CYIL vol. 11 (2020)

EMIL RUFFER CYIL 11 (2020) punishment without law) of the ECHR is permitted (so called non-derogable or absolute rights); 5 and (iii)The Secretary General of the CoE must be kept fully informed of the measures which have been taken and the reasons therefor, including a subsequent information when such measures have ceased to operate and the ECHR provisions are again being fully executed. It is worth mentioning and underlining again the fundamental difference between restriction/limitation of a certain right and derogation from that right. Restriction limits the exercise of that right by individuals who could otherwise rely on it, while the right remains still applicable and the member state is still obliged to protect it. Derogation, on the other hand, enables the member state to disregard (albeit temporarily and under certain other conditions) the obligation to protect certain rights in extreme situations. In other words, the relationship between the restriction and derogation can be seen as one of the subsidiarity: only if the permitted restrictions could not address the gravity of a situation, a member state should take recourse to the derogation under Article 15 of the ECHR. The Court then always carries out a two-step test, first addressing the issue of restrictions under the substantive articles, and if they do not provide a sufficient justification (defence) of the measures, it turns to the assessment of the derogation (if such was made by the respondent state). 6 The problem is, however, that the line between these two concepts is not as clear as it might seem and certain large-scale restrictions might actually constitute a derogation. That is also the reason why some governments choose to notify a general derogation, instead of carrying out a careful analysis of the national measures in the light of the relevant ECHR provisions and assessing whether they constitute restrictions which would be permitted under the substantive articles. However, as we shall see below, there is a set of conditions and criteria developed by the ECtHR which should make sure that Article 15 derogations are not used as a general shield to protect any measures, without their proper assessment. IV. The practice of Article 15 derogations and its assessment in the case law There have been (unfortunately) numerous occasions when member states felt obliged to make a derogation under Article 15 of the ECHR. So far, before the COVID-19 pandemic and the derogations made in response to it (see section below), nine States Parties to the ECHR had made derogations under Article 15: Albania, Armenia, France, Georgia, Greece, Ireland, Turkey, Ukraine, and the United Kingdom. Due to its serious impact on the exercise of rights and freedoms, such derogations naturally generated legal disputes in the states concerned, many of them resulting in applications to the ECtHR and subsequent judgments. 5 On top of that, there are three of the additional protocols to the ECHR which also contain some non-derogable rights. These are Protocol No. 6 (the abolition of the death penalty in time of peace and limiting the death penalty in time of war), Protocol No. 7 (the ne bis in idem principle only, as contained in Article 4 of that protocol) and Protocol No. 13 (the complete abolition of the death penalty). 6 This approach is well established in the ECtHR case law and was confirmed in case of A. and others v. the United Kingdom (Application no. 3455/05), judgment (GC) of 19 February 2009, para. 161, dealing with the extraordinary measures introduced in the UK following the terrorist attacks in the USA of 11 September 2001: “ The Court must first ascertain whether the applicants’ detention was permissible under Article 5 § 1 (f), because if that sub-paragraph does provide a defence to the complaints under Article 5 § 1, it will not be necessary to determine whether or not the derogation was valid. ”

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