In the interim in Strasbourg re: the crisis in Crimea

On March 13, 2014, Ukraine filed an inter-State application under Article 33 of the European Convention of Human Rights (“ECHR” or the “Convention”) against the Russian Federation in the European Court of Human Rights (“ECtHR”). Simultaneously, Ukraine submitted a request to impose interim measures against Russia. After reviewing such request, the President of the Court’s 3^rd Division (the Andorran Judge Josep Casadevall) immediately complied. He called “upon both Contracting Parties concerned to refrain from taking any measures, in particular military actions, which might entail the violation 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 and degrading treatment)”. Due to the current situation giving rise to a continuing risk of serious violations, Casadevall felt – according to the press release – compelled to do so with a view to preventing such violations.

The Court’s choice of words is reminiscent of some UN Security Council resolutions, which according to Article 25 of the UN Charter, are binding. Non-compliance with such resolutions constitutes a breach of public international law. So the question is: can in Strasbourg be achieved what would be impossible to achieve in New York due to Russia’s veto power in the UN Security Council?

Binding Force of Interim Measures

The Court’s competence to issue interim measures is not granted by the ECHR itself, but governed by Rule 39 of the Rules of Court, which the High Contracting Parties do not submit themselves to, but which are adopted by the Court itself in accordance with Article 25 literal “d” of the ECHR. It is, thus, derived consensual law. In light of this, the ECHR initially negated a binding effect of interim measures even after Protocol no. 11 came into effect. Following the “trend” set by the ICJ in the LaGrand case, there came, however, a judicial turnaround with the verdict in the case of Mamatkulov and Askarov v. Turkey. In this case, the ECtHR established – if not expressis verbis in substance – the binding force of interim measures. Its justification was, in established fashion, that the ECHR is an “instrument for the effective protection of human rights”, which has to be interpreted dynamically in the light of present-day conditions (living instrument–doctrine). In that opportunity, the ECHR referred to current practice of the ICJ, the United Nation’s Human Rights Committee, and the Inter-American Court of Human Rights. As interim measures are aimed at the avoidance of irreparable damage in securing effective examination of the application, non-compliance with these would undermine the right to individual application in accordance with Article 34 of the ECHR, and thereby the obligations accepted by the High Contracting Parties under Article 1 of the ECHR, to secure to everyone within their jurisdiction the rights and freedoms defined in section I of the Convention. Lastly, the ECtHR invoked Article 46 of the ECHR, and securing compliance with the final ruling by the Committee of Ministers as thwarted by non-compliance. The judicial path thus chosen – though not entirely uncontroversial – is today considered established, resulting in the use of the term “interim court order”, as in national law.

Interim measures issued in accordance with Rule 39 of the Rules of Court, are limited to urgent exceptional cases and are only dictated when the Court assumes there is an immediate risk of serious and irreversible harm to the applicant. The vast majority of such cases are – though not anymore exclusively –extraditions, expulsions, and deportations, where regularly rights granted by Articles 2 and 3 of the ECHR are under imminent threat. This applies to the present order, as the court urges to defend (in particular) these very rights.

Legal Consequences of mere Non-Compliance

But the ECtHR even went one step further by ruling, in the case of Olaechea Cahus v. Spain that non-compliance with the interim measures per se would result in a breach of the Convention. It assumed this to be the case, regardless of the fact that non-compliance with an interim measure did not lead, post facto, to an infringement of the right to application in accordance with Article 34of the ECHR. The Court confirmed this assumption in the case of Mostafa et al. v. Turkey. Thereby it elevates – and this is quite remarkable – a simple regulatory rule to the status of a Convention right, by linking Rule 39 of the Rules of Court, directly to Article 34 of the ECHR. The court’s argument here again is one of efficiency.

Transferability to Inter-State Applications

The question remains whether this judicial determination can be transferred to the ordering of interim measures in inter-state applications. Inter-state applications in accordance with Article 33 of the ECHR are closely related to individual applications, the main difference between the two being the appellant, which in this case is not an individual but a contracting state. Here, Ukraine does not assert rights itself, but postulates compliance with the rights and obligations arising from the ECHR as a treaty of international law. The argument is based on the violation of the obligations of public international law prescribed by the Convention – and this is how the ruling in Mamatkulov and Askarov v.Turkey can be interpreted – then, in a combination of Articles 1, 46, and 34 the latter could be exchanged for Article 33 ECHR. Since while proceedings in cases of individual or inter-state applications are repressively and retrospectively conceived, this is precisely not the case with the Convention System as a whole. It is therefore irrelevant whether compliance with the contract states’ obligation arising from Article 1 ECHR, to protect (here) the rights under Articles 2 and 3 ECHR, is called upon through interim measures in conjunction with an individual or inter-state application.

What Now?

Thus far it cannot be determined on which specific criteria the court based its imposition of interim measures. On one hand, this is due to the fact that interim measures are not published with official court reasons (something that in my opinion contributes massively to the problem of non-compliance). On the other hand, the Ukrainian Government’s application entered under Article 33 of the ECHR is not yet accessible, rendering it hard to give a prognosis regarding its chance of success. A first idea of the critical questions arising in the course of the application is given by Philip Leach who dealt with the issue discussed here in his post last Wednesday. Marten Breuer, in his blog post, justifiably raises the question whether this might be a case of “legal forum shopping” and if the ICJ in The Hague might not have been the better “addressee”. Additionally, it remains unclear whether the participants will comply with the court order – something that seems doubtful, considering the lessons learned both from the conflict between Russia and Georgia and from Russia’s and Ukraine’s compliance histories.