On 15 and 17 November 2016, EHRAC held a pair of webinars on using specific mechanisms of the European Court of Human Rights, drawing on the Court’s practice and procedure, as well as EHRAC’s own experiences. The webinars were attended by a total of 21 lawyers from Russia, Ukraine and the South Caucasus.
“The webinars were a great opportunity for us to find out about the experiences of our colleagues at EHRAC in dealing with these mechanisms: Rule 39, friendly settlements and unilateral declarations. As lawyers working on pressing human rights issues, we understand that it is never too late to learn new skills and improve our existing expertise.”
Alina Pavliuk, Ukrainian Helsinki Human Rights Union
Friendly settlements, unilateral declarations and striking out
EHRAC Director Professor Philip Leach led a session on the relative merits of these three means of resolving cases[1] before the European Court, and some of the problems which can arise for applicants whose cases have been settled in such a way. Philip’s presentation addressed the following issues:
- What are the advantages and disadvantages of entering into friendly settlements?
- What is the relationship between friendly settlement and unilateral declarations (UDs)?
- What are the essential elements of UDs, and in what circumstances can/should they be resisted?
- When is a case ‘resolved’ and what does the ‘respect for human rights’ test require (Article 37 of the European Convention on Human Rights – ECHR)?
The webinar was of particular relevance to our partner lawyers in Georgia, where the Government has increasingly tried to resolve cases through friendly settlements and UDs, including in several of our cases litigated jointly with the Georgian Young Lawyers’ Association. Between 2013 and 2015, 59 cases were resolved between the applicants and the Georgian Government by friendly settlements, and 31 by UDs. Prior to the regime change in 2012, only nine cases had ever been settled by friendly settlement, and only one by UD. Although these mechanisms for resolving cases are less used in Russia, Ukraine, Armenia and Georgia, participants raised questions about the procedural aspects of friendly settlements and UDs, including the role of the applicants in negotiations, monitoring Government compliance and its obligations following the European Court’s decision to strike the case out of its list.
Rule 39 of the Rules of Court: Interim Measures
Paul Harvey, a Registry Lawyer at the European Court between 2005-2016, kindly led this second session on applying for emergency interventions, drawing on his own experiences of dealing with requests for interim measures, particularly with regards to UK immigration and extradition cases.[2] He was joined by Jessica Gavron (EHRAC Legal Director), who gave participants examples from EHRAC’s experiences of applying for emergency measures in two main contexts: requesting appropriate medical treatment for imprisoned Azerbaijani human rights defenders; and the conflict in the Donbas region of Ukraine. Jessica also raised some of the challenges that can present themselves in ensuring compliance. Paul highlighted that Rule 39 applications should primarily be used in cases which cannot be compensated by damages, i.e. where there is a risk of ‘irreparable harm’ as a result of deportation or extradition and, in some more recent cases, in order to protect the health of the applicant. The session covered:
- When and in what circumstances an application for a Rule 39 interim measure should be made;
- How a Rule 39 application affects a full application to the Court;
- What ‘irreparable harm’ encompasses;
- The scope of measures that can be ordered by the Court;
- How interim measures are enforced; and
- Areas in which the Rule 39 case law could be developed.
An abridged recording of both webinars, as well as related supplementary resources, will be made available on the website soon. Please email us if you are interested in accessing them.
[1] For more information on:
- Friendly Settlements
- Unilateral Declarations
- Striking Out
[2] For more information on Interim Measures, please see:
