Netherlands Quarterly of Human Rights

Under its Rules of Court, the European Court of Human Rights has the power to issue interim measures. Case law shows that an interim measure is generally directed towards the respondent State but it can also or at the same time be directed towards the applicant. It has a proactive or a prohibitive nature: one or both of the parties in the proceedings before the European Court may be required to act in a certain way or to refrain from certain acts. In practice however, provisional measures are virtually only issued by the new Court in cases of imminent expulsion, extradition or deportation of individuals to their country of origin by the State against which the complaint is directed, although exceptionally other factual situations may arise such as extremely severe prison conditions or a hunger strike. As a result, the requests for interim measures will contain references to Articles 2 and/or 3 of the Convention and/or Article 1 of the Sixth Protocol. On the basis of the practice of the former European Commission and the current European Court, an overview is given of the scope of application of interim measures, the prerequisites to request an interim measure and the procedure to be followed by applicants if requesting an interim measure. Although, following two recent judgments of the First Section of the European Court, the European Court has made it clear that interim measures are binding on the respondent State, a viewpoint which is currently being challenged before the Grand Chamber of the Court, it is argued that the applicant not only has a very limited chance of success in obtaining a positive interim order, but that the new European Court is even more reluctant than the former Commission was before, when deciding whether to issue an interim measure or not. Where confronted with some specific kinds of factual situations, it may be arguable that the European Court follows the same line of reasoning towards requests for interim measures as its Interamerican counterpart, thus extending the scope of application of the interim measures to rights and freedoms, other than the above-mentioned.

Efforts to secure protection for refugees in the Netherlands are being undermined by over-enthusiastic use of the exclusion principle in refugee status determination procedures. Inappropriate use of the exclusion principle is tied to accelerated (albeit ineffective) efforts to secure justice for human rights violators. As this article argues, the tensions that arise are unacceptable, but can be appropriately addressed through a (re)commitment to both principles and pragmatism. A principled commitment would ensure that due process is thoroughly respected in asylum determination procedures. This must be accompanied by a pragmatic, rights-based application of the aut dedere aut judicare principle (extradite or prosecute), reinforced by strengthened coordination between the government agencies responsible for asylum and prosecution.