Contents - Constitutional Court of Georgia

38
Françoise Tulkens
In the Aoulmi v. France judgment of 17 January 2006, the Court concluded that by not
complying with the interim measures indicated under Rule 39 of its Rules and deporting
the applicant to Algeria, France had prevented the Court from affording him the necessary
protection from any potential violations of the Convention. As a result, France had failed to
honour its obligations under Article 34 of the Convention 124 .
Lastly, the Evans v. the United Kingdom case, about artificial insemination, is worth mentioning
since the Court applied Rule 39 in a very specific situation. When the case was
brought in 2005, the Court indicated to the Government that “is was desirable in the interests
of the proper conduct of the proceedings that the Government take appropriate
measures to ensure that the embryos, the destruction of which formed the subject-matter
of the applicant’s complaints, were preserved until the Court had completed its examination
of the case. On the same day, the President decided that the application should be
given priority treatment, under Rule 41” 125 . In the judgment of 7 March 2006, the Court
considers “that the indication made to the Government under Rule 39 of the Rules of Court
(…) must continue in force until the present judgment becomes final or until the Panel of
the Grand Chamber of the Court accepts any request by one or both of the parties to refer
the case to the Grand Chamber under Article 43 of the Convention” 126 . So, in the operative
part, the Court “[d]ecides to continue to indicate to the Government under Rule 39 of the
Rules of Court that it is desirable in the interests of the proper conduct of the proceedings
that the Government take appropriate measures to ensure that the embryos are preserved
until such time as the present judgment becomes final or further order”.
3. REMEDIES AND EXECUTION OF JUDGMENTS: BRINGING RIGHTS HOME
A judgment of the European Court of Human Rights is not an end in itself, but a promise
of future change, the starting-point of a process which should enable rights and freedoms
to be made effective. Remedies under Article 41 and the execution of judgments under
Article 46 have recently prompted some extraordinary developments in the case-law of
the Court. The Court thus significantly extended its role in indicating appropriate measures
from individual measures to general measures required to remedy a systemic problem.
124 ECtHR, Aoulmi c. France, judgment of 17 January 2006, § 110.
125 ECtHR, Evans v. the United Kingdom, judgment of 7 March 2006, § 3. The case was referred to the Grand Chamber, which delivered
judgment in the case on 10 April 2007 (see supra).
126 Ibid., § 77.