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Resolution 1788 (2011) Final version
Preventing harm to refugees and migrants in extradition and expulsion cases: Rule 39 indications by the European Court of Human Rights
1. The Parliamentary Assembly recalls
that the centrepiece of the protection of human rights in Europe
is the European Convention on Human Rights (“the Convention”, ETS
No. 5). Application of the Convention is supervised by the European
Court of Human Rights (“the Court”), which plays a unique and central
role in upholding human rights in Europe.
2. The Assembly has stated in its Resolution 1571 (2007) on Council
of Europe member states’ duty to co-operate with the European Court
of Human Rights, that “[t]he right of individuals to apply to the
Court is a central element of the human rights protection mechanism
in Europe and must be protected from interference at all levels”.
3. To ensure the effectiveness of this right of individual application,
Rule 39 of the Rules of Court provides that the Court may indicate
to the parties in a case before it interim measures to be adopted
in the interests of the parties or the proper conduct of proceedings.
These interim measures are thus ordered pending a decision on the
admissibility and merits of the case.
4. The Court can, for example, order interim measures to member
states to prevent, until a specified date or further notice, the
imminent expulsion or extradition of refugees, failed asylum seekers
or irregular migrants showing a prima facie case that they are at
risk of harm of a serious, irreparable nature in their country of
origin or other third country. These interim measures are binding
and failure to comply with them results in a breach of the state’s
international obligations, as determined by the Court’s case law.
5. The Grand Chamber of the Court has clarified the binding nature
of interim measures. A failure to comply with interim measures undermines
the effectiveness of the right of individual application (Article
34 of the Convention) and the state’s undertaking in Article 1 of
the Convention to secure the rights and freedoms set forth in the
Convention to all within its jurisdiction.
6. Given the fundamental importance of the Court’s power to order
binding interim measures, the Assembly is concerned at proposals
being discussed in the context of the follow-up to the Interlaken
Conference on the future of the Court and the Convention’s control
mechanism, to include the Court’s power to order interim measures
in an instrument that could be subject to amendment by states through
a simplified amendment procedure.
7. Recently, there has been an increase in the number of applications
for interim measures, with the Court having to deal with 2 402 such
requests in 2009 and 3 680 such requests in 2010. It is appreciated
that the increase in numbers puts further pressure on the Court
and on the states parties that have to abide by the interim measures.
However, pressures linked to numbers of applications and workload
should not lead to a dilution of standards and protection offered
to the individual.
8. The growing demand for Rule 39 requests is an indication of
the problems faced by many of those in need of international protection
and in securing respect for their rights and their safety. The shrinking
of the asylum space in Europe undoubtedly propels individuals who
are refused international or humanitarian protection at national
level to seek the subsidiary protection of the Court.
9. Of great concern to the Assembly, however, is not just the
increase in numbers, but also a growing number of cases where states
have ignored the interim measures ordered by the Court. This has
resulted, for example, in persons being deported to countries where
they are at risk of torture or ill-treatment, despite clear indications
by the Court under Rule 39 not to deport them.
10. While still relatively rare, the growing number of breaches
is of grave concern given the harm to the individuals concerned
and the impact on the integrity of the Convention system as a whole.
The Assembly condemns any disrespect of legally binding measures
ordered by the Court, and in particular disrespect for the right
of individual application as guaranteed by Article 34 of the Convention,
as a blatant disregard for this unique system of protection of human
rights.
11. The Assembly underlines that the burden is on states to demonstrate
that they have complied with the interim measures in question or,
in an exceptional case, that there has been an objective impediment
which prevented compliance and that they took all reasonable steps
to remove the impediment and keep the Court informed about the situation.
States should refrain from using the argument of “objective impediments”
as a means of circumventing their obligations.
12. Notwithstanding the rise in the number of requests for Rule
39 measures addressed to the Court, the majority of these requests
are directed against a handful of the 47 member states. This shows
that in most member states there still exists a lack of awareness
among individuals, lawyers or even the authorities of these measures
and how they are applied.
13. The number of Rule 39 requests could rise substantially in
the future if access to the procedure becomes better known and available
in all member states of the Council of Europe. It is currently impossible
for many of those seeking international protection, and others,
to request interim measures from the Court as they often lack access
to lawyers and free legal aid, they are not informed of their rights
or the procedures available or applicable to them, in a language
which they understand, and they do not have access to a telephone
or to the outside world. Furthermore, some of those in need of international
protection are effectively denied the time and/or opportunity to
request Rule 39 measures. Particular problems in this respect occur
when persons are detained, or due to the rapidity of their expulsion.
14. The Assembly recognises that innovative methods need to be
adopted to deal with ever-growing numbers of requests for interim
measures and notes in this respect the usefulness of Court indications, notwithstanding
the non-binding nature of these, to member states where recurrent
problems exist, such as has been the case in relation to Dublin
II Regulation 
returns.
returns.15. The Assembly therefore urges the member states of the Council
of Europe to:
15.1. guarantee the
right of individual petition to the Court under Article 34, neither
hinder nor interfere with the exercise of that right in any manner
whatsoever and fully comply with the letter and spirit of interim
measures indicated by the Court under Rule 39, in particular by:
15.1.1. co-operating with the Court and Convention organs, by
providing full, frank and fair disclosure in response to requests
for further information under Rule 39(3), and facilitating to the highest
degree any fact-finding requests made by the Court;
15.1.2. exercising good faith and record keeping in demonstrating
that there was, in exceptional cases of non-compliance, an “objective
impediment preventing compliance” and that all reasonable steps
were taken to remove the impediment and to keep the Court informed
about the situation;
15.2. guarantee the principle of non-refoulement in
domestic law as a matter of their obligations under the 1951 Geneva
Convention Relating to the Status of Refugees and its 1967 protocol
and the European Convention on Human Rights and other international
treaties;
15.3. uphold legal representation, assistance and, where appropriate,
provide legal aid, as well as access to the Court and to the United
Nations High Commissioner for Refugees;
15.4. take steps at national level to reduce the need for interim
measures by:
15.4.1. guaranteeing access to a full, fair
and efficient asylum determination procedure and implementing minimum
standards to ensure quality and consistency in asylum decision making;
15.4.2. implementing and guaranteeing basic human rights protections
(including in reception and detention centres, access to legal aid,
exceptional use of detention) and procedural safeguards against
arbitrary detention and refoulement (including
a fair and effective asylum determination procedure for asylum seekers
and refugees);
15.4.3. guaranteeing access to appeal and effective remedies against
removal, including remedies with automatic suspensive effect, and
removing strict and automatic time frames (including in accelerated
procedures);
15.5. providing appropriate training for judges, domestic authorities
and lawyers, using, inter alia,
the good offices of the United Nations High Commissioner for Refugees
and the Practice Direction provided by the Court;
15.6. publish up-to-date information and statistics on Rule
39 and asylum determination procedures and practice;
15.7. co-operate fully with the Committee of Ministers in the
execution of judgments, by ensuring restitutio
in integrum in those cases where individual measures
are necessary, by taking general measures, and by working towards
speedy final resolution of cases.
16. The Assembly recognises the primary role of the Court in finding
solutions for dealing with interim measures under Rule 39 and in
this context expresses the hope that the Court will:
16.1. continue its work to ensure
a consistent implementation of interim measures and improve the
flow of information between its sections;
16.2. organise, with the intergovernmental sector of the Council
of Europe, an exchange of views with all relevant actors, including
civil society, on the challenges faced by the Court and governments
in dealing with interim measures, taking into account the fact that
the number of requests could increase greatly in the future;
16.3. examine whether it is appropriate and possible to provide
reasoning as to positive and negative decisions in Rule 39 requests,
at least in cases where the Court sees a systemic problem;
16.4. publish regular statistics on Rule 39 requests – granted
or rejected – and their status, as well as the number of persons
deported in cases where a Rule 39 request has been granted (including
those where it has been subsequently lifted) and the number of cases
in which a substantive violation is subsequently found;
16.5. be sensitive to the needs of vulnerable persons, including
survivors of torture, victims of trafficking, lesbian, gay, bisexual
and transgender persons, children, women, and elderly and disabled persons;
16.6. carry out an analysis of requests for interim measures
and their handling, to identify patterns and practices and analyse
lessons to be learned and good practices to follow;
16.7. wherever possible or appropriate, deal with cases in which
Rule 39 has been indicated by way of an expedited procedure;
16.8. require, in more cases, the adoption of specific measures
by states to remedy harm caused, in order that the Committee of
Ministers may more effectively monitor the execution of judgments.
17. The Assembly invites the United Nations High Commissioner
for Refugees and the Council of Europe to strengthen their mandate
of co-operation in the context of improving the effectiveness of
Rule 39 in protecting the rights of refugees and asylum seekers,
in accordance with United Nations General Assembly Resolution (A/RES/63/14)
and their memorandum of understanding.
18. The Assembly invites the United Nations High Commissioner
for Refugees and NGOs to continue to monitor the situation, including
the statistics, and to raise awareness about the use of interim
measures and provide useful, workable tools for practitioners and
applicants.
19. The Assembly invites the Council of Europe’s Commissioner
for Human Rights to continue to monitor the situation in member
states as regards cases of non-compliance with interim measures
under Rule 39 and use fully the right of intervention before the
Court in appropriate circumstances.