CYIL vol. 11 (2020)

EMIL RUFFER CYIL 11 (2020) Overall, the ECtHR has been receptive of the member state’s assessment of the situation, its gravity and its consequences, 12 since “ 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. ” 13 However, this margin of appreciation is not endless and it must be subject to the judicial supervision to safeguard the compliance with ECHR’s Article 15. 14 Apart from war (both internal and external military conflict), 15 it is not surprising that the Court clearly found terrorism falling under the concept of “public emergency”, be it in the United Kingdom (terrorism in Northern Ireland) 16 or in South-East Turkey (PKK terrorists), 17 as well as the attempted coup d’état in Turkey in July 2016. 18 A large-scale pandemic can certainly constitute an emergency threatening the life of the nation, but it depends on its intensity, the level of threat, the degrees of possible countermeasures etc., to be responsibly assessed by the respective governments. To put this in context – not every pandemic requires such emergency measures to justify recourse to Article 15 derogation. The World Health Organisation constantly monitors the deadly HIV/AIDS epidemic and according to its data, in 2019 there we 38 million people worldwide living with HIV/AIDS and 690,000 died in that year. 19 Despite the seriousness of this threat, it has not prompted governments to declare states of emergency and consider derogating from their human rights obligations. As R. Attard remarked: “ Those of us who are complaining of being unable to visit their nail technician of choice should realise that, in the circumstances, measures taken to date cannot be classified as being heavy handed, at least by standards set by the ECtHR. ” 20 12 Ireland v. the United Kingdom , para. 207: “ it falls in the first place to each Contracting State, with its responsibility for ‘the life of [its] nation’, to determine whether that life is threatened by a ‘public emergency’ ”. 13 Guide on Article 15 of the Convention – Derogation in time of emergency , op. cit. under note 8 above, para. 11 at p. 7. 14 Hasan Altan v. Turkey (Application No. 13237/17), judgment of 20 March 2018, para. 91; Şahin Alpay v. Turkey (Application No. 16538/17), judgment of 20 March 2018, para. 75; Brannigan and McBride v. the United Kingdom (Application No. 14553/89; 14554/89), judgment of 25 May 1993, para. 43. 15 Occupation of the part of its territory (the Autonomous Republic of Crimea and the city of Sevastopol) and the military conflict in the Eastern Ukraine were considered to be legitimate and imperative reasons for Ukraine to make a derogation under the ECHR’s Article 15 in June 2015, which was subsequently updated and amended several times. More detailed information is available on the webpage of the CoE Treaty Office at: https://www. coe.int/en/web/conventions/full-list/-/conventions/treaty/005/declarations?p_auth=3JXaKdLL. 16 Ireland v. the United Kingdom , para. 212: “ Being confronted with a massive wave of violence and intimidation, the Northern Ireland Government and then, after the introduction of direct rule (30 March 1972), the British Government were reasonably entitled to consider that normal legislation offered insufficient resources for the campaign against terrorism and that recourse to measures outside the scope of the ordinary law, in the shape of extrajudicial deprivation of liberty, was called for. ” (emphasis added) 17 Aksoy v. Turkey (Application No. 21987/93), judgement of 18 December 1996, para. 70: “ The Court considers, in the light of all the material before it, that the particular extent and impact of PKK terrorist activity in South-East Turkey has undoubtedly created, in the region concerned, a ‘public emergency threatening the life of the nation’. ” 18 Alparslan Altan v. Turkey (Application No. 12778/17), judgment of 16 April 2019, para. 73: “[The Court] further notes that in Mehmet Hasan Altan v. Turkey (no. 13237/17, § 93, 20 March 2018) it held, in the light of the Constitutional Court’s findings on this point and all the other material in its possession, that the attempted military coup had disclosed the existence of a ‘public emergency threatening the life of the nation’ within the meaning of the Convention. ” 19 https://www.who.int/gho/hiv/en/, accessed on 1 August 2020. 20 ATTARD, R.: Fundamental human rights in a pandemic , Times of Malta, 29 March 2020, https://timesofmalta. com/articles/view/fundamental-human-rights-in-a-pandemic.781763, accessed on 30 July 2020.

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