By Georgiana Epure
This contribution sheds light on the limited effectiveness of the European Court of Human Rights (ECtHR) in supervising states of emergency and highlights one possible non-judicial avenue to strengthen the supervision of derogation regimes: Article 52 of the European Convention on Human Rights (ECHR), which allows the Secretary General of the Council of Europe to open and inquiry into the effective implementation of the Convention.
The derogation clause and the ECtHR’s limited supervisory role
An epidemic of authoritarian measures may be following on the heels of the COVID-19 pandemic, warned Fionnuala Ní Aoláin, the UN Special Rapporteur on counterterrorism and human rights. Across the Council of Europe membership, numerous countries have declared states of emergency in order to take unprecedented measures to tackle the COVID-19 pandemic. Many, however, have resisted doing so – a move that risks tucking away exceptional government powers into ordinary law. Ten States (Georgia, Estonia, Armenia, Romania, Moldova, Latvia, North Macedonia, Albania, Serbia and San Marino) have derogated so far from the ECHR due to the threat posed by COVID-19.
According to Article 15 of the ECHR, States may derogate from certain obligations under the Convention provided they meet three conditions. First, derogations are permitted only “in time of war or other public emergencies threatening the life of the nation”. Second, measures are only permissible “to the extent required by the exigencies of the situation”. Third, derogations must be consistent with the State’s other obligations under international law. Notably, provisions related to the right of life (with the exception of deaths resulting from lawful acts of war), prohibition of torture and slavery, and the rule of no punishment without law cannot be derogated from. Whilst these conditions play an important role in ensuring international supervisions, the guarantees they provide are limited.
The Convention assumes that governments’ decisions to derogate are in good faith. The Court cannot review measures derogating from Convention rights before their implementation. The necessity and proportionality of measures are analysed on a case-by-case basis and only once an application concerning an alleged violation reaches the Court. This leads to long delays in responding to potential abuses: the number of applications currently pending before the Court approaches 60,000. Oftentimes, the length of judicial proceedings outlasts the states of emergency themselves. The Court’s regular functioning has also been affected by the COVID-19 crisis and the Court now only deals with urgent matters. Under the Court’s priority policy, applications raising questions about the impact of derogations on the Convention are not classified as urgent. Applications related to the right to life or health or deprivations of liberty are the top priority – especially relevant in the COVID-19 context.
One of the important protective elements of Article 15 is the principle of notification. States are required to keep the Secretary General of the Council of Europe fully informed of the measures taken, their justification, and when such measures have ceased to operate. In the absence of an official and public notice of derogation, Article 15 does not apply to the measures taken by the respondent State and the Convention applies in full (the notifications of derogation in response to COVID-19 have been analysed here).
In addition to the Convention’s lack of specifications regarding the timeliness of the derogation notification and the Court’s vague jurisprudence asking for notifications “without any unavoidable delay”, the requirement to notify the Secretary General only translates into the registration of the notification (more on the need of notification for the State to be able to rely on the derogation provision here). There is no assessment of the notification’s merits until it is challenged in Court by an applicant. This speaks to the larger issue of the mere formality of state of emergency notifications before human rights bodies monitoring the implementation of treaties. This “check-box” approach was criticised by the UN Special Rapporteur on counterterrorism and human rights in her 2018 Report on the human rights challenge of states of emergency in the context of countering terrorism (para.26):
“The hesitancy of human rights treaty bodies to confront troubling derogation practices from the outset stems from a historic deference to the State’s assessment of threat… [T]his culture of accommodation is in acute need of revision to address the widespread abuse of emergency powers, the practice of utilizing emergency powers in the absence of a sustained domestic interrogation of their necessity and the overlap between states of emergency and high level of human rights violations. In the context of emergencies, international organizations need to foster a culture and practice of public justification by States. This shift in policy and practice is consistent with the requirements of human rights treaties and would serve the long-term security interests of States as it would provide a robust, legal basis for the legitimate use of emergency powers, and enable early engagement with States that abuse the emergency privilege.”
Furthermore, in general, the Court has no power to penalise non-compliance with its judgements. In the worst-case scenario, a State failing to respect its obligations under the Convention may be suspended from the Council of Europe (Articles 3 and 8 of the Statute of the Council of Europe). Suspension, however, is politically sensitive and may even be counterproductive as it would allow a government to continue its (abusive) policies without any constraints.
Nevertheless, even with an increased role of the Court, rulings focus on individual complaints. Judicial power cannot resolve the complexity of abusive derogations by itself. Non-judicial supervision of derogation regimes can add strength to the efforts of ensuring respect of human rights and rule of law – key values of the Council of Europe system.
How can the supervision of derogations be strengthened?
In a recent post on this blog, Prof. Kanstantsin Dzehtsiarou notes that in the short term we may expect more from other Council of Europe bodies than from the Court in responding to the COVID-19 human rights pressures. Despite not being a common practice, as some scholars have pointed out, the Secretary General of the Council of Europe has previously engaged with States on the subject of emergency measures.
For instance, during the Albanian civil war in 1997, the Secretary General requested the government to further justify its emergency measures. The Secretary General also asked for the texts of the relevant Albanian laws and measures and, although not a formal requirement of Article 15, for the articles from which derogation was proposed (in the current COVID-19-related derogations before the Court, Romania, Armenia, and Serbia did not explicitly mention in their notifications the Convention rights affected by their derogations). In 2005, the Secretary General did not accept France’s notification on the state of emergency declared during the riots in Paris as notification of derogation. In 2015, the Ukrainian authorities consulted the Secretary General when preparing their notification of derogation. More recently, last month, soon after the Hungarian government presented a COVID-19 related draft law extending the executive branch’s powers for an unlimited period of time, the Secretary General wrote to Prime Minister Viktor Orbán warning that the new legislation allowing him to rule by decree would jeopardise democratic principles and human rights.
A new layer of non-judicial supervision of states of emergency and derogations is emerging. Two years ago, as a response to prolonged derogations from the Convention by France, Ukraine and Turkey, the Parliamentary Assembly of the Council of Europe (PACE) realised that the Court may not be able to effectively supervise derogations on its own. In that context, PACE empowered the Council of Europe Secretary General to engage more actively with derogation practices.
PACE Resolution 2209 (2018) recommended that the Secretary General act as an advisory body before and during derogations to “provide advice to any State Party considering the possibility of derogating on whether derogation is necessary and, if so, how to limit strictly its scope” (para.20). As emphasised by Dr Kushtrim Istrefi, a more proactive role by the Secretary General could result in a timely review of derogation regimes which, if problematic, could be presented to PACE or the Committee of Ministers of the Council of Europe for further political pressure. In the current crisis, a first step has already been taken. Last week, the Secretary General issued a toolkit for all member States on respecting human rights, democracy and the rule of law during the COVID-19 crisis.
Resolution 2209 also empowered the Secretary General to supervise derogation regimes through an Article 52 inquiry in relation to derogation regimes and by engaging in “dialogue with the State concerned with a view to ensuring the compatibility of the state of emergency with Convention standards, whilst respecting the legal competence of the European Court of Human Rights”.
Article 52 obliges States, upon request of the Secretary General, to “furnish an explanation of the manner in which its internal law ensures the effective implementation of any of the provisions of the Convention”. According to a former Secretary General, this provision establishes an unconditional obligation on States to provide
“precise and adequate explanations which make it possible to verify whether the Convention is actually implemented in its internal law. This necessarily implies that the State must furnish information of a sufficiently detailed nature about the national law and the practice of the national authorities, in particular the judicial authorities, and about their conformity with the Convention as interpreted in the case-law of the European Court of Human Rights”.
The provision under Article 52 was applied six times in respect of all States Party to the ECHR. Last time the Secretary General asked all 47 State Parties for clarifications related to alleged violations of the ECHR was in 2005, following allegations revealed by the press and civil society about the existence of secret CIA detention centres in Council of Europe member States. A special rapporteur was appointed to investigate these allegations. The reports established with a high degree of probability that secret detention centres operated by the CIA had existed in Poland and Romania. This resulted in PACE adopting several resolutions with strict recommendations on the issue.
In only three instances has Article 52 been invoked in relation to a particular State Party: in 1999 with respect to the Russian Federation’s implementation of Convention provisions in Chechnya, in 2002 as a reaction to the suspension of a political party in the Republic of Moldova on the grounds of violating rules concerning public gatherings, and in 2015 in respect of Azerbaijan. In the last case, the Secretary General requested explanations concerning the execution of the ECtHR judgment in Ilgar Mammadov v. Azerbaijan, regarding the detention of a political opposition activist. This case has been extensively discussed on this blog as it was the first time the Committee of Ministers launched an infringement proceeding against a state that refused to execute an ECtHR judgment (here and here).
By reviving it, PACE turned the rarely used Article 52 into a tool at the Secretary General’s disposal to monitor the evolution of emergency situations. Whilst derogation under Article 15 is not necessary for Article 52 to be triggered, political will to do so and States’ cooperation with the Secretary General are a must. COVID-19 related derogations are the first derogations since Resolution 2209 was adopted. It remains to be seen how engaged the Secretary General will be with this unprecedented large number of simultaneous states of emergency, and to what extent she will cement her supervisory role in relation to states of emergency and derogations.
Georgiana Epure is a fellow at the Open Society Justice Initiative. She holds an MPhil in Politics and International Relations from the University of Cambridge funded by the Gates Trust, and an MA in Interdisciplinary Social Research from the University of Leeds. The views and opinions expressed in this article are those of the author alone and do not represent the position of any organisation.