In this Article
Interim Measures
With the introduction of the ‘European Convention of Human Rights’ it was natural that the rights of the human were to be given more essence and naturally the law had to adjust to more implementations in this area. Founded in Strasbourg, the European Court of Human Rights is a stepping stone towards seeking justice for a specific cause, and here is where an ‘interim measure’ comes into play. You can find your tailored legal assistance for various EU Law-related services with Michael Kyprianou Advocates and Legal Assistants - contact us on infomalta@kyprianou.com or phone +356 2016 1010.
What is an interim measure?
EU Law and Interim Measures
Under Rule 39 of the Rules of Court, the European Court of Human Rights (the “Court”) may indicate interim measures, which will be binding on the State concerned. Essentially, an interim measure is a measure aimed to halt the government from doing something which would be detrimental to the applicant, and the government of the country in question must comply with such a decision. There are three cumulative requisites to keep in mind:
A case of utmost importance in this realm is the Mamatkulov and Askarov v. Turkey, a case in which jurisprudence has stated that an interim measure is to be indicated only in limited spheres. Through this case, the Court has decided that a failure by a contracting State to comply with these measures, would lead to hindering the individuals’ rights and a violation of Article 34 of the European Convention on Human Rights. If you do not adhere to the interim measure, such a failure to obey the Court is a breach of Article 34. Failure to comply with these interim measures would lead to sanctions.
Interim Measures in Malta
EU Law and Interim Measures
Just like in any other European country, multiple requests for interim measures are filed by Maltese lawyers but the majority of these are rejected. A recent rejection for an interim measure in a Maltese criminal case was in Alfred Degiorgio -v- L-Avukat ta’ l-Istat. Here, Degiorgio had requested that his case before the Criminal Court was to be suspended, until the constitutional case has been definitively decided.
On the other hand, there have been a number of requests for interim measures in Malta that have been accepted by the European Court of Human Rights. On the 9th July 2013, the government of Malta had decided to commence with a pushback in which the deportation of immigrants was deemed to be illegal. A boat carrying 102 immigrants had entered the Maltese seas and instantly these human beings were separated, men and women, and put in a place without any contact with the outside world. Nobody was allowed to contact them and the government was going to send them to Libya, however, this deportation was deemed illegal. The media was monitoring this case very carefully and so was the European Court of Human Rights and thus this request was immediately accepted by the Strasbourg Court. The government of Malta was to comply with what the Court had ordered and in fact the immigrants could not be sent to Libya.
When Should One Request an Interim Measure?
EU Law and Interim Measures
Interim measures may be sought when there are no effective and available domestic remedies capable of averting the irreparable damage such as, for example, the lodging of an appeal that would suspend a domestic judgement which, if implemented, would cause irreparable damage to the applicant’s Covenant rights. Hence, one would need to apply for an interim measure once it is clear that there is no other legal alternative in the said country. In general, requests for interim measures should be made in a timely manner before the damage is anticipated to occur, unless there are circumstances that justify a late submission. It is imperative that a lawyer would provide enough information and proof in the application submitted that there will be irreparable damage caused to the applicant. The lawyer also needs to provide proof that there is no effective domestic remedy which would result in a solution for irreparable damages not to occur.
Reasons to Request an Interim Measure
EU Law and Interim Measures
As already stated, interim measures are given in rare circumstances but there are numerous reasons as to why a person could be granted an interim measure. One of the most common reasons is ‘Risk of persecution for political, ethnic or religious reasons.’ This was seen in several cases such as in the case of F.H. v. Sweden. The applicant in this case had argued that if he was to be deported to Iraq, he could face death as a result of his Christian faith. The Court had applied Rule 39 of the Rules of Court.
Another very common reason people apply for an interim measure is ‘expulsion cases with a health / medical element.’ This was seen in several cases and a notable one would be the case of N. v. the United Kingdom. Here the applicant who was HIV positive had argued that her return to Uganda would cause her suffering and lead to her early death, which amounted to inhumane and degrading treatment.
‘Risk of being sentenced to death or life imprisonment if extradited’ is also another common reason why a person would request an interim measure. This was seen in the case of Öcalan v. Turkey. In this case, the Turkish government was urged to take all necessary measures to prevent the applicant from receiving the death penalty.
How Can We Help?
Why Choose MK Advocates and Legal Consultants
Michael Kyprianou Advocates and Legal Consultants is a firm that has acquired a wealth of knowledge and extensive experience in both EU Law and Maltese Law. Our lawyers are able to offer advice on various areas related to EU Law.
In addition, we are also able to offer consultancy for businesses looking to expand to Europe. Ever since Malta joined the European Union, entrepreneurs had to change their mind set from doing business in Malta as a market, to doing business in the European market. The EU’s Treaty on the Functioning of the European Union has opened up the gates to millions of potential consumers, it also meant that European laws have become harmonised into Maltese laws.
Should you need legal advice on EU Law for you personally or for your business, you can always get professional advice from MK Malta - contact us on infomalta@kyprianou.com or phone +356 2016 1010.
The content of this article is valid as at the date of its first publication. It is intended to provide a general guide to the subject matter and does not constitute legal advice. We recommend that you seek professional advice on your specific matter before acting on any information provided. For further information or advice, please contact infomalta@kyprianou.com or telephone +356 2016 1010.
