CYIL vol. 11 (2020)

BIRUTĖ PRANEVIČIENĖ – VIOLETA VASILIAUSKIENĖ CYIL 11 (2020) Another group of cases was related to the derogation made by Turkey according to Article 15, which was made regarding the situation in South-East Turkey, the territory suffering from PKK terrorist activity. 57 Around this period some people were complaining about the infringement of their rights to ECtHR, and the Turkish government tried to invoke the derogation it had made, but in all of those cases the court noted that the acts in question occurred outside the affected territory (the application of Article 15 was limited to South-East Turkey), therefore Article 15 was not applicable (there were 6 such cases). In two cases related to the situation mentioned above the long detention (11 days, 16 days, and 23 days) of the applicants without recourse to the court, relatives, doctors or friends was deemed exceeding the action required by the exigencies of the situation. 58 Another group of cases (3 cases) were related to the situation regarding Northern Ireland and terrorism, some of the findings were already discussed above. Thus, even if the states do enjoy a wide margin of appreciation in declaring that the situation in their territory requires derogations as it is threatening the life of the nation, and in the opinion of the Court, the country officials are better placed than the Court to see the facts and decide on such declaration, the actions taken need to be carefully weighed whether they are necessary and proportionate to the aims sought and necessary to the exigencies of the situation. We can see from the previous practice that even in the fight against terrorists in the past cases did not justify longer detention of suspects or detention of persons without reasonable grounds, only on suspicion of participation in criminal groups. That is why the states need to analyse the situation and take only those actions which are directly related to the extinction of the threat to the society, in this case, for the elimination of the COVID-19 disease. 6. National emergency or quarantine? In this chapter the authors will seek to compare the two regimes in play during COVID-19 on which the restricting measures were based. As we can see from the state practice, there is no one answer to the question, which is better, more suited. In international law, the practice of states is the primary source of legal rules, and this practice is divided, which leads us to see that this situation may be solved in different ways in different states, both of which seem acceptable to the international community. Legal basis. Both the measures based on public health exception and measures taken in national emergency have to be based and thoroughly described in laws, and those laws are the legal ground for any emergency powers that are used or any measures enacted by the executive branch – the government. The aims sought by the limitations. The aim in both cases in practice is the same – to protect the public health – that is the health of the people. But the description of the aim in particular articles is quite specific, in this case the measures would be based on public health exception. The Article 15 foresees a wider situation: a public emergency threatening the life of the nation. As seen above, previous derogations were mostly related to fight against terrorists and civil war-like situation (attempted coup in Turkey), thus it is likely that the states drafting the ECHR had these types of situations as possible situations of derogation from their human rights obligations. Thus on the second situation the aim is to protect the life of the nation.

57 Aksoy v. Turkey , application no. 21987/93. 58 Nuray Sen v. Turkey , application no. 41478/98; Aksoy v. Turkey , ibid.


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