Article 15 of the European Convention on Human Rights

Last updated

Article 15 of the European Convention on Human Rights allows contracting states to derogate from certain rights guaranteed by the Convention in a time of "war or other public emergency threatening the life of the nation".

Contents

Article 15 of the ECHR states:

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 therefore. 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.

Conditions

Permissible derogations under article 15 must meet three substantive conditions:

  1. there must be a public emergency threatening the life of the nation;
  2. any measures taken in response must be "strictly required by the exigencies of the situation"; and
  3. the measures taken in response to it must be in compliance with a state's other obligations under international law.

In addition to these substantive requirements, the derogation must be procedurally sound. There must be some formal announcement of the derogation and notice of the derogation and any measures adopted under it, and the ending of the derogation must be communicated to the Secretary-General of the Council of Europe. [1]

“...war or other public emergency threatening the life of the nation...”

While the Court has not explicitly interpreted the term “war,” any substantial violence or unrest, even falling short of full-scale war, is likely to qualify under a “public emergency threatening the life of the nation.” Several cases have been crucial to the interpretation of Article 15.  While the phrase “public emergency threatening the life of the nation” was initially defined in the landmark case of Lawless v. Ireland (no. 3) (1961), was further elaborated upon in subsequent jurisprudence, notably “the Greek case” , which established key criteria for qualifying an emergency as a "public emergency." [2] [3] These criteria, drawn from case law and the Court's definitions, provide a comprehensive framework for understanding the scope and limitations of Article 15. Accordingly, for a derogation itself to be valid, the emergency giving rise to it must be:

Additionally, in cases like Ireland v. the United Kingdom (1978), the Court held that the situation of terrorism in Northern Ireland constituted a public emergency threatening the life of the nation, justifying derogations from certain Convention rights. Similarly, in Aksoy v. Turkey (1996), the Court recognized the PKK terrorist activity in South-East Turkey as meeting the threshold of a public emergency. Moreover, the aftermath of the 9/11 attacks in the United States, as seen in A. and Others v. the United Kingdom (2009), was considered an imminent threat justifying derogations, even though it went on to find that measures taken by the United Kingdom under that derogation were disproportionate. While the Court generally accords a wide margin of appreciation to national authorities in determining the existence of an emergency, it maintains supervisory oversight to ensure compliance with Convention standards. [3] [7]

“...measures ... strictly required by the exigencies of the situation...”

While states hold primary responsibility for determining the existence of a public emergency and the necessary derogations from human rights, the Court has the authority to assess if these measures are strictly required and consistent with international law obligations. This principle is underscored in cases such as Ireland v. the United Kingdom (1978) and Mehmet Hasan Altan v. Turkey (2018), where the Court clarified the margin of appreciation granted to states while also ensuring the protection of democratic values. Factors such as the nature of the rights affected, the circumstances leading to the emergency, and its duration are considered in the Court’s evaluation, as demonstrated in cases like Brannigan and McBride v. the United Kingdom (1993) and A. and Others v. the United Kingdom (2009). [2] [3]

“...provided that such measures are not inconsistent with [the High Contracting Party’s] other obligations under international law”

The ECtHR ensures compliance with international legal standards regarding derogations from human rights during emergencies. As affirmed in Lawless v. Ireland (no. 3) (1961), the Court has the authority to independently review Article 15 § 1 derogations, ensuring compliance with international legal standards. In Brannigan and McBride v. the United Kingdom (1993), the ECtHR clarified that derogations need not always entail formal proclamation, recognizing “official statements” as sufficient indication. Marshall v. the United Kingdom (dec.) (2001) established that prolonged emergency measures do not per se violate international legal obligations. Hassan v. the United Kingdom [GC] (2014) demonstrated the ECtHR's flexibility in interpreting Convention provisions in alignment with principles of international humanitarian law, even in the absence of formal derogations. Georgia v. Russia (II) [GC] (2021) outlined the ECtHR's methodical approach to reconciling ECHR obligations with international humanitarian law in armed conflict situations. [3] [8]

Invocations of Article 15

Most recently, Ukraine invoked Article 15, following Russia’s full-scale aggression in 2022 and establishment of martial law in the country. [9] [8] On 4 April 2024, as part of its regular communication with the Council of Europe regarding this matter, Ukraine significantly reduced the derogation and notified the Secretary General that it will no longer cover Articles 4.3 (related to forced or compulsory labor), 9 (freedom of thought, conscience and religion), 13 (right to an effective remedy), 14 (prohibition of discrimination) and 16 (restrictions on political activity of aliens) of the ECHR. [10]

The COVID-19 pandemic has led to a significant but uneven invocation of Article 15, with ten new derogations: Latvia, Romania, Armenia, the Republic of Moldova, Estonia, Georgia, Albania, North Macedonia, Serbia, and San Marino. [8] It is worth noting that while many states have introduced similar measures to tackle the pandemic, only 10 states have derogated, with Eastern European states predominating. This could be due to differences in domestic legal systems, as some are better aligned with international law. [11]

As of 2024, eight additional States parties to the ECHR – Albania, Armenia, France, Georgia, Greece, Ireland, Turkey, and the United Kingdom – have exercised their right of derogation. Among them, Greece, Ireland, the United Kingdom, and Turkey have been required to provide justifications for the measures implemented, ensuring compliance with Convention standards. [10]

Cases

The following cases are relevant to Article 15 ECHR: [10]

Reception

The Court's permissive approach to emergencies has raised criticism in academic scholarship, arguing that it should give more scrutiny to the validity of derogations in order to prevent their use as an escape clause for human rights. [12] [13]

Related Research Articles

<span class="mw-page-title-main">European Convention on Human Rights</span> International treaty to protect human rights and fundamental freedoms in Europe

The European Convention on Human Rights is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953. All Council of Europe member states are party to the convention and new members are expected to ratify the convention at the earliest opportunity.

<span class="mw-page-title-main">European Court of Human Rights</span> Supranational court established by the Council of Europe

The European Court of Human Rights (ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights (ECHR). The court hears applications alleging that a contracting state has breached one or more of the human rights enumerated in the convention or its optional protocols to which a member state is a party. The court is based in Strasbourg, France.

A fair trial is a trial which is "conducted fairly, justly, and with procedural regularity by an impartial judge". Various rights associated with a fair trial are explicitly proclaimed in Article 10 of the Universal Declaration of Human Rights, the Fourth, Fifth, Sixth, Seventh, and Fourteenth Amendments to the United States Constitution, and Article 6 of the European Convention of Human Rights, in addition to numerous other constitutions and declarations throughout the world. There is no binding international law that defines what is not a fair trial; for example, the right to a jury trial and other important procedures vary from nation to nation.

<span class="mw-page-title-main">Anti-terrorism, Crime and Security Act 2001</span> United Kingdom legislation

The Anti-terrorism, Crime and Security Act 2001 is an Act of Parliament of the United Kingdom, formally introduced into Parliament on 19 November 2001, two months after the terrorist attacks in the United States on 11 September. It received royal assent and came into force on 14 December 2001. Many of its measures are not specifically related to terrorism, and a Parliamentary committee was critical of the swift timetable for such a long bill including non-emergency measures.

Derogation is a legal term of art, which allows for part or all of a provision in a legal measure to be applied differently, or not at all, in certain cases. The term is also used in Catholic canon law, and in this context differs from dispensation in that it applies to the law, whereas dispensation applies to specific people affected by the law.

The margin of appreciation is a legal doctrine with a wide scope in international human rights law. It was developed by the European Court of Human Rights to judge whether a state party to the European Convention on Human Rights should be sanctioned for limiting the enjoyment of rights. The doctrine allows the court to reconcile practical differences in implementing the articles of the convention. Such differences create a limited right for contracting parties "to derogate from the obligations laid down in the Convention". The doctrine also reinforces the role of the European Convention as a supervisory framework for human rights. In applying that discretion, the court's judges must take into account differences between domestic laws of the contracting parties as they relate to substance and procedure. The margin of appreciation doctrine contains concepts that are analogous to the principle of subsidiarity, which occurs in the unrelated field of EU law. The purposes of the margin of appreciation are to balance individual rights with national interests and to resolve any potential conflicts. It has been suggested that the European Court should generally refer to the State's decision, as it is an international court, instead of a bill of rights.

Article 4 of the European Convention on Human Rights prohibits slavery and forced labour. Conscription, national service, prison labour, service exacted in cases of emergency or calamity, and "normal civic obligations" are excepted from these definitions.

Article 4 – Prohibition of slavery and forced labour

Article 11 of the European Convention on Human Rights protects the right to freedom of assembly and association, including the right to form trade unions, subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society".

Article 11 – Freedom of assembly and association

  1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
  2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

Article 8 of the European Convention on Human Rights provides a right to respect for one's "private and family life, his home and his correspondence", subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society". The European Convention on Human Rights (ECHR) is an international treaty to protect human rights and fundamental freedoms in Europe.

In the European Convention on Human Rights, Article 2 protects the right to life. The article contains a limited exception for the cases of lawful executions and sets out strictly controlled circumstances in which the deprivation of life may be justified. The exemption for the case of lawful executions has been subsequently further restricted by Protocols 6 and 13, for those parties who are also parties to those protocols.

Article 3 of the European Convention on Human Rights prohibits torture, and "inhuman or degrading treatment or punishment".

Article 3 – Prohibition of torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 6 of the European Convention on Human Rights is a provision of the European Convention which protects the right to a fair trial. In criminal law cases and cases to determine civil rights it protects the right to a public hearing before an independent and impartial tribunal within reasonable time, the presumption of innocence, right to silence and other minimum rights for those charged in a criminal case.

The European Union's (EU) Treaty of Lisbon, in force since 1 December 2009, requires the EU to accede to the European Convention on Human Rights (ECHR). Article 6 of the consolidated Treaty on European Union states "The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties." The EU would thus be subject to its human rights law and external monitoring as its member states currently are. It is further proposed that the EU join as a member of the Council of Europe now that it has attained a single legal personality in the Lisbon Treaty.

<i>Demir and Baykara v. Turkey</i> 2008 European Court of Human Rights case

Demir and Baykara v Turkey [2008] ECHR 1345 is a landmark European Court of Human Rights case concerning Article 11 ECHR and the right to engage in collective bargaining. It affirmed the fundamental right of workers to engage in collective bargaining and take collective action to achieve that end.

<i>Wilson and Palmer v United Kingdom</i>

Wilson v United Kingdom [2002] ECHR 552 is a United Kingdom labour law and European labour law case concerning discrimination by employers against their workers who join and take action through trade unions. After a long series of appeals through the UK court system, the European Court of Human Rights held that ECHR article 11 protects the fundamental right of people to join a trade union, engage in union related activities and take action as a last resort to protect their interests.

Article 12 of the European Convention on Human Rights (ECHR) provides for two constituent rights: the right to marry and the right to found a family. With an explicit reference to ‘national laws governing the exercise of this right’, Article 12 raises issues as to the doctrine of the margin of appreciation, and the related principle of subsidiarity most prominent in European Union Law. It has most prominently been utilised, often alongside Article 8 of the Convention, to challenge the denial of same sex marriage in the domestic law of a Contracting state.

Article 18 of the European Convention on Human Rights (ECHR) states:

The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.

In September 1967, Denmark, Norway, Sweden and the Netherlands brought the Greek case to the European Commission of Human Rights, alleging violations of the European Convention of Human Rights (ECHR) by the Greek junta, which had taken power earlier that year. In 1969, the Commission found serious violations, including torture; the junta reacted by withdrawing from the Council of Europe. The case received significant press coverage and was "one of the most famous cases in the Convention's history", according to legal scholar Ed Bates.

Torture is generally defined as deliberately inflicting "severe pain or suffering" on a prisoner, but exactly what this means in practice is disputed.

References

  1. ↑ Article 15(3).
  2. 1 2 El Zeidy, Mohamed M. (2003). "The ECHR and States of Emergency: Article 15 - A Domestic Power of Derogation from Human Rights Obligations". San Diego International Law Journal . 4 (277): 277–301.
  3. 1 2 3 4 "Guide on Article 15 of the European Convention on Human Rights". Council of Europe/European Court of Human Rights . 31 August 2022.
  4. ↑ A v United Kingdom [2009] ECHR 301 para. 177.
  5. ↑ Aksoy v. Turkey (1997) 23 EHRR 553 para 70.
  6. 1 2 Greek case (1969) 12 YB 1 at 71–72, paras. 152–154.
  7. ↑ "Derogation from Human Rights Briefing Paper". www.niassembly.gov.uk. Retrieved 2024-05-14.
  8. 1 2 3 "Derogation in time of emergency". February 2022.
  9. ↑ "Legal Analysis of the derogation made by Ukraine under Article 15 of the European Convention of Human Rights and Article 4 of the International Covenant on Civil and Political Rights". November 2022.
  10. 1 2 3 "Ukraine: Disregard false information concerning derogations from the European Convention on Human Rights - Portal - www.coe.int". Portal. Retrieved 2024-05-14.
  11. ↑ Azizi, Abdulla (2020-07-01). "Derogation of Human Rights and Freedoms in RNM during the State of Emergency Caused by COVID-19". SEEU Review. 15 (1): 24–42. doi:10.2478/seeur-2020-0002.
  12. ↑ Turkut, Emre (2018). "Accommodating Security Imperatives v. Protecting Fundamental Rights". Security and Human Rights. 28 (1–4): 62–91. doi: 10.1163/18750230-02801002 . hdl: 1854/LU-8611717 .
  13. ↑ Mariniello, Triestino (2019). "Prolonged emergency and derogation of human rights: Why the European Court should raise its immunity system". German Law Journal. 20 (1): 46–71. doi: 10.1017/glj.2019.3 .
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.