ECRE - Research on ECHR Rule 39 Interim Measures
Avrupa Mülteci ve Sürgünler Konseyi (European Council on Refugees and Exiles - ECRE) tarafından koordine edilen ve iltica alanında çalışan hukuk profesyonelleri ile akademisyenlerin oluşturduğu ELENA (The European Legal Network on Asylum) tarafından hazırlanan Avrupa İnsan Hakları Mahkemesi'nin Kural 39 kapsamında verdiği tedbir kararlarını inceleyen araştırmanın özetini aşağıda bulabilirsiniz.
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Rule 39, as an interim measure, has the power to require a State Party to refrain from removing an applicant to a country where he or she may be at real risk of a violation of his or her fundamental rights. This is of paramount importance in the context of those seeking asylum and fleeing persecution. As the President of the European Court of Human Rights has stated, “the application of Rule 39 has preserved the physical integrity, the liberty and even the lives of many people who by definition are vulnerable”, values which lie at the very core of the European Convention on Human Rights.
This report offers qualitative legal research on the current practice surrounding Rule 39 interim measures in the field of asylum and expulsion. It examines the experiences of lawyers in submitting Rule 39 requests and where appropriate, the European Court of Human Rights’ response and the compliance of Member States of the Council of Europe to these measures. The rationale behind this research is firstly to explore the fact that an increasing number of Rule 39 requests are being submitted to the Court but only from a certain number of Council of Europe State Parties and secondly to gain a better understanding as to the application of Rule 39 of the Rules of the Court.
ECRE distributed a questionnaire to coordinators of the ELENA network, which was further distributed to lawyers within their national networks across Europe. Qualitative data was collected on lawyers’ experiences of using Rule 39 in the following countries: Austria, Belgium, Bulgaria, Cyprus, Denmark, Finland, Germany, Greece, Hungary, Ireland, Italy, Lithuania, the Netherlands, Norway, Portugal, Russia, Slovakia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom. The information gathered was then analysed to assess the current operation of the Rule 39 mechanism in safeguarding the rights of those in need of international protection. The focus was primarily on the use of Article 39 in expulsion and deportation cases. Despite the fact that the lawyers contacted for this research predominantly represent refugees and asylum seekers, references were also made to extradition cases concerning other migrants.
Where appropriate, recommendations have been made to the organs of the Council of Europe, legal representatives and to Member States to improve the functioning of this essential legal tool and to ensure access to effective legal remedies within Member State parties themselves.