The situation in Europe is changing every minute, thus governments are forced to take variety of measures to protect the population in these hard times when humanity is facing with Covid -19 virus which was declared as pandemic by the World Health Organization. However, we should not forget the need for protection of human rights even in time of pandemic. The need for greater good for all people should prevail over the necessities of the states to limit certain human rights or to use these derogations for its purposes contrary to International Human Rights Law. This is due to the fact that many human rights abuses took place during public emergencies, when states employ extraordinary powers to address threats to public order.
In this blog, I will try to explain the essence of Article 15 of the European Convention on Human Rights (ECHR) which allows activation of derogation clauses in time of war and public emergencies threating the life of the nation. Hence, the most important question which will arise is whether this derogation is really needed when the European Convention on Human Rights (ECHR) allows derogation of some rights without triggering Article 15 and how states should be careful in exercising their rights in time of pandemic, especially their duty to act against any kind of discrimination.
Historical background on derogation in times of emergency
Many international human rights instruments, including ECHR, allow the use of derogation clauses which permit states to restrict some human rights during emergencies, but only when it is necessary to address threats to the life of the nation or in times of war. Although the term war is not being defined nor the duration of these derogation clauses.
In the first delivered judgment Lawless v. Ireland, the European Court of Human Rights (ECtHR) explains that a public emergency must concern a state’s entire population to justify a state of emergency. Moreover, the Court defined a “public emergency” as a danger or crisis that is (1) present or imminent, (2) exceptional, (3) concerns the entire populations and (4) constitutes a “threat to the organized life of the community”. In common practice, the state of emergency denotes a legal regime in which public institutions are vested with extraordinary powers to address existential threats to public order. But, the worrying fact is that these emergencies may compromise legal order by generating political pressures to augment executive power at the expense of legislative and judicial institutions. In fact, some states of emergencies from the past have shown that they have been used for human rights abuses such as those in the conflict in Sudan’s Darfur region when genocide and crimes against humanity happened after the Sudan’s declaration of a state of emergency. Particularly, this is the reason why states should be careful when announce state of emergency because in that period, the human rights protection should not be neglected or used in negative connotation.
|Article 15 ECHR includes the following:
1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.
2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.
3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.
Article 15 ECHR affords to the governments of the State parties, in exceptional circumstances, the possibility of derogating, in a temporary, limited and supervised manner from their obligation to secure certain rights and freedoms under the Convention.
The first part of this Article defines the circumstances in which states can validly derogate from their obligations under the ECHR and in the same time limits the measures they may take in the course of any derogation. That is explained in the second paragraph where certain (inviolable) human rights cannot be subject of derogation even in time of emergency. This means that Article 15 does not apply to these rights: right to life; prohibition of torture and inhuman and degrading treatment or punishment; prohibition of slavery; the rule of “no punishment without law” (nulla poena sine lege); abolishment of death penalty in peace time and in all circumstances as well as the right not to be tried or punished twice (ne bis in idem).
Nevertheless, triggering the derogation clause from Article 15 ECHR does not mean that states enjoy an unlimited power. On the contrary, the Court is empowered to rule on whether the States have gone beyond the extent strictly required by the specific circumstances of the case. The next couple of years will create a new case-law by the Strasbourg Court in respect of Article 15 in case of emergency – particularly in time of pandemic caused by the coronavirus and will show if some states have violated Article 15 ECHR.
Derogation clauses due to Covid-19
Until 4 April 2020, eight states have exercised the right to derogation from its obligations under the ECHR on the entire territory. This list of states include North Macedonia, Albania, Georgia, Estonia, Moldova, Armenia, Romania and Latvia. The governments from these states have publicly announced that certain human rights and fundamental freedoms may be temporarily suspended or restricted for the duration of the state of emergency, but only to the extent required by such circumstances.
The question that should be raised is: Do we really need activation of derogation clauses? And more important: Are states willing to respect the basic human rights and provide protection for all people without discrimination? Most measures taken to prevent the spread of Covid-19 are already covered by the Convention, such as the freedom of assembly which provides exceptions to maintain public order and public health. Therefore, it is evident that in certain circumstances exceptions are possible without invoking Article 15. Moreover, rights contained in the ECHR starting from right to privacy (Article 8); freedom of religion (Article 9); freedom of expression (Article 10); freedom of association (Article 11) and ending with freedom of movement (Article 2 of Protocol 4) allow limitations for protection of health and public order even without any emergency.
The first measures which were taken by most of the states worldwide, address to the travel restrictions that are instrumental for the protection of public health against highly contagious diseases with a short incubation period, such as cholera or yellow fever or, to take more recent examples, severe acute respiratory syndrome (SARS) and ‘avian influenza’ (H5N1). Covid-19 is a disease named as severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) according to the World Health Organization.
Having in mind the above stated, it is unclear why states are exercising their right to derogations when these clauses have no impact, due to the fact that they are already permitted under the ECHR and of course they have absolutely no impact over non-derogable (inviolable) human rights mentioned above in this text. Maybe, the only justified reason is to satisfy the legality requirements because these hard times of extraordinary situation, states have needs to adopt new or adapt its current legislation in accordance to these extraordinary circumstances.
In especially tough times for humanity when almost every state in the world in faced with serious battle with the coronavirus, we should not forget the need for protection and preservation of human rights on highest level including prohibition of every form of discrimination. Governments need to remain vigilant in providing equal access to health care, protection for elderly persons and the most important – access to relevant information’s on the current health situation and measures for protection in times of pandemic. Transfer of unlimited powers between the branches of power should be done in total precaution in order not to violate any human right or fundamental freedom even in time of emergency and pandemic. Due to this reason, accountability of states should be monitored carefully especially, for example, Hungary which passed a law that gives sweeping new powers to Prime Minister Viktor Orban to rule by decree – for an unlimited period of time. This makes Hungary the first EU country to be put under the exclusive command of the government for as long as the prime minister sees it fit.