CYIL vol. 11 (2020)

CYIL 11 (2020) THE EUROPEAN CONVENTION ON HUMAN RIGHTS IN TIMES OF TROUBLE… As a first step, the exercise of certain rights under the ECHR can be restricted by national measures, either on a temporary or permanent basis, even without having a recourse to Article 15 derogation. The ECHR provides so with respect to certain provisions, namely the rights under Article 5 (Right to liberty and security), Article 8 (Right to respect for private and family life), Article 9 (Freedom of thought, conscience and religion), Article 10 (Freedom of expression), Article 11 (Freedom of assembly and association), Article 1 (Protection of property) and Article 2 (Right to education) of Protocol [No. 1], Article 2 (Freedom of movement) of Protocol No. 4 and Article 1 (Procedural safeguards to expulsion of aliens) of Protocol No. 7. What can be generally said about the conditions for imposing certain restrictions/limitations

on the exercise of the above said rights are the following: (i) the restriction must be in accordance with the law; (ii) it must be necessary in a democratic society; and (iii)it must serve one of the following interests: a. national security; b. public safety; c. the economic well-being of the country;

d. the prevention of disorder or crime; e. the protection of health or morals; or f. the protection of the rights and freedoms of others.

It is also important to take into account the general “limitation clause” in Article 18 of the ECHR, which stipulates: “ 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. ” This provision is designed to prevent any abuse of restrictions by the state authorities and such abusive conduct can constitute a separate violation of the ECHR, apart from violation(s) of other substantive article(s). 4 III. The legal framework: limits of derogation under the ECHR’s Article 15 Only as a second step, if the measures to be taken by the respective government are considered to go beyond the restrictions permitted by individual substantive articles of the ECHR (which are significantly broad enough), there is a possibility of a derogation under Article 15. This provision has three important elements: (i) The derogation can be used only in a time of war or other public emergency threatening the life of a nation, and the measures derogating from the obligations under the ECHR can only be to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with other obligations under international law; (ii) No derogation from Article 2 (the right to life), except in respect of deaths resulting from lawful acts of war; Article 3 (the prohibition of torture and other forms of ill- treatment); Article 4(1) (the prohibition of slavery or servitude); and Article 7 (no

4 From the recent case law, see e.g. cases Ilgar Mammadov v. Azerbaijan (Application no. 15172/13), judgment of 22 May 2014 (violation of Article 18 in conjunction with Article 5 of the ECHR) or Kavala v. Turkey (Application no. 28749/18), judgment of 10 December 2019 (violation of Article 18 in conjunction with Article 5(1) of the ECHR).


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