Protecting Human Rights in Cases of Urgency: Interim Measures and the Right of Individual Application under Article 34 ECHR
- Side: 404-428
- DOI: https://doi.org/10.18261/ISSN1891-814X-2012-04-02
- Publisert på Idunn: 2013-01-22
- Publisert: 2013-01-22
The power of the European Court of Human Rights to issue interim measures of protection is not enshrined in the European Convention, but follows from its internal rules of procedure. In Mamatkulov and Askarov v Turkey (2005) the Court held for the first time that a state’s failure to comply with such measures may give rise to a violation of the right of individual application under article 34, thus effectively declaring that interim measures are binding upon the states. This article traces the evolution in the Court’s view on the obligatory nature of interim measures and offers a critique of the arguments put forward in Mamatkulov. It is argued that having binding interim measures is entirely consistent with the idea of the Convention as an instrument for safeguarding procedural – as well as substantive – guarantees based on the rule of law, even though such considerations hardly figure in the Court’s reasoning.