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Reply to Recommendation | Doc. 14770 | 05 December 2018
State of emergency: proportionality issues concerning derogations under Article 15 of the European Convention on Human Rights
1. The Committee of Ministers has carefully
examined Parliamentary Assembly Recommendation 2125 (2018) on “State
of emergency: proportionality issues concerning derogations under
Article 15 of the European Convention on Human Rights”. It has communicated
the Recommendation to the Steering Committee for Human Rights (CDDH)
and to the Committee of Legal Advisers on Public International Law
(CAHDI) and taken account of their comments in the present reply.
2. The question of a State exercising the right to derogate from
its obligations under the Convention and the relevant Protocols
is undoubtedly a crucial one. The possibility for States to do so,
in the circumstances, to the extent and in the manner stipulated
in Article 15, is an important feature of the system, permitting
the continued application of the Convention and its supervisory
machinery even in the most critical times. It can be said that,
in general, States have made sparing use of this facility. As indicated
in the relevant factsheet prepared by the Registry of the European
Court of Human Rights ,
during the lifetime of the Convention eight States have derogated
from some of their obligations under this instrument.
3. The Convention does not leave States a free hand in the matter.
On the contrary, the right to derogate is clearly circumscribed
by the text of Article 15. Furthermore, and crucially, both the
scope and the form of a State’s derogation are subject to the scrutiny
of the European Court of Human Rights. That scrutiny has been detailed
and robust, and has given rise to an elaborate jurisprudential framework
relating to the issue, which is described in the recent case-law
guide published under the authority of Court’s Jurisconsult . Bearing
in mind specifically paragraph 19.6 of the Parliamentary Assembly’s Resolution 2209 (2018) on
the same subject as its Recommendation
2125 (2018), the Committee notes the importance of ensuring
the continued functioning of democratic institutions and processes
in the member States in times of emergency, as has also been reflected
in recent judgments of the Court. These emphasise that even in such
circumstances, any measures taken should seek to protect the democratic
order from the threats to it, and every effort must be made to safeguard
the values of a democratic society . What these recent judgments
also illustrate is the ability of the Court to deal expeditiously
with cases involving emergency situations and derogations under
Article 15. Granted priority by the Court on account of the deprivation
of the applicants’ liberty, the applications were decided in little
over a year. In this way, the Court’s assessment regarding the derogation
was made at a relatively early stage.
4. In addition to scrutiny at the international level, the importance
of judicial safeguards and remedies at the domestic level is to
be underlined. As can be seen in the Court’s case-law, the assessment
made by the highest domestic courts of the validity of measures
applied pursuant to a derogation under the Convention, or an analogous
procedure under domestic law, is of particular significance. The
concepts of subsidiarity and shared responsibility in safeguarding
human rights, most recently reaffirmed in the Copenhagen Declaration, remain
relevant in the context of Article 15 as well. Of potential relevance
too is Protocol No. 16, in force since 1 August 2018. For the States
parties to that instrument, the possibility now exists for their
highest courts to seek an advisory opinion from the European Court
on questions of principle that concern the interpretation or application
of the rights and freedoms protected by the Convention and its relevant
protocols.
5. The Committee recalls that it has addressed, in the context
of the fight against terrorism, the issue of derogating from Convention
obligations, reminding States that circumstances which led to the
adoption of such derogations need to be reassessed on a regular
basis with the purpose of lifting these derogations as soon as these
circumstances no longer exist (see the Guidelines on human rights
and the fight against terrorism, guideline no. XV). It also recalls
its reply to Parliamentary Assembly Recommendation 1865 (2009) on the protection
of human rights in emergency situations (CM/AS(2010)Rec1865-final).
It reiterates the statement therein that, given the impact on individual
rights and freedoms, the declaration of a state of emergency must be
used with utmost care and as a means of last resort only, and never
be a pretext to restrict the exercise of fundamental human rights
unduly.
6. In light of the considerations set out above, and sharing
the views that were conveyed to it by the CDDH and the CAHDI, the
Committee does not see at the present time any clear need to envisage
a recommendation to the member States on the matter.