The Problem of Proportionality in Using Derogations to deal with the state of emergency under article 15 of the european convention on human rights (the council of europe's approach)

Abstrakt

The Author analyzes the consequences of Article 15 sec. 1 of the European Convention on Human Rights, which stipulates that “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”. The application of repeal measures can have serious consequences for the protection of human rights. The case law of the European Court of Human Rights provides precise instructions in this regard. However, research carried out by the Parliamentary Assembly of the Council of Europe indicates that this instrument may be abused in practice. Based on the analysis of its recent application by Ukraine, France and Turkey, the Parliamentary Assembly has made a number of recommendations aimed at preventing the abuse of extraordinary states to derogate from obligations in a way that undermines the essence of human rights protection. In particular, it is important not to undermine the system of checks and balance and to ensure a pluralistic democracy based on the rule of law, the implementation of competences of the parliament and local authorities, independent judiciary, freedom of assembly, information and media.