Interim Measures at the ECtHR: Balancing Urgency and Justice in Human Rights Protection (Rule 39 Order)

Interim measures—judicial orders aimed at preserving the status quo pending the resolution of a dispute—represent a critical, albeit exceptional, instrument within the framework of international litigation. Recently, the European Court of Human Rights (ECtHR) amended its Rules of Court concerning the issuance of such measures, specifically revising Rule 39 . The updated rule is now in effect, accompanied by a revised Practice Direction and a factsheet , the latter of which, while informative, lacks legal authority.

Despite the sweeping textual revisions, these amendments are unlikely to trigger a substantive transformation in the Court’s established practices, entrenched as they are in longstanding jurisprudence. Yet, the persistent challenges of defining the scope and ensuring the enforcement of interim measures remain unresolved. The amendment to Rule 39, however, marks a crucial refinement—sharpening the clarity and enhancing the accessibility of the legal standards at play. It is imperative for applicants, States, and the Court itself to fully grasp the profound importance of this exceptional, yet indispensable, instrument within the European human rights framework.

Textual Revisions and Their Implications

The core modification centres on Rule 39(1). The prior text provided:

"The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 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."

This has been supplanted by the new text of Rule 39(1):

"The Court may, in exceptional circumstances, whether at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted. Such measures, applicable in cases of imminent risk of irreparable harm to a Convention right, which, on account of its nature, would not be susceptible to reparation, restoration or adequate compensation, may be adopted where necessary in the interests of the parties or the proper conduct of the proceedings." (emphasis added).

The revisions are conspicuous—particularly the inclusion of "exceptional circumstances" and the introduction of a threshold based on "imminent risk of irreparable harm to a Convention right." These textual changes might initially appear to erect a new barrier to the invocation of interim measures. However, in practice, they merely codify the standards that the Court has long applied.

Form Vs Substance

The amendment’s substantive impact lies in its codification of a threshold already articulated in the Court’s case law. Nearly two decades ago, in Mamatkulov and Askarov v. Turkey (2005) 41 EHRR 25, the Court observed at §104 (emphasis added):

"Interim measures have been indicated only in limited spheres. Although it does receive a number of requests for interim measures, in practice the Court applies Rule 39 only if there is an imminent risk of irreparable damage. While there is no specific provision in the Convention concerning the domains in which Rule 39 will apply, requests for its application usually concern the right to life (Article 2), the right not to be subjected to torture or inhuman treatment (Article 3) and, exceptionally, the right to respect for private and family life (Article 8) or other rights guaranteed by the Convention. The vast majority of cases in which interim measures have been indicated concern deportation and extradition proceedings."

The language now enshrined in the revised Rule 39 mirrors this jurisprudential standard. While the new Rule introduces the phrase "exceptional circumstances," this is arguably redundant in light of the stringent criteria of "imminent" and "irreparable." Moreover, as delineated below, the issuance of interim measures has always been the exception, even when requested. The revised Rule also refers to the necessity of such measures, which likely has minimal impact on the Court's established practices.

Mamatkulov and Askarov was also the first case in which the ECtHR determined that non-compliance with interim measures constitutes a violation of the Convention itself. It is this decision, rather than any specific provision of the Convention, that imbues such measures with binding force under international law. The Court reaffirmed this principle in Paladi v. Moldova (app. no. 29806/05). Despite occasional critiques as an overreach of judicial authority, this principle has endured for nearly twenty years without State repudiation.

Practical Consequences

It is difficult to envisage scenarios where the recent amendment will materially alter the adjudication of requests for interim measures. The new Rule 39 might ostensibly narrow the latitude for a judge to deviate from the Court’s established practice by indicating measures absent an imminent risk of irreparable harm or where such measures are not strictly "necessary." Yet, this would address a problem that, in reality, does not exist. International judges rarely act capriciously, and States retain the prerogative to petition the Court to reconsider measures indicated in such exceptional circumstances.

Indeed, requests for interim measures are more frequently denied than granted. Between 2021 and 2023, only 2,745 out of 7,676 requests were successful (36%). Of these, 2,047 pertained to Belgium, primarily concerning its treatment of asylum seekers (as illustrated by Camara v. Belgium, app no. 49255/22). In contrast, 18 States had no interim measures indicated against them during this period.

In cases involving the United Kingdom, between 2021 and 2023, only 11 out of 178 requests (6%) were successful. Current debates in the UK, particularly regarding interim measures in asylum cases (notably the proposed "Rwanda" scheme), are unlikely to be affected by the changes to Rule 39. The forced removal of a person in violation of their Article 2 or 3 rights remains the quintessential scenario where the Court will indicate interim measures. The updated Practice Direction underscores the necessity of exhausting domestic remedies with suspensive effect before seeking the Court’s intervention. However, once these remedies are exhausted, the ECtHR may indeed step in to safeguard the applicant's rights.

The amendment's value lies in its ability to clarify, without altering, the Court’s approach. The rule of law demands clarity and accessibility, and the revised Rule 39 more accurately and transparently reflects the Court’s actual practice. In this respect, it is a commendable codification of the existing case law.

Unresolved Challenges

The recent amendment is notable as much for what it omits as for what it includes.

The amendment does not meaningfully define what constitutes "interim measures." An order preventing the removal of a person to a jurisdiction where their Article 2 or 3 ECHR rights face imminent and irreparable harm is relatively straightforward. However, as scholars such as Dzhetsiarou and Tzevelekos have examined, other cases are far more complex.

For instance, in matters concerning press freedom, the Court has previously indicated measures instructing Georgia not to shut down a television station and prohibiting Ukrainian authorities from accessing a journalist’s sources. Interim measures, therefore, serve both to protect individual rights and to safeguard broader democratic principles. This raises significant questions about the scope of measures the Court may indicate, particularly given that such requests are often made ex parte. It remains to be seen whether the Court will invoke the "necessity" criterion as a limiting factor.

In addition to scope, enforcement and effectiveness remain thorny issues that the Rules of Court alone cannot resolve. In 2020, the Court ordered Russia to facilitate the transfer of Alexei Navalny to Germany for medical treatment . While Navalny was transferred and treated, he was subsequently reimprisoned upon his return to Russia. In 2021, further interim measures called for Navalny’s release due to threats to his life, which Russia disregarded. In 2023, Navalny died in a Russian "corrective colony."

The Future of Rule 39

The recent amendments to Rule 39 have codified and thereby clarified the threshold for the issuance of interim measures. While the threshold itself may remain unchanged, this will ultimately be demonstrated by the Court’s treatment of future applications. For those applicants, adherence to the new Rule and Practice Direction will be crucial to the likelihood of success.

For the Court, the exercise of this authority remains delicate, as State non-compliance—despite its illegality—undermines the Court’s legitimacy. And for States that may chafe under this authority, they must consider the implications of outright defiance.?

Q&A

What is an interim measure or Rule 39 order issued by the European Court of Human Rights (ECtHR)?

An interim measure, also known as a Rule 39 order, is an urgent order issued by the European Court of Human Rights in exceptional circumstances to prevent imminent risks of irreparable harm. An interim measure will preserve and protect the rights and interests of the parties involved in a case before the Court.?

Under what circumstances are interim measures typically requested?

Rule 39 applications typically involve safeguarding the right to life (Article 2) and protecting individuals from torture or inhuman and degrading treatment or punishment (Article 3). In rare instances, Rule 39 measures may also address the prohibition of slavery and forced labor (Article 4) and the ban on imposing the death penalty (Article 1 of Protocol 6 and Protocol 13). The vast majority of cases in which interim measures have been indicated concern deportation and extradition proceedings.

Who bears the burden of proof in Rule 39 applications?

The burden of proof lies with the applicant, who must provide a detailed account of their situation and explain the reasons underlying their fear of being forcibly returned.

What must applicants prove in a Rule 39 application?

Applicants must establish that they face an imminent risk of irreparable harm, contrary to the ECHR.

How should the imminent risk of irreparable harm be proven?

The applicant should provide evidence of their current and future situation, supported by relevant past experiences. The Court also considers general information, such as UNHCR documentation and reports from recognized NGOs, but the focus should be on the applicant’s personal circumstances.

Is personal testimony sufficient to prove the risk of harm?

No, the applicant’s life story should be accompanied by documentary evidence. Mere expression of fear is rarely considered sufficient (ECtHR, M.S.S. v. Belgium and Greece, Appl. No. 30696/09, Grand Chamber Judgment of 21 January 2011, para. 104).

What level of proof is required in a Rule 39 application?

While Rule 39 requests are not expected to meet the full standard of proof required under Article 34 ECHR due to the urgency involved, applicants must demonstrate substantial grounds for believing there is a real risk of irreparable harm if they are forcibly returned.

What role does credibility play in Rule 39 applications?

The Court assesses the credibility of the applicant’s allegations by ensuring consistency between the individual application under Article 34 ECHR and the Rule 39 request. Early submission of all relevant documentation is crucial for establishing credibility and good faith.

How does the ECtHR handle requests for interim measures?

The Court deals with every request for interim measures as soon as possible, unless the request appears to be a delaying tactic. If a request is incomplete or insufficiently substantiated, the Court may decline to deal with it. In exceptional cases, the Court may ask for additional information, but this can delay the decision (ECtHR, Shtukaturov v. Russia, Appl. No. 44009/05, Judgment of 27 March 2008, para. 33).

What's an example of an interim measure by the ECtHR?

One notable example is when the ECtHR issued an interim measure to evacuate the late Russian opposition leader Alexei Navalny to Germany in 2020 after he was poisoned with a nerve agent.

How long do interim measures last?

The duration of interim measures can vary. They may be indicated until further notice, for the duration of the proceedings before the Court, or for a limited period, depending on the specific circumstances.

Do interim measures decide the outcome of a case?

No, interim measures do not decide the outcome of the case. They are intended only to prevent irreversible harm while the case is ongoing.

Are interim measures legally binding?

Yes, interim measures are legally binding on the state concerned.

Can a person or a state appeal the ECtHR’s decision regarding an interim measure?

No, decisions on a Rule 39 request cannot be appealed. However, applicants may submit a new request if new elements emerge. Similarly, if new information arises, parties can request the Court to lift the Rule 39 measures. Regardless of whether a Rule 39 request is refused or lifted, the Court will still assess the full application if the applicant wishes to maintain it.

Is there any way for a state to challenge an interim measure?

Yes, according to guidance issued by the ECtHR in March 2024, states may request the Court to reconsider its decision if they believe the interim measures are no longer necessary or if new information comes to light.

How difficult is it to obtain an interim measure from the ECtHR?

There is a high bar for applicants to prove that an interim measure is necessary, and many requests are often refused by the ECtHR. According to the statistics from 2021 to 2023 , the ECtHR processed a total of 7,676 requests for interim measures under Rule 39. Of these, only 2,113 were granted, while the vast majority—5,563 requests—were either refused or classified as outside the scope. This means that approximately 73% of the requests were not granted, highlighting the stringent criteria and the high bar applicants must meet to obtain such urgent measures from the Court. This trend emphasises that interim measures are issued only in exceptional cases where there is a clear and imminent risk of irreparable harm.