CYIL vol. 11 (2020)

EMIL RUFFER

CYIL 11 (2020)

VI. Conclusion As we have seen, the ECHR is prepared for times of trouble and has a well-established mechanism to address emergency situations. If the gravity of the situation requires measures going beyond the restrictions permitted by the substantive articles of the Convention, it is possible to derogate from certain obligations, with the exception of non-derogable rights referred to in Article 15(2) of the ECHR. There is a sufficient body of case law, which could be used as a relevant guidance for governments when assessing the national measures, as well as a recent Toolkit presented by the CoE Secretary General specifically in the COVID-19 context. 48 My general conclusion with regard to COVID-19 measures would be that they did not require recourse to temporary derogation from the ECHR obligations under its Article 15, and I would assume that some member states decided to derogate purely as a precautionary step, “to be on the safe side”. Therefore, there appears not to be a coherent pattern among the CoE member states so far in reaction to such unprecedented sanitary crisis. But, if we can draw any conclusions from the conduct of majority, 37 out of 47 Contracting Parties to the ECHR decided not to derogate, which might be considered as a clear signal of the prevailing legal assessment of the matter. Having said that, and as was underlined by the Venice Commission, 49 it is crucial that the member states are obliged to comply with requirements of parliamentary oversight and judicial review, even in a state of emergency. However, we can expect that sooner or later, the ECtHR will have to deal with applications challenging some of the extraordinary measures. 50 Only then shall we have a final answer to our simple question loaded with complexities: to derogate or not to derogate? 48 Another comprehensive and very useful document was produced by the European Commission for Democracy Through Law (Venice Commission): Compilation of Venice Commission Opinions and Reports on States of Emergency (CDL-PI(2020)003 of 16 April 2020). In line with its mandate, it deals not only with possible derogations under a state of emergency, but also, inter alia , with its constitutional entrenchment, including the imperative of parliamentary oversight and judicial review of any exceptional measures in line with the principles of constitutionality. 49 “ In relation to the state of emergency, the Venice Commission recalls that it is essential that the constitution and the legislation provide mechanisms – notably parliamentary and judiciary oversight over the executive - for preventing the abuse of emergency powers by national authorities. This fundamental principle is reaffirmed in Parliamentary Assembly of the Council of Europe Recommendation 1713(2005), stating that ‘exceptional measures in any field must be supervised by Parliaments and must not seriously hamper the exercise of fundamental constitutional rights. ” Opinion no. 653/2011 of 19 December 2011 on the draft law on the legal regime of the state of emergency of Armenia, adopted by the Venice Commission at its 89th Plenary Session (Venice, 16-17 December 2011), document CDL-AD(2011)049, para. 22. 50 According to Czech media reports, there have apparently already been some applications transmitted to the ECtHR in this respect. One of them was submitted, on behalf of his client, by advocate David Záhumenský, who previously instituted several legal challenges against the state of emergency and the measures adopted by the Czech Government, including a constitutional complaint to the Constitutional Court, which was rejected by decision Pl. ÚS 8/20 of 22 April 2020. See https://www.usoud.cz/en/current-affairs/decision-pl-us-820-certain- measures-adopted-amid-covid-19-pandemic/, accessed on 1 August 2020.

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