Provisional measures under the European Convention on Human Rights (ECHR) under threat of immediate expulsion
Provisional measures are a special instrument applied by the European Court of Human Rights (ECtHR) when a person claims to face an imminent risk of a violation of his or her rights under the European Convention on Human Rights. They are used in cases of particular urgency, such as a threat of immediate expulsion if the expulsion could put the person at risk of torture, inhuman or degrading treatment.
Legal basis for interim measures
Interim measures are applied under Article 39 of the ECtHR Rules of Procedure, which gives the Court the power to order interim measures in the interests of the parties or for the proper consideration of the case.
Cases in which interim measures are applied
Interim measures are mainly applied where there is a risk of a serious and irreparable violation of rights such as:
1. Article 2 ECHR – Right to life:
– If there is a risk of the person’s death as a result of the expulsion.
2. Art. 3 ECHR – Prohibition of torture and inhuman or degrading treatment:
– If the person is at risk of torture or inhuman treatment in the country to which they are to be expelled.
3.Article 8 ECHR – Right to respect for private and family life:
– If expulsion would result in family separation or violation of privacy.
Procedure for requesting interim measures
1. Filing a complaint with the ECHR:
– The person threatened with immediate expulsion must lodge a complaint with the ECtHR setting out the grounds for the violation of their Convention rights.
2. Request for interim measures:
– The request must specify that expulsion is imminent and may result in irreparable harm.
– Evidence of the risk must be provided, such as:
– Documentation of political persecution or violence in the country to which the person will be sent.
– Medical documentation if there is a health risk.
3. ECHR decision:
– The court may order the state to suspend the expulsion until the merits of the case are heard.
– Interim measures are binding on states as failure to comply may result in a violation of the Convention.
Consequences of ordering interim measures
1. Suspension of expulsion:
– The State is obliged to suspend the expulsion until the ECtHR has considered the case.
– This gives the person the opportunity to present further evidence and arguments in support of their complaint.
2. Prevention of irreparable harm:
– Measures to ensure that the person will not be at risk of torture, inhuman treatment or other serious violations of their rights.
3. Control by the ECtHR:
– The ECtHR can monitor compliance with interim measures ordered and take action against the state if they are breached.
Examples from ECtHR case law
1. Mamatkulov and Askarov v. Turkey (2005):
– The Court held that a state’s failure to comply with interim measures constituted a violation of Article 34 ECHR, which guarantees an effective right of appeal.
2. Soering v. United Kingdom (1989):
– The Court ordered the United Kingdom not to extradite a person to the United States where he was in danger of the death penalty.
3. Chahal v. United Kingdom (1996):
– ECtHR rules that expelling a person to a country where he is at risk of torture violates Article 3 ECHR.
Criteria for a successful defence
1. Availability of clear evidence:
– The person must provide specific evidence that demonstrates the risk of a violation of his or her rights.
2. Timeliness:
– The request for interim measures must be made as soon as it is clear that expulsion is imminent.
3. Cooperation with the Court:
– The person must provide all necessary information and respond to the Court’s requests.
Conclusion
Interim measures under Article 39 of the Rules of Procedure of the ECtHR are a key tool to protect the rights of persons facing imminent expulsion. They ensure that ECHR member states do not commit acts that may result in irreparable harm to the persons concerned. Compliance with these measures is binding on States and is proof of the primacy of human rights internationally.