On 13 March 2014, just three days before the referendum in Crimea took place, the Government of Ukraine lodged an inter-State application against the Russian Federation before the European Court of Human Rights (ECtHR). Given the urgency, Ukraine also asked for interim measures to prevent threats to the life and health of the civilian population on its territory.
The application was brought under Article 33 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Convention), to which both Russia (since 1995) and Ukraine (since 1996) are party. The inter-State application is a rarely used instrument, under which States party to the Convention may refer an alleged breach of its provisions by another State party to the ECtHR. There have only been about ten inter-State cases to date, as the ECtHR deals mainly with complaints by individuals, and most have been discontinued without a judgment from the Court.
The Court granted the interim measure on 13 March, calling upon both Ukraine and Russia to refrain from taking any measures, in particular military, which might entail breaches of the Convention rights of the civilian population, including putting their life and health at risk, and to comply with their engagements under the Convention, notably in respect of right to life (Article 2 of the Convention) and prohibition of inhuman or degrading treatment (Article 3). Both countries are tasked with informing the Court on the measures taken to ensure that the Convention is not violated. The final ECtHR decision is expected within a month, Interfax has reported.
Interim measures enable the ECtHR to deal with urgent situations risking irreparable damage which a judgment favourable to the applicant could not later undo. Decisions on interim measures are binding, irrespective of further findings regarding the existence of the risk. According to a 2003 judgement in Mamatkulov and Asarov v Turkey failure by a contracting state to comply with an interim measure is to be regarded as preventing the Court from effectively examining an applicant’s complaint and as hindering the effective exercise of their right. As held in the 2006 judgment in the Olaechae Cahuas v Spain case, a state must comply with an interim measure irrespective of whether the risk is later confirmed to exist.
In 2011 the International Court of Justice (ICJ) pronounced a judgment in the Georgia v Russian Federation case. It was brought by Georgia after military confrontation between the two states in 2008. It concerned application of the International Convention on the Elimination of all Forms of Racial Discrimination, as no other legal instrument binding on the two states provided a basis for jurisdiction. The ICJ, in contrast to the ECtHR, settles legal disputes between States where the parties have consented to its jurisdiction. The Court ruled that the parties had not attempted a negotiated settlement before bringing the action. However, the dispute raised further issues – which were not addressed by the ICJ – regarding provision of armed support to separatist groups despite the parent state’s protests, conferment of nationality and recognition of states. Georgia had also made an application to the ECtHR in 2008, on which the Court rejected claims it was inadmissible but has yet to reach judgment.
The International Court of Justice and the Georgia-Russia Dispute / Phoebe Okowa, Human Rights Law Review (2011) 11 (4): 739-757. (Available via Westlaw in-house subscription)
The changing nature of interim measures before the European Court of Human Rights / Catharina Harby, European Human Rights Law Review (2010) 1: 73-84. (Available via Westlaw in-house subscription)