It is also notable that whereas the provisions in the African Court’s Protocol emphasise extreme gravity and urgency in conjunction with necessity to avoid irreparable harm to persons as the conditions upon which provisional measures may be ordered by the Court, the conditions set out in the Commission’s Rules of Procedure are more flexible. The Commission may recommend provisional measures to prevent irreparable harm to victim(s) as urgently as the situation demands. It leaves open the question whether there needs to be extreme gravity or urgency other than the requirement that the Commission acts in accordance with the urgency of the situation in relation to provisional measures by the African Commission.19

5.3 Urgency, Extreme Gravity and Irreparable Harm in the African Human Rights System Cumulatively, the Commission’s Rules of Procedure (with respect to the African Commission) and the African Court’s Protocol read together with the Court’s Rules (with respect to the Court) stipulate urgency, extreme gravity and irreparable damage to victim(s) as the grounds upon which provisional measures may be ordered or indicated. Generally, these coincide with the justification stipulated for interim or provisional measures before the ICJ, the European Court of Human Rights (ECtHR) and the institutions of the Inter-American Human Rights System. For instance, in the Case Concerning the Passage through the Great Belt, the ICJ took the view that provisional measures are only justified ‘if there is urgency in the sense that action prejudicial to the rights of either party is likely to be taken before … final decision is given’.20 In relation to the Inter-American Court on Human Rights, Pasqualucci asserts that that Court will only adopt ‘the extraordinary remedy of provisional measures’ in situations of ‘gravity, urgency and the likelihood of irreparable damage to persons’.21 Put differently, provisional measures are more justified when they have the potential

18 For instance see the position of the Human Rights Committee in Dante Piandiong Jesus Morallos and Archie Bulan v The Philippines, Communication No 869/1999, CCPR/C/70/D/869/1999, 19 Oct 2000, Human Rights Committee; also see the European Court of Human Rights in Mamatkulov and Askarov v Turkey, App Not 46827/99; 46951/199, Judg. Of 4 Feb 2005, Reports 2005-1. 19 In his interpretation of Rule 111 of the 1995 Rules, Naldi concluded that ‘the purpose of interim measures is clearly then to “avoid irreparable damage being caused to the victim” and/or to protect the interests of the parties or to ensure the proper conduct of the proceedings’. See Naldi 2002, p. 1. Naldi apparently finds no connection with urgency. 20 Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order of 29 July 1991, ICJ Reports 1991, p. 12 at para 23. Also see Duxbury 2000, pp. 141, 162. 21 Pasqualucci 1993, pp. 803, 833.

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to ‘serve a preventive function’.22 It would mean that the determination whether a given situation meets the laid down criteria is fact-specific. It is therefore important to examine what specific situations the African human rights mechanisms have engaged in in relation to provisional measures. The following is a non-exhaustive yet representative sample of situations on the basis of which provisional measures have been sought from the African Commission and the African Court respectively and how the mechanisms have handled the requests for measures.23 By the nature of adjudication and the legal process generally, it is from the jurisprudence of the mechanisms that data on provisional measures can be gathered and deciphered.24 Examination of the proceedings should not only expose what factual situations meet criteria for issuance of provisional measures such as urgency but also provide material for analysing the legitimacy of the proceedings in question. Although Naldi’s assertion that the Commission’s ‘reasoning on its motivation to grant interim measures is not extensive’,25 also applies in some degree to the Court, the jurisprudence of both mechanisms remains the tools of communication for understanding provisional mechanisms in the AHRS.

5.3.1 The African Commission The African Commission addresses urgent human right situations in two main ways. With regards to information received under its general protection mandate (but outside the communications procedure) which it labels ‘matters of emergency’26 the Commission issues urgent (letters of) appeal to the affected State Party.27 To qualify for the issuance of urgent appeal, the situation would involve serious and massive violations of human rights of the kind contemplated in Article 58(3) of the African Charter and should present danger of irreparable harm or require urgent action to avoid irreparable danger.28 For situations brought to the notice of the Commission within the context of the communications procedure, Rule 98 of the Commission’s Rules applies. Matters in this latter category (ought to) attract the formal indication of provisional measures. In this distinct use of urgent appeals and provisional measures within and outside the context of (quasi-) judicial litigation, the African Commission mirrors the practice of other bodies such as the UNHRC.

22 Pasqualucci

1993, as above, p. 812.

23 Although there are more recent communications than those cited in this paper, in which provisional

measures were requested, limited access to the full decisions has restricted my sample to earlier communications used in this chapter. 24 Also see Rieter 2010, p. 163. 25 Naldi 2004, n 17 above, p. 6. 26 Rule 79 of the Commission’s Rules of Procedure 2010. 27 Rule 80 of the Commission’s Rules of Procedure 2010. 28 As above.

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The rest of the discussion on the practice of the Commission relates only to the procedure for indication of provisional measures. In the description of communications and cases, particular attention is paid to timeliness in order to bring focus to the concept of urgency, both from its perspective as a criterion for indication of measures and from the perspective of the mechanism’s appreciation of the imperative to act timeously. My assumption in this regard is that State Parties may partially judge the urgency of a given situation by their assessment of the mechanism’s conduct and sense of urgency in dealing with that matter. In International PEN, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr) v Nigeria,29 before the African Commission, the complaints in the combined communication were initially against the arrest, detention in unsuitable conditions and trial of the late Ogoni environmental rights activist, Kenule Saro-Wiwa and a number of other Ogoni activists. Three requests for provisional measures arose from this matter which also involved three separate complaints that were merged by the Commission. Of the three original complaints that resulted in this communication, two were submitted in September 1994, though the victims were arrested in May 1994. The African Commission decided to be seized of the matter in October 1994 but deferred its decision on admissibility. On 9 November 1994, a decision to merge the complaints was communicated to the State along with a request based on Rule 109 of the old Rules (relating to provisional measures) to the Nigerian government ‘not to cause irreparable prejudice to the victims’. Since the Commission does not publish separate decisions for its provisional measures, it is unclear if this initial decision to indicate provisional measures was based on a request by the applicants. By February 1995, charges were brought against the victims before a domestic tribunal.30 In the course of the domestic trial, on 6 February 1995, International PEN notified the Commission that the victims were being ill-treated and faced the death penalty. This constituted a request for provisional measures under the circumstances. In response, on 13 February 1995, the Commission sent another letter to the government of Nigeria, emphasising the need for Rule 109 to be applied. This was effectively a second indication of provisional measures though it was transmitted as a letter to the domestic authorities. While the communication was pending before the Commission, it received information that on 31 October 1995 the death sentence had been passed on nine of the victims thus escalating the urgency and risk of irreparable damage to their persons. The risk that the victims faced was now the possible immediate execution of the death sentence passed on them and the final request for provisional measures aimed ‘to prevent the executions’.31 Accordingly, on 1 November 1995, the Secretariat faxed a note verbale to the Nigerian authorities invoking the now revised Rule 111. This was the third indication of provisional measure in this matter and it requested that execution of the death penalty be suspended until the 29 Communications

137/94-139/94-154/96-161/9, 7 International Human Rights Reports 274. tribunal comprised of military and civilian members and its legitimacy was challenged by the applicants. 31 Para 7 of the decision in Communications 137/94-139/94-154/96-161/9. 30 The

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proceedings before the Commission were concluded or until the Commission has had opportunity to discuss the matter with the government during a proposed protection visit to Nigeria.32 Following the execution of the victims on 10 November 1995, the Commission declared in its subsequent decision on the merit that ‘in ignoring its obligation to institute provisional measures, Nigeria had violated Article 1’ of the African Charter.33 Brought in relatively early stages of the Commission’s existence when it was still struggling to assert its authority, the Saro-Wiwa communication pitched the Commission against the infamous military junta in Nigeria led by the late dictator General Sani Abacha. The junta had defied international pressure in a number of areas, including in relation to the Ken Saro-Wiwa case. Accordingly, it was an important test for the authority of the Commission and the influence it held with the most difficult governments in Africa. Defying pressure from influential Western states, the intentions of the junta were clear and amplified the urgency of the situation. Despite this urgency, the Commission still followed its established practice, ensuring that processes followed a formal session at which a decision is made to be seized of the matter. This left open the question whether the Commission could initiate provisional measures (as distinct from sending an urgent appeal) in relation to a situation not formally registered and accepted through the process of seizure.34 Notably, within a month of being seized of the matter, the Commission proceeded to issue its first indication of provisional measures in the matter.35 Delay in the Commission’s procedure for addressing complaints of human rights violation is well known, with matters lasting up to seven years or more in some cases.36 Against this notoriety, the relative speed with which the Commission engaged the Nigerian government in the Saro-Wiwa communication represents an appreciation of the urgency. By indicating provisional measures so soon after the seizure decision and before a decision was made on admissibility, the Commission conveyed to the parties its conviction that a situation deserving of urgent attention had been established. However, in the Commission’s expedited action, the junta in Nigeria did not get the opportunity to contest the case for provisional measures. To meet the demands of urgency in this matter, the Commission sacrificed the adversarial balance 32 The military junta had agreed to the proposed visit. Copies of the note verbale were sent to the Nigerian Ministry of Foreign Affairs, the Nigerian Ministry of Justice, the Legal Advisor to the Head of State, the Nigerian High Commission in Banjul, the Gambia and the Secretary General of the OAU. 33 Article 1 of the African Charter obligates state parties to ‘adopt legislative and other measures’ to give effect to the rights and freedoms in the Charter. 34 By the Commission’s Rules, a complaint submitted only becomes a communication after the Commission has formally decided to be seized of it. 35 Para 9 of Communications 137/94-139/94-154/96-161/94. 36 In their joint statement issued in May 2009, the Institute for Human Rights and Development in Africa (IHRDA), the International Centre for the Legal Protection of Human Rights (INTERIGHTS) and the Zimbabwe Lawyers for Human Rights (ZLHR) decried what they termed ‘undue delay in the consideration of communications by the African Commission. Also see Ssenyonjo 2018, p. 479, on the delays associated with the process of going through the Commission.

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in its proceedings in ways similar to ex parte applications in domestic litigation. From this point of view, the Commission was confronted with a delicate choice between making a bold statement on the protection it can offer in situations of urgency and restricting itself in the face of the risk to the legitimacy of its processes that comes with distorting the adversarial balance in its adjudication. Notwithstanding the points above, in the absence of a formal order documenting the reasoning behind the decision to indicate provisional measures in this matter, it is difficult to decipher what factual situations satisfy the criteria in the Commission’s Rules for the indication of provisional measures. Hence, while it demonstrates that unfavourable detention conditions, the risk of the death penalty and the risk of execution of the death penalty can trigger the Commission’s intervention to protect through indication of provisional measures, the scope of guidance for future litigants is rather limited. The Commission does not contribute to a global clarification of the concept. However, the Commission’s assertion that ignoring the measures amounted to a violation of Article 1 of the African Charter was an innovative contribution to the jus commune37 in international human rights law on provisional measures.38 Possibly recognising the limitations in relying on its Rules as the legal foundation for provisional measures, the Commission’s resort to Article 1 of the African Charter creatively borrowed the legal foundation and invoked the obligations of a treaty made by the States Parties themselves.39 The Saro-Wiwa communications thus exposed some of the prospects and the limitations in the Commission’s use of provisional measures. In Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria,40 the complaint was against a decree enacted by the then Military junta in Nigeria proscribing three newspapers; banning the papers from being published and circulated; the arrest and detention of six pro-democracy activists; and the arrest and detention of another 16 journalists. However, the provisional measure sought was apparently only in relation to the ‘health of the victims’.41 Here also, three complaints based on the same set of facts were joined in a single communication. The first of the three, numbered Communication 140/94 was dated 7 September 1994 while receipt was acknowledged by Secretariat on 23 January 1995.42 Significant for our purposes, at its 16th Ordinary Session held in October 1994, the African 37 On

the concept of jus commune, see De Schutter 2005, pp. 16, 20.

38 As Viljoen 2012, n 4 above, p. 307 notes, this aspect was a ‘departure from prevailing international

law’ in the sense of ‘pre-empting the approach of the International Court of Justice … in 2001 and subsequent findings of the European Court of Human Rights and the UN Human Rights Committee …’. 39 As will shortly be shown, the Commission moved away from this position in at least one of its subsequent communications. 40 Communications 140/94, 141/94,145/95, reported in the Thirteenth Activity Report of the African Commission. 41 Para 17 of the decision in Communications 140/94, 141/94,145/95. The decision is silent on the request made so that this is deduced from the measure requested by the Commission. For the Commission’s approach see the next section, accompanying text with footnotes 71–73. 42 See para 16 of Communications 140/94, 141/94,145/95 in no 35 above.

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Commission decided to be seized of the matter and to notify the State. Invoking Rule 109 of its Rules, the Commission equally ‘called upon the Government of Nigeria to ensure that the health of the victims was not in danger’.43 The provisional measure in this matter took all of two sentences. It is not clear if the measure was indicated in response to a request from the applicant. Without a reasoned order, it is also not clear what urgency, extreme gravity or risk of irreparable damage the Commission considered or why the measure was restricted only to a request for attention to the health of the victims. Notwithstanding that there was no obvious risk as in the death penalty related matters, the Commission did not explain its rationale and the State Party did not get an opportunity to express any opposition it may have had to the request for, and or indication of provisional measures. If the record in the decision is correct, it is notable that provisional measures were indicated at the same time acknowledgement of receipt of the communication was sent by the Secretariat of the Commission to the applicants. In Association pour la Defence des Droits d l’Homme et des Libertés v Djbouti,44 the complaint was that Djibouti government troops had engaged in a series of human rights abuses against the Afar ethnic group in that country and there were cases of extra-judicial executions, torture and rape. No less than twenty-six victims were named. The request for provisional measure asked for the government to ‘avoid irreparable prejudice to the complainant (an NGO) or the victim’.45 The complaint in Amnesty International v Zambia46 was on behalf of two prominent Zambian political figures who had been forcefully deported to Malawi. The request for provisional measures was for the government of Zambia to allow the body of one of the victims (who had passed on in Malawi) to be returned to Zambia for burial and for the other victim to be allowed to return to Zambia to join his family ‘immediately’ pending the determination of the communication by the Commission. The complaint was received by mail on 6 March 1998 and acknowledged by letter of 18 March 1998, though the victims had been deported by Zambia to Malawi on 31 August 1994 and 25 October 1994 respectively. At its 23rd ordinary session held from 20 to 29 April 1998, the Commission decided to be seized of the matter and to request the Respondent State to adopt provisional measures. The request for provisional measures was only communicated to the State on 10 July 1998 despite the fact that the decision was made in April. No other mention is made again of the provisional measure until somewhere in the decision on the merit where in the midst of finding violations against the state the Commission recalled that it had requested provisional measures.47 The Commission then expressed the view that the

43 Para

17 of Communications 140/94, 141/94,145/95. 133/94. 45 Again, the actual request made is not available to this author therefore reliance has been made on the measure requested by the Commission. Amicable settlement was reached in this matter, leading to the termination of the request for provisional measures. 46 Communication 212/98. 47 Para 47 of Communication 212/98. 44 Communication

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state ‘must be required to allow the return’ of one of the victims,48 suggesting that it understands the request for measures to be binding. This understanding may well have been motivated by the finding that Zambia’s actions were in violation of the Charter. In Interights et al. (on behalf of Marietta Sonajaleen Bosch) v Botswana,49 the communication was brought on behalf of a South African national who had been convicted of murder by the High Court of Botswana on 13 December 1999 and sentenced to death. Appeal against the conviction and sentence was dismissed by the highest court in Botswana on 30 January 2001. The request for provisional measures was for suspension of the looming execution of the sentence. On 7 March 2001, the complaint to the African Commission was received at the Secretariat of the Commission. By 26 March 2001, the Commission received certain documents it had requested from the applicants. On 27 March 2001, the indication of provisional measures ‘appealing for a stay of execution pending consideration of the communication by the African Commission’ was sent by fax to the President of Botswana.50 Subsequent to the indication, the Commission received information that on 31 March 2001, Ms Bosch had been executed by hanging. Reacting in the decision on the merit to the applicant’s contention that the State had violated Article 1 of the Charter by refusing to respect the indicated measures, the Commission took the view that ‘the only instance that a State Party can be said to have violated Article 1 is where the state does not enact the necessary legislative enactment’.51 Again, the Commission acted expeditiously, showing an appreciation of the urgency of the situation. Similar to the Saro-Wiwa matter, the State Party was not heard on the request and no formal order documenting the reasoning that justifies the decision was made available. In this regard, the indication of provisional measures closely resembled the urgent appeal procedure. Significantly, without any apparent justification, the Commission departed from its earlier position that Article 1 is violated when a State Party ignores provisional measures indicated by the Commission effectively undermining the potency of its own provisional measures. In Liesbeth Zegveld and Mussie Ephrem v Eritrea,52 the complaint was that 11 former Eritrean government officials who were known to be critical of the administration were illegally arrested and detained without charge. The whereabouts of the detainees remained unknown and they were allegedly denied access to their families or lawyers. The request was for the Commission to demand for either their immediate release or for them to be charged with guarantee that none will be ill-treated and they would be given immediate access to lawyers of their choice, to their families and to adequate health care. The complaint was sent by fax on 9 April 2002 and received the same day. The Secretariat acknowledged receipt on 19 April 2002, also assuring the applicants that their request for provisional measures ‘was noted and 48 As

above.

49 Communication

240/01. 49 of Communication 240/01. 51 Para 51 of Communication 240/01. 52 Communication 250/02. 50 Para

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would be acted upon’.53 On 3 May 2002, the Commission sent a ‘letter of appeal’ to the President of Eritrea, ‘respectfully urging him to intervene in the matter being complained of … pending the outcome of the consideration of the complaint before the Commission’.54 Typically, there was no separate reasoned order for provisional measures in this matter. However, on the decision on the merit, it is acknowledged that the applicants made the request for provisional measures. What is not clear is what factors the Commission considered in reaching the decision to indicate measures. Similar to the other matters, the State Party did not get an opportunity to challenge the request for provisional measures. In all the communications examined above, the African Commission considered requests for provisional measures almost as soon a complaint was submitted or a seizure decision was made. In all the matters, the affected State Party does not get the opportunity to present its side of the story or to challenge the request. Since the Commission does not also make public its reasoning or the justification for the decision, future users of the Commission’s communications procedure have little or no authoritative guide as to what meets the criteria for provisional measures. The Commission also denies itself the opportunity to contribute to the global jurisprudence on provisional measures. As would shortly become clear, the Court’s practice is marginally more sophisticated than the Commission’s practice.

5.3.2 The African Court Contentious cases can come to the African Court in three main ways—submission by one state against another state; submission by the African Commission; and submission by individuals and relevant NGOs. Cases brought by the Commission usually emanate from complaints previously submitted to the Commission by individuals or NGOs.55 The discussion on cases from the African Commission will only cover the procedure before the Court. Attention is paid to timelines and details of the communication procedure. In the case of the African Commission on Human and Peoples Rights v Libya (Libya 1),56 the action was brought on the basis of allegations by the original applicant57 of serious and massive violations of human rights that were taking place in 53 Para

9 of Communication 250/02. 10 of Communication 250/02. 55 Since only a handful of African states have made the Article 34(6) declaration required for nonstate actors to access the Court directly against a state, the Commission acts as the channel for cases to be brought against states that have ratified the Court’s Protocol but have not made the declaration. 56 Application no. 004/2011 reported in (2011) African Court Law Report (AfCLR) 17. This is the first case referred to the Court by the Commission. 57 Based on the requirement for states parties to the African Court Protocol to make a declaration in accordance with Article 34(6) of the Protocol as a precondition for individuals and NGOs to submit cases directly to the court, actions by non-state actors can only currently be brought against the eight 54 Para

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Libya. The detention of an opposition lawyer had triggered demonstrations that led to the intervention of Libyan security forces, resulting in the death of some civilians and injury to others. The events leading to the complaint occurred in February 2001, while the Commission’s application, dated 3 March 2011, was received at the Registry of the Court on 16 March 2011. After the statutory notifications to required actors, the Court, by a letter dated 23 March 2011 notified the parties of its intention to issue provisional measures, ‘given the extreme gravity and urgency of the matter’.58 The Court relied on Article 27(2) of its Protocol and rule 51(1) of its Rules for the decision to consider provisional measures proprio motu since the Commission did not request for measures.59 Unlike the Commission, the African Court (perhaps in view of its nature as a judicial organ) expresses itself in a reasoned Order for provisional measures that details its justification for a decision on provisional measures and clearly spells out the measure the State is expected to take. It is also significant that the Court generally provides opportunity for all parties to be heard on the question of provisional measures. The Court always or almost always follows a fixed structure in its orders for provisional measures. First it establishes the legal basis of its authority,60 and reiterates the conditions upon which measures may be ordered. The point is then made that ‘it is for the Court to decide in each situation if, in the light of the particular circumstances, it should make use of the power provided for ….61 In other words, the Court emphasizes that its exercise of the power to order provisional measure is ‘discretional and fact-specific’.62 It then proceeds to establish that it has both material (Article 3 of the Protocol) and personal jurisdiction (Article 5 of the Protocol). This is followed by expression of the Court’s opinion whether the particular situation satisfies the criteria of extreme gravity, urgency and risk of irreparable harm to the victim(s). It is only upon being satisfied that these criteria have been met that it makes the decision to, and orders the measures to be taken. This structure of the Court basically follows the requirements popularised by the ICJ.63 In the Libya 1 order, the Court reasoned that the situation in Libya, as recognised by various credible international actors, satisfied the conditions for the order of provisional measures.64 Accordingly, the Court on 25 March 2011 ordered Libya to ‘immediately refrain from any action that would result in loss of life or violation of physical integrity of persons…’.65 states that have made the declaration. By Article 5(1)(a), the African Commission is authorised to bring actions against states parties to the Protocol that have not made the Article 34(6) declaration. Non-state actors first bring a communication to the Commission, which then makes the decision to bring an action to the Court on the basis of the communication originally submitted to it. 58 Para 8 of the Order in the Libya 1 case. 59 As above. 60 Article 27(2) of Court’s Protocol and Rule 51(1) of the Rules are invoked. 61 For instance, see para 11 of the Order in the Libya 1 case. 62 In relation to the ICJ on this point, see Pasqualucci 1993, n 21 above, 814. 63 On the criteria applied by the ICJ, see Duxbury 2000, n 20 above, 162. 64 Paras 21–23 of the Order in Libya 1 case. 65 Para 25 of the Order in Libya 1. The order contained the timeframe within which the state was required to report back to the Court on the measures taken.

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Even in its reasoned order, the Court’s understanding of ‘extreme gravity, urgency and risk of irreparable harm to victim(s)’ remains somewhat hazy. The Court’s evaluation of the facts presented in support of the request for provisional measures is hardly explicit. In fact, the formulation in para 8 conveying the decision to consider provisional measures proprio motu gives the impression that the Court already took a position on the existence of ‘extreme gravity and urgency’ prior to notification of the parties of the decision and before the parties presented their arguments. While this could be explained as a consequence of the urgency of the matter, it can also be interpreted as a pre-determined conclusion on the facts. Overall, publishing a reasoned order reduces the scope for speculation around the provisional measures issued by the Court. The case of African Commission on Human and Peoples’ Rights v Kenya (Kenya case),66 also involved provisional measures. The original submission to the Commission alleged that the Ogiek—an indigenous minority ethnic group of about 20,000 members in Kenya were facing threat to their existence and traditional livelihood following the issuance of a 30-day eviction notice for them to quit the Mau forest on which they depend for their livelihood.67 The Commission expressed fears that the looming eviction would have far reaching consequences for the political, social and economic survival of the Ogiek people. Accordingly, the Commission sought provisional measures for the State to ‘reinstate the ban on transactions of land in the Mau Forest Complex’ since the lifting of the ban ‘has great potential to cause irreparable damage to the Ogiek and will serve to perpetuate and expand the prejudice that is subject’ of the main application. The Commission’s application was received by the Court on 12 July 2012, but the statutory notifications to Kenya and other actors were only made on 25 September 2012. In view of a subsisting order of a Kenyan court, and provisional measures already issued by the Commission in 2009, the African Commission did not apply for provisional measures and the Court did not deem it necessary to consider such measures proprio motu.68 However, owing to new developments during the pendency of the case, by 31 December 2012 the Commission submitted a request for provisional measures.69 This request was scheduled for and considered at a session of the Court held in March 2013. Following the structure established in the Libya 1 case, the Court declared in its order of 15 March 2013 that it found ‘a situation of extreme gravity and urgency as well as a risk of irreparable harm to the Ogiek’.70 In effect, the Court portrayed an understanding of the conditions as conjunctive and cumulative. The Court went further to add the element of ‘prejudice to the substantive 66 (2013)

1 AfCLR 193. eviction notice terminated a ban on land transactions which was based on a 1995 order of the High Court of Kenya. The African Commission itself had issued provisional measures which Kenya apparently disregarded. At para 8 of the Provisional Measures Order, the Court had decided not to order provisional measures proprio motu in view of the order by the Commission. 68 Para 8 of the Order of Provisional Measures, Kenya case. 69 Para 9 of the Order for Provisional Measures, Kenya case. 70 Para 22 of the Order for Provisional Measure Kenya case. 67 The

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matter before the Court’.71 This latter element, while absent from Article 27(2) of the Court’s Protocol, introduced preservation of the integrity of the Court’s processes as an additional justification for provisional measures. This aligns the Court with the generally accepted purpose of provisional measures in international adjudication.72 Further emphasising its duty to act with urgency, the Court placates the State Party with the assurance that the ‘order will necessarily be provisional in nature and will not in any way prejudge the findings the Court might make ….’.73 Ultimately, the Court ordered that the State ‘immediately reinstates the restrictions it had imposed on land transactions in the Mau Forest Complex and refrains from any act or thing that would or might irreparably prejudice the main application before the Court’.74 In African Commission on Human and Peoples’ Rights v Libya (Libya 2),75 the original complaint was brought on 2 April 2012 on behalf of Saif Al-Islam Gadaffi. It alleged that the United Nations-recognised government in Libya unlawfully arrested the victim and detained him in isolation since November 2011, without access to family, friends or a lawyer of his choice. Further that the victim was held without being charged with any offence. The Commission’s concern was that ‘the victim faces an imminent trial which carries with it the threat of the death penalty, following a period of arbitrary detention based on interrogations carried out in the absence of a lawyer’.76 The main relief sought was for the Court to order Libya ‘not to proceed further with any actions concerning the legal proceedings, investigation against or detention that would cause irreparable harm to the victim and to allow the victim immediate access to a lawyer’.77 The Commission’s application was received by the Court on 31 January 2013, receipt acknowledged on 22 February 2013, while statutory notice to actors was on 12 March 2013. On the same 12 March 2013, the Court informed the parties of its intention to consider provisional measures ‘in view of the urgency and gravity of the matter’.78 Underlining the length of victim’s detention without access to lawyer, family or friends and ‘the requirements of … fair and just trial’ as justifications for its decision to act, the Court also took note of Libya’s failure to implement the provisional measures previously requested by the Commission in its capacity as a quasi-judicial adjudicator.79 Following its established structure and based on the considerations above, the Court decided to order provisional measures proprio motu since it found ‘a situation of extreme gravity and urgency, as well as a risk of irreparable harm to the Detainee’.80 The order of 15 March 2013 was for the State 71 As

above. and Marti 2013, pp. 326–327. 73 Paras 23–24 of the Order for Provisional Measures. 74 Para 25 of the Order for Provisional Measures. 75 (2013) 1 AfCLR 145. 76 Para 3 of the Libya 2 Order for Provisional Measures. 77 Para 4 of the Libya 2 Order for Provisional Measures. 78 Para 7 of the Libya 2 Order for Provisional Measures. 79 Paras 15–16 of the Libya 2 Order for Provisional Measures. 80 Paras 16–17 of the Libya 2 Order for Provisional Measures. 72 Keller

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to grant the detainee access to his lawyers and family members and to refrain from any action that might affect the detainee’s physical and mental integrity as well as his health.81 A significant aspect of the Libya 2 case was Judge Ouguergouz’s separate opinion in which he raised important issues regarding the Court’s preliminary measure procedure. Asserting that the entire matter should have been considered an application for provisional measures instead of a regular action, Judge Ouguergouz took the view that the timeframe between the receipt of the case and the issuance of the order did not do justice to the urgency that is ordinarily ‘inherent in the issuing of provisional measures’.82 Further, the Judge argued that ‘compliance with the adversarial principle’ required that the State should have been served expeditiously with the application in order to give it an opportunity to ‘submit its observations’ on the request for provisional measures.83 Thus, while he agreed with the majority that the situation met the criteria for provisional measures, Judge Ouguergouz was not satisfied with the sense of urgency and the adversarial balance displayed by the court. As Editor-in-Chief of a Burkinabé weekly, the applicant in the case of Konaté v Burkina Faso84 was the target of criminal and civil proceedings, allegedly for his work as a journalist. In the criminal matter, Konaté was sentenced to one year imprisonment and a fine equivalent to USD 3000 for libel. The same court ordered him to pay damages equivalent to USD 9000 and costs amounting to USD 500. Pending the determination of his action before the African Court challenging his trial and conviction as violations of his right to freedom of expression, the applicant requested for provisional measures for the Respondent State to ‘release him immediately or alternatively to provide him with adequate medical care’. Following its established structure, the Court considered and rejected the request for ‘immediate release from prison’ on the grounds that it ‘corresponds in substance with one of the reliefs sought in the substantive case’.85 By taking the view that an order of immediate release would ‘adversely affect consideration’ of the main action, the Court indicated that its orders for provisional measures cannot be an indirect means of getting judgment. It is noteworthy that Judges Ramadhani, Tambala and Thompson in their joint dissenting opinion saw no reason why the request for immediate release could not be granted provisionally pending a determination of the main action since the State had been served and raised no objection.86 In their opinion, since the applicant could easily be returned to jail if his action was unsuccessful, the failure to grant immediate release ‘will cause irreparable harm’.87 However, the Court 81 See

para 19 of the Libya 2 Order for Provisional Measures. 2–4 of Judge Ouguergouz’s separate opinion in Libya 2. 83 Para 4 of Judge Ouguergouz’s separate opinion in Libya 2. 84 (2013) 1 AfCLR 310. 85 Para 19 Konaté v Burkina Faso, Order for Provisional Measures, 4 October 2013. 86 Paras 1–3 of the Joint dissenting opinion of Judges Ramadhani, Tambala and Thompson in the Konaté case. 87 Para 4 of the Joint dissenting opinion of Judges Ramadhani, Tambala and Thompson in the Konaté case. 82 Paras

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was unanimous in granting the request for access to medication and health care for the entire period of detention.88 In Guehi v Tanzania,89 the applicant, an Ivorian citizen who was in prison custody in Tanzania, had been sentenced to death for murder by the High Court of Tanzania on 30 March 2010. The conviction and sentence having been confirmed by the Court of Appeal on 28 February 2014, the applicant was on death row when the case got to the African Court. Although the applicant did not request for provisional measures, the African Court relying on Article 27(2) of its Protocol, considered provisional measures proprio motu.90 The Court reinforced its practice of considering provisional measures for all cases involving the death penalty even where the applicant has not requested this. Stating that the fact that the risk of execution will jeopardise the enjoyment of rights, the Court concluded there was a situation of extreme gravity and a risk of irreparable harm. The Court therefore ordered the State to ‘refrain from executing the death penalty against the applicant pending the determination of the application.91 Similarly, in Ally Rajabu & Others v Tanzania92 the applicants were all in prison custody having been sentenced to death for murder by the High Court of Tanzania on 25 November 2011, which sentence was confirmed by the Court of Appeal. The applicants did not apply for provisional measures. Again, the African Court elected to consider provisional measures proprio motu on the grounds that ‘applicant is (sic) on death row and it appears from this application that there exists a situation of extreme gravity as well as a risk of irreparable harm to the victim’.93 Tanzania was ordered to refrain from executing the applicants pending determination of the main action.94 In Woyome v Ghana,95 the applicant’s case was that he had provided engineering financial services to the Respondent State pursuant to an agreement between the parties. A breakdown of the contractual relationship had led to legal action before the national courts in Ghana leading to judgment and an order (upheld by the Supreme Court of Ghana) for the applicant to refund a certain amount of money to the State.96 The applicant brought the action before the African Court contending that the refusal of the Respondent State to respect the terms of the agreement was a violation of the African Charter. On these facts, the applicant requested for provisional measures to order the Respondent State to stay execution of a judgment of its Supreme Court delivered 8 June 2017 requiring the refund of money to the State. Following the continuation of domestic proceedings leading to a decision to seize his property in 88 Para

22 of the Order for Provisional Measures in the Konaté case. 1 AfCLR, 587 Order for Provisional Measures, 18 March 2016. 90 Paras 15–16 of the Order for Provisional Measures in the Guehi case. 91 Para 23 of the Order for Provisional Measures in the Guehi case. 92 Ally Rajabu & Others v Tanzania, Order, 18 March 2016/007/2015 (2016), 1AfCLR 590. 93 Paras 17–19 of the Order for Provisional Measures in the Rajabu case. 94 Para 22 of the Order for Provisional Measures in the Rajabu case. 95 Application no 001/2017, Order for Provisional Measures of 24 November 2017. 96 Para 5 of the Order for Provisional Measure in the Woyome case. 89 (2016)

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satisfaction of the judgment, the applicant brought a further request for provisional measures to order the Respondent State to refrain from attachment of his property and those of his relatives. The provisional measure was to protect the applicant’s property pending the determination of the action before the African Court. Concluding that it found a situation of extreme gravity and urgency, the Court ordered the State to ‘stay the attachment of the Applicant’s property and to take all appropriate measures to maintain the status quo and to avoid the property being sold until this application is heard and determined’.97 The evidence from its case law demonstrates that in a number of ways, the African Court has endeavoured to improve the processes and procedure for provisional measures in the AHRS, especially as regards its own practice. The reasoned orders for provisional measures have resulted in more transparency for the benefit of parties and future Court users. While overall, the Court’s evaluation of facts often remains a mystery that creates room for conjectures, the justifications for provisional measures have become entrenched with repeated pronouncements. Moving beyond the boundaries of its treaty foundation, the Court has subtly expanded the scope of justification apparently through the process of peer learning from the practice of other international adjudicators. However, until early 2020 this expansion was minimal and not enough to trigger dissent or revolt from States Parties to the Court’s Protocol. Arguably at the risk of compromising urgency in some situations, the Court has also managed to improve the adversarial balance between parties by offering State Parties the opportunity to respond to requests for provisional measures, including in cases being considered proprio motu by the Court. In effect, while it may not have revolutionalised the practice of provisional measures in a grand style, the Court has made modest but obvious improvements in the response to the need for urgent protection. The question then becomes whether this has made a significant impact on States Parties in their response to provisional measures issued by the mechanisms.

5.4 (Non-)Compliance and the Legitimacy Question Like human rights systems generally, provisional measures rest on a tripod of cooperation that involves applicant(s) or users of the system, the adjudicator(s) and the States Parties to the system.98 The effectiveness or protective value of a mechanism depends on each segment of the tripod playing its expected role and cooperating with the other segments in validating the outcome of the overall process. Where, as demonstrated in this chapter, applicants have brought their matters and adjudicators have reached a decision with or without the active participation of the State 97 Para

27 of the Order for Provisional Measures in the Woyome case. order for a rights protection system to be functional, aggrieved persons must approach and invoke the processes of the mechanism, the mechanism must be responsive and active while the states must be willing to participate and comply even when an adverse decision is reached against them. 98 In

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Party, implementation is required to complete the process. This is because, as Juma notes, ‘an order for provisional measures is only as important as its effect’.99 Yet, for most commentators on the AHRS, the implementation segment of the tripod is the most problematic as compliance with orders for provisional measures is considered to be very poor.100 This section examines how states have responded to orders for provisional measures made by the Commission and the Court. Rather than give statistics of compliance, I describe the response of the State Party in each case in its context and highlight signals of challenges to legitimacy where such are present in the response. Based on analysis of archival documents of the AU, I also explore the collective response of African States within the AU framework, again paying attention to signals of challenges to legitimacy. Faced with the indication of provisional measures by the Commission, requesting it to suspend the planned execution of the victims in the Saro-Wiwa matter, the junta in Nigeria proceeded to carry out the executions. While the junta did not challenge the authority of the Commission to issue provisional measures, agents of the junta made an effort to justify the executions.101 In the Bosch matter,102 Botswana did not reply to the Commission’s request for ‘a stay of execution’. Instead, Ms Bosch was executed four days after the Commission sent the fax to the State Party. In its defence, Botswana claimed that the President did not receive the fax conveying the request.103 Thus, while the State did not comply with the requested measure, it offered excuses for non-compliance and did not challenge the authority of the Commission or the legitimacy of the decision. In both cases, the Commission’s procedure did not bring reprieve for the victims. State responses in matters not involving the death penalty have not been significantly different either. In Amnesty International v Zambia,104 the State Party simply ignored the Commission’s request for provisional measures in spite of reminders sent on the matter. When the State was eventually represented during the merit phase, the State’s representative made a statement without addressing the failure to implement the request. In Zegveld and Ephrem v Eritrea,105 the State responded to the indication within a short time to ‘confirm to the Commission’ that ‘the alleged victims … had their quarters in appropriate government facilities, had not been ill-treated, have had continued access to medical services and the government is making every effort to bring them before an appropriate court of law as early as possible’.106 In effect, Eritrea challenged the veracity of the facts presented to the Commission and by extension, 99 Juma

2012, pp. 344, 366. 2012, as above, p. 358; Viljoen 2012, n 4 above, p. 306. However, Viljoen cites a former Secretary to the African Union who claims that that states have taken the Commission’s indication of measures into account in certain cases. 101 Paras 87–88 of the decision in the Saro-Wiwa communication. 102 See n 49 above. 103 Para 11 of the Bosch communication, n 49 above. 104 See n 46 above. 105 See n 52 above. 106 Para 12 of the Zegveld and Ephrem communication, n 52 above. 100 Juma

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the need for indication of provisional measures in the matter. In Constitutional Rights Project and Others v Nigeria,107 the State Party failed to respond to the indication of measures. When it eventually appeared to make oral statement before the Commission, the State justified the actions complained of in the matter, but claimed that most of the detainees had already been released and most of the newspapers allowed to circulate.108 In summary, State Parties did not necessarily challenge the authority of the Commission to indicate provisional measures even though that authority is selfconferred. The States generally ignored the requests for measures but made effort to participate in subsequent proceedings, often to seize the platform to justify their actions or deny that they had violated any obligations. In some cases, States claim that the prescribed action was either not necessary in the first place or had already been taken without any indication whether this was merely coincidental or was in compliance with the Commission’s request. Thus, the Commission was disobeyed by State Parities without having been undermined or delegitimised in a destructive manner. The enormity of disregard for the Commission’s provisional measures can be appreciated more in the more comprehensive picture painted by the Commission in its Activity Reports than in examination of the individual communications.109 In its 40th Activity Report, the Commission reports that it issued a total of eight (8) provisional measures, six directed at Egypt, one at Botswana and one at South Africa.110 The Commission indicates that it did not receive any responses from Botswana and South Africa. Egypt gave a uniform response for all the matters involving it, stating that ‘the Egyptian judiciary is based on fundamental principles and safeguards for fair trials and for the imposition of the death penalty’ so that ‘there is no need for the urgent preventive measures required by the Commission in the communications’.111 In effect, the government in Egypt set the national judiciary against the Commission, framing the issue as an attack on the legitimacy of the Egyptian legal system. Overall, all eight requests for provisional measures were not complied with and did not achieve the purpose for which they were issued. In 41st Activity Report, the Commission also issued a total of eight (8) requests for provisional measures, all directed at Egypt.112 According to the Commission, the State did not respond to any of the eight requests.113 Two requests for provisional measures were issued against Egypt between June and November 2017. In its 43rd Activity Report, the Commission recorded that it did not ‘receive any responses on

107 See

n 40 above. 14 in n 40 above. 109 Due to space constraints, only the more recent activity reports (40th–47th) are considered here. 110 The Activity Report is for the period from 15 December 2015 to April 2016 and covers the 19th extra-ordinary session and the 58th ordinary session. 111 40th Activity Report, December 2015–April 2016, paras 18–19 at p. 6. 112 The 41st Activity Report is for the period May–November 2016 and covers the 20th extraordinary session and the 59th ordinary session. See pp 7 and 10. 113 Para 11 of the 41st Activity Report. 108 Para

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the two (2) requests for provisional measures which it issued’.114 The report also noted that the complainant in Tsege and Others v Ethiopia115 had indicated that the state had not complied with the measures issued in that matter. Of the five (5) requests for provisional measures issued by the Commission as reported in the 44th Activity Report, the Commission noted that it did not receive any responses from the affected States Parties.116 Egypt, Nigeria, Cameroon and Gabon all ignored the requests from the Commission without explanation. In the 45th Activity Report, the Commission issued two requests directed at Eritrea and the Comoros. While no specific information was given in the report on the two requests, the Commission noted that ‘the level of compliance by state parties with the Commissions decisions, requests for provisional measures … is relatively low’.117 Another two requests directed at Burundi and Eritrea were reported in the 46th Activity Report.118 Again, the Commission reported that it did not receive any responses from the affected state. Rather, it received a report from the complainant in Communication 716/19— Three Jehovah Witnesses v Eritrea indicating that Eritrea had not complied with the measures issued in that matter.119 In the 47th Activity Report, the Commission also issued two requests directed at Cameroon and Kenya and received no responses from both states.120 The takeaway from the records of the Commission is the confirmation of what is already widely known, that State Parties to the African Charter simply ignore the Commission and its requests for provisional measures. The states do not challenge the legal authority of the Commission to issue provisional measures,121 and do not express any misgivings on the procedure and processes of the Commission, they simply ignore. The result is that complainants continue to approach the Commission for provisional measures and the Commission continues to issue such measures, perhaps in the hope that states will comply or the AU will act. So how has the AU—the states in collective responded to this state of affairs? The AU, through the Executive Council122 has basically called on AU Member States to respect the requests for provisional measures and on the Commission to 114 See

para 29 of the 43rd Activity Report, covering the 22nd extraordinary session and the 61st ordinary session of the Commission. 115 Communication 507/15. 116 The 44th Activity Report is for the period 15 November 2017–9 May 2018, covering the 23rd extraordinary session and the 62nd ordinary session of the Commission. 117 See para 36 of the 45th Activity Report. The report is for May–November 2018 and covers the 24th extraordinary session and the 63rd ordinary session. 118 This report is for 14 November to 14 May 2019 and covers the 25th extraordinary session and the 64th ordinary session. 119 See para 32 of the report. 120 See para 34 of the 47th activity Report, for the period 14 May–10 November 2019, covering the 26th extraordinary session and the 65th ordinary session. 121 In fact, the Reports show that some states actually respond positively to some of the urgent appeals made by the Commission. 122 The Executive Council is the second organ in the AU’s hierarchy and is comprised of the Ministers of Foreign Affairs or other such Ministers designated by the governments of member states. See

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improve its processes. In its June 2015 Decision on the 38th Activity Report of the African Commission,123 the AU Executive Council (the Council) urged the Commission to ‘observe due process of law in making decisions on complaints received’ and to ‘consider reviewing its rules of procedure, in particular, provisions in relation to provisional measures and letters of urgent appeals in consistence with the African Charter on Human and Peoples’ Rights’.124 While this may well be executive interference with the work of the Commission, it is equally a collective statement by AU Member States of their dissatisfaction with the processes of the Commission and a possible clue for explaining non-compliance. While individual states do not disclose their reasons for non-compliance, grievances are serious and deep-rooted enough to warrant inclusion in the collective decision of the AU organs. Despite expressions of dissatisfaction such as the foregoing and in spite of the uncooperative conduct of individual states, the Council calls on AU member states to comply with provisional measures issued by the Commission. In the Council’s January 2017 Decision on the 41st Activity Report (in which eight requests were issued), the Council stated that it ‘ENCOURAGES member states to comply with Decisions and Recommendations of the African Commission on Human and Peoples’ Rights and inform the Commission of the measures taken in line with Rule 112 of the Commission’s Rules’.125 The Council’s call was even more specific in its June 2017 Decision on the 42nd Activity Report of the African Commission where the Council stressed that it ‘ENCOURAGES state parties to comply with requests for provisional measures, Decisions and Recommendations of the African Commission on Human and Peoples’ Rights as set out in the communications to which they are parties’.126 The Council went on to urge ‘state parties to inform the Commission of the measure taken to implement its Decisions in line with Rule 112 of the Commission’s Rules.127 Similarly, in its January 2018 Decisions on the 43rd and Activity Reports of the Commission, using the exact words as it did in the preceding Decision on the 42nd Report, the Council again encouraged state party compliance with provisional measures issued by the Commission.128 At least in theory, AU member states agree that requests for provisional measures issued by the Commission should be complied with. They have expressed no problems with the legal foundation of the Commission’s authority to indicate measures. However, in addition to their concern with the Commission’s rules on provisional measures, the states may have hinted that they prefer to be heard in matters involving them.129 These collective decisions Article 10 of the Constitutive Act of the AU. In practice, the Executive Council acts on behalf of the heads of state. 123 EX.CL/Dec. 887 (xxvii). 124 Para 12 of EX.CL/Dec. 887 (xxvii). 125 Para 4 of the Executive Council Document, EX-CL/Dec. 948 (XXX). 126 Para 6 of EX-CL/Dec. 948 (XXX). 127 As above. 128 Para 9 in each Council Document EX.CL/Dec. 995(xxxii) and para 9 of Council Document EX.CL/Dec. 1013 (xxxiii). 129 In its Decision on the 37th Activity Report of the Commission, EX.CL/Dec. 864 (xxvi), the Council requested the Commission to expunge reports on two communications involving Rwanda

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arguably contain the best expression of the grievances that AU member states have with the procedures of the Commission. With respect to the Court, a handful of States Parties have complied with orders for provisional measures. However, there are more cases of non-compliance and some states have communicated the reasons for non-compliance to the Court. Tanzania for instance, informed the Court by letter of 13 January 2017 that it was unable to comply with the order to refrain from executing the death penalty on the complainant in the Guéhi case because ‘the African Court … is not mandated to quash the decision’ of its highest court, the Court of Appeal of Tanzania.130 In addition to the additionalappellate-layer argument, Tanzania informed the Court that it ‘was deprived of the right to be heard when the Court delivered the Order for Provisional Measures suo motu’ and that ‘insufficient reasons of extreme gravity’ were adduced.131 In this one breath, Tanzania has challenged both an adversarial imbalance and the lack of clarity in the definition of the criteria for the grant of provisional measures. All or some of these reasons are raised by Tanzania in all of the other cases in which the Court has ordered provisional measures against it. Other than Tanzania, states like Rwanda and Ghana have also failed to implement provisional measures ordered by the Court in cases involving them. Whereas in the case of Rwanda, its withdrawal of the Article 34(6) declaration has led it to announce that it will no longer take part in the proceedings of the Court and therefore, will not be bound by its decision, Ghana has not withdrawn its declaration. However, in the Woyome case,132 Ghanaian authorities informed the African Court that the Supreme Court of Ghana had considered the order of provisional measures and had ‘declined to suspend its ruling on the order for the stay of execution of the Applicant’s property in the basis of the finality of its orders as the highest court in Ghana … and that its orders were final’.133 Sovereignty and exclusive jurisdiction of the domestic court have thus been invoked to set the national judiciary against the African Court. In summary, over 90% of the orders made by the African Court have remained unimplemented. The protective value of provisional measures by the Court is almost non-existent. Arguably, this state of affairs can partly be linked to a set of legitimacy challenges that need to be addressed urgently. In the next section, I explore some of the things I think need to be done to improve the protective value of provisional measures in the AHRS.

in order to give Rwanda opportunity to make oral presentation ‘as requested through various correspondence’ to the Commission. See para 8. 130 African Court Activity Report 2017, EX.CL/1057(XXXII), 22–26 January 2018, pp. 12–13. 131 As above. 132 See n 95 above. 133 See n 95 above.

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5.5 Strategies for Improving Compliance with Provisional Measures in the AHRS A number of valid, if ignored questions have been raised directly or indirectly by States Parties to the African Charter and to the African Court Protocol respectively. It is difficult to sustain a convincing argument that these questions have no bearing on the compliance challenges that trail provisional measures issued by the Commission and the Court. In order to improve compliance, it is these questions that need to be urgently addressed. It is important to reiterate that in their various communications with the Commission and the Court, as well as in the documents of the AU, no state or group of states has challenged the legal competence of either institution to indicate provisional measures. Thus, unlike the situation in the global and other regional human rights systems where states have hinged resistance to provisional measures on the inadequacy of the legal foundation,134 African States accept or acquiesce to the legal authority of the Court and (more significantly) the Commission.135 The numerous calls by the AU Executive Council on AU member states to comply with the Decisions, Recommendations, judgments and orders of the Commission and the Court would constitute some of the best evidence in this regard. With regards to the procedures of the Commission and the Court, a point that states seem to find most unacceptable would be what they consider to be the absence of opportunity to present their cases and possible objections to the indication of measures.136 While the risk of a request being overtaken by the occurrence of the event sought to be prevented cannot be ignored, offering States Parties the opportunity to present their positions in open session may actually be an opportunity for engagement. Similar to domestic proceedings in which lawyers and representatives of parties are committed by national courts to preserving the status quo while applications for interim orders are pending, representatives of States Parties could be made to commit to maintaining the status quo while applications for provisional measures are being heard. Where critical urgency is involved, the use of urgent appeals pending hearings should replace the unilateral consideration of provisional measures. A second sticking point in the uneasy relationship between mechanisms of the AHRS and States Parties with regards to provisional measures is the apparent lack of clarity in the determination and formulation of orders. In other words, the challenge of legal legitimacy arising from uncertainty regarding the factual situations that the mechanisms consider as satisfying the criteria set out in the Court Protocol and the respective Rules. Again, Tanzania’s response to the African Court captures this point eloquently in the statement that facts were insufficient reasons.137 Since the very 134 See

for instance Pasqualucci 2005, n 8 above, p. 7. make this claim fully aware of the fact that states have previously challenged the bindingness of the Commission’s outputs. See Viljoen 2012, n 4, 339. 136 See, for instance, Tanzania’s communication to the African Court, n 130 above. The EXCO in respect of Rwanda. 137 See n 130 above. 135 I

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nature of adjudication requires transparent motivation to convince a losing party to accept the decision,138 it is critical that more elaborate and persuasive documentation of the reasoning behind an interim decision be made.

5.6 Conclusion In human rights systems with emerging (and sometime illiberal) democracies where national judiciaries are either weak or compromised or merely unwilling to stand as a bulwark against national executive tyranny, the availability of provisional measures represent a glimmer of hope for victims of human rights violations.139 The AHRS is therefore one system where the preventive potential of provisional measures should have represented hope for politically powerless citizens. This is even more so in the face of the length of time that human rights litigation takes from national courts to the regional level. Yet, in this chapter, I have shown that the provisional measures of both the African Commission and the African Court have remained largely ineffective in protecting some of those who need protection most. In this chapter, by combining a critical analysis of the jurisprudence of both mechanisms and archival documents of the AU, I have presented a rich description of the evolution and functioning of the provisional procedure in the AHRS. It has been demonstrated that whereas the users of the system and the adjudicators continue to play their roles in the cooperative tripod, African states have remained the weak point in their failure to implement most of the measures issued in cases involving them. In the last part of the chapter, I have highlighted some strategies that I hope will be useful to enhance the protective value of the system by addressing some of the challenges that emerge from the analysis in the chapter.

References Cohen M (2015) When judges have reason not to give reason: A comparative law approach. Wash. & Lee L. Rev. 72 483:506 De Schutter O (2005) The Binding Character of the Provisional Measures Adopted by the European Court of Human Rights. Int’l LF D Int’l 7:16, 20 Duxbury A (2000) Saving Lives in the International Court of Justice: The Use of Provisional Measures to Protect Human Rights. Cal W Int’l LJ 31:141, 162 Juma D (2012) Provisional Measures under the African Human Rights System: The African Court’s Order against Libya. Wisconsin International Law Journal 30(2):344, 366, 358 Keller H, Marti C (2013) Interim Relief Compared: Use of Interim Measures by the UN Human Rights Committee and the European Court of Human Rights. ZaöRV 73(3):325, 326–327

138 Generally 139 Also

see Cohen 2015, p. 506. see Pasqualucci 1993, n 21 above, p 823.

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Muigai G (2012) From the African Court on Human and Peoples’ Rights’ to the African Court of Justice and Human Rights. In: Ssenyonjo M (ed) The African Regional Human Rights System. Martinus Nijhoff, Leiden Mutua M (1999) The African Human Rights Court: A two-legged stool? Human Rights Quarterly 21(2) 342 Naldi GJ (2002) Interim measures of protection in the African system for the protection of human rights. African Human Rights Law Journal 2(1):1 Naldi GJ (2004) Interim Measures in the UN Human Rights Committee. Int’l & Comp LQ 53:445, 447 Pasqualucci JM (1993) Provisional Measures in the Inter-American Human Rights System: An Innovative Development in International Law. Vand J Transnat’l L 26:803, 833 Pasqualucci JM (2005) Interim Measures in International Human Rights: Evolution and Harmonization. Vand. J. Transnat’l L 38:1 pp 2, 12 Rieter E (2010) Preventing Irreparable Harm: Provisional Measures in International Human Rights Adjudication. Intersentia, Antwerp Ssenyonjo M (2012) An Introduction to the Development of the African Regional Human Rights System: 30 Years after the Adoption of the African Charter on Human and Peoples’ Rights. In: Ssenyonjo M (ed) The African Regional Human Rights System. Martinus Nijhoff, Leiden, p 6 Ssenyonjo M (2018) The African Commission and Court on Human and Peoples’ Rights. In: Oberleitner G (ed) International Human Rights Institutions, Tribunals and Courts. Springer: Singapore Viljoen F (2012) International Human Rights Law in Africa, 2nd edn. Oxford University Press, Oxford

Solomon T. Ebobrah is a Professor of Law at the Niger Delta University, Bayelsa State, Nigeria; Extra-ordinary Lecturer at the Centre for Human Rights of the University of Pretoria, South Africa; Global Research Fellow at iCourts, Centre of Excellence for International Courts, University of Copenhagen, Denmark.

Chapter 6

The Legitimacy of Interim Measures from the Perspective of a State: The Example of Canada Joanna Harrington Contents 6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2 The Continuing Currency of the Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3 Canada’s Long-Standing Objection Concerning Interim Measures Requests . . . . . . . . . 6.4 The Legal Basis for Interim Measures Requests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5 Canada Uses Its Domestic Law and Domestic Courts to Bolster Its Position . . . . . . . . . 6.6 The Entrenchment of the Domestic Legal Position . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.7 Turning to International Change to Encourage State Compliance . . . . . . . . . . . . . . . . . . . 6.8 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This chapter discusses the legitimacy and protective potential of interim measures from the standpoint of a particular state: Canada. While Canada has long been supportive of the international legal protection of human rights, it has refused to abide by interim measures requests. The author critically discusses the practice of Canada, including its courts, as well as its public record of objection before the Human Rights Committee and the Committee against Torture. She argues that while Committee Views on the merits are not generally considered legally binding, states cannot automatically assume that their interim measures requests have no legal force. Yet in order to encourage state compliance, she stresses that process matters. She suggests that the UN Committees look at the procedural reforms made by the InterAmerican Commission on Human Rights as this would result in greater transparency and trust in the system. She also points out the need for making the format and terminology of UN documents more user-friendly for the domestic context. Finally, as to the substance of interim measures, she argues in favour of providing detailed reasons for interim measures decisions. Keywords Non-compliance · breach of good faith · Canada · Committee against Torture · Human Rights Committee · individual complaints · Inter-American Commission on Human Rights · national reception of international law · precautionary measures · process · Rules of Procedure · transparency · trust J. Harrington (B) Faculty of Law, University of Alberta, 8820 111 Street NW, Edmonton, AB T2G 2H5, Canada e-mail: [email protected] © T.M.C. Asser Press and the authors 2021 E. Rieter and K. Zwaan (eds.), Urgency and Human Rights, https://doi.org/10.1007/978-94-6265-415-0_6

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6.1 Introduction All litigation requires the use of rules of procedure to ensure the fairness and efficiency of what is inherently a process of claim and denial. This statement is no less true if the body tasked with receiving and considering a claim is a committee or commission, rather than a court or tribunal, and no less true if it is an international body. It is also true that all litigation takes time, raising a need for the rules of procedure to provide for the preservation of the rights of the parties while a claim is pending for consideration. To this end, it can hardly be unexpected, nor illogical, that all the international human rights bodies that receive and consider individual complaints against states include provisions within their rules for the issuance of what may be termed requests for interim, provisional, temporary, conservatory or precautionary measures to preserve the rights of the parties while a complaint is pending. The issuance of such requests are made to states at the discretion of the international human rights body, with their timing being by definition sometime after a complaint has been received, but before a final decision on the merits of the complaint has been reached by the international human rights body. From a functional perspective, interim measures requests serve in essence as the international equivalent to a request for a temporary stay of the national proceedings, or an interlocutory injunction for national legal systems that use that terminology, with the request aimed at protecting the rights of the parties that form the subject matter of the dispute that is awaiting consideration. It is also a long-standing principle of international law that parties must abstain from measures that would aggravate or extend a pending dispute.1 In practice, however, in the field of international human rights law, many requests for interim measures of protection arise within the context of keenly contested legal challenges to orders of deportation, expulsion or extradition. By definition for an international complaint to arise, the complainant must have exhausted all effective domestic remedies and thus faces an order that has been approved by a sending state’s domestic authorities. Nevertheless, the complainant alleges that he or she faces a serious risk of torture or mistreatment if forced to leave. In such circumstances, the issuance of a request for interim measures of protection is readily understandable, given the assertion of a real risk to a person’s life or physical integrity if the planned deportation, expulsion or extradition does take place. That risk is also central to the subject matter of the complaint lodged against the state with the international human rights body. And since the 2000s, the UN human rights bodies handling such cases—being primarily the Human Rights Committee and the Committee Against Torture—have become increasingly more assertive that their requests for interim measures of protection have legal weight, casting a state’s non-compliance as a breach of good faith and a breach of the treaty obligations establishing the very process for the consideration of individual complaints. 1 PCIJ,

Electricity Company of Sofia and Bulgaria (Belgium v Bulgaria), Order, 5 December 1939, PCIJ (ser A/B) No 79 at 199.

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All is not well, however, with this evolution in the practice of international human rights law,2 with a number of democratic states with robust domestic human rights guarantees making clear their view that such requests do not have legal effect and are not legally binding. Some of these states have also become more assertive in their refusals to comply with a UN treaty body request for interim measures, preferring to give greater weight to the findings of their national courts in favour of expulsion. Some have also expressed concern that interim measures requests may be issued too readily by some international human rights bodies, heightening the risk of greater state disregard, and thus jeopardizing the very purpose of such protective measures. In this contribution, I aim to unpack the illegitimacy critique that animates state refusals to abide by interim measures requests from the human rights bodies that states created by treaty. I use Canada as a case study given its long-standing support for the international human rights system and its acceptance of the right of individual petition before both the Human Rights Committee and the Committee Against Torture. Both Committees have also found Canada to be in breach of its treaty obligations for failing to respect an interim measures request, and Canada has made public its firm disagreement, with the Canadian courts having also considered the question of whether an interim measures request is legally binding. In light of this opposition from a state ordinarily viewed as supportive of the international legal protection of human rights, I also consider changes that could be made at that international level to improve how interim measures requests are made. I view procedural change as being one means to foster greater state confidence in both the legality and legitimacy of interim measures requests so as to ensure their continued availability to address urgent risks of irreparable harm. In brief, the argument that I make is that process matters, with greater transparency and an attention to rigour in how an international body reaches its decision to request interim measures being of particular importance in circumstances where the international body is tasked by the realities of the complaints process to query the findings already made by a national court. I accept that a committee’s final decision is not binding, but that alone does not bar an interim measures request from gaining legal force as a result of the procedural and regulatory role that it serves.

6.2 The Continuing Currency of the Issue In December 2017, the Committee Against Torture adopted a new General Comment to provide guidance to states and complainants on the implementation of their obligation to not ‘expel, return (refouler) or extradite’ in circumstances where an individual would be in danger of being subjected to torture or other ill-treatment.3 This obligation is found in Article 3 of the widely-ratified Convention against Torture and 2 See

generally, Pasqualucci 2005, pp. 1–49. Against Torture, General Comment No 4 (2017) on the implementation of Article 3 of the Convention in the context of Article 22, UN Doc CAT/C/GC/4 (2018).

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Other Cruel, Inhuman or Degrading Treatment or Punishment,4 and is often referred to as the obligation of non-refoulement. The new General Comment, to be known as ‘General Comment No 4’, supersedes an earlier ‘General Comment No 1’ on the same subject matter that was issued by the Committee in 1997.5 As such, the content of the new General Comment provides insight into the Committee’s identification of its key concerns arising from a review of 20 years of practice, with most of the individual communications received by the Committee having been concerned with alleged violations of the non-refoulement obligation in the context of orders for deportation, expulsion or extradition. One concern that has received specific mention in General Comment No 4 is the question of state compliance with Committee requests for interim measures of protection in circumstances where an order for deportation, expulsion or extradition issued by the appropriate national authorities has become enforceable. Such requests are made to states when deemed ‘necessary to avoid irreparable damage to the victim or victims of an alleged violation of Article 3 of the Convention’, with the Committee taking the view that ‘the state party should comply with the Committee’s request in good faith’.6 Moreover, the Committee takes the position that ‘non-compliance with its request for interim measures constitutes a breach’ of the treaty provision that provides for the Committee’s consideration of individual complaints, that being Article 22 of the Convention. For the Committee, the rationale for this conclusion rests on the universally accepted international legal rule requiring states to perform their treaty obligations in good faith,7 with non-compliance with an interim measures request also cast by the Committee as both ‘serious damage and an obstacle to the effectiveness of the Committee’s deliberations’.8 Not all states parties, however, agree with the Committee’s approach, with the position of Canada worthy of further discussion. Canada has been a state party to the Convention Against Torture since 1987 and declared its acceptance of the Committee’s competence to receive and consider individual communications in 1989. In the mid-1990s, Canada also played a supportive role that led to the drafting of the Committee’s very first General Comment on the obligation of non-refoulement, with this assistance acknowledged in the Committee’s annual report for 1997.9 However, during the consultation process for the Committee’s more recent General Comment, Canada publicly took issue with the Committee’s approach to interim measures requests, making clear its view by way of a written submission in April 2017 that ‘interim measures requests are not legally binding in international or domestic law’.10 4 Adopted

10 December 1984, 1465 UNTS 85, in force 26 June 1987. in Report of the Committee Against Torture, UN Doc A/53/44 (1998), annex IX. 6 General Comment No 4 (2017), above n 3, para 36. 7 A rule also codified in Vienna Convention on the Law of Treaties, adopted 23 May 1969, 1155 UNTS 331, in force 27 January 1980, Article 26. 8 General Comment No 4 (2017), above n 3, para 37. 9 CAT Annual Report 1998, above n 5 at 26, para 258. 10 Reply of Canada to the Committee Against Torture concerning a draft revised General Comment on the implementation of the principle of non-refoulement, dated 26 April 2017, [2017] 55 Can 5 Reprinted

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Canada also ‘firmly’ disagreed with the Committee’s position of a ‘requirement under Article 22 for States Parties to comply with the Committee’s requests’.11 According to Canada: ‘Where a State Party does not agree with the Committee’s decision to make an interim measures request but nevertheless continues to engage with the communications procedure (for example through the filing of written submissions to explain its position), this is not a failure of the State to fulfill obligations under the Convention, including any obligation to cooperate with the Committee’.12 A few months later, similar views were expressed by Canada to the Human Rights Committee as part of a consultation process concerning the proposed text for a new General Comment on the right to life under the International Covenant on Civil and Political Rights.13 Again Canada emphasized its clear disagreement with any suggestion that a committee’s interim measures requests are binding on states. According to Canada: ‘There is nothing in the plain text of the Covenant or the Optional Protocol [providing for individual complaints] to suggest that the Committee’s requests are intended to be binding, and no record of State practice to indicate that this is an interpretation of the Optional Protocol accepted by States Parties’.14 While Canada was willing to recognise the ‘usefulness of the issuance of interim measures requests in order to avoid irreparable harm pending the Committee’s consideration of a communication’, it was nevertheless firmly of the view that ‘[t]he legal nature of interim measures in international law is dependent on the legal nature of the ultimate decision’15 For Canada, ‘interim measures requests, like the Committee’s views, are not legally binding’,16 unlike interim measures issued by international courts such as the International Court of Justice and the European Court of Human Rights. The strict formalism of Canada’s position is striking, given that more mundane aspects of a committee’s rules of procedure, such as those that impose deadlines for the filing of a submission, have been supported by Canada as having some sense of a legally binding quality for reasons of function and practicality,17 even with the end result of the process being a non-legally binding Committee View. Moreover, in the very same submission, Canada also called for the issuance of interim measures requests to be ‘subject to strict criteria’, presumably intending criteria such as ‘real urgency’ and ‘a demonstrated risk’ to be more than recommendatory.18 YB Int’l L 465–475 Retrievable at https://www.ohchr.org/Documents/HRBodies/CAT/GCArticle3/ Canada.pdf Accessed 12 May 2020. 11 Ibid. at 467. 12 Ibid. 13 Response of Canada to the Human Rights Committee concerning a request for views on draft General Comment No 36 on the right to life, dated 23 October 2017, [2017] 55 Can YB Int’l L 475–482. 14 Ibid. at 480, para 23. 15 Ibid. at 480, para 24. 16 Ibid. 17 Indeed, Canada has sought the imposition of non-extendable time limits for the review of individual complaints: Annual Report of the Committee Against Torture, UN Doc A/56/44 (2001), para 56. 18 Response of Canada to the Human Rights Committee, above n 13 at 480, para 26.

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6.3 Canada’s Long-Standing Objection Concerning Interim Measures Requests While technical and narrow in a field that has long embraced generous and purposive interpretation, Canada’s position on interim measures requests is also longstanding, as demonstrated by a review of its record of interaction with both the Committee Against Torture and the Human Rights Committee. That review also indicates that Canada was warned by the Human Rights Committee in 1999,19 and by the Committee Against Torture in 2000,20 of the need to comply with all requests for interim measures of protection issued by the Committee. Canada, however, was not convinced. In a 2004 response to the Human Rights Committee, Canada made clear that it remained ‘of the view that interim measures requests are non-binding’, with Canada relying upon the non-binding nature of the Committee’s final Views as the explanatory rationale.21 Nevertheless, Canada also assured the Committee in 2004 ‘that it usually acts in accordance with the interim measures requests issued by human rights bodies’ and stated that it was ‘committed to do so in the future’ but on a ‘case-by-case basis’.22 In response, the Human Rights Committee noted ‘with concern’ Canada’s reluctance to see itself as bound by requests for interim measures of protection, and unconvinced by Canada’s arguments, the Committee reminded Canada that: ‘Disregard of the Committee’s requests for interim measures is inconsistent with the State Party’s obligations under the Covenant and Optional Protocol’.23 Canada next responded in 2013. It repeated its position that ‘neither the Committee’s interim measures requests nor its Views are legally binding on States parties’,24 but in comparison with its 2004 response, Canada now felt no need to provide a commitment to even consider requests. Instead, Canada put on record its position that: ‘It is difficult for Canada to continue to respect an interim measures request where a person, who is found to represent a danger to the public, has been determined by domestic processes not to face a substantial risk upon removal’.25 Canada was also critical of the time that passed while a case was pending before the Committee and further noted that it did not always agree with the Committee’s 19 Concluding Observations of the Human Rights Committee: Canada, UN Doc CCPR/C/79/Add.105 (1999), para 14. 20 CAT, TPS v Canada, View, 4 September 2000, Comm No 99/1997, UN Doc CAT/C/24/D/99/1997, para 15.6. 21 Fifth Periodic Report: Canada, UN Doc CCPR/C/CAN/2004/5 (2004), para 47. 22 Ibid. at para 48. 23 Concluding Observations of the Human Rights Committee: Canada, UN Doc CCCR/C/CAN/CO/5 (2006), para 7. A similar argument was made around this time by France in Brada v France, Communication No 195/2002, UN Doc CAT/C/34/D/195/2002 (2005), which became the first case in which the Committee found a state in violation of both the interim measures and non-refoulement obligations under the Convention. 24 Sixth Periodic Report: Canada, UN Doc CCPR/C/CAN/6 (2013), para 9. 25 Ibid.

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Views on whether Canada had violated its Covenant obligations. In response, the Human Rights Committee again recommended that Canada reconsider its position.26 It also referred Canada to its General Comment No 33 in which the failure to implement interim or provisional measures is identified expressly by the Committee as ‘incompatible with the obligation to respect in good faith the procedure of individual communication established under the Optional Protocol’.27 This sense of Canada becoming decidedly more obstinate on the question of respect for Committee requests for interim measures of protection is also reflected in its interactions with the Committee Against Torture. In 2005, the Committee Against Torture expressed ‘concern’ about Canada’s ‘reluctance to comply with all requests for interim measures of protection, in the context of individual complaints presented under Article 22 of the [Torture] Convention’,28 and in 2012, the Committee expressed ‘regrets’ about Canada’s ‘failure to comply in every instance’ with requests for interim measures of protection, ‘particularly involving deportation and extradition’.29 Like the Human Rights Committee, the Committee Against Torture also took the position that by voluntarily accepting the committee’s competence to receive and consider individual complaints, Canada ‘undertook to cooperate with the Committee in good faith in applying and giving full effect to the procedure of individual complaints established thereunder’ and it recommended that Canada ‘review its policy in this respect’.30 Canada responded in 2016 by expressing concern that it ‘receives a significant number of communications with a request of interim measures’,31 and reiterating its position that ‘the Committee’s views and interim measures requests are not legally binding in international or domestic law’.32 It also admitted that, “[o]n occasion, Canada […] has removed an individual despite an interim measures request or negative final views’, but argued that these removals have occurred ‘when fair and impartial domestic processes have clearly concluded that the individual facing removal from Canada would not face a real and personal risk of irreparable harm’.33 It also 26 Human Rights Committee, Concluding Observations on the Sixth Periodic Report of Canada, UN Doc CCCR/C/CAN/CO/6 (2015), para 5. 27 Human Rights Committee, General Comment No 33: The Obligation of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights, UN Doc CCPR/C/GC/33 (2008), para 19. 28 Conclusions and Recommendations of the Committee Against Torture: Canada, UN Doc CAT/C/CR/34/CAN (2005), para 4(f). 29 Concluding Observations of the Committee Against Torture: Canada, UN Doc CAT/C/CAN/CO/6 (2012), para 10. 30 Ibid. 31 Seventh Periodic Reports of States Parties due in 2016: Canada, UN Doc CAT/C/CAN/7 (2016), para 91. Canada reported that it had 40 active communications before the Committee, with 35 involving interim measures. 32 Canada’s Seventh Periodic Report, above n 31, para 92. Note that Canada used the term “views”. Since 2002, the Committee has opted to use “decisions” to refer to its findings on the merits to reflect their quasi-judicial nature: Nowak and McArthur 2008, p. 796. 33 Canada’s Seventh Periodic Report, above n 31, para 93.

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used the opportunity to criticize the Committee, expressing ‘some concern that the Committee has been making interim measures requests with increasing frequency’.34 It also expressed concern about the timeliness of Committee proceedings, and put forward the argument that interim measures requests ‘ought to be reserved for only prima facie meritorious cases’.35 The Committee Against Torture responded in 2018 by reminding Canada of ‘its recurring decisions confirming the mandatory nature of interim measures’ and called again on Canada to fully cooperate with the Committee and respect requests for interim measures ‘in every instance’.36

6.4 The Legal Basis for Interim Measures Requests The firmness of Canada’s position concerning the non-binding status of interim measures requests rests in part on the lack of any express mention of their issuance or use in the older UN human rights treaties. This situation stands in contrast with newer treaties concerning the consideration of individual communications where state negotiators have provided expressly for the issuance of interim measures as may be necessary to avoid irreparable damage to the victims of alleged violations. Examples include the 2006 Optional Protocol to the Convention on the Rights of Persons with Disabilities,37 and the 2008 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.38 There is, however, no such provision in either the 1966 Optional Protocol to the International Covenant on Civil and Political Rights,39 or the 1984 Convention Against Torture,40 and nor is there a provision in any of these treaties as to whether or not requests for interim measures of protection have a legal status. However, both the Human Rights Committee and the Committee Against Torture are expressly empowered by their constitutive treaties, and thus by states parties such as Canada, to ‘establish [their] own rules of procedure’,41 and these rules have long provided for the issuance of interim measures requests in the course of a committee’s consideration of an individual communication.42 Having accepted the 34 Ibid.

at para 94.

35 Ibid. 36 Committee Against Torture, Concluding Observations on the Seventh Periodic Report of Canada, UN Doc CAT/C/CAN/CO/7 (2018), para 26. 37 Adopted 13 December 2006, 2518 UNTS 283, in force 3 May 2008, Article 4. 38 Adopted 10 December 2008, 2922 UNTS (p 58), in force 5 May 2013, Article 5. 39 Adopted 16 December 1966, 999 UNTS 171, in force 23 March 1976 [ICCPR Optional Protocol]. 40 Above n 4, adopted 10 December 1984, 1465 UNTS 85, in force 26 June 1987. 41 Convention Against Torture, above n 4, Article 18(2); International Covenant on Civil and Political Rights, adopted 16 December 1966, 999 UNTS 17, in force 23 March 1976, Article 39(2). 42 See Rule 94 of the Human Rights Committee, Rules of Procedure, UN Doc CCPR/C/ 3/Rev.11 (2019), with earlier versions of these rules having served guidance for other international human rights bodies tasked by states with the responsibility of establishing their own rules of procedure.

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Human Rights Committee’s competence to receive and consider individual communications since 1976, Canada has long had the opportunity to both review and object to the Committee’s Rules of Procedure, but did not do so with respect to interim measures requests until the late 1990s. As for the Committee Against Torture, Canada declared its acceptance of that Committee’s competence to receive individual complaints after the Rules of Procedure were in place, and thus it had advance notice of the Rules to be applied. To explain further, since 1988, the Rules of Procedure of the Committee Against Torture have made express provision for the making of a ‘request’ to a state party ‘to take steps to avoid a possible irreparable damage to the person or persons who claim to be victim(s) of the alleged violation’. This Rule was located within para 9 of Rule 13/22, which was located within Part XIX concerning the ‘Procedure for the consideration of individual communications under Article 22 of the Convention’,43 with para 9 of Rule 13/22 later becoming para 9 of Rule 108 when the rules were consecutively numbered. No objection to the content of this rule appears to have been made by states, with the General Assembly’s official response being to ‘note with appreciation’ the Committee’s adoption of its Rules of Procedure in late 1989.44 As for Canada, its representative simply used the opportunity during the deliberations of the Assembly’s Third Committee in November 1989 to advise that Canada had submitted its declaration in respect of Article 22 of the Convention, clearly accepting the individual complaint mechanism with advance notice of the content of the Rules of Procedure to be applied by the Committee Against Torture.45 It was also in November 1989 that Canada’s first state report was considered by the Committee, with the record of these proceedings also revealing no concern being expressed about the Rules.46 States were also made aware that the Rule was, in fact, being used. For example, in its 1993 report to the General Assembly, the Committee Against Torture expressly noted that Rule 108 had been applied in three cases where the complainants claimed they faced a danger of torture if returned to their countries of origin.47 In two of the three cases, the state party concerned had agreed to reconsider the claimants’ requests to remain,48 while in the third case, Switzerland had responded positively by advising that it would comply with the Committee’s request not to expel.49 Switzerland also made clear that it withdrew any objection to admissibility so as to encourage the Committee to move on to an assessment of the merits of the case. This need for 43 Reprinted

in annex III of the Report of the Committee Against Torture, UN Doc A/43/46 (1988) at 10–42, with Rule 13/22 found at 39–40. See further Nowak and McArthur 2008, above n 32 at 733–34. 44 GA Resolution 44/144, UN Doc A/RES/44/144 (1989), para 5. 45 Summary Record of the 38th Meeting, UN Doc A/C.3/44/SR.38 (10 November 1989) at 15, para 64 (Y. Fortier). A copy of Canada’s declaration, received on 13 November 1989, can be found at 1548 UNTS 735. 46 Report of the Committee Against Torture, UN Doc A/45/44 (1990), paras 218–250. 47 Report of the Committee Against Torture, UN Doc A/49/44 (1994), para 187. 48 Report of the Committee Against Torture, UN Doc A/50/44 (1995), para 198. 49 CAT, Mutombo v Switzerland, View, 27 April 1994, Comm No 13/1993, CAT/C/12/D/13/1993, para 5.

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expedition was also recognised by the Committee, which further advised states that ‘in many cases, the authors of communications make requests for interim measures of protection’.50 To this end, the Committee amended its Rules so as to empower certain members to make the Rule 108 decisions throughout the year, rather than waiting for a formal session.51 Further amendments were made in May 2002, with the Committee again advising states by way of its annual report that ‘[c]omplainants frequently requested preventive protection, particularly in cases concerning imminent expulsion or extradition’.52 Rule 108 was revised so as to focus exclusively on interim measures, with the amended text now providing for the explicit designation of a Committee member to serve as rapporteur for new complaints and interim measures, who was also tasked with monitoring state compliance.53 The new rapporteur was also given a mandate to withdraw requests for interim measures in appropriate cases, with Rule 108 also making clear that a state party ‘may inform the Committee that the reasons for the interim measures have lapsed or present arguments why the interim measures should be lifted’.54 The first decision to withdraw a request for interim measures was made in January 2003, after receiving certain guarantees and assurances from the receiving state.55 In this way, the Committee Against Torture was making clear that there were both procedural and substantive criteria for the granting and rejecting of requests for interim measures of protection. However, in 2006, and again in 2011, the Committee made known that it was aware that a number of states parties were concerned that such requests were issued in ‘too large a number of cases’ alleging violations of non-refoulement where they believed there were ‘insufficient factual elements to warrant a request for interim measures’.56 On both occasions, the Committee also noted that there had been cases where requests for interim measures had been lifted following the provision of pertinent state party information obviating the need for interim measures. Rule 108, now numbered as rule 114, had also been revised to make clear to all states parties that the decision to grant interim measures ‘may be reviewed, at the initiative of the State party, in the light of timely information received from that State party to the effect the [complainant’s] submission is not justified and the complainant does not face any prospect of irreparable harm’.57 But, in practice, the Committee was also being forced to deploy a new notation for its records to 50 CAT

Annual Report 1995, above n 48, para 14. at para 191. 52 Report of the Committee Against Torture, UN Doc A/57/44 (2002), para 204. 53 Committee Against Torture, Rules of Procedure, UN Doc CAT/C/3/Rev.4 (2002), Rule 108, para 5. 54 Ibid., Rule 108, para 6. 55 Report of the Committee Against Torture, UN Doc A/58/44 (2003) at 60, para 164, referring to CAT, GK v Switzerland, View, 7 May 2003, Comm No 219/2002, UN Doc CAT/C/30/D/219/2002. 56 Report of the Committee Against Torture, UN Doc A/61/44 (2006), para 62; Report of the Committee Against Torture, UN Doc A/66/44 (2011), para 93. 57 Committee Against Torture, Rules of Procedure, UN Doc CAT/C/3/Rev.5 (2011), Rule 114, para 3. 51 Ibid.

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indicate where interim measures had been ‘granted but not accepted by the State party’.58

6.5 Canada Uses Its Domestic Law and Domestic Courts to Bolster Its Position As a country that follows the British constitutional tradition, treaty obligations do not automatically have domestic legal effect within Canada, and nor do treaty-monitoring body requests or final decisions. However, nothing in Canadian law serves to bar the Government of Canada from choosing to act in compliance with an international human rights body’s request as a matter of policy and administrative practice, with Canada, until the 1990s, having always complied with requests for interim measures through executive action. Such action took the form of an executive branch decision to delay the execution of a deportation or extradition decision while the individual concerned had a communication pending before a treaty-monitoring body. There are, however, certain aspects of Canadian law that are difficult to reconcile with the country’s international obligation of non-refoulement. For example, Canada’s immigration legislation subjects what is internationally an absolute prohibition on refoulement to face torture to two exceptions so as to deny non-refoulement to persons deemed inadmissible to Canada ‘on grounds of serious criminality’ or ‘on grounds of security, violating human or international rights or organized criminality’ who constitute a danger to the public or the security of Canada.59 These domestic law exceptions have been repeatedly identified as matters of serious concern by both the Committee Against Torture,60 and by the Human Rights Committee,61 with the Human Rights Committee further also expressing concern about Canada’s policy commitment to the view that, in exceptional circumstances, persons can be deported to a country where they would face the risk of torture or mistreatment.62 This policy position derives support from a judgment issued by Canada’s highest court, which found that ‘Canadian jurisprudence does not suggest that Canada may never deport a person to face treatment elsewhere that would be unconstitutional if imposed by Canada directly, on Canadian soil’.63 While Canada’s constitution 58 The

notation is used four times in the Committee’s 2011 Annual Report, above n 56. and Refugee Protection Act, SC 2001, c 27, s 115(2). 60 Conclusions and Recommendations of the Committee against Torture: Canada, UN Doc CAT/C/CR/34/CAN (2005), para 4(d); Concluding Observations of the Committee against Torture: Canada, UN Doc CAT/C/CAN/CO/6 (2012), para 9(a); Concluding Observations on the Seventh Periodic Report of Canada, UN Doc CAT/C/CAN/CO/7 (2018), para 24. 61 Concluding Observations on the Sixth Periodic Report of Canada, UN Doc CCPR/C/CAN/CO/6 (2015), para 13. 62 HRCtee Concluding Observations (2006), above n 23, para 15. 63 SCC, Suresh v Canada (Minister of Citizenship and Immigration), Judgment, 11 January 2002, 2002 SCC 1, [2002] 1 SCR 3 at para 58. 59 Immigration

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does include an express right to not be subjected to cruel and unusual treatment,64 it is the view of the Supreme Court of Canada that this prohibition reflects the ‘opposition of the Canadian people to government-sanctioned torture […] in the domestic context’.65 However, ‘the prospect of Canada expelling a person to face torture in another country’ was seen by the court as raising different considerations,66 with the court concluding that it could ‘not exclude the possibility that in exceptional circumstances, deportation to face torture might be justified’ under Canadian law.67 The court did not, however, identify what those ‘exceptional circumstances’ might be, with the Federal Court later appearing to narrow the exception by confirming that ‘deportation to a country where there is a substantial risk of torture would infringe an individual’s rights’.68 However, this holding left intact the higher court’s identification of a possible exception for exceptional cases, with the Committee Against Torture having expressed concern about this ‘failure […] to recognize at the level of domestic law the absolute nature of the protection of Article 3 of the Convention’.69 Canada’s courts have also been unreceptive to efforts by counsel to give domestic legal effect to treaty body requests for interim measures where the Government of Canada has decided not to abide by the request. The leading case is Ahani v Canada, decided in 2002 by the Ontario Court of Appeal, with leave to appeal to the Supreme Court of Canada having been denied.70 At issue in Ahani was the desired deportation from Canada to Iran of an alleged terrorist and assassin considered to be a danger to national security, who had lodged a complaint with the Human Rights Committee alleging that Canada would be in breach of the Covenant if he was deported to a country where he faced a risk of torture or death. Ahani secured a request for interim measures and then sought an injunction from the Ontario courts to prevent his deportation. His effort, however, was unsuccessful, with Laskin JA for the majority making much hay of the fact that ‘Canada has never incorporated either the Covenant or the Protocol into Canadian law’ and ‘[a]bsent implementing legislation, neither has any legal effect in Canada’.71 He also concluded that ‘neither the Committee’s views nor its interim measures requests are binding on Canada as a matter of international law, much less as a matter of domestic law’,72 holding that it would be ‘an untenable result’ to ‘convert a non-binding request, in a Protocol, 64 Canadian

Charter of Rights and Freedoms, s 12, found in Part I of the Constitution Act, 1982. v Canada, above n 63 at paras 51–52. 66 Ibid. at para 52. 67 Ibid. at para 78. 68 FC, Re Jaballah, Judgment, 16 October 2006, DES-04-01, 2006 FC 1230 at para 81. 69 Conclusions and Recommendations of the Committee against Torture: Canada (2005), above n 60 at para 4(a). 70 ONCA, Ahani v Canada (Attorney General), Judgment, 8 February 2002, C37565 & M28156, (2002) 58 OR (3d) 107 (Rosenberg JA dissenting), leave to appeal to the Supreme Court of Canada denied, [2002] 2 SCR v (L’Heureux-Dubé J dissenting). 71 Ibid. at para 31. 72 Ibid. at para 32. 65 Suresh

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which has never been part of Canadian law, into a binding obligation enforceable in Canada by a Canadian court, and more, into a constitutional principle of fundamental justice’73 As for the argument that Canada was not acting in good faith, Laskin JA held that if that was the case, it was ‘a matter for the court of public and international opinion, not for a court of law’.74 In dissent, Rosenberg JA held that individuals in Canada were entitled to have fair access to the process of complaint provided for by the ICCPR’s Optional Protocol, given Canada’s conferral of jurisdiction on the Human Rights Committee through the executive branch’s decision to accede to the treaty. His dissenting opinion drew a distinction between the domestic enforcement of the Committee’s Views and ‘the limited procedural right to reasonable access to the Committee, upon which the federal government has conferred jurisdiction’, agreeing with the submission that ‘the government, having held out this right of review, however limited and nonbinding, should not be entitled to render it practically illusory by returning him to Iran before he has had a reasonable opportunity to access it’.75 Rosenberg JA went on to state: ‘I think there is a generally held consensus in Canada that in the human rights context an individual whose security is at stake should within reason be given the opportunity to access remedies at the international level, and that necessarily the executive should not unreasonably frustrate the individual’s attempt to do so. I think this is particularly so where the individual seeks access to a body of the stature of the Committee’.76 Ahani’s request for leave to appeal to the Supreme Court of Canada was later denied on 16 May 2002, and with the battle in the Canadian courts having come to an end, Canada deported Ahani to Iran on 10 June 2002. Two years later, the Human Rights Committee would express its ‘great regret’ that the deportation had taken place ‘in contravention of its request for interim protection’ through Views adopted concerning Ahani’s communication on 29 March 2004.77 The views make clear that Canada had stuck to its position that ‘such requests are recommendatory, rather than binding’, while also advising that it usually responded favourably to such requests.78 The Human Rights Committee, however, was of the view the Canada had committed a breach of its obligations under the ICCPR’s Optional Protocol by deporting Ahani while his case was pending before the Committee. Viewing interim measures requests as ‘essential to the Committee’s role under the Protocol’, the Committee concluded that the ‘flouting of the Rule [on interim measures], especially by irreversible measures such as […] deportation […] to face torture or death in another country, undermines the protection of Covenant rights through the Optional

73 Ibid.

at para 33. at para 47. 75 Ibid. at para 93. 76 Ibid. at para 94. 77 HRCtee, Ahani v Canada, View, 29 March 2004, Comm No 1051/2002, UN Doc CCPR/C/80/D/1051/ 2002, para 5.1. 78 Ibid. at paras 5.2–5.3. 74 Ibid.

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Protocol’.79 Within Canada, however, the decision of the Human Rights Committee in Ahani is rarely mentioned, in stark contrast with the decision of the Ontario Court of Appeal, which is repeatedly cited in support of the position that the outputs of the UN human rights treaty bodies are not binding on Canada, and that Canada’s election not to follow a non-binding recommendation cannot be construed so as to found a constitutional challenge.80 The domestic court judgment is also used to support the position that the Covenant has not been incorporated into Canadian domestic law,81 notwithstanding Canada’s often stated position when reporting on the performance of its treaty obligations to the Human Rights Committee that ‘many of the rights contained in the Covenant are constitutionally protected by the Canadian Charter of Rights and Freedoms, which applies to all levels of government [within Canada]’.82

6.6 The Entrenchment of the Domestic Legal Position The Ahani decision is not without criticism,83 and some had hoped for a successful challenge to gain ground in either a different provincial appellate court or before Canada’s Federal Court as the latter has an established expertise in matters of both immigration and national security. However, while there have been cases since Ahani seeking to give domestic legal effect to the decisions of an international human rights body, none have had success in overturning or weakening the Ahani rationales. What is worse is that Canada appears to have been emboldened by this domestic reality, becoming the first state party to the Convention Against Torture to refuse to comply with a committee decision on the merits of a complaint.84 79 Ibid.

at paras 8.1–8.2. for example, FC, Dadar v Canada (Minister of Citizenship and Immigration), Judgment, 24 March 2006, IMM-1470-06, 2006 FC 382 at para 17; FC, Bachan Singh Sogi v Canada (Minister of Citizenship and Immigration), Judgment, 23 June 2006, IMM-2889-06 & IMM-3175-06, 2006 FC 799 at paras 47–50. 81 FC, Gauthier v Canada (House of Commons), Judgment, 12 May 2006, T-460-06, 2006 FC 596 at para 19, with the Federal Court having before it the views of the Human Rights Committee finding Canada in violation of its freedom of expression obligation in relation to a denial of press access to Parliament: HRCtee, Gauthier v Canada, View, 5 May 1999, Comm No 633/1995, CCPR/C/65/D/633/1995. See also QCCS, Dumont v Quebec (Attorney General), Judgment, 17 July 2009, 500-05-067084-010, 2009 QCCS 3213 at para 127, making the more nuanced point that the lack of express incorporation of the Covenant into Canadian law does not prevent Canada from implementing some of the obligations contained therein, through various mechanisms, including legislation, regulation and the development of programs and policies. However, see also ONSC, Galganov v Russell (Township), Judgment, 20 August 2010, 08-CV-41980, 2010 ONSC 4566 at para 201 where the court made clear: “The ICCPR is not incorporated into domestic law and is therefore not enforceable in Canadian Courts and can have no domestic legal consequences.” 82 See, for example, Sixth periodic reports of States parties due in October 2010: Canada, UN Doc CCPR/C/CAN/6 (2013), para 8. 83 Notably, Harrington 2003, pp. 55–87. 84 A point made expressly by Committee member Felice Gaer during the Committee’s consideration of Canada’s actions on 16 May 2006: UN Doc CAT/C/SR.717 (2006), para 57. 80 See,

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In that case, an Iranian national named Mostafa Dadar had been deemed by the Canadian authorities to be a danger to the public after serving a prison sentence for the aggravated assault of his girlfriend. Originally admitted to Canada as a refugee, he now faced deportation back to Iran, where he alleged there was a risk of being subjected to torture. In November 2005, the Committee Against Torture concluded there were substantial grounds for believing that Dadar faced a foreseeable, real and personal risk of torture if returned to Iran.85 Canada, however, was unwilling to accept this view, and an attempt by Dadar to secure a stay of proceedings before the Federal Court only served to have that court reconfirm the Ahani ruling that a decision of an international human rights body ‘is not binding on Canada’. The Federal Court further added that ‘[i]t is not for the judiciary to second guess Canada’s decision not to adopt the UNCAT decision’.86 Two days later, the Canadian authorities deported Dadar to Iran.87 Canada’s failure to abide by its non-refoulement obligations in the Dadar case has been repeatedly ‘deplored’ by the Committee Against Torture,88 which has reminded Canada that a ‘failure to comply in every instance with the Committee’s decisions […] particularly in cases involving deportation and extradition […] might undermine its commitment to the Convention’.89 It is, however, Canada’s position that Dadar had not shown that he faced a substantial risk of torture if removed to Iran, with Canada further noting that it is for the national courts to evaluate the facts and evidence in a particular case.90 And yet, all non-refoulement cases before the Committee Against Torture will entail some degree of review of the findings of a national court, making a rule of strict deference to national court findings unworkable. A year later, Canada changed tactics, arguing that it should not be held responsible for a purported violation of the Convention given the absence of any evidence to show that Dadar was tortured after his return.91 Canada’s Federal Court has also found that Committee requests for interim measures have no legal effect, with the Sogi case being the notable example.92 Bachan Singh Sogi was an alleged member of a Sikh militant group, and listed terrorist organization, that aims to establish the independent state of Khalistan in the northern Indian state of Punjab. He had come to Canada under a false identity after 85 CAT,

Dadar v Canada, View, 5 December 2005, Comm No 258/2004, CAT/C/35/D/258/2004, para 8.9. 86 Federal Court of Canada Dadar v Canada, above n 80 at para 23. 87 “Dadar deported to Iran despite fears of torture” CBC News (27 March 2006), online at: http://www.cbc.ca/news/canada/new-brunswick/dadar-deported-to-iran-despite-fears-oftorture-1.604648. 88 Report of the Committee against Torture, UN Doc A/62/44 (2007) at 107; Report of the Committee against Torture, UN Doc A/63/44 (2008), para 96; Report of the Committee against Torture, UN Doc A/64/44 (2009), para 92; Report of the Committee against Torture, UN Doc A/65/44 (2010), para 111. 89 CAT Concluding Observations (2012), above n 29 at para 10. 90 Report of the Committee against Torture, UN Doc A/61/44 (2006) at 91–92. 91 CAT Annual Report 2008, above n 88 at 116. 92 Bachan Singh Sogi v Canada, above n 80 at para 43.

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his refugee claim was denied by the United Kingdom, and both countries considered him a threat to national security. Canadian assessments conducted in 2003 and 2005 had considered Sogi to be at risk of torture if returned to India; however, a 2006 assessment reached a different conclusion, based in part on the treatment accorded to other Sikh militants who had been removed to India.93 With Sogi’s case having been before the Canadian courts on several occasions, the Federal Court viewed the application for a stay on the basis of an interim measures request to be ‘a last-minute manoeuver to buy time’, and further noted that while the international committee had ‘yet to review the matter’, it had before it ‘a comprehensive and detailed formal analysis prepared by a Canadian immigration officer’.94 An appeal to the Federal Court of Appeal was refused,95 and two days later, Sogi was deported. Canada was subsequently found by the Committee against Torture to be in violation of its treaty obligations, with the Committee concluding that ‘by the time he was returned, [Sogi] had provided sufficient evidence to show that he personally ran a real and foreseeable risk of being subjected to torture were he to be returned to his country of origin’.96 Canada was also severely criticized by the Committee for having failed to give effect to the Committee’s repeated requests to suspend removal while the complaint was pending, with the Committee taking the view that Canada had a legal obligation to abide by the interim measures requests.97 As in the Dadar case, Canada’s response was one of opposition, with Canada advising the Committee that ‘[i]t does not consider either a request for interim measures of protection or the Committee’s views themselves to be legally binding and is of the view that it has fulfilled all of its international obligations’.98 When it was later alleged that Sogi had, indeed, been tortured in India upon his return, Canada responded by stating that while ‘such allegations are very worrying’, Sogi was no longer within Canada’s jurisdiction.99 A year later, being ‘unable’ to agree with the Committee’s decision, Canada took the position that the Sogi case should simply be considered closed.100 The domestic legal position embraced in the cases of Ahani, Dadar and Sogi has also gained support from the Quebec courts, which denied an application for a temporary stay of proceedings on interim measures grounds brought by the Hutu politician Léon Mugesera, who faced deportation to Rwanda to stand trial on charges of incitement to commit genocide. Given the nature and gravity of the allegations, Canada was keen to deport Mugesera, but the changing situation in Rwanda had 93 FC, Sogi v Canada (Minister of Citizenship and Immigration), Judgment, 1 February 2007, IMM-

2889-06 & IMM-3175-06, 2007 FC 108 at paras 10–11. Singh Sogi v Canada, above n 80 at paras 46 & 50. 95 Sogi v Canada (2007), above n 93 at para 8. 96 CAT, Sogi v Canada, View, 16 November 2007, Comm No 297/2006, UN Doc CAT/C/39/D/297/2006, para 10.10. 97 Ibid. at para 10.11. 98 Reported in CAT Annual Report 2008, above n 88 at 116. 99 Reported in Report of the Committee against Torture, UN Doc A/64/44 (2009) at 152. 100 Reported in Report of the Committee against Torture, UN Doc A/65/44 (2010) at 183. By 2012, the Sogi case was no longer included in the Committee’s annual listing of follow-up activities. 94 Bachan

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raised concerns about a possible risk of harm. Canada’s highest court approved the deportation in 2005,101 but an order to execute was not issued until late 2011, with counsel responding by making an unsuccessful application to the Federal Court.102 On 10 January 2012, a complaint was lodged with the Committee Against Torture, and on 11 January 2012, a request for interim measures was issued. The next day, Mugesera’s counsel appeared before the Quebec Superior Court with an application for a stay, leading to the response that ‘it has already been decided by our courts (that) it is not for the judiciary to judge Canada’s decision not to act on a request of this nature’.103 The Quebec court also stated, as a finding of fact, that the Committee has, under the Convention Against Torture, no enforcement powers vis-à-vis a state party, and its demands have no binding effect.104 Mugesera was deported from Canada on the same day as the Quebec court’s decision. Canada was later found by the Committee Against Torture to have committed a treaty breach by failing to abide by the request for interim measures, although the Committee did not find Canada to have violated its non-refoulement obligations.105

6.7 Turning to International Change to Encourage State Compliance In July 2011, the European Court of Human Rights issued an amended practice direction concerning requests for interim measures.106 While the Court confirmed that it may issue interim measures ‘in exceptional cases’, it also emphasised that any request for such measures must be fully reasoned, grounded in details specific to the person facing an alleged risk, and accompanied by supporting documentation, including full-text copies of the related domestic court decisions. Two years later, in 2013, the Inter-American Commission on Human Rights adopted a new rule of procedure concerning the issuance of what it calls ‘precautionary measures’. Adopted as part of a package of procedural reforms, the Commission’s new rule clarified the criteria to be used for issuing such measures, while also making clear that any decisions made to grant, extend, modify or lift such measures had to be made ‘through reasoned resolutions’ that would include mention

101 SCC,

Mugesera v Canada (Minister of Citizenship and Immigration), Judgment, 28 July 2005, 2005 SCC 40, [2005] 2 SCR 100. 102 FC, Mugesera v Canada (Minister of Citizenship and Immigration), Judgment, 11 January 2012, IMM-9680-11, 2012 FC 32. 103 QCCS, Mugesera v Kenney, Judgment, 23 January 2012, 500-17-069828-120, 2012 QCCS 116 at para 38. 104 Ibid. at para 37. 105 CAT, LM v Canada, View, 11 September 2018, Comm No 488/2012, CAT/C/63/D/488/2012, paras 11.7, 11.8 & 12. 106 Available at https://echr.coe.int/Documents/PD_interim_measures_ENG.pdf.

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of ‘the information presented by the state, if available’, as well as the ‘considerations by the Commission concerning the requirements of seriousness, urgency and irreparability’.107 The new rule also directed that these ‘reasoned resolutions’ include mention of ‘the votes of the members of the Commission’.108 This trend towards greater transparency is also reflected in the practical aspects of the Commission’s work, which has created a dedicated section on its website for ‘Precautionary Measures’ through which it provides a summary for each case as well as a link to the full-text version of the relevant Commission resolution.109 In keeping with the new rule, each resolution contains a summary of the essential facts of the case, an analysis of the criteria of seriousness, urgency and irreparable harm, and an indication of the Commission’s conclusion, including the voting record, as well as an analysis of any submissions. Audio and video recordings of any hearings concerning the issuance of precautionary measures may also be made available to anyone interested by way of the website, as are statistics on the number of requests received and issued. These statistics can also be manipulated to provide country-by-country comparisons as well as individualized tallies for a country of particular interest.110 No such reforms with respect to interim measures have been undertaken within the UN human rights system, where interim measures requests are initially made in confidence to a state, with a copy to the complainant. While the treaties under which these committees operate require the holding of ‘closed meetings when examining communications’,111 it was the Committees themselves, through their rules of procedure, that extended the rule of confidentiality to include all documents.112 In the early days, such secrecy may have helped encourage state support for the individual complaints process, but from a human rights perspective, it is an approach that contradicts the old adage that ‘justice must be seen to be done’. Moreover, there is no justification for confidentiality extending to the result or outcome of an examination, with the right to a fair hearing favouring the public pronouncement of decisions made by courts and tribunals. Under Rule 111(6) of its Rules of Procedure, the Human Rights Committee can permit decisions on interim measures requests to be made public ‘if the Committee or the Special Rapporteur considers it appropriate’, while Rule 35(2) for the Committee Against Torture permits ‘formal decisions and other official documents’ to be distributed ‘as may be decided by the Committee […] to others concerned’. Technological developments, however, now make it so much easier to embrace a more robust approach to transparency, with litigants in many 107 Rules of Procedure of the Inter-American Commission on Human Rights, in force 1 August 2013,

Article 25(7)(b)–(c). Article 25(7)(e). 109 Available at https://www.oas.org/en/iachr/decisions/precautionary.asp. 110 Available at https://www.oas.org/en/iachr/multimedia/statistics/statistics.html. 111 ICCPR Optional Protocol, above n 39, Article 5(3); Convention Against Torture, above n 4, Article 22(6). 112 Nowak and McArthur 2008, above n 32 at 727, para 14 (“all documents are confidential”). See also HRCtee Rules of Procedure, above n 42, Rule 111; Committee Against Torture, Rules of Procedure, UN Doc CAT/C/3/Rev.6 (2014), Rule 35. 108 Ibid.,

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Western states now accustomed to the online availability of written submissions, court orders and judgments, and for some courts, audio-visual recordings. There is also the problem of trust. Without seeing the actual texts of the interim measures requests, neither states nor advocates can assess the quality of the decisions being made. Moreover, there are suspicions held by some states that interim measures requests are simply granted as a matter of course. Thus, making copies of the interim measures requests publicly available, as done for the Americas by way of a dedicated public website, serves to build trust in the international system for the legal protection of human rights. An accessible online collection of past decisions, with reasons, would also serve an educational purpose, and greatly assist counsel in preparing future applications for interim measures in circumstances where time is of the essence given the urgency criterion. Instead, lawyers and academics are forced to comb through past annual reports to piece together a state’s record on interim measures requests, even when special rapporteurs are themselves engaged behind-the-scenes in the monitoring of state compliance with such requests. Statistics are also hard to obtain, even though records for interim measures requests are likely maintained, but not publicised, by the secretariat.113 This lack of transparency is likely to become more noticeable over time for countries such as Canada that participate in both the inter-American and UN human rights regimes. Form is also important. Typically, the UN bodies phrase their interim measures requests using diplomatic niceties that later fail to gain traction before a national court. This situation suggests a need for the format of such requests to look more like court orders and less like letters. After all, most national court judges are unfamiliar with the trappings of diplomacy, with the use of notes verbales to convey a request leaving the impression that these are polite suggestions to consider taking action. For the vast majority of lawyers and judges within a national legal system, terms like ‘communication’, ‘author’, ‘views’ and ‘requests’ simply do not resonate, and even an experienced national court judge may have difficulty discerning the difference between the Human Rights Committee and the Human Rights Council. Indeed, the entire architecture of the international human rights system does not pay sufficient attention to the user’s perspective. Even the coding used on UN documents may have unintended consequences, such as when counsel need to rely in a national court on a UN document that is marked ‘Restricted’, leading a judge to ask as to whether it is appropriate for counsel to present the document to the court. As for the substance of the requests, the provision of detailed reasons for their issuance, as is now required in the inter-American system, may also serve to foster state respect for their protective role, while also assisting those who must take efforts in the national courts to secure a temporary stay of an order for removal or extradition. Moreover, if the Canadian courts are correct that interim measures requests are matters for ‘the court of public or international opinion’ then the public needs to know more about why the requests were made. In the Canadian situation, the lack of documentation to show that an interim measures request was made for valid reasons has also opened the door to the use of other information that is available, including 113 See,

for example, CAT Rules of Procedure, above n 112, Rule 114(5).

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post-removal reports that an individual has not been harmed, which in turn serves to weaken the case for respecting a future interim measures request. Reasons can also serve to make clear the distinction between an interlocutory action and the final outcome, with an interim measures request, unlike a final decision on the merits, gaining legal force as a result of its important regulatory role in preserving the positions of the parties while a dispute is pending.

6.8 Conclusion Clearly, one cannot guarantee that the embrace of greater transparency and the provision of detailed reasons from the UN human rights bodies will encourage countries such as Canada to change its long-established view on the non-legally binding nature of interim measures requests. But over time, such changes may serve to foster greater confidence from other states in both the legitimacy and necessity of these protective measures for the prevention of irreparable harm. Over time, this strengthening of confidence may also serve to isolate those states that continue to express their opposition to the good faith argument that has now been so clearly embraced by both the Human Rights Committee and the Committee Against Torture. If this happens, Canada may well need to consider whether its position on interim measures is worth maintaining if it means losing an ability to persuade other states to support its initiatives or pay heed to its admonishments in the wider field of international human rights protection and promotion.

References Harrington J (2003) Punting Terrorists, Assassins and Other Undesirables: Canada, the Human Rights Committee and Requests for Interim Measures of Protection. McGill LJ 48:1:55–87 Nowak M, McArthur E (2008) The United Nations Convention Against Torture: A Commentary. Oxford University Press, Oxford Pasqualucci JM (2005) Interim Measures in International Human Rights: Evolution and Harmonization Vand J Transnat’l Law 38:1:1–49

Joanna Harrington is professor of law at the University of Alberta (Canada).

Chapter 7

Urgency in Expulsion Cases Before the European Court of Human Rights and the UN-Committees: A Bird’s Eye View Karin Zwaan Contents 7.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2 Protection Against Expulsion Before the ECtHR; Urgency and Reasoning . . . . . . . . . . . 7.2.1 Risk of Inhuman and Degrading Treatment (Ill-Treatment) for Political, Ethnic or Religious Reasons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.2 Risk of Ill-Treatment Related to Sexual Orientation . . . . . . . . . . . . . . . . . . . . . . . 7.2.3 Risk of Stoning for Adultery/Family Vengeance . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.4 Risk of Being Subjected to Female Genital Mutilation (FGM) . . . . . . . . . . . . . . . 7.2.5 Risk of Social Exclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.6 Risk of Sexual Exploitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.7 Expulsion Cases with a Risk to Health (Medical Element) . . . . . . . . . . . . . . . . . . 7.3 Protection Against Expulsion Before the UN Committees; Urgency and Reasoning . . . . . 7.3.1 Risk of Torture, Inhuman and Degrading Treatment for Political, Ethnic or Religious Reasons (Including Forced Confessions) . . . . . . . . . . . . . . . . . . . . . . 7.3.2 Risk of Ill-Treatment Related to Sexual Orientation . . . . . . . . . . . . . . . . . . . . . . . 7.3.3 Risk of Stoning for Adultery/Family Vengeance . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.4 Risk of Being Subjected to FGM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.5 Risk to Health (Medical Element) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.6 Risks for a Child’s Well-Being . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4 Case Study: Gender-Related Human Rights Infringements: Female Genital Mutilation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4.2 Urgency and Reasoning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4.3 Does the Forum Matter? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This chapter focuses on the issue of urgency in expulsion cases. It analyses case law of the European Court of Human Rights (ECtHR), as well as the UN Human Rights Committee (HRCtee), the UN Committee on the Elimination of Discrimination against Women (CEDAW), the UN Committee on the Rights of the Child (CRC) and the UN Committee against Torture (CAT). The question is addressed how these K. Zwaan (B) Centre for State and Law, Department of Migration Law, Radboud University Nijmegen, Montessorilaan 10, Nijmegen, The Netherlands e-mail: [email protected] © T.M.C. Asser Press and the authors 2021 E. Rieter and K. Zwaan (eds.), Urgency and Human Rights, https://doi.org/10.1007/978-94-6265-415-0_7

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bodies deal with evidentiary matters and how, within the time-constraints, they deal with the requirements of elaboration and reasoning. It is a bird’s eye view because a view from a very high place allows you to see a large area, and urgency in expulsion cases also encompasses a large number of judgments and views. Also—from a practitioner’s perspective—the choice of forum will be dealt with. This chapter—as well as the entire book—takes a thematic, rather than a system by system approach to urgency in human rights litigation. It deals with the overall theme of legitimacy and protective potential of the tool of interim measures in human rights cases. To discuss the above-mentioned topics, a case study on Female Genital Mutilation (FGM) will give insight into all these different aspects of urgency, evidentiary matters, choice of forum and the protective potential of interim measures in expulsion cases. Keywords Asylum · choice of forum · European Court of Human Rights · evidence · expulsion · female genital mutilation · FGM · inhuman and degrading treatment · interim measures · non-refoulement · rights of the child · UN-Committees · torture · urgency

7.1 Introduction This chapter focuses on the issue of urgency in expulsion cases. It analyses case law of the European Court of Human Rights (ECtHR, Court), as well as the UN Human Rights Committee (HRCtee), the UN Committee on the Elimination of Discrimination against Women (CEDAW), the UN Committee on the Rights of the Child (CRC) and the UN Committee against Torture (CAT).1 The question is addressed how these bodies deal with evidentiary matters and how, within the time-constraints, they deal with the requirements of elaboration and reasoning. This chapter—as well as the entire book—takes a thematic, rather than a system-by-system approach to urgency in human rights litigation. It deals with the overall theme of legitimacy and protective potential of the tool of interim measures in human rights cases. To discuss the above-mentioned topics, a case study on Female Genital Mutilation (FGM) will give insight into all these different aspects of urgency, evidentiary matters, choice of forum and the protective potential of interim measures in expulsion cases.

7.2 Protection Against Expulsion Before the ECtHR; Urgency and Reasoning The ECtHR may, under Rule 39 of its Rules of Court, indicate interim measures to any State party to the European Convention on Human Rights (ECHR). Interim measures are urgent measures which, according to the Court’s well-established practice, apply 1 See

for a comparison between the HRCtee and the ECtHR Keller and Marti 2013.

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only where there is an imminent risk of irreparable harm.2 Such measures are decided in connection with proceedings before the Court without prejudging any subsequent decisions on the admissibility or merits of the case in question. In the majority of cases, the applicant requests the suspension of an expulsion. The Court grants such requests when the applicant would otherwise face a real risk of serious and irreversible harm.3 ECtHR interim measures have been applied most commonly in cases where the applicant may be facing a real risk—when returned—to torture or inhuman and degrading treatment (Article 3 ECHR) or the applicants would fear for their lives (Article 2 ECHR). Interim measures may also be indicated in response to the right to a fair trial (Article 6 ECHR) and the right to respect for private and family life (Article 8 ECHR).4 Although interim measures are provided for only in the Rules of Court and not in the ECHR, states Parties are under an obligation to comply with them, as the ECtHR has clarified in its case law.5 In 2019, the total number of decisions on interim measures (1,570) was stable compared with 2018 (1,540). The Court granted requests for interim measures in 145 cases (an increase of 1% compared to 143 in 2018) and dismissed them in 544 cases (12% more than the 486 in 2018) (see Fig. 7.1). In the following, examples—from case law—are given to provide an understanding of the reasoning of the ECtHR in expulsion cases. From this, the underlying reasoning with regard to interim measures is construed—as the interim measures as such are very rarely motivated. The lack of consistent references to and explanations for the use of provisional measures necessitates an approach drawing conclusions from the factual situations, the rights claimed and the eventual decisions on the merits.6 The ECtHR has consistently held that the removal of an alien by a Contracting state may give rise to an issue under Articles 2 and 3, and hence engage the responsibility of that state under the Convention, where substantial grounds have been shown for believing that the person in question, if deported, would face a real 2 Rule

39: 1. The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to para 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. 2. Where it is considered appropriate, immediate notice of the measure adopted in a particular case may be given to the [Council of Europe] Committee of Ministers. 3. The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to para 4 of this Rule may request information from the parties on any matter connected with the implementation of any interim measure indicated. 4. The President of the Court may appoint Vice-Presidents of Sections as duty judges to decide on requests for interim measures. 3 All data retrieved from echr.coe.int, including the specific Factsheets on e.g. Interim Measures and the ECtHR case-law database HUDOC; https://hudoc.echr.coe.int. 4 See Chap. 9 (Leach) of this volume on the application of interim measures before the ECtHR in situations other than removal cases. 5 Three ECtHR Grand Chamber judgments (Mamatkulov and Askarov v Turkey, 4 February 2005 App nos 46827/99 and 46951/99; Paladi v the Republic of Moldova 10 March 2009, App no 39806/05; M.A. v France, 1 February 2018, App no 9373/15) have given the Court an opportunity to clarify this obligation, based particularly on Article 34 ECHR (individual applications). 6 Rieter 2010, p. 131. See also Marti 2019.

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Fig. 7.1 Rule 39 requests granted and refused in 2017, 2018 and 2019 by respondent State (Source European Court of Human Rights/Cour Européenne des Droits de l’Homme)

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risk7 of being subjected to treatment contrary to Articles 2 or 3 in the destination country. The finding by the Court in NA v. the United Kingdom8 that a real risk of illtreatment can be due to an individual being exposed to a general situation of violence on return is to be seen as a general statement of risk assessment, also influencing the arguability of a real risk needed for interim measures. Most non-refoulement cases in which interim measures are used involve the following situations of risk, which are discussed also to achieve more clarity on the level of risk that is required before interim measures are used: (1) risk of inhuman and degrading treatment for political, ethnic or religious reasons; (2) risk of ill-treatment related to sexual orientation; (3) risk of stoning for adultery/family vengeance; (4) risk of being subjected to female genital mutilation (FGM); (5) risk of social exclusion; (6) risk of sexual exploitation; and: (7) a risk to health (medical element). All these cases have a strong connection with protection against refoulement (the right not to be sent back to a place where there is a serious risk of persecution, torture, inhuman or degrading treatment).9 It is indicative to have this topic list, because states tend to challenge interim measures decisions not for the type of situation in which they are used, but because of the assessment of urgency pending the case.10 For states to have and maintain confidence in interim measures decisions, it should be clear how the existence of a real risk of irreparable harm is assessed. So in the following section this will be looked into, with a focus on the likelihood of jurisdiction and admissibility, indicating the existence of the right invoked, and indicating the risk. At the same time the ECtHR has to find a balance—when applying Rule 39—between these evidentiary requirements and not prejudging the merits.11 For each category (1—7), a division will be made in cases where an interim measure was granted and the outcome of the judgment (or decision) was (A) no violation of Article 3 ECHR;12 (B) a violation of Article 3 ECHR; (C) Other (e.g. a residence permit was granted during the procedure before the Court; a friendly settlement was reached; diplomatic assurances were given; or contact with the applicant was lost). In all the ECtHR cases discussed below (in para 7.2), an interim measure (Rule 39) was issued.

7 On

the assessment of risk, see Rieter 2010, pp. 817–832. NA v the United Kingdom, Judgment, 17 July 2008, App no 25904/07. 9 See also Rieter 2010, pp. 266–307. 10 Topic list on the basis of HUDOC (search within Judgments, Article 3 ECHR, Rule 39, 276 hits, adding expulsion 123 hits) and the Fact Sheet Interim Measures. Also HUDOC indicates the cases that are to be seen as key cases. The information acquired was supplemented with information from the—not freely accessible—Dutch database Vluchtweb. For this bird’s eye view the focus was on judgments. See on the supervision of the execution of judgments Glas 2019. 11 See also Keller and Marti 2015, para 27. See also Føllesdal 2013. 12 Out of the 123 hits, in 61 of the judgments no violation of Article 3 was found. 8 ECtHR,

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7.2.1 Risk of Inhuman and Degrading Treatment (Ill-Treatment) for Political, Ethnic or Religious Reasons (A) In the case F.H. v Sweden13 the Iraqi applicant alleged that, if deported to Iraq, he would face a real risk of being killed or subjected to torture or inhuman treatment on account of his Christian faith and background as a member of the Republican Guard and the Ba’ath Party. The Court decided to apply Rule 39 of the Rules of Court, requesting the Swedish Government to refrain from deporting the applicant until further notice. The application of Rule 39 was lifted when the Court’s judgment that the implementation of the deportation order against the applicant would not give rise to a violation of Articles 2 or 3 of the Convention became final.14 (B) By contrast, the Court can also find on the merits that returning the applicant would indeed violate Article 3 ECHR. The substance of interim measures used earlier to halt this return pending the proceedings, would then become permanent. This is can be seen in the case Y.P. and L.P. v. France,15 where the applicants had alleged that if they were returned to Belarus they would risk imprisonment and ill-treatment. The same goes for M.A. v. Switzerland.16 The applicant, an Iranian national, claimed that, if forced to return to Iran, he would face a real and serious risk of being arrested and tortured because of his active participation in demonstrations against the Iranian regime. An example of this also can be found in the case F.G. v. Sweden.17 The Court held that there would be a violation of Articles 2 and 3 of the Convention if the applicant were to be returned to Iran without a fresh and up-to-date assessment being made by the Swedish authorities of the consequences of his religious conversion.18 Also the ECtHR indicates that past ill-treatment provides a strong indication of a future, real risk of treatment contrary to Article 3, but the Court is of the view that the absence of past ill-treatment does not, by and of itself, rule out the existence of such a risk.19 (C) In addition, it is noteworthy that in a number of cases in which the ECtHR used Rule 39, the state in question granted a permanent residence permit. In such cases the applicant usually indicates that she will no longer wish to pursue the application before the Court. This was also the case in W.H. v. Sweden.20 This case concerned an asylum seeker’s threatened expulsion from Sweden to Iraq, where she alleged she would be at risk of ill-treatment as a single woman of Mandaean denomination, a 13 ECtHR,

F.H. v. Sweden, Judgment, 20 January 2009, App no 32621/06. recently ECtHR, S.A. v. The Netherlands, Judgment, 2 June 2020, App no 49773/15. 15 ECtHR, Y.P. and L.P. v. France, Judgment, 1 September 2010, App no 32476/06. 16 ECtHR, M.A. v. Switzerland, Judgment, 18 November 2014, App no 52589/13. 17 ECtHR, F.G. v. Sweden, Judgment GC, 23 March 2016, App no 43611/11. 18 See recently ECtHR, M.S. v. Slovakia and Ukraine, Judgment, 11 June 2020, App no 17189/11. 19 ECtHR, A.S.N. a.o. v The Netherlands, Judgment, 25 February 2020, App no 68377/17 530/18, paras 119 and 120. 20 ECtHR, W.H. v. Sweden, Judgment GC, 8 April 2015, App no 49341/10. 14 See

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vulnerable ethnic/religious minority. The Court decided to strike the application out of the Court’s list of cases. In a number of other cases (mainly decisions) the decision—in cases of expulsion—to lift the application of Rule 39 took place after the Registry lost contact with the applicant.21

7.2.2 Risk of Ill-Treatment Related to Sexual Orientation (C) In M.E. v. Sweden22 the Court decided to indicate to the Swedish Government, under Rule 39 of its Rules of Court, not to expel the applicant to Libya until further notice. This case concerned an asylum seeker’s threatened expulsion from Sweden to Libya, where he alleged he would be at risk of persecution and ill-treatment because he is a homosexual. The applicant was granted a residence permit in Sweden during the procedure, and the case was struck of the list. The same situation also goes for the case of A.S.B. v. the Netherlands.23 The applicant complained that, if expelled to Jamaica, he would face a real and personal risk of treatment in violation of Article 3 due to his homosexuality. The applicant was granted asylum in the Netherlands.24

7.2.3 Risk of Stoning for Adultery/Family Vengeance (B) In the case of Jabari v. Turkey25 the applicant fled to Turkey from Iran fearing that she would be convicted of having committed adultery, an offence under Islamic law, and sentenced to be stoned to death or flogged. The application of Rule 39 was lifted when the Court’s judgment finding that the implementation of the deportation order against the applicant would give rise to a violation of Article 3 of the Convention became final.26 Once a judgment becomes final, Rule 39 no longer applies, but in cases such as this, the order to halt the return becomes permanent.

21 ECtHR,

Abdollahi v Turkey, Decision, 3 November 2009, App no 23980/08. M.E. v Sweden, Judgment GC, 8 April 2015, App no 71398/12. 23 ECtHR, A.S.B. v the Netherlands, Decision, 10 July 2012 App no 4854/12. 24 See also the case of a homosexual Iranian man against Finland, ECtHR, A.E. v. Finland, Decision, 22 September 2015, App no 30953/11. 25 ECtHR, Jabari v Turkey, Judgment, 11 July 2000, App no 40035/98. 26 See also ECtHR, H.N. v the Netherlands, Decision, 31 March 2015, App No 20651/11 on family vengeance. 22 ECtHR,

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7.2.4 Risk of Being Subjected to Female Genital Mutilation (FGM) (A) In the Sow case27 the Court used Rule 39 pending the case but on the merits, it held that there was no violation of Article 3 ECHR in the event of the applicant’s removal to Guinea because the applicant had failed to show a real risk of being re-excised in the event of her return to her country of origin. (C) Also in a number of other cases with regard to a risk of being subjected to FGM, the Court decided to apply Rule 39. An example is the Abraham Lunguli v. Sweden case.28 The applicant alleged that she risked genital mutilation if returned to Tanzania. In this case, the Court decided to apply Rule 39 of the Rules of Court, requesting the Swedish Government to refrain from deporting the applicant pending the outcome of the proceedings before it. The case was struck out of the Court’s list of cases after the applicant was granted a permanent residence permit in Sweden. Other FGM cases the ECtHR declared inadmissible, because of a failure to substantiate that they would face a real and concrete risk of being subjected to female genital mutilation upon return.29 This case law and the views of UN Committees are the topic of a modest scale case study, in Sect. 7.4 of this chapter, to allow us to zoom in on assessment of risk.

7.2.5 Risk of Social Exclusion (B) In the case N. v. Sweden30 concerning the risk of ill-treatment in case of deportation to Afghanistan of a woman separated from her husband, the Court came to the conclusion that there would be a breach of Article 3 if the applicant had to go to Afghanistan. (C) Hossein Kheel was an Afghan national who faced being expelled on her own to Afghanistan, without her husband and children, who were Dutch nationals.31 In the light of plentiful information on the vulnerable situation of single women in Afghanistan and the applicant’s observation that she had no male relative who could protect her, the Court decided to apply Rule 39 of the Rules of Court and to request the authorities not to deport her until her application had been examined by the Court. The measure was lifted after the Dutch Government granted the applicant a residence permit.

27 ECtHR,

Sow v Belgium, Judgment, 19 January 2016, App no 27081/13. Abraham Lunguli v Sweden, Decision, 1 July 2003, App no 33692/00. 29 ECtHR, Collins and Akaziebie v Sweden, Decision, 8 March 2007, App no 23944/05. 30 ECtHR, N. v Sweden, Judgment, 20 July 2010, App no 23505/09. 31 ECtHR, Hossein Kheel, Decision, 16 December 2008, App no 34583/08. 28 ECtHR,

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7.2.6 Risk of Sexual Exploitation (C) M. v. the United Kingdom dealt with the alleged trafficking of the applicant.32 The applicant alleged that she had been trafficked and forced into prostitution in her country of origin, Uganda. In this case, the Court decided to apply Rule 39 of the Rules of Court, requesting the Government of the United Kingdom to refrain from expelling the applicant pending the outcome of the proceedings before it. The application was ultimately struck out after the government and the applicant reached a friendly settlement.

7.2.7 Expulsion Cases with a Risk to Health (Medical Element) (A) In the N. v. the United Kingdom33 case, the applicant, who was HIV-positive, claimed that to return her to Uganda would cause her suffering and lead to her early death, which amounted to inhuman and degrading treatment. The Court ruled that returning her would not give rise to a violation of Article 3 of the Convention. The applicant’s case did not disclose “very exceptional circumstances”. (B) By contrast, a decade previously, the applicant, who was diagnosed as HIV (human immunodeficiency virus)-positive and as suffering from acquired immunodeficiency syndrome (AIDS), maintained that his removal to St Kitts would expose him to inhuman and degrading treatment. The Court applied Rule 39 of its Rules of Court, requesting the Government of the United Kingdom not to deport the applicant, who was at an advanced stage of illness, because he would not have been able to receive medical treatment if he had been sent to his destination country. In this case, the Court took account of “very exceptional circumstances” and “compelling humanitarian considerations”: the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support.34 Very exceptional circumstances are also to be found in the case of Paposhvili v. Belgium.35 The applicant, who suffered from a number of serious medical conditions, including chronic lymphocytic leukaemia and tuberculosis, alleged in particular that substantial grounds had been shown for believing that if he would be expelled to Georgia he would face a real risk there of inhuman and degrading treatment and of a premature death. He died in June 2016. His relatives subsequently pursued his case before the Court. In its judgment, the Grand Chamber held in particular that there would have been a violation of Article 3 32 ECtHR,

M. v. the United Kingdom, Decision, 1 December 2009, App no 16081/08. N. v. the United Kingdom, Judgment GC, 27 May 2008, App no 26565/05, para 51. 34 ECtHR, D. v. the United Kingdom, Judgment, 2 May 1997, App no 30240/96. 35 ECtHR, Paposhvili v. Belgium, Judgment GC, 13 December 2016, App no 41738/10. 33 ECtHR,

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of the Convention if the applicant had been removed to Georgia without the Belgian authorities having assessed the risk faced by him in the light of the information concerning his state of health and the existence of appropriate treatment in Georgia. In conclusion, it turns out that in this bird’s eye view alone already 7 topics (1–7) and 6 different outcomes (A–C) emerged, meaning that in theory (and perhaps also in practice) 42 situations are already possible. In order to draw general conclusions, more cases should be looked into.

7.3 Protection Against Expulsion Before the UN Committees; Urgency and Reasoning There are currently ten human rights treaty bodies that monitor implementation of the core international human rights treaties, which are committees of independent experts.36 These are the Human Rights Committee (HRCtee, also CCPR, monitoring the ICCPR); Committee on Economic, Social and Cultural Rights (CESCR); Committee on the Elimination of Racial Discrimination (CERD); Committee on the Elimination of Discrimination against Women (CEDAW); Committee against Torture (CAT); Committee on the Rights of the Child (CRC); Committee on Migrant Workers (CMW); Committee on the Rights of Persons with Disabilities (CRPD) and the Committee on Enforced Disappearances (CED). These treaty bodies monitor implementation of the core international human rights treaties. This includes the task of dealing with individual complaints, if the state addressed has recognised the right of individual complaint. The tenth treaty body, the Subcommittee on Prevention of Torture, established under the Optional Protocol to the Convention against Torture, monitors places of detention in States parties to the Optional Protocol. The ability of individuals to complain about the violation of their rights in an international arena brings real meaning to the rights contained in the human rights treaties. Not all treaty-based complaint mechanisms have entered into force. Currently, eight of the human rights treaty bodies (HRCtee, CERD, CAT, CEDAW, CRPD, CED, CESCR and CRC) may, under certain conditions, receive and consider individual complaints or communications from individuals. Anyone can lodge a complaint with a Committee against a state that is party to the treaty in question, for the rights which have allegedly been violated. This state must have accepted the Committee’s competence to examine individual complaints, either through ratification or accession to an Optional Protocol (in the case of ICCPR, CEDAW, CRPD, ICESCR and CRC) or by making a declaration to that effect under a specific article of the Convention (in the case of CERD, CAT, CED and CMW). Complaints may also be brought by third parties on behalf of individuals, provided they have given their written consent 36 For more information visit https://www.ohchr.org/EN/pages/home.aspx; all information regarding

the UN-Committees and the content of their views were retrieved from this website. We are aware that from 2012 on CAT is issuing decisions instead of views, but for purposes of this book we are using the term view for all Committees alike.

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(without requirement as to its specific form). In certain cases, a third party may bring a case without such consent, for example, where a person is in prison without access to the outside world or is a victim of an enforced disappearance. In such cases, the author of the complaint should state clearly why such consent cannot be provided. With a focus on halting expulsion and with a view to the case study, four UN committees will be dealt with: the HRCtee, CEDAW, CRC and CAT.37 The HRCtee may consider individual communications alleging violations of the rights set forth in the International Covenant on Civil and Political Rights by States parties to the First Optional Protocol to the International Covenant on Civil and Political Rights. CEDAW may consider individual communications alleging violations of the Convention on the Elimination of All Forms of Discrimination against Women by States parties to the Optional Protocol to the Convention on the Elimination of Discrimination against Women. CAT may consider individual complaints alleging violations of the rights set out in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by States parties who have made the necessary declaration under Article 22 of the Convention. CRC may consider individual communications alleging violations of the Convention on the Rights of the Child or its two first Optional Protocols on the sale of children, child prostitution and child pornography (OPSC), and on the involvement of children in armed conflict (OPAC) by State Parties to the Third Optional Protocol on a communications procedure (OPIC). All four Committees may issue interim measures to halt expulsion. The argument put forward by states of the non-binding status of interim measures requests rests in part on the lack of any express mention of their issuance or use in the older UN human rights treaties.38 In newer treaties the consideration of individual communications, the issuance of interim measures is provided for, as this may be necessary to avoid irreparable damage to the victims of alleged violations. Also—when it comes to interim measures before the UN-Committees— upholding the non-refoulement principle seems to be quintessential. This is clearly the case with regard to the CAT; General Comment No. 4 is to provide guidance on the implementation of the obligation to not expel, return (refouler) or extradite in circumstances where an individual would be in danger of being subjected to torture or other ill-treatment (Article 3 Convention against Torture); and also with regard to the HRCtee, in General Comment No. 33: ‘failure to implement such interim or provision measures is incompatible with the obligation to respect in good faith the procedure of individual communication established under the Optional Protocol’.39 Most of the individual communications received by the CAT have been concerned with alleged violations of the non-refoulement obligation in the context of orders for deportation, expulsion or extradition. 37 On

CAT, interim measures and the position of Canada, see Chap. 6 (Harrington) in this volume. Chap. 6 (Harrington) in this volume. She mentions the ICCPR and CAT. 39 CAT, General Comment No 4 (2017) on the implementation of Article 3 of the Convention in the context of Article 22, CAT/C/GC/4 (2018). HRC, General Comment No 33 (2009), CCPR/C/GC/33, para 19. See also HRC General Comment No 31 (2004), CCPR/C/21/Rev.1/Add. 1326. 38 See

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Requests for interim measures are made when necessary to avoid irreparable damage to the victim or victims of an alleged violation of Article 3 of the Convention. CAT takes the view that the State party should comply with the Committee’s request in good faith.40 Moreover, the Committee takes the position that non-compliance with its request for interim measures constitutes a breach of the treaty provision that provides for the Committee’s consideration of individual complaints.41 This conclusion rests on the universally accepted international legal rule requiring states to perform their treaty obligations in good faith.42 In the following, examples taken from merits decisions (‘Views’) are given to understand the reasoning of the Committees in expulsion cases. Again, as said before with regard to the ECtHR’s interim measures, the lack of consistent references to, and explanations for, the use of provisional measures necessitates an approach drawing conclusions from the factual situations, the rights claimed and the eventual decisions on the merits.43 From this, the underlying reasoning with regard to interim measures is construed. Just as with regard to the ECtHR judgments, an indicative topic list is drawn up (views of all four Committees taken together).44 It appears that the UN adjudicators also use—just like the ECtHR—a real risk criterion on the merits of the case. At the stage of interim measures there has to be at least some likelihood (sufficient indication) of the risk.45 A persuasive pattern of gross human right violations may suffice. At the merits stage this risk is fully assessed. Most non-refoulement cases in which interim measures are used involve the following situations of risk, which are discussed also to achieve more clarity on the level of risk that is required before interim measures are used: In effect the topics overlap largely with the earlier identified categories in ECtHR cases in which an interim measure was granted, being: (1) risk of torture, inhuman and degrading treatment for political, ethnic or religious reasons (including forced confessions; (2) risk of ill-treatment related to sexual orientation; (3) risk of stoning for adultery/family vengeance; (4) risk of being

40 CAT, General Comment No 4 (2017), para 36. See for cases where this good faith was breached HRCtee, Ahani v Canada, View, 15 June 2002, Comm No 1051/2002, CCPR/C/80/D/1051/2002; CAT, Villamar v Canada, View, 25 November 2004, Comm No 163/2000, CAT/C/33/D/1 63/2000; CAT, Adel Tebourski v France, View, 11 May 2007, Comm No 300/2006, CAT/C/38/D/300/2006; CAT, Nadeem Ahmad Dar v Norway, View, 16 May 2007, Comm No 249/2004, CAT/C/38/D/249/2004. 41 Naldi 2004; McLachlan 2005. 42 Article 26 Vienna Convention on the Law of Treaties. See further Chap. 4 (Pillay). 43 Rieter 2010, p. 131. 44 Database https://juris.ohchr.org/ (issue: interim measure, adopted views by CAT, CEDAW, CRC, CCPR, 122 hits). The information acquired was supplemented with information from the—not freely accessible—Dutch database Vluchtweb. In the context of this bird’s eye view, views were examined, but not other decisions. 45 Other formal criterions for admissibility of the individual complaint will have to be taken into account as well, like is the complainant (or the person on whose behalf the complaint is brought) a victim of the alleged violation? Is the complaint compatible with the provisions of the treaty invoked? Has the same matter been submitted to another international body? Is the complaint an abuse of the procedure?

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subjected to genital mutilation; (5) risk of social exclusion; (6) risk of sexual exploitation; (7) a health risk (medical element); and (8) risks for a child’s well-being. Also a division is made with regard to the outcome of these views (A) no violation (B) violation (C) other (e.g. diplomatic assurances were given). In all the views discussed below, an interim measure was issued.

7.3.1 Risk of Torture, Inhuman and Degrading Treatment for Political, Ethnic or Religious Reasons (Including Forced Confessions) (A) In one of the older views of the CAT (1997), the author argues that if forced to return to Sudan he would face an investigation in which torture is commonly used.46 The Committee decided to request Switzerland not to expel the author to Sudan while the communication was under examination by the Committee. Switzerland states that it is will defer the author’s expulsion, but also argues: ‘The State party notes, however, that the Committee has asked for interim measures in the majority of all cases transmitted to it, and expresses its concern that the authors are using the Committee as a further appeal instance, allowing a suspension of the expulsion for at least six months.’47 The CAT then considers that the information before it does not show that substantial grounds exist for believing that the author will be personally at risk of being subjected to torture if he is returned to Sudan. According to the CAT they must assess whether there are grounds to believe that the complainant would be in personal danger of being subjected to torture on returning. In order to reach this conclusion, the Committee must take into account all relevant considerations, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights. The CAT recalls, however, that the aim is to determine whether the individual concerned would personally risk torture in the country to which he or she would return. It follows that the existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country does not as such constitute sufficient grounds for determining whether the particular person would be in danger of being subjected to torture upon his return to that country; additional grounds must be adduced to show that the individual concerned would be personally at risk. Conversely, the absence of a consistent pattern of gross violations of human rights does not mean that a person may not be considered to be in danger of being subjected to torture in his or her specific circumstances.48

46 CAT,

X. v Switzerland, View, 28 April 1997, Comm No 27/1995, CAT/C/18/D/27/1995.

47 CAT, X. v Switzerland, View, 28 April 1997, Comm No 27/1995, CAT/C/18/D/27/1995, para 5.1. 48 CAT, J.A.G.V. v. Sweden, View, 18 November 2003, Comm No 215/2002, CAT/C/31/D/215/2002.

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(B) In 2019, in the case of Q.A. v Sweden49 the HRCtee concludes that, owing to the author’s intersecting forms of vulnerability, combined with the multiple riskenhancing factors, he would face serious adverse consequences in the country of origin which would put him at risk of irreparable harm.50 The Committee notes that the migration authorities nonetheless assessed each of the grounds for protection that the author alleged separately and did not assess the fact that the combined grounds aggravated the risk faced by the author, even though he was facing intersecting forms of vulnerability. This approach led the authorities to conclude that the author had failed to establish sufficient grounds to substantiate that he would face irreparable harm if returned to Afghanistan. The importance of interim measures is stressed by the CAT. The CAT concluded in the Agiza v Sweden case51 that nonrefoulement under CAT is absolute even in context of national security concerns and that insufficient diplomatic assurances were obtained by the sending country. Also the importance of interim measures is stressed: “In order for this exercise of the right of complaint to be meaningful rather than illusory, however, an individual must have a reasonable period of time before execution of a final decision to consider whether, and if so to in fact, seize the Committee under its Article 22 jurisdiction. In the present case, however, the Committee observes that the complainant was arrested and removed by the State party immediately upon the Government’s decision of expulsion being taken; indeed, the formal notice of decision was only served upon the complainant’s counsel the following day. As a result, it was impossible for the complainant to consider the possibility of invoking Article 22, let alone seize the Committee. As a result, the Committee concludes that the State party was in breach of its obligations under Article 22 of the Convention to respect the effective right of individual communication conferred thereunder.”52 (C) In the case of Attia v Sweden,53 the CAT expressed itself satisfied with the assurances provided.

7.3.2 Risk of Ill-Treatment Related to Sexual Orientation (A) In the case of A.E. v. Sweden54 the author identifies as homosexual. He applied for asylum, alleging a risk of persecution by Boko Haram, without claiming any risk relating to his sexual orientation. The HRCtee concludes that the information 49 HRCtee, Q.A. v. Sweden, View, 30 October 2019, Comm No 3070/2017, CCPR/C/127/3070/2017. Since 2012 CAT uses the term Decisions instead of Views. We will be using Views. 50 See also CAT, S.S.E. v Australia, View, 25 May 1999, Comm No 120/1998, CAT/C/22/D/120/1998, with regard to Somalia. 51 CAT, Agiza v Sweden, View, 20 May 2005, Comm No 233/2003, CAT/C/34/D/233/2003. 52 CAT, Agiza v Sweden, View, 20 May 2005, Comm No 233/2003, CAT/C/34/D/233/2003, para 13.9. 53 CAT, Attia v Sweden, View, 24 November 2003, Comm No 199/2002, CAT/C/31/D/199/2002. 54 HRCtee, A.E. v Sweden, View, 13 March 2020, No 3300/2019, CCPR/C/128/D/3300/2019.

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before it does not demonstrate that the author would face a real and personal risk of treatment contrary to Article 7 of the Covenant in the event of his removal to Nigeria.

7.3.3 Risk of Stoning for Adultery/Family Vengeance (B) In a case before CEDAW, the author of the communication, R.S.A.A. (a Palestinian refugee from the Syrian Arab Republic), claims that the deportation from Denmark to Jordan would violate rights under Articles 1 and 2(d), read in conjunction with Article 2(e) and (f), and Article 15(4)of the Convention.55 In the present case, the Committee considers that it was ‘incumbent upon the State party to undertake an individualized assessment of the real, personal and foreseeable risk that the author would face, as a woman who has knowingly abandoned her violent husband and fled Jordan with their two minor daughters who were at risk of forced marriage there, rather than relying exclusively on a number of inconsistent statements and the inferred non-credibility of the author’.56 The Committee concludes that the State party failed to give sufficient consideration to the real, personal and foreseeable risk of serious forms of gender-based violence faced by the author and her daughters should they be returned to Jordan.

7.3.4 Risk of Being Subjected to FGM (B) The CRC concluded that deportation of a girl to Somalia, where she alleged a risk of being forcefully subjected to female genital mutilation, would amount to a breach of Articles 3 and 19 of the Convention on the Rights of the Child, in the case of I.A.M. v Denmark.57 The HRCtee came to the conclusion, in the case of Kaba v Canada that the removal of the author’s daughter to Guinea would constitute a violation of Article 7 and Article 24, para 1, of the Covenant.58 These views and ECtHR case law are the topic of a modest scale case-study, see Sect. 7.4.

55 CEDAW, R.S.A.A. v Denmark, View, 15 July 2019, Comm No 86/2015, CEDAW/C/73/D/86/2015. 56 CEDAW, R.S.A.A. v Denmark, View, 15 July 2019, Comm No 86/2015, CEDAW/C/73/D/86/2015,

para 8.5. I.A.M. v Denmark, View, 25 January 2018, Comm No 3/2016, CRC/C/77/D/3/2016. 58 HRCtee, Kaba v Canada, View, 25 March 2010, Comm No 1465/2006, CCPR/C/98/D/1465/2006. 57 CRC,

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7.3.5 Risk to Health (Medical Element) (B) The HRCtee concludes that—in the case of an Iranian national in Australia—in circumstances where the State party has recognized a protection obligation towards the author, the Committee considers that deportation of the author to a country where it is unlikely that he would receive the treatment necessary for the illness caused, in whole or in part, because of the State party’s violation of the author’s rights would amount to a violation of Article 7 of the Covenant.59

7.3.6 Risks for a Child’s Well-Being (B) In the case of D.T. v Canada,60 the author of the communication is a national of Nigeria, born in 1980. She submits the communication on her own behalf and on behalf of her minor son, A.A., a Canadian national born in 2004. The HRCtee concluded that because of the issuance of a removal order against the author, she was faced with the choice of leaving her 7-year-old behind in Canada, or exposing him to a lack of the medical and educational support on which he was dependent. What can be derived from these Views and from the fact that at an earlier stage the Committees had taken interim measures, is that they apply criteria that appear similar to those now explicitly listed by the ICJ being: prima facie jurisdiction on the main application, plausibility, link between the interim measures requested and the rights claimed on the merits, urgency and irreparable damage.61 Especially the linkage between the general situation in the country of origin and the plausibility of non-refoulement in light of the individual circumstances, may also play a role in deciding interim measures. Following from this case law the absolute nature of non-refoulement—and the necessity to uphold this via interim measures—seems to be enhanced during the last 10 years.

59 HRCtee, C. v Australia, View, 13 November 2002, Comm No 900/1999, CCPR/C/76/D/900/1999. 60 HRCtee, D.T. v Canada, View, 4 August 2011, Comm No 2081/2011, CCPR/C/117/D/2081/2011. 61 See e.g. ICJ Order for provisional measures in Application of the International Convention for the

Suppression of the Financing of Terrorism and of the International Convention on the Elimination of all forms of Racial Discrimination (Ukraine v Russian Federation), 19 April 2017, para 99. See also Miles 2013, p. 672.

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7.4 Case Study: Gender-Related Human Rights Infringements: Female Genital Mutilation 7.4.1 Introduction FGM includes procedures that intentionally alter or cause injury to the female genital organs for non-medical reasons. This harmful traditional practice is most common in the western, eastern, and north-eastern regions of Africa; in some countries in Asia and the Middle East; and among migrant and refugee communities from these areas in Europe, Australia, New Zealand, Canada and the United States of America. FGM is recognized internationally as a violation of the human rights of girls and women. The practice also violates a person’s rights to health, security and physical integrity; the right to be free from torture and cruel, inhuman or degrading treatment; and the right to life when the procedure results in death.62 As such, the identification of potential gender-specific elements in an asylum claim is an important and necessary step in the examination of applications. Asylum claims on FGM grounds are particularly complex. The UNHCR 2009 Guidance Note on Refugee Claims relating to Female Genital Mutilation provides guidance on the adjudication of these claims. Based on the evolving jurisprudence regarding such claims, the Note establishes that a girl or woman seeking asylum because she has been compelled to undergo, or is likely to be subjected to FGM, can qualify for refugee status under the 1951 Convention relating to the Status of Refugees. Under certain circumstances, a parent could also establish a well-founded fear of persecution, within the scope of the 1951 Convention refugee definition, in connection with the exposure of his or her child to the risk of FGM. States’ obligations not to return or expel an individual may be based solely on a risk of treatment that breaches the rights enshrined in the ECHR, without the necessity that the treatment be on account of one or more of the five grounds enshrined in the Refugee Convention.63 So in all these kind of cases the non-refoulement obligation of states plays an important role.

62 UNHCR

2013, p. 2. See also UN General Assembly, Resolution “Intensifying global efforts for the elimination of female genital mutilations”, sixty-seventh session, 16 November 2012, A/C.3/67/L.21/Rev.1. 63 Parliamentary Assembly of the Council of Europe, Report on Gender-Related Claims for Asylum, doc 12350, 26 July 2010.

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7.4.2 Urgency and Reasoning In this section the case law (judgments and views) of the ECtHR,64 CAT, HRCtee, CEDAW and CRC with regard to FGM will be looked into more closely.65 The published case law will be looked at in chronological order, and also including cases in which no interim measures were issued. Special attention will be given to two cases regarding FGM in Guinee, because these—very similar—cases were dealt with by the ECtHR and the CAT, and in both cases interim measures were issued.66 But the outcome was different. In the case before the ECtHR a violation of Article 3 ECHR was not found, due to a lack of substantiation. In the case before the CAT a violation of Article 3 was found.67 CEDAW has issued a specific General Recommendation on Female Circumcision.68 In the ECtHR case of Abraham Lunguli v Sweden,69 the Court decided to apply Rule 39. The applicant alleged that she risked genital mutilation if returned to Tanzania. The case was struck out of the Court’s list of cases after the applicant was granted a permanent residence permit in Sweden. For instance also a number of cases regarding FGM were decided to be inadmissible, because of a failure to substantiate that they would face a real and concrete risk of being subjected to female genital mutilation upon return. In these cases it was not in dispute that subjecting a child or adult to FGM would amount to ill-treatment contrary to Article 3 ECHR.70 In the case of Collins and Akaziebie v Sweden an interim measure had been issued, but the ECtHR concluded that the alleged risk of being subjected to female genital mutilation in case of extradition to Nigeria, could not be substantiated.71 In the ECtHR case of X. v. The Netherlands an interim measure was issued and before the ECtHR decided on the merits, a residence permit was issued.72 The ECtHR shows a mixed practice. In these cases the ECtHR ordered interim measures, but there is no merits judgment. In some cases a petition was later declared inadmissible for insufficient 64 See on the case law of the ECtHR on this topic Middelburg and Balta 2016. See also Wikholm et al. 2020. 65 Case law (judgments and views) from databases HUDOC and OHCHR jurisprudence (FGM gives 12 HUDOC hits and 22 OHCHR hits), supplemented with information from the—not freely accessible—Dutch database Vluchtweb. 19 cases were looked into in more detail (5 ECtHR, 9 CAT, 3 CEDAW, 1 CRC, 1 HRCtee). 66 ECtHR, Sow v Belgium, Judgment, 19 January 2016, App no 27081/13 and CAT, FB v the Netherlands, View, 15 December 2015, Comm No 613/2014, CAT/C/56/D/613/2014. 67 See for CAT, General Comment No 2, 2007, para 18 on FGM. 68 CEDAW, General Recommendation No 14, 1990, UN Doc A/45/38. 69 ECtHR, Abraham Lunguli v Sweden, Decision, 1 July 2003, App no 33692/00 (Tanzania). 70 See e.g. ECtHR, Izevbekhai v Ireland, Decision, 17 May 2011, App No 43408/08 (Nigeria), para 73. 71 ECtHR, Collins and Akaziebie v Sweden, Decision, 8 March 2007, App No 23944/05 (Nigeria). The same line of reasoning is to be found in ECtHR, Izevbekhai v Ireland, Decision, 17 May 2011, App No 43408/08 (Nigeria); ECtHR, Omeredo v Austria, Decision, 20 September 2011, App No 8969/10 (Nigeria). 72 ECtHR, X. v The Netherlands, Interim Measure, 14 June 2012, App No 404/11 (Guinee).

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substantiation, but other cases, both older (2003) and more recent (2012), did not get to the merits because a residence permit was granted. The HRCtee, in the case of Kaba v Canada, acting through its Special Rapporteur on New Communications and Interim Measures, requested the State party, under Rule 92, not to remove the author and her daughter to Guinea.73 The Committee recalls that states parties are under an obligation not to expose individuals to a real risk of being killed or subjected to torture or cruel, inhuman or degrading treatment or punishment upon entering another country by way of their extradition, expulsion or refoulement. In this connection, there is no question that subjecting a woman to genital mutilation amounts to treatment prohibited under Article 7 of the Covenant. Nor is there any question that women in Guinea traditionally have been subjected to genital mutilation and to a certain extent are still subjected to it. According to the HRCtee, at issue is whether the author’s daughter runs a real and personal risk of being subjected to such treatment if she returns to Guinea.74 Although the risk of excision decreases with age, the Committee is of the view that the context and particular circumstances of the case at hand demonstrate a real risk of Fatoumata Kaba being subjected to genital mutilation if she was returned to Guinea. The CEDAW, in the case of M.N.N. v Denmark, pursuant to Article 5(1) of the Optional Protocol and rule 63 of its rules of procedure, requested the State party to refrain from expelling the author to Uganda.75 CEDAW responds to the State party’s argument that, unlike other human rights treaties, the Convention does not deal, directly or indirectly, with removal to torture or other serious threats to the life and the security of a person. It recalls that in General Recommendation it also determined that such gender-based violence impaired or nullified the enjoyment by women of a number of human rights and fundamental freedoms, which included the right to life, the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment, the right to liberty and security of the person and the right to equal protection under the law.76 The Committee further notes that, under international human rights law, the principle of non-refoulement imposes a duty on States to refrain from returning a person to a jurisdiction in which he or she may face serious violations of human rights, notably arbitrary deprivation of life or torture or other cruel, inhuman or degrading treatment or punishment. The principle of non-refoulement also constitutes an essential component of asylum and international refugee protection.77 CEDAW, in this decision, refers to all the other non-refoulement obligations in the UN framework, including some of the views concerning this obligation. In the end, CEDAW concludes that in the circumstances, 73 HRCtee, Kaba v Canada, View, 25 March 2010, Comm No 1465/2006, CCPR/C/98/D/1465/2006 (Guinee). 74 HRCtee, Kaba v Canada, View, 25 March 2010, Comm No 1465/2006, CCPR/C/98/D/1465/2006 (Guinee), para 10.1. 75 CEDAW, M.N.N. v Denmark, Decision, 15 July 2013, Comm No 33/2011, CEDAW/C/55/D/33/2011 (Uganda). 76 CEDAW, General Recommendation No. 19: Violence against women, 1992. 77 CEDAW, M.N.N. v Denmark, Decision, 15 July 2013, Comm No 33/2011, CEDAW/C/55/D/33/2011 (Uganda), para 8.8.

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and in the absence of any other pertinent information on file, the author has failed to sufficiently substantiate, for purposes of admissibility, the claim that her removal from Denmark to Uganda would expose her to the real, personal and foreseeable risk of serious forms of gender-based violence.78 In the F.B. v The Netherlands case before the CAT, pursuant to rule 114, para 1, of its rules of procedure, the Committee, acting through its Rapporteur on new complaints and interim measures, requested the State party to refrain from returning the complainant to Guinea while her complaint was being considered by the Committee.79 The Committee must evaluate whether there are substantial grounds for believing that the complainant would be personally in danger of being subjected to torture upon return to Guinea. In assessing that risk, the Committee must take into account all relevant considerations, pursuant to Article 3(2) of the Convention, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights. However, the Committee recalls that the aim of such determination is to establish whether the individual concerned would be personally at a foreseeable and real risk of being subjected to torture in the country to which he or she would be returned. It follows that the existence of a pattern of gross, flagrant or mass violations of human rights in a country does not as such constitute sufficient reason for determining that a particular person would be in danger of being subjected to torture on return to that country; additional grounds must be adduced to show that the individual concerned would be personally at risk. Conversely, the absence of a consistent pattern of flagrant violations of human rights does not mean that a person might not be subjected to torture in his or her specific circumstances.80 In the present case, the CAT takes note of the complainant’s allegations that, should she be returned to Guinea, she would be subjected to female genital mutilation by her relatives or other members of Guinean society. The Netherlands, awaiting the outcome of the case, issued F.B. a residence permit afterwards. In the Sow case, in which an interim measure was issued, the Court held that there was no violation of Article 3 ECHR in the event of the applicant’s removal to Guinea because the applicant had failed to show a real risk of being re-excised in the event of her return to her country of origin.81 In another ECtHR case—no interim measure was taken -, the applicants complained under Article 3 of the Convention that there was a real risk that the second and third applicants would be exposed to FGM if they were to be expelled to Sudan.82 It is not in dispute that subjecting a child or adult to 78 Comparable

outcomes in CEDAW, S.F.A. v Denmark, Decision, 26 February 2018, Comm No 85/2015, CEDAW/C/69/D/85/2015 (Somalia); CEDAW, S.A.O. v Denmark, Decision, 29 October 2018, Comm No 101/2016, CEDAW/C/71/D/101/2016 (Somalia). Only in these two CEDAW cases no interim measures were requested. 79 CAT, F.B. v The Netherlands, View, 20 November 2015, App No 613/2014, CAT/C/56/D/613/2014 (Guinee). 80 CAT, F.B. v The Netherlands, View, 20 November 2015, App No 613/2014, CAT/C/56/D/613/2014 (Guinee), para 8.3. 81 ECtHR, Sow v Belgium, Judgment, 19 January 2016, App No 27081/13 (Guinee). 82 ECtHR, R.B.A.B. a.o. v The Netherlands, 7 June 2016, App No 7211/06 (Sudan).

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FGM amounts to treatment proscribed by Article 3 ECHR.83 The Court concludes that the question of whether a girl or young woman will be circumcised in Sudan is mainly one of parental choice and finds it established that when parents oppose FGM they are able to prevent their daughter(s) from being subjected to this practice against their wishes.84 The CAT concluded, in the case of R.O. v Sweden (interim measure in place), that in the light of the earlier considerations and on the basis of all the information submitted to the Committee by the parties, the Committee considers that the complainant has not provided sufficient evidence to enable it to conclude that her and her daughters’ removal to Italy or their country of origin would expose them to a foreseeable, real and personal risk of ill-treatment.85 In a case before the CRC, I.A.M. v Denmark, based on Article 6 of the Optional Protocol, on 16 February 2016, the Working Group on Communications, acting on behalf of the Committee, requested that the State party refrain from returning the author and her daughter to their country of origin while their case was under consideration by the Committee.86 The CRC recalls its General Comment No. 6 that States shall not return a child to a country where there are substantial grounds for believing that there is a real risk of irreparable harm to the child, such as, but by no means limited to, those contemplated under articles 6 and 37 of the Convention; and that such non-refoulement obligations apply irrespective of whether serious violations of those rights guaranteed under the Convention originate from non-state actors or whether such violations are directly intended or are the indirect consequence of action or inaction. The assessment of the risk of such serious violations should be conducted in an age and gender-sensitive manner.87 The CRC draws the conclusion that the State party failed to consider the best interests of the child when assessing the alleged risk of the author’s daughter being subjected to female genital mutilation if deported to Puntland and to take proper safeguards to ensure the child’s well-being upon return, in violation of articles 3 and 19 of the Convention.88 With regard to the case K. and K. v. The Netherlands, at its meeting on 3 May 2019, the Committee, having been informed that the complainants, who are mother and daughter, had received regular residence permits valid until 2023, decided to discontinue the consideration of the communication.89 83 ECtHR,

R.B.A.B. a.o. v The Netherlands, 7 June 2016, App No 7211/06 (Sudan) para 54. also ECtHR, R.D. v France, Judgment, 16 September 2016, App No 34648/14 (Guinee). 85 CAT, R.O. v. Sweden, Decision, 18 November 2016, Comm No 644/2014, CAT/C/59/D/644/2014 (Nigeria). 86 CRC, I.A.M. v. Denmark, View, 25 January 2018, Comm No 003/2016, CRC/C/77/D/3/2016 (Somalia). 87 CRC, I.A.M. v. Denmark, View, 25 January 2018, Comm No 003/2016, CRC/C/77/D/3/2016 (Somalia), para 11.3. 88 CRC, I.A.M. v. Denmark, View, 25 January 2018, Comm No 003/2016, CRC/C/77/D/3/2016 (Somalia), para 11.9. 89 CAT, K. and K. v. The Netherlands, Decision, 3 May 2019, Comm No 760/2016, CAT/C/66/D/760/2016 (Sierra Leone). 84 See

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The last case to be discussed here is CAT, M.J.S. v. The Netherlands.90 In this case an interim measure was issued. The complainant’s mother unsuccessfully sought asylum in the Netherlands after she was forced to marry a man in Côte d’Ivoire without her consent. When the complainant was born, the mother applied for asylum on her daughter’s behalf since the baby risked being circumcised if returned to Côte d’Ivoire. The Committee recalls that female genital mutilation causes permanent physical harm and severe psychological pain to the victims, which may last for the rest of their lives, and considers that the practice of subjecting a woman to female genital mutilation is contrary to the obligations enshrined in the Convention. The Committee also recalls that the so-called “internal flight alternative”, as suggested by the State party, is not always a reliable or effective remedy.91 The State party had referred to the successful prosecution by the Government of Côte d’Ivoire in some female genital mutilation cases in 2017. Against that background, the Committee observes that the complainant has failed to show that someone in her family specifically will pressure her mother, who is clearly against female genital mutilation, into practicing the procedure, which will put her at real and personal risk of being subjected to such mutilation. The Committee refers to para 38 of its general comment No. 4, according to which the burden of presenting an arguable case lies with the complainant. In the Committee’s opinion, the complainant has not discharged that burden of proof in the present case. CAT concludes that the complainant has not adduced sufficient grounds for it to believe that she would run a real, foreseeable, personal and present risk of being subjected to torture upon returning to Côte d’Ivoire. The ECtHR has repeatedly emphasized in its decisions that subjecting a girl or woman to FGM amounts to ill-treatment contrary to Article 3 of the ECHR. Also the UN Committees have noted that FGM amounts to torture, inhuman and degrading treatment. In the majority of the cases a violation however is not found. The recurrent reasoning behind this is that the cases are ill-founded, or the applicant is not credible. Also it was considered that an internal flight alternative was an alternate option for the applicant. Or in other cases the applicants were granted residence permits in the defendant country and therefore the case was struck out and no judgment followed. It has to be acknowledged than the majority of cases, the ECtHR and the UN Committees availed themselves of interim measures to stay the expulsion of the applicants. The number of merits decisions on FGM is still limited. Nevertheless, taking the available information on the cases discussed above, it becomes clear that in most FGM cases the ECtHR and the UN Committees did use interim measures. It is significant that the ECtHR and the UN Committees considered that FGM reached the threshold of ‘imminent risk of irreparable damage’ required to impose an interim measure. Often the cases were subsequently declared inadmissible because of the difficulty for the applicant to substantiate the risk, or the case did not reach the merits because the applicant received a residence permit subsequent to the interim measures 90 CAT, M.J.S. v. The Netherlands, View, 3 May 2019, Comm No 757/2016, CAT/C/66/D/757/2016

(Ivory Coast). 91 CAT, M.J.S. v. The Netherlands, View, 3 May 2019, Comm No 757/2016, CAT/C/66/D/757/2016

(Ivory Coast), para 8.7.

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decision. The application of an interim measure as such may have led to the issuing of a residence permit by the state concerned, but the causal link is difficult to establish.92 Also it is important to notice that—in the course of time—the different adjudicators refer to each other’s case law. Especially the UN Committees refer to the ECtHR. The UN Committees between themselves seem to do this less often. Also the ECtHR relies mainly on its own case law. The persuasiveness and effectiveness of these interim measures could be perhaps enhanced by improved coordination between treaty bodies.

7.4.3 Does the Forum Matter? Looking at the foregoing, a number of considerations come to mind with regard to the choice of forum. An important aspect is the expertise of the treaty bodies, and linked to that are the substantive provisions of the treaties. Rights contained in more than one treaty may differ in terms of their specificity, breadth and the categories of people they protect. Also the already existing case law and General Comments or Recommendations by the Committees should be taken into account. Sometimes also relevant for deciding a forum may be the time needed to decide a case and the possibility/success rate to request an interim measure.93 Moreover, it may be possible to choose between a regional body (like the ECtHR) and the UN Committees. The foregoing considerations apply for choosing between UN Committees, but also for the choice between a UN Committee or a regional Court, like the ECtHR. However, if the complaint is pending before another treaty body or a regional mechanism such as the ECtHR, the African Commission on Human and Peoples’ Rights or the African Court on Human and Peoples’ Rights, the UN Committees cannot examine the complaint. If the state has not made reservations to this possibility, the HRCtee can examine a consecutive complaint that was previously dealt with by another adjudicator, but the same matter may not be dealt with by another adjudicator at the same time. For the purposes of urgent intervention most adjudicators may still accept a complaint, but subsequent to any initial interim measures the petitioner must choose which complaint she will maintain. For legal practitioners, of course the likelihood of obtaining a favourable outcome weighs heavily. As Harrington pointed out, ‘(f)or the vast majority of lawyers and judges within a national legal system, terms like “communication”, “author”, “views” and “requests” simply do not resonate (…). Indeed, the entire architecture of the international human rights system does not pay sufficient attention to the user’s perspective’.94 This may 92 See

also Middelburg and Balta 2016, p. 441. A link may be found in ECtHR, Abraham Lunguli v Sweden, Decision, 1 July 2003, App no 33692/00; ECtHR , Murama v. The Netherlands, Interim Measure, 14 June 2012, No 404/11: ECtHR, Soumah v The Netherlands, Decision, 15 December 2017, App No 61452/15 (Guinee); CAT, K. and K. v. The Netherlands, Decision, 3 May 2019, Comm No 760/2016, CAT/C/66/D/760/2016. 93 Keller and Marti 2013. 94 See Chap. 6 (Harrington) in this Volume.

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explain why the choice of forum does not seem to play an important role with regard to the protection against FGM. Only in incidental cases an explicit choice seems to be made for a specific forum.95

7.5 Conclusion The ECtHR, CAT, HRCtee, CEDAW and CRC have all used provisional measures to halt refoulement. They use interim measures to prevent a state from exposing an alleged victim to future violations in another state. At the stage of interim measures there has to be at least some likelihood of the real risk. For an interim measure, there has to be sufficient indication for a real risk. In the context of non-refoulement cases, interim measures have been used in similar types of cases such as risk of ill-treatment related to sexual orientation; risk of family vengeance; risk of being subjected to FGM; risk of social exclusion; risk of sexual exploitation; and a health risk. They do not clearly provide reasoning with regard to their risk assessment at this stage. From the merits and other decisions at the stage of interim measures there has to be at least some likelihood of the real risk that is required on the merits. In practice, lawyers tend to turn to the ECtHR with requests for interim measures. Yet some lawyers seem to have found their way to the UN Committees for more specific topics. For instance, the case study on risk of FGM indicates that on the merits applicants may have a better chance of success before the CRC or CAT than before the ECtHR. Moreover, all adjudicators appear to be aware of the specific position of children, but the CRC obviously pays specific attention to risks for a child’s well-being. In non-refoulement cases, an interim measure to halt an expulsion and a merits decision on the compatibility of an expulsion with the treaty are interrelated. Without a potential merits decision, there is no need for an interim measure. Without an interim measure, there is no point in a merits decision. A range of outcomes in the final judgments on the merits can be found. This makes it—in the extent of this chapter—impossible to draw general conclusions with regard to the evidentiary reasoning behind the interim measures. So this leaves us with the bird’s eye view, that is simply what it is.

References European Legal Network on Asylum (ELENA) and European Council on Refugees and Exiles (ECRE) (2012) Research on ECHR Rule 39 Interim Measures. https://www.ecre.org/wp-con tent/uploads/2016/05/RULE-39-ESEARCH_FINAL.pdf

95 See e.g. CAT, A.R.A. v. Sweden, View, 1 May 2007, Comm No 305/2006, CAT/C/38/D/305/2006;

CAT, M.J.S. v The Netherlands, View, 3 May 2019, Comm No 757/2016, CAT/C/66/D/757/2016.

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Føllesdal A (2013) The Legitimacy Deficits of the Human Rights Judiciary: Elements and Implications of a Normative Theory. Theoretical Inquiries in Law 14:339 Glas L (2019) The European Court of Human Rights supervising the execution of its judgments. Netherlands Quarterly of Human Rights 37(3):228–244 Keller H, Marti C (2013) Interim Relief Compared: Use of Interim Measures by the UN Human Rights Committee and the European Court of Human Rights. ZaöRV 73:325–372 Keller H, Marti C (2015) Reconceptualizing Implementation: The Judicialization of the Execution of the European Court of Human Rights’ Judgments. European Journal of International Law 26(4):829–850 Marti C (2019) Provisional measures: European Court of Human Rights (ECtHR). In: Ruiz Fabri H (ed) Max Planck Encyclopedia of International Procedural Law. Oxford University Press OPIL McLachlan C (2005) The Continuing Controversy over Provisional Measures in International Disputes. International Law FORUM du Droit International 7:5–15 Middelburg A, Balta A (2016) Female genital mutilation/cutting as a ground for asylum in Europe. Int J Refugee Law 28(3):416–52 Miles CA (2013) The Origins of the Law of Provisional Measures before International Courts and Tribunals. Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht, pp. 615–672 Naldi G (2004) Interim measures in the UN Human Rights Committee. International and Comparative Law Quarterly, April 2004, 53:445–454 Rieter E (2010) Preventing Irreparable Harm – Provisional Measures in International Human Rights Adjudication. Intersentia, Antwerp UNHCR (2009) Protection Policy and Legal Advice Section Division of International Protection Services Geneva, Guidance Note on Refugee Claims relating to Female Genital Mutilation UNHCR (2013) Too Much Pain. Female Genital Mutilation and Asylum in the European Union Wikholm K, Mishori M, Ottenheimer D, Korostyshevskiy V, Reingold R, Wikholm C, Hampton K (2020) Female Genital Mutilation/Cutting as Grounds for Asylum Requests in the US: An Analysis of More than 100 Cases. Journal of Immigrant and Minority Health 22:675–681

Karin Zwaan is associate professor of Migration Law in the Department of Migration Law at the Centre for State and Law, Radboud University Nijmegen, The Netherlands.

Chapter 8

Irreparable Harm in the Ukraine Conflict: Protection Gaps and Interim Measures Brian Griffey Contents 8.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2 Irreparable Harm from Human Rights Abuses in Eastern Ukraine . . . . . . . . . . . . . . . . . . 8.2.1 Outbreak of Conflict in Eastern Ukraine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.2 Abduction, Torture and Other Ill-Treatment of Civilians . . . . . . . . . . . . . . . . . . . . 8.2.3 Unlawful Detention and Exchange of Civilian Hostages . . . . . . . . . . . . . . . . . . . . 8.3 Lack of Effective Remedies in Eastern Ukraine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3.1 Human Rights Under Ukraine’s Constitution and Legal Framework . . . . . . . . . . 8.3.2 Remedies Out of Reach in Ukraine’s Justice System . . . . . . . . . . . . . . . . . . . . . . . 8.3.3 Duty of Due Diligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3.4 International Criminal Court Jurisdiction in Ukraine . . . . . . . . . . . . . . . . . . . . . . . 8.4 Interim Measures and Urgent Responses in the Ukraine Conflict . . . . . . . . . . . . . . . . . . . 8.4.1 Interim Measures on Abuses in Eastern Ukraine . . . . . . . . . . . . . . . . . . . . . . . . . . 8.4.2 Interim Measures on Abuses in Crimea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.5 Concluding Observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

162 167 168 169 173 176 176 177 180 182 183 184 189 193 195

Abstract This chapter argues that, due to over-broadness and lack of followup mechanisms, the initial European Court of Human Rights request for interim measures in the armed conflict in Ukraine was ineffectual. Presenting an illustrative case study on irreparable harm caused by serious human rights violations in eastern Ukraine, it identifies practical challenges in the seeking and enforcement of interim measures. Additionally, it discusses how protection gaps identified by the various international, governmental and nongovernmental actors in the region were (and were not) dealt with by authorities, contrasting the interim measures regarding eastern Ukraine with those regarding Crimea. Finally, it identifies lessons learned and opportunities for further engagement by practitioners to help prevent irreparable harm in the context of systematic human rights violations. The effective utilization of interim measures requires that they be tailored and targeted to address specific human rights abuses, including with any follow-up mechanisms that can be supported through political discourse. The response to the urgent human rights situation in B. Griffey (B) Amnesty International, Washington, D.C., USA e-mail: [email protected] © T.M.C. Asser Press and the authors 2021 E. Rieter and K. Zwaan (eds.), Urgency and Human Rights, https://doi.org/10.1007/978-94-6265-415-0_8

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Crimea suggests that human rights practitioners should engage with social movements, as well as with high-level and multilateral political advocacy to help ensure that the social and political advocacy, and the interim measures ordered are mutually reinforcing. Keywords Crimea · effectiveness · follow-up · human rights · humanitarian law · ICC jurisdiction · indiscriminate shelling · interim measures · irreparable harm · public pressure · protection gaps · provisional measures · Russia · separatist paramilitary forces · Ukraine · wartime abuses

8.1 Introduction Embroiled in an armed conflict since February 2014, and many months of political turmoil before that, Ukraine’s recent human rights and security crises have resulted in an array of international lawsuits. Those lawsuits include several interState complaints brought by Ukraine against the Russian Federation, as well as thousands of individual complaints brought by civilians against both States. In those inter-State and individual complaints alike, the European Court of Human Rights and other international bodies have considered and issued requests for interim measures to halt or prevent the most extreme abuses by State and non-State actors. Those measures have had mixed results, and impact that is challenging to assess. Considering the human rights crisis in Ukraine as a case study, this chapter assesses protection gaps in situations of urgency where persons are facing irreparable harm,1 and examines the use of interim measures to address and close those protection gaps. From 21 November 2013 to 22 February 2014, massive street protests in Kyiv’s Independence Square (Maidan) shook the political establishment, fuelled by popular frustration over widespread corruption, abuse of power, lack of accountability, and a weak justice system that the government leveraged against the political opposition. Following months of sporadic melee at those demonstrations, then-President Viktor Yanukovych was ultimately ousted by parliament on 22 February 2014, four days after snipers killed 100 protestors. A nationalist, Western-leaning interim government assumed power in the days that followed, while Russian special forces invaded and seized control of Crimea. By the end of April 2014, two self-proclaimed ‘republics’ had declared independence in eastern Ukraine, and the Ukrainian Government had launched its ‘Anti-Terrorist Operation’ against those Russian-backed separatist paramilitary forces. Since those early months of the conflict, international and domestic organizations have meticulously documented gross human rights violations in eastern Ukraine and Crimea, attributable to Ukraine and the Russian Federation. Yet remedies have 1 In

the jurisprudence of judicial and quasi-judicial bodies, “irreparable harm” has been interpreted to include damage that could: imperil the effectiveness of those bodies’ complaints procedures; lead to a violation of the respective treaty if not otherwise prevented; or not be adequately remedied through compensation. See Krsticevic and Griffey 2016, Ch. 9, pp. 293–325.

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often remained distant and out of reach of victims. Authorities of both governments have frequently denied the facts of alleged violations, failed to investigate alleged perpetrators, or rejected outright the jurisdiction of international tribunals before which plaintiffs have sought judicial remedies. Despite those challenges, appeals to international tribunals for interim measures to halt human rights violations have been successful in some cases. This has reinforced calls for urgent remedies, including both in individual cases of civilians or political prisoners, and in relation to structural human rights violations by authorities in Crimea and eastern Ukraine. Among the institutions that have made legally binding ‘requests’ for interim measures in the Ukraine conflict are the European Court of Human Rights, the International Court of Justice, the International Tribunal for the Law of the Sea, and the UN Human Rights Committee. Those bodies have at times cited human rights reporting of international organisations in their decisions to request interim measures. In turn, the United Nations, European institutions, and national governments have cited those orders of interim measures in their own diplomatic interventions to resolve human rights abuses or security disputes in the conflict. In this regard, the conflict between Ukraine and the Russian Federation has showcased the powerful feedback loop of legal and political engagements of the warring parties. When the two sides have released civilian hostages or prisoners of war from detention, they have often done so in reciprocal or ‘all-for-all’ prisoner swaps, or on humanitarian grounds, rather than expressly in relation to interim measures secured in some of those highprofile cases. Nonetheless, the securing of interim measures before international bodies has helped to reinforce human rights standards, and to build political pressure over protracted periods of time by diplomatic actors and popular movements alike. The affirmation of standards and political pressure by those actors and movements have contributed to the realisation of urgent remedies in individual cases—whether the provision of medical care, releases from detention, or deterrence of further abuses. In contrast, orders of interim measures have appeared to remain mostly ineffective to address structural or systemic problems leading to widespread human rights violations, in the absence of sufficient specificity and effective enforcement mechanisms. Those systemic violations have included the dismantling of ethnic minority institutions in Crimea by the Russian Federation, and the discriminatory denial of economic, social and cultural rights; as well as widespread torture and other illtreatment by Ukrainian and separatist forces in eastern Ukraine, particularly during the early years of the conflict. The irreparable harm resulting from those violations ought to have been more urgently prevented and responded to in the early years of the conflict. The efforts of non-governmental and international organisations to raise those abuses with authorities, in order to secure remedies, have been ineffectual partly due to lack of diplomatic will and public political pressure, amidst nationalist political sentiments.

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The ongoing conflict in Donbas has already claimed the lives of approximately 13,000 people, a quarter of them civilians,2 and has resulted in widespread human rights violations against civilian populations on both sides of the ‘line of contact’ between the opposing forces. Approximately three-quarters of those deaths occurred in the first 1.5 years of the armed conflict, when fighting was the fiercest and frontlines were fluctuating.3 Key battles on the frontlines of the conflict captured international headlines, yet their damaging impact on local populations continues to be tallied. Civilian deaths and injuries, damage to infrastructure, and acute humanitarian crises followed extreme restrictions on freedom of movement and widespread indiscriminate shelling by Ukrainian and separatist forces as they have struggled to control territory.4 Both sides have used highly imprecise weapons in populated areas, with flagrant disregard for the principles of proportionality and distinction. International monitors have laboured to chronicle each of those incidents, which constitute violations of the multiple ceasefires agreed to by the warring parties between September 2014 and December 2019.5 Since the first ceasefires, international monitors have recorded countless violations, ranging from small-arms fire to the use of multiple launch rocket systems (MLRS) and cluster munitions,6 with thousands of ceasefire violations every week as of December 2019.7 Among other requirements, those ceasefires have repeatedly called for the immediate cessation of hostilities, withdrawal of heavy weapons from a sizeable buffer zone, and the ‘immediate release of all hostages and illegally detained persons’.8 2 Donbas

is the name of the eastern Ukraine region including Donetsk and Luhansk Oblasts; see OHCHR, Report on the human rights situation in Ukraine: 16 August to 15 November 2019 (12 December 2019), at para 4. “The total civilian death toll of the conflict reached at least 3,344 […] as of 15 November 2019. The number of injured civilians is estimated to exceed 7,000.” Available at: https://www.ohchr.org/Documents/Countries/UA/28thReportUkraine_EN.pdf. 3 As of 7 December 2015, OHCHR reported at least 9,115 had been killed and 20,732 wounded in the conflict in eastern Ukraine, though cautioned this was “a conservative estimate and the real number of conflict-related casualties is considered to be higher”. See OHCHR, “Statement by Assistant Secretary-General for Human Rights, Ivan Šimonovi´c” (11 December 2015), available at: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16875&LangID=E; and, OHCHR report of 9 December 2015 (note 11), para 4. 4 In this chapter, the term “Ukrainian forces” is used loosely to refer both to the Ukrainian armed forces, and to volunteer battalions that are subordinated to the Ministry of Defence or the Ministry of Internal Affairs. Hence, the term is not used to connote citizenship, as the majority of separatists are presumably Ukrainian citizens as well. 5 See Office of the President of the Russian Federation, “Paris ‘Normandy’ Summit Common agreed conclusions” (9 December 2019), available at: http://en.kremlin.ru/supplement/5465. 6 See daily reports of the OSCE Special Monitoring Mission to Ukraine, available at: http:// www.osce.org/ukraine-smm/daily-updates. See also Human Rights Watch, “Ukraine: More Civilians Killed in Cluster Munition Attacks—Both Sides Have Used Widely Banned Weapon” (19 March 2015), available at: http://www.hrw.org/news/2015/03/19/ukraine-more-civilians-killed-clu ster-munition-attacks. 7 See OSCE Special Monitoring Mission to Ukraine (SMM), Status Report: As of 9 December 2019. Available at: https://www.osce.org/special-monitoring-mission-to-ukraine/442261. 8 See Second Minsk Agreement (February 2015), para 6.

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More difficult to document and remedy than the withdrawal and storage of heavy weapons, however, have been the scale and human costs of dirty-war tactics allegedly employed by both sides of the conflict—particularly in the first two years of fighting—including hostage-taking, unlawful detentions, and serious physical abuse. Human rights groups have shown how Ukrainian and separatist forces have been responsible for similar patterns of abductions, arbitrary detentions, disappearances, torture, and ill-treatment of civilian populations—seemingly targeting individuals suspected of supporting the other side. While Ukrainian and separatist commanders’ levels of control over those practices remained unclear, the two international human rights monitoring missions deployed to Ukraine since the end of March 2014 have documented, and in some cases verified, numerous allegations of such abuses.9 At the start of the conflict, Human Rights Watch and the Office of the UN High Commissioner for Human Rights (OHCHR) separately observed that the documented war crimes by either side could amount to crimes against humanity, if they were widespread or systematic.10 Based on a country visit in 2018, the UN Special Rapporteur on torture concluded that torture and other ill-treatment indeed appeared to have been widespread and systematic, particularly from 2014 to 2016.11 Nonetheless, those abuses by Ukrainian and separatist forces escaped steady international scrutiny, and have surged and receded in the shadows of the conflict. Separatist forces have operated in an accountability vacuum, without meaningful legal protections for civilians in the territory they hold, whether in detention or simply struggling to lead their lives amidst the conflict. The Ukrainian justice system has also appeared incapable of holding Ukrainian forces accountable for their violations, often having failed to uphold fair-trial standards and the rule of law even before the conflict began. (See Sects. 8.2 and 8.3.) Though the Ukrainian legal framework guarantees a wide array of human rights, and theoretically provides for the direct application of human rights treaties in domestic courts (including the European Convention on Human Rights), the most fundamental procedural safeguards under Ukrainian criminal law fell silent under the guns at the start of the conflict, when abuses were the most numerous, and have not delivered effective remedies for victims of abuses. With remedies out of reach, large numbers of civilians in eastern Ukraine have been subjected to irreparable harm during the conflict, with little hope for domestic remedies from either Ukrainian or separatist de facto institutions. During the first year of the conflict, more than 500 individual claims were submitted to the European 9 See the reports of the United Nations (UN) Human Rights Monitoring Mission in Ukraine, operated

by the Office of the UN High Commissioner for Human Rights (OHCHR), available at: http:// www.ohchr.org/EN/Countries/ENACARegion/Pages/UAReports.aspx. See also the reports of the Organization for Security and Co-operation in Europe (OSCE) Special Monitoring Mission to Ukraine (SMMU), available at: http://www.osce.org/ukraine-smm. 10 See OHCHR report of 20 November 2014, para 6. Human Rights Watch, “Eastern Ukraine: Questions and Answers about the Laws of War” (11 September 2014), available at: http://www. hrw.org/news/2014/09/11/eastern-ukraine-questions-and-answers-about-laws-war. 11 See Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, “Visit to Ukraine”, UN Doc. A/HRC/40/59/Add.3 (17 January 2019), at paras 47, 53, 55, 59.

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Court of Human Rights in relation to alleged abuses in eastern Ukraine. In almost one-third of those cases, the European Court issued interim measures calling for the protection of detained or missing persons.12 Since then, thousands more individual complaints have been submitted to Strasbourg with regard to the Ukraine conflict. While those cases and requests for interim measures may have encouraged greater respect for the rights of some individuals in detention, countless civilian victims of the conflict have had no legal recourse, or have feared seeking remedies for abuses that they or their loved ones have suffered at the hands of either side. Many of the cases brought before the European Court have dealt exclusively with alleged abuses by separatists in territory outside of Ukrainian control. Conversely, Russia has summarily rejected all communications of individual cases related to abuses in eastern Ukraine, denying any direct involvement in the conflict. Complainants and victims have thus been left in limbo, awaiting decisions by the European Court that are slow to come and uncertain to provide urgent relief. Compounding these risks, the Ukrainian parliament in May 2015 resolved to derogate from numerous provisions of the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR), including inter alia the rights to liberty, a fair trial and an effective remedy.13 The extent, permissibility and legal effect of those derogations are debatable,14 and are contingent upon 12 Registrar of the Court, “European Court of Human Rights extends time allowed for Russia’s observations on admissibility of cases concerning Crimea and Eastern Ukraine” (Press release, 13 April 2015), Ref. No. ECHR 122 (2015). 13 The derogation resolution was adopted in line with Article 4 ICCPR and Article 15 ECHR, which provide for limited derogations from the rights provided by those instruments. See Verkhovna Rada of Ukraine, “Resolution on Approval of statement ‘On Ukraine derogation from certain obligations defined by the International Covenant on Civil and Political Rights and the European Convention on Human Rights’” (21 May 2015), available at: http://zakon2.rada.gov.ua/laws/show/ 462-19. See also Council of Europe statement, “Ukraine derogation from European Convention on Human Rights” (10 June 2015, available at: https://go.coe.int/GUCEn ), and the official notification of the derogation (No. JJ7979C Tr./005-185; 10 June 2015, available at: https://wcd.coe.int/Vie wDoc.jsp?id=2331761&Site=DLAPIL-Conventions). In a November 2014 decree, the President of Ukraine had previously ordered the government to prepare a statement of derogation from some ECHR provisions. (See Decree No. 875/2014, dated 14 November 2014, at para 7.) While the parliament’s resolution declares derogation from ECHR and ICCPR provisions, the explanatory note accompanying the resolution also notes the government’s derogation from the European Social Charter (ESC). An earlier draft of the resolution provided for derogation as per ESC Part V, Article F, from Articles 1(2), 4(2) and (3), 8(1), 14, 15, 16; 17(1)(a) and (1)(c), 23, 30, and 31(1) and (2). However, without reference to the European Social Charter in the final resolution itself, the intended significance remains unclear. Also noteworthy, on 26 January 2015, the Cabinet of Ministers of Ukraine adopted Order No 47-r, which established a “regime of emergency” in Donetsk and Luhansk Oblasts, yet the order did not constitute a state of emergency or martial law, which only parliament can order. 14 Both the European Court and the Human Rights Committee have found that the permitted extent of derogation from any provisions specified must be proportionate and limited to what is required to counter specific threats justifying the given measure of derogation. Ukraine’s definition of the scope and nature of the derogation measures is excessively broad, and not in line with those international standards. For instance, the right to an effective remedy under Article 2(3) applies to the ICCPR as a whole, even when a public emergency threatens the life of a nation, including in relation to those

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the exigencies of the conflict, yet they nonetheless bode badly for accountability and meaningful remedies for the wartime abuses already documented. More promisingly, in September 2015, the Government of Ukraine accepted jurisdiction of the International Criminal Court (ICC) over all alleged war crimes and crimes against humanity committed in the territory of Ukraine since 20 February 2014, with indefinite duration. Yet since securing that mandate, the ICC has been slow to take action and as of December 2019 had not yet completed its admissibility assessment.15 With those concerns and considerations in mind, Sect. 8.2 of this chapter outlines the human rights crisis in eastern Ukraine—focusing on wartime abuses against the civilian population—to provide an in-depth analysis of the irreparable harm resulting from the conflict, particularly in its early years. Section 8.3 then assesses the lack of effective remedies for those abuses, the significance of Ukraine’s duty of due diligence to provide effective remedies, and its acceptance of ICC jurisdiction. Section 8.4 identifies practical challenges in the solicitation and application of interim measures and other forms of urgent intervention in eastern Ukraine, including in contrast with requests for interim measures regarding the situation in Crimea. Finally, Sect. 8.5 proposes ways that human rights institutions and practitioners could help to close the protection gaps identified herein, and mitigate ongoing patterns of human rights abuses and impunity for perpetrators, including through requests for interim measures and corresponding political interventions.

8.2 Irreparable Harm from Human Rights Abuses in Eastern Ukraine The armed conflict in Donbas between Ukrainian forces and so-called ‘separatists’ sponsored by the Russian Federation has centred on territorial control, using brutal techniques ranging from rocket attacks on residential areas to dirty-war tactics targeting individuals and communities in relation to their perceived allegiances. Both the separatist forces and Ukraine’s ‘volunteer battalions’ have been characterized by decentralised command, yet the governments of Ukraine and the Russian Federation have nonetheless exercised control over the forces, which have fought handin-hand with their respective national militaries and intelligence services. With the abusive conduct of those forces permitted and facilitated by state sponsors, so was the irreparable harm resulting from their conduct, thereby engaging state responsibility to prevent and remedy the resulting harm. provisions specified as not subject to derogation. European Court of Human Rights, A. and Others v. the United Kingdom [GC]—3455/05, Judgment of 19 February 2009; Merits, para 2(ii). Ireland v. the United Kingdom, Judgment of 18 January 1978, Series A no. 25. Human Rights Committee, General Comment No. 29: States of Emergency, UN Doc. CCPR/C/21/Rev.1/Add.11 (31 August 2001), para 4. 15 See Office of the Prosecutor, International Criminal Court, Report on Preliminary Examination Activities: 2019, at para 285. Available at: https://www.icc-cpi.int/itemsDocuments/191205-repotp-PE.pdf.

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8.2.1 Outbreak of Conflict in Eastern Ukraine On 4 March 2014, as Russian special forces seized Crimea, and a choreographed uprising began to simmer in eastern Ukraine, Vladimir Putin recited to journalists the core Kremlin narrative at that time: fascist Ukrainian forces were running amok, threatening systematic criminal attacks on the ‘Russian-speaking population in the eastern and southern regions of Ukraine’. Vowing that Russia would intervene if needed, he declared ‘the right to use all available means to protect those people’.16 Russia’s repeated claims of widespread human rights abuses targeting socalled ‘Russian speakers’ were investigated and rejected by both OHCHR and the OSCE.17 Nonetheless, in early April 2014, pro-Russian separatists in Donetsk and Luhansk Oblasts occupied administrative and security service buildings in several towns, demanding autonomy and decrying alleged abuses of the rights of Russian speakers in eastern Ukraine. The ‘Donetsk People’s Republic’ (DPR) and ‘Luhansk People’s Republic’ (LPR) declared independence on 7 and 27 April, respectively, followed by public referendums to secede on 11 May 2014, which were widely criticized internationally as staged and illegitimate. The Ukrainian government responded by launching its ‘Anti-Terrorist Operation’ (ATO) on 13 April 2014, which formally marked the start and intensification of the current armed conflict.18 As full-scale fighting erupted in eastern Ukraine over the months that followed, the humanitarian situation steadily deteriorated, along with the enjoyment of a wide array of rights by residents on both sides of the conflict line, including the rights to life, an adequate standard of living, health, education, and property. Thousands of indiscriminate shelling incidents along the frontlines, without any clear calculus to 16 Council of Foreign Relations, transcript of press conference with Russian President Putin on Ukraine (4 March 2014), available at: http://www.cfr.org/regional-security/press-conference-pre sident-putin-ukraine/p32534. 17 In a report following its March 2014 human rights assessment mission (HRAM) to Ukraine, the OSCE Office for Democratic Institutions and Human Rights observed that any incidents of ethnic or religious intolerance “did not appear to be of a systemic nature and, in particular, the HRAM did not observe an escalation of violence against the Russian-speaking population in the east and south of Ukraine.” (HRAM report, para 67 (p. 42). The OSCE High Commissioner on National Minorities likewise stated on 6 March 2014 that she “found no evidence of violations or threats to the rights of Russian speakers in Crimea.” (Available at: http://www.osce.org/hcnm/116180.) See also HRAM report, p. 79: “The HCNM did not find violations of the rights of Russians in Crimea during her visits or the visits of her delegations.” (Available at: http://www.osce.org/odihr/118476?dow nload=true.) See also HRAM report, p. 108: “The HCNM delegations spoke with interlocutors from different minorities and did not find evidence of systematic discrimination against minorities.” The Office of the UN High Commissioner for Human Rights similarly found: “The Russian Government justified its involvement [in Crimea] to be in response to the will of the local population and as an effort to protect ethnic Russians and Russian-speakers in the region. [….] It is widely assessed that Russian-speakers have not been subject to threats in Crimea.” (OHCHR report of 15 April 2014 (note 11), paras 20, 89). 18 OHCHR report of 15 May 2014 (note 11), paras 91, 95. The results announced by de facto authorities claimed a 75 percent turnout rate, with 89 and 96 percent of respondents in favour of independence, in DPR and LPR respectively. Only Russia recognised the results.

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achieve specific and proportionate military objectives, resulted in countless civilian casualties.19 The multiple launch rocket systems used in many attacks (including the GRAD and Uragan systems) have vast areas of impact, so can never be used in populated areas in keeping with international humanitarian law. The dangerously close proximity of Ukrainian and separatist bases and checkpoints to populated areas— whether deliberate or not—further exacerbated the collateral loss of civilian lives and properties. Indiscriminate shelling also devastated infrastructure, leaving many thousands of residences destroyed, and large segments of an already desperate conflict-affected population without water, gas or electricity.20 Those shortages became particularly acute in the winter months.21 Intensified by wartime laws and security-related restrictions on freedom of movement,22 the consequent shortages of supplies, medicine, money, food and fuel reached crisis levels, which international aid groups struggled to relieve. The humanitarian situation deteriorated especially in separatist-held territory, where some localities reported prices for basic staple foods and supplies doubling, a trend that OHCHR attributed among other causes to restrictions on cargo transportation across the conflict line.23 According to the UN Office for the Coordination of Humanitarian Affairs (OCHA), in the first year of the conflict alone, 1.3 million people were internally displaced from eastern Ukraine, and 1.2 million fled to neighbouring countries.24

8.2.2 Abduction, Torture and Other Ill-Treatment of Civilians From the start of the armed conflict in eastern Ukraine, there were numerous, serious and credible allegations of abductions, disappearances, arbitrary detentions, torture, ill-treatment, and in some cases executions of civilian detainees by both sides of 19 See, e.g., OHCHR statement, “Ukraine: Dangerous escalation in conflict proving catastrophic for civilians – Zeid” (3 February 2015), available at: http://www.ohchr.org/en/NewsEvents/Pages/Dis playNews.aspx?NewsID=15532&LangID=E. 20 See OSCE report, “Access to water in conflict-affected areas of Donetsk and Luhansk regions” (18 September 2015), available at: http://www.osce.org/ukraine-smm/183151. See also OHCHR “Statement to the Security Council by Ivan Šimonovi´c, Assistant Secretary-General for Human Rights, at the meeting on Ukraine” (6 March 2015), available at: http://www.ohchr.org/EN/New sEvents/Pages/DisplayNews.aspx?NewsID=15662&LangID=E. 21 See Ukraine Humanitarian Country Team, “2015 Strategic Response Plan” (December 2014), avail-able at: http://www.who.int/hac/crises/ukr/ocha_ukraine_strategic_response_plan_d ec2014pdf. 22 See OSCE Special Monitoring Mission to Ukraine, “Protection of Civilians and their Freedom of Movement in the Donetsk and Luhansk Regions” (6 May 2015), available at: http://www.osce. org/ukraine-smm/156791?download=true. 23 OHCHR report of 15 August 2015 (note 11), para 13. 24 See OCHA, “Ukraine: Overview of population displacement (as of 22 May 2015)”, available at: http://www.humanitarianresponse.info/fr/system/files/documents/files/ukr_displacement_ 22_may_2015.pdf.

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the conflict. Those abuses were particularly numerous in the first two years of the conflict, yet continued at a lesser scale since then. That pattern of widespread and underreported abuses violated numerous interrelated human rights, including inter alia: the right to life; the right to liberty and security of person; freedom from torture and cruel, inhuman or degrading treatment or punishment; equality and recognition under the law; access to justice; fair-trial rights; the right to health; and the right to property. Based on incidents documented by international and non-governmental organisations, separatist and government forces appeared also to have repeatedly committed grave violations of their obligations under Common Article 3 of the Geneva Conventions and Article 4.2(c) of Additional Protocol II, which prohibit abductions, hostage-taking and ill-treatment of detainees in the context of non-international armed conflicts. Since the start of the conflict in 2014, OHCHR catalogued hundreds of reported cases of abductions, disappearances, and serious abuses of civilian detainees by separatist forces in eastern Ukraine.25 Those abducted included boys and men, ranging from 14 to 60 years old, as well as some women held in the same informal facilities. By August 2014, just a few months into the conflict, separatists reportedly held over one thousand detainees. Detentions lasted from days to months, often depending on ransoms being paid by family members. OHCHR catalogued a range of horrific abuses to which detainees were subjected during their captivity.26 In its most detailed assessments of the motivations for this pattern of abuse, OHCHR documented how those singled out for the worst abuse by separatists were often activists, journalists, political opponents, and civilians allegedly harbouring

25 See, e.g., OHCHR report of 15 May 2014, paras 95–96, 101–102; OHCHR report of 15 June 2014, paras 196 et seq.; OHCHR report of 15 July 2014, paras 35 et seq.; OHCHR report of 28 August 2014, paras 49 et seq.; OHCHR report of 1 June 2015, paras 8, 13, 30 et seq.; OHCHR report of 15 August 2015, paras 6, 8, 42 et seq., 114 et seq.; OHCHR report of 9 December 2015, paras 7, 34 et seq., 103 et seq. (See note 11). 26 In December 2014, OHCHR reported: “The break-down of law and order in the conflict zone has resulted in killings, abductions, torture, ill-treatment, sexual violence, forced labour, ransom demands and extortion of money by the armed groups, which have been reported during the whole conflict period. Persecution and intimidation of people suspected of supporting Ukrainian forces or merely holding pro-Ukrainian sympathies (or perceived as such) remains widespread and has included deprivation of liberty and property, humiliation in public places and mock executions. Conditions of detention, especially for civilians, were often inhuman and degrading: people were kept in overcrowded basements or other ad hoc detention facilities without separate detention for men and women; supply of food and water was insufficient or irregular; and opportunities to maintain personal hygiene and contacts with the outside world were largely absent. Some detainees were subjected to torture and other ill-treatment, which included verbal assaults; physical beatings, including various objects (rifle butts, wooden bats and metal and rubber sticks); cutting with knives and other sharp objects; sexual assaults; threats of death and of persecution of relatives.” See OHCHR report of 15 December 2014 (note 11), para 41. For specific accounts of such abuse, see also OHCHR report of 8 October 2014, paras 9, 40; and OHCHR report of 20 November 2014, para 52. (See note 11).

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pro-Ukrainian political beliefs.27 According to OHCHR, separatists also forcibly mobilised civilians to fight, and threatened local populations with executions.28 From April to August 2014, Human Rights Watch documented scores of similar cases of abductions, arbitrary detentions, torture and other ill-treatment of civilians by separatist groups in eastern Ukraine, including for the purposes of extortion, forced labour or exchange of prisoners with government forces.29 Those detained were beaten, stabbed, electrocuted, threatened with sexual violence, subjected to mock executions, and possibly executed in some cases.30 Human Rights Watch also documented several dozen cases of political activists or journalists being detained and tortured by separatists throughout eastern Ukraine—in some instances extorting hefty ransoms, or pressuring them to lure other political activists to be abducted.31 From April to July 2014, Amnesty International independently compiled accounts of hundreds of cases of abduction, unlawful detention, torture and abuse by separatist forces in eastern Ukraine—documenting similar forms of abuse, and admissions by separatist authorities of hostage taking for prisoner exchange.32 From December 2014 to February 2015, OHCHR reported estimates that civilians accounted for about three-quarters of up to 700 detainees being held by separatist forces at any

27 In July 2014, OHCHR reported: “Intimidation and violence by the armed groups against civilians in the east has continued, with people being abducted and detained often for purposes of hostage taking. The armed groups also carry out acts of ill-treatment, torture and murder. Some of those detained by the armed groups are local politicians, public officials and employees of the local coal mining industry; the majority are ordinary citizens, including teachers, journalists, members of the clergy and students. The motivation for the abductions and detentions by the armed groups appears to be: (a) exchange with detainees held by the Government; (b) gain some influence on the situation; (c) extortion of property or money; (d) source of labour for digging trenches and preparing military barricades; (e) opportunistic ‘arrests’ of people; and (f) ‘internal discipline’ of the armed groups themselves. With these acts, the armed groups continued to exercise their power over the population in raw and brutal ways. […] In discussions with [OHCHR] following their release, many detainees who were held by armed groups report beatings, ill-treatment, sleep deprivation and very poor conditions while in detention, and forced labour, including digging trenches on the front lines.” See OHCHR report of 15 July 2014 (note 11), paras 38–40, 46, 72. 28 OHCHR report of 8 October 2014 (note 11), para 9. In a January 2016 radio interview, one of the separatist commanders in the early stages of the conflict admitted the use of executions against civilians to punish acts including looting. See RFE/RL, “Former Commander of Pro-Russian Separatists Says He Executed People Based On Stalin-Era Laws” (19 January 2016), available at: http://www.rferl.org/content/ukraine-girkin-strelkov-executions-stalin-era/27497491.html. The sudden admission appeared to confirm allegations against the same commander, including as documented by the UN Special Rapporteur on extrajudicial, summary or arbitrary executions. See the Special Rapporteur’s end-of-visit statement, “Ukraine: Lives lost in an accountability vacuum” (18 September 2015): http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID= 16460&LangID=E. 29 See Human Rights Watch, “Ukraine: Rebel Forces Detain, Torture Civilians” (28 August 2014), available at: http://www.hrw.org/news/2014/08/28/ukraine-rebel-forces-detain-torture-civilians. 30 Ibid. 31 Ibid. 32 See Amnesty international, “Abductions and Torture in Eastern Ukraine” (July 2014), available at: https://www.amnesty.org/download/Documents/8000/eur500342014en.pdf.

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given time.33 As of 8 June 2015, Ukrainian authorities estimated 1,200 remained missing in the conflict zone.34 Following those early reports primarily focused on abuses by separatist forces, international and non-governmental organisations increasingly reported widespread abductions and ill-treatment of civilians by both sides of the conflict—including by pro-Ukrainian forces.35 In December 2018, the Office of the Prosecutor of the ICC estimated that ‘at least 4,000 persons have been arrested and detained in connection to the conflict in eastern Ukraine since April 2014’ with high frequencies of grave abuses against them particularly in the early years of the conflict.36 From mid-April to August 2014, the Ukrainian security service (SBU) reported legally detaining over one thousand civilians on suspicion of being ‘militants and subversives’, most of them accused of terrorism, violating territorial integrity, espionage or treason. Numerous released detainees reported abuse, including beatings and lack of food or medical treatment.37 Since the beginning of the conflict, the SBU and Ukrainian ‘volunteer battalions’ allegedly also detained hundreds of other civilians at makeshift informal detention facilities,38 in waves of abductions continuing through at least mid-2015. OHCHR documented dozens of disappearances in government-held territory, and scores of reports of civilians being held by the SBU and volunteer battalions in secret and incommunicado detention facilities. Detainees released by government forces frequently and consistently reported abuses including torture and other illtreatment, mock executions, lack of food, water and access to medical assistance, and pressure to make forced confessions related to alleged pro-separatist activities or sympathies. In some cases, after days of torture and abuse, detainees were then entered into the regular legal procedure, in order later to be exchanged for prisoners held by separatists.39 In addition to the SBU, several volunteer battalions active in eastern Ukraine were allegedly responsible for frequent abuses.40 In a standalone report on abuses and war crimes committed by the Aidar battalion, notorious as one of the most vicious 33 OHCHR

report of 15 February 2015 (note 11), paras 33–34. report of 15 August 2015 (note 11), para 35. 35 See the nine periodic OHCHR reports (note 11). See also OSCE’s public reporting, for instance: http://www.osce.org/ukraine-smm/125674; http://www.osce.org/ukrainesmm/122939; http://www. osce.org/ukraine-smm/122847; and http://www.osce.org/ukraine-smm/121675. 36 See Office of the Prosecutor, International Criminal Court, Report on Preliminary Examination Activities: 2018, at para 89. Available at: https://www.icc-cpi.int/itemsDocuments/181205-rep-otpPE-ENG.pdf. 37 OHCHR report of 8 October 2014 (note 11), para 41. 38 For a chart of the most active volunteer battalions, and their supposed lines of subordination to Ukrainian institutions, see: http://uacrisis.org/volunteer-battalions-eastern-ukraine/. 39 OHCHR report of 15 February 2015, paras 33–41; OHCHR report of 15 December 2014, paras 9 and 69; OHCHR report of 20 November 2014, paras 10, 54–55; OHCHR report of 15 May 2014, para 103 (see note 11). 40 Those battalions included the Aidar, Dnipro-1, Donbas, Kyiv-1, Kyiv-2, and Right Sector battalions. OHCHR reported, among other allegations, that 20 detainees (including three women) were held in a basement by the Donbas, Dnipro-1 and Right Sector battalions, where they “were urinated 34 OHCHR

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pro-Ukrainian volunteer battalions, Amnesty International documented widespread abductions, unlawful detentions in secret prisons, torture and abuse, theft and extortion, death threats and possible executions. Detainees were typically accused during beatings and interrogations of collaborating with separatists, before eventually being released or handed over to the SBU. Fearing retaliation, victims were often reluctant to report the incidents, and police were either unwilling or unable to intervene, despite being aware of the abuses and opening dozens of criminal cases on alleged thefts by Aidar battalion members.41 In May 2015, Amnesty International issued an extensive report on the pattern of unlawful detentions, torture and abuse of civilians, which it found overwhelmingly to indicate war crimes by both sides of the conflict.42 Whether in Ukrainian or separatist custody, the report found the most abusive captors on both sides to be paramilitary forces with decentralized command and control—namely, the pro-Ukrainian volunteer battalions and units, and the semi-autonomous separatist battalions. Detainees identified dozens of secret places of detention by both sides throughout eastern Ukraine, where they and other prisoners experienced widespread torture and abuse, including forced labour and mock executions. Beyond a consistent litany of appalling ill-treatment, the report observed Ukrainian forces (including SBU, National Guard and volunteer battalions) and separatist forces alike had taken hostages as ‘currency for prisoner exchanges’, and used torture and abuse apparently to punish their prisoners for alleged sympathies with the opposite side.43

8.2.3 Unlawful Detention and Exchange of Civilian Hostages The Government of Ukraine has waged its so-called ‘Anti-Terrorist Operation’ (ATO) against separatists under Ukrainian criminal law, rather than the laws of war. It is notable in this regard that many of the volunteer battalions allegedly responsible for the abduction and abuse of civilians in eastern Ukraine were ostensibly operating under the authority of the Ministry of Internal Affairs, rather than the Ministry of Defence.44 However, none of the volunteer battalions under either command structure

on; forced to carry each other naked, covered in foam; boiling water was poured over their legs; and logs were thrown at them, while [one detainee’s] hands were cut with a knife.” See OHCHR report of 8 October 2014 (note 11), paras 42–43. 41 Amnesty International, “Ukraine: Abuses and War Crimes by the Aidar Battalion in the North Luhansk Region” (8 September 2014; AI Index: EUR 50/040/2014), available at: https://www.amn esty.org/en/documents/EUR50/040/2014/en/. 42 Amnesty International, “Breaking Bodies: Torture and Summary Killings in Eastern Ukraine” (22 May 2015; AI Index: Eur 50/1683/2015). Available at: https://www.amnesty.org/en/documents/ eur50/1683/2015/en/. 43 Ibid. 44 E.g. Azov and Donbas territorial battalions; and Kyiv-1 and Dnipro-1 patrol police special task battalions.

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had any special legal powers of detention, meaning that civilians being detained by those battalions were in fact being held outside of the law. According to Ukrainian authorities, the legal basis for detentions of civilians by either volunteer battalions or military units was essentially a ‘citizen’s arrest’. Article 207 of the Criminal Procedures Code of Ukraine (CPC) provides for the detention of criminal suspects by persons who are not law enforcement officials, either during or immediately following an alleged crime.45 The police or SBU must immediately be given custody of any such detainees (or informed of their apprehension and whereabouts) in order to confirm and proceed with formal charges based on reasonable suspicion and specific facts.46 Within 72 hours of apprehension, the detainee must be provided with free legal aid, allowed to contact relatives or others, and be brought before a judge to review and approve the legal basis for any continued detention. Without a court order, the detainee must be immediately released when that period expires.47 In a 2011 report following a visit to Ukraine, the European Committee for the Prevention of Torture (CPT) expressed concern over the application of Article 207 by authorities. In practice, the CPT observed that the ‘grey period’ between the actual time of apprehension by militia and the time indicated when Internal Affairs drafted a protocol of detention often exceeded the 72-hour period of detention allowed without a court order.48 The CPT concluded that this commonplace procedural violation exposed detainees to ‘a heightened risk of ill-treatment’, including protracted interrogations without legal counsel, being handcuffed to a radiator overnight until ‘officially detained’, or being shuffled between Internal Affairs offices, for up to 17 days in one case.49 Amplifying that risk in the Ukraine conflict, a 2014 amendment to the Law on Fighting Terrorism extended the period from 60 hours to 30 days, within which a terrorism suspect arrested in the ATO zone must be presented before a court to review the basis of detention.50 In relation to those regulations, OHCHR found frequent violations of civilians’ procedural rights in detention, which it characterised as arbitrary and illegal.51 Many 45 See CPC Article 207 on “Lawful Apprehension”, under the section “Apprehension of a person without investigating judge’s, court’s ruling”. Ukrainian law enforcement authorities have cited this legal provision as the basis for detentions by military units and volunteer battalions. See Amnesty International, “Abductions and Torture in Eastern Ukraine” (note 34), p. 15. 46 Ibid. 47 See CPC Articles 12 and 186; Law of Ukraine on Free Legal Aid, Article 14.6. 48 See “Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 9 to 21 September 2009” (Strasbourg, 23 November 2011), para 10. Available at: http://www. cpt.coe.int/documents/ukr/2011-29-inf-eng.pdf. 49 Ibid. 50 See OHCHR report of 15 December 2014 (note 11), para 23; and Amendment to the Law of Ukraine on Fighting Terrorism. 51 In August 2014, OHCHR reported: “People are being detained without being given any explanation, for example while they were leaving the security operation areas affected by the fighting

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of those arbitrarily detained and abused by SBU or volunteer battalions were not apparently entered into the legal procedure at all following their secret detentions, instead being summarily released without charge.52 Even when transferred out of secret detention and into formal legal procedures, however, the majority of people against whom the prosecutor’s office had opened investigations did not reach the trial stage.53 Rather, the SBU frequently ordered the exchange of ATO criminal suspects during the investigation stage of prosecution, often with only one day’s notice to close criminal files and transfer custody of those persons to the ATO. Those practices flouted the presumption of innocence (among other abridged fairtrial rights and legal procedures), and contributed to the popular belief that illegal abductions were conducted against civilians who had committed no crimes, in order to increase the number of prisoners available for exchange. That phenomenon was also observed by Amnesty International, Human Rights Watch, and OHCHR.54 In an illustrative example from a prisoner exchange in September 2014, one released detainee told Amnesty International that only six of 28 SBU detainees with whom he was exchanged were separatist combatants—the rest comprising ordinary civilians, including some pro-Russian political activists.55 Though separatist forces have allegedly been guilty of the same conduct, the former DPR ‘Prime Minister’ specifically accused the Ukrainian authorities of presenting detainees for exchange who had no relation to separatist forces, quoted in the media as stating: ‘We send the lists of prisoners of war, and received a list of random people’.56 In January and March 2015, respectively, the official reportedly noted that as a basis for his threats to order DPR forces to stop taking Ukrainian soldiers as prisoners, implying such prisoners be killed instead, and not to facilitate ‘all-for-all’ exchanges of detainees under the Minsk ceasefire agreements.57 and security operation, and questioned without being delivered to law enforcement agencies. […] Detainees’ relatives were often not notified about the detention, and legal aid was rarely made available. According to the Criminal Code, an illegal detention is a crime, and as a consequence, the individual who is unlawfully detained must be immediately released. This does not seem to have been the case for those arrests which [OHCHR] followed: in the few cases of what appeared to be arbitrary detention that were brought to the attention of a court, releases have been rare.” See OHCHR report of 28 August 2014 (note 11), para 41. 52 Amnesty International, “Breaking Bodies” (note 44), pp. 5, 34. 53 OHCHR, report of 15 December 2014 (note 11), para 59. 54 See above at notes 31, and 34. 55 Amnesty International, “Breaking Bodies” (note 44), p. 26. 56 See “Zakharchenko: the exchange of prisoners will not [resume], while Kyiv breach the contract” (26 March 2015): http://news.rin.ru/eng/news///100668/. 57 Ibid. See also “Chapter DND said about the readiness to exchange prisoners with Kyiv” (26 January 2015): http://news.rin.ru/eng/news///85086/. The implication that Zacharchenko would order his forces to execute prisoners of war, rather than detain them, was startling and met with appropriate outrage in political responses and the news media—apparently leading him to backtrack in the days that followed. Nonetheless, the threat coincided loosely with increased reports of separatists executing Ukrainian soldiers upon their capture, particularly in the battles for the Donetsk airport and Debaltseve in January and February 2015. For details of those alleged summary killings, see Amnesty International, “Breaking Bodies” (note 44), pp. 16–19.

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8.3 Lack of Effective Remedies in Eastern Ukraine The human rights guaranteed to Ukrainian civilians under the Constitution and legal framework are in stark contrast with the actual experiences of victims in the conflict. Separatist-held territories entered into an accountability vacuum, without competent courts,58 or respect for the rule of law to redress violations of human rights or humanitarian law.59 Throughout Ukraine, the widespread corruption, abuse of power, lack of accountability and weak justice system, which characterised the ousted regime and gave rise to political revolution in February 2014, survived and took on a new life under the post-revolution governments. While the Ukrainian Government characterized the conflict in eastern Ukraine as an ‘anti-terrorist operation’ being conducted under criminal law, the law enforcement officials responsible for protecting civilians were often instead complicit in undermining and misusing the legal system to facilitate wartime abuses against them. Those systemic rule-of-law deficiencies have made it even more difficult to prevent abuses of civilians in the armed conflict, whether through the solicitation of interim measures or otherwise.

8.3.1 Human Rights Under Ukraine’s Constitution and Legal Framework The Constitution of Ukraine provides for all treaties ratified by the parliament to become part of the domestic legal order.60 The norms of ratified human rights treaties 58 See OSCE report, “Access to Justice and the Conflict in Ukraine” (22 December 2015), available at: http://www.osce.org/ukraine-smm/212311. 59 In October 2014, OHCHR reported: “An unlawful ‘criminal code’ was adopted by the so-called ‘presidium of the council of ministers’ of the ‘Donetsk people’s republic’; and entered ‘into force’ on 18 August. Modelled on the criminal code of the Russian Federation, its provisions include the establishment of military tribunals to implement death sentences to be applied in cases of aggravated murder.” (See OHCHR report of 8 October 2014 (note 11), para 9.) Amnesty International also condemned the so-called “criminal code”, under which military courts would be able to punish crimes including looting with execution, in violation of Common Article 3 of the Geneva Conventions. (See Amnesty International statement, “Armed group introduces ‘Criminal code’ permitting execution-style killings in eastern Ukraine”, 22 August 2014; AI Index: EUR 50/038/2014.) As of May 2015, however, neither the military court system nor law enforcement under the newly promulgated code appeared to have been meaningfully implemented, according to news media. 60 See Constitution of Ukraine, Article 9. The international human rights treaties ratified by Ukraine’s parliament include: International Convention for the Protection of All Persons from Enforced Disappearance; Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment; Optional Protocol of the Convention against Torture; International Covenant on Civil and Political Rights; Second Optional Protocol to the International Covenant on Civil and Political Rights aiming to the abolition of the death penalty; Convention on the Elimination of All Forms of Discrimination against Women; International Convention on the Elimination of All Forms of Racial Discrimination; International Covenant on Economic, Social and Cultural Rights; Convention on

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furthermore prevail over national laws.61 In keeping with the supremacy of international human rights law, Ukrainian courts are specifically obligated to apply the ECHR as domestic law, including its standards as developed in the case law of the European Court.62 However, a Council of Europe study found that Ukrainian judges rarely applied the ECHR (sometimes showing hostility toward reliance on Strasbourg case law), and even when they did so frequently demonstrated a limited understanding of ECHR human rights standards.63 With specific regard to detention, the study noted: Lawyers complained that judges dealing with pre-trial detention tended to take standard – ‘copy-pasted’ – decisions and did not exercise the discretion which existed under Ukrainian law and which the ECHR required be exercised where a person’s liberty was in issue.64

Surveyed lawyers expressed fear of applying the ECHR and European Court case law, ‘particularly in the criminal justice sphere’, with reports ‘of judges being given “advice” [by executive authorities] not to rely on ECHR requirements and being at risk of disciplinary sanctions if they did so’, in one such instance after a judge ‘did not authorise the continued detention of someone for whom this measure had been sought by the General Prosecutor’s Office’. Based on those trends, the Council of Europe study identified ‘a climate in which it is at least perceived to be inappropriate to apply certain aspects of the ECHR’s requirement’.65

8.3.2 Remedies Out of Reach in Ukraine’s Justice System According to reports by OHCHR and other human rights organisations active in eastern Ukraine, civilians have been extorted and abused by both sides, held in secret detention outside of the protection of law, and denied their procedural rights and access to courts. The justice system has allegedly been instrumentalised by the SBU to warehouse criminal suspects, who were shaken down for potential links to separatists, and then released or exchanged for soldiers and pro-Ukrainian hostages held by the Rights of the Child; Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict; Optional Protocol to the Convention on the Rights of the Child on the sale of children child prostitution and child pornography; Convention on the Rights of Persons with Disabilities. 61 Law of Ukraine “On international treaties of Ukraine”, Article 17, part 2 (20 July 2004). Available at: http://zakon4.rada.gov.ua/laws/show/1906-15. 62 The Law of Ukraine “On exercising of the decisions and practices of the European Court of Human Rights” (23 February 2006). 63 McBride, J., “The Training Needs of Ukrainian Judges and Lawyers with Regard to the European Convention on Human Rights,” Ref. DG-HL (2011) 13 (Strasbourg, 2 November 2011), paras 92– 93, 101, 112. Available at: http://www.coe.int/t/dgi/hr-natimplement/source/echr/CoE_Ukraine_E CHR_Training_Report_Final.pdf. 64 Ibid., para 96. 65 Ibid., para 111.

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separatists.66 The scale of abuses has certainly been underreported, as relatives of detainees feared retaliation and further harm to their loved ones, while those who were released from captivity often sought just to regain their previous lives as much as possible.67 When victims or their families did seek remedies, police and prosecutors often hesitated or failed to open criminal investigations against Ukrainian authorities (sometimes themselves afraid of reprisals),68 with negligible results even when they did so. In some cases when courts exercised due diligence in pursuing claims of abuse, their efforts were obstructed by the SBU. In one illustrative case documented by OHCHR, a criminal suspect accused of organizing riots in Kharkiv had been held in pre-trial detention from 26 April to 12 September 2014. Upon his court-ordered release, he was immediately detained again by the SBU, and the Facebook page of the Ministry of Internal Affairs the next day announced that he was being held in an ‘SBU isolation facility’. When his lawyer filed a complaint to the investigative judge who ordered his release, the SBU denied to the court that the detainee was in its custody. Though OHCHR reported that it had verified independently that the detainee ‘was

66 In November 2014, SBU reported to OHCHR that it had opened over 3,000 criminal proceedings into crimes of terrorism and separatism, leading to the arrest and detention of 668 suspects, of whom 150 were indicted, and only 30 were convicted. Noting that at least 19 of those 30 convictions were based on plea bargains, OHCHR voiced serious concern over “violations of fair trial standards,” including in light of “evidence of ill-treatment […] amounting to torture of people arrested by the SBU and MoIA in trying to secure forced confessions.” (OHCHR, report of 15 December 2014 (note 11), paras 59 and 69.) In December 2015, OHCHR reported that court decisions in such cases were “largely based on confessions of the accused”, who were more often sentenced to prison (versus deprivation of liberty with a probation period) if they refused to accept a plea bargain (see OHCHR report of 9 December 2015 (note 11), para 103). 67 In August 2015, OHCHR reported, “Victims of human rights violations alleged to have been committed by members of the Ukrainian military or law enforcement have been reluctant to file complaints fearing persecution if they are to remain in Government-controlled territory; or have been simply unable to file a complaint from the territories controlled by the armed groups, in the absence of functioning postal service between areas under Government control and those under the armed groups.” See OHCHR report of 15 August 2015 (note 11), para 117. In the UN humanitarian needs overview for 2015, OHCHR observed that: “The stress and burden of daily survival on the civilian population living in the [eastern Ukraine] conflict areas is enormous, let alone additional factors like loss of life, injury, fear of arbitrary detention, torture, sexual violence against men and women, forced conscription, and the illegal seizure and destruction of property. The breakdown of basic services and law and order leaves the people—including families, children, widows, and the elderly—on their own to face intimidation and reprisals, with little or no access to social, medical or legal services, or any means of livelihood to support themselves or their families.” (Available at: https://www.hum anitarianresponse.info/en/system/files/documents/files/2015_HNO_Ukraine_20141205_0.pdf). In its 2014 report, the CPT also observed that a climate of “intimidatory or retaliatory action against prisoners” for reporting abuses to the CPT had been a constant threat in Ukrainian prisons over 15 years of CPT visits. See CPT, “Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 9 to 21 October 2013” (Strasbourg, 29 April 2014), para 9. 68 See Amnesty International, “Ukraine: Abuses and War Crimes by the Aidar Battalion in the North Luhansk Region”, note 43.

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being held in a secret SBU facility in Kharkiv’, its subsequent ‘inquiries to the SBU and the prosecutor’s office have not produced any results’.69 The inability or unwillingness of civil and military prosecutors to pursue charges against Ukrainian forces for human rights abuses has also impeded accountability. According to OHCHR, ‘[t]he Office of the Prosecutor General, which is responsible for observation of compliance with the law by law enforcement bodies, reported that its investigations into allegations that the Kharkiv Regional Office of the SBU was used as a place of illegal detention, had not led to the identification of cases of illegal detention at that location, despite witness testimonies received by [OHCHR]’.70 In July 2016, Amnesty International and Human Rights Watch issued a joint report on disappearances, torture and other ill-treatment against civilians in eastern Ukraine, undertaken both by Ukrainian and separatist forces.71 In 2018, Human Rights Watch reported that the victims of SBU’s arbitrary detentions and disappearances at the secret prison in Kharkiv were still being denied justice.72 With jurisdiction over any crimes committed by military personnel in the National Guard, Border Guard and all volunteer battalions subordinated to the Ministry of Defence, the Office of Military Prosecution prioritised cases of desertion and disorderly conduct in the first year of the conflict, despite those forces’ frequent perpetration of serious human rights abuses.73 OHCHR repeatedly identified ‘instances where the military prosecutor’s office investigators refused to pursue a case, arguing that civil prosecutor’s office investigators had to prove first that servicemen had been involved in these crimes’.74

69 OHCHR

report of 20 November 2014 (note 11), para 45. para 74. 71 See Human Rights Watch, ‘You Don’t Exist’: Arbitrary detentions, enforced disappearances, and torture in eastern Ukraine (21 July 2016), available at: https://www.hrw.org/report/2016/07/21/youdont-exist/arbitrary-detentions-enforced-disappearances-and-torture-eastern. 72 See HRW, “Ukraine: Justice Needed for Former Secret Prison Detainees” (19 March 2018), available at: https://www.hrw.org/news/2018/03/19/ukraine-justice-needed-former-secret-prisondetainees. 73 As of December 2014, the OMP had not opened any criminal investigations into human rights abuses committed by volunteer battalions in eastern Ukraine. (OHCHR, report of 15 December 2014 [note 11], para 57.) From 1 January to 22 October 2015, OMP opened a total of 63 cases related to crimes against civilians, only 14 of which had reportedly been completed and submitted to courts in that period. Out of a total of 460 criminal proceedings in 2015, 300 cases concerned desertion (in comparison to the 63 involving crimes against civilians), and only 14 had reportedly been completed and submitted to courts as of 22 October 2015. See OHCHR report of 9 December 2015 (note 11), para 103. 74 OHCHR, report of 15 February 2015 (note 11), para 72. OHCHR noted that many volunteer battalions did not have standardized uniforms that clearly identified their personnel, making concrete evidence of their involvement difficult. Moreover, witnesses of abductions also observed battalions’ insignia being covered to prevent their identification. Ironically, even when eyewitnesses identified insignias of perpetrators, civilian prosecutors similarly shirked their duties to open investigations into alleged abductions by volunteer battalions under their jurisdiction, arguing that witnesses’ accounts of uniforms and insignia did not prove the involvement of volunteer battalions, since such outfits were easily attainable. 70 Ibid.,

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In January 2019, the UN Special Rapporteur on torture reported that Ukrainian authorities remained ineffective in the investigation of complaints of torture and other ill-treatment. The report observed: ‘[…] despite persistent allegations of systematic torture and other ill-treatment, notably made in relation to the aftermath of the conflict of 2014, formal investigations and prosecutions of such allegations appear to be rare, thus creating a strong perception of de facto impunity for acts of torture and other ill-treatment’.75

8.3.3 Duty of Due Diligence Accountability is key to prevent, halt and guarantee non-repetition of human rights violations. The European Court of Human Rights and other international tribunals have long held that human rights obligations of the state generally include authorities’ duty of due diligence to investigate, prosecute, punish and provide effective remedies for abuses, including disappearances or other violations of the right to life.76 That same duty of due diligence is integral to implementing binding interim measures to prevent further such human rights violations. Ukraine’s Constitution and legal framework already prohibit abduction, arbitrary detention, torture, ill-treatment and murder, while guaranteeing extensive fair-trial rights and protections under criminal procedures.77 The failures of police, prosecutors and courts to prevent, investigate and remedy the numerous human rights abuses alleged to be perpetrated against civilians by Ukrainian forces thus likely constitute separate violations of both the Ukrainian legal framework and Ukraine’s international human rights obligations, which are directly enforceable in domestic courts. The UN Human Rights Committee has likewise observed that allegations of serious human rights violations—particularly torture, enforced disappearances and violations of the right to life—require states to investigate, criminally prosecute, 75 See Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, “Visit to Ukraine”, UN Doc. A/HRC/40/59/Add.3 (17 January 2019), at para 59. 76 In its January 2015 judgment in the case of Say˘ gı v. Turkey, the Court reaffirmed: “[T]he obligation to investigate […] should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony. […] [I]t must be stressed that the above-mentioned obligations apply equally to cases where a person has disappeared in circumstances which may be regarded as life-threatening. […] [W]here there is a plausible, or credible, allegation, piece of evidence or item of information relevant to the identification, and eventual prosecution or punishment of the perpetrator of an unlawful killing, the authorities are under an obligation to take further investigative measures.” European Court of Human Rights, Say˘gı v. Turkey, Application no. 37715/11, paras 43–45, 48. 77 See Constitution of Ukraine, Chapter II “Human and Citizens’ Rights, Freedoms and Duties”. See also the Criminal Code of Ukraine and Criminal Procedural Code of Ukraine, which provide specific fair-trial rights, and prohibit torture, ill-treatment and unlawful detention, among other offences.

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try and punish those deemed responsible for such violations.78 States must prevent not only abuses of ICCPR rights by agents of the state, but also violations caused by ‘permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities’.79 Those obligations are of ‘immediate effect’ with respect to all ICCPR rights.80 When investigations reveal violations of the ICCPR, the Human Rights Committee has further stressed the importance of ‘guarantees of non-repetition and changes in relevant laws and practices, as well as the bringing to justice of perpetrators of human rights violations’.81 Failure to investigate and prosecute those responsible, whether for domestic crimes or human rights abuses, may amount to a new and separate violation of the ICCPR by the state.82 Under the Convention against Torture, which like other ratified treaties is directly enforceable in Ukrainian courts, authorities are expressly obligated to investigate,83 prosecute,84 and provide redress (including effective remedies and reparations) for torture or cruel, inhuman or degrading treatment or punishment,85 whether committed by state officials or private actors.86 In both government- and separatist-held territories, international humanitarian law (IHL) provides additional protections for combatants and civilians alike, and obligates Ukraine to investigate, prosecute and punish war crimes. Common Article 3 applies to crimes committed in eastern Ukraine by both separatist and Ukrainian 78 See: ibid.; Bautista de Arellana v Colombia, Communication No. 563/1993, CCPR/C/55/D/563/1993 (1995); Chaparro v Colombia, Communication No. 612/1995, CCPR/C/60/D/612/1995 (1997); and Hugo Rodríguez v Uruguay, Communication No. 322/1988, CCPR/C/51/D/322/1988, para 12.4 (1994). 79 Human Rights Committee, “General Comment No. 31 on the nature of the general legal obligation imposed on State parties to the Covenant”, 26 May 2004, UN Doc. CCPR/C/21/Rev.1/Add.13, para 8. 80 Ibid., para 5. 81 Ibid., para 16. 82 Ibid., para 18. 83 CAT, Article 12. 84 CAT, Article 7. 85 CAT, Articles 13–14. The provision of redress required of States under Article 14 in response to abuses comprises access to effective remedies and reparations (including compensation, guarantees of non-repetition, rehabilitation, restitution and satisfaction). See the Committee against Torture’s draft General Comment No. 3 on CAT, Article 14, available at: http://www2.ohchr.org/english/bod ies/cat/comments_article14.htm. 86 Committee against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, 24 January 2008, CAT/C/GC/2, paras 7, 18. As the Special Rapporteur on extrajudicial executions elaborated in a 2010 report: “Where there is a pattern of killings and the government’s response (in terms either of prevention or of accountability) is inadequate, the responsibility of the State is engaged. Under human rights law, the State is not only prohibited from directly violating the right to life, but is also required to ensure the right to life, and must meet its due diligence obligations to take appropriate measures to deter, prevent, investigate, prosecute and punish perpetrators.” Report of the Special Rapporteur on extrajudicial executions to the Human Rights Council, 20 May 2010, A/HRC/14/24, para 46(d).

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forces.87 As hostage-taking, murder, mutilation and rape are among the crimes of which separatist and/or Ukrainian forces are accused, Common Article 3 would apply at a minimum to any of those abuses carried out in the context of hostilities. In non-international armed conflicts, states are likewise obligated under customary IHL to investigate and prosecute any serious violations of Common Article 3 or the laws and customs of war that are committed by any party, including by nonstate actors.88 Customary IHL furthermore prohibits amnesties for war crimes in non-international armed conflicts.89 According to OHCHR, Ukrainian authorities opened more than 300 criminal cases into the indiscriminate shelling of residential areas by separatists since the beginning of the conflict, though without significant progress as of December 2014.90 On 3 February 2015, the DPR ‘ombudsperson’ also reported having collected evidence of war crimes committed by Ukrainian forces, reportedly including almost 3,000 documents, victim and witness accounts, and video footage. The ‘ombudsperson’ further reported receiving almost 2,000 individual complaints of abuses, which would be submitted to the European Court of Human Rights in a case against Ukraine.91 Yet, even in those reported investigations, the efforts to promote accountability were clearly pursued only in relation to the other side, thereby failing to fulfil the duty of due diligence to prevent further abuses and repair those already harmed.

8.3.4 International Criminal Court Jurisdiction in Ukraine Most victims of serious human rights abuses by either side of the Ukraine conflict continue to lack access to effective remedies, yet the Government of Ukraine took a positive step toward accountability when it accepted ICC jurisdiction on 8 September

87 Forms of ill-treatment expressly prohibited under Common Article 3 include: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. 88 Henckaerts and Doswald-Beck 2009, Rule 158; Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force, 1 July 2002) 2187 UNTS 3, Articles 7 and 8; Security Council, Resolution 955 (1994), Annex, Article 4, “Statute of the International Tribunal for Rwanda”; International Criminal Tribunal for the former Yugoslavia, Prosecutor v Duško Tadi´c (2 October 1995), No. IT-94-1-AR72, Decision on the Defense Motion for an Interlocutory Appeal on Jurisdiction, para 117. For a lengthier analysis of these customary obligations, as reflected in the above instruments and jurisprudence, see: Rodley and Pollard 2009, pp. 262, 271. 89 Henckaerts and Doswald-Beck 2009, Rule 159. 90 OHCHR, report of 15 December 2014 (note 11), para 56. 91 OHCHR, report of 15 February 2015 (note 11), para 73.

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2015 over crimes in its territory from 20 February 2014 onward (thus including the Russian seizure of Crimea, as well as the conflict in eastern Ukraine).92 While the acceptance of ICC jurisdiction does not promise to ensure effective remedies even in the long term, it has offered a deterrent to ongoing abuses by both sides of the conflict—particularly for separatist forces operating in a legal vacuum, who now face the prospect of individual criminal liability on the international stage. Additionally, it sends a strong signal to Ukrainian law enforcement and judicial authorities that have so far been unwilling or unable to adequately investigate, prosecute and punish abuses by Ukraine’s own armed forces and security services. However, there is first an urgent need to document and preserve evidence of crimes committed by both sides of the conflict (particularly evidence in the possession of authorities), and to pursue and advance justice domestically before deferring to the international level in any individual cases against Ukraine. In December 2019, the ICC’s Office of the Prosecutor said that it would seek in 2020 to finalise ‘its assessment of the admissibility of potential cases that would likely be the focus of any investigation, both in relation to Crimea and eastern Ukraine’.93 That admissibility assessment would also include a determination of the gravity, scale, and severity of impact on affected communities.94

8.4 Interim Measures and Urgent Responses in the Ukraine Conflict All sides of the conflict in Ukraine have committed serious violations of human rights and humanitarian law against civilian populations. With remedies out of reach for victims, the Government of Ukraine solicited interim measures against the Russian Federation before international tribunals; and non-governmental lawyers also requested interim measures in many of the thousands of individual complaints brought against both States. The earliest and most generally formulated interim measures requested by the European Court of Human Rights, in response to the first inter-state complaint by Ukraine against the Russian Federation, appeared to be largely ineffective due to their lack of specificity and lack of follow-up.

92 See the statement of the ICC, “Ukraine accepts ICC jurisdiction over alleged crimes committed since 20 February 2014” (8 September 2015), available at: https://www.icc-cpi.int/en_menus/ icc/press%20and%20media/press%20releases/Pages/pr1146.aspx. See also the declaration by the Government of Ukraine accepting ICC jurisdiction, lodged under Article 12(3) of the Rome Statute (8 September 2015), available at: https://www.icc-cpi.int/iccdocs/other/Ukraine_Art_12-3_declara tion_08092015.pdf. 93 See Office of the Prosecutor, International Criminal Court, Report on Preliminary Examination Activities: 2019, at para 288. Available at: https://www.icc-cpi.int/itemsDocuments/191205-repotp-PE.pdf. 94 Ibid. at para 285.

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Requests for interim measures in individual complaints anecdotally appeared to contribute more to the release of hostages in eastern Ukraine, though their overall effectiveness remained difficult to assess, including due to the decentralised command and control of conflict-affected territories by paramilitary forces and intelligence services, which operated with broad impunity. In contrast, requests for interim measures in relation to human rights violations in Crimea have gained greater traction and visibility, due both to the specificity of the measures requested, and follow-up through high-level and multilateral political advocacy that echoed and amplified those remedial requests.

8.4.1 Interim Measures on Abuses in Eastern Ukraine 8.4.1.1

Inter-State Complaints

On 13 March 2014, Ukraine submitted an inter-state case against Russia to the European Court of Human Rights for alleged violations related to the invasion and seizure of Crimea, as well as subsequent developments in eastern Ukraine.95 Under Rule 39 of the Rules of the Court, the European Court immediately called on both Russia and Ukraine to adopt interim measures, namely: ‘[…] to refrain from taking any measures, in particular military actions, which might entail breaches of the Convention rights of the civilian population, including putting their life and health at risk, and to comply with their engagements under the Convention, notably in respect of Articles 2 (right to life) and 3 (prohibition of inhuman or degrading treatment) ’.96

In several additional inter-state case submissions to the Court since 2014, Ukraine claimed ongoing Russian responsibility for the arbitrary detention, killing, torture and other ill-treatment of Ukrainian civilians and soldiers in both Crimea and eastern Ukraine, among other serious human rights violations.97 While those first interim measures imposed by the European Court remain in effect, and cover the whole territory of Ukraine (including Crimea), they appear to have done little to deter human rights violations by either state. The reasons for that 95 Inter-state application and request for interim measures in the case Ukraine v. Russia (Application No. 20958/14), 13 March 2014. 96 Registrar of the Court, “Interim measure granted in inter-State case brought by Ukraine against Russia” (Press release, 13 March 2014), Ref. No. ECHR 073 (2014). See also “Letter dated 17 March 2014 from the Permanent Representative of Ukraine to the United Nations addressed to the President of the Security Council”, UN Doc. S/2014/196 (17 March 2014). 97 For a summary of those inter-state cases, see European Court of Human Rights, “Q & A on InterState Cases” (12 June 2019), available at: https://www.echr.coe.int/Documents/Press_Q_A_InterState_cases_ENG.pdf. In the most recent of those cases, brought by Ukraine against the Russian Federation with regard to the seizure of Ukrainian naval personnel in the Kerch Strait, the European Court also requested interim measures. See Registrar of the Court, ECHR 421 (2018), at note 120 below.

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appear primarily to have been: (1) lack of specificity in the European Court’s request for interim measures, with regard to what those measures should comprise (owing in part to the speed with which they were issued, prior to many of the widespread abuses); (2) absent or ineffective follow-up measures to ensure the two states’ implementation of requested interim measures; and (3) inadequate international diplomatic pressure to hold the two governments accountable for their abuses in eastern Ukraine. Since the start of the conflict, civilians in eastern Ukraine have borne the brunt of indiscriminate shelling, a consequent humanitarian crisis, and dirty-war tactics by both the Ukrainian forces and separatists backed by Russia. Moreover, the alleged perpetrators of those human rights violations and war crimes against civilians have enjoyed widespread impunity. With remedies out of reach, and law enforcement actors either absent, or unable or unwilling to deter future abuses, civilians in both Ukrainian- and separatist-held territories remained at considerable risk. Soldiers and civilians who were held in informal or secret places of detention have been exposed to the most serious and immediate threats of irreparable harm. No international organisations (including CPT, ICRC, OHCHR, OSCE, or UN independent experts) could access such secret detention sites, where torture and abuse were allegedly the most frequent, extreme and likely to occur. The number of detainees who have been held in informal or secret detention facilities remains unknown, though Ukrainian news media estimated hundreds of such detainees or hostages being held by either side at the heights of reports from alleged victims and their families. Even when numerous civilians were released from arbitrary detention in eastern Ukraine, the diplomatic community and international organisations neither mentioned nor sought to reinforce the European Court’s request for interim measures.

8.4.1.2

Individual Complaints

Requests for interim measures appeared to have been more effective in relation to individual complaints, based on anecdotal accounts of lawyers who filed them. One year into the conflict, at the height of secret detentions, there were already more than 500 individual complaints that had been submitted to the European Court of Human Rights against Russia and/or Ukraine, in relation to alleged abuses in the conflict in eastern Ukraine.98 Approximately 190 of those complaints involved allegations of unlawful detention, torture or ill-treatment, mainly of detained combatants. In 165 of those cases, the European Court issued interim measures calling on the respective governments to adhere to their obligations under the Convention, particularly with regard to persons in detention or whose whereabouts were unknown. In

98 Registrar of the Court, Press release of 13 April 2015 (note 14). Of the 526 cases related to the conflict in Ukraine, 307 applications were lodged against both Ukraine and Russia, while 194 applications were lodged against Ukraine only, and 25 against Russia only. More than 20 of the complaints related to events in Crimea, primarily in the context of its occupation by Russia in March 2014.

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45 of those cases, the European Court subsequently lifted its requests for interim measures, following the reported release of the individuals in question.99 In October 2015, the Registrar of the European Court reported that the total number of individual complaints regarding both Crimea and eastern Ukraine had surpassed 1,400, including among others: more than 200 regarding the abduction and detention of soldiers; more than 100 alleging torture, disappearances, or arbitrary killings; and over 800 in relation to properties damaged in the military conflict in eastern Ukraine. In more than 150 individual cases, the interim measures issued by the European Court remained in force.100 By September 2019, there were more than 5,000 individual applications before the Court, in relation to events in Crimea and eastern Ukraine,101 not including over 1,170 cases that were rejected in 2016 as unsubstantiated.102 While individual complaints and interim measures may have encouraged greater respect for the rights of some individuals in detention, most of the cases they addressed in the first year of conflict involved alleged victims who had been engaged in combat, according to the European Court. Due to a variety of factors—including lack of confidence in the justice system, and actual or perceived threats of retaliation—many civilian victims of the conflict had no legal recourse, or feared seeking remedies for ongoing or past abuses that they or their loved ones have suffered. The majority of the cases submitted to the European Court during the first year were brought by prominent and capable Ukrainian human rights NGOs or lawyers, though they almost exclusively dealt with alleged abuses by separatist forces. That partisan pursuit of remedies through interim measures constituted another potential barrier for civilians allegedly mistreated by Ukrainian forces or authorities (see below for a deeper exploration of this trend). Conversely, Russia has summarily rejected all communications of individual cases related to separatist abuses in eastern Ukraine, denying any direct involvement in the conflict despite voluminous public evidence to the contrary. As Ukraine has no control over separatist-held territories, complainants and victims have been left in limbo, awaiting European Court decisions that are slow to come and uncertain to provide urgent relief—making interim measures all-the-more vital to secure and enforce. In the first year of the conflict, two of the most active Ukrainian human rights NGOs had brought approximately half (250) of the individual complaints before the European Court on cases related to the conflict in eastern Ukraine, representing victims and their families. The NGOs’ litigation directors confirmed that the vast majority of those cases dealt with alleged abuses by separatists against Ukrainian 99 Ibid. 100 Registrar

of the Court, “European Court of Human Rights communicates to Russia new interState case concerning events in Crimea and Eastern Ukraine” (Press release, 1 October 2015), Ref. No. ECHR 296 (2015). 101 Registrar of the Court, “Grand Chamber hearing on inter-State case Ukraine v. Russia (re Crimea)” (Press release, 11 September 2019), Ref No. ECHR 309 (2019). 102 Registrar of the Court, “ECHR to adjourn some individual applications on Eastern Ukraine pending Grand Chamber judgment in related inter-State case” (Press release, 17 December 2018), Ref. No. ECHR 432 (2018).

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soldiers (as well as some civilians) presently or previously detained in eastern Ukraine.103 Submissions to the European Court have risen consistently since then, as domestic remedies remained largely unavailable or ineffective. There were no functional courts in separatist-held territory in which to pursue legal claims, and Ukrainian law enforcement authorities reportedly often declined to open investigations into separatist abuses without the possibility of securing evidence in separatist-held territory.104 Due to the complexity of establishing the responsibility of either state for separatist abuses and inadequate remedies, the NGOs strategically lodged many of the cases against both Ukraine and Russia, including in relation to the latter’s extraterritorial obligations. The majority of those early complaints by both organisations alleged violations of ECHR Articles 2 (right to life), 3 (prohibition of torture and other ill-treatment) and 5 (right to liberty and security); some also alleged violations of Articles 4 (prohibition of forced labour) and 13 (right to an effective remedy). Notably, only one of the two NGOs reported lodging any cases related to alleged abuses by Ukrainian forces in eastern Ukraine during the first year of the conflict, exactly when such abuses were the most common. That NGO reported lodging two or three complaints against Ukraine, though insisted that abuses by Ukrainian forces were a ‘rare exception’, while suggesting that abuses by separatists were the rule. The other NGO, which had brought no claims against Ukraine for alleged abuses by Ukrainian forces, asserted that free legal aid was available and provided to defendants under Ukrainian law, putting remedies within reach for people claiming abuses by Ukrainian forces or authorities. In those cases in which the Court requested interim measures, it reportedly often called for the release of detainees and/or the cessation of ill-treatment against them. Unofficially, both NGOs reported receiving anecdotal information that interim measures may have positively impacted the treatment of detainees or expedited their release from captivity. Yet neither had evidence to that effect, and cautioned that such reports were highly speculative. One NGO said it requested interim measures by the Court in the majority of the cases it had submitted. However, the other NGO noted that many complainants were afraid to submit cases until the return of their relatives from captivity, at which point they were no longer at risk of irreparable harm. For that reason, the NGO had only requested interim measures in about 10 percent of the cases, particularly when there were specific allegations of torture, abuse, or conditions or injuries needing treatment. In those cases, the Court often issued the requested interim measures, though occasionally first afforded time for the respective countries to respond to the allegations.

103 Private

phone interviews on 13 and 25 April 2015. Due to the sensitivity of the topics of these cases, the names of the organizations and interviewees are omitted. 104 See, e.g., OSCE report, “Access to Justice and the Conflict in Ukraine” (22 December 2015), available at: http://www.osce.org/ukraine-smm/212311. See also OHCHR report of 15 August 2015 (note 11), paras 7, 115 and 116.

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Russian Federation Non-compliance with European Court Orders

The Russian Federation has systematically rejected all communications of individual complaints alleging its involvement in abuses in eastern Ukraine, as well as accompanying requests for interim measures in those cases. At the request of the Russian Government, the European Court of Human Rights twice extended the Russian Federation’s initial deadline to submit its observations on the admissibility of two of the first three inter-state applications lodged against it by Ukraine.105 During that extended response period, the Russian Federation’s Constitutional Court issued a ruling on 14 July 2015 that the government would not be required to implement European Court judgments if they contravened the Russian Constitution.106 Apparently conflicting with the Russian Federation’s obligations under international treaty law,107 such a decision could further undermine the right to an effective remedy for claimants, and the execution of judgments by the European Court in future claims, including in the thousands of individual cases that have already been submitted to the Court in relation to the conflict in eastern Ukraine. This potential rejection of remedial orders would compound the harm already caused by the Russian Federation’s failure to urgently adopt interim measures to halt alleged abuses in eastern Ukraine and Crimea. In December 2015, Russian President Vladimir Putin signed into force amendments to Russian federal constitutional law that empower the Constitutional Court to decide whether or not judgments of international human rights bodies (including the European Court) are enforceable in Russia, and to prevent the enforcement of those that are not.108 On 11 December 2015, the Parliamentary Assembly of the Council of Europe (PACE) Committee on Legal Affairs and Human Rights requested an opinion on the law by the European Commission for Democracy through Law (Venice Commission). In June 2016, the Venice Commission confirmed that the legal amendments contravened both Article 27 of the Vienna Convention on the Laws of Treaties (rejecting the invocation of domestic legislation to justify non-performance of treaty obligations), and Article 46 of the European Convention on Human Rights (requiring the enforcement of its decisions).109 105 Registrar

of the Court, “European Court of Human Rights communicates to Russia new interState case concerning events in Crimea and Eastern Ukraine” (Press release, 1 October 2015), Ref. No. ECHR 296 (2015). 106 See the Russian Constitutional Court’s statement on the ruling, available at: http://www.ksrf.ru/ ru/News/Pages/ViewItem.aspx?ParamId=3244. 107 Article 27 of the Vienna Convention on the Law of Treaties (1969) provides: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” 108 See Federal Constitutional Law No. 7-FKZ, “on Amendments to the Federal Constitutional Law on the Constitutional Court of the Russian Federation” (dated 14 December 2015), available at: http://www.venice.coe.int/webforms/documents/?pdf=CDL-REF%282016%29006-e. 109 See Venice Commission, Opinion no. 832/2015 (13 June 2016), CDL-AD(2016)016, at paras 142 et seq. Available at: https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDLAD(2016)016-e.

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The Ministry of Foreign Affairs (MFA) of the Russian Federation made frequent comments questioning the legitimacy of both PACE decisions and European Court rulings during this period, due to PACE’s suspension of the Russian Federation’s voting rights during the recent appointment of judges to the European Court.110 In June 2019, PACE restored the Russian Federation’s membership, seeming at least partly to alleviate those challenges of competence.

8.4.2 Interim Measures on Abuses in Crimea In contrast with the European Court’s overbroad and ineffectual 2014 request for interim measures throughout Ukraine—which failed to deter or draw attention to rampant abuses in eastern Ukraine, or the unlawful annexation of Crimea—several judicial and quasi-judicial bodies have issued more precise requests for interim measures in Crimea. Due at least in part to their greater precision, some of those interventions in Crimea have attracted considerably more international attention and consequently more effective follow-up. In particular, the April 2017 provisional measures of the International Court of Justice (ICJ) have served as a constant touchstone of the international community in its condemnation of the Russian Federation’s unlawful invasion and annexation of Crimea, and its subsequent campaign of human rights abuses against ethnic Ukrainian and Crimean Tatar communities therein. In its provisional measures, the ICJ ordered the Russian Federation to fulfil its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), including to: ‘Refrain from maintaining or imposing limitations on the ability of the Crimean Tatar community to conserve its representative institutions, including the Mejlis; [and] Ensure the availability of education in the Ukrainian language’.111

In its decision to order those precise provisional measures, the ICJ cited as a partial basis the reporting of the OSCE and OHCHR, which both revealed serious human rights violations by the Russian Federation against those communities in Crimea.112 110 See,

for example, the following statements of the MFA: “Foreign Minister Sergey Lavrov’s interview with Euronews, Moscow” (16 October 2018, available at: https://www.mid.ru/ en/foreign_policy/news/-/asset_publisher/cKNonkJE02Bw/content/id/3374833); “Director of the Foreign Ministry’s Department for Humanitarian Cooperation and Human Rights and Commissioner for Human Rights, Democracy and the Rule of Law Anatoly Viktorov in an interview with Rossiya Segodnya” (11 December 2017, available at: https://www.mid.ru/en/foreign_policy/hum anitarian_cooperation/-/asset_publisher/bB3NYd16mBFC/content/id/2983301); and “Briefing by Foreign Ministry Official Spokesperson Maria Zakharova, Moscow” (2 March 2018, available at: https://www.mid.ru/en_GB/foreign_policy/news/-/asset_publisher/cKNonkJE02Bw/content/id/ 3106032). 111 See ICJ, Request for the indication of provisional measures, Ukraine v. Russian Federation. Order of 19 April 2017, at para 106. Available at: https://www.icj-cij.org/files/case-related/166/ 166-20170419-ORD-01-00-EN.pdf. 112 Ibid. at para 97.

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Thereby drawing on specific accounts of human rights violations, the ICJ indicated equally precise provisional measures to prevent those abuses, which served as a yardstick to measure the Russian Federation’s compliance as it turned the screws on the ethnic Ukrainian and Crimean Tatar communities. Since the indication of those provisional measures, the UN General Assembly has adopted multiple resolutions against the Russian Federation’s annexation and occupation of Crimea, citing in each iteration the ICJ’s request for provisional measures in Crimea, with which the Russian Federation has yet to comply. In December 2017, the General Assembly ‘urge[d] the Russian Federation […] to fully and immediately comply with the order of the International Court of Justice of 19 April 2017 on provisional measures’.113 In December 2018, the General Assembly echoed its condemnation, declaring that it ‘[d]eplores the failure of the Russian Federation to comply with the repeated requests and demands of the General Assembly, as well as with the order of the International Court of Justice of 19 April 2017 on provisional measures’.114 In an August 2019 report to the General Assembly, the UN SecretaryGeneral urged the Russian Federation, inter alia, to halt its ongoing dismantling of Crimean Tatar institutions and remedy the lack of Ukrainian-language education in Crimea, as documented by OHCHR, as well as to abide by the past resolutions of the General Assembly and binding order of provisional measures by the ICJ.115 In November 2019, the ICJ rejected preliminary objections by the Russian Federation that it had no jurisdiction over the matters presented in the case submitted by Ukraine.116 The Russian Federation acknowledged and did not dispute the ICJ’s decision.117 Though garnering less public recognition and recital than the ICJ’s provisional measures on Crimea, several other international bodies also ordered the Russian Federation to adopt interim or provisional measures in 2018 and 2019, in relation to specific alleged violations in Crimea. The European Court of Human Rights and the International Tribunal for the Law of the Sea (ITLOS) both called for interim measures in response to the Russian 113 UNGA

Res. A/RES/72/190, “Situation of human rights in the Autonomous Republic of Crimea and the city of Sevastopol, Ukraine” (19 December 2017), at para 3. Available at: https://undocs. org/en/A/RES/72/190. 114 UNGA Res. A/RES/73/263, “Situation of human rights in the Autonomous Republic of Crimea and the city of Sevastopol, Ukraine” (22 December 2018), at para 1. Available at: https://undocs. org/pdf?symbol=en/A/RES/73/263. 115 Report of Secretary-General, “Situation of human rights in the Autonomous Republic of Crimea and the city of Sevastopol, Ukraine” (2 August 2019), UN Doc. A/74/276; at paras 48 to 50. Available at: https://reliefweb.int/sites/reliefweb.int/files/resources/A_74_276_E.pdf. 116 See Ministry of Foreign Affairs of the Russian Federation, “Press release on judgment of the International Court of Justice regarding Russia’s preliminary objections to jurisdiction in the case Ukraine v. Russian Federation” (9 November 2019), available at: https://www.mid.ru/en/web/guest/ maps/ua/-/asset_publisher/ktn0ZLTvbbS3/content/id/3892148. 117 See Ministry of Foreign Affairs of the Russian Federation, “Press release on judgment of the International Court of Justice regarding Russia’s preliminary objections to jurisdiction in the case Ukraine v. Russian Federation” (9 November 2019), available at: https://www.mid.ru/en/web/guest/ maps/ua/-/asset_publisher/ktn0ZLTvbbS3/content/id/3892148.

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Federation’s capture on 25 November 2018 of three Ukrainian naval vessels and their 24 sailors in the Kerch Strait running between Crimea and the Russian Federation. The European Court called on 4 December 2018 for Russian authorities to ‘ensure that appropriate medical treatment be administered to those captive Ukrainian naval personnel who required it’.118 On 25 May 2019, ITLOS more forcefully ordered the Russian Federation to release from detention all 24 Ukrainian sailors, and to return the three naval vessels to Ukraine.119 The Russian Federation denounced the ITLOS order of provisional measures as illegitimate, and questioned the Tribunal’s jurisdiction over the case submitted by Ukraine, claiming that ‘the procedures for settling arguments under the UN Convention of the Sea are not applicable in this case’.120 In response, both the European Council121 and the European Parliament issued strong rebukes of the Russian Federation’s failure to release the sailors, among other political prisoners.122 In an 18 July 2019 resolution, the European Parliament noted the ITLOS request for provisional measures, and ‘call[ed] on Russian authorities to release without further delay and unconditionally all illegally and arbitrarily detained Ukrainian citizens […] including […] the 24 crew members of the Ukrainian naval vessels’.123 Despite Russian authorities’ unwillingness to recognise the Tribunal’s authority in the case, or OHCHR’s designation of the sailors as prisoners of war,124 who were subsequently held in Russia,125 the Russian Federation on 7 September 2019 released and returned all 24 sailors to Ukraine in an equal exchange of 35 prisoners from each

118 Registrar

of the Court, ECHR 421 (2018), “ECHR grants interim measure in new inter-State case brought by Ukraine against Russia concerning events in the Kerch Strait” (4 December 2018). Available at: https://hudoc.echr.coe.int/app/conversion/pdf?library=ECHR&id=003-6269235-816 6102&filename=ECHR-grants-Rule-39-in-new-inter-State-case-Ukraine-v.-Russia-concerningevents-in-the-Kerch-Strait.pdf. 119 ITLOS, case concerning the detention of three Ukrainian naval vessels (Ukraine v. Russian Federation). Request for the prescription of provisional measures. Order, at para 124. Available at: https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_26/C26_Order_25.05.pdf. 120 See Ministry of Foreign Affairs of the Russian Federation, “Press release on the information forwarded to the International Tribunal for the Law of the Sea regarding the November 2018 incident in the Kerch Strait” (26 June 2019), available at: https://www.mid.ru/en/web/guest/maps/ ua/-/asset_publisher/ktn0ZLTvbbS3/content/id/3701462. 121 See Delegation of the EU to Russia, “European Council meeting, 20–21 June: main results” (24 June 2019), available at: https://eeas.europa.eu/delegations/russia/64527/node/64527_bg. 122 See European Parliament, “European Parliament resolution of 18 July 2019 on Russia, notably the situation of environmental activists and Ukrainian political prisoners” (18 July 2019). https:// www.europarl.europa.eu/doceo/document/TA-9-2019-0006_EN.html. 123 Ibid. 124 OHCHR, Report on the human rights situation in Ukraine: 16 November 2018 to 15 February 2019, at para 14. Available at: https://www.ohchr.org/Documents/Countries/UA/ReportUkraine16 Nov2018-15Feb2019.pdf. 125 OHCHR, Report on the human rights situation in Ukraine: 16 May to 15 August 2019, at para 119: https://www.ohchr.org/Documents/Countries/UA/ReportUkraine16May-15Aug2019_EN.pdf.

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side.126 Among the 11 other prisoners released by the Russian Federation were an abducted Crimean Tatar named Edem Bekirov,127 and the Ukrainian filmmaker and activist Oleg Sentsov,128 in relation to both of whose cases the European Court had separately requested interim measures. Even amidst those prisoner exchanges, which were not expressly in response to the interim measures requested in many cases, the Russian Federation continued to crack down on Crimean Tatar and Ukrainian institutions in Crimea. On 6 and 20 September 2019, the UN Human Rights Committee requested twice that the Russian Federation adopt interim measures to halt its eviction of a Ukrainian Orthodox Church congregation from its cathedral in Simferopol, Crimea.129 In December 2019, the cathedral was robbed and vandalised by unknown actors, as the congregation continued to battle the eviction in Russian courts.130 These international bodies’ requests for interim measures in Crimea appeared to be more numerous and prominent than the European Court’s earlier request for several reasons. First, since that earlier request the Russian Federation has unlawfully occupied and recognised Crimea as part of its national territory, for which reason its government has responded forcefully to international tribunals’ binding requests for interim measures (as opposed to in eastern Ukraine, where the Russian Federation implausibly denies any involvement in separatist abuses). Second, Ukrainian civil society representatives have worked in close coordination with Ukraine’s Ministry of Foreign Affairs and Ministry of Justice on key cases in occupied Crimea, thereby supporting the government’s interventions with social movements. Third, the Ukrainian government and its allies have dedicated considerably more attention to the legal status of Crimea as an occupied territory, and the conditions therein, including through regular interventions on the floor of the UN General Assembly and other international fora. That political focus of Ukrainian authorities also reflects Ukraine’s lesser state responsibility for international crimes and serious human rights violations in Crimea, whereas in eastern Ukraine their forces committed abuses in some cases equally heinous to those of Russian-backed separatists. Whereas Russian Federation authorities have declined to recognise their state responsibility for separatists’ conduct in eastern Ukraine, they have alternatively

126 OHCHR,

Report on the human rights situation in Ukraine: 16 August to 15 November 2019, at para 9. Available at: https://www.ohchr.org/Documents/Countries/UA/28thReportUkraine_EN. pdf. 127 See Amnesty International, “Russian Federation: Crimean Tatar Edem Bekirov Finally Free” (18 September 2019), available at: https://www.amnesty.or.jp/en/get-involved/ua/ua/2019ua079.html. 128 See Human Rights Watch, “Russia/Ukraine Prisoner Exchange Includes Release of Oleg Sentsov” (7 September 2019), available at: https://www.hrw.org/news/2019/09/07/russia/ukraineprisoner-exchange-includes-release-oleg-sentsov. 129 See letters of the UN Human Rights Committee to the Russian Federation, available at: Kharkiv Human Rights Protection Group, “Cathedral plundered as Russia pushes to crush the Ukrainian Orthodox Church in Crimea” (10 December 2019): https://khpg.org/en/index.php?id=1575823469. 130 Ibid.

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declined to recognise international tribunals’ jurisdiction over and binding orders in response to the Russian Federation’s conduct in Crimea. Even in high-profile individual cases of political prisoners in Crimea—whether Ukrainian sailors in the ITLOS case, or prominent activists whose cases have been championed by European diplomats—the Russian Federation has most frequently released individuals not expressly in response to interim measures, but as part of exchanges of equal numbers of prisoners.131 Even so, the interim measures have in some cases demonstrated their utility as a legal tool to increase political pressure and advance political settlements, in order ultimately to secure the protection of individual detainees or communities at risk of irreparable harm.

8.5 Concluding Observations Civilian populations have suffered widespread irreparable harm from abuses by Ukrainian, Russian and separatist forces alike, and been routinely denied access to effective remedies, in some cases leaving them at severe risk of further harm. Operating under considerable political and operational pressure during the conflict, Ukrainian law enforcement institutions have also undermined access to effective remedies. The Ukraine conflict offers important lessons to human rights institutions and practitioners on what supplementary forms of intervention could help to urgently close protection gaps, and in which circumstances requests for interim measures are more likely to be effective. Notably, the European Court’s call for Ukraine and the Russian Federation to adopt interim measures to protect civilian populations from death, injury and ill-treatment, failed to prevent widespread abuses by all sides of the conflict in eastern Ukraine. As the Court itself has highlighted previously, complainants’ requests for interim measures should be individuated and fully reasoned, demonstrating imminent risk of irreparable harm to the proposed beneficiaries.132 In part by failing to meet those same criteria in its general appeals for interim measures in Ukraine, the European Court’s own initial request was not specific enough to be actionable and promote accountability. Nonetheless, the European Court’s apparent willingness to issue interim measures of general application over the whole territory of Ukraine should prompt the consideration by practitioners of additional opportunities to address systematic or institutionalised threats of irreparable harm to individuals or groups at risk. As interim measures can only be issued in connection with proceedings before the Court (typically prior to admissibility decisions), practitioners could specify within their requests for interim measures the patterns of abuse already identified by human rights organisations (including as relate to individual cases), and push for recipient states to report on 131 Olexandra

Matviychuk, Center for Civil Liberties (phone conversation, 26 December 2019).

132 European Court of Human Rights, “Info Note no. 138, Rule 39 of the Rules of the Court, Interim

measures,” Statement issued on 11 February 2011 by the President of the Court.

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the status of investigations into alleged abuses, and/or measures taken to prevent potential irreparable harm. A powerful recent example of interim measures that are both specific and include follow-up measures are those requested by the ICJ in January 2020 in the case of The Gambia v. Myanmar. In its request for interim measures, the Court ordered Myanmar to halt and prevent specific documented violations, and preserve evidence of those crimes; they additionally imposed a regular reporting obligation on Myanmar to inform the Court of all measures giving effect to the order.133 While the Court did not deliver on Gambia’s request to require the facilitation of physical access for international UN fact-finding investigators, that requirement could have conceivably been conjoined to the follow-up requirement. It likewise would be a highly appropriate order to the Russian Federation in relation to Crimea, where authorities have systematically denied access to human rights monitors of the UN, OSCE and Council of Europe, among others. While the most successful human rights interventions in eastern Ukraine have apparently been those led by domestic Ukrainian NGOs in their submissions to the European Court of Human Rights in individual cases, the impact of the interim measures they have secured and the prospects of their ongoing complaints are still not entirely clear. Anecdotally, the positive assessments of interim measures’ potential contributions to the protection of detainees in and of themselves justify (and require as a matter of due diligence) that practitioners continue to request interim measures from the European Court, as well as from other judicial and quasi-judicial bodies, as appropriate. Drawing on successes in the use of interim measures in Crimea, practitioners could likewise consider seeking out more targeted requests for interim measures in eastern Ukraine, in order to target specific abuses or practices of general application by Ukrainian or separatist forces. In Crimea, the attitude of the Government of Ukraine has also demonstrated the potential effectiveness of requests for interim measures, when combined with public pressure from social movements and the diplomatic community, fuelled by affirmations of binding international legal standards. On the other side of that diplomatic posturing, by seeking to justify its unlawful claim of sovereignty in Crimea, the Russian Federation has appeared to take international legal claims more seriously in Crimea than in eastern Ukraine, in the latter of which it denies any state responsibility for human rights violations by its separatist proxies.

133 International Court of Justice, Order of 23 January 2020 in the case of The Gambia v. Myanmar.

Available at: https://www.icj-cij.org/files/case-related/178/178-20200123-ORD-01-00-EN.pdf.

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Ukraine’s acceptance of ICC jurisdiction over crimes committed in the conflict since February 2014, as well as its accession to the International Convention for the Protection of All Persons from Enforced Disappearance (including the competence of the Committee on Enforced Disappearances to receive individual and inter-state complaints), are both laudable and highly positive measures with the potential to advance accountability in the long term. Both developments have also offered practitioners additional avenues to channel documentation of human rights violations and war crimes, with a view to accountability and their cessation, where interim measures have not halted or repaired violations.

References Henckaerts J, Doswald-Beck L (2009) Customary International Humanitarian Law. ICRC/Cambridge University Press Krsticevic V, Griffey B (2016) Interim Measures. In: Langford M, Porter B, Brown R, Rossin J (eds) The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: A Commentary. Pretoria University Law Press (PULP), Pretoria, pp. 293–325 Rodley N, Pollard M (2009) The Treatment of Prisoners under International Law, 3rd edn. Oxford University Press

Brian Griffey is a Regional Researcher/Advisor for Amnesty International, based in Washington, DC, USA. This contribution is written in a personal capacity, and does not represent the views of Amnesty International. The author lived in Donbas, Ukraine, from September 2014 to March 2015 while working for the Organization for Security and Co-operation in Europe (OSCE) Special Monitoring Mission to Ukraine (SMMU), and was the lead researcher and author of the OSCE’s Report of the Human Rights Assessment Mission on Crimea (6–18 July 2015), published in September 2015.

Chapter 9

Urgency at the European Court of Human Rights: New Directions and Future Prospects for the Interim Measures Mechanism? Philip Leach Contents 9.1 9.2 9.3 9.4

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A Broader Scope? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . State Resistance to Interim Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Verifying Compliance with Interim Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.4.1 Access to Lawyers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.4.2 The Well-Being of Detainees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.5 Situations of Armed Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This chapter examines the application of interim measures by the European Court of Human Rights, specifically focusing on their scope and on the efficacy of the process. The Court’s use of interim measures is primarily aimed at preventing ‘irreparable damage’ in extradition or deportation cases. In this contribution, other urgent cases are considered, such as detainees’ access to a lawyer and the right to receive adequate medical treatment. Moreover, the analysis of the Court’s evolving practice shows a further broadening of the scope of situations in which interim measures are applied. The chapter also discusses the extent of state resistance to interim measures and whether they could be a useful instrument to preserve the Convention rights of applicants in the context of armed conflict. Finally, the chapter stresses the importance of follow-up and discusses whether and how the Court should monitor compliance with interim measures directions while a case is still pending before it, rather than just ex post facto. Keywords access to information · access to lawyer · armed conflict · broadening scope · deportation · efficacy · European Court of Human Rights · extradition · P. Leach (B) Law School, Middlesex University, The Burroughs, London NW4 4BT, UK e-mail: [email protected] European Human Rights Advocacy Centre (EHRAC), Middlesex University, The Burroughs, London NW4 4BT, UK © T.M.C. Asser Press and the authors 2021 E. Rieter and K. Zwaan (eds.), Urgency and Human Rights, https://doi.org/10.1007/978-94-6265-415-0_9

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follow-up mechanisms · interim measures · legitimacy · non-refoulement · provisional measures · right to receive adequate medical treatment

9.1 Introduction The plurality of the free media is acknowledged to be a significant component of truly democratic societies, but it has not hitherto been the subject of the interim measures regime of the European Court of Human Rights (‘the European Court’ or ‘the Court’)—which enables it to take urgent action to prevent ‘irreparable damage’ while a case is pending before it. That changed in 2017 when the European Court stepped decisively into an intractable dispute over control of the media in Georgia by blocking an order of the Georgian Supreme Court relating to the ownership of the Rustavi 2 broadcasting company. That decision begs important questions about the breadth of the power of the Court to apply interim measures, which has usually been more narrowly focused on cases concerning an imminent threat of harm to the person. This chapter asks questions about the application of interim measures by the European Court—both as to its scope and the efficacy of the process. The Court’s use of interim measures is primarily focused on removal cases, and there is much literature on that subject, but this contribution primarily discusses situations other than removal cases. With the Court facing a seemingly unstinting flow of systemic violations, and other serious challenges, such as the huge volume of cases arising from the conflict in eastern Ukraine1 and following the imposition of a state of emergency in Turkey, it is time to ask whether the interim measures process is being utilised to its full potential, or whether it could and should be further developed. It is acknowledged that these arguments are being put forward in spite of the Court’s continuing practice of rejecting interim measures applications in the vast majority of cases.2 Nevertheless, such questions are pertinent not only to applicants seeking to have their rights vindicated before the Court, but also to the Court itself in fulfilling its Article 19 role of ensuring states’ observance of their Convention obligations in urgent cases, and indeed to everyone with an interest in maintaining a truly effective human rights system for the continent of Europe. Pointing in particular to cases that raise challenges to judicial independence across Europe, Lawson has argued that the Court should respond immediately to cases which concern apparent threats to the rule of law and has suggested that this necessitates reviewing its interim measures practice.3 1 By

December 2018, there were more than 4,000 applications pending at the Court relating to the Russian occupation of Crimea or the hostilities in eastern Ukraine. See: European Court of Human Rights, ECHR to adjourn some individual applications on Eastern Ukraine pending Grand Chamber judgment in related inter-State case, Press Release, 17 December 2018. 2 For example, between 2016 and 2018 only 389 rule 39 applications were granted (as regards all 47 states), out of a total of 5,495 requests (a seven per cent success rate). See: European Court of Human Rights, Rule 39 requests granted and refused in 2016, 2017 and 2018 by respondent state, available at: https://www.echr.coe.int/Documents/Stats_art_39_01_ENG.pdf. Accessed 5 November 2019. 3 Lawson 2020.

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Regrettably, there still continues to be no little degree of state resistance to the use of interim measures. The chapter seeks to assess to what extent the Court can address the range of urgent situations that may arise under the Convention. To that end, it discusses the apparent expansion in scope of, and serious instances of states’ non-compliance with, interim measures, before considering two specific situations in which interim measures have been applied—detainees’ access to lawyers and their right to receive appropriate medical care—to ask whether there is adequate monitoring of state authorities’ implementation of interim measures. Finally, it considers how the tool of interim measures could be used in the context of situations of armed conflict.

9.2 A Broader Scope? As has often been emphasised, interim measures have most commonly been applied by the European Court in cases of removal, where an applicant is threatened with expulsion to a country where there is a danger of torture or death—the Court requiring a stay in the domestic proceedings, pending consideration of the case in Strasbourg.4 Nevertheless, the power to issue interim measures is framed much more broadly and generally than that, which has led to its application to an ever widening spectrum of situations. The practice is not regulated by the European Convention on Human Rights, but by the Court’s Rules.5 Rule 39(1) enables the Court to indicate to any of the parties to a case ‘any interim measure’ that it considers ‘should be adopted in the interests of the parties or of the proper conduct of the proceedings’. The test, as set out by the Grand Chamber in the case of Mamatkulov, is whether there is an ‘imminent risk of irreparable damage’—the Court also noting that ‘there is no specific provision in the Convention concerning the domains in which rule 39 will apply’.6

4 Mamatkulov

and Askarov v. Turkey, Nos. 46827/99 and 46951/99, Judgment, 4 February 2005, para 104. These cases usually relate to Articles 2 or 3 of the Convention, and, less commonly, to Article 8 or Articles 5 or 6. 5 It has also been suggested that bodies such as the European Court have implied powers to issue interim measures orders, it being inherent to the administration of justice. See, e.g., Shelton 2016, p. 479 (‘It could be argued that such power is inherent to the administration of justice and within judicial powers, even without express authority, as a means of ensuring the effectiveness of the ultimate decision…’); Pasqualucci 2013, pp. 267–268 (‘In general, all courts possess the authority to order, as interim measures, that the parties preserve the subject matter of the proceedings until the court renders a judgment…The subject matter of human rights courts requires that the courts have wide-ranging authority to order protection regardless of the time frame of the probability of irreparable harm’). 6 Mamatkulov and Askarov v. Turkey, Nos. 46827/99 and 46951/99, Judgment, 4 February 2005, para 104.

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Commentators have noted that Rule 39 is drafted ‘in extremely broad terms’ and have emphasised that it has been the practice of the Court to apply it more restrictively.7 No doubt for the Court, the flexibility of the procedure is important, but this has resulted in criticisms that the mechanism is ‘informal and obscure’,8 lacks transparency,9 and that there is an ‘inevitable risk of inconsistency in decision-making’.10 There has been mounting criticism of the ambiguity with which interim measures are applied (by both the European Court and also, similarly, by the UN Human Rights Committee), which is linked to the discretionary nature of the procedure, and the fact that reasons are not given, either in granting or refusing an order.11 The breadth of the scope of interim measures, and indeed its potential to be further developed, is illustrated by this passage from the Court’s judgment in Aoulmi v. France: […] in cases […] where there is plausibly asserted to be a risk of irreparable damage to the enjoyment by the applicant of one of the core rights under the Convention, the object of an interim measure is to maintain the status quo pending the Court’s determination of the justification for the measure….The result that the applicant wishes to achieve through the application is the preservation of the asserted Convention right before irreparable damage is done to it. Consequently, the interim measure is sought by the applicant, and granted by the Court, in order to facilitate the “effective exercise” of the right of individual petition under Article 34 of the Convention in the sense of preserving the subject matter of the application when that is judged to be at risk of irreparable damage through the acts or omissions of the respondent State.12

The Court has also described the objective of the rule 39 mechanism in this way: […] interim measures play a vital role in avoiding irreversible situations that would prevent the Court from properly examining the application and, where appropriate, securing to the applicant the practical and effective benefit of the Convention rights asserted.13

The emphasis in these, and similar,14 passages is not necessarily on the threat to the life or personal integrity of applicants to the Court, but in fact on the effective 7 McCormick

2009–2010, p. 315. See also Haeck and Burbano Herrera 2003, p. 631. 2018, para 8. 9 McCormick 2009–2010, pp. 331–332. 10 McCormick 2009–2010, p. 331. Instead of interim measures decisions being spread across the Court’s five Sections, as was previously the case, a Rule 39 Unit was established within the Court in 2011 in order to improve the quality, uniformity and speed of the Court’s interim measures decisions (with decisions being made by one of three section vice-presidents). 11 Keller and Marti 2013, p. 327. The European Court may, as a matter of practice, occasionally provide reasons for its decisions in its correspondence to the parties, but such reasons are not routinely made publicly available. The UN Human Rights Committee also does not publish reasons for its interim measures decisions. On the UN committees generally, see further Chap. 6 (by Harrington) in this volume. 12 ECtHR, Aoulmi v France, No. 50278/99, Judgment, 17 January 2006, para 103. 13 Al-Saadoon and Mufdhi v. United Kingdom, No. 61498/08, Judgment, 2 March 2010, para 160. 14 See, especially, Mamatkulov and Askarov v. Turkey, Nos. 46827/99 and 46951/99, Judgment, 4 February 2005. In Savriddin Dzhurayev v. Russia, No. 71386/10, Judgment, 25 April 2013, the Court stated (para 213): ‘The crucial significance of interim measures is further highlighted by the fact that the Court issues them, as a matter of principle, in truly exceptional cases on the basis of 8 Marti

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exercise of their Convention rights broadly stated. It is noticeable that the references to ‘irreparable damage’ are not explicitly linked to the notion of ‘damage to persons’, as is the case in the American Convention on Human Rights.15 This more expansive definition is mirrored by the position taken by the UN Human Rights Committee, which has elucidated the term ‘irreparable damage’ in this way: ‘[t]he essential criterion is indeed the irreversibility of the consequences, in the sense of the inability of the author to secure his rights, should there later be a finding of a violation of the Covenant on the merits’.16 In her comprehensive study of the application of provisional measures by international tribunals, Eva Rieter concludes that for human rights adjudicators, preventing irreparable harm is the main purpose—this primarily means harm to persons, but also means, secondarily, harm to the claim or procedure.17 As examples of this second category, Rieter cites cases relating to the preservation of evidence, the prevention of the destruction of an art work and cases aimed at securing political rights or protecting the rights to freedom of expression and access to information.18 The core aim—of preserving the parties’ rights—also applies to the provisional measures powers of the International Court of Justice,19 and to the International Tribunal for the Law of the Sea.20 Indeed, in the light of the established practice of international courts and tribunals, Miles argues that the dominant reason for which a rigorous examination of all the relevant circumstances. In most of these, the applicants face a genuine threat to life and limb, with the ensuing real risk of grave, irreversible harm in breach of the core provisions of the Convention’. Note the use of the word ‘most’ in this passage. 15 Article 63(2) of the American Convention on Human Rights states that provisional measures may be granted ‘to avoid irreparable damage to persons’. This terminology has been interpreted as encompassing the emotional, moral and psychological integrity of the person, which has led the Inter-American Court of Human Rights to find, for example, that an indigenous community could suffer irreparable psychological or physical injury where their ancestral lands are seized by third parties. See: Pasqualucci 2013, p. 260. 16 Charles E. Stewart v. Canada, Communication No. 538/1993, U.N. Doc. CCPR/C/58/D/ 538/1993 (1996), para 7.7. On occasion, the Human Rights Committee has applied interim measures in cases raising allegations of breaches of the right to freedom of thought, conscience and religion, the right to freedom of expression and the rights of indigenous peoples. See: Keller and Marti 2013, pp. 328, 340, 358–359. 17 Rieter 2010, pp. 1088–1093. 18 Rieter 2010, Chapter XII. 19 Article 41(1) of the Statute of the International Court of Justice provides: ‘The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party’. See also, for example, Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Provisional Measures, Order of 19 April 2017, I.C.J. Reports 2017, p. 104, para 63. Miles has described how the International Court of Justice has applied the concept of irreparability in cases concerning environmental damage and the administration of justice more generally. See: Miles 2017, pp. 226–230. 20 Article 290(1) of the United Nations Convention on the Law of the Sea provides: ‘…the court or tribunal may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision’.

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most provisional measures are awarded is to protect a right subject to litigation (a right pendente lite).21 As Burbano Herrera and Haeck have confirmed, it was the Statute of the International Court of Justice which provided the original prototype for Strasbourg’s interim measures powers, and the draft statute produced by the European Movement framed them in general terms: ‘[t]he Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party’.22 In the seminal Mamatkulov judgment, the Grand Chamber of the European Court itself acknowledged the breadth of the objectives of interim measures as applied by international human rights tribunals, in order to preserve the integrity of the proceedings: […] the ICJ, the Inter-American Court of Human Rights, the Human Rights Committee and the Committee against Torture of the United Nations, although operating under different treaty provisions to those of the Court, have confirmed in their reasoning in recent decisions that the preservation of the asserted rights of the parties in the face of the risk of irreparable damage represents an essential objective of interim measures in international law. Indeed it can be said that, whatever the legal system in question, the proper administration of justice requires that no irreparable action be taken while proceedings are pending […].23

Reviewing the Strasbourg Court’s practice in recent years, Keller and Marti have detected ‘a certain expansion of the interpretation of irreparability’,24 and they have expressed surprise that, for example, requests for the protection of property have not led to interim measures rulings, on the basis that the destruction of property cannot usually be the subject of restitution (in other words, it may lead to ‘irreparable damage’).25 Keller and Marti go on to argue that the interim measures mechanism should also be conceptualised as a means of securing restitution (during the prejudgment phase), emphasising that its broad primary purpose is to prevent irreparable damage to the enjoyment of the applicant’s rights.26 The Court’s practice since (at least) the mid-2000s has been to apply interim measures in a much wider range of situations, without explicitly acknowledging a broadening of their scope, as such. For Harby, the way in which the application of interim measures has been expanding and developing, demonstrates the ‘dynamic and evolutive nature of the Court’s case law’.27 The following section discusses examples of the Court’s tendency to be more expansive. It is discernible, firstly, that the Court has been applying interim measures in an ever broader spectrum of situations where the right to life, or risk of serious harm, 21 Miles

2017, pp. 174–179. Herrera and Haeck 2010, pp. 336–337. 23 Mamatkulov and Askarov v. Turkey, Nos. 46827/99 and 46951/99, Judgment, 4 February 2005, para 124. 24 Keller and Marti 2013, p. 340. 25 Keller and Marti 2015, p. 834. 26 Keller and Marti 2015, pp. 833–834. 27 Harby 2010, pp. 76, 84. See also: European Court of Human Rights (2019) Factsheet—Interim Measures. https://www.echr.coe.int/Documents/FS_Interim_measures_ENG.pdf. Accessed 10 February 2020. 22 Burbano

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is in issue. In cases relating to restrictions imposed by domestic law or practice on the use of embryos following in vitro fertilisation (IVF) treatment, the Court has invoked the mechanism in order to ensure the preservation of the embryos pending the conclusion of the Strasbourg proceedings.28 In Lambert v. France,29 the Rule 39 order directly concerned a risk to life, after the Conseil d’État had judged as lawful a decision to stop the provision of hydration and nutrition to Mr. Lambert, who had been in a persistent vegetative state following a car accident. The Court stepped in to order a stay of execution of the decision for the duration of the proceedings before it. The case of Gard v. United Kingdom concerned a baby, Charlie Gard, who was suffering from a rare genetic disease. After the High Court found that the withdrawal of his artificial ventilation would be lawful, the European Court applied Rule 39 to require the provision of treatment and care which would ‘ensure that he suffers the least distress and retains the greatest dignity consistent, insofar as possible, with maintaining life’.30 In a starkly different context, the conflict which erupted again in south-east Turkey in 2015 led to a series of applications for interim measures from people affected by the curfews imposed by local governors in Cizre, Sur and other towns and villages in the region. Several Rule 39 orders were issued by the Court in respect of injured applicants who were waiting to be taken to hospital.31 Secondly, there are cases in which Rule 39 is invoked in order to ensure that applicants under pressure from the authorities can freely exercise their right of application to the Court. One example is Bitiyeva and X v. Russia,32 in circumstances where the applicant was being intimidated by state officials, after raising with the Court the extra-judicial executions of her mother, father, brother and uncle. The applicant in

28 ECtHR Evans v. United Kingdom, No. 6339/05, Judgment, 10 April 2007; Knecht v. Romania, No. 10048/10, Judgment, 2 October 2012. The subsequent merits judgment in Evans allowed the embryos to be destroyed. 29 ECtHR, Lambert and others v France, No. 46034/14, Judgment, 5 June 2015. The judgment permitted the withdrawal of Mr. Lambert’s artificial nutrition and hydration. 30 European Court of Human Rights, European Court grants request for interim measure in Charlie Gard case until next Tuesday, Press Release, 9 June 2017. When the case was subsequently declared inadmissible (No. 39793/17, Admissibility Decision, 27 June 2017), interim measures were also lifted, allowing the authorities to withdraw life support for Charlie Gard. 31 European Court of Human Rights, European Court of Human Rights looks into complaints about curfew measures in Turkey, Press Release, 15 December 2016. The Court’s press release stated: ‘Following the deaths of four of the applicants, allegedly because of the Government’s failure to comply with the interim measures to take them to hospital, and the taking into hospital of the fifth applicant, the ECtHR lifted the interim measures’. However, in January 2016, the Court declined interim measures requests for the lifting of the curfew orders as such. See: European Court of Human Rights, Requests for lifting of curfew measures in south-eastern Turkey: the Court refuses to indicate interim measures for lack of elements, but is pursuing its examination of applications, Press Release, 13 January 2016. See further: European Court of Human Rights, Curfew measures in south-eastern Turkey: Court decides to give priority treatment to a number of complaints, Press Release, 5 February 2016. 32 ECtHR, Bitiyeva and X v Russia, Nos. 57953/00 and 37392/03, Judgment, 21 June 2007. The author was a legal representative to the applicants.

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the case of R.R. v. Hungary was a former member of a drug-trafficking mafia gang,33 and the Court invoked interim measures in order to protect the personal security of the applicant, and his family, pending the assessment of the case. Such cases obviously concern a genuine threat to life. However, a third group of cases are characterized by other forms of vulnerability, without there necessarily being a direct risk to life. One illustration of the expanding remit of interim measures is its use to prevent housing evictions, as occurred in Yordanova v. Bulgaria,34 which concerned the proposed eviction of members of a Roma community (of 200–300 people) who were living in a neighbourhood of Sofia without official authorisation. The Court applied Rule 39 to prevent the applicants from being evicted from their homes, pending the authorities’ provision of information about the arrangements they had made to secure alternative housing for the children, elderly and disabled, and other vulnerable individuals. The effect of the measure in this case was comparable to a domestic court injunction. Rule 39 was invoked in response to renewed attempts in 2008 by the Sofia municipal authorities to remove the applicants. Interim measures were later lifted when the district mayor suspended the removal order, but the Court explicitly stated that the decision was taken on the assumption that both the Court and the applicants would be given sufficient notice of any change in the authorities’ position, in order that consideration could be given to additional interim measures. Furthermore, when the Court issued its judgment on the merits in 2012, it invoked Article 46, in stipulating that either the original removal order should be repealed, or that it should be suspended pending measures to ensure that the authorities had complied with their obligations under the Convention.35 The provision of emergency accommodation by the state was also ordered under Rule 39 by the Court in M.K. and Others v. France,36 a case which concerned Congolese and Georgian families (with young children) who had sought asylum in France. They had been living on the streets and had secured domestic court orders for emergency shelter, which had not been implemented. The migration crisis in Europe has also necessitated the application of Rule 39. The Sea Watch 3 case concerned the plight of 47 migrants on a boat which was anchored off Syracuse in Sicily. In spite of their poor health, they were not being allowed to disembark and risked being returned to Libya. In January 2019 the Court ordered the Italian Government to ensure that they were provided with adequate medical care, food, water and basic supplies.37 Also in early 2019, the Hungarian Helsinki Committee made a series of successful interim measures applications because third 33 ECtHR, RR and others v Hungary, No. 19400/11, Judgment, 4 December 2012. See also Raji and Others v Spain, No. 3537/13, Decision, 16 December 2014. 34 ECtHR, Yordanova and others v Bulgaria, No. 25446/06, Judgment, 24 April 2012. 35 Ibid., para 167. 36 ECtHR, MK and others v France, Order, No. 34349/18, communicated 24–26 July 2018. 37 European Court of Human Rights, ECHR grants an interim measure in case concerning the Sea Watch 3 vessel, Press Release, 29 January 2019. However, the Court rejected the applicants’ requests to be allowed to leave the vessel. See also: European Court of Human Rights, The Court decides not to indicate an interim measure requiring that the applicants be authorised to disembark in Italy from the ship Sea-Watch 3, Press Release, 25 June 2019.

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country nationals held in transit zones in Hungary (having fled from Iraq, Iran and Afghanistan) were being denied sufficient food.38 Another area in which interim measures have been applied is child protection. In Soares de Melo v. Portugal,39 the Portuguese courts had ordered that seven of the applicant’s children should be taken into care, with a view to adoption, and that she and her husband should be deprived of parental responsibility and denied all contact with the children (who were between seven months and ten years old). Ms. Soares de Melo obtained a Rule 39 order enforcing her right of contact with the children, which resulted in her having weekly visits with them. Thus, the vulnerability of young children (and their mother) would clearly have been significant factors here, as well as the urgency of the need to maintain their mutual contact. A further subset of cases relates to detainees. The use of interim measures to ensure their access to adequate health care is now well established (see the discussion below at Sect. 9.4.2). However, rather more novel is the application of Rule 39 to ensure that detainees are given practical access to lawyers and, more broadly, to ensure that they receive a fair trial (which is discussed at Sect. 9.4.1 below). The majority of these cases concern the health and well-being of the protagonists (if not their lives, as such), which is why the interim measures order made by the European Court in March 2017 in the case of Rustavi 2 came as such a surprise. It arose from a struggle for control in Georgia over the independent broadcasting company, Rustavi 2—a battle which the company’s owners alleged was being orchestrated by the Georgian Government, in an attempt to silence the free media.40 The day after the Georgian Supreme Court ordered the transfer of ownership of Rustavi 2 to a former owner (who was said to be connected to, or controlled by, the Government), the 38 See: Hungarian Helsinki Committee, Hungary Continues to Starve Detainees in the Transit Zones, 23 April 2019. Available at: https://www.helsinki.hu/wp-content/uploads/Starvation-2019. pdf. Accessed 5 November 2019. The cases were: Azeez and Others v. Hungary, No. 8622/19; Haji Hassan and Others v. Hungary, No. 9484/19; Lali and Others v. Hungary, No. 13899/19; Omar and Others v. Hungary, No. 15654/19; Arab and Others v. Hungary, No. 16008/19; Sultani v. Hungary, No. 17089/19; Arab Molo Dad and Others v. Hungary, No. 16217/19 and Padzahr v. Hungary, No. 18581/19. 39 ECtHR, Soares de Melo v Portugal, No. 72850/14, Judgment, 16 February 2016. See also Neulinger and Shuruk v. Switzerland, No. 41615/07, 6 July 2010; B. v. Belgium, No. 4320/11, Judgment, 10 July 2012. 40 Human Rights Watch stated: ‘The ownership dispute over Georgia’s most-watched television broadcaster, Rustavi 2, now in its third year, continued in 2017 and raised concerns over ongoing government interference with media. In March, the Supreme Court ruled that the station’s ownership should revert to Kibar Khalvashi, a businessman who owned it from 2004 to 2006, and who alleged he had been improperly forced to sell the station at below market value by then-president Mikheil Saakashvili’: Human Rights Watch 2018, p. 244. The European Union External Action Service commented, inter alia, as follows: ‘The Supreme Court’s verdict might have an impact on the country’s media landscape, affecting the diversity of views available to citizens through broadcasting channels….Looking forward, we reiterate that a continued commitment to political pluralism and freedom of the media is fundamental for the preservation and consolidation of democracy. We trust that the Georgian Government will treat these principles as an absolute priority and will actively uphold them, corresponding to essential commitments in the EU-Georgia Association Agreement’: European Union External Action Service 2017.

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European Court issued an interim measure requiring the suspension of the Supreme Court order and stipulating that the authorities ‘should abstain from interfering with the applicant company’s editorial policy in any manner’.41 The suspension continued for more than two years until the Court issued its judgment on the merits in July 2019, finding no violations of the Convention at all.42 Does such an outcome on the merits of the case cast doubt on the justification for the earlier grant of interim measures? Without knowing the Court’s reasons for issuing the Rule 39 order, it is not possible to be definitive about this. In a second freedom of expression-related case, the Court applied interim measures in 2018 in order to uphold the Convention rights of a Ukrainian journalist working for the broadcaster Radio Free Europe/Radio Liberty. The journalist Nataliia Sedletska was the editor of a television programme investigating corruption amongst state officials. In the course of criminal proceedings brought against a Ukrainian prosecutor by the National Anticorruption Bureau of Ukraine, a court granted the investigating authorities permission to access data relating to her mobile phone for a period of 16 months. Ms. Sedletska objected to this decision not least because it risked disclosing the sources of her journalistic investigations. After she applied to the European Court invoking Articles 10 and 13, the Court applied Rule 39 to stipulate that the authorities should not access the data relating to her mobile phone.43 These decisions show that the Court’s practice has been developing in recent years, such that the interim measures process has been utilised in a wider spectrum of situations, and with a broader range of objectives. The rationale for this newer approach is harder to discern, given that, as noted above, the Court does not explain its reasons publicly—either for a decision to grant interim measures, or for its refusal to do so.44 However, it is abundantly clear that there are many situations beyond cases of removal, where Rule 39 may be applied, including to ensure that people who are otherwise destitute should have adequate housing and other essentials, and to uphold meaningful family rights. In each of these situations, the Court must have concluded that such measures were needed to prevent ‘irreparable damage’ and to preserve the parties’ rights pending the Court’s consideration of the merits of the case (where Articles 2, 3 or 8 would have been in issue). It is suggested that those factors would also have been relevant to the Rustavi 2 and Sedletska cases, albeit in the rather different context of Article 10 (the right to freedom of expression). There was no risk of personal harm raised in Rustavi 2, in which case was the gravity of the threat to media plurality in Georgia considered sufficient in itself to justify applying rule 41 The decision was initially made by a duty judge on 3 March 2017, and was unanimously confirmed on 7 March 2017 by a Chamber constituted within the Fourth Section of the Court. 42 The applicants had complained of violations of Article 6(1), Article 10, Article 1 of Protocol No. 1 and Article 18 ECHR. ECtHR Rustavi 2 Broadcasting Company Ltd and Others v. Georgia, No. 16812/17, Judgment, 18 July 2019, paras 232 & 365. 43 ECtHR Sedletska v Ukraine, No. 42634/18, communicated on 15 November 2018 (a decision by the Fourth Section of the Court). 44 The Court may give reasons for its decisions on interim measures applications, but they will be set out in its correspondence to the parties, and therefore will not usually be made publicly available.

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39?45 In Sedletska, would the disclosure of the applicant journalist’s sources have represented ‘irreparable damage’ which required the Court to step in? It has to be acknowledged that the Rustavi 2 and Sedletska decisions are outliers, which do not sit easily with the Court’s usual practice, and therefore they must be taken to indicate, at least for some judges in the Court, an acceptance of a broadening of the scope of interim measures. The next section considers whether there has been pushback from states in response to the Court’s application of interim measures in recent times.

9.3 State Resistance to Interim Measures One of the reasons why there is a need for further scrutiny of the interim measures regime is that there continues to be a worrying level of state resistance to the Court’s application of Rule 39, in spite of its indisputably legally binding effect.46 At the Izmir Conference in 2011, Council of Europe member states underlined that they expected a ‘significant reduction’ in the number of interim measures decisions granted by the Court.47 Although the 2015 Brussels Declaration,48 negotiated and agreed by the 47 Council of Europe states, formally reiterated the obligation on states to comply with Rule 39 indications, the critical ‘noises off’ reflected a governmental perception that 45 Concerns about the independence of the Georgian Supreme Court may have been in issue too. See, for example, European Union External Action Service, Statement by the Spokesperson on the appointment of judges to the Supreme Court of Georgia, 13 December 2019. https://eeas. europa.eu/headquarters/headquarters-homepage_en/72068/Statement%20by%20the%20Spokesp erson%20on%20the%20appointment%20of%20judges%20to%20the%20Supreme%20Court% 20of%20Georgia. Accessed 12 March 2019 (‘The Georgian Parliament appointed yesterday 14 members of the Supreme Court, a key institution for the proper functioning of Georgia’s legal system. The selection procedure did not adhere to all recommendations made by the Venice Commission and was characterised by key shortcomings, including a lack of transparency that undermines a genuinely merit-based nomination process…’). 46 As to the extent of state non-compliance, see: Parliamentary Assembly of the Council of Europe, Committee on Legal Affairs and Human Rights, Report, Urgent need to deal with new failures to co-operate with the European Court of Human Rights, Doc. 13435, 28 February 2014. See further: Leach 2017, paras 2.42–2.63; Rudloff 2011. In their 2012 report on interim measures, ELENA and ECRE commented that ‘the increase in non-compliance is a worrisome phenomenon’: ELENA and ECRE 2012, p. 9 (see also pp. 71–76). The Court has also had cause to underline the need for the interim measures procedure to be truly accessible in practice to asylum-seekers. See ECtHR M.S.S. v. Belgium and Greece, No. 30696/09, 21 January 2011, para 182. Karen Reid has suggested, nevertheless, that ‘[t]here is generally a very high compliance rate by Contracting States’: Reid 2019, p. 20. 47 European Court of Human Rights, High Level Conference on the Future of the European Court of Human Rights, Izmir, Turkey 26–27 April 2011, Declaration, para 4, p. 6. Available at: https://www. echr.coe.int/Documents/2011_Izmir_FinalDeclaration_ENG.pdf. Accessed 25 October 2019. 48 European Court of Human Rights, High-level Conference on the “Implementation of the European Convention on Human Rights, our shared responsibility” Brussels Declaration, 27 March 2015. Available at: https://www.echr.coe.int/Documents/Brussels_Declaration_ENG.pdf. Accessed 25 October 2019.

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the Court has been applying interim measures unjustifiably, or too intrusively—hence the inclusion in the Declaration of an invitation to the Court to provide reasons for its Rule 39 orders (an invitation, which, tellingly, the Court has not taken up). A stark example of deliberate state non-compliance was the case of Trabelsi v. Belgium,49 which concerned the proposed extradition of the applicant to the United States, following his conviction for various serious terrorism-related offences. After the Court applied interim measures in order to prevent his extradition, the Belgian Government petitioned the Court on three separate occasions to have the order lifted, and then proceeded with the extradition in any event, which the Court found breached Article 34 of the Convention. It felt obliged to remind the Belgian authorities that it is not open to respondent states to substitute their assessment of the situation for that of the Court’s. The Court was highly critical of the French authorities in M.A. v. France,50 where the applicant, who had been convicted of terrorism offences, was removed to Algeria within a period of less than seven hours, thereby making it very difficult in practice to apply for interim measures: […] elles ont donc délibérément et de manière irréversible, amoindri le niveau de protection des droits énoncés dans l’article 3 de la Convention.51

In the light of a pattern of forcible transfers of Strasbourg applicants from Russia to countries in Central Asia (notably Tajikistan and Uzbekistan)—considered to amount to a flagrant disregard for the rule of law—the Court felt obliged in Savriddin Dzhurayev v. Russia to underscore the centrality of the interim measures procedure: The Court cannot emphasise enough the special importance attached to interim measures in the Convention system. Their purpose is not only to carry out an effective examination of the application but also to ensure that the protection afforded to the applicant by the Convention is effective; such indications subsequently allow the Committee of Ministers to supervise execution of the final judgment.52

These instances of resistance have tended to arise in the removal cases, and there is nothing to suggest that the broadening of the scope of the Court’s application of interim measures has led to any noticeable additional pushback from states. Nevertheless, there are also examples of non-compliance beyond situations of removal. The Russian authorities were heavily criticised by the Court in Kondrulin v. Russia for circumventing an interim measures order requiring that the applicant prisoner’s medical health be assessed by independent experts and for simply asserting that he was receiving adequate treatment.53 Within six months of the Court’s Rule 39 49 ECtHR

Trabelsi v Belgium, No. 140/10, Judgment, 4 September 2014. M.A. v France, No. 9373/15, Judgment, 1 February 2018. 51 Ibid., para 70. 52 ECtHR Savriddin Dzhurayev v. Russia, No. 71386/10, Judgment, 25 April 2013, para 212. See also: Mukhitdinov v. Russia, No. 20999/14, Judgment, 21 May 2015. See further: Parliamentary Assembly of the Council of Europe, Committee on Legal Affairs and Human Rights, Report, Urgent need to deal with new failures to co-operate with the European Court of Human Rights, Doc. 13435, 28 February 2014. 53 ECtHR, Kondrulin v Russia, No. 12987/15, Judgment, 20 September 2016. See also: Semenova v. Russia, No. 11788/16, Judgment, 3 October 2017. 50 ECtHR

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order, Mr. Kondrulin died in prison of cancer. A situation like this raises questions about the efficacy of interim measures orders; once such an order is made, to what extent is it possible to assess whether there is state compliance, and how should this be done? These issues are considered further in the next two sections of this chapter, which discuss compliance with orders relating to detainees’ access to lawyers and to the adequacy of medical treatment provided to detainees.

9.4 Verifying Compliance with Interim Measures 9.4.1 Access to Lawyers A still relatively nascent use of the interim measures function is its application to ensure that people deprived of their liberty are given effective access to their lawyers. The Court’s rationale in this respect is that interim measures […] play a vital role in avoiding irreversible situations that would prevent the Court from properly examining the application and, where appropriate, securing to the applicant the practical and effective benefit of the Convention rights asserted.54

Such cases—which remain a rarity—arise where detainees have experienced real difficulties in seeing their lawyers. In the case of Shtukaturov v. Russia,55 the applicant complained that he had been deprived of legal capacity (on his mother’s application) without his participation or knowledge, and he disputed his detention in a psychiatric hospital. In accordance with Rule 39, the Russian Government was requested to allow the applicant to meet his lawyer in the psychiatric hospital where he was detained, in order to discuss his application before the European Court. Mr. Shtukaturov had instructed a lawyer from the Mental Disability Advocacy Center, who had requested permission from the hospital to see him, but who was denied on several occasions. The hospital director justified the refusal on the basis of Mr. Shtukaturov’s mental condition, and the fact that he was ‘legally incapable’ and therefore could only act through his guardian (his mother). Mr. Shtukaturov was subsequently prohibited from having any contact with the outside world; he was not allowed to keep writing materials or use a telephone. The Strasbourg application had nevertheless been lodged on the basis of a telephone conversation between the applicant and his lawyer, and the form authorising the lawyer’s representation was sent to the lawyer by the relative of another patient in the hospital. In this case the Court went into some detail as regards the imposition of particular requirements: the meeting between the applicant and his lawyer could take place in the presence of the personnel of the hospital, but 54 See,

e.g., ECtHR Aoulmi v. France, No. 50278/99, Judgment, 17 January 2006, para 107. Shtukaturov v Russia, No. 44009/05, Judgment, 27 March 2008. Similarly, Rule 39 was invoked by the Court in X v. Croatia, No. 11223/04, Judgment, 17 July 2008 in order to require the Government to appoint a lawyer to represent an applicant who, in the course of domestic proceedings, had been entirely divested of the capacity to act. 55 ECtHR,

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outside their hearing; the lawyer was to be granted the necessary time and facilities to consult with the applicant and help him in preparing his application to the European Court; and the Government was also requested not to prevent the lawyer from meeting his client at regular intervals in the future. The Court also stipulated that the lawyer should be cooperative and comply with the reasonable requirements of hospital regulations.56 The case of D.B. v. Turkey concerned legal proceedings brought in Turkey in order to have the applicant deported to Iran.57 He claimed to have been a member of the Worker-Communist Party and a dissident student in Iran; he had entered Turkey illegally and was arrested when he tried to leave. His request for temporary asylum was rejected by the Turkish authorities and his deportation ordered, on national security grounds. Rule 39 was initially invoked to prevent his deportation, but its scope was later expanded in the light of the applicant’s difficulties in seeing his lawyer. The lawyer had attempted to get access to the applicant in the Foreigners’ Admission and Accommodation Centre, where he was being held, but was denied permission by the Centre. Accordingly, a fresh interim measures order required the authorities to allow the lawyer to visit the applicant in the detention centre. The Court expressly stipulated that this was in order not only to obtain a power of attorney, but also to obtain information concerning the risks that the applicant would allegedly face in Iran. The Rule 39 order was not initially complied with, but this changed after the Court extended the interim measures indication until further notice, gave notice of the application to the Turkish Government, and granted it priority status. In any event, the Court held that there had been a violation of Article 34: it was critical of the authorities’ ‘administrative obtuseness’, finding that the application had, as a result, been put in jeopardy. It also rather tartly rejected the Government’s feeble attempt to defend the situation: The Court cannot accept the argument put forward by the Government to the effect that the applicant could not meet a lawyer in order to provide a power of attorney for the Court because that lawyer did not have a power of attorney to meet the applicant in the first place.58

The question of a detainee’s effective access to a lawyer also arose in Öcalan v. Turkey,59 but the application of Rule 39 in that case went considerably broader. Abdullah Öcalan, the leader of the PKK (the Kurdish Workers’ Party), had left Syria (where he had been living for several years) in 1998 and unsuccessfully sought asylum in Greece, Russia and Italy, before arriving in Kenya. Having been accommodated at the Greek Embassy for about two weeks, he was taken by Kenyan officials to Nairobi airport, and put on a plane where Turkish officials were waiting for him. He was arrested (accused of founding an armed gang aimed at destroying the territorial 56 The Rule 39 order was not, however, complied with—the chief doctor at the hospital informed the lawyer that he did not consider the Court’s interim measures ruling to be binding. This was challenged by the lawyer in the domestic courts—initially, successfully at the district court, but an appeal by the hospital and the applicant’s mother was upheld by the city court. 57 ECtHR, DB v Turkey, No. 33526/08, Judgment, 13 July 2010. 58 Ibid., para 67. 59 ECtHR, Öcalan v Turkey, No. 46221/99, Judgment, 12 May 2005.

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integrity of the Turkish State and of instigating various terrorist acts that had caused loss of life) and taken to a prison on the island of ˙Imralı in Turkey, on 16 February 1999, where he was held in solitary confinement. There, he was questioned repeatedly by members of the security forces. His lawyers (both Turkish and international lawyers) were prevented from meeting him. His first meeting with his lawyers took place on 25 February, when he was allowed a twenty minute consultation, which took place in the presence of a judge and masked security officials. A record of the meeting was provided to the National Security Court. He was later permitted to have a series of private meetings with his lawyers (usually two visits per week, for one hour each), although Mr. Öcalan complained that these meetings were monitored from behind glass panels and filmed with a video camera. He also said that he and his lawyers were not allowed to exchange documents or take notes, and that the lawyers were prevented from giving him a copy of his case file or other materials (except for the bill of indictment) which would enable him to prepare his defence. The bill of indictment (which was served in April 1999) confirmed that the public prosecutor sought the death penalty in Mr. Öcalan’s case. In the extraordinary context of this case, within three weeks of his application having been lodged in Strasbourg (on 16 February 1999), the European Court invoked Rule 39, while Mr. Öcalan was in pre-trial detention, on 4 March 1999. In doing so the Court stipulated that the Turkish authorities should ensure that Article 6 was complied with in the course of National Security Court proceedings instituted against the applicant, and also ensure that he was able to exercise his right of individual application to the Court effectively through lawyers of his own choosing.60 Thus, in utilising Rule 39 in order to require that the applicant be tried fairly, this represented a considerable development in the Court’s use of the interim measures process. A similar order about access to lawyers was issued in Shamayev and others v. Georgia and Russia which concerned a group of Chechen applicants who had been extradited to Russia.61 The Court ordered that the applicants’ two Georgian lawyers should have ‘unhindered access’ to the applicants, which was held to be in the interests of the parties and the proper conduct of the proceedings, although again the Court’s emphasis was on the Strasbourg process itself, indicating that such access was especially needed in respect of the preparation for an admissibility hearing. As regards the right of effective access to a lawyer, the Court appears to be especially mindful of the position of children. For example, in the Sea Watch 3 case (mentioned above), the Rule 39 ruling included a stipulation that the 15 unaccompanied minors who were on board should be given adequate legal representation.62

60 ECtHR

Öcalan v Turkey, No. 46221/99, Judgment, 12 May 2005, para 5.

61 ECtHR Shamayev and others v Georgia and Russia, No. 36378/02, Judgment, 12 April 2005, para

24. However, the Rule 39 indication was not in fact complied with by the Russian authorities—see paras 228–9 and 310. 62 See note 41.

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9.4.2 The Well-Being of Detainees Rule 39 has been applied not only to ensure that detainees have effective access to their lawyers, but also to ensure their fundamental well-being. In an increasing range of situations the Court will invoke interim measures in seeking to ensure that vulnerable detainees obtain the requisite medical care or treatment (for both physical and mental ailments).63 Thus, the Court may require state authorities to take steps to allow detainees to be seen by independent medical experts or doctors of their own choosing,64 to be exempted from particular activities (such as physical labour),65 and to receive treatment in an external (civilian) hospital with specialist facilities.66 In a case brought by Ukrainian film director, Oleg Sentsov, relating to his detention in Russia, the Court applied interim measures both to require that he receive adequate medical care, and also to invite Mr. Sentsov to end his hunger strike and accept treatment.67 A particularly contentious issue which arises in these cases is how far the Court will be prepared to go in scrutinising the implementation of such orders. For example, once the Court issues a Rule 39 order requiring the state authorities to provide treatment to a detainee for a particular medical condition, what steps will the Court take, if any, in order to ascertain whether its order has been complied with? Firstly, the Court has the explicit power to request information from the parties in connection with the implementation of any interim measure which it has indicated (under Rule 39(3)).68 For example, in Öcalan, having invoked Rule 39 to require that the criminal proceedings against Mr. Öcalan should be fair, the Court asked the Turkish Government to confirm specific points about the fairness of his trial (which, however, the Government refused to answer, arguing that such questions went beyond the scope of the rule). Secondly, where a government believes that compliance with a Rule 39 order is not possible (because it is subject to an ‘objective impediment’) , the Court will expect the state both to take all reasonable steps to remove the impediment

63 See, e.g., ECtHR Makharadze and Sikharulidze v. Georgia, No. 35254/07, Judgment, 22 November 2011. 64 ECtHR Popov v. Russia, No. 26853/04, Judgment, 13 July 2006; Aleksanyan v. Russia, No. 46468/06, Judgment, 22 December 2008; Amirov v. Russia, No. 51857/13, Judgment, 27 November 2014; Kondrulin v. Russia, No. 12987/15, Judgment, 20 September 2016. 65 ECtHR Popov v. Russia, No. 26853/04, Judgment, 13 July 2006. 66 Popov v. Russia, No. 26853/04, Judgment, 13 July 2006; Aleksanyan v. Russia, No. 46468/06, Judgment, 22 December 2008; Paladi v. Moldova, No. 39806/05, Judgment, 10 March 2009; Grori v. Albania, No. 25336/04, Judgment, 7 July 2009; Tehrani and Others v. Turkey, Nos. 32940/08, 41626/08, 43616/08, Judgment, 13 April 2010; Salakhov and Islyamova v. Ukraine, No. 28005/08, Judgment, 14 March 2013. 67 European Court of Human Rights, Court decides on medical care interim measure for Oleg Sentsov, calls on him to end hunger strike, Press Release, 25 July 2018. 68 The Parliamentary Assembly has called on states to provide ‘full, frank and fair disclosure’ in respect of requests for further information under rule 39(3): Parliamentary Assembly of the Council of Europe, Resolution 1788 (2011), Preventing harm to refugees and migrants in extradition and expulsion cases: Rule 39 indications by the European Court of Human Rights, para 15.1.1.

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and also to keep it informed about the situation.69 Thirdly, at the merits stage, the failure to comply with a Rule 39 order will often lead to a finding of a violation of Article 34. The test applied by the Court is whether the authorities failed to take all steps which could reasonably have been taken in order to comply with the interim measure.70 This will involve an assessment as to whether the state has complied with the ‘letter and the spirit’ of the interim measure indicated.71 It should also be emphasised that the nature of the Rule 39 order can itself be intended to ascertain whether a detainee’s medical treatment is adequate, or whether their transfer to hospital is required. That was the case in Amirov v. Russia,72 and Kondrulin v. Russia,73 in which the Court ordered the applicants’ immediate examination by independent medics, for those very purposes. The Court went further in Aleksanyan v. Russia,74 a case concerning the detention of Vasiliy Aleksanyan, a former head of the Yukos legal department, who was seriously ill, having been diagnosed as being HIV-positive. In addition to ordering his transfer to a specialised hospital, the Court also stipulated the establishment of a medical commission (composed on a bipartisan basis) to diagnose the applicant’s medical needs and propose treatment.75 Various questions can accordingly be raised about the Court’s practice in verifying implementation—such as how often in practice does the Court issue requests for further information, and in what circumstances? Perhaps the most pressing question which arises, however, is the extent to which the Court is prepared to press the government at the time when the interim measures order has been made, or whether it is content simply to carry out an ex post facto review (in the form of an adjudication on Article 34).76 Given that by definition, such cases are urgent, and are likely to involve a considerable degree of risk for the applicants, it is an important question which may have serious ramifications for the applicant’s health and well-being.

69 ECtHR Olaechea Cahuas v. Spain, No. 24668/03, Judgment, 10 August 2006, para 70; Paladi v. Moldova, No. 39806/05, Judgment, 10 March 2009, paras 90–91; Makharadze and Sikharulidze v. Georgia, No. 35254/07, Judgment, 22 November 2011, para 99. 70 ECtHR Mamatkulov and Askarov v. Turkey, Nos. 46827/99 and 46951/99, Judgment, 4 February 2005, paras 92 et seq. 71 ECtHR Paladi v. Moldova, No. 39806/05, Judgment, 10 March 2009, para 91. 72 No. 51857/13, Judgment, 27 November 2014. The applicant was a former deputy Prime Minister of Dagestan, who had survived an assassination attempt, but had been badly wounded and was confined to a wheelchair. 73 No. 12987/15, Judgment, 20 September 2016. 74 No. 46468/06, Judgment, 22 December 2008. 75 However, no such commission was ever set up, as the Government claimed it was against Russian law, which resulted in a finding of a breach of Article 34. See: Aleksanyan v. Russia, No. 46468/06, Judgment, 22 December 2008, paras 82, 230–232. 76 It could also be reflected in the extent of any award of damages, which can result from a state’s failure to comply with an interim measures order (see, e.g., Mamatkulov and Askarov v. Turkey, Nos. 46827/99 and 46951/99, Judgment, 4 February 2005, para 134). See also Eva Rieter’s discussion as to whether the International Court of Justice can follow up on non-compliance with its provisional measures at an earlier stage than in its judgments: Rieter 2019, 158–167.

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These problems are illustrated by the case of Yunusova and Yunusov v. Azerbaijan,77 which concerned the detention and prosecution of the well-known Azerbaijani human rights defenders, Leyla Yunusova and Arif Yunus, both of whom had had serious health problems (including, respectively, hepatitis C and type 2 diabetes, and chronic hypertension). The Court applied Rule 39 (in September 2014) in order to require the Azerbaijani government to provide both applicants with adequate medical treatment in prison, and if such treatment was not available, to ensure Leyla Yunus’ immediate transfer to a specialised medical establishment for the duration of the proceedings before the Court. The Government was also required to report on a monthly basis to the Court, about the applicants’ state of health and their medical treatment. Such stipulations then beg the question as to how rigorous and detailed the state reporting will be required to be. In Yunusova and Yunusov, the Court was prepared to accept, at the time, the Government’s correspondence asserting the adequacy of the applicants’ treatment—rejecting the applicants’ requests for disclosure of the medical reports themselves, on which the Government relied. The Court did later look into this, finding that the failure to provide any medical documentation whatsoever in the period of eight months after the Rule 39 order had been made (from November 2014 to June 2015) ‘impaired the very purpose of the interim measure’ and prevented the Court from being able to establish whether the applicants had indeed been receiving adequate medical treatment (which meant a violation of Article 34 of the Convention, as well as being a factor in its conclusion that Article 3 had been violated).78 However, these findings were made in the course of the Court’s judgment on the merits, published in June 2016, after the applicants had been released from prison. The Court has underlined the importance of assessing whether states comply with interim measures orders: The vital role played by interim measures in the Convention system not only underpins their binding legal effect on the States concerned […] but also commands that the utmost importance be attached to the question of the States Parties’ compliance with the Court’s indications in that regard […].79

But when should such an assessment be carried out—at the time when the interim measures are in place, or later in the course of the Court’s adjudication on the merits? If it is done at the time, it could help detect failures of compliance, and lead, in these kinds of cases, to the requisite medical care being properly provided in urgent situations, where lives are likely to be at stake. There is no reason in principle why, in a situation like that faced by Leyla Yunusova and Arif Yunus, the Court should refrain from requiring a government to hand over the medical reports on the health of detainees, so that a searching and independent assessment can then be carried out. Nevertheless, the difficulties faced by the Court need to be acknowledged. If the Court appears to be reluctant to carry out a searching degree of scrutiny at the time it 77 No.

59620/14, Judgment, 2 June 2016. The author was a legal representative to the applicants. paras 113–120. 79 Ibid., para 111. 78 Ibid.,

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issues Rule 39 directions, this may be to a certain extent understandable, given that the Court may have only been seized of the case for a short period (weeks, days or possibly even hours). Moreover, the very assessment of the adequacy of the measures taken by a state may, in itself, be a difficult and complex task. Take, for example, the sufficiency of the medical treatment of detainees. This is an issue which, even at the merits stage, the Court finds to be ‘always the most difficult element to determine’.80 The Inter-American Court of Human Rights, by contrast, is rather more conscientious in taking various steps to seek to ensure state compliance with provisional measures directions, which have had a positive impact. It will not only require states to provide periodic reports about the extent of implementation of the measures, but it will also hold hearings (in private or in public) in order to improve compliance. The hearings can have a range of functions: providing the Court with additional information; encouraging the parties to reach an agreement about the steps needed; the scheduling of a hearing may in itself provide the impetus needed to ensure that the authorities take action; and by ensuring that there is further media and public attention on the issue (public hearings are transmitted live on the Court’s website).81 These difficult questions of implementation of interim measures are further illustrated by the case of Makharadze and Sikharulidze v. Georgia.82 There, the applicant detainee, Niko Makharadze, was gravely ill with multi-drug resistant tuberculosis (TB), and suffered from many other ailments. As a result, the Court applied the interim measures procedure (in November 2008) in order to require his transfer to a specialised medical establishment where he would receive the requisite treatment. The Government was also requested to report on the implementation of those measures within 3 weeks of the order being made (by 1 December 2008). The Government did indeed respond within the timescale laid down, providing various medical reports, but in doing so it sought to argue that the applicant’s transfer to another medical establishment was unnecessary, because he had already been transferred to a new prison hospital. Sadly, Mr. Makharadze’s condition deteriorated and he died in January 2009. Just two days before he died, the Georgian Public Defender had written to the Minister of Justice to express his deep concern about the failure to transfer Mr. Makharadze to a specialist TB hospital, in breach of the interim measure indicated by the Court. The judgment does not record that any further steps were taken in December 2008 by the Court to coax the Georgian authorities into compliance. Instead, the matter was dealt with in its judgment on the merits issued in November 2011. Finding a violation of Article 2 of the Convention, as a result of a number of serious failings in his treatment, the Court concluded that at least some of those omissions could have been resolved by his transfer to a specialist TB hospital. Furthermore, in also finding a breach of Article 34, the Court was clear that the prison hospital could not have provided adequate care, both due to its inadequate laboratory

80 See,

for example, Makharadze and Sikharulidze v. Georgia, No. 35254/07, Judgment, 22 November 2011, para 77. 81 Burbano Herrera 2015, pp. 356, 372–374. 82 No. 35254/07, Judgment, 22 November 2011.

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equipment and its insufficiently skilled medical staff, and that these failings had been manifest at the time: All those serious deficiencies of the prison hospital were or should have been known to the respondent Government, as the qualified medical experts had denounced on several occasions the adequacy of the treatment dispensed to the applicant in the penitentiary sector, noting his rapid decline and equally recommending his transfer to a hospital specialised in tuberculosis treatment.83

The Court found that there were two civilian hospitals to which Mr. Makharadze could have been transferred, which were running the World Health Organization’s DOTS+ (Directly Observed Treatment) programme, and which had the requisite medical equipment and specially trained clinicians. Is it realistic to expect the Court to have taken further steps in December 2008, in response to the Government’s failure to comply with its Rule 39 indications? This is a case where it is clear that the state’s negligence led directly to the applicant’s death—this included its failure to comply with a binding order from the European Court. It goes without saying that we ought to expect and require far higher standards from a respondent state, but can the Court be expected to police the state’s conduct? Arguably, in exceptional circumstances such as these, this question can be answered in the affirmative. After all, it would have been eminently possible in this case for the Georgian authorities to rectify the situation (by transferring the applicant to one of the two specialist civilian hospitals). By contrast, rectification is much less likely to be practicable in deportation cases where an applicant has been expelled notwithstanding an interim measures order—indeed, the state will often argue that it is simply not in its power to secure the return of a deportee.84 In Makharadze and Sikharulidze, however, not only could immediate pressure have been brought to bear through further correspondence from the Court, but also personal intervention would have been possible through meetings between senior Court Registry officials (or the judiciary) and Georgian officials or Ministers, either in Strasbourg or in Tbilisi. Such steps may not have guaranteed implementation, but they could have served to exert considerable diplomatic pressure on a recalcitrant state, and if ultimately unsuccessful, would be taken into account in the Court’s review in the course of its subsequent adjudication on the merits. The obvious riposte that this would place an additional untenable burden on the Court only reinforces the need to reduce the Court’s case docket to a manageable size, which necessitates, amongst other things, the swifter resolution of systemic (i.e. repeat violation) cases. If that could be achieved, it might enable the Court to give further priority, and further time, to the most deserving urgent cases, and in particular where applicants are facing irreparable harm.

83 Ibid., 84 See,

para 101. for example, Abdulkhakov v. Russia, No. 14743/11, Judgment, 2 October 2012, para 230.

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9.5 Situations of Armed Conflict How might the interim measures procedure be relevant, if at all, to a large-scale conflict situation? This question has been tested as a result of events in Ukraine, in relation to which Rule 39 has been applied by the Court. In the first inter-state case brought by Ukraine against Russia, in March 2014, the Court issued an interim measures order (on the day the case was lodged) indicating that both Ukraine and Russia were to refrain from taking any measures, ‘in particular military actions’, which might breach the rights of civilians under the Convention, including putting their life and health at risk, and calling on the states to comply with Articles 2 and 3 of the Convention.85 A similar decision had been made in the Georgia v. Russia (II) inter-state case in 2008, which concerned the armed conflict in South Ossetia and Abkhazia (of August 2008).86 In Chap. 8 of this volume, Brian Griffey challenges the efficacy of the application of Rule 39 to hostilities in eastern Ukraine: While [the] interim measures imposed by the European Court remain in effect, and cover the whole territory of Ukraine (including Crimea), they appear to have done little to deter human rights violations by either state.87

These stipulations by the Court in inter-state cases are clearly broader and less specific than those laid down in individual cases.88 Therefore, it is pertinent to ask whether the Court would be prepared to go beyond such relative generalities, and impose more specific and more onerous obligations. I have argued elsewhere that, for example, interim measures could exceptionally be invoked by the Court in order to ensure the preservation of evidence (linked to the obligation to carry out an effective investigation) . Thus, Rule 39 could be applied in the context of an ongoing conflict (such as the situation in Ukraine), where the investigating authorities are unable to get access to particular locations where human rights violations are alleged to have occurred, and there is a real risk that crucial evidence might otherwise be lost.89 What about the application of interim measures to alleviate humanitarian situations arising in a conflict scenario? In this context it should not be forgotten that 85 European Court of Human Rights, Interim measure granted in inter-State case brought by Ukraine against Russia, Press Release, 13 March 2014. See also: European Court of Human Rights, ECHR grants interim measure in new inter-State case brought by Ukraine against Russia concerning events in the Kerch Strait, Press Release, 4 December 2018 (rule 39 order requiring the Russian authorities to ensure that captive Ukrainian naval personnel received adequate medical provision). Provisional measures were also ordered by the International Court of Justice in proceedings brought by Ukraine against Russia under the International Convention on the Elimination of All Forms of Racial Discrimination—see: Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Provisional Measures, Order of 19 April 2017, I.C.J. Reports 2017, p. 104. 86 European Court of Human Rights, European Court of Human Rights grants request for interim measures, Press Release, 12 August 2008. 87 See Griffey (Chap. 8). See also Koch 2016. 88 Leach 2014. 89 Leach 2016.

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interim measures requests are not simply the preserve of individual or state applicants—they may also be sought by ‘any other person concerned’.90 There is therefore no reason why Rule 39 could not be invoked by any state (not a party to the proceedings) or other international body. Indeed, the Secretary-General of the Council of Europe has done so,91 and it would be possible, for example, for the Commissioner for Human rights to make such a request. At the time of the South Ossetian conflict (in 2008), the Court rejected a Georgian government request for a specific measure ‘to allow the Georgian emergency forces to carry out all the necessary measures in order to provide assistance to the remaining injured civilian population and soldiers via [a] humanitarian corridor’.92 As with the Turkish curfew cases (referred to above), the Court has shown willing to intervene for humanitarian reasons. In more than 150 of the 1,400 individual applications pending at the Court relating to Crimea and eastern Ukraine, the Court invoked Rule 39 to require either the Russian and/or the Ukrainian governments to ensure respect for the Convention rights of those still detained, or whose whereabouts were unknown.93 Furthermore, following the detention of 24 Ukrainian sailors by the Russian authorities in the Sea of Azov and Kerch Strait in November 2018, in response to a Rule 39 request lodged by the Ukrainian Government, the Court put questions to the Russian Government as to the whereabouts of the sailors, the lawful basis of their detention, the extent of any injuries and the medical treatment which they had received.94 It followed this up within a few days by issuing further interim measures, calling on the Russian authorities to ensure that the captured Ukrainian sailors receive appropriate medical treatment.95 Although the Court is likely to show caution amidst situations of conflict, there is arguably scope to go further, certainly in respect of applicants before the Court, if one accepts the two-fold objective of interim measures—to enable an effective examination of an application to the Court and to ensure that the protection afforded to the applicant by the Convention is effective.

90 The

Court may also make an interim measures indication of its own motion—under Rule 39(1). e.g., Denmark, Norway, Sweden and the Netherlands v. Greece, Nos. 3321/67, 3322/67, 3323/67 and 3344/67, 5 November 1969, Yearbook of the European Convention on Human Rights, Vol. 13, 1969. 92 European Court of Human Rights, European Court of Human Rights grants request for interim measures, Press Release, 12 August 2008. See also: Georgia v. Russia (II), No. 38263/08, Admissibility Decision, 13 December 2011, para 5. 93 European Court of Human Rights, European Court of Human Rights communicates to Russia new inter-State case concerning events in Crimea and Eastern Ukraine, Press Release, 1 October 2015. 94 European Court of Human Rights, ECHR puts questions to Russian Government after receiving new inter-State case from Ukraine concerning events in the Sea of Azov, Press Release, 30 November 2018. 95 European Court of Human Rights, ECHR grants interim measure in new inter-State case brought by Ukraine against Russia concerning events in the Kerch Strait, Press Release, 4 December 2018. 91 See,

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9.6 Conclusion This chapter has sought to analyse areas of evolving practice in the European Court’s interim measures jurisdiction. Its focus has not been on deportation and extradition cases (in which the vast majority of Rule 39 orders continue to be made), but on other types of cases, from which can be detected a broadening of the scope of the Court’s practice. Such orders have been issued in a more varied set of situations where there is a risk of harm to the person, including child protection cases, amidst the curfews in south-east Turkey, on behalf of destitute migrants in need of very basic provisions, and members of a community of Roma who faced imminent eviction from their homes. The mechanism has been used to support detainees, not only to secure them the medical treatment they need, but also to ensure that they can consult a lawyer, and, more broadly, to ensure that they are afforded the right to a fair trial. In a case from Georgia—Rustavi 2—the Court acted swiftly to halt the implementation of a supreme court judgment, amidst a struggle over control of the media, and in the Sedletska case from Ukraine, the Court stepped in to protect the integrity of a journalist’s sources. These developments reflect the flexibility of the parameters of the mechanism (as per the broad wording of Rule 39). Interim measures can be applied where there is a risk of ‘irreparable damage’ to the applicant’s rights under the Convention—not necessarily a risk of personal harm—and thus they have been invoked in cases concerning Articles 6, 8 and even 10 (aside from their more common application in Article 2 and 3 cases). What the Court is seeking to achieve here is the preservation of applicants’ Convention rights, avoiding irreversibility and ensuring their effective right of application to the Court—fundamental aspects of the right of access to justice. Not infrequently, states’ responses leave a lot to be desired, although there is no particular evidence to suggest that states are disputing the legitimacy of the extended scope of interim measures. The Court’s practice in responding to breaches of interim measures orders continues to develop. For example, it has drawn adverse inferences from a state’s failure to provide information relevant to the implementation of a Rule 39 order,96 and as a result of a state’s refusal to implement interim measures,97 and may require states to carry out an effective investigation into a breach of Rule 39.98 Furthermore, as the Court continues to advance its Article 46 jurisprudence,99 its stipulations pursuant to that provision may encompass issues arising from a state’s non-compliance with Rule 39. That was the case in Savriddin Dzhurayev, in which the Court required the Russian authorities to establish a suitable mechanism to ensure that applicants are not subjected to kidnapping and irregular removal from the jurisdiction,100 and in M.A. v. France,101 following the applicant’s precipitative removal 96 See,

e.g., Yunusova and Yunus v. Azerbaijan, No. 59620/14, Judgment, 2 June 2016, para 146. e.g., Aleksanyan v. Russia, No. 46468/06, Judgment, 22 December 2008, para 155. 98 Savriddin Dzhurayev v. Russia, No. 71386/10, Judgment, 25 April 2013, para 263. 99 See Donald and Speck 2019. 100 Savriddin Dzhurayev v. Russia, No. 71386/10, Judgment, 25 April 2013, para 262. 101 No. 9373/15, Judgment, 1 February 2018, para 91. 97 See,

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to Algeria, the Court invoked Article 46 in requiring the French Government to obtain assurances from the Algerian authorities that he would not be treated in breach of Article 3 of the Convention. What is more, a former Jurisconsult at the Court has advocated the imposition of punitive damages under Article 41.102 In cases such as Makharadze and Sikharulidze and Savriddin Dzhurayev, where the breach is flagrant and/or systematic and repeated, and its consequences cataclysmic for the applicant, it is difficult to deny that such a development would be justifiable and proportionate, in exceptional cases. The application of interim measures in a large-scale and ongoing theatre of conflict, such as in eastern Ukraine, presents grave difficulties for an international court, but that is not to say that their creative development and application, in exceptional situations, may not be justified, in order to preserve an effective right of application to the Court for the victims of armed conflict. A more frequent and compelling problem in practice, which needs further extrapolation, is the Court’s assessment of the adequacy of the extent of state compliance with a Rule 39 order. Rather than restricting itself to an ex post facto review in the course of its subsequent adjudication on the merits, the Court could follow the example set by the Inter-American Court and take further steps during the period when the interim measures order is in force, to review the adequacy of the state’s response, raise follow-up questions and, if the authorities are found wanting, issue further directions. Another strategy which could be pursued is for the Court to be more precise and specific as to the measures ordered (as the Parliamentary Assembly recommended in 2014).103 Given the ‘crucial significance’ which the interim measures mechanism is acknowledged to have within the wider Convention system,104 these are all questions which deserve further reflection and debate.

References Burbano Herrera C (2015) The Inter-American Court of Human Rights and its Role in Preventing Violations of Human Rights through Provisional Measures. In: Haeck Y, Ruiz-Chiriboga O, Burbano Herrera (eds) The Inter-American Court of Human Rights: Theory and Practice, Present and Future. Intersentia, Cambridge Burbano Herrera C, Haeck Y (2010) 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. NQHR 28:332–360

102 Parliamentary

Assembly of the Council of Europe, Committee on Legal Affairs and Human Rights, Report, Urgent need to deal with new failures to co-operate with the European Court of Human Rights, Doc. 13435, 28 February 2014, para 48. The post of jurisconsult was established in 2001—the role is to monitor the Court’s case law and promote its consistency (see Rule 18B of the Rules of Court). 103 Ibid., para A. 8.1. 104 Savriddin Dzhurayev v. Russia, No. 71386/10, Judgment, 25 April 2013, paras 212–213.

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Donald A, Speck A (2019) The European Court of Human Rights’ Remedial Practice and its Impact on the Execution of Judgments. HRLR 19:83–117 European Legal Network on Asylum (ELENA) and European Council on Refugees and Exiles (ECRE) (2012) Research on ECHR Rule 39 Interim Measures. https://www.ecre.org/wp-con tent/uploads/2016/05/RULE-39-RESEARCH_FINAL.pdf. Accessed 7 January 2020 European Union External Action Service (2017) Statement by the Spokesperson on the decision of the European Court of Human Rights on the Rustavi 2 case. https://eeas.europa.eu/headquart ers/headquarters-homepage/22240/statement-spokesperson-decision-european-court-human-rig hts-rustavi-2-case_en. Accessed 22 November 2019 Haeck Y, Burbano Herrera C (2003) Interim Measures in the Case Law of the European Court of Human Rights. NQHR 21:625–676 Harby C (2010) The changing nature of interim measures before the European Court of Human Rights. EHRLR 1:73–84 Human Rights Watch (2018) World Report 2018 – Events of 2017. https://www.hrw.org/sites/def ault/files/world_report_download/201801world_report_web.pdf. Accessed 22 November 2019 Keller H, Marti C (2013) Interim Relief Compared: Use of Interim Measures by the UN Human Rights Committee and the European Court of Human Rights. ZaöRV 73:325–372 Keller H, Marti C (2015) Reconceptualizing Implementation: The Judicialization of the Execution of the European Court of Human Rights’ Judgments. EJIL 26:829–850 Koch J (2016) The Efficacy and Impact of Interim Measures: Ukraine’s Inter-State Application against Russia, 39 B. C. Int’l & Comp. L. Rev. 163–194 Lawson R (2020) The ECHR at 70: A Living Instrument in Precarious Present-day Conditions. https://leidenlawblog.nl/articles/the-echr-at-70-a-living-instrument-in-precarious-presentday-conditions. Accessed 12 March 2020 Leach P (2014) Ukraine, Russia and Crimea in the European Court of Human Rights. https:// www.ejiltalk.org/ukraine-russia-and-crimea-in-the-european-court-of-human-rights/. Accessed 10 October 2019 Leach P (2016) The right to life – interim measures and the preservation of evidence in conflict situations. In: Austin A, Chernishova O, Early L, Ovey C (eds) The Right to Life under Article 2 of the European Convention on Human Rights: Twenty Years of Legal Developments since McCann v. the United Kingdom. Wolf Legal Publishers, Tilburg Leach P (2017) Taking a Case to the European Court of Human Rights, 4th edn. Oxford University Press, Oxford Marti C (2018) Provisional Measures: European Court of Human Rights (ECtHR). In: Ruiz Fabri H (ed) Max Planck Encyclopedia of International Procedural Law. Oxford University Press, Oxford McCormick P (2009–2010) A Risk of Irreparable Damage: Interim Measures in Proceedings before the European Court of Human Rights. Cambridge Y.B. Eur. Legal Stud. 12:313–336 Miles C (2017) Provisional Measures Before International Courts and Tribunals. Cambridge University Press, Cambridge Pasqualucci J (2013) The Practice and Procedure of the Inter-American Court of Human Rights, 2nd edn. Cambridge University Press, Cambridge Reid K (2019) A Practitioner’s Guide to the European Convention on Human Rights, 6th edn. Sweet & Maxwell, London Rieter E (2010) Preventing Irreparable Harm – Provisional Measures in International Human Rights Adjudication. Intersentia, Antwerp Rieter E (2019) The International Court of Justice and Provisional Measures Involving the Fate of Persons. In: Kadelbach S, Rensmann T, Rieter E (eds) Judging international human rights: Courts of general jurisdiction as human rights courts. Springer International Publishing AG, Heidelberg/Berlin Rudloff S (2011) The hindrances to the migrants’ right to appeal: the French case. In: Lambert Abdelgawad E (ed) Preventing and sanctioning hindrances to the right of individual petition before the European Court of Human Rights. Intersentia, Antwerp

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Shelton D (2016) Inherent and Implied Powers of Regional Human Rights Tribunals. In: Buckley C, Donald A, Leach P (eds) Towards Convergence in International Human Rights Law – Approaches of Regional and International Systems. Brill Nijhoff, Leiden, 454–489

Philip Leach is Professor of Human Rights Law at Middlesex University (UK) and Director of the European Human Rights Advocacy Centre (EHRAC) at Middlesex University. My thanks to my Middlesex University and EHRAC colleagues for their very helpful comments on an earlier draft: Dr. Alice Donald, Jess Gavron and Ramute Remezaite. The usual disclaimers apply.

Chapter 10

The Innovative Potential of Provisional Measures Resolutions for Detainee Rights in Latin America Through Dialogue Between the Inter-American Court and Other Courts Clara Burbano Herrera and Yves Haeck

Content 10.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2 Applicable Human Rights Standards to Persons Deprived of Their Liberty in Latin America . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3 Legal Basis of Provisional Measures in the Inter-American System . . . . . . . . . . . . . . . . . 10.4 Detention Conditions of Persons Deprived of Their Liberty in Latin America Through the Lens of Provisional Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.5 The Provisional Measures in the Case of the Instituto Penal Plácido de Sá Carvalho v. Brazil . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.6 Final Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The dire situation in prisons in which detainees who are protected by provisional measures find themselves in Latin America is a practice incompatible with international human rights treaties, such as the American Convention on Human Rights (ACHR) and human rights standards developed by the Inter-American Court, which establish that detainees must be held in dignified detention conditions. The Inter-American Court uses the legal instrument of provisional measures adopted in the context of the case of the Instituto Penal Plácido de Sá Carvalho v. Brazil (2018) to start a dialogue with the case law of certain national courts of the Organization of American States (OAS States) and another international court, with the objective of analysing the structural problems in detention centres all over Latin America and providing some answers. While the Inter-American Court is aware of the limits of its jurisdiction, it apparently wishes its provisional measures to have an effective or material impact on the improvement of detention conditions. For the first time the C. Burbano Herrera (B) · Y. Haeck Faculty of Law & Criminology, Ghent University, Universiteitstraat 4, 9000 Ghent, Belgium e-mail: [email protected] Y. Haeck e-mail: [email protected] © T.M.C. Asser Press and the authors 2021 E. Rieter and K. Zwaan (eds.), Urgency and Human Rights, https://doi.org/10.1007/978-94-6265-415-0_10

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Court adjudicates that for a state with grave problems in its detention centres, there is no need to build new detention facilities or to transfer detainees to other existing centres, because these measures do not solve the problem at hand. The time during which detainees are being held in undignified conditions must be taken into account and lead to a reduction of their time spent in prison. Keywords Colombian Constitutional Court · Detainees · Detention · Dialogue · Inter-American Court of Human Rights · Inter-American Human Rights System · Overcrowding · Provisional Measures · Precautionary Measures · Urgent Measures

10.1 Introduction Depriving a person of his freedom is one of the most intrusive powers a state has and also one of the strongest interferences with fundamental rights to which a person can be subjected. The way in which states are exercising that power, and the conditions in which people who are deprived of their liberty find themselves, is a matter of major concern in the whole of Latin America.1 The so-called provisional measures issued by the Inter-American Court of Human Rights (IACtHR or Court) to protect persons deprived of their liberty are the perfect illustration of the existence of serious problems in detention centres throughout the continent. The cases that give rise to the adoption of provisional measures show that minimum international human rights standards are not guaranteed in prisons. The information contained in the resolutions on provisional measures reveals that the deplorable detention conditions are, moreover, not a consequence of isolated incidents, but are due to a systemic problem resulting from a malfunction of the prison system, which has affected many people in the past, which currently affects many people, and that if not changed, can affect many other people in the future. In short, the current conditions of the detention centres in Latin America reflect an important situation of concern and encourage a critical reflection on the role and the scope that the instrument of provisional measures actually has in that context. Given this context, this contribution aims to analyse the use of provisional measures adopted by the Inter-American Court of Human Rights as a protection mechanism for detained persons in Latin America. This contribution wants to offer an analysis that reflects the complexity of the prison problem from the perspective of the preventive instrument of provisional measures. To fulfil this objective, the chapter is divided into five sections. First, the standards developed by the Court in relation to persons deprived of their liberty are briefly outlined, thereby emphasizing the obligation of ACHR Member States to respect 1 The term “deprivation of liberty” will be used in cases related to arrest, detention or imprisonment.

According to the 1998 UN Body of Principles for the Protection of All Persons under Any Form of Detention of Imprisonment (GA Res 43/173, 9 December 1998), “arrest” is defined as “the act of apprehending a person for alleged commission of an offence or by the action of an authority”, whereas “detention” and imprisonment” relate to the “condition” of a person deprived of personal liberty, depending whether or not the deprivation of liberty follows a conviction for an offence.

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the dignity of detainees. The next section provides the legal basis of the provisional measures in the inter-American system which are expressly contemplated in the American Convention and which can be adopted by the Inter-American Court of Human Rights in situations of extreme gravity and urgency, with the aim of avoiding irreparable damage. In the ensuing section, through the lens of some case law on provisional measures, a very general overview is given of the present-day conditions of detention in Latin America, which includes an analysis of a specific provisional measures resolution dating from 2018, namely the Case of the Instituto Penal Placido de Sá Carvalho (IPPSC) v. Brazil. This resolution is interesting to analyse for several reasons, namely: (i) because it outlines the current detention conditions in Brazilian prisons; (ii) because the Inter-American Court is clearly intensively dialoguing with other courts, by taking into account the case law of various national—supreme and constitutional—courts of OAS States and of the European Court of Human Rights when examining the Brazilian prison problem; (iii) because the Inter-American Court assumes an activist role, as it explicitly holds, for the first time, that the construction of new prisons is by no means the solution for the problem of prison overcrowding. The Court emphasises that the conditions of persons deprived of their liberty in the detention centre at hand constitutes an illegal situation in the face of the American Convention. In the final section, this contribution reflects on the prison problems and the role that provisional measures have played and may play in the future in this context.

10.2 Applicable Human Rights Standards to Persons Deprived of Their Liberty in Latin America The Inter-American Court interprets Article 5(2) of the American Convention in the sense that every person deprived of liberty has the right to live in a situation of detention compatible with his personal dignity.2 Respect for human dignity stands as the guiding principle in terms of protection of detained persons, and consequently, Article 5(2) can never be suspended, not even in cases of war, public danger or other threats to the independence or the security of the State Parties.3 The right can also not be suspended when a person has committed a crime.4 But what does it mean to 2 IACtHR Instituto Penal Plácido de Sá Carvalho v. Brazil, Resolution of Provisional Measures, 22 November 2018, para 45; IACtHR Lori Berenson Mejía v. Peru, Judgment 25 November 2004, para 102; IACtHR De la Cruz Flores v. Peru, Judgment 18 November 2004, para 124; Bulacio v. Argentina, Judgment 18 September 2003, para 126; IACtHR Durand and Ugarte v. Peru, Judgment 16 August 2000, para 78; IACtHR Institute of Reeducation of the Minor “Panchito Lopez” v. Paraguay, Judgment 2 September 2004, para 151; IACtHR Neira Alegría and others v. Peru, Judgment 19 January 1995, para 60. 3 The right to personal integrity is included in the list of non-derogable rights under Article 27(2) ACHR. 4 IACtHR Montero Aranguren and others v. Venezuela, Judgment 5 July 2006, para 85; IACtHR Penal Miguel Castro Castro v. Peru, Judgment 25 November 2006, para 274; IACtHR Ximenes

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be treated with dignity for a person deprived of his freedom? It implies that the state must provide the person with food, a mattress to sleep on, a place with sufficient natural ventilation, natural light, and space; if necessary, access to health care and medication; and in general the state must take measures to protect and guarantee the detainee’s rights to life and integrity. Through its case law, the Inter-American Court of Human Rights has developed a set of human rights standards related to persons deprived of liberty. In the first place, the Court has said that the deprivation of liberty cannot imply the dispossession of other rights.5 Therefore, ‘the State must ensure that the manner and method of any deprivation of liberty do not exceed the unavoidable level of suffering inherent in detention and that the detainee is not subjected to sufferings or hardships exceeding the unavoidable suffering inherent in detention, and that, given the practical requirements of incarceration, the detainee´s health and welfare are adequately warranted’.6 The rights to life,7 personal integrity,8 religious freedom,9 and fair trial,10 must be effectively respected and guaranteed with regard to detainees, just like they have to be ensured to any person who has not been deprived of his liberty.11 The prohibition of any injury or damage to life, integrity or health of a person deprived of liberty pursuant to Article 5(2) American Convention is complemented by the fact that the essential purpose of the deprivation of liberty (as a punishment) must be the reform and the social re-adaptation of the prisoners, as recognised by Article 5(6) of the American Convention.12 The Court has also said that as to detainees a special duty of protection rests on the state. In other words, ‘the State is in a special position of guarantor as to the persons deprived of their liberty, since jail authorities exercise a strong control or supervision over the persons under custody’.13 As for the persons deprived of their liberty who belong to vulnerable groups such as minors, the Inter-American Court has established the need for a greater scrutiny with regard to their special Lopes v. Brazil, Judgment 4 July 2006, para 126; IACtHR Institute of Reeducation of the Minor “Panchito Lopez” v. Paraguay, Judgment 2 September 2004, para 157. 5 IACtHR Gómez Paquiyauri Brothers v. Peru, Judgment 8 July 2004, para 108; IACtHR Maritza Urrutia v. Guatemala, Judgment 27 November 2003, para 87. 6 IACtHR Montero Aranguren and others v. Venezuela, Judgment 5 July 2006, para 86. 7 American Convention, Article 4. 8 American Convention, Article 5. 9 American Convention, Article 12. 10 American Convention, Article 8. 11 IACtHR Institute of Reeducation of the Minor “Panchito Lopez” v. Paraguay, Judgment 2 September 2004, para 155. 12 IACtHR Penal Miguel Castro Castro v. Peru, Judgment 25 November 2006, para 314; IACtHR García Asto and Ramírez Rojas v. Peru, Judgment 25 November 2005, para 223; IACtHR Lori Berenson Mejía v. Peru, Judgment 23 June 2005, para 101. 13 IACtHR, Montero Aranguren and others v. Venezuela, Judgment 5 July 2006, para 87; IACtHR Durand and Ugarte v. Peru, Judgment 16 August 2000, para 78; IACtHR Cantoral Benavides v. Peru, Judgment 3 December 2001, para 87; IACtHR Neira Alegría and others v. Peru, Judgment 19 September 1996, para 60.

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vulnerability.14 The state must exercise its function of guarantor adopting all the care that is required by the weakness, ignorance and helplessness of minors.15 In that sense there are two specific obligations: first, in terms of the right to life, there rests an additional obligation on the state established in Article 19 of the ACHR,16 in the sense that the state must assume its special position as guarantor with greater care and responsibility; and secondly, the state must take special measures based on the principle of the best interests of the child.17 Regarding the social rights of children deprived of their liberty, the state must undertake, among others, to provide health and educational assistance, in order to ensure that the detention to which children are subject will not destroy their ‘life projects’.18 Regarding preventive detention, the Court affirms that preventive detention is a precautionary and non-punitive measure,19 and it must meet the essential requirements in a democratic society, that is, it must be exceptional and limited by the principles of legality, presumption of innocence, necessity and proportionality.20 For a custodial measure not to become arbitrary, it must comply with the following parameters: (i) its purpose must be compatible with the Convention; (ii) it must be suitable to fulfil the objective pursued; (iii) it must be necessary, and; (iv) it must be proportional.21 The Court has reiterated that the deprivation of liberty of the accused must only have the legitimate purpose of ensuring that the accused will not impede the efficient development of an investigation and that he will not evade justice.22 14 Article 19 provides special protection to children, specifying that every minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the State. This obligation is therefore particularly strict as regards the conditions of juvenile detention. See, for example IACtHR Servell´on-Garc´ia v. Honduras, Judgment 21 September 2006, para 112; IACtHR Juvenile Reeducation Institute “Panchito Lopez” v. Paraguay, Judgment 2 September 2004, para 16; IACtHR G´omez-Paquiyauri Brothers v. Peru, Judgment 8 July 2004, paras 124, 163, 164, 171; IACtHR Bulacio v. Argentina, Judgment 18 September 2003, paras 126, 134; IACtHR Villagr´an Morales and others v. Guatemala, 19 November 1999, paras 146, 191. 15 IACtHR Bulacio v. Argentina, Judgment 18 September 2003, para 126. 16 IACtHR Institute of Reeducation of the Minor “Panchito Lopez” v. Paraguay, Judgment 2 September 2004, para 160. 17 IACtHR Gómez Paquiyauri Brothers v. Peru, Judgment 8 July 2004, paras 124, 163–164, and 171. 18 IACtHR Advisory Opinion OC-17/2002, “Juridical Condition and Human Rights of the Child”, 28 August 2002, paras 80–81, 84, and 86–88. The IACtHR refers to Rule 13(5) of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), adopted by the General Assembly in Resolution 40/33, 28 November 1985. See also: the United Nations Rules for the Protection of Juveniles Deprived of their Liberty, adopted by the General Assembly in Resolution 45/113, 14 December 1990. 19 IACtHR Acosta Calderón v. Ecuador, Judgment 24 June 2005, para 75; IACtHR Tibi v. Ecuador, Judgment 7 September 2004, para 106. 20 IACtHR García Asto and Ramírez Rojas v. Peru, Judgment 25 November 2005, para 106. 21 IACtHR Women victims of Sexual Torture in Atenco v. México, Judgment 28 November 2018, para 251; IACtHR Ricardo Canese v. Paraguay, Judgment 3 August 2004, para 129. 22 IACtHR Suárez Rosero v. Ecuador, Judgment 12 November 1997, para 77; IACtHR Women victims of Sexual Torture in Atenco v. Mexico, Judgment 28 November 2018, para 251.

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As to prison conditions, the Court has established that ‘imprisonment in overcrowded conditions, isolation in a reduced cell, with lack of ventilation and natural light, without a bed to lie in or adequate hygiene condition, and solitary confinement or unnecessary restrictions to visitation regimens constitute a violation to the right to humane treatment’.23 Prison overcrowding is a determining element of the violation of Article 5(2) of the ACHR. The Court relies on the list established by the European Committee for the Prevention of Torture (CPT) with regard to the definition of an overcrowded prison and on the minimum space of seven square meters for each prisoner, as an approximate guide and desirable for a cell.24 For the Inter-American Court, ‘the poor physical and sanitary conditions existing in detention centres, as well as the lack of adequate lightning and ventilation, are per se violations to Article 5 of the American Convention, depending on their intensity, length of detention and personal features of the inmate, since they can cause hardship that exceed the unavoidable level of suffering inherent in detention, and because they involve humiliation and a feeling of inferiority’.25 Similarly, prolonged isolation and incommunicado detention may produce severe effects, such as moral suffering and mental stress on any individual, creating a real risk of aggression and abuse of authority in prisons.26 Failure to comply (with the duty to safeguard the health and welfare of prisoners and ensure that the manner and method of deprivation of liberty does not exceed the inevitable level of suffering inherent in detention) may result in a violation of the absolute prohibition against cruel, inhuman or degrading treatment or punishment.27 In that sense, States cannot invoke economic hardships to justify conditions of detention that do not meet the minimum international standards in this area and do not respect the dignity of the human being.28 Every person deprived of his liberty must, as has been said, be treated with respect for human dignity and must not be subjected to torture, or to cruel, inhuman

23 IACtHR

Penal Miguel Castro Castro v. Peru, Judgment 25 November 2006, para 315. (92) 3 [EN], 2nd General Report, 13 April 1992, para 43. 25 IACtHR Montero Aranguren and others v. Venezuela, Judgment 5 July 2006, para 97. See also, the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, of the Inter-American Commission on Human Rights, which prescribe that every person deprived of liberty shall have the right to health (Principle X). Similarly, the United Nations Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules), adopted by the United Nations, General Assembly in Resolution A/RES/70/175. 26 IACtHR Lori Berenson Mejia v. Peru, Judgment 23 June 2005, para 104; IACtHR Maritza Urrutia v. Guatemala, Judgment 27 November 2003, para 87; IACtHR Bamaca Velasquez v. Guatemala, Judgment 25 November 2000, para 150; IACtHR Cantoral Benavides v. Peru, Judgment 3 December 2001, para 84. 27 IACtHR Tibi v. Ecuador, Judgment 7 September 2004, para 150; IACtHR Juvenile Reeducation Institute “Panchito Lopez” v. Paraguay, Judgment 2 September 2004, para 151; IACtHR Bulacio v. Argentina, Judgment 18 September 2003, para 126; IACtHR Lori Berenson Mejia v. Peru, Judgment 23 June 2005, para 101. 28 IACtHR Montero Aranguren and others v. Venezuela, Judgment 5 July 2006, para 85. 24 CPT/Inf

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or degrading treatment or punishment.29 Failure to respect the dignity of persons deprived of their liberty constitutes a violation of the values of democratic societies.30

10.3 Legal Basis of Provisional Measures in the Inter-American System The American Convention on Human Rights in its Article 63(2) expressly authorises the Inter-American Court to adopt, ex officio or at the request of the petitioner, provisional measures in cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons.31 Provisional measures may also be requested by the Commission, even when the case has not been submitted to the Court.32 The provisional measures can, as indicated, be adopted in urgent situations, which would clearly be present when there is an imminent risk to the right to life, the right to personal integrity, the right to health or the right to a fair trial of persons deprived of liberty, arising from harsh detention conditions. Given the often terrible conditions of detention in the Americas, persons deprived of their liberty have received protection as individuals and as collectives through provisional measures. In other words, provisional measures have protected clearly identified persons such as sick detainees or detainees condemned to death, and also groups of very significant sizes, for example, all inmates in certain prisons.33 In this regard, provisional measures play a dual role; they have a preventive or precautionary character and they have a protective character. In their preventive role, provisional measures are issued to avoid violations of human rights. Provisional measures allow states to act expeditiously to correct situations that may prima facie cause irreparable damage to the rights of the person(s). In this sense, the provisional measures which states comply with will also provide them with the opportunity to avoid legal responsibility at the international level, because they are able to correct, in a timely manner, situations in which violations of human rights could have occurred.

29 IACtHR Neira Alegría and others v. Perú, Judgment 19 September 1996, para 86; IACtHR Durand and Ugarte v. Peru, Judgment 16 August 2000, para 78. 30 IACtHR Tibi v. Ecuador, Judgment 7 September 2004; IACtHR Institute of Reeducation of the Minor “Panchito Lopez” v. Paraguay, Judgment 2 September 2004. 31 The provisional measures have been further developed in the Rules of Procedure and the Statute of the Inter-American Commission on Human Rights, and those of the Inter-American Court of Human Rights. 32 When the case is under consideration before the Commission, the Court may adopt provisional measures at the request of the Commission. At this stage of the procedure, the Court cannot adopt measures ex officio. See Article 63(2) American Convention. 33 IACtHR Instituto Penal Plácido de Sá Carvalho v. Brazil, Provisional Measures 22 November 2018, paras 45 and 78.

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In turn, in their protective role, provisional measures preserve the rights at issue during the adjudication stage.34 Due to the urgency of the situation, the Court responds to requests for provisional measures within very short notice. On occasions, the provisional measures have been adopted on the exact same day as they were requested.35 Finally, the adoption of provisional measures, given their object and legal nature, does not prejudge the merits of the case, nor does it represent a condemnation of the state.36

10.4 Detention Conditions of Persons Deprived of Their Liberty in Latin America Through the Lens of Provisional Measures In Latin-America many detention centres have structural problems that affect their entire population. In these situations, the Court has, as indicated, requested states to implement provisional measures of a collective dimension. As such, in those cases, prisoners are seen as a group or collective that is potentially at risk. The general pattern is that these cases are related to critical overcrowding,37 high levels of violence, lack of control by prison authorities, insalubrity, spread of contagious infections, lack of access to health services, and prisoners being killed.38 For example, in the Men deprived of their freedom in the cells located in the basement of Polinter Police District in Rio de Janeiro (Brazil) case, 1,000 detainees, including young offenders, were held in cells, while the place only had a capacity of 205 persons.39 In the Instituto Penal Plácido de Sá Carvalho (Brazil) case it was 34 IACtHR Wong Ho Wing v. Peru, Judgment 22 June 2006 and IACtHR Boyce and Joseph v. Barbados, Judgment 20 November 2007. 35 It is important to mention the Boyce and Joseph v. Barbados case in which provisional measures were adopted to protect four persons sentenced to death. In this case, the orders had already been read out and the executions were scheduled four days after the request. In view of the urgency of the matter, provisional measures were adopted the same day that they were requested. See, IACtHR Boyce and Joseph v. Barbados, Provisional Measures 17 September 2004, Having Seen para 4, Decides para 1. The Court’s timeframe depends on the circumstances of the case. See Burbano Herrera 2011, p. 96. 36 The IACtHR may request provisional measures only to States that have ratified the American Convention and accepted its jurisdictional competence. As of 2019, only 23 of the 35 Member States of the Organization of American States (OAS) have ratified the American Convention, and of them, only 20 have accepted the contentious jurisdiction of the Court. 37 IACtHR Instituto Penal Plácido de Sá Carvalho v. Brazil, Provisional Measures 22 November 2018, para 3. 38 IACtHR Instituto Penal Plácido de Sá Carvalho v. Brazil, Provisional Measures 22 November 2018, para 37; IACtHR Detainees at Toussaint Louverture Police Station in Gonaïves v. Haiti, Precautionary Measures, 144/07, Order 16 June 2008, and IACHR Penitentiary Services Buenos Aires Province v. Argentina, Precautionary Measures, 104/12, Order 13 April 2012. 39 IACHR Men deprived of freedom in the cells located in the basement of Polinter Police District in Rio de Janeiro v. Brazil, Precautionary Measures, Order 11 November 2005, 172/05.

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mentioned that, while the prison capacity was 1,699, it in reality contained 3,820 detainees.40 In turn, in the Inmates in the Urso Branco Prison (Brazil) case, it was alleged that there were several conflicts between groups of inmates, as well as a massacre among the prisoners resulting in the death of over 30 inmates.41 While in the Instituto Penal Plácido de Sá Carvalho (Brazil) case urgent measures were ordered, it was reported that 56 detainees had died between 2016 and 2018, and in most cases the reason for their death was classified as the consequence of an illness or unknown cause.42 Another range of cases related to prison conditions in Argentina, Colombia, Honduras and Guatemala, where, in addition to overcrowding conditions, high levels of violence and lack of medical services, the situation of danger was created by not separating the detainees, although they belonged to different categories; for example, when pre-trial and convicted inmates were put together,43 or members of armed groups and common prisoners,44 or members of different armed groups (guerrilla and paramilitary),45 or minors and adults,46 or common detainees and detainees belonging to the group of LGBTI,47 or common detainees and elderly detainees,48 or common detainees and detainees with a disability.49 Imprisoned children have also been in situations of extreme danger. As is commonly known and accepted, children are particularly vulnerable to violence in penitentiary circumstances because of their specific dependency.50 As a result, 40 IACtHR Instituto Penal Plácido de Sá Carvalho v. Brazil, Provisional Measures 22 November 2018, para 17. 41 The 47 survivors were at risk of being killed. See IACHR Inmates in the Urso Branco prison v. Brazil, Precautionary Measures, Order 14 March 2002, 394/02. 42 IACtHR Instituto Penal Plácido de Sá Carvalho v. Brazil, Provisional Measures 22 November 2018, Considering para 40. 43 IACHR Convicted and tried inmates committed to the Penitentiary of Mendoza and its offices v. Argentina, Precautionary Measures, Order 3 August 2004. 44 IACHR 108 inmates in the Maximum Security Prison at Kilometer 14 v. Colombia, Precautionary Measures, Order 18 March 2004, 792/04. 45 In a matter regarding Colombia it was mentioned that ‘[…] [o]n 27 April 2000, prisoners belonging to paramilitary groups detained in cellblock 5 launched a violent attack on prisoners in cellblock 4, killing 47 inmates and injuring 17 others’. IACHR Political prisoners in buildings 1 and 2 of the National Model Prison in Bogotá v. Colombia, Precautionary Measures, Order 11 May 2000, 129/00. 46 IACHR Minors in the San Pedro de Sula Prison v. Honduras, Precautionary Measures, Order 22 October 1996, 11/491. 47 IACtHR Instituto Penal Plácido de Sá Carvalho v. Brazil, Provisional Measures 22 November 2018, Considering para 48. 48 Ibid., Considering para 48. 49 IACtHR Curado Complex (in Recife) v. Brazil, Provisional Measures 23 November 2016, Considering para 4. 50 The American Declaration and Convention provide protection for children but do not define the term ‘child’. The Inter-American Court and Commission have indicated that the definition of a child is based on the provisions of Article 1 of the UN Convention on the Rights of the Child. In that regard ‘child’ refers to any person who has not yet turned 18 years of age. See IAtCHR, Juridical

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the Court has granted provisional measures to protect all the children and adolescents institutionalised in the Unidade de Internação Socioeducativa (la Unidad o la UNIS’) (Brazil) case51 and also in the Complexo de Tatuape of FEBEM (Brazil) case, as well as to protect the life of all the persons within the said FEBEM compound.52 In the latter situation, initially, in 2004, the Inter-American Commission had issued its own precautionary measures to uphold the rights of the children and adolescent detainees.53 It had done so following allegations of violent acts, including the violent death of the adolescent Roni César de Souza, as well as the continuous lack of security and control, which showed that the state had not satisfactorily fulfilled its obligation to prevent attacks against life and personal integrity of the children.54 Subsequently, in 2006, the Commission requested the Court to order provisional measures under Article 63(2) ACHR because the situation did not improve and the children were subjected to increasing dangers.55 In the case probably involving the most comprehensive provisional measures and number of beneficiaries, namely the Matters of Certain Venezuelan Penitentiary Centres (Venezuela) case,56 from 2006, the Inter-American Court started engaging with the conditions of detention in a number of prisons in Venezuela. In its orders, the Court required the state to take immediate measures to ensure that no further detainee is treated inhumanely or is killed. However, the Court went far by requiring measures of a more general nature, such as the separation of ‘accused’ from ‘convicted inmates’, and especially far-reaching measures, such as the provision of health care Condition and Human Rights of the Child, Advisory Opinion OC-17/02, 28 August 2002, para 42; IACtHR Villagran Morales (Street Children) v. Guatemala, Judgment 19 November 1999, para 188; IACtHR Bulacio v. Argentina, Judgment 18 September 2003, para 133. 51 See the provisional measures adopted by the IACtHR on 25 February 2011, 1 September 2011, 26 April 2012, 20 November 2012, 21 August 2013 and 29 January 2014. See also the Resolutions adopted by the President of the IACtHR on 26 September 2014, 23 June 2015 and 15 November 2017. 52 IACtHR Matter of Children and Adolescents Deprived of Liberty in the “Complexo do Tatuapé” of FEBEM v. Brazil, Provisional Measures 4 July 2006. 53 See the chapters by Shelton (Chap. 2) and Harrington (Chap. 6). 54 IACtHR Matter of Children and Adolescents Deprived of Liberty in the “Complexo do Tatuapé” of FEBEM v. Brazil, Provisional Measures 4 July 2006, Having seen para 7. 55 IACtHR Matter of Children and Adolescents Deprived of Liberty in the “Complexo do Tatuapé” of FEBEM v. Brazil, Provisional Measures 4 July 2006, Considering para 6; IACHR, 2005 Annual Report, paras 41–42. 56 On 6 September 2012, the Court decided to join the processing of some matters and to establish that, thereafter, the joint provisional measures would be known as the “Matters of Certain Venezuelan Prisons”. The Orders of the IACtHR of 24 November 2009 in the Monagas Judicial Detention Center (“La Pica”) v. Venezuela, the Penitentiary Center of the Capital Region Yare I and II (Yare Prison) v. Venezuela; the Penitentiary Center of the Central Occidental Region (Uribana Prison) v. Venezuela; the Capital Detention Center El Rodeo I and II v. Venezuela of 15 May 2011, in the matters of the Penitentiary Center of Aragua “Tocorón Prison” and of the Ciudad Bolívar Judicial Detention Center “Vista Hermosa Prison,” as well as of 6 September 2012, the Penitentiary Center of the Andean Region. See IACtHR Certain Penitentiary Centers of Venezuela, Penitenciaria Center of the Central Occidental Region (Uribana Prison) v. Venezuela, Provisional Measures 13 February 2013 and Order 13 November 2015.

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to all inmates, and the reduction of overcrowding, next to the provision of adequately trained staff, and most comprehensive in scope, ensuring that prison conditions conform with ‘applicable international standards’. By the end of 2019, this matter was still being supervised by the Court, as violent acts culminating in the deaths of inmates persisted.57 Although in principle provisional measures ordered by the Court are by definition temporary, in practice some provisional measures have lasted for years. This is due to the fact that the cases submitted to the Court are so grave that, in spite of the implementation of certain measures by the state authorities, the situation of extreme gravity does not disappear. It is difficult, therefore, to determine a priori how long the measures will remain in force. In practice, depending on how each situation develops some provisional measures have been maintained for periods of less than a year, while others are in force for more than eleven years.58

10.5 The Provisional Measures in the Case of the Instituto Penal Plácido de Sá Carvalho v. Brazil In 2017 and 2018 provisional measures were adopted by the Inter-American Court of Human Rights to protect the life and integrity of all persons deprived of liberty at the Instituto Penal Plácido de Sá Carvalho, altogether 3,820 detainees.59 Despite the fact that the Inter-American Commission had already adopted precautionary measures in 2016, the situation of extreme gravity had persisted in the detention centre.60 More specifically, the said detention facility was confronted with three serious problems: (i) overcrowding; (ii) deplorable conditions of detention and infrastructure, and; (iii) deaths.61 The information presented indicated that despite the presence of the precautionary and provisional measures between 2016 and the first quarter of 2018, 56 detainees had died. In most cases, the reason of death was unknown.62

57 Venezuela

denounced the American Convention on 10 September 2012. Herrera 2011, p. 170. 59 IACtHR the Socio-Educational Internment Facility of the Penitentiary Complex of Curado, of the Penitentiary Complex of Pedrinhas and the Instituto Penal Plácido de Sá Carvalho v. Brazil, Provisional Measures 22 November 2018, Considering para 1, and 13 February 2017. 60 IACtHR Instituto Penal Plácido de Sá Carvalho v. Brazil, Provisional Measures 13 February 2017, Considering para 3. 61 The Brazilian State, responding to provisional measures, affirmed to the Inter-American Court that the prison problem was not something exclusive to the Instituto Penal Plácido de Sá Carvalho referred to by the Court, but was a problem that encompassed the entire penitentiary system of the State of Rio de Janeiro. Resolution Court, Instituto Penal Plácido de Sá Carvalho v. Brazil, 22 November 2018, Consideration para 3. 62 IACtHR Instituto Penal Plácido de Sá Carvalho v. Brazil, Provisional Measures 22 November 2018, Considering para 40; and Provisional Measures 13 February 2017, Considering para 5. 58 Burbano

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In 2017, through a provisional measure, the Inter-American Court ordered the state to reduce overcrowding,63 as well as to carry out a diagnosis of the situation, and establish a plan for the structural reform of the Instituto Penal Plácido de Sá Carvalho. Additionally, the Court requested permission from the state to conduct an on-site visit to the Instituto Penal,64 and it organised a public hearing with the objective of verifying the implementation of its provisional measures.65 Despite the adopted provisional measures, the general panorama of the Instituto in 2018 was as follows (Table 10.1).66 In this situation, the Court issued a new provisional measures resolution in 2018. This resolution is extremely important because for first time it reflects an activist Court, and a Court that dialogues with the case law of certain national courts of OAS States, and another international court, with the objective of analysing the prison problem. From a broader perspective, the 2018 Resolution of the Instituto Penal Plácido de Sá Carvalho v. Brazil case reflects the structural problems in detention centres in Latin America, and at the same time it allows us to analyse the position of the Inter-American Court with regard to deplorable prison situations. The resolution, above all, shows an Inter-American Court that is aware of the limits of its jurisdiction, but wants its provisional measures to have an effective or material impact on the improvement of detention conditions. In the provisional measures resolution, the Court states that the measures adopted by the Brazilian Government have been ineffective,67 and it requires the Government to make them materially effective. The Court emphasises that it is not enough for the state to adopt specific protection measures, but that it is necessary for an effective implementation that the risk is terminated in practice for the persons whose protection it is intended for.68 The Court analyses the situation of persons deprived of their liberty in the Instituto Penal Plácido de Sá Carvalho using various resources, such as the case law of three national courts of OAS States, which have already dealt with similar situations, namely the Constitutional Court of Colombia, the Supreme Court of the United States, and the Federal Supreme Court of Brazil. Additionally, the Inter-American Court takes into account the case law of the European Court of Human Rights. 63 IACtHR the Socio-Educational Internment Facility, of the Penitentiary Complex of Curado, of the Penitentiary Complex of Pedrinhas and the Instituto Penal Plácido de Sá Carvalho v. Brazil, Provisional Measures 22 November 2018, Considering par. 3 and Provisional Measures 31 August 2017, Considering para 28. 64 President of the IACtHR Seventeen Persons Deprived of Liberty v. Nicaragua, Urgent Measures 21 May 2019, Considering paras 18 and 19. 65 IACtHR the Socio-Educational Internment Facility, of the Penitentiary Complex of Curado, of the Penitentiary Complex of Pedrinhas and the Instituto Penal Plácido de Sá Carvalho v. Brazil, Provisional Measures 13 February 2017, Decides para 4; President of the IACtHR Seventeen Persons Deprived of Liberty v. Nicaragua, Urgent Measures, 21 May 2019, Considering paras 18 and 19. 66 Table created by the authors. 67 Ibid., Considering para 84. 68 Ibid., Considering para 63; IACtHR Instituto Penal Plácido de Sá Carvalho v. Brazil, Provisional Measures 13 February 2017, Considering para 67.

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Table 10.1 Instituto Penal Plácido de Sá Carvalho: Structural problems (Source The authors) Structural problems Deaths

High number of deaths: 56 deaths between 2016–2018a Lack of information on the causes of high number of deathsb

Infrastructure

Absence of a fire prevention and fire combat planc 9 people responsible for the safety of 3,800 detained personsd Absence of mattress for all detainees, and uniforms, footwear, bedding, towelse Absence of adequate lighting and ventilationf

Overpopulation and overcrowding Overpopulation with approximate density of 200%g Insufficient number of judges: only seven judges of criminal execution in the state of Rio de Janeiro to supervise the execution of sentences and the execution regime of more than 50,000 persons deprived of libertyh Budget obstaclesi One doctor in charge of 3,000 prisonersj Mortality rate higher than with the free populationk Overcrowding in bedroomsl Physical insecurity due to unpredictability of firesm Personal and physical insecurity resulting from the disproportionality of personnel in relation to the number of prisonersn Control of internal order in the hands of the prisoners themselves, as a rule the most violent organised for survival or self-defenceo a IACtHR

Instituto Penal Plácido de Sá Carvalho v. Brazil, Provisional Measures 22 November 2018, Considering para 41 jo. 61 b Ibid., Considering para 61 c Ibid., Considering para 66 d Ibid., Considering para 67 e Ibid., Considering para 68 f Ibid., Considering para 68 g International criteria—like those of the Council of Europe—indicate that exceeding 120% implies critical overpopulation. See IACtHR Instituto Penal Plácido de Sá Carvalho v. Brazil, Provisional Measures 22 November 2018, Considering para 78 h IACtHR Instituto Penal Plácido de Sá Carvalho v. Brazil, Provisional Measures 22 November 2018, Considering para 72 i Ibid., Considering para 76 j Ibid., Considering para 79 k Ibid., Considering para 79 l Ibid., Considering para 79 m Ibid., Considering para 79 n Ibid., Considering para 79 o Ibid., Considering para 81

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As to legislation, regulations or reports at the domestic Brazilian level, the InterAmerican Court relies on the Technical Diagnosis prepared and presented by the Brazilian authorities, and the domestic law of the Brazilian State.69 Finally, the ‘UN Standard Minimum Rules for the Treatment of Prisoners’ (‘Mandela Rules’),70 and the ‘Principles and Good Practices on the Protection of Persons Deprived of Liberty in the Americas’ of the Inter-American Commission on Human Rights are also being taken into account.71 Interestingly, the Inter-American Court extensively refers to the vision of the Colombian Constitutional Court for stating that overcrowding is the first problem to be resolved in detention centres because of the terrible effects it has. Overcrowding leads to increasing health risks and chances of diseases and infections, and consequently to an overburdened health care system. It also leads to a higher risk of violent conflicts and less capacity of the prison guards to control them. For the Colombian Constitutional Court, prison overpopulation is a product of the exaggerated use of deprivation of liberty. Faced with the question of what solution should be given to the problem of overcrowding, the Colombian Constitutional Court reiterates the importance of weighing constitutional principles, such as, on the one hand, the right to have due process of law, and on the other hand, the right to have criminals convicted and to prevent the commission of crimes, as well as respect for judicial decisions. For the Colombian Constitutional Court, the answer given to the legal problem posed must weigh all the values, principles and constitutional rights that are under pressure.72 It is precisely for that reason, despite the terrible state of the detention centres, that this situation by itself does not entitle people deprived of their freedom to be automatically released; that would imply a broad sacrifice to the victims of criminal acts. In the opinion of the Colombian Constitutional Court, the problem of overcrowding must be resolved with prudent judicial policies and decisions of non-indiscriminate release, since there is no automatic right to release.73 To confront the prison and penitentiary crisis, in which overcrowding plays a prominent role, the Inter-American Court refers, again, to the Colombian Constitutional Court which holds that it is necessary to include policies that favour freedom and release, even on a massive scale,74 that is, by large-scale releases. In that sense, the Colombian Constitutional Court is emphatic in stating that the solution to the problem of overcrowding not only requires the construction of new prisons, but it can also be resolved with fewer prisons. The Colombian Constitutional Court evidences the fact that there are people deprived of liberty, despite there being constitutional 69 Resolutions

N14/1994, and 09/2011 of the CNPCP. United Nations Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules), adopted by the United Nations, General Assembly in Resolution A/RES/70/175, 18–22 May 2015, Rules 19–21. 71 IACHR, Principles and Good Practices on the Protection of Persons Deprived of Liberty in the Americas, OAS/Ser.L/V/II.131 Doc. 38, 13 March 2000, Principle XII. 72 IACtHR Instituto Penal Plácido de Sá Carvalho v. Brazil, Provisional Measures 22 November 2018, Considering para 96. 73 Ibid., Considering para 99. 74 Ibid., Considering para 98. 70 The

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and legal reasons for them to be released, such as their age, serious terminal illness or requests for their freedom, which have not yet been processed by the respective judge for the execution of penalties and security measures. These reasons, according to the Colombian Constitutional Court, are a clear sign that prison overpopulation is not a matter exclusively of having to build more prisons,75 since not all persons deprived of liberty (as in the cases just mentioned) should be in prison.76 The Colombian Constitutional Court says that the excessive and exaggerated use of a harsh criminal and penitentiary policy is unsustainable in a social and democratic state abiding by the rule of law, due to the costs that it implies to fundamental rights, social cohesion, and the scarce public resources that the states have, in order to fulfil the varied and multiple tasks and state functions. So that, when confronted with a state of affairs in prisons which is incompatible with the constitutional order, the state has to implement policies that can lead to the right for certain people to be released. Even so, the Colombian Constitutional Court insists that this is not an automatic issue. The decision to release a person must be individually determined.77 According to the Inter-American Court the most significant judgment related to detainees kept in terrible conditions on the American continent was delivered by the US Supreme Court in 2011.78 The case was related to grave violations that were occurring in the Californian penitentiary system. The California prison population reached a 200% density for at least 11 years, that is, overcrowding conditions similar to those of the Rio de Janeiro IPPSC.79 In that context two class actions with respect to two cases were submitted to the Federal District Courts. These cases are the Coleman v. Brown case, which concerned prisoners with serious mental disorders, and the case of Plata v. Brown, which concerned prisoners with serious medical conditions.80 The District Court ordered California to reduce its prison population to 137% within a framework of two years. The State of California brought the case to the US Supreme Court, which finally, by a majority of five votes, said that ‘[…] [f]or years, the medical and mental health care provided by California prisons has not met the minimum constitutional requirements and has not met the basic health needs of inmates. Unnecessary suffering and death have been well-documented. Throughout the years during which this litigation has been pending, no other sufficient resources have been found. Efforts to remedy rape have been thwarted by severe overcrowding in the California prison system. The short-term benefits of care delivery have been eroded by the long-term effects of severe and widespread overcrowding 75 IACtHR Instituto Penal Plácido de Sá Carvalho v. Brazil, Provisional Measures 22 November 2018, Considering para 96. 76 Ibid., Considering para 96. 77 Ibid., Considering para 98. 78 US Supreme Court, No. 09–1233, Edmund G. Brown Jr., Governor of California, et al.; Appellants v Marciano Plata et al. On Appeal from the United States District Courts for the Eastern District and the Northern District of California, Judgment, 23 May 2011, No. 09–1233, 563 U. S. 493 (2011). 79 IACtHR Instituto Penal Plácido de Sá Carvalho v. Brazil, Provisional Measures 22 November 2018, Considering para 104. 80 Ibid.

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[…]’.81 The Inter-American Court further points to the fact that the US Supreme Court also indicated that the overcrowding is the ‘primary cause of violation of a federal law’, specifically the severe and illegal mistreatment of prisoners as a result of inadequate medical care. The Supreme Court held that in order to protect the prisoners’ constitutional rights, it was required to limit the prison population. In the case numerous experts stated that overcrowding was the main cause of constitutional violations.82 The Inter-American Court also refers to a judgment of the European Court of Human Rights and the Supreme Federal Court of Brazil. In relation to the European Court, it mentions that in Torregiani et al. v. Italy the detention conditions were defined as a practice incompatible with the European Convention on Human Rights. As a solution to the problem, Italy was then ordered to create an appeal with preventive and compensatory effects, and to guarantee an effective remedy for violations of the European Convention.83 In addition, in a Brazilian case referenced by the InterAmerican Court, which was dealt with by the Supreme Federal Court of Brazil,84 on the issue of places in criminal establishments,85 the Brazilian Court ordered that in case of lack of places, that is to say overcrowding and overpopulation, the Judge of Execution of Penalties should determine the early release of the prisoner, his or her monitored liberty, or house arrest. Subsequently, and returning to the case of the Instituto Penal Plácido de Sá Carvalho v. Brazil, the Inter-American Court considered that a situation of risk of irreparable damage to the personal integrity and life of the beneficiaries of the provisional measures persists in the prison, and this requires the Court to order specific measures to preserve these rights.86 For the Inter-American Court, the only means to end this situation of risk is through the reduction of the prison population of the Instituto Penal Plácido de Sá Carvalho. In that sense, the Inter-American Court considers that the binding precedent, issued by the Supreme Federal Court of Brazil,87 is fully applicable to the situation of the beneficiaries of the provisional measures in the 81 Ibid. 82 IACtHR Instituto Penal Plácido de Sá Carvalho v. Brazil, Provisional Measures 22 November 2018, Considering para 104. 83 ECtHR Torregiani and others v. Italy, 1 March 2013, para 88. The European Court stated: “In general, these data reveal that the violation of the right of applicants to benefit from adequate detention conditions is not a consequence of isolated incidents, but is due to a systemic problem resulting from chronic malfunction of the Italian prison system, which affected and may still interest many people in the future (…). According to the European Court, the situation established in this case is therefore constitutive of a practice incompatible with the European Convention on Human Rights (Bottazzi v. Italy [GC], n° 34884/97, § 22, ECHR 1999-V…). See Instituto Penal Plácido de Sá Carvalho v. Brazil, Provisional Measures 22 November 2018, Considering para 106. 84 Sumula Vinculate No. 56, from 2016. 85 This decision is binding and mandatory for all judges, tribunals and organs of the government administration, and can only be modified by the Supreme Tribunal itself. IACtHR Instituto Penal Plácido de Sá Carvalho v. Brazil, Provisional Measures 22 November 2018, Considering para 110. 86 IACtHR Instituto Penal Plácido de Sá Carvalho v. Brazil, Provisional Measures 22 November 2018, para 116. 87 Sumula 56 of the Supreme Federal Court of Brazil.

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institute.88 That is to say, the Judge of Execution of Penalties could decide in those cases on the early release of the prisoner, his or her monitored liberty, or house arrest. Additionally, the Inter-American Court maintained—following the reasoning of the Colombian Constitutional Court—that if in the Instituto Penal Plácido de Sá Carvalho v. Brazil case it would find, hypothetically speaking, a violation of Article 5(2) of the American Convention, this violation could not be remedied with the construction of new prisons, and this for two reasons. Firstly, for the reason that no new establishments have been projected nationwide, and; secondly, because the Brazilian state itself has alleged a lack of resources. In addition, the situation could also not be resolved through transfers of inmates to other prison establishments, since the other prisons also do not have the capacity to receive more prisoners. If transfers were made, overpopulation would simply be generated in the other detention centres.89 In other words, the Court states for the first time that there is no need to build new detention centres or to transfer detainees in the context of grave problems in detention centres, because these measures do not solve the problem at hand. Furthermore, the Inter-American Court affirmed that, given the poor conditions in which persons deprived of their liberty are maintained, the execution of the deprivation of liberty that has been provided by the domestic judges is being implemented in an illegal way, because in reality the detained persons are suffering more than they are supposed to suffer, that is, more than what is inherent in any legal deprivation of liberty. The Court indicated that it is most prudent, in this type of situation, to take into account the excessive suffering that the person is undergoing (suffering that was not arranged or authorized by the judges) with the objective of deducting the time of deprivation of liberty.90 Since detainees, deprived of liberty, are suffering much more than they should, it is fair to reduce their confinement time. In the specific case concerned, given that overcrowding in the Instituto Penal Plácido de Sá Carvalho is 200%, a density the double of its capacity, it must be concluded that the suffering of detainees has also doubled. In that sense, the Inter-American Court—quite revolutionary—concludes that every day of deprivation of liberty in such a situation must be counted double. Additionally, the Court does not exclude the possibility that Brazil may use other means as a substitute for deprivation of liberty, such as those mentioned by the Federal Supreme Court of Brazil in its earlier-mentioned 2016 precedent.91 For the Inter-American Court, the living conditions in the Instituto Penal Plácido de Sá Carvalho might also eventually violate Article 5(6) of the American Convention, since such a deprivation of liberty could never comply with the social reform 88 IACtHR Instituto Penal Plácido de Sá Carvalho v. Brazil, Provisional Measures 22 November 2018, paras 110–114. 89 Ibid., paras 115–116. 90 Ibid., Considering para 97. 91 Ibid., Enacting paras 2, 4. See also the case of Milagro Sala v. Argentina, where the Court requested the State to replace Mrs. Sala’s preventive detention with the alternative measure of house arrest to be carried out in her residence or place where she usually lives, or by any other alternative measure to pre-trial detention that is less restrictive of one’s rights than house arrest. IACtHR Milagro Sala v. Argentina, Provisional Measures 23 November 2017, Considering para 33.

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and rehabilitation of the convicted person. The prison conditions result in a degrading penalty that affects the inmate’s self-esteem.92 For the Court, a prolonged violation of Article 5(6) of the American Convention seriously endangers the rights of all persons deprived of liberty. In fact, the prison is controlled by dominant violent groups that cause humiliations to detainees, causing a serious deterioration of their self-perception and self-esteem, a high risk of reproduction of violence with criminal deviations even more serious than those that motivated the prison sentence in the first place.93 The prison conditions result in degrading punishment.94 When the conditions of the establishment deteriorate and give way to a degrading penalty, also partly as a result of overpopulation and its effects, the distressing content of the deprivation of liberty increases to a degree that it becomes illicit or unlawful.95 With this statement it seems that the Court is prejudging the merits of the matter in a subtle manner. However, it could also be seen as a Court, which is desperate to find a way to order provisional measures that will result in effective protection for detainees who are kept in deplorable conditions, in some cases for many years already. Concretely, the Inter-American Court ordered the following measures (Table 10.2). The Inter-American Court clarified that prisoners convicted of, or charged with, crimes against life and physical integrity or sexual offences, require particular treatment. In these cases, a technical criminological examination or examination of the prognosis of the detainees’ conduct is required. That exam must be performed by at least three groups of experts.96 Likewise, the Court emphasised that its competence to order provisional measures refers exclusively to the situation of the Instituto Penal Plácido de Sá Carvalho, and of the persons staying there, thereby excluding an erga omnes impact of the provisional measures resolution beyond the case at hand.97

92 IACtHR

Instituto Penal Plácido de Sá Carvalho v. Brazil, Provisional Measures 22 November 2018, Considering para 87. 93 Ibid., Considering paras 87–88. 94 Ibid., Considering para 87. 95 Ibid., Considering para 92. 96 Ibid., Considering paras 129–130. 97 Ibid., Considering para 118.

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Table 10.2 Measures ordered by the Inter-American Court on the Instituto Penal Plácido de Sá Carvalho (Source The authors) Structural problem Deaths

Measure ordered High number of deaths: 56 deaths in two years

To take measures to prevent more deaths and to report what these specific measures are

Lack of information on the causes To investigate the causes of the of high number of deathsa deaths and to inform the next of kin,b and the Inter-American Court Infrastructure

Absence of a fire prevention and combat plan Nine people responsible for the safety of 3,800 people Absence of mattress for all detainees, uniforms, footwear, bedding, towels

To adapt the infrastructure conditions to those minimally necessary to provide a decent lifec To implement the provisions of Law No. 7.210/84d

Absence of adequate lighting and ventilation Overpopulation and overcrowding

Overpopulation with approximate density of 200% Insufficient number of judges: only seven judges of criminal execution in the state of Rio de Janeiro to accompany the execution of sentences and the execution regime of more than 50,000 persons deprived of libertye

To reduce the number of inmates through double counting for each day of deprivation of liberty

Budget obstacles One doctor in charge of 3,000 prisoners Mortality higher than the free population Lack of information about the causes of death

To subject persons deprived of their liberty for crimes against life, physical integrity or of a sexual nature to a criminological technical exam consisting of at least psychologists and social workers

Overcrowding in dormitories To remodel all the prison pavilions Physical insecurity due to unforeseen fires Personal and physical insecurity resulting from the disproportion of personnel in relation to the number of prisonersf

To install emergency lighting, a fire detection system and an alarm system

(continued)

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Table 10.2 (continued) Structural problem

Measure ordered Control of internal order in the To foresee a number of guards hands of the prisoners themselves, adjusted to the number of persons as a rule the most violent deprived of liberty organized for survival or self-defence

a Ibid.,

Considering para 61 Considering para 62 c Ibid., Considering para 68 d Ibid., Considering para 69 e IACtHR Instituto Penal Plácido de Sá Carvalho v. Brazil, Provisional Measures 22 November 2018, Considering para 72 f Ibid., Considering para 79 b Ibid.,

10.6 Final Remarks The case law of international human rights bodies mirrors the existing problems within society. The study of the provisional measures issued by the Inter-American Court of Human Rights with regard to persons deprived of their liberty in Latin America shows that detainees are, in countless number of cases, kept in undignified prison conditions incompatible with international human rights law. Interestingly, the legal instrument of provisional measures is being used by the Inter-American Court to extensively evoke its unhappiness with regard to the way governments are currently dealing with problematic prison conditions. The provisional measures adopted by the Inter-American Court with regard to detention centres form the perfect illustration of a structural problem in Latin America that has manifested itself throughout the years through its high rates of prison overcrowding, unhealthiness, the spread of infections and diseases, high levels of violence, deaths, lack of control by the authorities, lack of access to medical services, and lack of investigation and sanction, in addition to the far too low budget allocation of states to their respective penitentiary system. There are several factors that have caused this prison crisis. One of these is the excessive and prolonged use of preventive detention. Indeed, criminal policy about the use of, inter alia, this instrument has played a central role. The political powers in the driving seat respond repressively to the social demand for security, and this is reflected in the excessive and prolonged use of preventive detention in Latin America.98 As to the social effects, these measures enjoy great popularity within the population and this, in turn, strengthens the legitimacy of governments towards public opinion. Their symbolic effectiveness is high, but in the long term, the use of preventive detention does not solve the problem of insecurity outside and inside

98 36.3

average in the region, IACHR Report 2017 ‘Measures to Reduce Pretrial Detention’, p. 22.

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prisons. The most notable negative effect of a repressive penal policy is the exclusionary treatment of the prison population, which becomes marginalised and stigmatised. Indeed, a repressive penal policy gives detainees the image of being antisocial, which has as a consequence that their undignified situation of overcrowding and unworthiness does not arouse any social censorship. The abundant use of pre-trial detention contributes greatly to overcrowding, and its negative consequences. In addition, preventive detention may violate the principles of presumption of innocence, legality, necessity and proportionality. Although in recent years some governments in Latin America have introduced reforms to reduce the use of preventive detention, studies indicate that the impact of such reforms has so far been limited, a situation which has been acknowledged in a 2017 report of the Inter-American Commission.99 Another factor that contributes to the fact that the detention centres do not meet the minimum international standards is that the budgets allocated within the prison system in Latin America do not increase to the same extent as the increase in the prison population. A study conducted by the non-governmental organisation DeJusticia shows that ‘the budgets are well below the needs and did not increase at the same level as the prison population for drugs increased’.100 This is particularly, but not exclusively, serious in Bolivia, Ecuador and Peru, where the lack of resources has generated nutrition and health problems in prisons. The daily food budget of these countries is 80 centavos, that is, between 1.60 and 2.00 dollars per prisoner.101 To combat the prison problem and especially the problem of overcrowding in Brazil, the Inter-American Court, in its resolution of provisional measures, examining the situation of the Instituto Penal Plácido de Sá Carvalho v. Brazil case, is inclined to balance the rights and principles in conflict. On the one hand the right to decent detention conditions when deprived of one’s liberty, and on the other hand, the right of society to punish those who commit crimes. In its analysis, the InterAmerican Court considers that in dire prison conditions there is no automatic right to be released, but it also takes a step forward and accepts that persons deprived of their liberty are undergoing a greater suffering than what is inherent in a term of imprisonment. Therefore, that additional suffering must be taken into account by domestic judicial authorities. In that sense, the penalty of deprivation of liberty can be reduced proportionally to the additional pain suffered by the detainees. In the Brazilian case at hand, since overcrowding amounted to 200%, that is, the double of the prison capacity, the suffering of detainees has also doubled and as such, every day of deprivation of liberty should be counted as two days. In addition, in the Latin American context, the Inter-American Court takes a clear approach by stating that (preventive) detention is not the answer to combat criminality and that building more prisons or transferring detainees to other prisons or detention centres is not the answer to the problem of overcrowding. 99 IACHR

Report 2017 ‘Measures to Reduce Pretrial Detention’, p. 22. Sistemas Sobrecargados, Leyes de drogas y cárceles en América Latina, 2010, p. 6, https://www.dejusticia.org/wp-content/uploads/2017/04/fi_name_recurso_192.pdf. Accessed 15 March 2020. 101 DeJusticia, Sistemas Sobrecargados, Leyes de drogas y cárceles en América Latina, 2010. 100 DeJusticia,

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Importantly, to reach these conclusions, the Inter-American Court relies heavily on a range of judicial decisions of Brazil and other national tribunals of OAS member states, as well as of the European Court of Human Rights, in its resolution on provisional measures related to the Instituto Penal Plácido de Sá Carvalho. Thereby the Court tried to detect a trend towards a growing consensus about how the prison problem should be understood and solved.

Reference Burbano Herrera C (2011) Provisional Measures in the Case Law of the Inter-American Court of Human Rights. Intersentia, Antwerp, p. 96, 170

Clara Burbano Herrera is Professor of international human rights law at Ghent University (Belgium) and Director of the Programme for Studies on Human Rights in Context. Yves Haeck is Professor of international human rights law at Ghent University (Belgium) and Director of the Programme for Studies on Human Rights in Context.

Chapter 11

Conclusion: The Protective Potential and Legitimate Use of Interim Measures in Human Rights Cases Eva Rieter Contents 11.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.2 Urgency Mechanisms Used by Regional and International (Quasi-)judicial Bodies . . . . . 11.3 Mechanisms Obstructing the Protective Potential of Urgent Action Mechanisms by Adjudicators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.3.2 Domestic Sensitivities and Other Obstacles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.3.3 Strategies of States in Response to Interim Measures . . . . . . . . . . . . . . . . . . . . . . 11.4 Measures Enhancing the Protective Potential of (Quasi-)judicial Urgent Action Mechanisms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.4.2 Responsiveness to Urgent Situations: Filling Gaps and Increasing Specificity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.4.3 Increasing Legitimacy and Follow-Up . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5 Criteria for Normative Legitimacy of Interim Measures . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5.2 Purpose and Legal Authority of Interim Measures . . . . . . . . . . . . . . . . . . . . . . . . . 11.5.3 Fairness of the Procedure and Avoiding Prejudgment . . . . . . . . . . . . . . . . . . . . . . 11.5.4 Motivation of Interim Measures Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5.5 Sufficiency of the Evidence and Staying within the Scope . . . . . . . . . . . . . . . . . . 11.6 Concluding Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This chapter contains overall reflections on common threads between the various contributions in this book on the protective potential and legitimacy of judicial urgency measures in human rights cases. It refers to different mechanisms highlighted throughout the book. The focus is on interim measures. The subject matters discussed concern obstacles to compliance and state pressure to control the practices developed by different adjudicators, protection gaps and suggested measures to enhance the protective potential of interim measures. Two of those suggested measures in the preceding contributions are to increase specificity and to make sure there is followup. This chapter reflects on these and then zooms in on the third measure suggested: E. Rieter (B) Centre for State and Law, Radboud University Nijmegen, Montessorilaan 10, 6525 HR Nijmegen, The Netherlands e-mail: [email protected] © T.M.C. Asser Press and the authors 2021 E. Rieter and K. Zwaan (eds.), Urgency and Human Rights, https://doi.org/10.1007/978-94-6265-415-0_11

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increasing the normative legitimacy of interim measures. Normative legitimacy is important for social legitimacy and, thereby, for the protective potential of interim measures. While the criticisms expressed by states often serve merely as excuses for non-compliance, rather than constitute real concerns, it is nonetheless important to discuss how adjudicators can enhance the normative legitimacy of their decisions on interim measures. This chapter brings together aspects of normative legitimacy suggested by the various authors in the previous chapters. Legitimacy aspects discussed are the purpose of interim measures, the authority of adjudicators to take them and the legal status of interim measures, the fairness of the decision-making, avoiding prejudgment, ensuring transparency, sufficiency of the evidence and staying within the scope. Keywords Interim measures · provisional measures · protective potential · legitimacy · (quasi-)judicial proceedings · urgent action methods · urgency mechanism · urgent action procedure · urgent appeals mechanism · protection measures · urgency measures · ‘Letters of Reprisal’ · specificity · follow-up · domestic sensitivities · timeliness · procedural fairness · adversarial nature · prejudgment · integrity of the proceedings · death penalty · non-refoulement · death threats · access to court and counsel · medical care · disappearance · land rights · indigenous peoples · forced displacement · evictions · basic facilities · right to housing · children’s rights · right to property · judicial independence · systemic violations · structural measures

11.1 Introduction Drawing from practices developed in various international and regional adjudicatory systems, the contributors to this book gave their perspectives on the legitimacy and/or the protective potential of interim measures and other (quasi-)judicial proceedings in urgent human rights cases. The approaches developed by adjudicators depend, among others, on the human rights risk claimed in the case before them, the urgency of that risk and the specific system in which they operate. At the same time, states, applicants and adjudicators all draw from developments in other systems. There are certain features and approaches that surface from the various contributions. One is that meeting legitimacy criteria is expected to contribute to enhance compliance. This concerns procedural criteria, such as transparency and equality of arms, and more material ones, regarding the types of cases warranting urgent (quasi-)judicial action. While some of the observations were made before,1 what is new is the confirmation by the various authors, looking at these questions through different lenses, discussing specific subject matters and systems.

1 See

Chap. 1 for literature references.

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The book discusses mechanisms obstructing the protective value of urgent action methods by various international adjudicators, on the one hand, and tools strengthening the protective value of these methods, and thereby the likelihood of follow-up in case of non-compliance, on the other hand. At the UN level the focus is on the practice of the UN Human Rights Committee (HRCtee) and the Committee against Torture (CAT), although other treaty bodies are touched upon as well.2 Practices in the three regional human rights systems are highlighted in various chapters.3 The practice of the Court of Justice of the European Union (CJEU) is discussed both with regard to its use of interim measures, and with regard to its urgent or accelerated preliminary ruling procedure.4 At domestic level, practices in Brazil and in various states of the African and European human rights systems are discussed,5 including a case study on the Ukraine.6 As to domestic courts, Canadian case law is highlighted,7 as well as the role of domestic courts in urgent cases involving interaction with the CJEU.8 Next to variety in the systems drawn upon, the authors also refer to a variety of human rights situations, from halting refoulement and executions,9 to providing detainees with access to health care and to lawyers,10 to protecting indigenous peoples’ rights to land,11 to access to information or basic facilities.12 Some chapters 2 For

a discussion, see Pillay, Chap. 4 (discussing Human Rights Committee, Committee against Torture, Committee on the Rights of the Child (CRC-Committee) and Committee on Economic, Social and Cultural Rights (ESC-Committee)) and Harrington, Chap. 6 (discussing Human Rights Committee and Committee against Torture) and Zwaan, Chap. 7 (discussing Human Rights Committee, Committee on the Elimination of Discrimination against Women (CEDAW), the Committee against Torture (CAT) and the Committee on the Rights of the Child (CRC-Committee). For some other references see Ebobrah, Chap. 5; Griffey, Chap. 8. This chapter also refers to the ESC-Committee and the Committee on Enforced Disappearances. Obviously, various authors refer to ICJ case law as well, see Rieter, Chap. 1; Shelton, Chap. 2; Ebobrah, Chap. 5; Griffey, Chap. 8; and, in passing, Griffey also refers to the Law of the Sea Tribunal. 3 For the African Commission and Court on Human and Peoples’ Rights, see Ebobrah, Chap. 5. See also Shelton, Chap. 2. For the Inter-American Commission on Human Rights, see Shelton, Chap. 2. See also Harrington, Chap. 6. Burbano Herrera and Haeck, Chap. 10 focus on the Inter-American Court’s practice in the context of detention. Shelton, Chap. 2; and Pillay, Chap. 4 also refer to this Court’s interim measures. Practices developed by the European Court of Human Rights (ECtHR) are discussed by Pillay, Chap. 4; Zwaan, Chap. 7; Leach, Chap. 9; Griffey, Chap. 8; and Shelton, Chap. 2. The European Committee of Social Rights is referenced by Pillay, Chap. 4. 4 Prechal and Pahladsingh, Chap. 3. 5 Burbano Herrera and Haeck, Chap. 10; Ebobrah, Chap. 5; Zwaan, Chap. 7; Leach, Chap. 9; Pillay, Chap. 4. 6 Griffey, Chap. 8. 7 Harrington, Chap. 6. 8 Prechal and Pahladsingh, Chap. 3. 9 On non-refoulement see Zwaan, Chap. 7; see also, e.g., Prechal and Pahladsingh (Chap. 3); Pillay (Chap. 4); Harrington (Chap. 6); and Shelton (Chap. 2); on halting execution of death sentences see Shelton (Chap. 2); and Ebobrah (Chap. 5). 10 Burbano Herrera and Haeck, Chap. 10; and Leach, Chap. 9. 11 Shelton, Chap. 2; and Ebobrah, Chap. 5. 12 See Leach, Chap. 9; and Pillay, Chap. 4, respectively. See also Sects. 11.4.2 and 11.5.5.

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deal with systemic human rights violations, even in contexts of armed conflict.13 Urgent rule of law claims, such as to ensure independence of the judiciary, are also mentioned.14 In litigation involving pressing situations, people expect international adjudicators to take urgent action. Yet what are pressing situations, what urgent actions can these adjudicators take and how can their protective potential be increased? Individual victims, NGOs, addressee states and third states often have different expectations. Differences in expectation, and in gains in the short run, also explain differences in approaches to the legitimacy and protective potential of the urgent decisions by the adjudicators. This applies both to the decision-making process and to the decisions themselves. The capacity to protect against harm decreases when the (perceived) legitimacy of interim measures decreases. The contributions in this book show awareness of the importance of normative legitimacy for social or external legitimacy. Unhappy states have ignored interim measures and sometimes protested against them as an infringement on their sovereignty and interference with the domestic justice system. In this context, the question is what international adjudicators can do to enhance the protective potential of their urgency measures. While often the criticisms expressed by states may in fact serve as excuses, rather than constitute real concerns, it is nonetheless important to discuss how adjudicators can enhance the normative legitimacy of their interim measures decisions. This chapter explores the various mechanisms and normative legitimacy aspects highlighted throughout the book. First, it reviews the range of urgency mechanisms used by regional and international (quasi-)judicial bodies (Sect. 11.2). Then it refers to mechanisms obstructing the protective potential, discussing situations of noncompliance and state pressure to control the practices developed by different adjudicators (see Sect. 11.3) as well as measures enhancing the protective value (see Sect. 11.4). Particular attention is paid to several criteria for normative legitimacy: the purpose and legal authority of interim measures, fairness of the procedure and avoiding prejudgment, motivation of interim measures decisions, sufficiency of the evidence and staying within the scope (see Sect. 11.5).

11.2 Urgency Mechanisms Used by Regional and International (Quasi-)judicial Bodies Various urgency mechanisms have been developed to respond to the demands of the system in question. The function of such mechanisms can be to prevent irreparable harm to persons or to maintain the integrity of the proceedings and ensure a meaningful outcome of the case. Often, they call on the state to act or refrain from acting 13 For

a systemic detention situation, see Burbano Herrera and Haeck, Chap. 10, For urgent human rights situations in the context of armed conflict, see Griffey, Chap. 8; and Leach, Chap. 9. 14 See Prechal and Pahladsingh, Chap. 3; Pillay, Chap. 4; Leach, Chap. 9; and Sects. 11.5.2 and 11.5.5 of this chapter.

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pending the proceedings, as is traditionally the case with interim measures. They can also concern a decision to speed up proceedings. Moreover, next to interim measures to ensure the integrity of the proceedings, there are also other interventions by (quasi)judicial bodies to protect against reprisals for participating in the proceedings. These issues are discussed in this section. The Court of Justice of the European Union (CJEU) makes use of the tool of interim measures. Moreover, as part of its role vis-à-vis domestic courts through the preliminary ruling (or preliminary reference) procedure, it can also make use of the urgent or accelerated preliminary ruling procedure.15 In the preliminary ruling procedure, domestic courts address questions to the CJEU on a case pending before them. Because of the urgency of the situation they may request the fast track procedure. This is a unique procedure in international law. While the CJEU is rather different from the other adjudicators, and while it is clear it is not a human rights court, it most certainly has dealt with urgent human rights issues. Its experience sheds more light on the various manners in which judicial bodies can deal with urgent situations. These manners can be explained, among others, by the role of the adjudicator in question, in the context of the applicable procedure, with the specific interplay between an international and a domestic court.16 The legitimacy discussion on interim measures decisions relates to the legitimacy of the urgency decisions themselves,17 while the legitimacy concerns with regard to the use of the urgent or accelerated preliminary ruling procedure are concerns of the CJEU itself about maintaining the legitimacy of the preliminary ruling procedure as such.18 Thus, in this different setting, ensuring the legitimacy and overall workings of the proceedings before the adjudicator may also be a reason for limiting the use of urgent action mechanisms. This is shown in the discussion by Prechal and Pahladsingh, stressing the need to maintain legitimacy of the normal preliminary ruling procedure. Next to the interplay between domestic and international courts,19 there is another type of interplay between adjudicators, e.g. in the context of the law of the sea, where, in specific situations, it is possible for states to call upon the International Tribunal on the Law of the Sea (ITLOS) to order provisional measures in cases that will subsequently be dealt with by an arbitral tribunal. Here it is the state that calls upon ITLOS for urgent action and the action is in the form of interim measures, decided within a short time span. There is also interaction between adjudicators in the regional human rights systems. The Inter-American Commission on Human Rights (IACHR) and the InterAmerican Court of Human Rights (IACtHR) interact on the basis of the authority of the Court to also order provisional measures in matters that are not yet pending before the Court, if the Commission formally requests this (see Article 63 ACHR). A 15 Prechal

and Pahladsingh, Chap. 3. e.g. Sinaniotis 2006; and Apter 2003. 17 See Sect. 11.5 on legitimacy. 18 See Prechal and Pahladsingh, Chap. 3. 19 See e.g. Prechal and Pahladsingh, Chap. 3; and Burbano and Haeck Chap. 10. 16 See

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similarity with the CJEU is that the one tribunal calls upon the other for urgent action, but the differences are more numerous. Moreover, the Inter-American Court decides much more quickly. The African Court on Human and Peoples’ Rights (ACtHPR) is the most recent regional human rights adjudicator. It interacts with the pre-existing African Commission on Human and Peoples’ Rights (AComHPR). Thus far, most of its provisional measures were ordered against states that had, at the time, recognised direct recourse to the Court.20 Yet most states parties to the Protocol introducing this Court have not recognised direct recourse, meaning that petitioners depend on the African Commission to transfer a case to the Court. The AComHPR has rarely requested the Court to order provisional measures so far.21 Given the increasingly limited number of states that have recognised the possibility of direct access to the ACtHPR, the Commission may have to step up its own engagement with the Court.22 Apart from noting the interplay between courts, and the EU’s exceptional urgent or accelerated preliminary ruling procedure, it is important to distinguish some other urgency procedures as well: those responding to death threats and reprisals. From its early beginnings, the Inter-American Court has been faced with threats, and even killings in the context of cases pending before it. In the exercise of its judicial function it already had to order provisional measures in 1988, in Velásquez Rodríguez.23 Currently, in the Inter-American system all situations involving death threats and harassment may be covered by the Court’s provisional measures or the Commission’s precautionary measures. UN treaty bodies have also used interim measures in this context.24 In Alzery the HRCtee did not have a chance to use them to postpone an expulsion pending the case, because the state had misrepresented the situation and expelled Alzery to Egypt before counsel had a chance to ask the Committee for interim measures.25 Later, after refoulement had already occurred (following which ill treatment and torture was alleged), the Committee did use interim measures of a different nature. They were in response to a situation that occurred after Alzery’s release from detention, when Swedish authorities had been contacting him about the Committee case. They had contacted him to make an argument against admissibility of the case (with regard to, e.g., counsel’s authorization and the delay in the submission before the Committee). Counsel had noted the risks Alzery was facing because he was contacted. In response, the HRCtee used interim measures to the effect that the state ‘take necessary measures to ensure that he was not exposed to a foreseeable risk of substantial personal harm

20 See

Sect. 11.3. Ebobrah, Chap. 5 discussing the interim measures by both the Commission and the Court. 22 See Ebobrah, Chap. 5 and Sect. 11.3.3 of this chapter, referring to withdrawals. 23 IACtHR, Velásquez Rodríguez v. Honduras, Order of 15 January 1988 and earlier letters on behalf of witnesses in this and the other ‘Honduran cases’, see Rieter 2010, p. 407. Generally, for the practice by the Inter-American Court, European Court, African Commission and UN committees until 2008, in dealing with death threats and harassment, see references in Rieter 2010, pp. 405–449. 24 See Rieter 2010, pp. 411–415 and 431–444. 25 HRCtee, Alzery v Sweden, 10 November 2006, CCPR/C/88/D/1416/2005, para 11.11. 21 See

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as a result of any act of the State party in respect of the author’.26 This could be seen as an interim measure to protect against death threats and harassment. Here the state party must abstain from action in respect of the petition so that the petitioners would not be exposed to a risk of ‘substantial personal harm’ by agents of the state to which he had already been returned. Sometimes treaty supervisory bodies also use other urgency mechanisms, when exercising a supervisory but not a (quasi-)judicial function.27 Ebobrah notes that in its ‘distinct use of urgent appeals and provisional measures within and outside the context of (quasi-)judicial litigation, the African Commission mirrors the practice of other bodies’, such as the UN HRCtee.28 Indeed, UN Committees have now developed separate urgency mechanisms to respond to situations where persons might suffer intimidation or reprisals for their cooperation with a Committee. There exists such a mechanism in the context of the reporting procedure and another on behalf of petitioners, or of others involved, who might suffer intimidation or reprisals in relation to their involvement in the individual complaint procedure. Previously, the latter urgent interventions were based on the procedural rule laying down the interim measures practice of the relevant Committee, but since the special attention at UN level for reprisals for cooperation with the UN,29 a separate rule of procedure was established. Thus, in addition to their rule on interim measures, often used to halt refoulement pending a case,30 UN Committees have developed various urgency mechanisms to respond to the aforementioned context. For instance, the Committee against Torture has introduced a rapporteur to follow-up on allegations of reprisals against persons who cooperate with the Committee.31 The specific modus of this urgency mechanism is ‘Reprisal Letters’ issued by the rapporteur.32 Before the introduction of this 26 Id.,

para 2.3. Ebobrah, Chap. 5, referring to the African Commission’s urgent (letters of) appeal, under Rules 79-80 of the Commission’s Rules of Procedure 2010 and based on Article 58(3) ACHPR. As he points out, for situations brought to the notice of the Commission within the context of the communications procedure, Rule 98 of the its Rules applies and the Commission then ought to formally indicate provisional measures. 28 Ebobrah, Chap. 5. 29 See Chairs human rights treaty bodies, Guidelines against Intimidation or Reprisals (“San José Guidelines”), June 2015, HRI/MC/2015/6. 30 See Zwaan, Chap. 7. 31 This cooperation can be in the context of state reports and shadow reports (Article 19 ICAT), in the context of the inquiry procedure (Article 20) and in the context of individual complaint (Article 22). Through this introduction of follow-up on reprisals, the Committee is specifically monitoring compliance with Article 13 Convention against Torture: “States parties shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.” 32 See CAT statement on reprisals, 51st session, October-November 2013, CAT/C/51/3 and CAT guidelines on the receipt and handling of allegations of reprisals against individuals and organizations cooperating with the Committee under Articles 13, 19, 20 and 22 of the Convention, 55th 27 See

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urgency mechanism, the Committee had used its interim measures in the context of the individual complaint mechanism (Article 22) ‘to ensure that no harm is done to the author’s family, the alleged victim’s family or the witnesses and their families’.33 Similarly, next to its rule on interim measures (current Rule 94), the HRCtee has now created a separate Rule for approaching the state for urgent protection in situations where authors of communications, or others involved, might suffer intimidation or reprisals (current Rule 95).34 This is referred to as ‘protection measures’. Before it formalised this in its Rules of Procedure of 2019, the Committee already indicated that it had ‘developed the practice of requesting States parties to adopt measures of protection vis-à-vis the author(s) of a communication or close family members, when there are well-founded indications that the submission of the communication to the Committee has resulted or will result in acts of intimidation against these persons’.35 It explained that ‘[p]rotection measures are to be distinguished from interim measures in that their purpose is not to prevent irreparable damage affecting the object of the communication itself, but simply to protect those who might suffer adverse consequences for having submitted the communication, or to call the State party’s attention to their aggravating situation linked to the alleged violations of their rights’.36 An intervention by a treaty body in its function as a (quasi-)judicial body aims to protect the person in question, but also the integrity of the complaint procedure itself. If used in the context of the complaint proceedings, interim measures, protection measures, urgent actions or so-called ‘Letters of Reprisal’ could be referred to as (quasi-)judicial urgency measures. Still, a rule on ‘protection measures’ could also be invoked upon conclusion of a case, while at that stage invoking a rule on interim measures appears somewhat contradictory given the expectation of temporariness flowing from the words ‘interim’ or ‘provisional’.37 In that light, one could see session, July-August 2015, CAT/C/55/2. For the general information page see https://www.ohchr. org/EN/HRBodies/CAT/Pages/ReprisalLetters.aspx (accessed 1 May 2020). 33 In April 1994, in CAT B.M’B v Tunisia, 5 May 1994 (inadm.), CAT/C/14/D/14/1994, para 2.4. See Rieter 2010, pp. 411, 443 and 754–758 on maintaining interim measures beyond a declaration of inadmissibility and beyond a judgment on the merits and reparation. The problematic aspect of this can be avoided with the use of Letters of Allegation or other urgent mechanisms instead of interim measures proper. See also Sect. 11.5 on legitimacy. 34 Rule 95 (Protection measures), HRCtee Rules of Procedure CCPR/C/3/Rev.11, January 2019: Upon receiving information from the author of the communication, the Committee may also request the State party to take protection measures in favour of individuals, including the author(s), his/her counsel and family members, who might suffer acts of intimidation or reprisals as a result of the submission of the communication or cooperation with the Committee. The Committee may seek from the State party written explanations or statements clarifying the matter and describing any action taken in that regard.” 35 HRCtee, report by the Special Rapporteur, CCPR/C/110/3, 6 May 2014, para 11. 36 Ibid, para 12. See also para 4 expressing concern about intimidation and reprisals in general (e.g. also in the context of involvement in the public hearings discussing state reports, or with the submission of shadow reports). 37 The Inter-American Court does order provisional measures even if a case is not pending before it, but it has a special authority to do so because under Article 63(2) the Commission can bring any

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protection measures as a sui generis tool for human rights treaty bodies, to use in the context of adjudication, in order to ensure the functioning of the individual complaint mechanism, additional to the traditional tool of interim measures. The Convention against Enforced Disappearances (CED) introduces a new urgency procedure in Article 30. Its supervisory committee may apply this procedure vis-à-vis all states parties, also if they have not recognized the right of individual petition. By contrast, interim measures under Article 31(4) CED are only granted visà-vis states that have recognised the right of individual petition.38 As the Committee explains, ‘(a)n Urgent Action is a request from the Committee to the State party to immediately take all necessary measures to search and locate a disappeared person and investigate his or her disappearance’.39 Since 2012, the Committee has received a great number of urgent action requests, especially originating from Mexico and Iraq. It might well be that family members of disappeared persons prefer this innovative direct urgent action procedure over initiating an individual petition and requesting interim measures, but Iraq and Mexico have not recognised the right of individual petition and therefore the great number of urgent action requests from those states cannot serve as an indication of preference for this tool over the more adjudicatory route.40 urgent matter before the Court that could eventually be litigated before it. The question is, however, what is its authority when the Commission does not. See also Sect. 11.5.2. 38 The earlier Inter-American Convention on the Forced disappearance of Persons, adopted in 1994 should be noted, which codifies the role of the Inter-American Commission in using precautionary measures: Article XIII “For the purposes of this Convention, the processing of petitions or communications presented to the Inter-American Commission on Human Rights alleging the forced disappearance of persons shall be subject to the procedures established in the American Convention on Human Rights and to the Statute and Regulations of the Inter-American Commission on Human Rights and to the Statute and Rules of Procedure of the Inter-American Court of Human Rights, including the provisions on precautionary measures.” See also Article XIV. 39 According to the information brochure of the Committee on the OHCHR website (accessed 14 May 2020). In a separate information box in that same brochure, one can find a box on interim measures of protection: “In case of there being a risk of irreparable harm, the Committee can ask the State party to adopt interim measures of protection for: The complainants and witnesses to the disappearance; The families and relatives of the disappeared persons and their representatives or counsel; All person participating in the investigation; Any element or pieces of evidence that can help locate the disappeared person.” The brochure does not refer to the individual complaint procedure under Article 31 and the interim measures in Article 31(4). Most states have not yet made a declaration under Article 31. 40 Committee on Enforced Disappearances (CED), Annual Report to the General Assembly, November 2018–April 2019, A/74/56 informs that ‘From 2012 to 18 April 2019, the Committee had received 659 requests for urgent action’ para 33, and that most urgent actions related to events that occurred in Mexico and Iraq, para 35. The Committee refers to differences in the incidence and quality of responses and it derives certain trends from the information received, para 36. In the period covered by this report it received 85 requests for urgent action, under Article 30, but no individual complaints under the communications procedure of Article 31. Iraq and Mexico have not made the declaration under Article 31 (status of ratification and declarations on 15 May 2020). The Committee ‘reiterates that the number of registered urgent actions continues to rise. This situation requires an urgent increase in the number of staff dedicated to the treatment of urgent actions within the OHCHR secretariat’, para 54. The Committee also uses the urgent action procedure (Article 30)

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In addition to the various types of urgency mechanisms used by treaty supervisory bodies, there are also urgent appeals through which UN Special Rapporteurs and Working Groups aim to protect people. Based directly on the UN Charter and its general references to human rights, rather than specific human rights treaties, the Human Rights Council creates a mandate authorising a rapporteur to act vis-à-vis all states and not just those that have ratified human rights treaties.41 Urgent appeals are inherently more flexible, and often faster than the interim measures mechanism.42 Moreover, at least in one respect their protective potential is much wider, for they can also be used when the risk emanates from conduct of states that have not recognised relevant individual complaint mechanisms under human rights treaties.43

11.3 Mechanisms Obstructing the Protective Potential of Urgent Action Mechanisms by Adjudicators 11.3.1 Introduction Throughout this book, the authors distinguish several mechanisms that could obstruct the protective value of interim measures or other urgent action mechanisms by adjudicators. This section first discusses domestic sensitivities (Sect. 11.3.2) and then the strategies developed by states (Sect. 11.3.3). Equally, the lack of specificity and follow-up by the adjudicators may obstruct the protective potential. This is discussed in the section on enhancing the protective potential.44

in cases where the Inter-American Commission has been involved as well through the application of its precautionary measures tool, CED Annual Report, para 56. 41 For early writing on this, see e.g. Van Boven 1994, pp. 61–788; Rodley 2001, pp. 279–283; and van Boven 2004, pp. 1651–1666. 42 In general, more informal avenues for direct access to people in power, or to people with knowledge can be useful. 43 The Office of the High Commissioner on Human Rights offers a webpage linking to both treaty and Charter mechanisms specifically aimed at the protection of those who appear to be harassed in connection with their invocation of or cooperation with UN mechanisms. See https://www. ohchr.org/EN/Issues/Reprisals/Pages/Reporting.aspx (accessed 1 May 2020). On this website the recommendation is given, when contacting a treaty body or Special Mechanism, to always copy in a specific e-mail address that has been created. This will facilitate appropriate follow-up in all submissions related to reprisals and intimidation as a result of cooperation with the UN on human rights: https://www.ohchr.org/EN/Issues/Reprisals/Pages/HowToShareInformationAboutC ases.aspx. The UN Secretary-General also has a reporting mandate on intimidation and reprisals. 44 Sect. 11.4.2.

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11.3.2 Domestic Sensitivities and Other Obstacles The causes triggering urgent situations are often also the obstacles hindering proper respect for interim measures.45 Within communities and among states there is disagreement on how to deal with societal problems, including on the use of economic resources. States sometimes consider that adjudicators are ‘interfering with executive or administrative decisions, often allegedly at the expense of economic development or national security’.46 Fears and anger are sometimes organised towards specific target-groups.47 One reason why states may ignore interim measures, or even speak out against them publicly, may be that the persons on whose behalf they are ordered are unpopular and/or do not constitute an important segment of the population in terms of electorate. Asylum-seekers, for instance, are a vulnerable group without a constituency, often unpopular and portrayed negatively in domestic media.48 Another unpopular group are detainees, again a traditionally vulnerable group with little constituency.49 The context, such as publications by domestic media or impending elections, may also play a role in non-compliance with interim measures. Yet another, sometimes related, obstacle to the proper implementation of interim measures is that urgent applications by individual detainees often appear part of a pattern.50 Indeed, many urgent situations have a systemic nature, involving patterns of human rights violations, social and economic exclusion, discrimination and corruption. Addressing these is obviously complicated. The actors responsible for implementation may themselves be part of the problem, or have limited leverage or economic resources to implement specific measures and address the root causes by taking structural measures. Adjudicators also have to grapple with human rights complaints brought in a context of armed conflict. Whether these concern individual cases, larger groups, or even a case brought by one state against another, the setting is one of systemic human rights violations.51 Some states are facing internal developments making them more intransigent. They may be notorious non-compliers with international obligations, simply because they can (to a certain extent). Yet this does not diminish the use of tools such as interim measures in a great number of other cases involving other states. Moreover, in the

45 See

Chap. 1. Chap. 2, referring to the Belo Monte dam case. 47 Ibid. 48 See e.g. Zwaan, Chap. 7, discussing interim measures to halt refoulement. This is a traditional situation in which interim measures are used. 49 See Ebobrah (Chap. 5), Burbano Herrera and Haeck (Chap. 10) and see Leach (Chap. 9), drawing attention to access to counsel and access to health care, 50 See in particular the discussion of the approach by the Inter-American Court by Burbano Herrera and Haeck (Chap. 10). 51 See Griffey’s case study on the ECtHR and the Ukraine (Chap. 8). See also Leach’s observation about protection gaps in the context of armed conflict (Chap. 9). 46 Shelton,

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face of powerful intransigent states, other states continue to invoke international law and even resort to the ICJ.52 Overall, non-compliance by states can likely be explained by mechanisms within states, and this applies also to well-respected democratic states with a good reputation, as Harrington’s discussion of the attitude by Canada shows.53 Moreover, when states respond in words, they appear to draw inspiration from excuses and criticisms used by other states, sometimes in other regions.

11.3.3 Strategies of States in Response to Interim Measures In the UN, Inter-American and European human rights systems states generally comply with interim measures, although there are marked differences between states and between time-periods, with bursts of non-compliance. Moreover, when interim measures include protective measures so that the state must do something and put in resources, there is often partial or late compliance. If states do not comply they may try to find excuses, or to turn the tables with accusations about infringement on sovereignty. The contributions in this book do not measure compliance, but they do refer to official responses of states to explore the protective potential and legitimacy of various interim measures decisions and opportunities for adjudicators themselves for enhancing these. This is discussed in the next sections. However, these opportunities should not detract from the awareness that interim measures are likely to be inconvenient to states, even if they are exemplary both as to process and as to content. States may use certain arguments as a defence and, in a more offensive strategy, use domestic media. They may refer to similar responses by other states and cooperate in challenging the interim measures practice of an adjudicator at the intergovernmental level.54 Harrington’s discussion of the response by Canada is insightful. It demonstrates how a democratic state that generally shows its cooperative side, may question its longstanding acceptance of the Rules of Procedure by HRCtee and CAT, including the rule on interim measures, once they are applied also to that state.55 Sometimes this also gives rise to a campaign enlisting other states. Shelton gives the example of Brazil’s campaign (2011–2013) to restrict the Inter-American Commission’s power 52 See e.g. ICJ, Ukraine v Russian Federation, 19 April 2017, Order for provisional measures (under ICERD). Some of the situations referred to in this case were previously brought before the European Court of Human Rights in an inter-state case and in various individual cases. See the discussion by Griffey in Chap. 8 of this volume. See further, Rieter 2019, pp. 27–168. See also ICJ Jadhav case (India v. Pakistan), Order for provisional measures of 18 May 2017 (‘that Pakistan shall take all measures at its disposal to ensure that Mr. Jadhav is not executed pending the final decision in these proceedings’ involving the Vienna Convention on Consular Relations, para 58). 53 Harrington, Chap. 6. Her chapter also emphasises the importance of process and the opportunities for the human rights adjudicators to make improvements in this respect, see Sect. 11.5. 54 See Pillay, Chap. 4. 55 Harrington, Chap. 6.

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to issue precautionary measures, following the Belo Monte dispute, and considers that the reduction in the Commission’s favourable responses to requests for precautionary measures, especially between 2012 and 2014, may reflect the ‘chilling effect’ of that campaign.56 Pillay discusses the ambiguous attitude of states at UN level, when drafting new human right instruments. On the one hand, they show awareness of the importance of urgency options for treaty monitoring bodies and, on the other hand, they try to box them in through the phrasing of these options. Pillay also traces the discussions at the European level, where certain states tried to put a curb on the interim measures practice of the European Court of Human Rights (ECtHR). In addition, she gives some background regarding the reform process of the Inter-American Commission, which includes undermining statements by officials of the Organisation of American States (OAS).57 She observes that some recommendations in a report approved by the OAS Permanent Council in 2012 appeared to be ‘more designed to serve the needs of states than the functionality and effectiveness of precautionary measures, such as the recommendation to introduce a qualified majority’ to approve a precautionary measure, or the recommendation to grant ‘a reasonable amount of time for states to implement precautionary measures, taking into consideration not only the seriousness and urgency, but also the nature and scope of the measures, the number of beneficiaries, and the overall circumstances of the case’.58 The African Commission and Court on Human and Peoples’ Rights are the most recent regional bodies adjudicating cases and, in the process, facing urgent situations. Currently, they have built and upheld an interesting practice. Yet at present, the protective potential of their interim measures is limited, as Ebobrah discusses, while applicants are indeed in urgent need of protection. States, he observes, did not necessarily challenge the authority of the African Commission ‘to indicate provisional measures even though that authority is self-conferred’.59 They ‘generally ignored’ the requests, but made an effort to participate in subsequent proceedings, often to ‘justify their actions or deny that they had violated any obligations’. Sometimes they claimed ‘that the prescribed action was either not necessary in the first place or had already been taken without any indication whether this was merely coincidental or was in compliance with the Commission’s request’. Therefore, he points out, ‘the Commission was disobeyed by State Parties without having been undermined or delegitimised in a destructive manner’. He does single out one strategy to justify

56 See

Shelton, Chap. 2. Chap. 4. Shelton (Chap. 2) and Harrington (Chap. 6) focus on the improvements made by the Inter-American Commission, see Sect. 11.5 of this chapter. 58 Pillay, Chap. 4, referring to Report of the Special Working Group to Reflect on the Workings of the Inter-American Commission on Human Rights with a view to Strengthening the InterAmerican Human Rights System for Consideration by the Permanent Council, OAS Doc, OEA/Ser G GT/SIDH-13/11 rev. 2, 13 December 2011, Original in Spanish, OAS translation, para VIII (ii)(2)(A)(j), p. 11. 59 Ebobrah, Chap. 5. For a discussion on authority and legal consequences, see Sect. 11.5.2. 57 Pillay,

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non-compliance, which is also used by states in other regions: framing the adjudicator’s use of these measures as an attack on the domestic system.60 As to the Court, Ebobrah notes that more than 90 percent of its interim measures orders have remained unimplemented and that the protective value of its measures is ‘almost non-existent’. He considers that this can arguably ‘partly be linked to a set of legitimacy challenges that need to be addressed urgently’.61 Among others, he refers to a response by Tanzania in 2017 that it was unable to respect the Court’s Order to postpone the execution of a death sentence because ‘the African Court […] is not mandated to quash the decision’ of its highest court.62 In addition, he notes, Tanzania informed the Court that it ‘was deprived of the right to be heard when the Court delivered the Order for Provisional Measures suo motu’ and that ‘insufficient reasons of extreme gravity’ were adduced.63 Thus, he concludes that Tanzania challenged ‘both an adversarial imbalance and the lack of clarity in the definition of the criteria for the grant of provisional measures’.64 Explicit strategies of states unhappy with the Court’s decisions are often general and not specifically in response to the Court’s interim measures. They include Rwanda’s 2016 withdrawal of its recognition of the right of individuals and NGOs to submit cases directly to the African Court, under Article 34(6) Protocol. Rwanda also announced that it would no longer take part in the proceedings before the Court and that it no longer considered itself bound by the Court’s decisions.65 This is a clear strategy used previously by states in the UN and Inter-American systems, which eventually seemingly resulted in copycat behaviour, or concerted strategy.66 Benin’s withdrawal of its recognition of the right of direct complaint to the Court does seem to be linked to unhappiness with provisional measures orders by the Court and the same applies to that of Côte d’Ivoire. In any case, they invoke arguments

60 Ebobrah,

Chap. 5, He notes that Egypt responded uniformly to all matters involving it by stating that ‘the Egyptian judiciary is based on fundamental principles and safeguards for fair trials and for the imposition of the death penalty’ so that ‘there is no need for the urgent preventive measures required by the Commission in the communications’, referring to AComHPR, 40th Activity Report, December 2015 to April 2016, paras 18–19. 61 On the legitimacy of interim measures, see Sect. 11.5. 62 Response to Order in Guéhi case, ACtHPR Activity Report 2017, EX.CL/1057(XXXII), 22–26 January 2018, pp. 12–13. 63 Ibid. The Court did respond: “On 3 April 2017, the Registry forwarded to the Respondent the correspondence sent to the Attorney General of Tanzania on 18 November 2016 to clarify the nature and purpose of the orders; that the effect of the orders is not to overturn the decision of the Court of Appeal, rather to ensure that the Applicant’s rights are not jeopardized pending the determination of the Application”, p. 14. For other examples, see pp. 14–33. 64 Ebobrah, Chap. 5. 65 See Ebobrah Chap. (5). 66 Rwanda’s 2016 move was followed by Tanzania in 2019 and Cote d’Ivoire and Benin in 2020. This ‘can also be situated within African states’ broader practices of resistance to supranational adjudication, particularly when African regional courts uphold human rights, democracy, and the rule of law’, Ebobrah, Chap. 5.

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about incompetence, lack of authority and infringement of their sovereignty.67 Benin also refers to the earlier withdrawals by other AU states and ominously threatens to revive the plans for an African Court of Justice and Human Rights to replace the current Court.68 Earlier, in the UN and Inter-American systems, the withdrawals by Trinidad and Tobago and by Jamaica were indeed specifically in response to interim measures practices ordering a suspension of executions pending the case.69

11.4 Measures Enhancing the Protective Potential of (Quasi-)judicial Urgent Action Mechanisms 11.4.1 Introduction Timeliness is crucial for protective potential. In case of disappearances, for instance, the first days without access to court and counsel are vital in terms of risk of illtreatment and extrajudicial execution.70 How swiftly the adjudicator takes action can be seen as indicative of how seriously it takes the situation.71 The strength of wording also indicates this.72 Protective potential may lie partly in the symbolic validation resulting from the ritual of calling for and ordering interim measures.73

67 See

De Silva and Plagis 2020. See also Koagne Zouapet 2020, arguing both that this is state strategy and that the Court could work on enhancing the legitimacy of its interim measures. 68 De Silva and Plagis 2020, above n 67. 69 In relation to case law by another judicial body introducing a cut-off date beyond which the forbidden death row phenomenon would start, see Rieter 2010, pp. 738–746. 70 This means that once it becomes clear that a disappearance is recent, urgent action should be immediate. See e.g. Rieter 2010, pp. 309–328 (on locating and protecting disappeared persons). Ebobrah refers to AComHPR, Zegveld and Ephrem v Eritrea, November 2003, Communication 250/02, 17th Annual Activity Report, where the request by the complainants was received on 9 April 2002 and the provisional measures were communicated on 3 May 2002, see Ebobrah (Chap. 5). This appears rather tardy. See also Sect. 11.2 on the UN Committee against Disappearances for an additional urgency mechanism. Drawing from a description by Ebobrah (Chap. 5), of the sequence of events, in particular in AComHPR, Amnesty International v Zambia, 5 May 1999, Communication 212/98, ACHPR 1, one might conclude that delay can also be due to tardiness on the part of the secretariat, rather than on the part of the adjudicator. 71 See e.g. Ebobrah, Chap. 5. See also Sect. 11.4 on the potential conflict with maintaining the adversarial nature of the proceedings. Of course tardiness could for a great part also be explained by limited resources. 72 See e.g. ECtHR Nizomkhon Dzhurayev v Russia, Judgment, 3 October 2013, Application no. 31890/11, paras 155–156 and in general the discussion by Pillay, Chap. 4. 73 A consolidated ritual may help to increase the importance of the international avenue used. Using a ritual is more likely to work when this indeed has a certain authority and is formalized. What is needed is international statements of principle involving the law. These statements of principle should be aimed at immediately preventing irreparable harm, but even if the measures required for this are not implemented by the state, these statements, if sufficiently precise and explained, still

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There seem to be protection gaps, especially in the context of more systemic human rights situations. To enhance the protective potential of their urgency mechanisms, international adjudicators need to closely adapt them to fit the situation of the alleged victims. Furthermore, decisions should be sufficiently specific so that the state knows what is expected of it to address the urgent situation (Sect. 11.4.2). Perceived legitimacy is very important.74 While specificity may enable state compliance, legitimacy may trigger it. Both specificity and legitimacy allow for better monitoring and concrete follow-up. Additional validation and support for compliance can be found in follow-up activities by third parties, NGOs, international authorities such as UN Rapporteurs, as well as by third states (Sect. 11.4.3).

11.4.2 Responsiveness to Urgent Situations: Filling Gaps and Increasing Specificity The protective potential of urgent interventions by international adjudicators is likely to increase if these adjudicators are accurately informed about the actual situation on the ground and are responsive to that information. Since the first use of interim measures by international human rights bodies, more situations have come to be considered urgent, resulting in irreparable harm. Awareness of urgent situations has increased and protection gaps are noticed. The adjudicators themselves have expanded their use of interim measures. First they were mainly used in death penalty and non-refoulement cases,75 then in related matters involving risks to life and personal integrity, as well as the integrity of the complaint system. This includes protection of petitioners against death threats,76 access to court and counsel,77 and to medical care for detainees,78 locating recently disappeared have a wider resonance and may have a longer-term impact as compared to the absence of such statements, an absence based on a sense of defeat and futility. 74 See Sect. 11.5. 75 For references to death penalty cases see Shelton, Chap. 2 and Ebobrah, Chap. 5. See further Rieter 2010, pp. 213–256. For references to non-refoulement see Zwaan, Chap. 7. See also, e.g., Prechal and Pahladsingh (Chap. 3), Pillay (Chap. 4), Harrington (Chap. 6) and Shelton (Chap. 2). 76 On protecting against death threats and harassment, see Rieter 2010, pp. 405–449. 77 As procedural rights to protect the right to life and personal integrity (habeas corpus), e.g. in the context of Guantanamo. See Leach, Chap. 9. See also Rieter 2010, pp. 385–403. 78 For detention conditions, see Burbano Herrera and Haeck, Chap. 10 by reference to the InterAmerican Court, Ebobrah, Chap. 5 discussing the African system and Leach, Chap. 9 discussing the European human rights system. See further, e.g., Burbano Herrera and Viljoen 2016 on the Inter-American Commission’s precautionary measures; on various (quasi)-judicial bodies and their interim measures in the context of detention, see Rieter 2010, pp. 329–383. For the specific context of minors in immigration detention, see e.g. ECtHR, Interim measures decision of 10 October 2019 ‘to transfer the unaccompanied minors who applied to the Court and are detained at police stations, to suitable accommodation centres for unaccompanied minors’ and ‘to ensure that their reception conditions are compatible with Article 3 of the Convention and the children’s particular status’, reported by ARSIS—Association for the Social Support of Youth, Press Release: ‘The

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persons,79 and protection against infringements of the land rights of indigenous peoples.80 In addition, adjudicators have now used interim measures, or similar urgent decisions, to protect against forced displacement, halting evictions and ensuring

ECHR grants interim measures putting an end to the detention of unaccompanied minors in police stations’, 10 October 2019, http://www.arsis.gr/wp-content/uploads/PR-ARSIS-Interim-Mea sures_EN.pdf, accessed 1 March 2020. See also ECtHR, interim measures of 4 November 2019, reported in press release by Refugee Support Aegean (RSA), ‘European Court of Human Rights asks Greece to transfer two unaccompanied boys detained in police station to suitable shelter’, 6 November 2019, https://rsaegean.org/en/european-court-of-human-rights-asks-greece-to-tra nsfer-two-unaccompanied-boys-detained-in-police-station-to-suitable-shelter/, accessed 1 March 2020; ECtHR, interim measures of 21 March 2019 ordering the transfer of two minor girls to a shelter for unaccompanied minors in conditions compatible with art. 3. They were transferred on 23 March 2019. Reported by the Greek Council for Refugees, ‘The European Court of Human Rights grants interim measures in favour of two detained unaccompanied girls’, 28 March 2019, https:// www.gcr.gr/en/news/press-releases-announcements/item/1069-the-european-court-of-human-rig hts-grants-interim-measures-in-favour-of-two-detained-unaccompanied-girls, accessed 1 March 2020. The Court has also used Rule 39 to transfer an older person in immigration detention, ‘or at least to guarantee for the applicant an accommodation with reception conditions that are compatible with Article 3’. This also meant that the state should take all necessary measures to attempt to protect the applicant from the COVID-19 risk. For the applicant this included access to medical care and the ability to comply with basic hygiene requirements. ECtHR M.A. v Greece, Rule 39 decision of 7 April 2020, appl. no. 15782/20. 79 For early practice by adjudicators, until 2009, see Rieter 2010, pp. 309–328. See also the Urgent Action procedure by the UN Committee on Enforced Disappearances, Sect. 11.2. 80 See Shelton, Chap. 2, discussing relevant precautionary measures by the Inter-American Commission. See also Pillay, Chap. 4, referring to the Inter-American Commission’s precautionary measures in IACHR, Teribe and Bribri of Salitre Indigenous People, Costa Rica, Resolution on Precautionary Measures, 30 April 2015, 16/15 and, like Shelton, to the response by Brazil to the precautionary measures in the Belo Monte dam case. The Inter-American Court has also ordered a provisional measure on behalf of indigenous peoples that not only takes into account the right to life and personal integrity, but also access to natural resources and freedom of movement, as on the River Borbonanza in Pueblo Indigena de Sarayaku (Ecuador), Orders of 6 July 2004 and 17 June 2005, see Rieter 2010, pp. 461–463. For a discussion of the provisional measures by the African Commission and Court on Human and Peoples’ Rights in Ogiek, see Ebobrah, Chap. 5. For a discussion of an earlier provisional measure by the African Commission (in fact referred to by the Commission’s merits decision as an Urgent Appeal of 9 August 2004), in Endorois v Kenya, see Rieter 2010, pp. 463–465,

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access to basic facilities, all while a case is pending before them.81 Since the entry into force of the Optional Protocol on individual complaints to the International Covenant on Economic, Social and Cultural Rights (ICESCR), its supervisory Committee (ESC-Committee) has developed a practice of asking the state party for a suspension of evictions in certain housing rights claims.82 In light of different developmental stages and greater vulnerability, certain conduct could have irreparable consequences for children much sooner than for adults. This

and see 451–457 for pre-2010 use of interim measures by the UN Human Rights Committee in the context of cultural survival, in cases against Canada and Finland. From its merits decision in AComHPR, Endorois v Kenya, merits decision, 4 February 2010, it appears that the AComHPR sent an additional interim measures (referred to as ‘urgent appeal’) on 21 May 2005 and this time in the context of threats, see para 43: “the Chairperson of the African Commission addressed an urgent appeal to the President of the Republic of Kenya on reports received alleging the harassment of the Chairperson of the Endorois Assistance Council who is involved in this Communication”. AComHPR, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya, merits decision of 4 February 2010, appl. No. 276/2003. 81 See Leach, Chap. 9 on the ECtHR and Pillay, Chap. 4 referring to European Committee of Social Rights, International Commission of Jurists (ICJ) and European Council for Refugees and Exiles (ECRE) v. Greece, Decision on Admissibility and on Immediate Measures, 23 May 2019, Complaint No. 173/2018. See further Pillay 2019. For this Committee’s first immediate measures decisions see Conference of European Churches (CEC) v. the Netherlands, Complaint No. 90/2013, Decision on Immediate Measures of 25 October 2013 and European Federation of National Organisations working with the Homeless (FEANTSA) v. the Netherlands, Complaint No. 86/2012, Decision on Immediate Measures of 25 October 2013. On earlier cases of forced displacement and evictions, see Rieter 2010, 501–521 and 525–531 on access to water, medication, sanitary facilities, humanitarian support. On forced eviction in the context of pervasive discrimination, see Rieter 2010, 501–521. Pillay, Chap. 4 and Leach, Chap. 9 refer to more recent cases involving eviction of members of a Roma community. 82 See ESC-Committee, López Albán et al v Spain, View of 11 October 2019, E/C.12/66/ D/37/2018, para 2.1 (interim measures decision of 22 June 2018 to ask the state to suspend the eviction of the author and her children while the communication was being considered or, alternatively, to provide them with adequate housing in genuine consultation with the author, in order to avoid causing them irreparable damage); ESC-Committee SSR v Spain, Decision, 11 October 2019, E/C.12/66/D/51/2018 (interim measures of 5 September 2018 to suspend eviction; subsequently declaring complaint inadmissible but with an elaborate discussion of its interim measure, paras 7.1– 7.9 and, in para 10, “a general recommendation to the State party in a bid to prevent future violations of article 5 of the Optional Protocol. The Committee recommends that, to ensure the integrity of the procedure, the State party develop a protocol for honouring the Committee’s requests for interim

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has triggered the use of interim measures and other urgent decisions as well.83 In April 2014 the Optional Protocol to the Convention on the Rights of the Child (OPIC) entered into force, opening up an individual complaint mechanism. The rule on interim measures is laid down in Article 6 OPIC. In its Guidelines on Interim Measures, the Committee on the Rights of the Child (CRC) refers to the ‘special status’ of children. Violations of children’s rights often have severe and long-lasting effects on their development. The Committee considers that ‘violations that have a grave impact on children’s rights in the sense of article 6 of the OPIC are not limited to violations to the right to life or integrity but may extend to all rights enshrined in the Convention and its two substantive Optional Protocols’.84 The CRC considers that children are evolving subjects. Certain violations of their rights during that evolution may be impossible to restore, and no adequate reparation exists. The assessment of the existence of irreparable damage will be done on a case-by-case basis, taking into account the age of the affected children, among other circumstances. 85 Some interim measures are particularly controversial domestically and likely to be met with resistance, e.g. because they implicate investment/development projects.86 Here the awareness of protection gaps meets with the fear for, or the actual repercussions of, negative government response, as discussed in Sect. 11.3. At the same time, at UN level, states have decided to expand the right of individual petition with new Optional Protocols, including provisions on interim measures. This indicates awareness of states, that during proceedings on, for instance, economic, social and cultural rights, urgent situations may arise as well. Addressing these may require considerable financial resources. Of course, some states may have anticipated that once a monitoring body would be assigned a (quasi-)judicial function, that body would also have the authority to use interim measures. Therefore, these states may have wished to curb that authority by explicitly including it in the text of the Protocol, but at the same time inserting weakening language. While this may be the case, the inclusion still shows an awareness of the need to fill urgent protection gaps.87 measures and that it inform all relevant authorities of the need to honour such requests.”); ESCCommittee, Gómez-Limón Pardo v Spain, View, 5 March 2020, E/C.12/67/D/52/2018 (interim measures of 10 September 2018 to suspend eviction, para 10.1). 83 See Prechal and Pahladsingh, Chap. 3, Pillay, Chap. 4 and Leach, Chap. 9. See also Rieter 2010, 531–535 and 708-9 on different developmental stages and greater vulnerability. For case law by the CRC under the Optional Protocol to the Children’s Rights Convention see Zwaan, Chap. 7. 84 CRC Guidelines for Interim measures under the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, adopted at its 80th session (14 January to 1 February 2019), para 4. 85 Id., para 5. 86 See Shelton, Chap. 2, referring to the role of multinational companies and the states in which they are headquartered or incorporated and referring specifically to the proceedings and precautionary measures regarding the Marlin Mine in Guatemala. See also Pillay, Chap. 4, referring to Brazil’s reaction to the precautionary measures in the Belo Monte dam case, in 2011, calling for a review of the Commission’s precautionary measures practice. See Sect. 11.2. 87 On the drafting process of the Optional Protocols to the Convention for the Elimination of Discrimination against Women (CEDAW), Convention on the Rights of the Child (CRC) and Convention on the Rights of Persons with Disabilities (CRPD) see Pillay, Chap. 4, She also observes that the actual

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Adjudicators are often faced with complaints on behalf of groups of people. Since group claims are even more likely to be brought in the context of structural human rights violations. In theory states are also aware of the structural problems underlying many urgent situations, in which interim measures should have the capacity to protect persons against irreparable harm. The Inter-American Court has tried to deal with systemic issues head on. Burbano Herrera and Haeck illustrate this in their case study of an important provisional measures order in a detention case.88 Leach discusses the detention context as well, drawing attention to access to counsel and access to health care. Yet in a setting of systemic violations, there are serious protection gaps. As Leach argues, this may mean that in some contexts the current scope of these measures must be widened.89 He refers to protection gaps regarding complaints to the ECtHR in the context of armed conflict.90 Ebobrah discusses the first provisional measures order by the ACtHPR on widespread and systemic violations in Libya.91 Griffey specifically zooms in on a case study involving armed conflict. He argues that due to the over-broadness and lack of follow-up mechanisms, the inter-state interim measures ordered by the ECtHR in the armed conflict in Ukraine have been ineffectual.92 In general, interim measures regarding the Crimea, which were more specific, appear to have been more effective. Moreover, there appears to have been more interplay with social movements and international advocacy. Griffey also suggests that interim measures could order states to allow access to UN fact-finding missions.93 The fact that pressing situations generally have structural causes begs the question whether an international adjudicator can require a state to refrain from certain action pending a case in the face of a real risk of conduct that would likely exacerbate a structural problem, rather than an immediate risk to life and personal integrity. In such structural contexts, the use of interim measures pending the case may be in order as well, especially if the complaint concerns a group or many similar individual complaints. This depends on the specific (quasi-)judicial function of the supervisory body, as well as the specification of primary and secondary obligations in merits and

use of interim measures by the Committees in question is likely to increase the controversy. The recognition of the need for interim measures, also in the context of economic, social and cultural rights, shows an awareness of the importance of such mechanisms in the abstract, and Pillay’s forewarning is based on the experience of state resistance in the concrete, in similar settings. This phenomenon could indeed arise no matter how exemplary the process and substance of the interim measures decisions in question, see Sect, 11.2 above. See Sect. 11.4 on possible improvements as to process and substance. 88 Burbano Herrera and Haeck, Chap. 10. 89 Leach, Chap. 9. 90 Ibid. 91 Ebobrah, Chap. 5. 92 See also Dzehtsiarou 2016, pp. 254–271, considering that the general interim measures used by the ECtHR in inter-state cases involving armed conflict delegitimise its interim measures in the eyes of a state, thereby making the tool less effective. 93 Griffey, Chap. 8.

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reparations judgments. Yet when a (quasi-)judicial body has other monitoring roles, employing those in such a context of systemic violations would be an option too.94 Depending on the function of the tool in the complaint system,95 interim measures are mainly used to protect persons against irreparable harm to the rights claimed, or to protect others than the alleged victims against irreparable harm to their lives, because they play a role in the proceedings, e.g. as witnesses. Threats against them undermine the whole system of international adjudication. At times interim measures are used even more generally safeguarding the rule of law, as pointed out by Pillay.96 Systemic problems may be underlying causes for many human rights violations and they undermine the domestic and/or international rule of law. Awareness of structural problems may be shown in the decision on whether or not to order interim measures in the first place, as well as in the substance of the decision and in the follow-up to its implementation. Increasing the extent to which the measure required of the state is geared towards the systemic contexts of the organisations and individuals requesting them, is likely to increase the protective value of the measures in question. In situations where populism and/or traditional repression has increased fear, inequalities and racism, curbed judicial independence and limited freedom of expression and assembly, other structural human rights violations are likely to thrive as well. In such circumstances, very precise interim measures, or interim measures aimed more at the protection of judicial independence, may be necessary. At the same time, the response by the authorities to such measures may be to enlist other states in trying to curb the adjudicators. Indeed, responsiveness may sometimes require cautious phrasing and gradual steps,97 while at other times it may require that adjudicators make their urgent decisions much more concrete. Leach stresses that the efficacy of interim measures can be improved by making them more precise as to the measures ordered.98 As Griffey discusses, the inter-state interim measures ordered by the ECtHR in Ukraine v Russia gave insufficient guidance on what was expected.99 The obligation to provide humanitarian aid may also require specification, depending on the situation at hand. In any case it must be provided to the population in need on a non-discriminatory basis. A specification might be to order a state to aid all affected groups on an equal basis, or

94 Several UN treaty bodies, which have a range of monitoring roles, only one of which is as an adjudicatory, can also take general urgency measures, such as the early warning systems under the Convention on the Elimination of Racial Discrimination and the Convention on the Rights of Persons with Disabilities. 95 See also Sect. 11.5.2 on the purpose and 11.5.5 on the scope of interim measures. 96 Pillay, Chap. 4. 97 See further Sect. 11.5.3. 98 Leach, Chap. 9. He notes that the Parliamentary Assembly recommended this in 2014, Parliamentary Assembly of the Council of Europe, Committee on Legal Affairs and Human Rights, Report, ‘Urgent need to deal with new failures to co-operate with the European Court of Human Rights’, Doc. 13435, 28 February 2014, para A. 8.1. For an earlier discussion, see e.g. Rieter 2010, 2012. 99 Griffey, Chap. 8.

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to allow international humanitarian assistance and remove any obstacles to the effectiveness of such assistance. Here too, there are some precedents.100 In the context of armed conflict, the ECtHR has ordered specific provisional measures in individual cases, but in inter-state cases the orders have been rather general. While preventing aggravation of the conflict is a very important purpose of provisional measures, it is crucial for the Court to specify the measures the states should take. These should be concrete measures that help protect the right to life and the prohibition of torture and cruel treatment of all persons involved.101 Thus, specificity may be warranted in the face of risks to life and personal integrity.102 Sometimes adjudicators must be bold to ensure that their tool of provisional measures continues to be useful. For instance, several adjudicators have ordered provisional measures to ensure evidence. In the context of claims involving non-derogable rights, this seems entirely appropriate.103 In this light, the ECtHR could and should use interim measures to order states to take measures allowing the evidence to be safeguarded. If necessary, it could even order a state to allow access of international delegations to investigate the situation and secure evidence.104 Specificity is especially warranted in the face of risks to life and personal integrity if there was an earlier failure to comply with more generally phrased interim measures. However, if there is no such compliance failure yet, and if there are no structural rule of law problems, the phrasing should give sufficient leeway to the state on how to implement its obligations, especially pending the case. It may often be best to simply call on the state to take all available domestic measures to achieve the protection required. Then the state has its own margin of action for implementation, to which the Court should defer, as long as the state knows it has to take the means at its disposal to achieve a certain result, timely, and to report on it. That would generally be sufficiently precise, but would not interfere with the domestic system, leaving the choice of means to the state itself (until it has shown to be unable or unwilling to respect less directive interim measures).105 100 See

e.g. the references in Rieter 2010, pp. 528–29. further Griffey, Chap. 8. See also Dzehtsiarou 2016, above n 92. 102 See also, e.g., Working methods of the Committee on the Rights of Persons with Disabilities adopted at its fifth session (11-15 April 2011), CRPD/C/5/4, para 75: ‘When a State party is requested to take interim measures, the request will clearly indicate the nature and characteristics of the measures to be taken’. 103 See Rieter 2010, pp. 385–403; and Leach 2017. 104 For the ECtHR this means that not only Article 34 on the individual’s right not to be hindered in access to the Court, may be at issue, but also Article 38. Article 38 concerns the state’s duty to provide all necessary facilities for effective examination of the application by the Court. See e.g. ECtHR, Nizomkhon Dzhurayev v Russia, Judgment, 3 October 2013, Application no. 31890/11, para 162: “This obligation requires the Contracting States to furnish all necessary facilities to the Court, whether it is conducting a fact-finding investigation or performing its general duties as regards the examination of applications. A failure on a Government’s part to submit such information which is in their hands without a satisfactory explanation may not only give rise to the drawing of inferences as to the well-foundedness of the applicants’ allegations, but may also reflect negatively on the level of compliance by a respondent.” 105 See further Sect. 11.5 on legitimacy. 101 See

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Equally, when interim measures are ordered in a new context, and not directly related to the aforementioned core rights, it is wise to phrase them much more cautiously and to take a gradual and more general approach by referring to the aim that must be achieved and not directing the way in which this should be done.106 Yet in all cases it is useful to consider potential obstacles to implementation when formulating the interim measures, through further explanation and/or specification of the obligations. To sum up, an important criterion for protective potential is that interim measures respond closely to the urgent experience of the victims and that they are indeed suited to the situation. They should be sufficiently clear for the state to know what is expected of it and sufficiently precise so that they contain practical tools for victims to help ensure the protection they need. Another, related, criterion is the likelihood of having a positive human rights impact on the urgent situation. For this, clarity of what is expected of a state is needed, meeting legitimacy criteria as well as enabling follow-up on non-compliance.107

11.4.3 Increasing Legitimacy and Follow-Up By increasing specificity and filling gaps, the social legitimacy of interim measures and other urgency tools used by adjudicators is likely to be enhanced in the eyes of victims, human rights organisations, third states and authorities concerned about human rights issues. In addition to formulating interim measures that are closely adapted to the situation, and filling gaps experienced by victims, enhancing the normative legitimacy of interim measures may also increase their protective value. As discussed in the next section (Sect. 11.5), meeting certain criteria is important for normative legitimacy of urgent decisions. This could legitimise interim measures in the eyes of all participants in the process, including state agents. Furthermore, by meeting these criteria adjudicators can disable ammunition for states that are trying to justify their non-compliance or that are teaming up to exert pressure against adjudicators at international fora.108 Finally, enhanced normative legitimacy of urgent 106 See

Rieter 2010, pp. 594–622, 1094. next sections discuss follow-up and legitimacy. Further research on the protective potential of judicial urgency mechanisms could also include case studies from the sub-regional adjudicatory systems in Africa. In addition, what would also provide important information and insights would be a survey and analysis, worldwide (especially from Asia, which has no regional human rights courts), on various domestic procedures for dealing with urgent matters, by reference to international human rights obligations, including injunctions and accelerated proceedings. While this book focusses on the international proceedings, domestic adjudicators are generally the first ones to be faced with urgent situations. There is also a heightened need for creative approaches by scholars and civil society in the urgent situations in which third parties such as companies (and the states backing them up) are involved (e.g. developing informal yet transparent mechanisms to support dialogue between the various parties in the context of industrial developments and land rights). 108 See Sect. 11.3.3. 107 The

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action decisions provides incentive, as well as concrete handles, for third parties to follow up on non-compliance by states. In their contributions, Leach and Griffey have criticised the lack of follow-up by the ECtHR on its own interim measures.109 Indeed, follow-up by the adjudicator itself shows the importance it attaches to respect for its interim measures as crucial to the adjudicatory process.110 The Inter-American Court has developed its own system of monitoring compliance, which includes hearings (resources permitting) and followup Orders. The Commission is also enlisted to report to the Court in this context. In addition, the Commission monitors compliance with its own precautionary measures. Both Inter-American Court and Commission require reporting by states. Ebobrah describes how in 2010 the African Commission added to its rule on interim measures that it could request the state to report back on their implementation.111 This addition introduces a form of follow-up on interim measures, which can already be introduced in the interim measures decision itself. The African Court requires the state to report about implementation within a set time. It does so in the last paragraph of its Orders. The ICJ has a rule on asking follow-up information in its Rules of Court. It has used it, but not consistently.112 To include reporting obligations in the order for provisional measures itself could be seen as anticipated follow-up. In The Gambia v Myanmar the ICJ ordered Myanmar to submit a report on the measures undertaken to give effect to the order, and to do so within four months and thereafter every six months until a final decision is rendered.113 This would imply that the Court will keep the situation under continuous review and respond where needed. Yet it remains to be seen whether the ICJ will set up a mechanism to monitor compliance with its provisional measures, as the Inter-American Court has done.114 For the ICJ, follow-up could also mean following up (proprio motu) in the reasoning of subsequent interim measures orders; adding specifications in subsequent orders involving a different case, in response to an earlier situation of noncompliance.115 Moreover, on the merits, it can hold states responsible for noncompliance with prior orders, quite apart from any other findings of violations of

109 See

Griffey, Chap. 8 and Leach, Chap. 9 stressing the importance of follow-up. See also Rieter 2012, 165–198. 110 Rule 39 currently does include a reference to the possibility to give ‘immediate notice of the measure adopted in a particular case’ to the Committee of Ministers. It does so, ‘where it is considered appropriate’. Moreover, the Chamber or a judge appointed pursuant to the Rule, ‘may request information from the parties on any matter connected with the implementation of any interim measure indicated’. ECtHR, Rules of Court, 1 January 2020, Rule 39, as amended by the Court on 4 July 2005, 16 January 2012 and 14 January 2013. 111 AComHPR Rules of Procedure 2010, Rule 98(4). See Ebobrah, Chap. 5. 112 See Rieter 2010, 90–97. 113 ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (the Gambia v. Myanmar), Order of 23 January 2020, para 82. See also Griffey, Chap. 8. 114 See also the criticism by Leach with regard to the European system, Chap. 8. 115 More closely discussed in Rieter 2019, 158–167.

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substantive rights, even when it finds it has no jurisdiction on the merits. 116 Currently, several (quasi-)judicial bodies mention non-compliance under a separate heading and often also refer to this in their conclusion, as a separate violation. Equally, the ICJ does so in its Operative Clauses. Nonetheless, it still needs to clarify how it will monitor reports pending the case, how non-compliance plays a role in establishing a breach, or an aggravated breach, and what remedies are required for disrespect for its interim measures.117 A merits decision by the ESC-Committee serves as an example of an approach for remedies. It recommended the state to ‘(e)stablish a protocol for complying with requests for interim measures issued by the Committee and inform all relevant authorities of the need to respect such requests in order to ensure the integrity of the procedure’.118 When urgent action is followed up it is more likely to be taken seriously by the authorities involved. Social legitimacy is likely to be enhanced when other international authorities put their weight behind the interim measures ordered. At the European level the Court’s Rule 39 on interim measures expressly refers to the immediate notice that the Court can give to the Committee of Ministers of the Council of Europe.119 In addition, the Parliamentary Assembly and Commissioner on Human Rights can follow up on interim measures. Shelton refers to ‘OAS member state acquiescence over nearly four decades, plus positive affirmation’ by the General Assembly in 2006.120 Ebobrah refers to the various calls by the African Union Executive Council on member states to comply with provisional measures.121 At UN level the High Commissioner on Human Rights and her staff, UN Special Rapporteurs, and the Human Rights Council may also remind states of their obligation to implement interim measures issued by the treaty bodies in the context of the individual complaint procedure. Finally, individual third states and NGOs can remind states of their obligations in this respect.122 All of this is more likely when the interim measures decisions are concrete and persuasive, providing more incentive as well as better handles for effective action.

116 The

ICJ also concluded on non-compliance with the provisional measures in Avena II, after having found that it had no jurisdiction on the merits. ICJ, Avena II, Request for interpretation of the Judgment of 31 March 2004 (Mexico v US), judgment of 19 Jan 2009, para 61 under (2). 117 See e.g. Palchetti 2017, 5–21. See also Sect. 11.5.2. See further Rieter 2019. 118 ESC-Committee, Gómez-Limón Pardo v Spain, 5 March 2020, E/C.12/67/D/52/2018, para 14(b). 119 ECtHR Rule 39(2): “Where it is considered appropriate, immediate notice of the measure adopted in a particular case may be given to the [Council of Europe] Committee of Ministers.” 120 Shelton, Chap. 2. 121 Ebobrah, Chap. 5. 122 Civil society could continue to press in order to trigger follow-up by the bodies themselves; moreover, they could pressure third parties like companies, which play a more and more prominent de facto role.

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11.5 Criteria for Normative Legitimacy of Interim Measures 11.5.1 Introduction By meeting criteria for normative legitimacy, interim measures are more likely to achieve external or social legitimacy and hence compliance.123 This way, legitimacy is obviously enhanced vis-à-vis good faith state agents. Admittedly, states often play the legitimacy card for reasons unrelated to the normative legitimacy criticisms invoked by them. Still, if adjudicators take pains in achieving normative legitimacy, it will be more difficult for states to justify their non-compliance, and third parties will be more likely to join in follow-up against such non-compliance.124 Thus, to have protective potential, interim measures should be taken in conformity with recognised principles, both procedural and substantive. As announced, this chapter focuses on certain criteria for normative legitimacy of interim measures, as singled out by the various authors contributing to this book.125 These criteria should be consistently applied, while at the same time doing justice to the specific facts and context. Interim measures by international adjudicators should be based on their legal authority, which is related to their purpose. Furthermore, the obligation to comply with them should be made explicit (Sect. 11.5.2). The process applied by the adjudicator for a request for interim measures should be fair and prejudgment should be avoided (Sect. 11.5.3). The decision taken should be motivated, consistent, nonarbitrary, and possibly supported by similar practices developed in other systems (Sect. 11.5.4). Finally, the substantive scope of the measures should be clear, as well as the evidence required, and the measures should build on the existing protective system (Sect. 11.5.5).

11.5.2 Purpose and Legal Authority of Interim Measures In general, the purpose of interim measures could be described as to ensure a meaningful outcome of the case pending before the adjudicator, prevent aggravation of the conflict and ensure the sound administration of justice.126 At the same time, the notion of ‘preventing irreparable harm’ is recurrent. Preventing that persons are subjected to such harm is an obvious purpose, in particular for human rights monitoring bodies. 123 See

e.g. Shelton, Chap. 2; Ebobrah, Chap. 5; Harrington, Chap. 6. Sect. 11.4.3. 125 In addition, criteria for the appropriate use of interim measures include that there is prima facie jurisdiction on the main application; that there is a link between the interim measures requested and the rights claimed on the merits; that the rights invoked arguably exist; and that there is urgency and risk of irreparable harm. 126 This builds on Rieter 2019. 124 See

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Given the human rights obligations contained in constitutive documents of organisations, or in specific human rights treaties, and in light of the function of the human rights monitoring mechanisms instituted by states, it appears evident that they can indicate to states what measures they should take in the face of such irreparable harm. The question is in what contexts they have the competence to order interim measures rather than take other urgent action. The Inter-American and African systems explicitly authorise the Inter-American and African Courts to order such measures. This is different for the Inter-American and the African Commission, for the earlier UN treaty bodies, for the ECtHR and the European Committee of Social Rights.127 Nevertheless, the inherent authority of adjudicators to decide on interim measures appears generally accepted. The authority of human rights monitoring bodies performing an adjudicatory function to order interim measures while a case is pending before them has long been recognised. Shelton observes that it ‘could be argued that such power is inherent to the administration of justice and within judicial powers, even without express authority, as a means of ensuring the effectiveness of the ultimate decision’. She explains the legal authority to take urgent action by reference not only to tribunals but also to all other human rights bodies that hear petitions. She first points out that ‘extensive and longstanding jurisprudence supports the view that any institution which carries the name ‘court’ or ‘tribunal’ has certain inherent powers, that are necessary to allow it to fulfil the judicial function, irrespective of limitations placed on the court’s jurisdiction or the type of proceedings it conducts’.128 She then explains that ‘these inherent attributes extend to human rights commissions and committees when they are hearing and deciding cases or otherwise exercising their explicitly-conferred quasi-judicial or protective mandates’.129 Shelton also reflects on state pressure, when she states that ‘[…] states have the power to mandate that only one side to a dispute be heard and to require that a ‘court’ decides on the basis of the evidence and arguments of that party alone. However, most (human rights) observers would not consider such an institution a ‘court of justice’ operating under the rule of law’.130 Thus, she notes that ‘[i]n general, courts must have the powers necessary to make independent decisions’.131 As Pillay has described by reference to important regional and UN case law, it is now mostly accepted that states are legally bound to respect interim measures, even if the final decisions on the merits are still referred to as ‘Views’.132 As she puts it, 127 For

the European Committee of Social Rights and its immediate measures, see Sect. 11.5.3. Shelton, Chap. 2 and references therein. 129 Ibid. 130 Shelton, Chap. 2. 131 Ibid. 132 Pillay, Chap. 4. See also, e.g., Center for Justice and International Law (CEJIL) and International Human Rights Law Clinic, University of California, Berkeley, School of Law (USA), Comparative Analysis of the Practice of Precautionary Measures Among International Human Rights Bodies, Submitted to Special Meeting of the Permanent Council of the Organization of American States, December 2012, https://www.law.berkeley.edu/files/IHRLC/Precautionary_Measures_Research_P aper_%28FINAL%29_121210.pdf (accessed 12 October 2019), p. 4 and references therein. 128 See

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‘the fact that the binding effect of interim measures has been affirmed, irrespective of whether they are provided for in the relevant treaty or in the rules of court, and even where the final decisions of bodies concerned are not in themselves legally binding on states, is a testament to the significance attached to interim measures as a means of ensuring the effectiveness of international human rights law’.133 The HRCtee, for instance, has consistently held that the undertaking to cooperate with it in good faith is implicit in the state’s ratification of the Optional Protocol (OP).134 It holds that, pursuant to its rules of procedure, adopted in conformity with Article 39 ICCPR, interim measures ‘are essential to the Committee’s role under the Optional Protocol. Flouting of the rule, especially by irreversible measures such as, in the present case, the author’s extradition undermines the protection of Covenant rights through the Optional Protocol’. It is ‘a serious breach’ by the state of its obligations under Article 1 OP.135 The Committee discusses this under a separate heading, and at the end of its decision it confirms the violation of this obligation and reaffirms the obligation to avoid violations of Article 1 of the Optional Protocol in the future and to comply with its requests for interim measures.136 Shelton also refers to the case law of the Inter-American and European Courts and to that of the Inter-American Commission regarding the binding nature of its precautionary measures.137 Ebobrah mentions numerous calls by the AU Executive Council on AU member states to comply with the decisions, recommendations, judgments and orders of the Commission and the Court. This includes interim measures orders.138 States can be held responsible for non-compliance with interim measures in a separate finding, next to any other findings on the merits. Significantly, the ICJ concluded on non-compliance with the provisional measures in Avena II, after having found that it had no jurisdiction on the merits.139 This indicates the separate legal obligation of states to respect interim measures.140 Harrington is somewhat more cautious, but she also refers to the good faith argument that the HRCtee and CAT have adopted. She notes the ‘strict formalism’ of the Canadian position that interim measures are not legally binding because the eventual 133 Pillay,

Chap. 4. cooperation means that the state permits and enables the Committee ‘to consider such communications and, after examination, to forward its views to the State party and to the individual (Articles 5(1) and (4))’. See e.g. HRCtee, N.S. v. Russian Federation, 27 March 2015, CCPR/C/113/D/2192/2012, para 8.2. It observes that a state commits serious breaches of its obligations under the OP, when ‘its action or inaction serves to prevent or frustrate consideration by the Committee of a communication alleging a violation of the Covenant, or to render examination by the Committee moot and the expression of its Views nugatory and futile’. 135 Ibid, para 8.3. 136 Ibid, paras 11 and 12. The CAT and other UN treaty bodies have taken similar approaches. See e.g. Pillay, Chap. 4. 137 Shelton, Chap. 2. 138 Ebobrah, Chap. 5. 139 ICJ, Avena II, Request for interpretation of the Judgment of 31 March 2004 (Mexico v US), judgment of 19 Jan 2009, para 61 under (2). 140 See further Sect. 11.4.3. 134 This

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Views are not: ‘The strict formalism of Canada’s position is striking, given that more mundane aspects of a committee’s rules of procedure, such as those that impose deadlines for the filing of a submission, have been supported by Canada as having some sense of a legally binding quality for reasons of function and practicality, even with the end result of the process being a non-legally binding Committee View’.141 The reasoning on the authority and binding nature of interim measures relates to pending cases. As discussed in Sect. 11.2, there are other urgency instruments in addition to interim measures. The question is whether treaty monitoring bodies may order interim measures without a pending case. Indeed, the Inter-American Commission ‘derives its authority to issue precautionary measures to address instances of imminent danger separate from a pending case—referred to as “autonomous” measures or the “protective” aspect of the measures—from the Charter of the Organization of American States’.142 The Inter-American Court posits that in international human rights law interim measures are not only precautionary or preventive, insofar as they preserve a juridical situation. Next to their ‘essentially preventive’ character, they go beyond this to effectively protect fundamental rights to the extent that they prevent irreparable harm to persons.143 The Court refers to the preventive or precautionary dimension, or role, as seeking ‘to avoid obstruction of compliance with an eventual decision of the organs of the inter-American system’.144 In other words, this refers to the traditional role of interim measures to ensure the integrity of the proceedings, as well as a meaningful outcome to those proceedings. Yet they are also a tool for protecting the human rights in the treaty, aiming to prevent irreparable harm to persons, either the same persons on whose behalf the case was brought, or persons involved in the case, such as witnesses. After all, such harm would undermine the integrity of the proceedings, and/or a meaningful outcome of claims aimed at protecting Convention rights involving life and personal integrity. The reference to the protective dimension is a way to underline the fact that in human rights proceedings interim measures aim to protect people against irreparable harm, first and foremost by protecting their lives and personal integrity, but also safeguarding other rights, especially in the face of irreversible risks to the rule of law. This protective dimension gives these interim measures a heightened importance over and above the traditional preventive dimension. Now, the description of preventive and protective character appears to be used to stress an autonomous role of interim measures in protecting the rights in the ACHR against irreparable harm, independent of a case pending before the Court. As noted, based on the treaty text the Court can order provisional measures involving 141 Harrington,

Chap. 6 (footnote omitted). Analysis, above n 132, p. 4 and references therein. See further Shelton, Chap. 2, referring to Article 25 of the Commission’s Rules of Procedure. 143 See e.g. IACtHR, Peace Community of San Jose de Apartado v. Colombia, order of the President, 9 October 2000, confirmed by Order of 24 November 2000, Consid. Cl. 12. 144 See e.g. IACtHR, Matter of Wong Ho Wing regarding Peru, Provisional Measures Order, 26 June 2012, consid.cl 40. 142 Comparative

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matters that are not (yet) pending before it.145 Moreover, the Commission also uses its precautionary measures when it has not received a formal complaint. Despite the difference in context, the ‘precautionary/preventive’ and ‘protective’ distinction appears to be finding its way elsewhere as well. The CRC, for instance, refers to both in its Guidelines on interim measures. It states that ‘[i]nterim measures have a dual nature, precautionary and protective’.146 About their protective nature it simply notes that ‘the measures seek to avoid irreparable harm and preserve the exercise of human rights’.147 It then proceeds to discuss the traditional, ‘precautionary’ nature, pointing out that ‘the measures have the purpose of preserving a legal situation under consideration by the Committee. Their precautionary nature aims at preserving rights at risk of a grave violation until the Committee can examine the complaint. Its object and purpose are to ensure the integrity and effectiveness of the Committee’s decision on the merits and, thus, avoid infringement of the rights at stake, which may adversely affect the useful purpose (effet utile) of the final decision. Interim measures also enable the State concerned to implement the final Views and comply with the ordered reparations’.148 The question is, however, whether interim measures can also be a tool for protecting the rights in the treaty related to a case that has already been concluded, or is otherwise independent of a pending case. The IACtHR monitors compliance with its judgments and considers a case closed only when it has determined that all aspects have been complied with. If, before this determination, the victims, witnesses or lawyers are receiving threats, it makes sense to order interim measures. Given that the IACtHR also refers to the fact that provisional measures are exceptional, at the stage of supervision of compliance, I believe they should only be ordered in the latter cases. On the other hand, if there are other developments, such as political action to remove judges from office on whom victims had vested their hope for investigation of

145 That

is, only when the Commission requests this under Article 63(2) ACHR. Guidelines for Interim measures under the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, adopted at its 80th session (14 January to 1 February 2019), para 2. 147 Ibid. 148 Ibid. This is also how the ESC-Committee discusses the obligations of states: “States Parties are expected to comply with requests for interim measures under Article 5(1) of the Optional Protocol. A State party that does not implement the interim measures requested by the Committee is failing to fulfil its obligation to respect in good faith the procedure for individual communications established in the Optional Protocol. A failure to respect interim measures makes it unlikely that any future Views of the Committee would be capable of reversing the damage suffered by the victims. A failure to co-operate with requests for interim measures thus undermines the duty of the Committee under the Optional Protocol to provide effective protection against violations of rights of the Covenant.” ESC-Committee Guidelines on interim measures, adopted at its 66th session, SeptOct, 2019, see https://www.ohchr.org/Documents/HRBodies/CESCR/Guidelines_on_Interim_Mea sures.docx (accessed 2 March 2020), para 8. 146 CRC,

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gross violations, these should be responded to through the normal monitoring mechanism.149 Moreover, in such a situation a new case should be opened about threats to the independence of the judiciary, bringing a claim of their structural nature.150 In any case, in most human rights monitoring systems interim measures are not an autonomous tool.151 The ESC-Committee puts it as follows: ‘Interim measures are not a stand-alone mechanism, and must therefore form part of a communication that on its face establishes a violation of Covenant rights’.152

11.5.3 Fairness of the Procedure and Avoiding Prejudgment To make sure that the procedure for deciding on interim measures is legitimate, the process applied by the adjudicator should be fair. Several chapters in this book stress the importance of transparency and fairness of the urgency proceedings.153 For this, the adversarial nature is vital,154 ensuring equality or arms, as well as clear communication and access to information.155 Transparency and clear communication are also elements of motivation.156 Prechal and Pahladsingh highlight the inherent tension between the need in general for a thorough procedure in all cases and the need to address certain situations on an urgent basis.157 The adversarial nature must be heeded to while at the same time meeting the criterion of timeliness. An urgent action that comes too late has zero protective 149 See

e.g. IACtHR, Caso Durand y Ugarte v Perú, Order for provisional measures, 8 February 2018 where it ordered provisional measures aimed at halting parliamentary proceedings for the removal from office of four judges. This must be seen in a context of concerted efforts by political bodies to remove judges from office. In 2001 in Durand and Ugarte the IACtHR had found that a situation of impunity must be remedied. See also the dissents to the Order by Vio Grossi and Sierra Porto. 150 For instance, if there is a threat to the independence of the judiciary, and there regularly is, and not just in the Americas, a case should be brought about that. Given the context, political proceedings to remove judges can have both the intention and the effect of blocking certain types of investigations and perpetuate impunity, whether for gross human rights violations, or corruption. This indicates that it may not be a single case that can be reversed (and therefore interim measures would be outside the scope), but instead concerns a structural problem, whereby removal of judges has a chilling effect both within the judiciary and with those seeking access to justice. In such a context interim measures aimed at halting the removal from office of certain judges could indeed be seen as preventing irreversible harm to the claim and therefore would be within the outer limits of the concept. 151 See Rieter 2021. 152 ESC-Committee Guidelines, above n 148. 153 See, e.g., Shelton, Chap. 2; Prechal and Pahladsingh, Chap. 3; Ebobrah, Chap. 5; Harrington, Chap. 6; Leach, Chap. 9. 154 See e.g. Ebobrah, Chap. 5; Harrington, Chap. 6. 155 See Harrington, Chap. 6. 156 See Sect. 11.5.4. 157 Prechal and Pahladsingh, Chap. 3.

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potential. Ebobrah discusses the Ken Saro Wiwa case, where the military junta of Nigeria did not get the opportunity to contest the third request by the petitioners for interim measures.158 He notes that the African Commission sacrificed the adversarial balance to meet the demands of urgency, ‘in ways similar to ex parte applications in domestic litigation’.159 Ken Saro Wiwa and the others were sentenced to death on 31 October 1995 and the next day the Commission used interim measures to suspend execution of the death penalty until the proceedings before the Commission were concluded, or until the Commission had an opportunity to discuss the matter with the government during a proposed protection visit to Nigeria. In these circumstances, which included two earlier interim measures, prescribing a new interim measure appears very reasonable. Several days later the executions took place after all. Here it was obviously the conduct of the junta that lacked legitimacy. Yet it is noteworthy that 20 years later, in a different setting, the AU Executive Council urged the Commission to ‘observe due process of law in making decisions on complaints received’ and to ‘consider reviewing its rules of procedure, in particular, provisions in relation to provisional measures and letters of urgent appeals in consistence with the African Charter on Human and Peoples’ Rights’.160 Ebobrah observes that apparently at that time grievances of some states were serious enough to warrant inclusion in a collective AU decision. He points out: ‘While this may well be executive interference with the work of the Commission, it is equally a collective statement by AU Member States of their dissatisfaction with the processes of the Commission and a possible clue for explaining non-compliance’.161 He suggests that ‘when critical urgency is involved, the use of urgent appeals pending hearings should replace the unilateral consideration of provisional measures’. After all, a commitment to maintaining the status quo pending a hearing on a request for provisional measures is not uncommon in domestic proceedings either.162 This suggestion finds support in the practice of the Inter-American Court. Its President can order preliminary provisional measures, or ‘urgent measures’.163 The full Court can later lift them or confirm them as provisional measures. Shelton observes that the Inter-American Commission usually notifies and consults the relevant state prior to a decision to grant precautionary measures. 158 AComHPR, International PEN, Constitutional Rights Project, Civil Liberties Organisation and

Interights (on behalf of Ken Saro-Wiwa Jnr) v Nigeria, 31 October 1998, Communications 137/94139/94-154/96-161/9, 12th Annual Activity Report, AHRLR 212/7 International Human Rights Reports 274. 159 Ebobrah, Chap. 5. 160 AU Executive Council, Decision of June 2015 on the 38th Activity Report of the African Commission, EX.CL/Dec.887 (xxvii), para 12. 161 Ebobrah, Chap. 5. 162 Ibid. 163 See e.g. IACtHR Caso Vélez Loor vs. Panamá. Medidas Urgentes. Resolución de la Presidenta de la Corte (Urgent measures of the President of the Court), 26 May 2020 concerning circumstances of immigration detention and the specification that ensuring access to health care also means taking measures to detect, prevent and treat COVID-19 infections for all persons in immigration detention at La Peñita and Laja Blanca in the Darién region, without discrimination.

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Nonetheless, there are situations where it is more of an ex parte decision, due to the urgency of a situation. She notes that it ‘could be argued that this violates a fundamental principle of juridical equality between the parties in adversarial proceedings’ and, partly to address this, Article 25 of the Commission’s Rules requires it to seek information from the state prior to adopting precautionary measures, ‘unless the urgency of the situation warrants the immediate granting of the measures’.164 As Shelton points out: ‘ex parte action should be exceptional, but remains necessary in practice’.165 Article 25 also confirms that the Commission will evaluate periodically whether measures should be maintained or lifted.166 A judicial take on procedural legitimacy can be found in one of the individual opinions by Judge Ouguergouz. While agreeing with an Order of the African Court, the judge stressed that the state should have been served expeditiously with the application in order to give it an opportunity to ‘submit its observations’. This was required by the ‘adversarial principle’.167 Ebobrah finds that ‘the Court has also managed to improve the adversarial balance between parties by offering State Parties the opportunity to respond to requests for provisional measures, including in cases being considered proprio motu by the Court’, although in some situations ‘arguably at the risk of compromising urgency’.168 The UN Committees seek a balance in order to achieve timeliness while ensuring adversarial standards.169 CAT, for instance may initially grant interim measures on the basis of the information in the submission. The state may then request a review by the Committee. The latter decides to lift or maintain its interim measures, in the light of timely information provided by the state and after having allowed the complainant to comment. The state party may also inform the Committee at a later stage that the reasons for the interim measures have lapsed or present other arguments why the request for interim measures should be lifted. If convinced, the Committee, its Rapporteur or the Working Group may withdraw the request for interim measures.170 The other UN treaty bodies also allow challenges to their interim measures. Firstly, in case of doubts or extremely limited time, they may order ‘provisional’ interim

164 Shelton,

Chap. 2.

165 Ibid. 166 Ibid. 167 Ibid,

referring to ACtHPR, African Commission on Human and Peoples’ Rights v Libya (Libya 2), provisional measures order, 15 March 2013, Appl. No. 002/2013, 1 AfCLR 145, separate opinion by Judge Ouguergouz, para 4. 168 Ebobrah, Chap. 5. 169 See e.g. Rieter 2010, pp. 852–854 and 955–957. 170 CAT Rule 114 CAT Rules of Procedure, CAT/C/3/Rev.6, 1 September 2014. The Committee on the Rights of Persons with Disabilities (CRPD) has developed a similar rule in Article 64, but this rule does not mention that it allows the complainant to respond to the state’s request to lift the interim measures. CRPD rules of procedure, as revised at its sixteenth session (15 August–2 September 2016).

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measures.171 The ESC-Committee refers to these as time-bound interim measures.172 What this means is measures that are more provisional or more time-bound than usual. Secondly, a UN committee may lift them when it considers there is no need for them after all,173 or that there is no longer a need to maintain them.174 In this light, they commit to periodic reviewing of their interim measures. The ECtHR may also discontinue its interim measures at any time.175 In particular, since such measures are related to the proceedings before the Court, they may be lifted if the application is not maintained. The ESC-Committee shows its concern for the adversarial procedure in urgent cases by stressing that there should not be unnecessary delay by the petitioners in the submission of their requests for interim measures. It explains that this is important ‘both in order to allow the Committee to properly examine the request and to allow the State Party to respond to any interim measures requested’. Furthermore, ‘[i]t is […] the duty of the authors to submit their request for interim measures as soon as it appears that effective domestic remedies capable of averting the irreparable damage are not available’. In this light, it determined that ‘in principle requests for interim measures should be made at least four working days before the damage is expected to materialize’.176 Yet this may put potential victims in a more vulnerable position and in that sense may not be conducive to material equality of arms. In general, it could be said that the more immediate the urgency, the more bare the procedural requirements may be, by way of initial decision-making. A decision should be taken as soon as possible to lift, confirm or expand the provisional interim measures on the basis of the full set of procedural requirements, including sound procedure where both parties have ample opportunity to present counter-arguments and respond to those.

171 See

Rieter 2010, p. 597 on the cautious phrasing by the HRCtee. Guidelines on interim measures, above n 148, para 7: “In cases where the information provided by the author is insufficient, but the Committee has solid reasons to think that the risk of irreparable damage cannot be ruled out, the Committee may request interim measures for a limited time in order to allow the author a short, but reasonable period in which to provide the necessary substantiating information. In such cases, if the author does not provide the information within the relevant time period, the request for interim measures is withdrawn automatically.” 173 See also, e.g., Pillay, Chap. 4. 174 See also, e.g., ESC-Committee, Guidelines on interim measures, above n 148, para 9: “Under rule 7(3) of the Provisional Rules of Procedure under the Optional Protocol, the State party may “present arguments on why the request for interim measures should be lifted or is no longer justified”. Rule 7(4) states that the Committee may decide to “withdraw a request for interim measures on the basis of submissions received from the State party and the author/s of the communication”. The Committee may lift the request for interim measures if it considers, on the basis of new information provided by the State Party, that the interim measures were unjustified, or that they are no longer necessary.’ 175 Press Unit ECtHR, Factsheet on interim measures, March 2020. 176 ESC-Committee Guidelines on interim measures, above n 148, para 4. 172 ESC-Committee

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Another aspect of fair procedure is that the decision on interim measures should not prejudge the merits.177 Ebobrah refers to the provisional measures ordered by the African Court in Konaté v Burkina Faso.178 The applicant had requested the Court to order the state to release the journalist immediately ‘or alternatively to provide him with adequate medical care’.179 The Court granted the request for access to medication and health care, but it denied the request for ‘immediate release from prison,’ on the grounds that it ‘corresponds in substance with one of the reliefs sought in the substantive case’.180 He points out that by taking the view that an order of immediate release would ‘adversely affect consideration’ of the main action, the Court made clear that its orders for provisional measures cannot be an indirect means of getting a judgment on the merits.181 Burbano-Herrera and Haeck also raise the question whether ordering release could constitute prejudging the merits.182 Indeed, if the claim on the merits is the contested detention and the argument for the release is the anticipated wrongfulness of the detention, there is a risk of prejudgment.183 This may be different if the measures aim to address an enduring situation of overcrowding, in the face of degrading detention conditions and risk to health. If other measures do not work, ordering release may be required to prevent irreparable harm to persons.184 The Inter-American Court has pointed out that in requests for provisional measures it only considers arguments on extreme gravity and urgency, and the necessity to avoid

177 Ibid., para 10: “Under Article 5(2) of the Optional Protocol, a request for interim measures “does

not imply a determination on admissibility or on the merits of the communication”. The Committee may therefore find that the initial communication is sufficiently substantiated to be registered and that the situation brought to its attention warrants a request for interim measures in order to avoid irreparable damage. Similarly, the information provided by the parties on the admissibility and merits of the communication may even lead the Committee to conclude that a communication, which initially appeared admissible prima facie, is inadmissible for non-compliance with the admissibility requirements of Article 3 of the Optional Protocol. The request for interim measures is therefore without prejudice to subsequent decisions of the Committee regarding the admissibility of the communication or its eventual findings of violations of rights under the Covenant when considering the merits of the communication. 178 ACtHPR, Konaté v Burkina Faso, Order for Provisional Measures, 4 Oct 2013, (2013) 1 AfCLR 310. 179 Ibid., para 22. 180 Ibid., para 19. 181 Ebobrah, Chap. 5. He also refers to three judges who would have granted provisional release pending the case because the state had not raised any objections (paras 1–3), considering that ‘since the applicant could easily be returned to jail if his action was unsuccessful, the failure to grant immediate release ‘will cause irreparable harm’ (para 4). ACtHPR, Konaté, 4 Oct 2013, Joint dissenting opinion of Judges Ramadhani, Tambala and Thompson. 182 Burbano-Herrera and Haeck, Chap. 10. 183 See further Rieter 2010, pp. 541–553. 184 As they put it, in the choice to specify the obligation as one of release, ‘it could also be seen as a Court, which is desperate to find a way to order provisional measures that will result in effective protection for detainees who are kept in deplorable conditions’. Burbano-Herrera and Haeck, Chap. 10.

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irreparable damage to persons.185 Moreover, while it monitors compliance with its orders for provisional measures to protect persons against threats, and these orders obviously include investigation of instances of threats so as to prevent new ones, the Court does not monitor this investigation element of its provisional measures. At this stage it focuses on the implementation of other elements in its Orders.186 In the course of the reform process the Inter-American Commission also expressly agreed with the recommendation to ‘confine the assessment for granting precautionary measures to the “seriousness” and “urgency” of the situations, and avoid considerations on the merits of the matter’.187

11.5.4 Motivation of Interim Measures Decisions Transparency is an important criterion for legitimate judicial decisions in general. This also applies to urgent decision-making. It requires that the parties have access to information about the use of interim measures and the reasons for ordering them.188 The approach to irreparable harm is a substantive aspect of normative legitimacy, while the fairness of the proceedings constitutes a procedural aspect. The important element of motivation, as part of transparency, could be seen as both substantive and procedural. A motivated decision includes a reference to international legal obligations; a reference to the principled and binding nature of the law and an indication of criteria used for the decision to take urgent action.189 It implies clarity of the decision, in terms of the rights of the persons involved and the obligations of the state pending the proceedings. To some extent the general principle of legal certainty is also relevant in interim measures. Only to some extent, because there is no judgment on the merits yet, so no finality. Still, the internal consistency between the general case law of the adjudicator and its practice of using interim measures in similar cases does play a role, along with the context of the domestic proceedings.190 The more an adjudicator 185 See e.g. IACtHR, Case of the Miguel Castro-Castro Prison v. Peru, Order denying provisional measures of 29 January 2008, 10th ‘Considering’ clause and IACtHR, Matter of “Globovisión” Television Station (Venezuela), Order of 29 January 2008, 10th ‘Considering’ clause. 186 See Rieter 2010, p. 672, referring, e.g., to IACtHR Cárcel de Urso Branco (Brasil), Order for provisional measures, 2 May 2008, Consid. Cl. 26. See also Rieter 2019 on the ICJ and prejudgment. 187 See Pillay, Chap. 4, referring to IACHR, ‘Reply of the Inter-American Commission on Human Rights to the Permanent Council of the Organization of American States regarding the recommendations contained in the Report of the Special Working Group to Reflect on the Workings of the IACHR with a View to Strengthening the Inter-American Human Rights System’, Washington D.C., 23 October 2012, para 65. 188 See e.g. Harrington, Chap. 6. 189 See Ebobrah, Chap. 5. 190 See also Pillay, Chap. 4, and Leach, Chap. 9, referring to consistency and also noting that due to lack of published reasoning, in ‘outlier’ cases it is not always clear why the Court ordered interim measures.

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can link an interim measures decision to its own relevant earlier interpretations and practices, the more authoritative such decision is. The petitioners and the states involved should have some idea of what to expect. Another aspect that can be a component of motivated interim measures is referring to the case law of other adjudicators.191 A similar argumentation or practice used by other adjudicators can indeed strengthen the persuasiveness of interim measures decisions. A reference can confirm a certain development in international law, and the consistency of an interim measure with that development. How this reference is presented is crucial to avoid states undermining the social legitimacy of an order by implying that the adjudicator depends on ‘foreign’ elements.192 This applies particularly if the practice referred to is only European. By contrast, some interim measures are firmly rooted in the case law worldwide, thereby strengthening their persuasiveness. Publication and motivation of decisions to grant interim measures not only meets the transparency criterion as a value in itself, but it may help to increase trust in the interim measures decided upon.193 As suggested by Harrington, ‘[r]easons can also serve to make clear the distinction between an interlocutory action and the final outcome, with an interim measures request, unlike a final decision on the merits, gaining legal force as a result of its important regulatory role in preserving the positions of the parties while a dispute is pending’.194 Translating this situation to the UN level, she suggests that when UN treaty bodies show greater transparency and provide detailed reasons, over time, this ‘may serve to foster greater confidence from other states in both the legitimacy and necessity of these protective measures for the prevention of irreparable harm’.195 On the African Commission Ebobrah observes that by not publishing an order including the reasoning, ‘it is difficult to decipher what factual situations satisfy the criteria’ for indicating interim measures. This does not give the petitioners and the states much guidance. Moreover, the Commission ‘also denies itself the opportunity to contribute to the global jurisprudence on provisional measures.’196 By contrast, he observes that the Court does publish its Orders, which are reasoned. It ‘always or almost always follows a fixed structure, basically following the requirements popularised by the ICJ’. The Court refers to the legal basis of its authority and the conditions for ordering interim measures. It establishes ‘that it has both material (Article 3 of the Protocol) and personal jurisdiction (Article 5 of the Protocol)’. It then discusses whether the particular situation satisfies the criteria of extreme gravity, urgency and risk of irreparable harm to the victim(s).197 Still, Ebobrah observes, there is ‘uncertainty regarding the factual situations that the mechanisms consider as 191 As

highlighted by Burbano Herrera and Haeck, Chap. 10. Ebobrah (Chap. 5). 193 See Harrington, Chap. 6; and Ebobrah, Chap. 5. 194 Harrington, Chap. 6. 195 Ibid. 196 Ebobrah, Chap. 5. 197 Ibid. 192 See

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satisfying the criteria set out in the Court Protocol and the respective Rules’.198 He refers to Tanzania’s response to one of the Court’s interim measures stating that ‘facts were insufficient reasons’.199 He concludes: ‘Since the very nature of adjudication requires transparent motivation to convince a losing party to accept the decision, it is critical that more elaborate and persuasive documentation of the reasoning behind an interim decision be made’.200 Pillay and Shelton discuss the political pressure by several European states, displeased about the Court’s interim measures in the immigration context and calling for a serious reduction in the number of measures ordered.201 The ECtHR responded in several ways, including by creating a special Unit within the Registry specifically to deal with interim measures requests. Still, the Court does not make public its interim measures. It only transmits them to the applicant and the state, normally without motivation. As Shelton notes, the Registry has argued that for practical reasons, motivation should be provided only on an ad hoc and exceptional basis.202 Shelton, Pillay and Harrington discuss how in the Inter-American system, the reform process instigated by a group of states led to significant changes in the rules of procedure, including a decision by the Commission to provide reasons for its use of precautionary measures and a published vote of the Commissioners.203 Rule 25 now also specifies how the measures can be lifted, prolonged or amended. Harrington suggests that motivated interim measures ‘may also serve to foster state respect for their protective role, while also assisting those who must take efforts in the national courts to secure a temporary stay of an order for removal or extradition’. She considers that if the Canadian courts are correct that interim measures requests are matters for ‘the court of public or international opinion’, then the public needs to know more about why the requests were made’.204 The other side of the coin is expressed by Pillay, who draws attention to the pressure mechanisms developed by states and points out the need for flexibility of the adjudicator in the face of urgency. Pillay explains that the ECtHR concluded in 2016 that ‘providing reasons for the application of Rule 39 would represent a considerable burden for the Court, likely to slow down a process that by its nature must operate rapidly. Instead, by the rapid communication of such applications, the Government concerned is informed of the factual basis for the interim measure’. 205

198 Ibid. 199 Ibid. 200 Ibid.

(footnote in original omitted). Chap. 4; and Shelton, Chap. 2. See also Sect. 11.3.3. 202 Shelton, Chap. 2, referring to Drafting Group C on the Reform of the Court (GT-GDR-C), Article 39 of the Rules of Court: Modalities of Application and Procedure, Information document by the Registry of the Court, GT-GDR-C(2012)009, 7 December 2012, para 31. 203 See Shelton, Chap. 2; Pillay, Chap. 4; and Harrington, Chap. 6. 204 Harrington, Chap. 6. 205 Pillay, Chap. 4, referring to ECtHR, ‘The Interlaken Process and the Court (2016 Report)’, 1 September 2016. 201 Pillay,

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Indeed, the ability to react flexibly and in time is crucial for the protective potential of interim measures. Furthermore, there also is a need for openness about the motivations of states that are pressing for greater transparency. Much of the pressure by some European states to secure reasoned interim measures appears to have been based simply on a desire to curb the Court and achieve a more limited number of interim measures. This is especially the case when they argued for reasoned denials of interim measures (because they presumably hoped this would freeze the situation for subsequent cases), but not for motivated decisions granting interim measures (the implications of which for similar cases would be much more obvious for state institutions than unmotivated ones). It seems that the ECtHR has already improved transparency to some extent through the publication of its Practice Direction on interim measures, a regularly updated Factsheet and its statistics regarding interim measures. At the same time it is clear that the Inter-American and African Courts show more transparency than the ECtHR in this regard. The Inter-American Commission too shows more transparency than the ECtHR. By contrast, the information provided by the UN treaty bodies and the African Commission is still very limited. These bodies do less in terms of reasoning and publication of their interim measures.206 Shelton concludes that ‘the legal systems put in place by the agreements the states wrote, have given human rights bodies the mandate and the obligation to carefully and fairly respond to imminent threats of irreparable harm. They should continue to do so when the facts and the law justify action’.207 As she explains, preventing irreparable harm to people is the ultimate purpose of all human rights regimes, but this does not mean that these regimes can ignore all procedural safeguards for states. It is exactly the adherence ‘to norms of procedure and having a transparent process’ that may enhance compliance with the interim measures of protection.208

11.5.5 Sufficiency of the Evidence and Staying within the Scope Each year, the ECtHR publishes statistics on the numbers of interim measures it declared ‘outside the scope’, ‘refused’ and ‘granted’ in the preceding year, while setting these off against the previous two years. In its classification, ‘refused requests’ concern requests that the Court considers insufficiently backed up by evidence of a real risk at this stage. When the Court determines that a request is ‘outside the scope’, this indicates something about whether the situation is worthy of the use of interim measures in the first place. In fact, all adjudicators have refused requests for interim measures for both reasons: for lack of evidence of risk at this stage and because the 206 As

pointed out by Harrington, the current rules of procedure of the UN bodies would already allow for publication of interim measures’ reasoning, Harrington, Chap. 6. 207 Shelton, Chap. 2. 208 Ibid.

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situation is not worthy of interim measures. The latter relates to the scope of the adjudicator’s interim measures and depends on the approach to their purpose, in the particular system, and on what, according to the adjudicator, constitutes irreparable harm.209 This section first singles out some issues involving evidence. Following this, it discusses the scope of interim measures. Often states challenge interim measures decisions not for the type of situation in which they are used, but because of the assessment of urgency pending the case. For instance, at one point some states were particularly unhappy about the interim measures in non-refoulement cases, so they joined forces and even appeared to suggest imposing quota on the ECtHR. Forcing the Court to deny requests for interim measures after a specific number would obviously ignore the principle of nonrefoulement and the underlying problems triggering the need for interim measures. Furthermore, it would undermine judicial independence and the right of individual petition.210 Moreover, it should also be noted that there would be less need for international adjudication if states took their primary responsibility in non-refoulement cases by providing full review and suspensive effect at the domestic level to avoid irreparable harm to persons in the first place. Nonetheless, in the context of evidentiary matters, it is posited that for an interim measure decision there should be at least some indication of the existence of the right invoked and of the risk of violation of that right. This implies that the right claimed should arguably exist, or ‘the violation alleged is at least arguable’,211 and there appears to be a real risk of irreparable harm. In the context of non-refoulement cases, Zwaan discusses the manner in which the ECtHR and UN Committees establish urgency and the underlying reasoning for interim measures decisions. She observes that they have ordered interim measures in similar types of cases such as risk of ill-treatment related to sexual orientation, risk of family vengeance, risk of being subjected to FGM, risk of social exclusion, risk of sexual exploitation and a health risk. Most orders for interim measures do not provide reasoning with regard to their risk assessment at this stage. Zwaan therefore examined the available merits and other decisions, from which she infers that at the stage of interim measures there has to be at least some likelihood of a real risk of violation of the right that is claimed on the merits.212 In practice, lawyers tend to turn to the ECtHR with requests for interim measures. Yet some lawyers seem to have found their way to the UN Committees for more specific topics. For instance, the case study on risk of FGM indicates that on the merits applicants may have a better chance of success before the CRC than before the ECtHR. Moreover, all adjudicators appear to be aware of the specific position

209 See

the contributions by Shelton, Chap. 2; Ebobrah, Chap. 5; Pillay, Chap. 4; Leach, Chap. 9; Prechal and Pahladshing, Chap. 3. 210 On the political pressure on the ECtHR, see Pillay, Chap. 4. 211 ESC Committee Guidelines, above n 148, para 3. 212 Zwaan, Chap. 7.

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of children, but the CRC obviously pays specific attention to risks for a child’s well-being.213 In a different context, Ebobrah refers to Liesbeth Zegveld and Mussie Ephrem v Eritrea,214 where Eritrea ‘challenged the veracity of the facts presented to the Commission and by extension, the need for indication of provisional measures in the matter’.215 He suggests that a satisfactory explanation of the African Commission underpinning the use of interim measures and the opportunity of those concerned to contest them could enhance the legitimacy of the order.216 Of course, this interim measure would not be a candidate for controversy beyond Eritrea, because it simply reminded the state of clearly pre-existing obligations. The state was neither called upon to do something extraordinary, nor was state responsibility implied. In such context, more detail in explanation might even be seen as prejudgment. Still, an indication of reasons would be useful. In its Guidelines, the ESC-Committee has paid specific attention to evidentiary matters. This offers a recent and interesting perspective, because of this Committee’s relatively new adjudicatory role. It notes the objective of interim measures, namely ‘to prevent irreparable damage, even in the absence of complete certainty that the damage will otherwise occur’. On the burden of proof for interim measures requests, it notes that the information provided must enable the Committee ‘to determine prima facie that there is a risk of irreparable damage and that the communication is admissible’.217 The applicant has to provide, where available, documentary evidence helping to substantiate the claim that there is a real risk of irreparable harm.218 The applicant has the burden to show ‘the reality of a risk of the damage occurring, and why, should the risk materialize, the damage would be irreparable’.219 Yet, in my view this Guideline should not be read as expecting applicants to be able to present 213 Zwaan,

Chap. 7. Liesbeth Zegveld and Mussie Ephrem v Eritrea, Merits decision November 2003, Communication 250/02, referring to urgent appeals of 3 May and 25 October 2002 and 10 June 2003, paras 9, 10, 15 and 19. In May 2002 the state responded that the petitioners were detained ‘in appropriate government facilities, had not been ill-treated, have had continued access to medical services and the government is making every effort to bring them before an appropriate court of law as early as possible’, para 12. 215 Ebobrah, Chap. 5. 216 Ibid. 217 Ibid., para 5. 218 Ibid., para 6: “The author bears the responsibility of providing the Committee with enough information on the relevant facts and alleged violations to establish a prima facie case of the existence of a risk of irreparable damage, including information about the absence of an effective domestic remedy capable of averting the irreparable damage. Such information must include, where available, documentary evidence such as copies of the relevant decisions of national authorities or relevant reports on the situation in the country that help to substantiate the claim that there is a real risk of irreparable damage. Authors have a duty to disclose in good faith all material facts and information relevant to the request for interim measures as in the case of the submission of communications under the Optional Protocol. Failure to disclose material information may result in the withdrawal of the request for interim measures.” 219 ESC-Committee Guidelines, above n 148, para 2. See also CRC Guidelines for interim measures (2019), above n 84, para 2b, stating that “irreparable damage” refers to a violation of rights which, 214 AComHPR,

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all existing evidence of irreparable harm at this early stage. At the stage of requesting interim measures, it is sufficient if they bring evidence to establish prima facie a real risk of irreparable harm. As to evidentiary matters in the context of structural human rights violations, Griffey’s case study shows the importance of human rights fact-finding and reporting in decision-making on the use of interim measures.220 This is also why Leach reiterates the importance of the use of interim measures to safeguard evidence for the integrity of the (quasi-)judicial proceedings.221 In any case, calling for more evidence is not the prerogative of states. States have themselves the obligation to safeguard evidence. They have the obligation to investigate and to report on violations and sometimes to allow and facilitate fact-finding missions. This may also apply pending international proceedings. The approach taken by adjudicators to the scope of situations in which interim measures are to be used can be too limited. This undermines their protective value by leaving protection gaps.222 A broadening of the application of the interim measures tool may be necessary to ensure protection of persons in vulnerable situations, to safeguard the rule of law, and maintain legitimacy within civil society.223 At the same time, the scope can also be too wide, which results, on its own, in undermining the legitimacy and thereby the protective value.224 The scope or the outer limits of the concept of interim measures is connected with normative legitimacy and the function of urgency tools in the specific system. Shelton expresses some concern about certain broadening of the scope by the Inter-American Commission, because this might indeed undermine the legitimacy of its precautionary measures.225 An example she provides of the broadened scope is a precautionary measure to ensure the capacity to stand for election.226 This type of situation would appear to move beyond the outer limits of the concept if it solely concerns one individual’s political rights. It would then seem too invasive to order domestic authorities, for instance, to postpone democratic elections. On the other hand, if the rule of law and political access of minorities is at stake, in a context of pervasive discrimination,227 it could be argued that hindrance of political rights due to their nature, would not be susceptible to reparation, restoration or adequate compensation. This also implies that, in principle, there is no domestic remedy that would be available and effective.” 220 Griffey, Chap. 8. 221 Leach, Chap. 9. 222 See Sect. 11.4.2. 223 See e.g. Pillay, Chap. 4; Leach, Chap. 8. See also Prechal and Pahladsingh, Chap. 3, on the interim measures by the CJEU and the types of situations in which it applies the accelerated preliminary question procedures. On filling protection gaps, one can also think of the immediate measures introduced by the European Committee of Social Rights, see Sect. 11.4.2. 224 See Shelton, Chap. 2; Ebobrah, Chap. 5; and Leach, Chap. 8. 225 Shelton, Chap. 2. 226 Idem, referring to IACHR, Gustavo Francisco Petro Urrego v Colombia, Resolution on Precautionary Measures, 18 March 2014, OAS Doc No.PM 374/13. 227 This is derived from Rieter 2010, p. 568.

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has a considerable impact on society as a whole and could be irreversible, therefore warranting interim measures. Thus, a broadening of the application of the urgency tools may be necessary to ensure protection of persons in vulnerable situations, to safeguard the rule of law, and maintain legitimacy within civil society.228 In such cases what should be guiding is whether the measures can be linked to a pre-existing rationale and whether basic criteria of procedural fairness are met. To the extent that there is no time for hearing the state, nor for adding extensive reasoning in the decision, it can be an option to issue temporary interim measures, or ‘urgent measures’, as suggested by Ebobrah for the African system,229 which can later be followed up by a more fully reasoned decision, where both parties have had the opportunity to submit their views.230 Meanwhile states are then legally bound to respect the temporary measures, as part of the good faith compliance with the human rights treaty and the complaint procedure accepted by it. This illustrates the interrelated nature of the criteria of remaining within the scope, being transparent and maintaining a fair procedure. In any case, it is crucial for their function that there is no politically motivated interference in the standards and procedures for the indication of interim measures.231 In practice, states often criticise the use of interim measures exactly because the political context, e.g. immigration, is sensitive. 232 While generally speaking they do not dispute the principle of non-refoulement, they may dispute the assessment of risk of irreparable harm in the case at hand.233 The fact that the subject matter of interim measures decisions can be politically sensitive does not as such take away from their normative legitimacy. As noted, there are classical reasons as well as newer, non-traditional contexts for which interim measures or other urgency tools have been used. Classical reasons are, for example, to halt expulsion or extradition,234 and to ensure access of a detainee to a lawyer or doctor and to medical care in general,235 or to protect against violence in detention.236 Other common reasons are to protect persons against death threats or to halt industrial developments that could cause irreparable harm to the cultural survival of indigenous peoples. 237 In addition, interim measures have been used, or their use 228 See e.g. Pillay, Chap. 4; Leach, Chap. 8. See also Prechal and Pahladsingh, Chap. 3 on the interim

measures by the CJEU and the types of situations in which it applies the accelerated preliminary question procedures. On filling protection gaps, one can also think of the immediate measures introduced by the European Committee of Social Rights, see Sect. 11.4.3. 229 Ebobrah, Chap. 5. 230 As noted, this is already the case for several UN Committees and one can think also of the preliminary provisional measures, or ‘urgent measures’ by the President of the Inter-American Court. 231 See Pillay, Chap. 4. 232 See e.g. Shelton, Chap. 2; Pillay, Chap. 4; and Ebobrah, Chap. 5. See also Sect. 11.3. 233 Zwaan, Chap. 7. 234 See Zwaan (Chap. 7), Harrington (Chap. 6), Prechal and Pahladsingh (Chap. 3), Pillay (Chap. 4). 235 See Leach (Chap. 9); Burbano Herrera and Haeck (Chap. 10); Griffey (Chap. 8). 236 See Burbano Herrera and Haeck (Chap. 10); Griffey (Chap. 8). 237 See Shelton (Chap. 2)

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has been proposed, in newer contexts equally involving imminent risk of irreparable harm. An example is to obtain access to justice and remedies pending the proceedings before the adjudicator. Generally, the claims concern achieving access of the petitioner to a lawyer and the right to be brought before a court. These habeas corpus rights are (indirectly) crucial for ensuring the right to life and personal integrity. After all, there can be clear risks of degrading treatment, torture and disappearance of persons detained without such access.238 In such contexts, the ECtHR has ordered interim measures to ensure access of lawyers to persons in a psychiatric hospital or a ‘Foreigners’ Admission and Accommodation Centre’.239 As for the type of human rights which can be protected by interim measures, various adjudicators have identified the elevated status of certain rights in merits decisions. Rights with this status should not be irreversibly harmed. This would result in irreparable harm to persons. Such core rights are clear candidates for protection through interim measures, in particular when in other systems adjudicators have already taken interim measures to protect these rights, pointing at a convergence in practice, as well as in theory.240 In this respect, the convergence in practices of the various adjudicators as discussed in this book appears to be persistent. Section 11.4.2 already mentioned situations related to the right to life and the prohibition of degrading treatment, such as protection against forced displacement, halting evictions and ensuring access to basic facilities. Indeed, in the context of economic, social and cultural rights—apart from the most extreme cases of apparently deliberate starvation of persons held in transit,241 based on anti-immigrant sentiments—there is a related issue that many European states are grappling with: access to basic facilities, especially for undocumented people.242 For alleged violations of economic, social and cultural rights, the newer complaint systems have introduced and defined the scope of the tool of interim measures.243 The ESC-Committee, in its newly adjudicatory role under the ICESCR-OP, notes that ‘[i]n line with the practice of other international human rights bodies’, ‘irreparable damage’ refers to ‘the threat or risk of a violation of a Covenant right that could not lead to a reparation in kind (full

238 See

Ebobrah, Chap. 5, See also Leach, Chap. 9 (also noting that the ECtHR ‘appears to be especially mindful of the position of children’, referring to the Sea Watch 3 Rule 39 with the specific requirement that the 15 unaccompanied minors who were on board should be given adequate legal representation). For earlier cases, see Rieter 2010, pp. 392–3. 239 See the discussion by Leach, Chap. 9. Here the right of individual application was at stake and therefore the integrity of the proceedings before the Court. Moreover, in the psychiatric hospital case the claim may have concerned arbitrary detention, but the circumstances also suggested degrading treatment. Moreover, the immigration case concerned a non-refoulement claim. 240 See further Rieter 2012. 241 See Chap. 1. 242 See Pillay (Chap. 4); Zwaan (Chap. 7). 243 As mentioned by Pillay, Chap. 4, the interim measures provision was included in the Protocol despite Japan’s argument against this inclusion.

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restitution) , and for which monetary compensation at a later stage would not be adequate’.244 The scope of application of interim measures is closely connected to their purpose. Pillay stresses that for the UN and regional human rights mechanisms the function of interim measures is not just to freeze the situation and prevent irreparable harm to one of the parties, but also to ensure that the mechanism can provide real and effective protection of the human rights guaranteed by its governing treaty and an effective remedy for breach of those rights. They derive their legitimacy from the common interest in the international rule of law, together with the imperative of protecting human rights guaranteed by treaty, through complaints mechanisms explicitly accepted by states.245 Ebobrah concludes that in its provisional measures in Ogiek the ACtHPR ‘introduced preservation of the integrity of the Court’s processes as an additional justification’ for ordering interim measures.246 As Shelton puts it, ‘preventing irreparable harm to the human beings, which is the absolute focal point of all human rights regimes’, will ‘protect the very objective of such procedures’ and, in addition, interim measures have the ‘institutional aim of helping to ensure that human rights procedures and bodies are effective.’247 Indeed, it appears that in addition to preventing irreparable harm to persons, interim measures aim to protect the integrity of the proceedings in human rights cases as well. Disrespect for these proceedings undermines access to justice and the rule of law internationally. In addition, interim measures have also been ordered to help ensure the rule of law in a particular system, such as the EU, or in the protection system under the ACHR. Examples are more atypical interim measures decisions, such as calling on a state to halt measures undermining domestic judicial independence.248 After all, domestic courts have an important role in the application of EU law. Moreover, in light of the principle of ‘primarity’, domestic courts are also

244 ESC-Committee Guidelines, above n 148. See also CRC Guidelines for interim measures (2019),

above n 84, para 2b, stating that “irreparable damage” refers to a violation of rights which, due to their nature, would not be susceptible to reparation, restoration or adequate compensation. This also implies that, in principle, there is no domestic remedy that would be available and effective.” 245 Pillay, Chap. 4. 246 Ebobrah, Chap. 5. This element is not mentioned as such in Article 27(2) of the Court’s Protocol. The ACtHPR ordered Kenya to immediately reinstate the restrictions it had imposed on land transactions in the Mau Forest and to refrain from any conduct that might irreparably prejudice the main application before the Court. It saw ‘a situation of extreme gravity and urgency as well as a risk of irreparable harm to the Ogiek’, an indigenous minority ethnic group in Kenya. Ebobrah observes that in its provisional measures order in Ogiek the ACtHPR took the conditions for interim measures as ‘conjunctive and cumulative’. Moreover, it also added the element of ‘prejudice to the substantive matter before the Court’. See ACtHPR, African Commission on Human and Peoples’ Rights v the Republic of Kenya, Order of Provisional Measures, 15 March 2013, 006/2012. 247 Shelton, Chap. 2. 248 See CJEU, Order of the Court (Grand Chamber) of 17 December 2018 in Case C-619/18R, Commission/Republic of Poland, ECLI:EU:C:2018:1021, as discussed by Prechal and Pahladsingh, Chap. 3.

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crucial in applying the ACHR.249 As to preserving the integrity of the proceedings before UN treaty bodies, the ESC-Committee, which has a quasi-judicial role based on the OP to ICESCR, has confirmed that the ‘reason for the existence of interim measures is, inter alia, to preserve the integrity of the process, thereby ensuring the mechanism’s effectiveness in protecting Covenant rights when there is a risk of irreparable damage’.250 Some courts have been authorised to order interim measures, or apply another urgency procedure, in a wide range of cases. It may also be that increased importance is attached to certain rights in a specific system. However, the contributions to this book referred to several examples of atypical interim measures, which do not appear to aim at preventing irreparable harm to persons, nor at preserving the integrity of the proceedings. They therefore seem to be situated beyond the scope of interim measures, especially given that interim measures are generally expected to be taken in exceptional circumstances. Although the background of some of these atypical orders may be a wish to prevent the entrenchment of a systemic problem or to ensure the integrity of the proceedings, the text of the measures does not really explain why the measures were necessary and why they did not prejudge the merits, nor why a less far-reaching measure was not ordered. Generally speaking, for instance, the judicial seizure of assets or other financial measures are reversible and addressing such state conduct pending the proceedings is therefore beyond the scope of interim measures.251 The next paragraphs refer to some cases that seem to be beyond the scope, although with reasoning some of them might turn out to be within the outer limits of the concept after all. It is not for the states, but for the adjudicators to address any unclear situations. They should retain enough flexibility to perform their judicial function and be able to address urgent situations pending the proceedings. Leach discusses two atypical cases involving press freedom, one ‘to halt the implementation of a supreme court judgment, amidst a struggle over control of the media’ and another ‘to protect the integrity of a journalist’s sources’.252 Because the ECtHR does not publish its interim measures, it is unclear whether its communications to 249 In that sense an interim measure could be called for when a domestic court is under threat. At the

same time, if an independent domestic court can properly monitor an urgent situation, there is no longer a need for international interim measures. See e.g. IACtHR Communities of Jiguamiandó and Curvaradó v Colombia, Order for provisional measures, 22 May 2013, Consid. Cl. 53–55, where the Court decided to lift its interim measures, in light of the principle of subsidiarity, including the knowledge that the Constitutional Court of Colombia will continue monitoring the situation. 250 ESC Committee, Gómez-Limón Pardo v Spain, 5 March 2020, Views, E/C.12/67/D/52/2018, para 10.2, referring to ESC-Committee S.S.R. v. Spain, inadm. decision, 11 October 2019, E/C.12/66/D/51/2018, paras 7.6 and 7.7 and Committee against Torture, Thirugnanasampanthar v. Australia, Decision of 9 August 2017, CAT/C/61/D/614/2014, para 6.1. 251 See Rieter 2010, pp. 584–585. 252 Leach, Chap. 8. He observes that the broad wording of Rule 39 allows for interim measures not just in the face of a risk of personal harm, but also of ‘irreparable damage’ to the applicant’s rights under the Convention. The aim is the preservation of the rights of the applicants under the ECHR, ‘avoiding irreversibility and ensuring their effective right of application to the Court – fundamental aspects of the right of access to justice’.

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the parties included some reasoning and the rationale of the measures is more difficult to discern.253 He also observes that ‘[n]ot infrequently, states’ responses leave a lot to be desired, although there is no particular evidence to suggest that states are disputing the legitimacy of the extended scope of interim measures’. This appears to be different in the African system. The orders of the ACtHPR are published and include reasoning. Moreover, as Ebobrah observes, they follow a clear structure and include important elements of motivation. This structure and motivation is lacking for the measures of the AComHPR. Yet Ebobrah considers that the Court’s provisional measures could also be improved as to explanation of evidence required and as to the scope of the measures, and points out the opportunities for enhancing their legitimacy.254 While most measures concern halting executions, detention contexts and other situations where alleged victims are facing risk to their life, personal integrity or indigenous land rights, in 2017 the ACtHPR ordered provisional measures to maintain the status quo and to avoid the applicant’s property being sold ‘until this application is heard and determined’.255 Other atypical cases are, for example, the interim measures ordered in 2020, for the suspension of a change of ownership and to halt the seizure of a building,256 to suspend the execution of an arrest warrant,257 and to suspend municipal elections.258 Furthermore, interim measures have been issued in the context of arbitrary detention claims, in order to obtain release pending the international proceedings.259 Shelton observes that in this context the scope may be too wide: ‘It has long been accepted that loss of liberty is not an irreparable injury, but may be compensated if it is later determined that the trial or law on which the incarceration was based,

253 Ibid. 254 Ebobrah, 255 ACtHPR,

Chap. 5. Woyome v Ghana, Order for Provisional Measures, 24 Nov 2017, Application no

001/2017. 256 ACtHPR, Kodeih v Benin, Order for provisional measures, 28 February 2020, 006/2020. See para 42: “The Court is of the view that it is endowed to issue orders for provisional measures not only in cases of “extreme gravity or urgency or when it is necessary to avoid irreparable harm” but also “in the interest of the parties or of justice‘. (T)he Court finds, that in the instant case there is a matter of extreme gravity or urgency, same as a risk of irreparable harm because the change is done through a new registration on the land title which will become final and unquestionable.“ See para 45. 257 ACtHPR, Soro & Others v Côte d’Ivoire, 22 April 2020. Côte d’Ivoire responded by announcing its withdrawal of its consent to the direct access of individuals to the ACtHPR. See Windridge 2020; and De Silva and Plagis 2020. 258 ACtHPR, Aïkoue Ajavon v Benin, Order, 17 April 2020, 062/2019. This Order followed an earlier provisional measures order (to stay the execution of a domestic judgment against the politician Ajavon), 7 December 2018; a merits judgment of 29 March 2019 (to quash his conviction) and a judgment on reparations of 28 November 2019. 259 For an older order by the IACtHR, see Rieter 2010, pp. 541–549.

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violated human rights standards’.260 She singles out another case that illustrates timesensitivity and the risk of prejudgment, in particular when using interim measures in cases not involving life or personal integrity.261 This was the precautionary measure, issued in 2014, aimed at halting the removal from office of an impeached mayor in Colombia. He was facing corruption charges. Shelton notes that by the time the Commission will reach the merits of the dispute, the mayor’s term of office will have been completed, so that the precautionary measures have likely rendered the case moot.262 Leach refers to an interim measure that ‘came as a surprise’. The ECtHR ordered the Georgian authorities to ‘abstain from interfering with the applicant company’s editorial policy in any manner’.263 This order was in place for more than two years, following which the Court found no violation on the merits. He notes that it is difficult to assess whether the interim measures were justified because the Court’s reasons are not known. Concerns for political pluralism and freedom of the media may have played a role. Based on another interim measures order referred to by Leach, the Ukrainian authorities should not access the data relating to the mobile phone of a journalist investigating corruption for Radio Free Europe.264 Pillay argues that the adjudicators should be able to take interim measures irrespective of the rights at issue, ‘through speedy, efficient and flexible procedures.’ She also argues that the criterion of exceptionality ‘needs to be interpreted in light of these imperatives’.265 In my view, she is right about the authority of the adjudicators and the need to have sufficient flexibility to be able to respond properly to allegations of risk of irreparable harm pending the procedure. At the same time, I would argue for caution when ordering interim measures involving just any of the rights in the human rights treaty in question. Any extension concerning rights other than those related to the right to life and the prohibition of torture and cruel treatment may need to be especially well reasoned. This may be why the adjudicators themselves often stress that their interim measures are reserved for exceptional circumstances. Such circumstances are then linked to the risk of irreparable harm to persons or to the integrity of the complaint proceedings. When references to ‘exceptional circumstances’ are included in the treaty text,266 the supervisory body necessarily needs to interpret these terms and apply them to concrete and factual situations. The CRC, when discussing ‘exceptional circumstances’ in the text of the Protocol, refers to a grave impact that an action or omission by a State party can have on a protected 260 Shelton, Chap. 2. See also Ebobrah’s discussion, Chap. 7, of ACtHPR, Konaté v Burkina Faso, Order for Provisional Measures, 4 Oct 2013, (2013) 1 AfCLR 310, para 19. 261 See also Sect. 11.5.3 on avoiding prejudgment. 262 Shelton, Chap. 2. 263 Leach, Chap. 8, referring to ECtHR Rustavi 2 Broadcasting Company Ltd and Others v. Georgia, Judgment, 18 July 2019, No. 16812/17, paras 229–235 (interim measures orders of 3 and 7 March 2017). 264 ECtHR Sedletska v Ukraine, No. 42634/18, communicated on 15 November 2018 (a decision by the Fourth Section of the Court). 265 Pillay, Chap. 4. 266 See Pillay on the political reasons for doing so, Chap. 4.

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right or on the eventual effect of a pending decision in a case or petition before the Committee.267 Ultimately, some atypical situations, not involving life and personal integrity, nor land rights of indigenous peoples, might still warrant interim measures. Yet this requires a clear and published motivation by reference to authoritative reports on structural problems, claims of problematic legislation, or threats to the independence of the judiciary. For instance, in the circumstances discussed in such reports, the impact of elections could be long-lasting and could entrench systemic situations. Furthermore, the customary statement that the adjudicator’s interim measures do not prejudge the merits should be included in the interim measures decision, with the normally implicit assurances that the parties will subsequently have the opportunity to bring arguments on any withdrawal or lifting, as well as, in the merits phase, on state responsibility. All of this relates to normative legitimacy but, as indicated, this is closely related to social legitimacy. It is clear that ordering interim measures in certain atypical circumstances remains extremely sensitive.268 However, the adjudicators themselves are best placed to determine whether interim measures are necessary. As part of their (quasi-)judicial functions, they should retain discretion to impose interim measures in appropriate cases where there is a risk of irreparable harm. After all, as Shelton points out: ‘The legal systems put in place by the agreements the states wrote, have given human rights bodies the mandate and the obligation to carefully and fairly respond to imminent threats of irreparable harm. They should continue to do so when the facts and the law justify action’.269

11.6 Concluding Remarks When faced with urgent situations in cases brought before them, adjudicators have the authority to take interim measures. In addition, there are some other urgency mechanisms, such as the accelerated preliminary ruling procedure developed by the CJEU, specific mechanisms to deal with reprisal, as well as possibilities for urgent intervention by treaty bodies independent of any case pending before them. This chapter, like most contributions, focussed on interim measures. They have the potential to protect people only when domestic authorities effectively implement them. Regularly, domestic sensitivities hinder this implementation. Other obstacles often constitute structural human rights problems and the fact that states sometimes 267 CRC

Guidelines for interim measures 2019, above n 84, para 2a. can be seen in the response by Benin to Ajavon v Benin, n 258 above where the Court unanimously ordered a suspension of Benin’s municipal elections planned for that same day (17 May 2020). Benin announced that it would withdraw its consent to the direct access to the ACtHPR. See also Amnesty International, ‘Benin: Withdrawal of individuals right to refer cases to the African Court a dangerous setback in the protection of human rights’, 24 April 2020, https://www.amnesty.org/en/latest/news/2020/04/benin-le-retrait-aux-individus-du-droit-desaisir-la-cour-africaine-est-un-recul-dangereux/ Accessed 19 May 2020. 269 Shelton, Chap. 2. 268 As

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cooperate to undermine the authority of the interim measures used, which is again related to the domestic sensitivities. Promptness is required for interim measures to have any protective potential at all. The Inter-American Commission and Court are dealing with a sizable case load involving very large groups of beneficiaries of precautionary and provisional measures, meaning a considerable burden in terms of monitoring, especially given the limited number of judges, Commissioners and staff involved. Nevertheless, thus far they have managed to make initial urgent decisions in a matter of hours or days. The question is whether the ECtHR, with its even larger case load (although generally not covering such large groups of people as in the Inter-American system), will be able to maintain its timeliness when it must add one or two lines of reasoning. The protective potential of interim measures is enhanced when the measures ordered are responsive to the alleged situation of danger of the alleged victims and sufficiently specific about what the state is expected to do. When urgent human rights situations arise in the face of societal controversy or indifference, or in the face of state security issues, or in the context of armed conflict, there is a heightened need for creative and situation-specific approaches. These approaches may include precisely formulated interim measures, especially aimed at securing evidence, or at access to humanitarian aid. On the other hand, a situation-specific approach could also mean giving considerable leeway to the state to determine the manner in which it will implement interim measures. In particular in relation to democratically decided domestic measures, in a context of general respect for the rule of law, it is important that provisional measures do not dictate the manner in which the required protection should be achieved.270 Another element enhancing the protective potential of interim measures is followup on compliance, by the adjudicators themselves, both during the case and upon conclusion. This way they show that they are serious about their own measures. The protective potential is also considerably enhanced when third parties monitor compliance too. This should be done immediately and consistently and by official authorities as well as NGOs. Follow-up by civil society may trigger follow-up by official international bodies. Such follow-up will be easier when the initial decision by the adjudicator addressing urgency is as persuasive as possible. The aforementioned criteria may all enhance the protective potential. Moreover, the normative legitimacy of interim measures decisions is an important aspect of their protective potential. Relevant cues for normative legitimacy include the authority of the adjudicator to decide on them in the first place, the manner in which the adjudicator expresses the binding nature of the measures and the respect shown for procedural fairness in the decision-making process. This means following an adversarial procedure where, on the one hand, the respondent state has the opportunity to contest a request for interim measures and, on the other hand, the applicant has 270 If

the domestic courts in question have judicial independence, and/or the democratic processes in the state indicate the ability and willingness of that state to take up the primary responsibility to act swiftly and accurately in response to a more generally phrased interim measure, the principle of subsidiarity would call for policy freedom in implementation.

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the opportunity to respond to a request by the state to the adjudicator to withdraw or lift the measures ordered. Moreover, to be as persuasive as possible, information on decisions by official bodies regarding urgent situations should be easily accessible and it should be sufficiently clear what the expected conduct of the state is. Finally, the manner in which the adjudicator explains interim measures is important. The decision should follow a structure referring to the legal basis, the obligatory nature, the consistency with earlier decisions and possibly also with the case law developed in other systems. They should show foreseeable and consistent application of adopted criteria for appropriate use. The evidentiary requirements and purpose should be clear and at the same time not prejudge the merits. States often have internal political reasons for being unhappy with urgent decisions. They may criticise the legitimacy of these decisions in order to placate a specific domestic audience or to excuse a failure in implementation. In the face of concerted pressure by groups of states, international adjudicators sometimes become timid in response. Moreover, they grapple with lack of time and resources, a steep case load, coupled with increasing claims of imminent harm requiring immediate action. Faced with such immediacy, sometimes they sacrifice proper procedure to act in urgent situations. The general workload may, to some extent, explain the lack of motivation and publication of interim measures decisions in the European and UN systems. Adjudicators are likely to prefer avoiding serious backlash against the rights holders and against the protection system as such. Yet not acting in urgent cases for fear of backlash, means not acting to prevent irreparable harm to persons pending the proceedings. This defeats the purpose of the available urgency tools and of the human rights complaint system as such. Instead, adjudicators should make sure that their use of these tools is as persuasive as possible. The normative legitimacy of interim measures decisions is important for the users of the system. Applicants are more likely to trust the system, and good faith state agents are more likely to take such interim measures seriously. Moreover, persuasive interim measures are simply more likely to trigger the interest of other UN or regional authorities, third states, and NGOs to follow-up on non-compliance and to contain sufficient practical basis for lobbying and other follow-up actions. Adjudicators should have in place a follow-up mechanism as well. This process should not just include a checklist, but an inquisitive eye and ear and an insistent and firm voice. Litigants cannot stop either after they had their interim measure request granted. They should be equally inquisitive and insistent and assist the adjudicators in this respect. The topic of urgent human rights adjudication is ongoing and in itself of continued urgency. It calls for continuing research and analysis, discussing the legitimacy and protective potential of interim measures and other urgency tools.

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References Apter SA (2003) Interim Measures in EC Law: Towards a Complete and Autonomous System of Provisional Judicial Protection before National Courts? Electronic Journal of Comparative Law, Vol. 7.2 Burbano Herrera C, Viljoen F (2016) Danger and Fear in Prison: Protecting the Most Vulnerable Persons in Africa and the Americas by Regional Human Rights Bodies Through Interim Measures. Netherlands Q. Hum. Rts. 33;163:163–193 CAT, Statement on reprisals, 51st Session, October-November 2013, CAT/C/51/3 CAT, Guidelines on the receipt and handling of allegations of reprisals against individuals and organizations cooperating with the Committee under articles 13, 19, 20 and 22 of the Convention, 55th session, July-August 2015, CAT/C/55/2 Center for Justice and International Law (CEJIL) and International Human Rights Law Clinic, University of California, Berkeley, School of Law (USA) (2012) Comparative Analysis of the Practice of Precautionary Measures Among International Human Rights Bodies, Submitted to Special Meeting of the Permanent Council of the Organization of American States, December 2012. https://www.law.berkeley.edu/files/IHRLC/Precautionary_Measures_Research_Paper_% 28FINAL%29_121210.pdf. Accessed 12 October 2019 Chairs human rights treaty bodies (2015) Guidelines against Intimidation or Reprisals (“San José Guidelines”), June 2015, HRI/MC/2015/6 CRC (2019) Guidelines for Interim measures under the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, adopted at its 80th session, 14 January to 1 February 2019 CRPD (2011) Working methods of the Committee on the Rights of Persons with Disabilities, adopted at its fifth session, 11-15 April 2011, CRPD/C/5/4 De Silva N, Plagis M (2020) A Court in Crisis: African States’ Increasing Resistance to Africa’s Human Rights Court. Opinio juris, 19 May 2020. https://opiniojuris.org/2020/05/19/a-court-in-cri sis-african-states-increasing-resistance-to-africas-human-rights-court/. Accessed 19 May 2020 Dzehtsiarou K (2016) Can the European Court of Human Rights prevent war? Interim measures in inter-state cases. Public Law Apr:254–271 ECtHR Press Unit (2020) Factsheet on interim measures. March 2020 ESC-Committee Guidelines on interim measures, adopted at its 66th session, Sept-Oct, 2019. https://www.ohchr.org/Documents/HRBodies/CESCR/Guidelineson_Interim_Measures. docx. Accessed 2 March 2020 HRCtee (2014) Report by the Special Rapporteur - The mandate of the Special Rapporteur on New Communications and Interim Measures CCPR/C/110/3, 6 May 2014 HRCtee (2019) Rules of Procedure CCPR/C/3/Rev.11, January 2019 IACHR (2012) Reply of the Inter-American Commission on Human Rights to the Permanent Council of the Organization of American States regarding the recommendations contained in the Report of the Special Working Group to Reflect on the Workings of the IACHR with a View to Strengthening the Inter-American Human Rights System Washington D.C., 23 October 2012 Koagne Zouapet A (2020) Victim of its commitment … You, passerby, a tear to the proclaimed virtue’: Should the epitaph of the African Court on Human and Peoples’ Rights be prepared? EJIL Talk, 5 May 2020. https://www.ejiltalk.org/victim-of-its-commitment-you-passerby-atear-to-the-proclaimed-virtue-should-the-epitaph-of-the-african-court-on-human-and-peoplesrights-be-prepared/. Accessed 7 May 2020 Leach P (2017) The right to life – interim measures and the preservation of evidence in conflict situations. In: Austin A, Chernishova O, Early L, Ovey C (eds) The Right to Life under Article 2 of the European Convention on Human Rights: Twenty Years of Legal Developments since McCann v. the United Kingdom. Wolf Legal Publishers Palchetti P (2017) Responsibility for breach of provisional measures of the ICJ: between protection of the rights of the parties and respect for the judicial function. Rivista di Diritto Internazionale, Anno C Fasc. 1:5–21

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Parliamentary Assembly Council of Europe (PACE), Committee on Legal Affairs and Human Rights (2014) Report Urgent need to deal with new failures to co-operate with the European Court of Human Rights, Doc. 13435, 28 February 2014 Pillay R (2019) Irreparable harm and ESC Rights: Immediate measures of the European Committee of Social Rights, Opinio Juris, 7 August 2019. https://opiniojuris.org/2019/08/07/ irreparable-harm-and-esc-rights-immediate-measures-of-the-european-committee-of-social-rig hts/. Accessed 12 January 2020 Rieter E (2010) Preventing Irreparable Harm: Provisional Measures in International Human Rights Adjudication. Intersentia, Antwerp Rieter E (2012) Provisional measures: binding and persuasive? Enabling human rights adjudicators to follow up on state disrespect? NILR 59, 165–198 Rieter E (2019) The ICJ and provisional measures involving the fate of persons. In: Kadelbach S, Rensmann T, Rieter E (eds) Judging international human rights, Courts of General Jurisdiction as Human Rights Courts. Springer, Heidelberg/Berlin, pp 128–170 Rieter E (2021) Autonomy of Provisional Measures. In: Palombino FM, Virzo R, Zarra G (eds) Provisional Measures Issued by International Courts and Tribunals. T.M.C. Asser Press, The Hague Rodley N (2001) Urgent action. In: Alfredson G et al. (eds) International human rights monitoring mechanisms. Nijhoff, The Hague, pp 279–283 Sinaniotis D (2006) The Interim Protection of Individuals Before the European and National Courts. European Monographs, Kluwer Law International Van Boven Th C (1994) Facing urgent human rights cases: Legal and diplomatic action. In: Lawson R, Blois M (eds) The Dynamics of the Protection of Human Rights in Europe: Essays in Honour of Henry G. Schermers. Martinus Nijhoff Publishers, 3:61–788 Van Boven Th C (2004) Urgent Appeals on behalf of Torture Victims. In: Libertés, Justice, Tolérance, Mélanges en hommage au Doyen Gérard Cohen – Jonathan. Bruylant, Brussels, pp. 1651–1666 Windridge O (2020) Under Attack? Under the Radar? Under-Appreciated? All of the Above? A Time of Reckoning for the African Court on Human and Peoples’ Rights Opinio Juris 07.05.20. https://opiniojuris.org/2020/05/07/under-attack-under-the-radar-under-appreciated-all-of-theabove-a-time-of-reckoning-for-the-african-court-on-human-and-peoples-rights/. Accessed 10 May 2020

Eva Rieter is senior researcher and lecturer public international law and human rights law in the Department of International and European Law at the Centre for State and Law, Radboud University Nijmegen, The Netherlands.

Table of Cases

Permanent Court of International Justice Electricity Company of Sofia and Bulgaria (Belgium v Bulgaria), Order, 5 December 1939, PCIJ Series A/B No 79

International Court of Justice (ICJ) Provisional Measures Orders Fisheries Jurisdiction Case (Federal Republic of Germany v Iceland), Order, 17 August 1972, ICJ Rep 1972, 30 Aegean Sea Continental Shelf Case (Greece v Turkey), Order, 11 September 1976, ICJ Rep 1976, 3 Passage through the Great Belt (Finland v Denmark), Order, 29 July 1991, ICJ Rep 1991, 12 Application of the International Convention for Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v Russia), Order, 19 April 2017, ICJ Rep 2017, 104 Jadhav case (India v Pakistan), Order, 18 May 2017, ICJ Rep 2017, 231 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar), Order, 23 January 2020 (not yet reported)

Judgments Case Concerning the Northern Cameroons (Cameroon v United Kingdom), Preliminary Objections, 2 December 1963, ICJ Rep 1963, 15 © T.M.C. Asser Press and the authors 2021 E. Rieter and K. Zwaan (eds.), Urgency and Human Rights, https://doi.org/10.1007/978-94-6265-415-0

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Nuclear Tests Case (Australia v France), Judgment on jurisdiction and/or admissibility, 20 December 1974, ICJ Rep 1974, 253 LaGrand (Germany v United States of America), Judgment, 27 June 2001, ICJ Rep 2001, 466 Case Concerning Legality of the Use of Force (Serbia and Montenegro v Belgium), Preliminary Objections, 15 December 2004, ICJ Rep 2004, 279 Avena II, (Mexico v US), Request for interpretation of the Judgment of 31 March 2004, judgment of 19 Jan 2009, ICJ Rep 2009, 3

International Tribunal for the Law of the Sea (ITLOS) Case concerning the Detention of Three Ukrainian Naval Vessels (Ukraine v Russian Federation), Order, 25 May 2019

UN Human Rights Committee (HRCtee) Hugo Rodríguez v Uruguay, View, 19 July 1994, CCPR/C/51/D/322/1988 Bautista de Arellana v Colombia, View, 27 October 1995, CPPR/C/55/563/1993 Chaparro v Colombia, View, 29 July 1997, CCPR/C/60/D/612/1995 Gauthier v Canada, View, 5 May 1999, CCPR/C/65/D/633/1995 Piandiong v the Philippines, View, 19 October 2000, CCPR/C/70/D/869/1999 Glen Ashby v Trinidad and Tobago, View, 21 March 2002, CCPR/C/74/D/580/1994 C. v Australia, View, 13 November 2002, CCPR/C/76/D/900/1999 Ahani v Canada, View, 29 March 2004, CCPR/C/80/D/1051/2002 Mansaraj and others v Sierra Leone, View, 3 April 2003, CCPR/C/77/D/1086/2002 Sholam Weiss v Austria, View, 15 May 2003, CCPR/C/77/D/1086/2002 Validzhon Khalilov v Tajikistan, View, 13 April 2005, CCPR/C/83/D/973/2001 Alzery v Sweden, View, 10 November 2006, CCPR/C/88/D/1416/2005 Kaba v Canada, View, 25 March 2010, CCPR/C/98/D/1465/2006 D.T. v Canada, View, 4 August 2011, CCPR/C/117/D/2081/2011 Lyubov Kovaleva and Tatyana Kozyar v Belarus, View, 7 November 2012, CCPR/C/106/D/2120/2011 N.S. v Russian Federation, View, 27 March 2015, CCPR/C/113/D/2192/2012 K.B. v Russia, View, 2 May 2016, CCPR/C/116/D/2193/2012 Q.A. v Sweden, View, 30 October 2019, CCPR/C/127/3070/2017 A.E. v Sweden, View, 13 March 2020, CCPR/C/128/D/3300/2019

Table of Cases

301

UN Committee against Torture (CAT) Mutombo v Switzerland, View, 27 April 1994, UN Doc CAT/C/12/D/13/1993 B.M’B v Tunisia, Decision (inadm.), 5 May 1994, CAT/C/14/D/14/1994 X. v Switzerland, View, 28 April 1997, CAT/C/18/D/27/1995 S.S.E. v Australia, View, 25 May 1999, CAT/C/22/D/120/1998 Rosana Nuñez Chipana v Venezuela, View, 10 November 1998, CAT/C/21/D/110/1998 TPS v Canada, View, 4 September 2000, CAT/C/24/D/99/1997 Attia v Sweden, View, 24 November 2003, CAT/C/31/D/199/2002 GK v Switzerland, View, 7 May 2003, CAT/C/30/D/219/2002 J.A.G.V. v Sweden, View, 18 November 2003, CAT/C/31/D/215/2002 Agiza v Sweden, View, 20 May 2005, CAT/C/34/D/233/2003 Mafhoud Brada v France, View, 24 May 2005, CAT/C/34/D/195 Dadar v Canada, View, 5 December 2005, CAT/C/35/D/258/2004 Nadeem Ahmad Dar v Norway, View, 16 May 2007, CAT/C/38/D/249 A.R.A. v Sweden, View, 1 May 2007, CAT/C/38/D/305/2006 Elif Pelit v Azerbaijan, View, 5 June 2007, CAT/C/38/D/281/2005 Sogi v Canada, View, 16 November 2007, CAT/C/39/D/297/2006 R.S. et al. v Switzerland, View, 19 January 2015, CAT/C/53/D/482/2011 F.B. v The Netherlands, View, 20 November 2015, CAT/C/56/D/613/2014 FB v the Netherlands, View, 15 December 2015, CAT/C/56/D/613/2014 R.O. v Sweden, Decision, View, 18 November 2016, CAT/C/59/D/644/2014 Thirugnanasampanthar v. Australia, Decision, 9 August 2017, CAT/C/61/D/614/2014 LM v Canada, View, 11 September 2018, CAT/C/63/D/488/2012 K. and K. v. The Netherlands, View, 3 May 2019, CAT/C/66/D/760/2016 M.J.S. v The Netherlands, View, 3 May 2019, CAT/C/66/D/757/2016

UN Committee on the Elimination of Discrimination Against Women (CEDAW) M.N.N. v Denmark, Decision (inadm.), 15 July 2013, CEDAW/C/55/D/33/2011 S.F.A. v Denmark, Decision (inadm.), 26 February 2018, CEDAW/C/69/D/85/2015 S.A.O. v Denmark, Decision (disc.), 29 October 2018, CEDAW/C/71/D/101/2016 R.S.A.A. v Denmark, View, 15 July 2019, CEDAW/C/73/D/86/2015

302

Table of Cases

UN Committee on Economic, Social and Cultural Rights (ESC-Committee) López Albán et al v Spain, View, 11 October 2019, E/C.12/66/ D/37/2018 SSR v Spain, Decision (inadm. and general recommendation concerning violation art. 5), 11 October 2019, E/C.12/66/D/51/2018 Gómez-Limón Pardo v Spain, View, 5 March 2020, E/C.12/67/D/52/2018

UN Committee on the Rights of the Child (CRC) I.A.M. v Denmark, View, 25 January 2018, CRC/C/77/D/3/2016 AL v Spain, View, 10 July 2019, CRC/C/81/D/16/2017 MT v Spain, View, 5 November 2019, CRC/C/82/D/17/2017

African Commission on Human and Peoples’ Rights (AComHPR) International PEN, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr) v Nigeria, merits decision of 31 October 1998, Communications 137/94-139/94-154/96-161/9, 12th Annual Activity Report, AHRLR 212/7 International Human Rights Reports 274 Association pour la Defence des Droits de l’Homme et des Libertés v Djibouti, Decision to close the case (amicable settlement), 11 May 2000, Communication 133/94 Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria, Merits decision, 15 November 1999, Comm Nos. 140/94, 141/94, 145/95 Amnesty International v Zambia, Merits decision, 5 May 1999, Communication 212/98, ACHPR 1 Interights et al (on behalf of Mariette Sonjaleen Bosch) v Botswana, Merits decision, 34th session, 6-20 November 2003, Communication 240/01 Zegveld and Ephrem v Eritrea, Merits decision, 34th session, 6-20 November 2003, Communication 250/02, 17th Annual Activity Report Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya, Merits decision of 4 February 2010, appl. No. 276 /2003

Table of Cases

303

African Court on Human and Peoples’ Rights (ACtHPR) Orders for Provisional Measures African Commission on Human and Peoples’ Rights v Libya (Libya 1), Order, 25 March 2011, 004/2011 African Commission on Human and Peoples’ Rights v Libya (Libya 2), Order, 15 March 2013, 002/2013 African Commission on Human and Peoples’ Rights v the Republic of Kenya (Ogiek case), Order, 15 March 2013, 006/2012 Konaté v Burkina Faso, Order, 4 October 2013, 2013/310 Guehi v Tanzania, Order, 18 March 2016, 2016/587 Rajabu & Others v Tanzania, Order, 18 March 2016, 007/2015, 1AfCLR 590 Woyome v Ghana, Order, 24 November 2017, 001/2017 Ajavon v Benin, Order, 7 December 2018, 062/2019 Kodeih v Benin, Order, 28 February 2020, 006/2020 Aïkoue Ajavon v Benin, Order, 17 April 2020, 062/2019 Soro & Others v Côte d’Ivoire, Order, 22 April 2020, 012/2020 Ajavon v Benin, Order, 17 May 2020, 062/2019

Judgments Ajavon v Benin, Judgment, (merits), 29 March 2019, 062/2019 Ajavon v Benin, Judgment (reparations), 28 November 2019, 062/2019

Inter-American Commission on Human Rights (IACHR) Minors in the San Pedro de Sula Prison v Honduras, Precautionary Measures, 22 October 1996, 11/491 Political Prisoners in Buildings 1 and 2 of the National Model Prison in Bogotá (Colombia), Precautionary Measures, 11 May 2000, 129/00 Kimi Domicó and other members of the Embera Katio indigenous communities of Alto Sinú (Colombia), Precautionary Measures, 4 June 2001, Annual Report of the IACHR 2001, OEA/Ser./L/V/II.114 doc. 5 rev, para 17 255 Minors Who Were Previously Being Held at the Panchito López Reeducation Center for Minors (Paraguay), Precautionary Measures, 8 August 2001, 174/01 Detainees held by the United States in Guantánamo Bay, Precautionary Measures, 12 March 2002, 259/02, 41 ILM (2002), 532 Inmates in the Urso Branco Prison v Brazil, Precautionary Measures, 14 March 2002, 394/02

304

Table of Cases

108 inmates in the Maximum Security Prison at Kilometer 14 v Colombia, Precautionary Measures, 18 March 2004 Convicted and tried inmates committed to the Penitentiary of Mendoza and its offices v Argentina, Precautionary Measures, 3 August 2004, 792/04 Detainees held by the United States in Guantánamo Bay, Extension of Precautionary Measures, 28 October 2005, 259/02 Inmates at the Polinter Police Station in Río de Janeiro v Brazil, Precautionary Measures, 11 November 2005, 172/05 Detainees at Toussaint Louverture Police Station in Gonaïves v Haiti, Precautionary Measures, 16 June 2008, 144/07 Emilio Palacio, Carlos Nicolás Pérez Lapentti, Carlos Pérez Barriga and César Pérez Barriga v Ecuador, Precautionary Measures, 21 February 2011, 406/11 Indigenous Communities of the Xingu River Basin, Pará (Brazil) (Belo Monte case), Precautionary Measures, 1 April 2011, 382/10 Penitentiary Services Buenos Aires Province v Argentina, Precautionary Measures, 13 April 2012, 104/12 Detainees held by the United States in Guantánamo Bay, Extension of Precautionary Measures, 23 July 2013, 259/02 Gustavo Francisco Petro Urrego (Colombia), Precautionary Measures, 18 March 2014, 374/13 Fernando Alcibíades Villavicencio Valencia et al. (Ecuador), Precautionary Measures, 24 March 2014, 30/14 Teribe and Bribri of Salitre Indigenous People, Costa Rica, Resolution on Precautionary Measures, 30 April 2015, 16/15

Inter-American Court of Human Rights (IACtHR) Orders for Provisional Measures Velásquez Rodríguez v. Honduras, Order of 15 January 1988 Chunima Human Rights Activists v Guatemala, Order, 1 August 1991 Loayza-Tamayo v Peru Order, 2 July 1996 Loayza-Tamayo v Peru, Order, 13 September 1996 Loayza-Tamayo v Peru, Order, 11 November 1997 Constitutional Court v Peru, Order of the President, 7 April 2000 Constitutional Court v Peru, Order, 7 August 2000 Haitian and Haitian-Origin Dominican Persons in the Dominican Republic, Order, 7 August 2000 Álvarez et al. v Colombia, Order, 10 August 2000 James et al. v Trinidad and Tobago, Order, 16 August 2000 Haitian and Haitian-Origin Dominican Persons in the Dominican Republic, Order, 18 August 2000

Table of Cases

305

Álvarez et al. v Colombia, Order, 12 November 2000 James et al. v Trinidad and Tobago, 24 November 2000 Peace Community of San Jose de Apartado v. Colombia, Order of the President, 9 October 2000, confirmed by Order of 24 November 2000 Loayza-Tamayo v Peru, Order, 13 December 2000 Loayza-Tamayo v Peru, Order, 3 February 2001 Haitian and Haitian-Origin Dominican Persons in the Dominican Republic, Order, 26 May 2001 Álvarez et al. v Colombia, Order, 30 May 2001 Loayza-Tamayo v Peru, Order, 28 August 2001 La Nación Case v Costa Rica, Order, 7 September 2001 James et al. v Trinidad and Tobago, Order, 3 September 2002 Pueblo Indigena de Sarayaku v Ecuador, Order, 6 July 2004 Boyce and Joseph v Barbados, Order, 17 September 2004 Pueblo Indigena de Sarayaku v Ecuador, Order, 17 June 2005 Matter of Children and Adolescents Deprived of Liberty in the Complexo do Tatuapé of FEBEM v Brazil, Order, 4 July 2006 Case of the Miguel Castro-Castro Prison v Peru, Order, 29 January 2008 Matter of “Globovisión” Television Station v Venezuela, Order, 29 January 2008 Cárcel de Urso Branco v Brasil, Order, 2 May 2008 Matter of Monagas Judicial Confinement Center (La Pica) regarding Venezuela, Order, 24 November 2009 Matter of Yare I and Yare II Capital Region Penitentiary Center regarding Venezuela, Order, 24 November 2009 Matter of the Penitentiary Center of the Central Occidental Region (Uribana Prison) regarding Venezuela, Order, 24 November 2009 Matter of Capital El Rodeo I & El Rodeo II Judicial Confinement Center regarding Venezuela, Order, 24 November 2009 Matter of the Peace Community of San José de Apartadó v Colombia, Order, 30 August 2010 Matter of the Socio-Educational Internment Facility regarding Brazil, Order, 25 February 2011 Matter of Centro Penitenciario de Aragua ‘Carcél de Tocorón’ regarding Venezuela, Order, 15 May 2011 Matter of the Socio-Educational Internment Facility regarding Brazil, Order, 1 September 2011 Matter of the Socio-Educational Interment Facility regarding Brazil, Order, 26 April 2012 Matter of Wong Ho Wing regarding Peru, Order, 26 June 2012 Matters of Certain Penitentiary Centers of Venezuela, Order, 6 September 2012 Matter of Centro Penitenciario of the Andina Region regarding Venezuela, Order, 6 September 2012 Matter of the Socio-Educational Interment Facility regarding Brazil, Order, 20 November 2012

306

Table of Cases

Matter of the Penitentiary Center of the Central Occidental Region (Uribana Prison) regarding Venezuela, Order, 13 February 2013 Communities of Jiguamiandó and Curvaradó v Colombia, Order, 22 May 2013 Matter of the Socio-Educational Interment Facility regarding Brazil, Order, 21 August 2013 Matter of the Socio-Educational Interment Facility regarding Brazil, Order, 29 January 2014 Matters of Certain Penitentiary Centers of Venezuela, Order, 13 November 2015 Curado Complex (in Recife) v. Brazil, Order, 23 November 2016 Matters of the Socio-Educational Internment Facility, of the Penitentiary Complex of Curado, of the Penitentiary Complex of Pedrinhas and the Criminal Institute of Plácido de Sá Carvalho regarding Brazil (Instituto Penal Plácido de Sá Carvalho v Brazil), Order, 13 February 2017 Matter of the Criminal Institute of Plácido de Sá Carvalho regarding Brazil, Order, 31 August 2017 Milagro Sala v Argentina, Order, 23 November 2017 Instituto Penal Plácido de Sá Carvalho v Brazil, Order, 22 November 2018 Seventeen Persons Deprived of Liberty v Nicaragua, Order of the President, 21 May 2019 Caso Durand y Ugarte v Perú, Order, 8 February 2018 Case of the Massacres of El Mozote and surrounding areas v El Salvador, Order of the President, 28 May 2019 Case of the Massacres of El Mozote and surrounding areas v El Salvador, Order of the President, 3 September 2019

Judgments Neira Alegría and others v Peru, Judgment, 19 January 1995 Suárez Rosero v Ecuador, Judgment, 12 November 1997 Villagrán Morales and others (Street Children) v Guatemala, Judgment, 19 November 1999 Durand and Ugarte v Peru, Judgment, 16 August 2000 Bamaca Velasquez v Guatemala, Judgment, 25 November 2000 Cantoral Benavides v Peru, Judgment, 3 December 2001 Hilaire, Constantine and Benjamin et al. v Trinidad and Tobago, Judgment, 21 June 2002 Bulacio v Argentina, Judgment, 18 September 2003 Maritza Urrutia v Guatemala, Judgment, 27 November 2003 Gómez-Paquiyauri Brothers v Peru, Judgment, 8 July 2004 Ricardo Canese v Paraguay, Judgment, 3 August 2004 Juvenile Reeducation Institute v Paraguay, Judgment, 2 September 2004 Tibi v Ecuador, Judgment, 7 September 2004 De la Cruz Flores v Peru, Judgment, 18 November 2004

Table of Cases

307

Lori Berenson Mejía v Peru, Judgment, 25 November 2004 Lori Berenson Mejía v Peru, Judgment, 23 June 2005 Acosta Calderón v Ecuador, Judgment, 24 June 2005 García Asto and Ramírez Rojas v Peru, Judgment, 25 November 2005 Wong Ho Wing v Peru, Judgment, 22 June 2006 Ximenes Lopes v Brazil, Judgment, 4 July 2006 Montero Aranguren and others v Venezuela, Judgment, 5 July 2006 Servellón-García v Honduras, Judgment, 21 September 2006 Penal Miguel Castro Castro v Peru, Judgment, 25 November 2006 Boyce and Joseph v Barbados, Judgment, 20 November 2007 Women Victims of Sexual Torture in Atenco v Mexico, Judgment, 28 November 2018

European Commission on Human Rights (ECHR) Application of the ECHR to the Island of Cyprus (Greece v United Kingdom), Decision, 26 September 1958, App no, 176/56 Denmark, Norway, Sweden and the Netherlands v Greece, Decision, 5 November 1969, App nos 3321/67, 3322/67, 3323/67 and 3344/67

European Court of Human Rights (ECtHR) Ireland v The United Kingdom, Judgment, 18 January 1978, App no 5310/71 Soering v The United Kingdom, Judgment, 7 July 1989, App no 14038/88 Cruz Varas and Ors v Sweden, Judgment, 20 March 1991, App no 15576/89 Loizidou v Turkey, Preliminary Objections, 23 March 1995, App no 15318/89 D. v. the United Kingdom, Judgment, 2 May 1997, App no 30240/96 Bottazzi v Italy, Judgment, 28 July 1999, App no 34884/97 Jabari v Turkey, Judgment, 11 July 2000, App no 40035/98 Al-Adsani v The United Kingdom, Judgment, 21 November 2001, App no 35763/97 ˇ Conka v Belgium, Judgment, 5 February 2002, App no 51564/99 Abraham Lunguli v Sweden, Decision, 1 July 2003, App no 33692/00 Mamatkulov and Askarov v Turkey, Judgment, 4 February 2005, App nos 46827/99 and 46951/99 Shamayev and others v Georgia and Russia, Judgment, 12 April 2005, App no 36378/02 Öcalan v Turkey, Judgment, 12 May 2005, App no 46221/99 Aoulmi v France, Judgment, 17 January 2006, App no 50278/99 Popov v Russia, Judgment, 13 July 2006, App no 26853/04 Olaechea Cahuas v Spain, Judgment, 10 August 2006, App no 24668/03

308

Table of Cases

Collins and Akaziebie v Sweden, Decision, 8 March 2007, App no 23944/05 Evans v The United Kingdom, Judgment, 10 April 2007, App no 6339/05 Bitiyeva and X v Russia, Judgment, 21 June 2007, App nos 57953/00 and 37392/03 Shtukaturov v Russia, Judgment, 27 March 2008, App no 44009/05 N. v. the United Kingdom, Judgment GC, 27 May 2008, App no 26565/05 X v Croatia, Judgment, 17 July 2008, App no 11223/04 NA v the United Kingdom, Judgment, 17 July 2008, App no 25904/07 Hossein Kheel, Decision, 16 December 2008, App no 34583/08 Aleksanyan v Russia, Judgment, 22 December 2008, App no 46468/06 F.H. v. Sweden, Judgment, 20 January 2009, App no 32621/06 A and others v The United Kingdom, Judgment, 19 February 2009, App no 3455/05 Ben Khemais v Italy, Judgment, 24 February 2009, App no 246/0 Paladi v Moldova, Judgment, 10 March 2009, App no 39806/05 Grori v Albania, Judgment, 7 July 2009, App no 25336/04 Abdollahi v Turkey, Decision, 3 November 2009, App no 23980/08 M. v. the United Kingdom, Decision, 1 December 2009, App no 16081/08 Al-Saadoon and Mufdhi v The United Kingdom, Judgment, 2 March 2010, App no 61498/08 Tehrani and others v Turkey, Judgment, 13 April 2010, App nos 32940/08, 41626/08, 43616/08 Neulinger and Shuruk v Switzerland, Judgment, 6 July 2010, App no 41615/07 DB v Turkey, Judgment, 13 July 2010, App no 33526/08 N. v Sweden, Judgment, 20 July 2010, App no 23505/09 Y.P. and L.P. v. France, Judgment, 1 September 2010, App no 32476/06 M.S.S. v Belgium and Greece, Judgment, 21 January 2011, App no 30696/09 Izevbekhai v Ireland, Decision, 17 May 2011, App No 43408/08 Omeredo v Austria, Decision, 20 September 2011, App No 8969/10 Makharadze and Sikharulidze v Georgia, Judgment, 22 November 2011, App no 35254/07 Georgia v Russia II, Admissibility Decision, 13 December 2011, App no 38263/08 Othman (Abu Qatada) v The United Kingdom, Judgment, 17 January 2012, App No 8139/09 Babar Ahmed and others v The United Kingdom, Judgment, 10 April 2012, App No 24027/07 Yordanova and others v Bulgaria, Judgment, 24 April 2012, App no 25446/06 X. v The Netherlands, Communicated Case, 12 June 2012 (with Statement of facts, referring to Rule 39 decision of 14 June 2012), App No 404/11 B v Belgium, Judgment, 10 July 2012, App no 4320/11 A.S.B. v the Netherlands, Decision, 10 July 2012 App no 4854/12 Rrapo v Albania, Judgment, 25 September 2012, App no 58555/10 Knecht v Romania, Judgment, 2 October 2012, App no 10048/10 Abdulkhakov v Russia, Judgment, 2 October 2012, App no 14743/11 RR and others v Hungary, Judgment, 4 December 2012, App no 19400/11 Salakhov and Islyamova v Ukraine, Judgment, 14 March 2013, App no 28005/08 Savriddin Dzhurayev v Russia, Judgment, 25 April 2013, App no 71386/10

Table of Cases

309

Nizomkhon Dzhurayev v Russia, Judgment, 3 October 2013, App no 31890/11 Trabelsi v Belgium, Judgment, 4 September 2014, App no 140/10 M.A. v. Switzerland, Judgment, 18 November 2014, App no 52589/13 Amirov v Russia, Judgment, 27 November 2014, App no 51857/13 Raji and others v Spain, Decision, 16 December 2014, App no 3537/13 Say˘gı v Turkey, Judgment, 27 January 2015, App no 37715/11 Khloyev v Russia, Judgment, 5 February 2015, App no 46404/13 W.H. v. Sweden, Judgment GC, 8 April 2015, App no 49341/10 Mukhitdinov v Russia, Judgment, 21 May 2015, App no 20999/14 H.N. v the Netherlands, Decision, 31 March 2015, App No 20651/11 Lambert and others v France, Judgment, 5 June 2015, App no 46034/14 A.E. v. Finland, Decision, 22 September 2015, App no 30953/11 Sow v Belgium, Judgment, 19 January 2016, App no 27081/13 Soares de Melo v Portugal, Judgment, 16 February 2016, App no 72850/14 Andrey Lavrov v Russia, Judgment, 1 March 2016, App no 66252/14 F.G. v. Sweden, Judgment GC, 23 March 2016, App no 43611/11 Yunusova and Yunusov v Azerbaijan, Judgment, 2 June 2016, App no 59620/14 R.B.A.B. a.o. v The Netherlands, 7 June 2016, App No 7211/06 R.D. v France, Judgment, 16 September 2016, App No 34648/14 Kondrulin v Russia, Judgment, 20 September 2016, App no 12987/15 Paposhvili v Belgium, Judgment GC, 13 December 2016, App no 41738/10 Semenova v Russia, Judgment, 3 October 2017, App no 11788/16 Soumah v The Netherlands, Decision, 15 December 2017, App No 61452/15 MA v France, Judgment, 1 February 2018, App no 9373/15 MK and others v France, Communicated case, 24-26 July 2018 (with Statement of facts, referring to Rule 39 decision), App no 34349/18, 34638/18, 35047/18 Sedletska v Ukraine, Decision, 15 November 2018, App no 42634/18 Rustavi 2 Broadcasting Company Ltd and others v Georgia, Judgment, 18 July 2019, App no 16812/17 A.S.N. a.o. v The Netherlands, Judgment, 25 February 2020, App no 68377/17, 530/18 S.A. v. The Netherlands, Judgment, 2 June 2020, App no 49773/15 M.S. v. Slovakia and Ukraine, Judgment, 11 June 2020, App no 17189/11

European Committee of Social Rights Conference of European Churches (CEC) v. the Netherlands, Complaint No. 90/2013, Decision on Immediate Measures of 25 October 2013 European Federation of National Organisations working with the Homeless (FEANTSA) v. the Netherlands, Complaint No. 86/2012, Decision on Immediate Measures of 25 October 2013

310

Table of Cases

International Commission of Jurists (ICJ) and European Council for Refugees and Exiles (ECRE) v Greece, Decision on Admissibility and on Immediate Measures, 23 May 2019, Complaint No 173/2018 Amnesty International v Italy, Decision on Admissibility and on Immediate Measures, 4 July 2019, Complaint No 178/2019

European Union Court of Justice of the European Union Orders (PPU and Interim Measures Orders) European Commission/Atlantic Container Line AB and others, Order of the President of the Court, 19 July 1995, C-149/95 P(R) José Maria Sison, Order of the President of the Court of First Instance, 15 May 2003, T-47/03 R IATA and ELFAA, Order of the Court, 24 September 2004, C-344/04 Friesland Coberco Dairy Foods, Order of the Court, 18 March 2005, C-11/05 Laval un Partneri, Order of the Court, 15 November 2005, C-341/05 Kozlowski, Order of the Court, 22 February 2008, C-66/08 Metock and others, Order of the Court, 17 April 2008, C-127/08 Pontini, Order of the Court, 29 September 2008, C-375/08 Football Association Premier League et al. and Murphy, Order of the Court, 3 December 2008, Joined Cases C-403/08 and C-429/08 Attanasio Group, Order of the Court, 4 December 2008, C-384/08 Accor, Order of the Court, 19 October 2009, C-310/09 Lesoochranárske zoskupenie, Order of the Court, 23 October 2009, C-240/09 Almamet, Order of the President of the General Court, 7 May 2010, T-410/09 R Melki and Abdeli, Order of the Court, 12 May 2010, Joined Cases C-188/10 and C-189/10 Chatzi, Order of the Court, 12 May 2010, C-194/10 NS, Order of the Court, 1 October 2010, C-411/10 Bibi Mohammad Imran, Order of the Court, 10 June 2011, C-155/11 PPU Dereci and others, Order of the Court, 9 September 2011, C-256/11 ZZ, Order of the Court, 10 October 2011, C-300/11 Pringle, Order of the Court, 4 October 2012, C-370/12 Abdullahi, Order of the Court, 5 October 2012, C-394/12 Akzo Nobel, Order of the President of the General Court, 16 November 2012, T-345/12 R Evonik Degussa, Order of the President of the General Court, 16 November 2012, T-341/12 R

Table of Cases

311

French Republic/European Commission, Order of the Vice-President of the Court, 21 January 2014, C-574/13 P(R) Luxembourg Pamol, Order of the President of the General Court, 13 February 2014, T-578/13 R G, Order of the President of the Court, 6 May 2014, C-181/14 Sánchez Morcillo and Abril García, Order of the President of the Court, 5 June 2014, C-169/14 Kossowski, Order of the Court, 27 November 2014, C-486/14 European Commission/Vanbreda Risk & Benefits, Order of the Vice-President of the Court, 23 April 2015, C-35/15 P(R) Gogova, Order of the Court, 3 July 2015, C-215/15 Davis et al., Order of the Court, 1 February 2016, C-698/15 Pesce et al., Order of the Court, 13 April 2016, Joined Cases C-78/16 and C-79/16 Jafari, Order of the Court, 15 February 2017, C-646/16 Mengesteab, Order of the Court, 15 February 2017, C-670/16 MAS and MB, Order of the Court, 28 February 2017, C-42/17 European Commission v. Republic of Poland, Order of the Vice-President of the Court, 27 July 2017, C-441/17 R European Commission v. Republic of Poland, Order of the Court (Grand Chamber), 20 November 2017, C-441/17 R Bosworth & Hurley, Order of the Court, 29 November 2017, C-603/17 CV v. DU, Order of the Court, 10 April 2018, C-85/18 PPU VQ v. European Central Bank, Order of the President of the General Court, 3 May 2018, T-203/18 R C., J. and S, Order of the Court, 5 July 2018, C-269/18 PPU FR, Order of the Court, 27 September 2018, C-422/18 PU European Commission v. Republic of Poland, Order of the Vice-President of the Court, 19 October 2018, C-619/18 R Wightman, Order of the Court, 19 October 2018, C-621/18 European Commission v. Republic of Poland, Order of the President of the Court, 15 November 2018, C-619/18 Krajowa Rada S˛adownictwa, Order of the Court, 26 November 2018, Joined Cases C-585/18, C-624/18 and C-625/18 CJEU, European Commission v. Republic of Poland, Order of the Court (Grand Chamber), 17 December 2018, C-619/18 R

Judgments Rewe, Judgment of the Court, 16 December 1976, Case 33-76 Factortame, Judgment of the Court, 19 June 1990, C-213/89 Zuckerfabrik, Judgment of the Court, 21 February 1991, Joined Cases C-143/88 and C-92/89 Atlanta, Judgment of the Court, 9 November 1995, C-465/93 Jippes, Judgment of the Court, 12 July 2001, C-189/01

312

Table of Cases

Safalero, Judgment of the Court, 11 September 2003, C-13/01 Unibet, Judgment of the Court (Grand Chamber), 13 March 2007, C-432/05 Leymann and Pustovarov, Judgment of the Court, 1 December 2008, C-388/08 PPU Dominic Wolzenburg, Judgment of the Court (Grand Chamber), 6 October 2009, C-123/08 Kadzoev, Judgment of the Court, 30 November 2009, C-357/09 PPU Purrucker, Judgement of the Court, 9 November 2010, C-296/10 Gaetano Mantello, Judgement of the Court (Grand Chamber), 16 November 2010, C-261/09 Joseba Andoni Aguirre Zarraga, Judgment of the Court, 22 December 2010, C-491/10 PPU Barbara Mercredi, Judgment of the Court, 22 December 2010, C-497/10 PPU El Dridi, Judgment of the Court, 28 April 2011, C-61/11 PPU Achughbabian, Judgment of the Court (Grand Chamber), 6 December 2011, C329/11 NS and ME et al., Judgment of the Court (Grand Chamber), 21 December 2011, Joined Cases C-411/10 and C-493/10 Health Service Executive, Judgment of the Court, 26 April 2012, C-92/12 PPU M.M., Judgment of the Court, 22 November 2012, C-277/11 Radu, Judgment of the Court (Grand Chamber), 29 January 2013, C-396/11 HID and BA, Judgment of the Court, 31 January 2013, C-175/11 Melloni, Judgment of the Court (Grand Chamber), 26 February 2013, C-399/11 Jeremy F., Judgment of the Court, 30 May 2013, C-168/13 PPU MA, BT and DA, Judgment of the Court, 6 June 2013, C-648/11 M.G. and N.R., Judgment of the Court, 10 September 2013, C-383/13 PPU Spasic, Judgment of the Court (Grand Chamber), 27 May 2014, C-129/14 PPU Mahdi, Judgment of the Court, 5 June 2014, C-146/14 PPU Abdida, Judgment of the Court (Grand Chamber), 18 December 2014, C-562/13 Francis Lanigan, Judgment of the Court (Grand Chamber), 16 July 2015, C237/15 PPU Taricco, Judgment of the Court (Grand Chamber), 8 September 2015, C-105/14 Shiraz Baig Mirza, Judgment of the Court, 17 March 2016, C-695/15 PPU Niculaie Aurel Bob-Dogi, Judgment of the Court, 1 June 2016, C-241/15 Council of the European Union v. Front Polisario, Judgment of the Court (Grand Chamber), 21 December 2016, C-104/16 P CK, HF and AS, Judgment of the Court, 16 February 2017, C-578/16 PPU X and X, Judgment of the Court (Grand Chamber), 7 March 2017, C-638/16 PPU (text rectified by Order of 24 March 2017) Slawomir Andrzej Zdziaszek, Judgment of the Court, 10 August 2017, C-271/17 PPU Gnandi, Judgment of the Court (Grand Chamber), 19 June 2018, C-181/16 LM, Judgment of the Court (Grand Chamber), 25 July 2018, C-216/18 PPU Milev, Judgment of the Court, 19 September 2018, C-310/18 PPU RO, Judgment of the Court, 19 September 2018, C-327/18 PPU

Table of Cases

313

UD, Judgment of the Court, 17 October 2018, C-393/18 PPU TC, Judgment of the Court, 12 February 2019, C-492/18 PPU European Commission v. Republic of Poland, Judgment of the Court (Grand Chamber), 24 June 2019, C-619/18

Canada Supreme Court of Canada (SCC) Mugesera v Canada (Minister of Citizenship and Immigration), Judgment, 28 July 2005, 2005 SCC 40, [2005] 2 SCR 100 Suresh v Canada (Minister of Citizenship and Immigration), Judgment, 11 January 2002, 2002 SCC 1, [2002] 1 SCR 3

Federal Court (FC) Bachan Singh Sogi v Canada (Citizenship and Immigration), Judgment, 23 June 2006, IMM-2889-06 & IMM-3175-06, 2006 FC 799 Dadar v Canada (Minister of Citizenship and Immigration), Judgment, 24 March 2006, IMM-1470-06, 2006 FC 382 Gauthier v Canada (House of Commons), Judgment, 12 May 2006, T-460-06, 2006 FC 596 Re Jaballah, Judgment, 16 October 2006, DES-04-01, 2006 FC 1230 Mugesera v Canada (Minister of Citizenship and Immigration), Judgment, 11 January 2012, IMM-9680-11, 2012 FC 32 Sogi v Canada (Minister of Citizenship and Immigration), Judgment, 1 February 2007, IMM-2889-06 & IMM-3175-06, 2007 FC 108

Ontario Court of Appeal (ONCA) Ahani v Canada (Attorney General), Judgment, 8 February 2002, C37565 & M28156, 58 OR (3d) 107

314

Table of Cases

Ontario Superior Court (ONSC) Galganov v Russell (Township), Judgment, 20 August 2010, 08-CV-41980, 2010 ONSC 4566

Quebec Superior Court (QCCS) Dumont v Quebec (Attorney General), Judgment, 17 July 2009, 500-05-067084-010, 2009 QCCS 3213 Mugesera v Kenney, Judgment, 23 January 2012, 500-17-069829-120, 2012 QCCS 116

United States of America (US) US Supreme Court Brown v Plata, Judgment, 23 May 2011, No. 09–1233, 563 U. S. 493 (2011)

Index

A Abuse of authority, 228 Access to court and counsel, 259, 260 effective remedies, 182, 193 information, 4, 201, 247, 275, 280 justice, 2, 170, 219, 288, 289 lawyer, 98, 102, 199, 205, 209, 211 Accountability vacuum, 165, 176 Action for annulment, 40 Adversarial balance, 95, 96, 103, 105, 276, 277 Adversarial nature, 275 African Union, 11, 28, 87–89, 269 Aggravated, 34, 129, 148, 269 Aggravation, 266, 270 Amendment procedure, 78–80 Area of Freedom, Security and Justice, 39, 50, 58, 59, 61 Armed conflict, 2, 8, 10, 12, 33, 145, 161, 162, 164, 167–170, 176, 182, 197, 199, 217, 220, 248, 255, 264, 266, 294 Asylum, 8, 47, 50, 53, 56, 57, 77, 79, 140, 141, 148, 151, 153, 156

B Belo Monte, 26, 82, 255, 304 Binding nature, 4, 65, 67, 68, 70–73, 77, 78, 120, 134, 272, 273, 280, 294 Breach of good faith, 116 Brighton conference, 78, 80, 81 Brighton declaration, 32, 80 Broader spectrum, 202 Brussels Conference, 81 Brussels Declaration, 81, 207

C Case study, 12, 89, 117, 136, 142, 145, 151, 158, 161, 162, 247, 264, 284, 286 Cessation, 164, 187, 195 Child custody, 11, 37 Child protection, 205, 219 Children’s rights, 11, 263 Choice of forum, 12, 136, 157, 158 Citizen’s arrest, 174 Civilian population, 164, 165, 167, 178, 183, 184, 193, 218 Collective dimension, 230 Committee against Torture, 11, 12, 69, 70, 115–117, 120–126, 129–132, 134– 136, 144, 202, 247, 251 Committee on the Rights of the Child, 12, 67, 70, 85, 135, 136, 144, 145, 149, 152, 155, 158, 263, 274, 284, 292 Compliance, see non-compliance Compliance assessment, 20 Conservatory, 116 Consistency, 4, 5, 280, 281, 295 Constitutional principle, 127, 236 Consultation process, 83, 84, 118, 119 Counter-terrorism, 66 Crimea, 161–163, 167, 168, 183, 184, 186, 188–194, 217, 218, 264 Crime against humanity, 165, 167 Custody, 11, 37, 39, 50, 51, 58, 59, 104, 173–175, 178, 226

D Death penalty, 24, 28, 94, 96, 97, 102, 104, 106, 107, 110, 211, 260, 276 Death row, 28, 104 Death sentence, see death penalty

© T.M.C. Asser Press and the authors 2021 E. Rieter and K. Zwaan (eds.), Urgency and Human Rights, https://doi.org/10.1007/978-94-6265-415-0

315

316 Death threats, 173, 250, 251, 260, 287 Decentralised model, 38 Deportation, 28, 60, 69, 77, 116, 118, 121, 125–127, 129–131, 140, 141, 142, 145, 149, 150, 197, 210, 216, 219 Deprivation of liberty, 226–228, 236, 239– 241, 243 Detainee, 8, 10, 13, 33, 34, 98, 102, 103, 107, 169–175, 178, 185, 187, 193, 194, 197, 199, 205, 209, 210, 212– 215, 219, 223–226, 229–233, 235, 237, 239–243, 247, 255, 260, 287 Detention asylum detention, 48, 50, 210 Detention conditions, 13, 96, 223–225, 229, 230, 234, 238, 243, 279 Disappearance, 24, 70, 144, 145, 165, 169, 170, 172, 179, 180, 186, 195, 253, 259, 288 Discretion, 42, 44, 86, 116, 177, 293 Discretionary nature, 200 Dispute settlement, 6, 20, 21 Domestic enforcement, 127 Domestic legal effect, 125, 126, 128 Domestic sensitivities, 254, 255, 293, 294 Donetsk, 168 Due diligence, 167, 178, 180–182, 194 Due process, 34, 82, 109, 236, 276 Duration, 39, 54, 56, 167, 203, 214 E Economic development, 18, 34, 255 Economic hardships, 228 Emergency accommodation, 204 Enforced disappearances, 70, 144, 145, 180, 195, 253 Enforcement, 2, 12, 20, 23, 38, 39, 45, 71, 131, 161, 163, 174, 176, 179, 183, 185, 187, 188, 193 European Committee for the Prevention of Torture, 174, 228 European Committee of Social Rights, 67, 271 Evictions, 29, 67, 101, 192, 204, 219, 261, 262, 288 Evidence, 12, 22, 56, 105, 111, 129, 130, 155, 182, 183, 186, 187, 194, 201, 217, 219, 236, 246, 248, 266, 270, 271, 283–286, 291, 294 Exceptional circumstances, 41, 56, 57, 79, 80, 85, 125, 126, 143, 216, 290, 292 Executive, 18, 108, 109, 111, 112, 125, 127, 177, 255, 269, 272, 276

Index Executive branch, 125, 127 Executive interference, 109, 276 Exhaustion, exhausted of domestic remedies, 116 Ex officio, 52, 229 Ex parte application, 96, 276 Expedited, 10, 34, 37, 43, 44, 54–61, 79, 95, 187 Expedition, 124 Ex post facto review, 213, 220 Expression freedom of, 103, 201, 206, 265 Expulsion, 2, 12, 29, 76, 79, 80, 116–118, 124, 135–137, 140, 141, 143, 145– 148, 153, 156, 158, 199, 250, 287 Extradition, 66, 72, 76, 77, 116, 118, 121, 124, 125, 129, 133, 145, 152, 153, 197, 208, 219, 272, 282, 287

F Facilities, basic, 2, 247, 262, 288 Failure to fulfil obligations, 42 Fair trial, 45, 61, 107, 137, 166, 205, 219, 226, 229, 258 Family life, 50, 59, 137 Female Genital Mutilation (FGM), 12, 136, 139, 142, 149, 151, 152, 154–156, 158, 284 Follow-up, 25, 28, 80, 161, 183–185, 189, 194, 220, 245, 247, 251, 254, 260, 264, 265, 267–270, 294, 295 Forced displacement, 261, 288 Formalism, 119, 272, 273 Freedom of expression, 103, 201, 206, 265 Full effect, 121 Full effectiveness, 40, 46 Fumus boni juris, 40, 43 Functional perspective, 116

G General comment(s), 68, 117–119, 121, 145, 155–157 General court, 10, 37, 39–42, 60 Good faith, 66, 68, 69, 73, 85, 116, 118, 121, 127, 134, 145, 146, 270, 272, 287, 295 Gross violations, 147, 275 Guarantees of non-repetition, 180, 181

H Hierarchy, 38

Index House arrest, 238, 239 Housing, right to, 262 Human dignity, 225, 228 Hypothetical harm, 41

I Illegitimacy, 67, 117 Illusory, 127, 148 Immigration, 10, 11, 32, 34, 37, 50, 53, 77, 79, 125, 128, 130, 282, 287 Imminent risk, 24, 85, 137, 156, 193, 199, 229, 288 Implied powers, 17, 18, 20, 21, 23, 24, 32 Impunity, 167, 180, 184, 185 Incidental, 22, 38, 107, 158 Inconsistency, 200 Independence (of the judiciary), 19, 22, 58, 79, 162, 168, 225, 248, 275, 293 Indigenous peoples, 10, 67, 247, 261, 287, 293 Informal, 4, 170, 172, 185, 200 Inherent powers, 10, 21, 22, 271 Inhuman or degrading treatment, 47, 50, 118, 139, 145, 151, 153, 170, 181, 184, 228, 229 Injunctions, 19, 44, 126, 204 Instituto Penal Plácido de Sá Carvalho, 223, 230, 231, 233, 234, 238–240, 243, 244 Integrity of the proceedings, 202, 248, 249, 273, 289, 290 Interlaken declaration, 77 Interlocutory injunction, 116 Internally displaced, 8, 169 International humanitarian law, 33, 169, 181 Inter-State complaints, 162, 183, 184, 195 Investigation, 102, 147, 175, 178–183, 187, 194, 206, 217, 219, 227, 242, 274, 280 In vitro fertilisation, 203 Izmir Conference, 79, 207 Izmir Declaration, 78, 79

J Journalists, 29, 96, 103, 168, 170, 171, 206, 207, 219, 279, 290, 292 Judicial independence, 3, 6, 22, 43, 198, 265, 284, 289 Jurisdiction, 5, 6, 9, 17, 21–24, 50, 52, 75, 100, 110, 127, 130, 139, 148, 150, 153, 163, 167, 179, 182, 183, 190,

317 191, 193, 195, 219, 223, 234, 269, 271, 272, 281

L Land rights, 10, 261, 267, 291, 293 Legal certainty, 43, 280 Legal effect, 67, 72, 82, 117, 126, 129, 166, 214 Letters of Reprisal, 252 Life project, 227 Livelihood, 101 Luhansk, 168

M Mandate, 17–19, 21, 22, 25, 33, 34, 73, 93, 124, 167, 254, 271, 283, 293 Media, 96, 175, 185, 198, 205, 206, 215, 219, 255, 256, 269, 290, 292 Medical care, 2, 75, 103, 143, 163, 204, 212, 214, 238, 260, 279, 287 Medical treatment, see medical care Migration crisis, 204 Minors, 2, 149, 150, 211, 226, 227, 231 Monitored liberty, 238, 239 Motivation, 4, 93, 112, 170, 248, 275, 280– 283, 291, 293, 295

N National court, 13, 21, 38–40, 45, 46, 48–50, 53, 54, 56–58, 60, 104, 111, 112, 117, 119, 129, 133, 223, 234, 282 National remedies, 38, 79, 80 National security, 18, 32, 34, 126, 128, 130, 148, 210, 211, 255 Necessity, 31, 39, 71, 92, 134, 150, 151, 227, 243, 279, 281 Non-binding, 54, 120, 122, 126–128, 145 Non-compliance, 13, 28, 70, 75, 76, 89, 106, 109, 110, 116, 118, 146, 188, 199, 208, 219, 246–248, 255, 256, 258, 267–270, 272, 276, 295 Non-contentious procedure, 38 Non-international armed conflict, 170, 182

O Objective impediment, 75, 212 Office of the UN High Commissioner for Human Rights, 165, 168–172, 174, 175, 177–179, 182, 185, 189–191

318 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, 84, 122, 262, 288, 290 Overcrowding, 13, 225, 228, 230, 231, 233– 239, 241–243, 279

P Parent/child relationship, 51, 52 Pecuniary compensation, 41 Peer learning, 105 Periodic penalty payment, 44 Plurality, 198, 206 Policy, 66, 75, 121, 125, 206, 236, 237, 242, 243, 292 Political activists, 171, 175 Political pressure, 3, 163, 193, 282 Political sensitivity, 67 Power of attorney, 210 PPA (expedited procedure), 10, 37, 39, 43, 48, 54–61 PPU (urgent procedure), 10, 37, 39, 48, 50–55, 58–61 Prejudge, 30, 102, 230, 279, 290, 293, 295 Prejudgment, 27, 246, 248, 270, 275, 279, 285, 292 Preliminary report, 49 Preservation, 12, 102, 116, 200–203, 217, 219, 289, 296 Presumption of innocence, 175, 227, 243 Preventive role, 229 Prima facie, 5, 30, 40, 43, 122, 150, 229, 285, 286 Primary purpose, 21, 202 Principle of effective judicial protection, 45, 46, 60 Principle of effectiveness, 45, 46 Principle of equivalence, 45 Principle of sincere cooperation, 46 Principle of subsidiarity, 79 Principle of the best interests of the child, 227 Prisoners of war, 163, 175, 191 Procedural fairness, 4, 22, 287, 294 Proper administration of justice, 11, 19, 22, 202 Property, right to, 170 Proportionality, 164, 227, 235, 243 Proprio motu, 100–102, 104, 105, 268, 277 Protection gaps, 8, 9, 12, 161, 162, 167, 193, 245, 260, 263, 264, 286 Protective role, 133, 230, 282

Index Psychological damage, 51 R Rapporteur for new complaints and interim measures, 124 Reasoning, 12, 47, 61, 83, 93, 96, 98, 99, 112, 136, 137, 144, 146, 152, 156, 158, 202, 239, 268, 273, 281–284, 287, 290, 291, 294 Reception, see national reception of international law Release, 34, 50, 98, 103, 163, 164, 178, 184, 186, 187, 191, 236–239, 250, 279, 291 Removal cases, 198, 208 Restitution, 202, 289 Return decision, 45, 47, 48, 52 Return directive, 11, 37, 47, 58 Rights of the child, see children’s rights Right to health, 170, 229 Right to life, 28, 50, 119, 151, 153, 170, 180, 184, 187, 202, 227, 229, 263, 266, 288, 292 Right to personal integrity, 229 Rule of confidentiality, 132 Rule of law, 2, 9, 11, 22, 25, 42, 44, 85, 86, 165, 176, 198, 208, 237, 248, 265, 266, 271, 273, 286, 287, 289, 294 Rule of strict deference, 129 Rules of court, 24, 66, 70, 74, 78–80, 136, 137, 140–143, 268, 272 Rules of procedure, 10, 17, 18, 24–27, 30, 38, 42, 48, 53–55, 58–60, 65, 68, 69, 73, 83, 90–92, 109, 116, 119, 122, 123, 132, 153, 154, 252, 256, 272, 273, 276, 282 S Sanitary conditions, 228 Shelling incidents, 168 Special Rapporteur on torture, 165, 180 Specificity, 5, 157, 163, 183–185, 245, 254, 260, 266, 267 State disregard, 117 State resistance, 199, 207 State responsibility, 72, 167, 192, 194, 285, 293 Structural problems, 264–266, 293 Survival, 101, 235, 242, 287 Suspension, 39, 41, 98, 137, 147, 189, 206, 259, 262, 291 Suspensive effect, 46, 47, 61, 284

Index Suspensory effect, 39, 47 Systemic violations, 163, 198, 264, 265 T Temporary, 19, 45, 83, 116, 130, 133, 210, 233, 282, 287 Temporary stay of proceedings, 130 Timeliness, 94, 99, 122, 259, 275, 277, 294 Time-sensitive, 3, 292 Transparency, 11, 18, 31, 82, 84, 105, 115, 117, 132–134, 200, 246, 275, 280, 281, 283 Treaty-based, 91, 92, 144 U Uniform interpretation, 38

319 Urgency mechanism, see urgent action method Urgent action method, 247 Urgent appeal, 93, 95, 98, 109, 111, 251, 254, 276

V Validation, 5, 259, 260

W War crimes, 165, 167, 172, 173, 181, 182, 185, 195 Well-being, 19, 34, 147, 150, 155, 158, 205, 212, 213