From Dundee to Donetsk: Rule 39 and why it matters

It is not common for procedural rules of court to become headline news, but that is exactly what occurred in the summer of 2022. Rule 39 interim measures are the European Court of Human Rights’ (ECtHR) equivalent of domestic injunctions. These measures caught the attention of those wishing to reduce human rights protection in the UK when the ECtHR used Rule 39 to ask the UK not to deport asylum seekers to Rwanda before their legal case was resolved. The government now has this mechanism in its crosshairs. Clause 49 of the Illegal Migration Bill would grant the home secretary a very broad power potentially to bar consideration of interim measures by decision-makers. Given the government’s hostility to interim measures, it is important to understand what interim measures do and why the UK should continue to adhere to them.

Amid the technical detail and political rhetoric, the basic point underpinning the role of rule 39 interim measures can be lost. It can be put this way: What is the point of enforcing a legal right in court if, while your case is progressing, the other side can take steps to make your challenge redundant? The answer to this question is why courts in the UK can make interim injunctions – a ‘pause’ to make sure irreparable damage does not occur before the court has reached a judgment. The availability of interim measures, whether in a domestic court like the High Court or in an international court like the ECtHR, is an important aspect of the rule of law. If a legal right cannot be enforced, that right is theoretical rather than practical.

This is the reason the ECtHR can make rule 39 interim measures, and it does so only on an exceptional basis where there is risk of serious and irreversible harm. Between 2020 and 2022, the ECtHR received 161 individual requests for such measures against the UK; only 12 were granted, and three of these 12 related to the Rwanda flight in June 2022. The right to life would be a meaningless right if a state could execute individuals before their case had been heard. The right to respect for one’s family life would be hollowed out if a state could destroy a couple’s fertilised embryos before the conclusion of a dispute over the future of those embryos, as in Evans v UK (2007). The right to freedom from torture or inhuman or degrading treatment would be illusory if a state could deport a person to a country where they potentially face very grave danger. In Abraham Lunguli v Sweden (2003), the applicant alleged that she risked genital mutilation if she was returned to Tanzania. The ECtHR asked Sweden to refrain from deporting her until the conclusion of her case. The case ended without a judgment when Sweden granted the applicant permanent residence.

Honouring rule 39 measures is a basic test of commitment to the European Convention on Human Rights. This explains the ECtHR’s conclusion that a refusal to honour rule 39 measures amounts to a breach of the Convention itself (Mamatkulov and Ashkarov v Turkey (2005); Paladi v Moldova (2009)). A refusal to follow a rule 39 measure effectively denies the right of individuals to bring their complaints before the ECtHR, amounting to a breach of Article 34 ECHR. Such a refusal would also undermine a state’s fundamental undertaking in Article 1 of the convention to protect and secure the rights and freedoms in the Convention.

The UK has voluntarily agreed to abide by and honour the convention. In doing so, the UK rightly uses its moral and political weight to promote a high standard of protection of human rights across Europe – a vital aspect of our modern conception of democracy and freedom. Protection for human rights, however, could be quickly weakened if states fail to comply with obligations relating to their practical enforcement. We are witnessing worrying trends across Europe – for example, the Polish government has recently informed the ECtHR that Poland will not respect interim measures in cases concerning the independence of the judiciary. The UK runs the risk of being accused of applying double standards if it insists on the protection of human rights in other states but rejects for itself the basic tools for giving effect to international human rights protection. It is imperative that, as a state that played a pivotal role in the creation of the Convention, the UK protects its foundations.

The convention was drafted, negotiated, and ratified in a Europe still recovering from industrialised violence and bureaucratised inhumanity. Of course, no single document or treaty is capable of preventing, on its own, the rise of an Adolf Hitler (or a Vladimir Putin). The point of treaties like the ECHR and institutions like the ECtHR is to create a culture and practice of respect for individuals’ humanity in administration, statecraft, and politics. This mission is just as vital today as it was in the 1940s and 1950s. Russia stands as an example where that project has (for now) failed. Ukraine stands as an example of a country that wants to belong to the community of European democracies that respect the rule of law and fundamental rights and is fighting for the right to forge that path for itself.

We in the UK ought to understand the real stakes when politicians use rule 39 interim measures to lead the UK into a collision with the ECtHR. Rule 39 measures simply create a pause to allow the legal process to run its course. For the sake of the rule of law and the practical protection of individuals’ rights, honouring such measures is not so great a burden for the UK to shoulder. But more than this, the UK’s signals in this area are important for the future efficacy and legitimacy of human rights protection from Dundee to Donetsk. This is ultimately a question of the kind of country we want to live in. Do we want to be a country that promotes or undermines the international protection of human rights? The UK remains sovereign either way. It is a question of how we want to exercise that sovereignty, as a force for good or otherwise.

Sam Willis is a researcher and Ariane Adam is legal director at Public Law Project