Interim Measures of the European Court of Human Rights

Interim measures are very rare but are an important part of the functioning of the European Court of Human Rights. We’ve put together a short guide to what interim measures are, how they work and how they have been applied in the UK.

What are interim measures?

According to Rule 39 of the Rules of the Court:

“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.”

This means the ECtHR can order countries to take (or not take) certain steps while a legal case is ongoing. The decision to order interim measures is not based on the likelihood of a person winning their case but on whether there is an “imminent risk of irreparable damage” if certain steps are taken or not taken in the meantime. They’re designed to make sure everyone has the right to a fair trial before any irreversible steps are taken.

They can be applied for a fixed time or until further notice. They can be lifted at any time by the ECtHR (usually if a case is stopped).

While interim measures can be used in “highly exceptional cases” relating to the right to respect for private and family life (Article 8), they’re typically only used where there is a threat to life (Article 2) or a risk of torture and inhuman or degrading treatment (Article 3).

Natalie's Story

When she was 29 years old, Natalie was diagnosed with a pre-cancerous condition that meant she would need to have her ovaries removed. She and her partner, J, wanted to have children, so decided to have IVF first. This meant taking Natalie’s eggs out of her ovaries and fertilising them with J’s sperm, creating embryos that could be later implanted in Natalie’s womb so she could give birth.

Both Natalie and J had to consent to the IVF, and the clinic told them either of them could withdraw their consent at any time before the eggs were implanted in Natalie’s womb.

They created six embryos, which were stored by the IVF clinic. Natalie wondered if she should explore other options to have her remaining eggs fertilised in case she and J broke up, but J assured her that wouldn’t happen. She then had her ovaries removed, so she was unable to produce any more eggs. Natalie was told she would have to wait two years before the embryos could be implanted in her womb.

However, around six months after her ovaries were removed, Natalie and J broke up. J told the IVF clinic he wanted to withdraw his consent for the embryos to be used so the clinic would have to destroy them.

Natalie said the embryos were her only chance to give birth to a child, so she asked UK courts to require J to give his consent to the embryos being implanted. The courts refused. Natalie then appealed to the European Court of Human Rights. Her hearing was scheduled for September, but the embryos were due to be destroyed in February. The ECtHR used interim measures (under Rule 39) to order the UK Government to make sure the embryos were not destroyed before Natalie’s case was heard.

The embryos were not destroyed, and the case went ahead. Natalie argued that destroying the embryos would breach her right to private and family life, but the ECtHR said it had to balance her rights with J’s, who did not want to have a child with her. Ultimately, the ECtHR decided Natalie could not use the embryos without J’s consent.

While Natalie did not win her case, the use of interim measures under Rule 39 allowed her to have her case heard and ensured that no irreversible harm was caused in the meantime.

Does the UK have to follow interim measures?

Interim measures are not part of domestic law and do not affect Parliament’s ability to make laws. They are are not written into the European Convention on Human Rights or the Human Rights Act but they are written in the Rules of Court. When the UK signed up to the European Convention on Human Rights, it agreed to follow these rules to make sure the ECtHR is able to function as intended.

The ECtHR clarified that countries signed up to the Convention have to comply with interim measures in the cases of Mamatkulov and Askarov v Turkey and Paladi v the Republic of Moldova. It said that if countries ignored interim measures, it would make it harder for the ECtHR to properly examine people’s cases and could stop them from accessing justice. This means that although interim measures are not part of UK domestic law, they are part of the international law that the UK has signed up to and should comply with.

In exceptional cases, where it is not possible for a country to follow an interim measure, it is up to that country to show “there was an objective impediment which prevented compliance and that the Government took all reasonable steps to remove the impediment and to keep the Court informed about the situation”.

Faisal and Khalef’s story

Why are interim measures important?

In 2008, two Iraqi men were being detained by British forces in Iraq, accused of killing two British soldiers. The Iraqi High Tribunal (IHT) wanted the British forces to transfer the men to their custody to be tried – but there was a possibility the men would be sentenced to death if tried in the IHT. The men applied to UK courts to stop them being transferred to the IHT on the basis that the “real risk of…being condemned to death by hanging” was a breach of their Article 3 right to be free from inhuman and degrading treatment. However, the UK courts said that because the British forces were working in Iraqi territory, they didn’t have the power to refuse to transfer them. The men applied to the ECtHR for interim measures preventing them from being transferred until further notice. The ECtHR granted these measures and told the United Kingdom to ensure they were not transferred – but the United Kingdom ignored this order and transferred the men the next day.

The United Kingdom said it “exceptionally, could not comply with the measure” but it “remains the Government policy to comply with [interim measures]…where it is able to”. The United Kingdom said it was not able to comply with the interim measures in this case because it didn’t have the legal power to refuse to transfer the men. An interim measures order doesn’t have to be followed if it would mean the country in question would have to break the law. However, the ECtHR said the United Kingdom did not take reasonable steps to explain the situation to the Iraqi authorities and reach an agreement or get an assurance that the men would not be subjected to the death penalty. The ECtHR therefore found that by ignoring the interim measures, the United Kingdom had caused the men “mental suffering” because of their fear of being executed, which breached their right to be free from inhuman and degrading treatment.

The Iraqi court later decided that there was insufficient evidence to try the men of the killings and so they were released. The UK’s Iraq Historic Allegations Team also later investigated allegations of mistreatment of the men by British soldiers while they were being detained.

Can interim measures be appealed?

There is no way to appeal a decision not to apply Rule 39, but individuals can lodge a new request if circumstances change.

There is no way to appeal a grant of interim measures, but States can request the Court to reconsider in light of new information or when they’re no longer necessary.

How often are interim measures imposed?

Interim measures are rare. In 2021, just 5 requests for interim measures against the UK were granted whereas 9 were refused and 37 were found to be “outside the scope” of Rule 39 (meaning that they weren’t cases where Rule 39 would apply, so the ECtHR didn't consider them).

How were interim measures applied in the Rwanda case?

Natalie’s story shows that interim measures are not a judgment on a case – they are a temporary measure to be taken while a case is ongoing. Similarly, in the Rwanda case, the ECtHR did not say whether the Rwanda policy is legal. Instead, it told the United Kingdom not to deport people until after the UK court hearing which will decide whether the Rwanda policy is legal. This is due to take place in September.

You can read more about interim measures in the ECtHR’s factsheet or watch their video, ALL ABOUT - Interim Measures under Rule 39 of the Rules of Court.

Changes to interim measures

In November 2023, the ECtHR announced that it would be changing the wording of Rule 39 and also issuing an updated Practice Direction (guidance on how to apply the rule). The ECtHR said it was “clarifying and codifying its existing practice” – meaning that it was putting into writing the way things already work.

The new rule and Practice Direction took effect from April 2024.

The changes address a number of the things that were criticised about the Rwanda judgment discussed above. For example:

The judge in the Rwanda case was anonymous. At the time, there was no rule saying whether individual judges who grant interim measures should remain anonymous. However, they used to do so in cases where there were concerns about the judge’s safety because of the reaction to a decision. The fact that the Rwanda judgment was delivered anonymously received some criticism from UK politicians. The new Practice Direction says, “the names of the judges who adopt decisions in the procedure governing interim measures are systematically indicated in the decisions.” This means that in future, judges won’t be anonymous.
Rule 39 now explicitly says that interim measures are applicable in “exceptional circumstances” and “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”. As explained above, this is the way interim measures have been applied in cases but was not included in the wording of the rule before.
Rule 39 also now says interim measures must be “necessary” in the interests of the parties or proper conduct of the proceedings rather than the judge just considering they “should” be granted in those interests. This again reinforces the existing practice that interim measures will only be used where they absolutely have to be.