CYIL vol. 11 (2020)

CYIL 11 (2020) THE EUROPEAN CONVENTION ON HUMAN RIGHTS IN TIMES OF TROUBLE… liberty and security, right to a fair trial, right to private life, freedom of conscience, freedom of expression (incl. media freedom, access to official information and data protection), freedom of association and the general principle of non-discrimination. The text provides a brief, yet comprehensive, accurate, and up-to-date treatment of the applicable standards and also offers certain useful guidance with regard to the conditions applicable to Article 15 derogation, e.g. with regard to Article 5 and 6 of the ECHR: Admittedly, derogations under Article 15 may enlarge the range of permissible measures under Articles 5 and 6 of the Convention and broaden the state authorities’ margin of manoeuvre in complying with certain timelimits and other ordinary procedural requirements. However , the fundamental prohibitionof detention without legal basis or timely judicial review , and the need to provide detainees with essential procedural safeguards, such as access to a doctor, a lawyer or next-of-kin, should in principle be observed in the present circumstances. States also remain under a general obligation to ensure that trials meet the fundamental requirement of fairness (such as equality of arms) and respect the presumption of innocence, and ensure that no steps are taken which would amount to an interference with the independence of judges or of courts. 46 Overall, the Toolkit offers a highly valuable and timely guidance to assist the member states in times of trouble and to facilitate their difficult choices when considering whether to make a derogation from Convention obligations. As to the difference in assessment among individual member states, this is their responsibility and sovereign choice, taking into account the specificity of domestic measures/state of emergency, and only the ECtHR can be the final judge of their conduct on the basis of a previous judicial review by national courts. Concerning the situation in the Czech Republic, in reaction to the COVID-19 pandemic, the state of emergency over the entire territory of the Czech Republic was declared on 12 March 2020 for a period of 30 days. It was later prolonged twice (on 9 April 2020 and on 30 April 2020) and ended on 17 May 2020. The state of emergency was declared on the basis of Article 5 and 6 of Constitutional Act No. 110/1998 Coll., on Security of the Czech Republic, as amended. The concrete measures adopted by the Government, limiting certain human rights, were based on Article 4 and 6 of Act No. 240/2000 Coll., on the Crisis Management, as amended. Moreover, relying on Act No. 258/2000 Coll., on the Protection of Public Health, as amended, the Ministry of Health adopted several extraordinary measures further limiting certain rights. With regard to the obligations under the ECHR (and the ICCPR as well), there has been a thorough consultation among the Ministry of Foreign Affairs, Ministry of Justice and the Government’s Commissioner for Human Rights as to whether the Czech Republic should notify a derogation under ECHR’s Article 15. The competent authorities agreed that the measures adopted by the Czech Government did not require such derogation, and that they were covered by permitted limitations according to substantive articles of the Convention. 47 46 Toolkit , p. 6 (emphasis added). 47 This conclusion of the executive was also supported by some relevant academic authorities, such as Professor Pavel Šturma, Head of International Law Department at the Law Faculty of the Charles University, Prague. See ŠTURMA, P.: Koronavirus, nouzový stav a lidská práva [ Coronavirus, state of emergency and human rights ], Bulletin Výzkumného centra pro lidská práva [Research centre for human rights] (UNCE), 1/2020, p. 3.


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