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Resolution 2209 (2018)
State of emergency: proportionality issues concerning derogations under Article 15 of the European Convention on Human Rights
1. It is the State’s responsibility
to take preventive measures to protect the interests of society
in time of war or other public emergency threatening the life of
the nation, as the Parliamentary Assembly has previously noted in Resolution 1659 (2009) on
the protection of human rights in emergency situations. Such situations may
even require restrictive measures that exceed what is normally permitted
under the European Convention on Human Rights (ETS No. 5, “the Convention”).
Without appropriate guarantees, such measures create serious risks
for democracy, human rights and the rule of law.
2. The Convention is adaptable to any and all circumstances,
continuing to regulate the State’s actions even in the event of
a national crisis. Article 15 of the Convention allows States to
derogate from certain of their obligations in time of war or other
public emergency threatening the life of the nation. In no circumstances, however,
does it allow national authorities to act without constraint.
3. There can be no derogation at all from certain rights, as
specified in Article 15; nor may derogations from other rights violate
international humanitarian law or peremptory norms of international
law, or procedural guarantees in such a way as to circumvent the
protection of non-derogable rights. Fundamental safeguards of the
rule of law, in particular legality, effective parliamentary oversight,
independent judicial control and effective domestic remedies, must
be maintained even during a state of emergency. Due democratic process,
including separation of powers, as well as political pluralism and
the independence of civil society and the media must also continue
to be respected and protected.
4. Beyond these constraints, the overarching principle of proportionality
limits the action that may be taken, via the stringent test of what
is “strictly required by the exigencies of the situation”. Normal
measures or restrictions permitted by the Convention for the maintenance
of public safety, health and order must be plainly inadequate before
derogatory, emergency measures are permissible. A state of emergency
that requires derogation from the Convention must be limited in
duration, circumstance and scope. Emergency powers may be exercised
only for the purposes for which they were granted. The duration
of emergency measures and their effects may not exceed that of the
state of emergency.
5. The State must, without any unavoidable delay, inform the
Secretary General of the Council of Europe of the measures taken
and the reasons for them, and of the date when such measures have
ceased to operate and the Convention is again being fully applied.
6. Three States have or, until very recently, had derogations
in force: in chronological order, Ukraine, France and Turkey.
7. Ukraine notified the Secretary General of its derogation on
9 June 2015. It stated that the “public emergency threatening the
life of the nation” consisted of the “ongoing armed aggression of
the Russian Federation against Ukraine, together with war crimes
and crimes against humanity committed both by regular Armed Forces
of the Russian Federation and by the illegal armed groups guided,
controlled and financed by the Russian Federation”. Ukraine’s derogation
concerns four specific laws adopted on 12 August 2014. It extends
only to certain specified localities in the Donetsk and Luhansk
oblasts. The notification specifies the Convention rights from which
Ukraine derogates and indicates the nature of the circumstances
in which the derogation may be withdrawn.
8. The Assembly reiterates its condemnation of the Russian aggression
in Ukraine, in violation of international law and the principles
upheld by the Council of Europe, and recalls the credible reports
of violations of international human rights and humanitarian law
by all sides to the conflict.
9. The Assembly is concerned about the provision in one of the
Ukrainian laws permitting preventive detention for up to 30 days.
Whilst this provision seems not to have been applied, its potential
duration may be disproportionate. The Assembly is also concerned
about the manner in which some of the other laws have been applied,
in particular administration of and material conditions at the crossing
points between government-controlled and non-government-controlled
territory, and the functioning of courts transferred from non-government-controlled
territory to government-controlled territory.
10. France notified the Secretary General of its derogation on
24 November 2015. The notification recalls that “on 13 November
2015, large-scale terrorist attacks took place in the Paris region”
and asserts that “the terrorist threat in France is of a lasting
nature”; later notifications prolonging the derogation refer also
to “an imminent danger resulting from serious breaches of public
order”. France’s derogation relates to its application of Law No. 55-385
of 3 April 1955 on the state of emergency (“the 1955 Law”), which
grants a range of restrictive powers to the administrative authorities
throughout metropolitan France and its overseas territories. The
state of emergency has been prolonged on several occasions, sometimes
with modifications made to the 1955 Law and its application. The
notifications do not specify the Convention rights from which France derogated,
this not being a requirement of Article 15.
11. The Assembly reiterates its condemnation of these terrorist
attacks, which target the very values of democracy and freedom,
recalling that since November 2015, France has repeatedly suffered
further such atrocities.
12. The Assembly notes with concern the various criticisms made
of the state of emergency in France, including its use of subjective
and insufficiently precise terms to define the scope of application
and its reliance on posterior judicial review by the administrative
courts, including on the basis of intelligence reports, instead of
the prior authorisation by the ordinary courts required under criminal
law. It is also concerned about the cases of improper behaviour
by police during administrative searches and the application of
emergency measures to situations not directly related to the grounds
for the state of emergency. It notes that these matters have been carefully
examined by the competent domestic courts. It welcomes the structured,
continuous parliamentary oversight of the state of emergency and
the close scrutiny given to it by national human rights structures,
civil society and the media, to whose criticisms the government
remained attentive.
13. On 30 October 2017, France adopted a new law on “reinforcing
domestic security and the fight against terrorism” (“the 2017 Law”),
including measures with a similar aim to some of those previously
available under the state of emergency, subject to enhanced legal
guarantees. This permitted the lifting of the state of emergency
and the withdrawal of the derogation. The Assembly, recognising
the legal and political complexities involved, welcomes the end
of the state of emergency in France, whose duration had become questionably
long. It encourages the French authorities to ensure that the 2017
law is applied in full compliance with Council of Europe standards,
including those of the Convention.
14. Turkey notified the Secretary General of its derogation on
21 July 2016, stating that the measures taken may involve derogation
from the obligations under the Convention, permissible under Article
15. The notification refers to the failed coup attempt of 15 July
2016 and its aftermath, which, “together with other terrorist acts
have posed severe dangers to public security and order, amounting
to a threat to the life of the nation in the meaning of Article 15
of the Convention”. Turkey’s derogation relates to the successive emergency
decree-laws that have been passed under the state of emergency that
was declared on 20 July 2016 and prolonged on several occasions
since. Turkey has notified the Secretary General of all prolongations of
the state of emergency and all of the decree-laws. It has not explained
whether there were particular circumstances to justify the prolongations.
The notifications do not specify the Convention rights from which Turkey
derogates, this not being a requirement of Article 15.
15. The Assembly reiterates its firm condemnation of the criminal
attempt to overthrow Turkey’s democratically elected institutions
and again fully acknowledges that these events were traumatic for
Turkish society. It also reiterates its recognition of the multiple
threats and challenges facing Turkey, the existence of a legitimate
reason to declare a state of emergency, and Turkey’s right and duty
to fight terrorism and address security issues in order to protect
its citizens and its democratic institutions. The Assembly also
firmly condemns terrorist attacks, which target the very values
of democracy and freedom, recalling that since the coup attempt,
Turkey has repeatedly suffered further such atrocities.
16. The Assembly recalls the conclusions it reached on the state
of emergency in Resolution
2156 (2017) on the functioning of democratic institutions
in Turkey. It also recalls the relevant positions taken by the Congress
of Local and Regional Authorities of the Council of Europe, the
Council of Europe Commissioner for Human Rights, the Conference
of International Non-governmental Organisations and the European Commission
for Democracy through Law (Venice Commission), among others. On
this basis, it considers that Turkey’s response to the unquestionably
serious situation described in the derogation is disproportionate
on numerous grounds, in particular:
16.1. the powers granted to the government have been used for
certain purposes going beyond what is strictly required by the exigencies
of the situation giving rise to the state of emergency;
16.2. the duration of the state of emergency has exceeded what
is strictly required;
16.3. emergency powers have been used, without effective parliamentary
or judicial oversight, to make permanent changes both to the status
and rights of natural and legal persons and to legislation, including in
areas of particular political and legal significance;
16.4. the overall impact of emergency measures on natural and
legal persons has been excessive in scope, by failing to distinguish
between different degrees of alleged culpability and by being permanent in
effect;
16.5. delays in implementing a timely, effective remedy for
such a large number of cases have unduly prolonged the impact of
emergency measures on persons who may have been wrongly affected.
17. The Assembly also reiterates its concerns about the wider
situation in Turkey concerning political pluralism, local democracy,
the judiciary, the situation of human rights defenders and civil
society and the media, notably in relation to the application of
anti-terrorism laws. This background heightens the Assembly’s concerns
in relation to the disproportionality of measures taken under the
state of emergency; the Assembly will continue to follow up this
issue. The Assembly is particularly concerned about the fact that
on 18 April 2018, the President of Turkey called for the presidential
and parliamentary elections, previously expected in November 2019,
to be brought forward to 24 June 2018, just hours before the Turkish
Parliament renewed the state of emergency for three months. In this
respect, the Assembly recalls the clear position of the Venice Commission
against the holding of elections or referenda under a state of emergency,
when normal democratic freedoms may be severely restricted, as is
currently the case in Turkey.
18. The Assembly therefore recommends that:
18.1. Ukraine:
18.1.1. reconsider the utility and hence
the necessity of maintaining the provision on 30-day preventive
detention, which the Constitutional Court should be given the opportunity
of examining;
18.1.2. make further efforts to enhance material conditions for
people in the Donetsk and Luhansk regions using the crossing points
between government-controlled territories and territories temporarily
under the effective control of the Russian authorities;
18.1.3. make further efforts to ensure the proper functioning
of and sufficiency of resources for courts transferred from territories
in the Donetsk and Luhansk regions temporarily under the effective
control of the Russian authorities;
18.1.4. ensure that parliamentary scrutiny of the emergency measures
is sufficient and effective;
18.2. France:
18.2.1. review the 1955 Law, which remains
on the statute books and could be used again in future, in light
of recent criticisms and the availability of comparable measures
under the 2017 Law, examining in particular concerns relating to
definitions used in certain provisions, the effectiveness of judicial
oversight, individual remedies for damage or misconduct committed
by the authorities when implementing emergency measures and the
possibility of using emergency measures for purposes without a direct
link to the situation that gave rise to the declaration of a state
of emergency;
18.2.2. to this end, conduct a careful review of the implementation
in practice of the recent state of emergency, involving representatives
of the executive and administrative authorities, the legislature,
local authorities, the judiciary and civil society;
18.2.3. ensure that the 2017 Law is applied in full compliance
with Council of Europe standards, in particular those of the Convention;
18.3. Turkey:
18.3.1. immediately inform the Secretary
General of all outstanding decree-laws introduced under the state
of emergency;
18.3.2. review as a matter of the utmost urgency all dismissals
of public officials based only on indirect or questionable evidence,
with a view to the immediate reinstatement of those whose dismissal
was not justified to a high standard of proof;
18.3.3. in order to ensure the timely availability of effective
domestic remedies, expedite examination of outstanding applications
by the Inquiry Commission for State of Emergency Measures, whilst
ensuring its independence, impartiality and transparency, and by
the administrative and superior courts of any subsequent appeals;
and expedite examination by the administrative courts of appeals
by other public officials dismissed under the state of emergency;
18.3.4. refrain from issuing any further decree-laws unless strictly
required by the immediate exigencies of the situation as defined
in the original notification of derogation;
18.3.5. use normal administrative and legislative processes for
the introduction of any future measures that may be required;
18.3.6. continue its expert-level dialogue with the Council of
Europe on state of emergency measures with a view to producing further
concrete results such as the establishment of the Inquiry Commission
for State of Emergency Measures;
18.3.7. bring an end to the state of emergency at the expiration
of the current period, withdrawing the derogation to the Convention
and thereafter using normal procedures to adopt any future measures
that may be needed to address the security situation in the country,
in conformity with Council of Europe standards, including those
of the Convention as applied in full.
19. The Assembly recommends that all States Parties to the Convention:
19.1. exercise the utmost caution
and restraint when adopting measures that might necessitate derogation
from the Convention, and before doing so, explore every possibility
for responding to the emergency situation using normal measures;
19.2. liaise with the Secretary General, as depository of the
Convention, to ascertain whether derogating is necessary and, if
so, strictly delimit the scope of any derogation;
19.3. should derogation be necessary, ensure that the Secretary
General is notified immediately and, in any case, without any unavoidable
delay, not only of the measures taken and the reasons therefor,
as required by the Convention, but also of the Convention rights
affected; and explain the justification for any extension of a derogation
in time, circumstance or scope in the relevant notification to the
Secretary General;
19.4. should a state of emergency be declared, constantly review
the necessity of maintaining it and any measures taken under it,
with, at the expiration of every period, a presumption against extending
the state of emergency or, if it is extended, in favour of repealing
it or, if not repealed, further limiting the scope of measures taken
under it;
19.5. on the basis of such review, periodically provide information
to the Secretary General, including in the context of any inquiry
under Article 52 of the Convention, on the evolution of the emergency situation
and the implementation of the state of emergency, with a view to
engaging in dialogue on the compatibility of the state of emergency
with Convention standards;
19.6. ensure that the normal checks and balances of a pluralistic
democracy governed by the rule of law continue to operate to the
maximum extent possible, respecting democratic process and the authority
of parliament and local authorities, the independence of the judiciary
and national human rights structures, and the freedoms of association
and expression, especially of civil society and the media.
20. The Assembly recommends that the Secretary General of the
Council of Europe:
20.1. as depository
of the Convention, provide advice to any State Party considering
the possibility of derogating on whether derogation is necessary
and, if so, how to limit strictly its scope;
20.2. open an inquiry under Article 52 of the Convention in
relation to any State that derogates from the Convention;
20.3. on the basis of information provided in response to such
an inquiry, engage in dialogue with the State concerned with a view
to ensuring the compatibility of the state of emergency with Convention standards,
whilst respecting the legal competence of the European Court of
Human Rights.