CYIL vol. 11 (2020)

CYIL 11 (2020) THE EUROPEAN CONVENTION ON HUMAN RIGHTS IN TIMES OF TROUBLE… in Article 4 of the [ICCPR] ”, 28 thus showing a certain degree of judicial restraint. Nevertheless, it immediately went on to “ examine whether there is any plausible basis for the applicant’s argument in this respect ”, and found that the statement of the UK Secretary of State for the Home Department to the House of Commons on the derogation on 22 December 1988 was “ well in keeping with the notion of an official proclamation ”. 29 Regarding Marshall v. the United Kingdom , the applicant relied on the observation of the United Nations Human Rights Committee that the emergency provisions in Northern Ireland were “excessive” and that withdrawal of the derogation made under Article 4 of the ICCPR should be envisaged. 30 The Court concluded that it found [N]othing in the applicant’s reference to the observations of the United Nations Human Rights Committee to suggest that the Government must be considered to be in breach of their obligations under the International Covenant on Civil and Political Rights by maintaining their derogation after 1995. On that account the applicant cannot maintain that the continuance in force of the derogation was incompatible with the authorities’ obligations under international law. 31 Now if we turn to the procedural requirements , there are again three main conditions to be fulfilled. (i) Non-applicability of Article 15 of the Convention in the absence of a formal and public notice of derogation According to Article 15(3) ECHR: Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefore. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed. The primary purpose of informing the Secretary General is that the derogation becomes public. This is in practice done through the CoE Treaty Office and a publication on its official website. 32 A further purpose of the notice is that the Convention is a system of collective enforcement and it is through the Secretary General that the other Contracting Parties are informed of the derogation: according to the Resolution 56(16) of the Committee of Ministers, any information transmitted to the Secretary General in pursuance of Article 15(3) ECHR must be communicated as soon as possible to the other Contracting Parties. 33 Therefore, in the absence of an official and public notice of derogation, Article 15 of the ECHR does not apply to the measures taken by the respondent State, as was stated by the European Commission of Human Rights in Cyprus v. Turkey case. 34 28 Brannigan and McBride v. the United Kingdom , para. 72. 29 Ibid. , para. 73. 30 Guide on Article 15 of the Convention – Derogation in time of emergency , op. cit. under note 8 above, para. 25 at p. 9. 31 Marshall v. the United Kingdom , section B. The Court’s Assessment (unnumbered paragraphs). 32 See also the useful special webpage created by the CoE Treaty Office, dedicated solely to notifications related to COVID-19 pandemic: 33 Guide on Article 15 of the Convention – Derogation in time of emergency , op. cit. under note 8 above, para. 33 at p. 11. See also Greece v. the United Kingdom (Application 176/56), Commission report, para. 158. 34 Cyprus v. Turkey (Application no. 8007/77), Commission report of 4 October 1983, paras. 66-68.


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