A Critical Analysis Of The Work Of The European Commission And European Court Of Human Rights In Relation With Non-Compliance Of Interim Measures - Period 1957-2011
| Autor | Clara Burbano Herrera |
| Cargo | Postdoctoral Research Fellow of the Research Foundation Flanders and Senior Research Fellow, Human Rights Centre, Ghent University (Belgium) |
| Páginas | 1-56 |
A CRITICAL ANALYSIS OF THE WORK OF THE EUROPEAN COMMISSION AND
EUROPEAN COURT OF HUMAN RIGHTS IN RELATION WITH NON-
COMPLIANCE OF INTERIM MEASURES - PERIOD 1957-2011
Clara Burbano Herrera▪
Fecha de recepción: 2 de Febrero de 2012
Fecha de evaluación: 30 de marzo de 2012
Fecha de aprobación: 30 de julio de 2012
Abstract
Today, interim measures have a key role in many of the cases that are brought before the European
Human Rights System. The instrument has been designed to preserve and protect rights and
freedoms to persons in a situation of extreme gravity and urgency, together with the interests of the
parties in a case before the Court. This legal figure has been applied – nowadays – on a daily basis
for more than half a century, first by the former European Commission on Human Rights (European
Commission or Commission) and later by the European Court of Human Rights (European Court,
Court or ECtHR). Despite the fact that interim measures have over time acquired a growing
importance in the case law, States when faced with such a measure requiring them to act, sometimes
refuse to abide by them. This contribution aims to give an exhaustive overview of the State
incompliances. It is argued that the number of non-compliances is steadily growing, as is the number
of perpetrators, not only among the ‘new’ Member States, but also among the ‘older’ member States
and even the ‘founding fathers’ and that this can have a negative effect on the supervisory system as
a whole. Some initiatives can, however, be taken by the European Court and the Committee of
Ministers to improve and streamline the procedure with regard to interim measures, whereby all actors
in the dispute may benefit.
INTRODUCTION
Between 1 January 1974 (the date from which there are official statistics available on
the indication of interim measures) and 1 January 2010, in total 2.207 provisional
measures have been issued of which 522 have been issued in the period 2000-2007,
and 1.401 in the period 2008-2009 alone (see also infra Table 1). The exponential
▪ Postdoctoral Research Fellow of the Research Foundation Flanders and Senior Research Fellow,
Human Rights Centre, Ghent University (Belgium). e-mail: Clara.BurbanoHerrera@UGent.be.
increase of requests for interim measures has undoubtedly been a positive aspect as
it is a vote of confidence in the European organs of human rights.1 It is remarkable
how interim measures have gradually become part of the international legal world
due to the effective and prompt responses to the needs of those that have requested
them. But there is also a negative aspect in the European system, which is that on a
number of occasions Member States have willingly incomplied with the interim
measures indicated. For that lately, a number of disturbing reports and signs have
poured out of the Council of Europe with regard to unwilling or recalcitrant States,2
although on the other hand the European Court (also with good reasons), followed by
most legal doctrine,3 has always maintained that State practice has been exemplary,
the Court on important occasions spoke of the ‘consistent use [of States] to respect
[...] indications [of interim measures]’4 or underlined that ‘[c]ases of States failing to
comply with indicated measures remain very rare’.5
1 The decisions and judgments of the European Court and most decisions and reports of the former
European Commission can be found on (www.echr.coe.int) through the HUDOC search engine.
2 See, e.g., Press Release 615(2009), Parliamentary Assembly, Blatant disregard yet again, by Italy,
https://wcd.coe.int/ViewDoc.jsp?id=1481061&Site=COE; Report CommDH(2009)16, Commissioner
H. R. Council of Europe, Thomas Hammarberg following his visit to Italy on 13-15 January 2009,
(Apr. 16, 2009) at. 21-24, paras. 98-119; Doc. 11978, Parliamentary Assembly, Motion for a
recommendation presented by C.W.A. Jonker and Others, Preventing harm to refugees and
migrants in extradition and expulsion cases: Rule 39 indications by the European Court of Human
Rights, (Jul. 6, 2009); Press Release 355(2010), Secretary General Council of Europe, Extradition
of Mustapha Labsi, (Apr. 29, 2010); Press Release 403(2010), Secretary General Council of
Europe, Concerns over repeated Italian expulsions, (May. 19, 2010); Press Release 467a10,
Secretary General of Council of Europe, Expulsions by Italy: Committee of Ministers stresses the
obligation to comply with interim measures indicated by the European Court of Human Rights,
(Jun. 8, 2010). Press release of Council of Europe can be found on (https://wcd.coe.int)
3 E.g., George Letsas, International Human Rights Law and the Binding Force of Interim Measures,
5 EUR HUM RTS L. REV. 527, 527-34 (2003); Alastair Mowbray, A New Strasbourg Approach to the
Legal Consequences of Interim Measures, 5 HUM RTS L. REV 377-80 (2005); Alphonse
Spielmann, Les mesures provisoires et les organes de protection prévus par la Convention
européenne des droits de l’homme, in PRÉSEN CE D U DRO IT P UBLIC ET DES DROITS DE L’HOMME.
MÉLANGE S OFFERTS À JACQUES VELU, at 1306-07 (Brussels: Bruylant 1992).
4 Conka and Others v. Belgium, App. no. 51564/99, Eur. Ct. H.R. (Feb. 5, 2002); see also Cruz
Varas and Others v. Sweden, App. no. 15576/89, Eur. Ct. H.R. (Mar. 3, 1991), at para., 121.
5 Mamatkulov and Askarov v. Turkey, App. nos. 46827/99 and 46951/99, Eur. Ct. H.R. (Feb. 2,
2005), at para., 105. Cruz Varas and Others, App. no. 15576/89, at para., 100.
This article aims to give a completely view in respect to the cases where
States have refused to abide by the measures during the period 1957-2011. In the
same way this article pretends to examine whether the number of incompliances by
Member States is allegedly on the rise. It is argued that the number of non-
compliances is steadily growing, as is the number of perpetrators, not only among the
‘new’ Member States, but also among the ‘older’ member States and even the
‘founding fathers’ and that can have a negative effect on the supervisory system as a
whole. Developing this topic is relevant, not only because of the factual
circumstances in which interim measures are adopted, i.e. in essence to protect
persons whose right to life and/or personal integrity are in danger of being violated,
but also because, if the number of non-abidances is really going up, this might be
deemed a threat for the overall (efficiency of the) supervisory system.
After a brief introduction to the legal basis and application of interim measures
(2), the contribution will mainly highlight the cases where Member States have
incomplied with an interim measure issued by the former European Commission
and/or the former and current European Court, and the reasons invoked by States to
do so (3), to conclude with an analysis and evaluation of the situation (4), and some
suggestions to avoid non-abidance by States in the future (5).
I. INTERIM MEASURES FROM A LEG AL PERSPEC TIVE
A. The Legal Basis
Para continuar leyendo
Solicita tu prueba