CYIL vol. 11 (2020)

CYIL 11 (2020) THE EUROPEAN CONVENTION ON HUMAN RIGHTS IN TIMES OF TROUBLE… (ii) A State may take measures derogating from its Convention obligations only to the extent strictly required by the situation Although the ECtHR respects the margin of appreciation of the member states, as was stated above, it also makes sure that the measures are proportional. This approach is well summarised in the following paragraph, reflecting the judgments in cases Mehmet Hasan Altan v. Turkey (para. 210) and Şahin Alpay v. Turkey (para.180): As the Court has clarified, the existence of a ‘public emergency threatening the life of the nation’ must not serve as a pretext for limiting freedom of political debate. Even in a state of emergency the States must bear in mind that any measures taken should seek to protect the democratic order from the threats to it, and every effort should be made to safeguard the values of a democratic society, such as pluralism, tolerance and broadmindedness. 21 While performing this specific proportionality (or strict necessity) test, 22 the Court takes into account the following elements and factors: 23 • whether ordinary laws would have been sufficient to meet the danger caused by the public emergency; • whether the measures are a genuine response to an emergency situation; • whether the measures were used for the purpose for which they were granted; • whether the derogation is limited in scope and the reasons advanced in support of it; • whether the need for the derogation was kept under review; • any attenuation in the measures imposed; • whether the measures were subject to safeguards; • the importance of the right at stake, and the broader purpose of judicial control over interferences with that right; • whether judicial control of the measures was practicable; • the proportionality of the measures and whether they involved any unjustifiable discrimination; • whether the measure was “lawful” and had been effected “in accordance with a procedure prescribed by law”; • whether the minimum requirements of Article 5(1)(c) of the Convention regarding the “reasonableness” of a suspicion justifying an individual’s detention are satisfied; and • the views of any national courts which have considered the question (which guide the ECtHR unless they constitute a misinterpretation or misapplication of Article 15 or are manifestly unreasonable). 22 Cf. the principle of proportionality in the EU law, which has been developed in the case law of the Court of Justice of the EU, notably in the judgment C-331/88 The Queen v Minister of Agriculture, Fisheries and Food and Secretary of State for Health, ex parte: Fedesa and others, ECLI:EU:C:1990:391, para. 13: “ The Court has consistently held that the principle of proportionality is one of the general principles of Community law. By virtue of that principle, the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous , and the disadvantages caused must not be disproportionate to the aims pursued. ” (emphasis added) 23 This non-exhaustive list is taken from the Guide on Article 15 of the Convention – Derogation in time of emergency , op. cit. under note 8 above, para. 21 at pp. 8-9 (which also includes references to particular cases). 21 Guide on Article 15 of the Convention – Derogation in time of emergency , op. cit. under note 8 above, para. 19 at p. 8.

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