CYIL vol. 11 (2020)
CYIL 11 (2020) STATE RESPONSE TO COVID-19 LIMITING HUMAN RIGHTS … freedom of movement or freedom of assembly are “generally sufficient” to cover situations of “mass demonstrations including instances of violence or a major industrial accident.” 52 The HRC requires the states to provide careful justification not only for their decision to proclaim a state of emergency, but also for any specific measures undertaken in a particular situation. By contrast, the ECtHR allows its Member States a wide margin of appreciation “how far it is necessary to go in attempting to overcome emergency” 53 . Therefore, in critical situations the state institutions proclaiming the state of emergency and taking up actions restricting the rights of persons should carefully deliberate whether the restrictions on human rights are necessary for the purposes of tackling the crisis at hand. Case practice analysis. The case practice of the ECtHR regarding Article 15 was also researched in the same manner as above. Keywords chosen were aimed to cover all cases related to Article 15. The keyword chosen was “(Art. 15) Derogation in time of emergency”, which yielded 153 entries, from which there were 24 unique cases. Thus, the practice in this field is important, but not so numerous. 5 cases out of the cases listed under Article 15 were either not related to Article 15 at all or Article 15 was no longer applicable to the situation. The last (before COVID-19) situation analysed by the ECtHR was the attempted coup in Turkey. There were five cases already finalized but taking into account the duration of the cases before ECtHR, there could be more cases coming. The Court agreed with the decision of Turkey, that the attempted coup was indeed a “public emergency” as it has “posed severe dangers to the democratic constitutional order and human rights, amounting to a threat to the life of the nation within the meaning of Article 15 of the Convention” 54 . It was reiterated in the case that “it falls 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 better placed than the international judge to decide both on the presence of such an emergency and on the nature and scope of the derogations necessary to avert it. Accordingly, in this matter a wide margin of appreciation should be left to the national authorities.” 55 In this particular case the Court decided whether the detention of the journalist who was detained on criminal charges related to the organisation and execution of the coup. All the derogations in particular situations are evaluated, in order to see whether they were strictly required by the exigencies of the situation. Both the Constitutional Court of Turkey and ECtHR agreed that that people could not be placed in pre-trial detention without any strong evidence that they had committed an offence even in such situation as in Turkey at the time. 56 The following four cases were also related to the deprivation of liberty of judges and journalists. In most of the cases the Court questioned the grounds for detention, asking whether the government and law enforcement institutions had sufficient information to suspect that a particular person was involved in criminal activity. Thus, it shows that the actions of governments need to be grounded on the possibly most reliable information available to them. 52 Karimova (n 37). 53 Ireland v United Kingdom, Application No. 5310/71. (1978) EHRR, Series A No 35, para. 207. 54 Mehmet Hasan Altan v. Turkey , application no. 13237/17 (ECtHR 20 March 2018). 55 Ibid. 56 Ibid, para. 140.
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