Derogations from obligations according to the European Convention for the Protection of Human Rights and Fundamental Freedoms in time of public emergency
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Abstract
In this paper article 15 of the Convention and legal relationship related thereto are analysed.
At the beginning of the article the limitations of human rights allowed by the Convention are discussed. These are reservations concerning certain provision of the Convention, possibility to refer to the limitation clause provided in articles 8–11, as well as possibility to refer to the derogation clause in article 15.
The second part of this article describes the origin of the emergency situation institution, general understanding thereof. Conditions indispensable to the legitimate derogation are analysed rather thoroughly. They are as follow: the existence of war or other public emergency threatening the life of the nation; derogating to the extent strictly required by the exigencies of the situation (proportionality aspect); derogating measures must be consistent with state’s other obligations under international law (principle of consistency); no derogation is allowed from the non-derogable rights enumerated in the 2nd part of article 15; Secretary General of the Council of Europe must be fully informed of the derogating measures (procedural requirements according to the 3rd part of article 15). Finally articles 17 and 18 that must be dully conceived for the proper application of the Convention are discussed.
At the end of this article summarizing conclusions are drawn, certain offers provided.
At the beginning of the article the limitations of human rights allowed by the Convention are discussed. These are reservations concerning certain provision of the Convention, possibility to refer to the limitation clause provided in articles 8–11, as well as possibility to refer to the derogation clause in article 15.
The second part of this article describes the origin of the emergency situation institution, general understanding thereof. Conditions indispensable to the legitimate derogation are analysed rather thoroughly. They are as follow: the existence of war or other public emergency threatening the life of the nation; derogating to the extent strictly required by the exigencies of the situation (proportionality aspect); derogating measures must be consistent with state’s other obligations under international law (principle of consistency); no derogation is allowed from the non-derogable rights enumerated in the 2nd part of article 15; Secretary General of the Council of Europe must be fully informed of the derogating measures (procedural requirements according to the 3rd part of article 15). Finally articles 17 and 18 that must be dully conceived for the proper application of the Convention are discussed.
At the end of this article summarizing conclusions are drawn, certain offers provided.
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Articles
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