CYIL vol. 11 (2020)

CYIL 11 (2020) THE EUROPEAN CONVENTION ON HUMAN RIGHTS IN TIMES OF TROUBLE… On the basis of individual applications and also some interstate cases, 7 the case law of the Court dealt with the measures taken in four of these States Parties, namely Greece, Ireland, the United Kingdom, and Turkey. The Court thus had the possibility to clarify both substantive and procedural requirements for Article 15 derogations, which we shall discuss in turn. For the purposes of this contribution, we shall try to identify the main principles, as derived from the case law, which can then serve as a useful framework of reference when dealing with member states’ reactions to COVID-19 (both with and without Article 15 derogations). 8 As for the substantive requirements under Article 15(1) of the ECHR, the following main three points can be made. (i) The right of derogation can be invoked only in a time of war or other public emer- gency threatening the life of the nation The Court pronounced early on that the natural and customary meaning of “ public emergency threatening the life of the nation ” is clear and refers to “ an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed ”. 9 As for the territorial scope of the emergency, a threat to the nation does not have to be “nationwide” (on the whole territory of the state), but can be posed even by a crisis situation which concerns only a particular region. 10 With regard to the intensity or gravity of the threat, the crisis or danger should be exceptional in the sense that normal measures or restrictions permitted by the substantive provisions of the ECHR (for the maintenance of public safety, health, and order) are plainly insufficient. 11 All these considerations are of course highly relevant for the COVID-19 measures. 7 Denmark (Application No. 3321/67), Norway (Application No. 3322/67), Sweden (Application No. 3323/67) and the Netherlands (Application No. 3344/67) v. Greece ( the “Greek case” ), report of 5 November 1969, which was initiated after the military coup in Greece when the military government suspended a number of rights under the Greek Constitution and subsequently made a derogation under the ECHR’s Article 15 to justify its unconstitutional and illegal practice. The European Commission of Human Rights (the predecessor of the permanent ECtHR) concluded that the conditions for Article 15 were not met, namely that the public emergency threatening the life of the nation invoked by Greece (ruled by the military junta) did not exist in reality. Another example of an interstate application is the case Ireland v. the United Kingdom (Application 5310/71), judgment of 18 January 1978, which concerned the extraordinary measures introduced by the authorities of Northern Ireland in reaction to the terrorist campaign of 1971-1976. The Court held there indeed existed in Northern Ireland a public emergency threatening the life of the nation, within the meaning of Article 15(1) ECHR, which justified restrictions of rights under the ECHR’s Articles 5 and 6, but nevertheless found violations of Article 3 of the ECHR (which is a non-derogable right). 8 For a more detailed analysis of the relevant case law see Factsheet – Derogation in time of emergency , Press Unit of the ECtHR, March 2020 and Guide on Article 15 of the Convention – Derogation in time of emergency , Directorate of the Jurisconsult, ECtHR, 2020 (last update on 31 December 2019). 9 Lawless v. Ireland (No. 3) (Application no 332/57), judgement of 1 July 1961, para. 28. The Court explained that the existence of public emergency threatening the life of the nation “ was reasonably deduced by the Irish Government from a combination of several factors, namely: in the first place, the existence in the territory of the Republic of Ireland of a secret army engaged in unconstitutional activities and using violence to attain its purposes; secondly, the fact that this army was also operating outside the territory of the State, thus seriously jeopardising the relations of the Republic of Ireland with its neighbour; thirdly, the steady and alarming increase in terrorist activities from the autumn of 1956 and throughout the first half of 1957 ”. 10 Ireland v. the United Kingdom , para. 205. 11 The “Greek case” , para. 153.

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