CYIL vol. 11 (2020)

EMIL RUFFER

CYIL 11 (2020)

(ii) Information on the measures taken and reasons given The notification submitted to the Secretary General of the measures taken and the reasons therefore is usually done by means of a letter or, now almost exclusively, note verbale , attaching copies of the legal texts under which the emergency measures will be taken, with an explanation of their purpose. 35 If the notification is not sent in paper form, but first in electronic form (via e-mail), an original paper copy must follow. As to the date of effect of the notification, it is the date of registration by the Secretary General, even if the notification itself states an earlier date. Regarding the copies of all relevant measures (i.e. their full text) to be provided, this requirement  36 serves the purpose of foreseeability and legal certainty and the recent notifications related to COVID-19 measures contained not only references to the measures (titles, date of promulgation etc.), but also their complete text in unofficial translation into English or French (CoE official languages). (iii) Information about the date on which the measures ceased to apply The Contracting Parties are not only obliged “ to keep the Secretary General of the Council of Europe fully informed of the measures taken ”, including any updates or amendments adopted, 37 but they must also inform the Secretary General “ when such measures have ceased to operate ”. This should be done by the same means (a letter or a note verbale ) as the original notification and the same procedure for publication by the CoE Treaty Office is followed. V. COVID-19: A change of paradigm or just another crisis? The outbreak of the COVID-19 health crisis, which was officially declared as a world pandemic by the World Health Organisation on 11 March 2020, prompted unprecedented reactions from CoE member states in terms of restricting certain rights to protect public health and safety. With regard to their ECHR obligations, governments faced a serious and difficult question: shall we notify a derogation under Article 15 or could we rely on restrictions permitted by substantive articles of the Convention? Although only a minority from forty-seven CoE member states, some governments opted for notifying a derogation. In March and April 2020, the following member states notified the CoE Secretary General of their decision to use Article 15 of the Convention: Albania, Armenia, Estonia, Georgia, Latvia, North Macedonia, the Republic of Moldova, Romania, San Marino, and Serbia. 38 35 Lawless v. Ireland (no. 3) , para. 47, in which the ECtHR stated that it was called to examine whether “ the Secretary- General of the Council of Europe was duly informed both of the measures taken and of the reason therefore ”; the Court noted that a copy of the Offences against the State (Amendment) Act 1940 and other related documents were attached to the respective letter of the Irish Government of 20th July and that it was explained in that letter that the measures had been taken in order “ to prevent the commission of offences against public peace and order and to prevent the maintaining of military or armed forces other than those authorised by the Constitution ”, The Court therefore concluded that, even without promulgation of the notice of derogation within the respondent state, the criteria of the ECHR’s Article 15(3) were fulfilled. 36 Originally stemming from the “ Greek case ”, Commission report, paras. 81(1) and (2). 37 This implies a requirement of a permanent review of the need for emergency measures, as was stated in Brannigan and McBride v. the United Kingdom , para. 54. 38 The list is in English alphabetical order, but it does not correspond to the actual timeline / sequence of notifications: the first one was Latvia on 16 March 2020, the last one was San Marino on 14 April 2020, so

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