Strasbourg, le 15 mars 2013
CDDH(2013)011
STEERING COMMITTEE FOR HUMAN RIGHTS
(CDDH)
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Comments received from the European Group of National Human Rights
Institutions on
(i) the draft CDDH report on Interim Measures and
(ii) the representative application procedure
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CDDH(2013)011
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INTERIM MEASURES
We provide the following comments on CDDH’s report on interim measures:
The European Group of NHRIs welcomes the CDDH’s report on interim measures. We
reiterate the recommendations of the European Group of NHRIs on interim measures
which may be summarised thus:o The Court should inform claimants' representatives of the possibility of
submitting certain documents even before the end of the suspensive appeal in the
event that an application for interim measures is likely to be submitted.
o The Court should be flexible in the application of the rule relating to the ‘one
working day’ time frame so as to avoid not processing a serious application for
interim measures simply because it has not been submitted early enough. Any
potential time differences should also be taken into consideration, particularly
where overseas departments are concerned.
o The introduction of fixed judge and lawyer 'office hours' within both the Registry
of the European Court and the ministries concerned, or even the provision of
special telephone numbers, should be considered in order for applications to be
submitted and processed in the evenings and on weekends in urgent cases.
o Information relating to the interim measures procedure should be circulated as
widely as possible and training programmes should be developed within law
schools and as part of a lawyer's ongoing training.
o Applications for interim measures must be examined based solely on an analysis
of the actual personal risk of irreparable damage. Based on the information
provided by the Court, it is essential that the State anticipate any potential
situations of 'saturation' caused by a mass influx of applications for interim
measures by ensuring that the decisions of the Court are implemented at national
level. Once the State observes that applications for interim measures are being
routinely implemented in relation to a given situation, it must duly act by
implementing the appropriate internal measures as quickly as possible.
o It would not appear appropriate to introduce a cross-examination stage before the
interim measure is passed. If such a stage were to be introduced, however, the
following should be borne in mind:
- It should result in the deportation of the claimant being suspended for
long enough for a firm decision to be made regarding the measure (see §29
of document GT-GDR-C(2013)001).
- It should not result in any considerable extension of the time frame
between the application for the measure being submitted and a decision
being made by the Court.
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CDDH(2013)011
- It should not be detrimental to the claimant, who finds themselves in a
vulnerable position, or prevent them from filing and maintaining an
internal appeal in any way.
o In the event that Article 39 is applicable, it would not appear to be feasible to
provide a reason for the Court's decision given the material constraints cited by
the registry. To compensate for this lack of reasoning, however, it would be useful
for the Court to provide general information on the criteria used in the processing
of interim measures. It is also important that any questions put to the defending
government when communicating the case be as specific as possible in order to
accurately reflect the aspects taken into account by the Court in deciding whether
or not the interim measure will be implemented.
o Interim measures must be immediately and systematically implemented once the
State has been informed of them.
o The transmission of information from the Court to the authorities responsible for
the expulsion of the individual should be fast and direct and use of the secure data
transmission system between the Court and the governments in question should be
widespread.
o The effects of an interim measure should be felt immediately and uniformly right
across the country and apply to all State authorities and bodies.
o
It is important that the granting of residency with permission to work, or, failing
this, house arrest with permission to work, be considered as potential satisfactory
solutions. Furthermore, the possibility of granting the claimant protected status
entitling them, if need be, to accommodation and financial support should also be
considered.
REPRESENTATIVE APPLICATION PROCEDURE
We provide the following comments on the proposed “representative application
procedure”:
The European Group of NHRI agrees that it would be inadvisable to introduce a
“representative application procedure” in light of the fact that it could not be
distinguished from existing procedural tools, such as “pilot judgments”.