Derogation of the European Convention on Human
Rights in Time of Emergency
A Case Study of Turkey
Name: Sarah Hupkens Student number: 10214763
Supervisor: mw. prof. Y.M. Donders Amsterdam Law School
International and European Law: Public International Law Submission date: 16 June 2017
Table of Contents
Abstract 3
Chapter 1 – Introduction 4
1.1 Introduction 4
1.2 General introductory remarks 6
1.3 Derogations and limitations 8
Chapter 2 - Legal Framework of Article 15 ECHR 10
2.1. Derogation under Article 15 ECHR 10
2.2. Article 15(1): when a State may validly derogate 11
A. Time of war or other public emergency 11
B. Strictly required by the exigencies of the situation 17 C. Consistency with other obligations under international law 23 2.3. Article 15(2): no derogation from certain provisions (non-derogable rights) 25 2.4. Article 15(3): procedural requirements (notification) 27
2.5. Conclusion 29
Chapter 3 - Case Study Turkey: derogation under Article 15 ECHR 30
3.1 Current situation in Turkey 30
3.2 Relevant Turkish legislation 31
3.3 Assessing the situation in Turkey under Article 15 ECHR 32 3.3.1 Article 15(3): procedural requirements (notification) 33 3.3.2 Article 15(1): when a State may validly derogate 34
A. Time of war or other public emergency 34
B. Strictly required by the exigencies of the situation 35 C. Consistency with other obligations under international law 39 3.3.3 Article 15(2): no derogation from certain provisions (non-derogable rights) 39
3.4. Possible difficulties 40
Chapter 4 - Conclusion 41
Abstract
The purpose of this research is to provide a legal framework that applies during a state of emergency. It focuses on Article 15 of the European Convention on Human Rights and the elaboration of this provision within the context of derogations of human rights.
The first part provides a general understanding of the main concept of this research, a state of emergency, and the different ways in which it can be applied. Thereafter it provides the legal framework of the derogation clause of the European Convention, Article 15. It will elaborate under what conditions a State may rely on the derogation provision of the Convention and illustrates how the European Court of Human Rights assesses measures adopted by states in order to derogate from their human rights obligations under the Convention. The third chapter discusses the current situation in Turkey and applies the legal framework to the situation in Turkey. Important in this research is the fact that State Parties enjoy a wide margin of
appreciation in determining both the presence of a public emergency and the nature and scope of derogations necessary to prevent it. However, they do not enjoy an unlimited power of appreciation, as the Court subjects it to a European supervision.
Based on the findings of this research, it is concluded that there existed a public emergency threatening the life of the nation of Turkey, which allowed Turkey to take emergency
measures. However, difficulties may arise in complying with Article 15, which are identified and discussed in this research. Some of the emergency measures taken will be difficult for Turkey to justify, as they are probably not strictly required within the meaning of Article 15. It is up to the domestic courts of Turkey and the European Court of Human Rights who will ultimately determine this.
Chapter 1 – Introduction
The purpose of this chapter is to introduce the current situation in Turkey and to provide an general understanding of the main concept if this research, a state of emergency, and the different ways in which it can be applied, by giving some general introductory remarks and outlining the difference between derogation and limitation.
1.1 Introduction
On 15 July 2016, a coup d’état was attempted in Turkey by a group of officers within the Turkish armed forces with the aim to seize power in the country and overthrow the Turkish Government of president Recep Tayyip Erdogan.1 Later that night, president Erdogan addressed the nation and urged people to take to the streets in order to stand up against the military faction behind the uprising. Hundreds of supporters answered his call and went out on the streets to support the standing government.2 According to the same government, at least 290 people died and more than 1,400 people were injured. In the following days and months, the reassertion of power has been swift with mass arrests, detentions and dismissals of suspected coup plotters.3
In the aftermath of this failed coup, president Erdogan declared a state of emergency in accordance with the Constitution (Article 120) and the Law No. 2935 on State of Emergency (Article 3/b). In addition, president Erdogan notified that measures taken might involve derogation from the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: ECHR or Convention), permissible under Article 15 of the Convention.4 This state of emergency was extended for the third time on April 17, 2017.5
Legal framework
The ECHR provides for the possibility of derogation from treaty-based human rights obligations under Article 156 and the International Covenant on Civil and Political Rights
1 R Alaaldin ‘Aftermath of Turkey Coup Attempt Will be Bloody and Repressive’ The Guardian < https://www.theguardian.com/world/2016/jul/16/aftermath-of-turkish-coup-attempt-will-be-bloody-and-repressive> (19 August 2016).
2 C Narayan and others ‘Turkey Coup Attempt: How a Night of Death and Mayhem Unfolded’ CNN < http://edition.cnn.com/2016/07/15/world/turkey-military-coup-what-we-know/> (17 August 2016). 3 L Said-Moorhouse ‘This is How Many People Turkey Has Arrested Since the Failed Coup’ CNN < http://edition.cnn.com/2016/07/29/europe/turkey-post-coup-arrest-numbers/index.html> (17 August 2016). 4 Council of Europe ‘Note Verbale from the Permanent Representation of Turkey to the Council of Europe’ (22 July 2016) Annex to the Notification JJ8187C ETS No. 5 – Article 15 (Note Verbale Council of Europe). 5 ‘Turkey to extend state of emergency by three months’ Al Jazeera (18 April 2017).
6 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 15.
(hereinafter: ICCPR) under Article 4.7 These articles permit derogation from certain provisions in time of public emergency, which threatens the life of the nation. Turkey is a party to both treaties.8 This study aims to explore the legal aspect and impacts of this situation; in particular the legal aspect of a state of emergency under Article 15 ECHR, as Turkey has stated that it will partially withdraw from the ECHR on the basis of the aforementioned article.
Furthermore, the situation at hand is of importance in light of the intrusive measures that Turkey has taken so far. After all, the right to derogate from obligations under Convention obligations by States can only be done in a limited and supervised manner.9 Article 15 subjects the measures of derogation to a specific regime of safeguards. It is understandable that in exceptional cases States can be allowed to suspend certain ECHR rights, but the importance of Article 15 lies in the protection of the Convention’s general integrity and the practice of protecting human rights in situation in which individuals may be especially vulnerable to the authoritarian action of the State.10 It is therefore important to analyse what legal framework is applicable for the consideration of derogations from human rights during a state of emergency under Article 15, to critically examine the protections and limitations of Article 15 ECHR situations.11 The main research question therefore seeks to answer the following question: How and to what extent can States derogate from their obligations under the European Convention on Human Rights in time of emergency?
Research method
The purpose of this master thesis is to provide a legal framework that applies during a state of emergency. This thesis will focus on Article 15 ECHR and the elaboration of this provision within the context of derogations of human rights, such as the jurisprudence developed by the European Court of Human Rights (hereinafter: ECtHR or Court).
By using a classical legal research method this thesis gives a critical analysis of the applicable international law in time of emergency and its implementation in practice. This type of
7 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 4.
8 Turkey has ratified the ECHR on 18 May 1954; Turkey has ratified the ICCPR on 23 September 2003. 9 European Court of Human Rights ‘Guide on Article 15 of the European Convention on Human Rights, Derogation in time of emergency’ (August 2016) (Guide on Article 15) p 5.
10 DJ Harris and others Law of the European Convention on Human Ritghs (3rd edn Oxford University Press 2014) p 823.
11 A Svensson-McCarthy The International Law of Human Rights and States of Exception. With Special
Reference to the Travaux Préparatoires and Case-Law of the International Monitoing (Martinus Nijhoff
research is used to analyse the status of the law regarding topics about which no clear judicial rulings have been made.12 The research describes and analyses the law from an internal perspective, in this case from the perspective of the ECtHR. The method consists of the description of existing case law concerning a particular topic, the state of emergency, by using legislative history, prior case law, and scientific literature. It first has a descriptive and then a normative character, as the research is based on a normative interpretation of how the law of a state of emergency should be applied to States invoking the state of emergency under Article 15 ECHR.13
The first chapter of this research outlines general introductory remarks on the notion of a state of emergency, to obtain a clear understanding of the notion of a state of emergency in order to determine how and to what extent states can derogate from their human rights obligations. In addition, chapter one elaborates on the concepts of derogation and limitation and illustrates their distinction in character and scope to understand why states choose to either limit or derogate from human rights. Chapter two focuses on the legal framework of the derogation clause of the Convention, Article 15. This legal provision is comprised of various aspects. It will elaborate under what conditions a State may validly derogate from its obligations under the Convention and discuss the legal requirements that are necessary for the article to comply. Article 15 ECHR will be compared with Article 4 of the ICCPR in order to ensure
completeness in cases of public emergency. Chapter three discusses the current state of emergency in Turkey. The case study of Turkey discusses the declaration of the state of emergency of Turkey under Article 15 ECHR, the partial withdrawal from the Convention and the measures taken so far based on the legal framework outlined in chapter two. By applying Article 15 ECHR and its legal requirements to the situation in Turkey, this thesis discusses the current situation and signals the possible difficulties that might occur. Lastly, the research conclusion outlines the findings and answers the research questions.
1.2 General introductory remarks
States can face difficulties, which can threat the national security of a country, such as wars, major disturbances, crises or natural disasters. These circumstances may lead to a state of emergency.14 There are different human rights instruments, which include certain provisions that enable States to derogate from some of their obligations under human rights treaties in
12 P Rijpkema Methodology of Legal Research (University of Amsterdam September 2016) p 9. 13 ibid.
14 M El Zeidy ‘The ECHR and States of Emergency: Article 15 – A Domestic Power of Derogation from Human Rights Obligations’ (2003) San Diego International Law Journal 7 (277) p 278.
times of emergency. Derogation provisions for such a state of emergency can be found at a national level,15 but derogation clauses are also recognized at the international level. At the international level there are multiple instruments available for the protection of civil and political rights.16 Most of those systems have a derogation clause,17 which enables a State to derogate from some of its human rights obligations under human rights treaties under certain exceptional circumstances.18 The ICCPR has such a provision, which allows States to
derogate from some of their obligations under the Covenant to a certain extent during
emergency situations.19 The ECHR also has a derogation clause, Article 15 of the Convention. The derogation clauses of the ECHR and the ICCPR are very similar in their conditions and purpose. They both established two central norms for derogations to be valid. First a public emergency must exist which threatens the life of the nation and secondly the measures taken must be strictly required by the exigencies of the situation.20
The derogation provision within the ECHR hands States the possibility to derogate on a temporary basis from certain provisions of the Convention in the exceptional circumstances provided by the article.21 Invoking this provision and applying certain derogation measures may have far-reaching consequences for the individuals involved, effective supervision is therefore important. The ECtHR is the ultimate authority to determine whether the measures taken by contracting parties under Article 15 ECHR are in conformity with the Convention.22
In order to determine this, the Court needs to interpret the provisions of the ECHR, as it is the role of the Court to interpret and apply the Convention.23 This interpretation and application
15 Some States have domestic law, which enables the state to declare a state of emergency. This means that the government can suspend rights and freedoms guaranteed under a state’s constitution or basic law. See for example: Ireland which can declare a state of national emergency under Article 28 of the Constitution of Ireland, Turkey can declare a state of emergency under Articles 119 and 120 of the 1982 Constitution, France has three main provisions containing a state of emergency Article 16 and 36 of the Constitution and the Act of 3 April 1955, The Netherlands has a dual structure of emergency regimes under their constitution in which there are two possible types of emergencies namely a ‘state of war’ under Article 96 of the Constitution and a ‘state of emergency’ under Article 103 of the Constitution.
16 International Covenant on Civil and Political Rights of 16 December 1966 and Protocols thereto (ICCPR), American Convention on Human Rights of 22 November 1969 and Protocol thereto (ACHR), European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and Protocols thereto (ECHR), African Charter on Human and Peoples' Rights of 27 June 1981 (ACHRP).
17 The African Charter of Human and Peoples’ Rights does not have an express emergency clause. 18 Harris (n 10) p 823.
19 ICCPR, art 4.
20 JF Hartman ‘Derogation from Human Rights Treaties in Public Emergencies’ (1981) Harvard International
Law Journal 22 (1) p 3.
21 ECHR, art 15. 22 Harris (n 10) p 823.
23 B Rainey E Wicks and C Ovey The European Convention on Human Rights (6th edn Oxford University Press 2014) p 65.
of Article 15 by the Court are elaborated in more detail in the second chapter, the legal framework of Article 15 ECHR.
1.3 Derogations and limitations
The majority of human rights norms are not absolute in that they can never be limited. Human rights can be restricted in two ways: derogation and limitation. In this context it is important to make a distinction between derogations and limitations as they differ in character and scope.24 States can only derogate from their obligations under exceptional circumstances, which threaten the life of the nation and making it necessary to introduce extraordinary measures.25 Meanwhile, States can also limit their human rights obligations under normal circumstances, although for a limited and exhaustive number of reasons.26
Derogation of a right is its complete or partial elimination as an international obligation during a state of emergency.27 Derogations are different from limitations as limitations can be used for extended periods of time, whereas derogations have a temporary character, as long as the exceptional situation dominates. Article 15 ECHR is such a derogation clause, taking into account certain basic principles, which are elaborated in more detail in chapter two.28
Limitations on the other hand can be used to limit human rights under normal circumstances. The reasons why human rights can be limited are as follows. Limitations show that human rights are usually not absolute or non-derogable rights. The majority of human rights search for a fair balance between the interests of the individual and the interests of the State as a whole.29 While resorting to derogations is undesirable and only permitted in exceptional circumstances, reasonable limitations are a part of human rights systems and allow States to flexibly regulate various conflicts of interest, which occur within (democratic) societies. For example by limiting human rights on the basis of public interests, such as public order, public
24 United Nations Office of the High Commissioner for Human Rights in Cooperation With the International Bar Association ‘Professional Training Series No. 9. Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers’ (New York and Geneva 2003) (A Manual on Human Rights for Judges, Prosecutors and Lawyers) p 814.
25 A Manual on Human Rights for Judges, Prosecutors and Lawyers (n 24) p 814.
26 A Müller ‘Limitations to and Derogations from Economic, Social and Cultural Rights’ (2009) Human Rights
Law Review 9 (4) p 564.
27 D McGoldrick ‘The Interface Between Public Emergency Powers and International Law’ (2004) Oxford
University Press and New York University School of Law 2 (2) p 383.
28 Müller (n 26) p 561.
health, public morals, national security or public safety.30 Another reason for human rights to be limited is the fact that limitations are sometimes necessary to resolve conflicts between different rights.31
It can be concluded that derogations and limitations differ in character and scope. The most relevant difference for this research is the criteria under which derogations or limitations can be justified. This chapter outlined the differences between the concepts of limitation and derogation, but also gave a general understanding of the derogation of human rights. Chapter two focuses on the concept of derogation and elaborates on the circumstances under which derogations can be legally justified.
30 Müller (n 26) p 559. 31 ibid p 560.
Chapter 2 - Legal framework of Article 15 ECHR
This chapter provides the legal framework of derogation of human rights, outlining the circumstances under which derogations can be legally justified. The chapter examines the conditions under which States may rely on the derogation clause of the Convention, Article 15, and it provides illustrations of how the Court assessed measures adopted by States seeking to derogate from their human rights obligations under the Convention based on this provision. The legal framework is used in chapter three to discuss the current derogation of human rights in Turkey.
2.1 Derogation under Article 15 ECHR
Most human rights treaties contain a derogation clause to enable a State to derogate from some of its human rights obligations under certain exceptional circumstances.32 For the
ECHR, this is Article 15:
1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.
2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision. 3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.33
This article offers States the possibility to take measures in time of emergency, which would otherwise not be lawful under the Convention.34 Article 15 ECHR subjects the derogation clause to a specific set of safeguards that can be monitored by the ECtHR.35 Derogation provisions have to find a balance between protection of individual rights on the one hand and
32 Harris (n 10) p 823. 33 ECHR, art 15.
34 Rainey,Wicks and Ovey (n 23) p 113. 35 Harris (n 10) p 823.
the protection of national needs in times of crisis on the other. Article 15 balances the extraordinary power given to States to derogate from human rights obligations, but subjects its exercise to various kinds of criteria.36
The legal framework of Article 15 consists of three parts.37 The first paragraph of this Article - discussed in paragraph 2.2 of this research - sets the circumstances under which the
Contracting State Parties can validly derogate from their human rights obligations under the Convention. It also limits the measures States may take in case of an emergency. The second paragraph of Article 15 – discussed in paragraph 2.3 - contains an enumeration of non-derogable rights of the Convention. These are certain fundamental rights from which no derogation can be made under any circumstance. The third paragraph – discussed in paragraph 2.4 - sets out the procedural requirements, which must be undertaken by States invoking the derogation clause.
2.2. Article 15(1): when a State may validly derogate A. Time of war or other public emergency
The first criterion for derogations to be valid under Article 15 ECHR is that they can only be made in ‘time of war or other public emergency threatening the life of the nation’.38 Article
15 ECHR refers to ‘in time of war’. This condition is uncontroversial.39 No derogation has yet been made with regard to a state of war.40 It does not take into account the new developments in the law of armed conflict, however this is also not deemed necessary as war can be seen as an example of the more general aspect of the state of emergency.41 The derogation clause of the ICCPR, Article 4, does not include war as a possible ground for derogation, even though it was recognized that one of the most important public emergencies is the outbreak of war. Ground for this is that the covenant should not envisage, even by implication, the possibility of war, since the United Nations was established with the object of preventing war.42 The addition of the phrase ‘in time of war’ indicated a concern, which is compatible with the
36 ibid p 829. 37ECHR, art 15. 38 ibid (1).
39 P Van Dijk and others Theory and Practice of the European Convention on Human Rights (4th edn Intersentia Antwerpen – Oxford 2006) p 1059.
40 K Reid A Practioner’s Guide to the European Convention on Human Rights (5th edn London: Sweet & Maxwell 2015) p 452.
41 S Kirchner ‘Human Rights Guarantees During States of Emergency: The European Convention on Human Rights’ (2010) Baltic Journal of Law & Politics 3 (2) p 11.
42 UNGA ‘Draft International Covenants on Human Rights Annotation Prepared by the Secretary-General’ (1 July 1955) 10th Session UN Doc (A/2929) p 67.
historical context of when the Article was written - the period where States just emerged from two world wars.43
Interpretation of the term ‘public emergency’
The Court defined the term public emergency for the first time in the Lawless v. Ireland case (hereinafter: Lawless case).44 It was the first substantive interpretation of Article 15 ECHR. The case concerned the application of an individual who was suspected of being a member of the Irish Republican Army (IRA). The applicant alleged in particular that he had been held in detention by the government of Ireland without trial for about five months.45 It was concluded that the extrajudicial detention was not in conformity with Article 5 ECHR, which inter alia gives the applicant the rights of prompt judicial appearances and due process. Therefore, it was necessary to examine whether the detention was justified on other legal grounds.46 The
government invoked Article 15 ECHR, and argued that the detention of Lawless was a lawful derogation from Article 5 ECHR, due to the circumstances prevailing in Ireland at the time of the detention.47 The brief opinion of the Court answered the question what provides an
adequate basis for a ‘war or other public emergency threatening the life of the nation’ within the meaning of Article 15 (1) of the Convention as follows:
The natural and customary meaning of the words ‘other public emergency threatening the life of the nation’ is sufficiently clear; whereas they refer to an exceptional
situation of crisis or emergency, which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed.48
The Court notes in the Lawless case that the following three requirements must be met in order to fulfil this definition of emergency: 1) the danger must be exceptional; 2) it must affect the whole population; 3) and it must constitute a threat to the organised life of the community. The danger must be exceptional in that the normal measures permitted by the Convention are plainly inadequate to deal with the situation.49 This requirement is an
43 A Mokhtar ‘Human Rights Obligations v. Derogations: Article 15 of the European Convention on Human Rights’ (2007) The International Journal of Human Rights 8 (1) p 67.
44 Lawless v Ireland Series A No 3 (1961) EHRR 15.
45 European Court of Human Rights ‘Factsheet on Article 15 - Derogation in Time of Emergency’
<http://www.echr.coe.int/Documents/FS_Derogation_ENG.pdf> (February 2017) (Factsheet on Article 15). 46 Lawless 1961 (n 44) para 15.
47 ibid para 17 and 20. 48 ibid para 28.
important limitation against too wide a reading of Article 15.50 The text ‘life of the nation’ includes the second condition that the emergency should affect the whole State, instead of only a discrete segment of the population.51 However, this geographical standard from the Court in the Lawless case has been made more flexible in later cases,52 as it has been accepted that the whole population may be affected by events in only part of a State and that the
derogation may be restricted to that part. The court will however, construe such territorial limitations strictly. See the case Sakik and others v Turkey,53 where the Court used a strict interpretation of the derogation clause by applying a geographical restriction.54
The third requirement for the definition of an emergency following the Court is that it must constitute a threat to the organised life of the community that constitutes the basis of the State. This could be a threat to the physical integrity of the population, to the territorial integrity or to the function of the organs of the State.55
The Court concluded in the Lawless case that the Irish Government could have reasonably deduced that there was a ‘public emergency’ at that moment. The Court based its conclusion on three factors in particular: the existence of a secret army (the IRA); the fact that this army was also operating outside the territory of the Contracting Party; and the steady and alarming increase in terrorist activities from autumn 1956 throughout the first half of 1957, before the emergency was declared.56 It therefore allowed the government to apply Article 15 ECHR and
take measures derogating from their obligations under the Convention.57
In the Greek Case,58 the definition of a public emergency was further elaborated, giving it a precise and strict meaning. In this case, the respondent government had seized power in Greece by a military coup d’état on 21 April 1967, suspended parts of the Constitution and invoked Article 15 ECHR. It was argued that the Greek government did not show that the measures were taken in a ‘public emergency threatening the life of the nation’ under Article 15 ECHR.59 The Commission therefore had to determine whether a ‘public emergency’
50 Mokhtar (n 43) p 69. 51 Hartman (n 20) p 16.
52 Ireland v United Kingsdom Series A 5310/71 (1978) EHRR para 205, Brannigan and McBride v United
Kingdom Series A 5/1992/350/423-424 (1993) EHRR 258 para 47 and 50, and Aksoy v Turkey Series A
21987/93 (1996) EHRR 68 para 70.
53 Sakik and others v Turkey No 86 (1997) EHRR 662. 54 ibid para 39.
55 Mokhtar (n 43) p 69. 56 Lawless 1961 (n 44) para 28. 57 Factsheet on Article 15 (45) p 3. 58 The Greek Case (1969) 12 YB 1. 59 Svensson-McCarthy (n 11) p 300.
existed on 21 April 1967 and still existed when it examined the case.60 Regarding the
definition of a ‘public emergency’ the Commission followed the definition of the Court in the Lawless case, however it elaborated on this definition.61 It noticed that in the French text of the Lawless judgement not only the word ‘exceptionnel’ but also ‘imminent’ was mentioned. The inclusion of the word ‘imminent’ must be given weight because it is the French text, which is authentic.62 The term prevents the declaration of public emergency in those
situations where a danger, although maintaining the potential to threaten the life of the nation, does not imminently threaten it.63 Imminent means that the danger of the emergency is either about to happen or likely to take place at any moment and the State must observe the danger as unavoidable and non-evadable.64
Moreover, the Commission stated in the Greek case that a ‘public emergency’ must have the following characteristics: 1) it must be actual or imminent; 2) its effects must involve the whole nation; 3) the continuance of the organised life of the community must be threatened; and 4) the crisis or danger must be exceptional, in that normal measures or restrictions, permitted by the Convention for maintenance of public safety, health and order, are plainly inadequate.65 It stated that the burden of proof lied upon the respondent Government to show that the conditions justifying measures of derogations under Article 15 have been met.66 In the Commission’s opinion the respondent Government had not satisfied the Commission by the evidence it has adduced that there is or has been since 21 April 1967, a public emergency threatening the life of the Greek nation and thus, had not sufficiently demonstrated that the situation meets the four above mentioned requirements of a ‘public emergency’.67
This interpretation, whether a ‘public emergency’ existed, has been confirmed in later case law.68
Interpretation of the term imminence within a ‘public emergency’
This approach and these standards were confirmed in the case of A and Others, which
concerned the derogation by the United Kingdom in 2001 after the 9/11 terrorist attacks in the
60 The Greek Case (n 58) para 52. 61 Rainey,Wicks and Ovey (n 23) p 116. 62 The Greek Case (n 58) para 112. 63 Mokhtar (n 43) p 68.
64 Van Dijk and others (n 39) p 1061. 65 The Greek Case (n 58) para 113. 66 ibid para 114.
67 ibid para 144.
United States of America.69 The derogation measure permitted detention without trial of foreign nationals that were suspected of involvement in terrorist activities, and was based on a ‘public emergency’. The government thought that certain foreign nationals in the United Kingdom constituted a threat to the country. A question was whether Article 15 ECHR applied to an uncertain situation as apparently represented by the alleged threat posed to the United Kingdom by a highly organized terrorist organization, also known as Al-Qaeda, which was possibly capable and had the intention to commit savagery attacks against civilian targets on an unprecedented scale, like the events of 9/11 in the United States. The British
government claimed that such a public emergency existed, because of its close links with the United States making it a particular target.70 No other State of the Council of Europe had derogated from the ECHR, even though they were according to the Court also subject to threats of the terrorist organization, Al-Qaeda.71 Many States within the Council of Europe,
including Germany, The Netherlands, France and Italy were equally affected, but did not derogate from the Convention.72 The Court however accepted that it is up to each State, in order to protect their people’s safety, to make their own assessment on the basis of the facts known to them.73 Although no attack had taken place in the United Kingdom at the time of the derogation, the Court stated that the government could not be criticised for fearing such an attack to be imminent. The requirement of imminence should not be interpreted so narrowly in the sense that a State has to wait for the attack to come, before taking measures to deal with it. ‘The danger of a terrorist attack was, tragically shown by the bombings and attempted bombings in London in July 2005 to have been very real.’74 The Court shared the view of the national court, House of Lords, on the first question, by accepting that there was ‘a public emergency threatening the life of the nation’ at that time.75
Margin of Appreciation with respect to the existence of a public emergency
The margin of appreciation doctrine in general means that State Parties to the Convention have a certain measure of discretion in implementing the provisions of the Convention.76 It was not stated in the Convention itself or in the Conventions’ Travaux Préparatoires, the
69 A and Others v United Kingdom Series A 3455/05 (2009) EHRR. 70 ibid para 10.
71 ibid para 175 and 180.
72 J Zand ‘Article 15 of the European Convention on Human Rights and the notion of a state of emergency’ (2014) Journal of the Faculty of Law of Inonu University Volume 5 (1) p 195-196.
73 A and Others 2009 (n 69) para 180. 74 ibid para 177.
75 ibid para 180. 76 ibid.
doctrine has developed in the jurisprudence of the former Commission and Court, and was established for the first time in case law assessing the reaction of States to a state of
emergency.77 The margin of appreciation from then on has come to play a central role in the case law concerning the derogation clause of Article 15.78
To assess compliance with Article 15, the Court needs to determine what can constitute a ‘public emergency’. The question whether the respondent State acting in good faith had the right to identify the existence of a public emergency under Article 15 ECHR, is a difficult and delicate task.79 The margin of appreciation doctrine therefore takes an important place in the question whether there exists a public emergency.
In the Cyprus case,80 the Commission declared itself on the one hand competent to decide whether derogation under Article 15 was justified and also whether the measures invoked were limited to those ‘strictly required by the exigencies of the situation’. On the other hand, the Commission stated that ‘the Government of Cyprus should be able to exercise a certain measure of discretion in assessing the ‘extent strictly required by the exigencies of the situation’.81 Later on in the Lawless case, the Commission again used the margin of
appreciation doctrine in determining whether a ‘public emergency’ existed. The Commission stated that:
Having regard to the high responsibility which a government has to its people to protect them against any threat to the life of the nation, it is evident that a certain discretion – a certain margin of appreciation – must be left to the Government in determining whether there exists a public emergency which threatens the life of the nation and which must be dealt with by exceptional measures derogating from its normal obligations under the Convention.82
Although the Court itself did not explicitly mention the margin of appreciation doctrine in Lawless, it implicitly referred to it in their judgement. The Court concluded that ‘the existence at the time of a ‘public emergency threatening the life of the nation,’ was reasonably deduced
77 Gross and F Ni Aoláin ‘From Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rights’ (2001) Human Rights
Quarterly 23 (3) p 625.
78 ibid p 630.
79 Harris (n 10) p 829.
80 Greece v United Kingdom (1958) 176 YB II. 81 ibid para 143.
by the Irish Government from a combination of several factors’.83 Since this case, the margin of appreciation doctrine has developed more and more before the Court in cases concerning derogation under Article 15.The first case in which the Court explicitly expressed the doctrine, instead of implicitly referring to it as in the Lawless case, was Ireland v United Kingdom.84 The Court adopted a wide margin of appreciation doctrine by stating that:
It falls in the first place to each Contracting State, with its responsibility for ‘the life of [its] nation’, to determine whether that life is threatened by a ‘public emergency’ and, if so, how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it. In this matter Article 15 paragraph 1 leaves those authorities a wide margin of appreciation. Nevertheless, the States do not enjoy an unlimited power in this respect. The Court, which, with the Commission, is
responsible for ensuring the observance of the States' engagements, is empowered to rule on whether the States have gone beyond the ‘extent strictly required by the exigencies’ of the crisis (Lawless judgment). The domestic margin of appreciation is thus accompanied by a European supervision.85
This flexible point of view towards States in determining whether a ‘public emergency’ exists, by giving States a ‘wide margin of appreciation’, has been confirmed in later case law.86 It can therefore be concluded that the Court affords State Parties a wide margin of appreciation within the first requirement, subjected to a European supervision. The second requirement of Article 15 ECHR ‘strictly required by the exigencies of the situation’ is therefore important and will be discussed in more detail below.
B. Strictly required by the exigencies of the situation
If it is established that the first condition of Article 15, the existence of a public emergency is met, the second criterion for valid derogation comes into place. This condition implies the
83 Lawless 1961 (n 44) para 28. 84 Ireland (n 52).
85 ibid para 207.
question whether the measures were ‘strictly required by the exigencies of the situation’.87 In other words, are the measures taken, which under normal circumstances are being contrary to the Convention, proportional to the actual emergency facing the authorities at the time?88 This implies the principle of proportionality.89 This requirement means that States do not enjoy an unlimited power to take measures under Article 15 of the Convention, as the Court has to ascertain whether the measures gone beyond the ‘extent strictly required’. However this is again an area were the margin of appreciation plays an important role.90
In determining whether a State has gone beyond what is ‘strictly required’, different elements may play a role in the necessity of the measures to cope with the threat, the proportionality of the measures in view of the threat and the duration of measures taken.91 Furthermore, it has been determined that the Court in exercising its supervision, will also give appropriate weight to factors such as: the nature of the rights affected by the derogation, the circumstances leading to, and the duration of, the emergency situation.92 Additionally it is important to consider alternative measures and the existence of safeguards against abuse of power, which may be useful in order to protect an individual from being the victim of serious human rights violations.93 These different factors are discussed in the following paragraphs on the basis of the most relevant cases of the Court.
Necessity of the measures
The Lawless case was the first case in which the ‘strictly required’ requirement was applied. The applicant argued that even if there was a public emergency at the time, the measures taken were disproportionate to the strict requirement of the emergency situation.94 First, the Court had to examine the necessity of the measures taken by assessing why the ordinary law or measures compatible with the ECHR were not adequate to meet the emergency situation and why the measures taken were. The measures have to be immediately and directly relevant in order to protect against the danger. In other words, if the State can deal with the danger under normal law with normal measures, than the State is obliged to use normal measures, as there is no necessity for derogation.95 In the Lawless case the Court stated that none of the
87 ECHR, art 15(1). 88 Harris (n 10) p 837.
89 A Manual on Human Rights for Judges, Prosecutors and Lawyers (n 24) p 852. 90 Brannigan (n 52) para 43.
91 Van Dijk and others (n 39) p 1063. 92 Brannigan (n 52) para 43.
93 Harris (n 10) p 837.
94 Lawless 1961 (n 44) para 32. 95 Van Dijk and others (n 39) p 1063.
means available to the government would have made it possible to deal with the situation and to restore peace and order whereas the detention without trial did and therefore the
requirement of necessity was fulfilled.96
In Ireland v United Kingdom, the Court accepted that the ordinary criminal procedure had proved unable to control terrorism in Northern Ireland and that extrajudicial deprivation of liberty and the removal of procedural guarantees to regulate depreciation of liberty were necessary to meet the exceptional situation in this case. In the view of the States’ margin of appreciation the Court determined that the government did not exceed in this respect the requirement of Article 15 to the extent ‘strictly required’.97 The Court left the State a wide margin of appreciation in assessing whether a public emergency exists and, if so, what was necessary to overcome the emergency. This wide margin of appreciation was due to the direct and continuous contact of the government with the pressing needs of the moment. The
national authorities were in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations
necessary to avert it.98 Although this margin of appreciation is not unlimited, it was not established that the United Kingdom had exceeded the ‘extent strictly required’ by the exigencies of the situation, within Article 15 (1) ECHR.99
In both Lawless and Ireland v United Kingdom, the Court accepted the fact that the threat of terrorism could not have been dealt with sufficiently under normal legislation. Therefore, exceptional measures were necessary, as the normal measures were inadequate to deal with the situation.100
The existence of safeguards
Effective safeguards used in order to prevent abuse of power play an important role in determining whether measures taken are strictly required. In the Lawless case the measures taken, special powers of detention, were subject to a number of safeguards designed to prevent abuses in the operation of administrative detention. These safeguards were: the application of the Act was subject to constant supervision by Parliament; the establishment of a ‘Detention Commission’ consisting of one member of the Defence Forces and two judges, 96 Lawless 1961 (n 44) para 36. 97 Ireland (n 52) para 220. 98 ibid para 207. 99 ibid para 220. 100 Kirchner (n 41) p 12.
whereas any person detained under the measure could refer his case to this Commission, whose judgement was binding upon the Government; and the Government stated that it would release any person detained who gave an undertaking not to engage in any illegal activity.101 The Court in this case concluded that the detention without trial, subject to the before mentioned safeguards, was a measure strictly required by the exigencies of the situation within Article 15 ECHR.102
In the Brannigan and McBride case the Court was satisfied that safeguards against abuse did in fact exist and provided a significant measure of protection against the danger of arbitrary behaviour and incommunicado detention.103 The remedy of habeas corpus was available to test the lawfulness of the original arrest and detention; the detainees had an absolute and legally enforceable right to consult a solicitor after forty-eight hours from the time of the arrest; and finally detainees were entitled to inform a relative or friend about their detention and had access to a doctor.104 Additionally the operation of the legislation in question was kept under regular independent review and it was subject to regular renewal.105
Safeguards can thus play an important role, however they have to be effective in order to ensure that derogations do not go beyond what is ‘strictly required’. This more stringent approach appeared in Aksoy v Turkey, where the Court gave importance to the provisions of safeguards against abuse or excessive use of emergency powers.106 The Court went into, in contrast to the Brannigan and McBride case, insufficient safeguards of Turkey by stating that:
The Court considers that in this case insufficient safeguards were available to the applicant, who was detained over a long period of time. In particular, the denial of access to a lawyer, doctor, relative or friend and the absence of any realistic possibility of being brought before a court to test the legality of the detention meant that he was left completely at the mercy of those holding him.’107
101 Lawless 1961 (n 44) para 37. 102 ibid. 103 Brannigan (n 52) para 62. 104 ibid para 63-64. 105 ibid para 65.
106 Rainey,Wicks and Ovey (n 23) p 118. 107 Aksoy (n 52) para 83.
The Court did take into account the serious problem of terrorism in South East Turkey and the difficulties in taking effective measures against it.108 However it was not ‘persuaded that the exigencies of the situation necessitated the holding of the applicant on suspicion of
involvement in terrorist offences for fourteen days or more in incommunicado detention without access to a judge or other judicial officer.’109 The Court therefore concluded for the first time that the derogation measure taken by the State was not ‘strictly required by the exigencies of the situation’ and could thus not be justified under Article 15 ECHR.110
Proportionality of the measures taken
It is not always enough to establish the necessity for emergency measures in order to comply with the requirement of ‘strictly required’. The proportionality of the emergency measures taken to deal with the emergency can play a role, it is important that measures are
proportional to the danger.111 It means that it should be determined whether the measures taken are the least draconian compared with other possible measures.112 This principle contains three elements: severity, duration and geographic scope of emergency measures.113
In the Lawless case this requirement of proportionality was complied with, as the government had not proceeded to take more far-reaching measures, such as the sealing of the border, which would have had serious consequences for the population as a whole and would have gone beyond the exigencies of the emergency in Ireland.114 The severity element was therefore met. Additionally many of the disputed derogation measures concerned the
elimination of safeguards against abuse of powers of arrest or detention, usually the removal of the judicial element.115 In determining the proportionality of the reaction of the State, the Court must also check the alternative mechanisms of supervision of the State. Thus in the case of Ireland v United Kingdom an advisory committee with a non-judicial character was set up and additionally there was the valuable, but limited, review effected by the courts when the opportunity arose.116 By applying these alternative measures, the State had taken a
proportional response.
108 ibid para 84. 109 ibid.
110 ibid para 84, 86.
111 Van Dijk and others (n 39) p 1064. 112 Harris (n 10) p 841.
113 Mokhtar (n 43) p 70. 114 Lawless 1961 (n 44) para 36. 115 Harris (n 10) p 841.
So far, there is no case law in which the element of duration of the measures has been a crucial issue. However, it is arguable that certain measures, which were very important and necessary at their establishment, are no longer required due to the fact that they are ineffective or if it can no longer be established that they were strictly required by the situation.117 In the case law it has been determined that ‘the interpretation of Article 15 must leave a place for progressive adaptions.’118
Thirdly, the element scope refers to the proportionality of the measures concerning their geographical scope. In the case of Sakik v Turkey119 the Court concluded that if a derogation measure is taken for a specific area in the territory, this derogation could not be claimed outside that territory. The applicant in this case was arrested in an area not specified as being covered by the derogation, namely Ankara. The Court stated that the measures taken were not ‘strictly required’ in accordance with Article 15(1) as it would be working against the object and purpose of that provision to extend its effects to a part of the territory not explicitly named in the notice of derogation.120
Furthermore, in the Aksoy case the Court stressed the importance of the nature of deviated Article 5 ECHR, which is a fundamental human right as it protects the individual against arbitrary interference by a State with his or her right of liberty.121 Although investigation of
terrorist offences presents the authorities of a State with special problems, according to the Court it is ‘not necessary to hold a suspect for fourteen days without judicial intervention. This period is exceptionally long, and left the applicant vulnerable not only to arbitrary interference with his right to liberty but also to torture.’ Additionally, with regards to the duration without supervision, the government of Turkey had not adduced any detailed reasons to the Court as to why the fight against terrorism in South East Turkey rendered judicial intervention impracticable.122 The detention for fourteen days without judicial intervention in this case was therefore disproportionate.
The case of A and Others, concerned measures providing detention without trial for a number of foreign nationals with alleged connection to terrorist organisation Al-Qaeda.123 Although
117 Rainey,Wicks and Ovey (n 23) p 118. 118 Ireland (n 52) para 220.
119 Sakik (n 53). 120 ibid para 39.
121 Aksoy (n 52) para 76. 122 ibid para 78.
national authorities contain a wide margin of appreciation in determining whether the nature and scope of the derogation measures are necessary to avert the emergency, it is for the Court to decide whether these measures were ‘strictly required’. Especially when derogation
measures violate a fundamental right from the Convention, such as the right to liberty. The Court must be satisfied that it was a genuine response to the emergency situation, that it was fully justified by the special circumstances of the emergency and that adequate safeguards were provided against abuse.124 Additionally, ‘the question of proportionality is ultimately a judicial decision, particularly in a case such as the present, where the applicants were deprived of their fundamental right to liberty over a long period of time.’125
The derogation measures were disproportionate as they discriminated between nationals and non-nationals, as the threat from non-nationals was not more serious than that from nationals. The measures were therefore not found to be ‘strictly required by the exigencies of the
situation’ within the meaning of Article 15 ECHR.126
It can be concluded, that in assessing the second requirement of Article 15(1), whether the measures taken were ‘strictly required’, the Court gives States a wide margin of appreciation. However, States do not enjoy an unlimited power of appreciation, as it is for the Court to determine whether States have gone beyond the ‘extent strictly required’ based on the necessity, proportionality and duration of the measures taken. Additionally the nature of the rights affected, circumstances leading to the emergency situation and the existence of safeguards against abuse of power may play a role.
C. Consistency with other obligations under international law
In order for a derogation to be valid, the measures taken under Article 15 ECHR must not be inconsistent with the State Party’s other obligations under international law.127 Examples of other obligations under international law are other treaty obligations,128 obligations under customary law or generally recognised legal principles.129 In other words, it is not permitted for a State to avail itself of Article 15 in order to release itself from its obligations under
124 A and Others 2004 (n 123) para 184. 125 ibid.
126 ibid para 186 and 190. 127 ECHR, art 15(1).
128 Obvious sources of treaty obligations are the ICCPR as all Convention member states are parties to the ICCPR, and the 1949 Geneva Conventions of the Red Cross and the Additional Protocols thereto (1977), as the great majority of Convention member states are parties to these conventions and which are intended to be applied in emergency situations.
international law. The same condition can also be found in the general principle of Article 53 ECHR.130
In practice however, this requirement has played so far no significant role in the case law of Article 15. In both the Lawless case131 and Ireland v United Kingdom,132 the Court simply stated that the measures of derogation taken by the State did not conflict with the said State’s other obligations under international law and therefore did not violate the requirement. The Brannigan and McBride case has been the only case so far in which other international obligations were identified.133 In this case, the applicants referred to the ICCPR to which the United Kingdom is a State Party.134 The applicants contended that it was an essential
requirement for a valid derogation under Article 4(1) ICCPR that a public emergency must have been officially proclaimed.135 The absence of this official proclamation from the
government of the United Kingdom was according to the applicants, inconsistent with the United Kingdom’s other obligations under international law according to Article 15(1) ECHR.136 The Court first stated that ‘it is not its role to seek to define authoritatively the meaning of the terms ‘officially proclaimed’ in Article 4 of the Covenant.’ Nevertheless, the Court determined that it must examine whether there was any plausible basis for the
applicants’ submission in this case.137 It concluded with the rejection of the argument by saying that the statement of the Secretary of State for the Home Department on 22 December 1988 was formal in character and made public the Government’s intentions with regards to derogation under both Article 15 ECHR and Article 4 ICCPR, and was therefore ‘well in keeping with the notion of an official proclamation.’138 The Court thus found the submission ill founded on this point and the derogation of the United Kingdom complied with the requirements of Article 15 ECHR, therefore there had been no violation of Article 5(3) ECHR.139
130 Article 53 ECHR: ‘Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a party’.
131 ibid para 41.
132 Ireland (n 52) para 222. 133 Brannigan (n 52).
134 The United Kingdom has ratified the ICCPR on 20 May 1976. 135 Brannigan (n 52) para 68.
136 ibid. 137 ibid para 72. 138 ibid para 73. 139 ibid para 74.
It can be concluded that the requirement of Article 15(1) stating that derogations may not be inconsistent with other obligations under international law is important, however it has not been proved to be problematic in the past as it played little part in case law.
2.3. Article 15(2): no derogation from certain provisions (non-derogable rights) The second paragraph of Article 15 contains provisions from which no derogation may be made under any circumstances, not even in times of a state of emergency. No matter how serious the emergency seems these rights are non-derogable.140 The non-derogable rights under the Convention are fewer than under the ICCPR, although there has been a tendency in recent years to extend it by adopting additional Protocols.141 This paragraph discusses the non-derogable rights under Article 15(2) ECHR.
According to Article 15(2) ECHR the following four rights are non-derogable: Article 2 the right to life, except in respect of deaths resulting from lawful acts of war; Article 3 the prohibition of torture and other forms of ill-treatment; Article 4(1) the prohibition of slavery or servitude; and Article 7 no punishment without law.142 Additionally three of the additional protocols to the Convention contain provisions from which no derogation is allowed. Protocol 6, which prohibit the death penalty in times of peace and limit the death penalty in time of war.143 Article 4 of Protocol 7,144 which contains the ne bis in idem principle and Protocol 13,145 which prohibits the death penalty in all circumstances.146
The effect of Article 15(2) ECHR and the provisions in the additional protocols is thus that the non-derogable rights remain applicable in time of emergency regardless of the derogations invoked by a State.147 These rights are however not all absolute. Some provisions contain limitation clauses, which make it possible to limit the right under certain circumstances without being in contravention of the article. The second paragraph of Article 15 includes the exception that the right to life will not be violated if the death results from a lawful act of war.148 Additionally the exceptions that are already incorporated in Articles 2(2) and 7(2)
140 ECHR, art 15(2).
141 Svensson-McCarthy (n 11) p 497. 142 ibid.
143 Russia is the only Council of Europe State not to have ratified this additional Protocol.
144 As of September 2013, the UK has not signed this protocol, while Germany, the Netherlands, and Turkey have all signed but not ratified it.
145 Neither Russia nor Azerbaijan have signed this Protocol; Poland has signed but not ratified it. 146 Rainey,Wicks and Ovey (n 23) p 114.
147 Guide on Article 15 (n 13) para 27. 148 ECHR, art 15(2).
ECHR will also continue to apply, making the articles not absolute.149 With regards to Article 2 ECHR150, any deprivation of life will not violate the article if it results from the use of force which is no more than absolutely necessary in the circumstances mentioned in its second paragraph, some of which can be relevant for a state of emergency, such as the right to use force resulting in death for the purpose of quelling an insurrection.151 Since Articles 2 and 7 ECHR themselves contain certain exceptions, we can conclude that Articles 3 and 4(1) ECHR are the only rights that are non-derogable in their entirety and are thus absolute rights.152
An example of this requirement of Article 15(2) can be found in the Aksoy case. In this case the Court found a violation of Article 3 ECHR, as the treatment was of such a serious and cruel nature, that it could only be described as torture. The Court therefore determined that:
Unlike most of the substantive clauses of the Convention and of Protocols Nos.1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15, even in the event of a public emergency threatening the life of the nation.153
Although Article 15(2) of the Convention does not refer to other provisions, there are provisions that can have influence on the legality of measures of derogations. An example hereof is Article 14 ECHR, which includes the prohibition of discrimination.154 Even though this article is not listed under Article 15(2), there are elements of the right of
non-discrimination from which no derogation under any circumstances is allowed, especially if any distinctions between persons are made when resorting to derogation measures.155 In for example the case A and Others of the House of Lords,156 the majority of the judges held that even as part of the existing public emergency there had been a violation of Article 14 ECHR read with Article 5. Due to the discriminatory treatment existing on grounds of nationality
149 Guide on Article 15 (n 13) para 28. 150 ECHR, art 2 (2) (a-c).
151 Harris (n 10) p 845.
152 R Higgins Themes and Theories: Selected Essays, Speeches, and Writings in International Law (Vol 1 Oxford University Press 2009) p 481.
153 Aksoy (n 52) para 62. 154 ECHR, art 14.
155 UN Human Rights Committee ‘General Comment 29: Article 4: Derogations during a State of Emergency’ (2001) UN Doc CCPR/C/21/Rev.1/Add.11 para 8.
between suspected international terrorists and nationals from the United Kingdom who were also suspected of terrorism.157
It can be concluded, that there are certain rights under the Convention which are non-derogable and of which no derogations, not even in a state of emergency, are allowed.
2.4 Article 15(3): procedural requirements (notification)
The third paragraph of Article 15 defines the procedural requirement of the derogation clause, the notification principle. There is no requirement in Article 15 ECHR for an official
proclamation of the public emergency in the national legal order. The State has an obligation to notify the Secretary General, but not the citizens.158 The condition of Article 15(3) requires the State invoking the right to derogate to keep the Secretary General of the Council of
Europe fully informed of the measures it has taken and the reasons therefore. It must also give notice when such measures have ceased to operate and the provisions of the Convention have been fully reinstated.159 This condition is seen as a safeguard against abuse of the derogation clause as the derogation becomes public, moreover the Secretary General informs other State Parties to the Convention about the notice of derogation.160 The other parties are in this way put on notice that there are circumstances that demand their consideration.161
Unlike Article 4 ICCPR,162 the text of Article 15 ECHR does not require an official
declaration of a state of emergency. However the Commission stated that it could not apply Article 15 to the measures taken by Turkey in the absence of some formal and public act of derogation by Turkey.163
Regarding the time element, Article 15(3) does not state that the notification must be prior to the date from which a State executes the measures of derogation. There are no time limits prescribed by the provision.164 However, the Court stated in the Lawless case, that the information to be given to this Secretary General must take place ‘without delay’ after the measures derogating from their obligations under the Convention entry into force. In this case the Court accepted a delay of twelve days to be in conformity with Article 15(3).165 The
157 Harris (n 10) p 845.
158 Lawless 1961 (n 44) para 47. 159 ECHR, art 15(3).
160 Council of Europe, Committee of Minsters, ‘Supplementary Report of the Committee of Ministers’ (September 1956) Resolution (56) 16 Doc 624.
161 Harris (n 10) p 846. 162 ICCPR, art 4(1).
163 Cyprus v Turkey (1976) Report 9780/74 (EComHR) para 527. 164 Harris (n 10) p 846.
Commission expressed this as ‘without any avoidable delay’.166 However, the Commission in the Greek case concluded that the Government had not fully met the requirements of Article 15(3). The Government did not communicate to the Secretary-General the texts of some derogation measures; it did not provide full information of the administrative measures; and it did not communicate the reasons for the derogation measures until more than four months after they were taken.167 Therefore, we can conclude that States might inform the Council of Europe only after measures of derogation are taken, but that a delay of more than four months is considered too long.
Furthermore, Article 15(3) does not afford clear guidance as to what information the State must provide and prescribes therefore not a special form for the requirement of notification. In Greece v the United Kingdom, the Commission stated that while it is true that the third paragraph does not specify that the texts of the relevant measures are to be furnished to the Secretary General, it considered it to be essential that the texts of the emergency measures should form part of the information for the satisfactory working of the Convention.168 Additionally the government must provide ‘sufficient information concerning the measures taken to enable the other high contracting parties and the European Commission to appreciate the nature and extent of the derogation from the provisions of the Convention’.169
It is up to the Court to determine whether the notification requirement of Article 15(3) has been fulfilled and the Court is allowed to examine this on its own motion. Especially whether the notice of derogation contained sufficient information about the measure in question.170 Additionally in the Sakik and Others case, the Court stated that it would work against the object and purpose of the provision to extend the effects to a part of Turkish territory, which is not explicitly named in the notion of derogation.171
Furthermore, it has been determined by the Court that the third paragraph of Article 15 implies an obligation to keep the need for emergency measures under permanent review.172
The legal consequences for not meeting the requirement of notification under Article 15(3) are unclear. The Commission recalled in the Cyprus case173 that a failure to comply with
166 Lawless (1959) (n 82) para 80. 167 The Greek Case (n 58) para 46. 168 Greece (n 80) p 170. 169 Lawless (1959) (n 82) p 73. 170 Aksoy (n 52) para 86. 171 Sakik (n 53) para 39. 172 Brannigan (n 52) para 54. 173 Cyprus 1976 (n 183).
Article 15(3) may ‘attract the sanction of nullity or some other sanction’.174 The Commission stated that whenever a State Party fails to publicly declare a state of emergency, the State is deprived of the right to invoke Article 15(1) ECHR.175 This however leaves open the effects of declaring a state of emergency, but failing to inform the Secretary General based on Article 15(3) ECHR. Since there is no case law on this issue, the consequences of failing the
information requirement are yet unclear.176 What is clear is that whenever the measures have ceased to operate and the provisions of the ECHR are being applied again, a derogating State needs to inform the Secretary-General under Article 15(3). The idea behind this is that the States and the Secretary-General are able to check whether the rights under the Convention are being fully respected again.177
Finally, whenever the derogation is withdrawn according to Article 15(3), at least concerning measures taken after this withdrawal of the derogation, examination of the case must proceed on the basis that the articles of the ECHR in respect of which complaints are made, remain fully applicable. This does however, not prevent proper account being taken of the
background circumstances of the case. The Court stated in Brogan and Others case that it is up to the Court to ‘determine the significance to be attached to those circumstances and to ascertain whether… the balance struck complied with the applicable provisions of that Article in the light of their particular wording and its overall object and purpose.’178
2.5 Conclusion
This chapter provided the legal framework of the derogation clause of the European Convention, Article 15. It can be concluded that Article 15 determines that a State may validly derogate from some of its human rights obligations ‘in time of war or other public emergency’, measures taken should be ‘strictly required by the exigencies of the situation’ and finally the measures taken must not be inconsistent with the State Party’s other
obligations under international law. It is noted that States are afforded a wide, but not
unlimited, margin of appreciation in determining both the presence of a public emergency and the nature and scope of derogations necessary to prevent it. Furthermore, certain rights under the Convention are non-derogable of which no derogation is allowed. Besides this, Article 15 outlines a procedural requirement, the notification principle.
174 ibid para 526. 175 ibid para 527.
176 Van Dijk and others (n 39) p 1071. 177 ibid.
