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«Emergency Government and Derogation under the ECHR Michael O’Boyle1 (Lecture given to the Law Society, Dublin, on 15 March 2016) Introduction This ...»

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Emergency Government and Derogation under the ECHR

Michael O’Boyle1

(Lecture given to the Law Society, Dublin, on 15 March 2016)


This is a testing time for Europe. It is currently besieged by four types of crisis –

an economic crisis, an unprecedented movement of refugees from war-torn

regions of the middle-east and beyond, the development of armed conflict on

European soil and in neighbouring territories and lastly the rise of extremism

and Islamic terrorism. All four crises have resulted in cases brought to the European Court of Human Rights raising a multitude of issues.2 As Yeats would have said “O honey bees, come build in the empty house of the stare” On 24 November 2015 the French authorities notified the Secretary General of the Council of Europe under Article 15 of the ECHR that France was derogating from the Convention. The Notice of derogation referred to the large scale terrorist attack that took place on 13 November 2015 in the Paris region. It indicated that the threat was of a lasting nature “having regard to information from the intelligence services and to the international context”. The Government had decided by Decree of 14 November to declare a state of emergency and on 26 November extended it by three months. It has since been further extended following discussion in Parliament. All indications are that the state of emergency will continue for some time until the threat from Da’ish has dissipated. The specific articles of the Convention affected by the derogation were not indicated but the decrees and laws mentioned in the Notice were attached to the letter. The Notice of derogation has since been forwarded by the Secretary General to all the other member states of the Deputy Registrar of the European Court of Human Rights (2006 -2015). All the judgments referred to in this lecture can be consulted in HUDOC – www.echr.coe.int See, in this connection, Linos-Alexandre Sicilianos, The European Court of Human Rights at a time of crisis in Europe, forthcoming edition of the European Human Rights Law Review.

Council of Europe. It is the Government’s intention to write into the Constitution the regulation of states of emergency - it is currently regulated by ordinary law - and the powers that they trigger as, for example, the destitution of French nationality of dual nationals convicted of serious terrorist offences.

The emergency powers that have given rise to the derogation concern sweeping powers of house arrest by the administrative authorities without authorisation by a judge at any time or in any place; powers of search and seizure without judicial warrant; powers to dissolve organisations and groups and powers to block web sites deemed to glorify terrorism, again without judicial warrant. Most of the powers are be exercised where there is a serious reason to believe thatthe relevant persons constitute a threat to public order and security.

The events in Paris in the course of 2015 and 2014 (the killings in Paris on 13 November/ the Charlie Hebdo killings and the murderous actions of Mohammed Merah) remind us that there exist real threats to our democratic way of life with an enemy that is capable of striking randomly at civilian targets.

It has been estimated that there are many thousands of Djihadists in France, perhaps as many as 6000. My talk this evening concerns the question of how Strasbourg law seeks to reconcile the imperative of national security with the protection of human rights.

I am, of course, conscious that there is a particular interest and probably unrivalled experience of these issues in Ireland - North and South: Lawless v Ireland (judgment of 1 July 1961) - a detention case - was the first case to be decided by the Court and is still one of the leading authorities on the interpretation of Article 15; Ireland v UK ( Judgment of 18 January 1978) was the first inter state case to be decided by the Court and had, at its heart, the use and abuse of emergency powers in Northern Ireland and Brogan v United Kingdom (Judgment of 30 May 1989) arrest under emergency powers in Northern Ireland) served as a reminder to States that the lessening of judicial protection over arrest and detention may require derogation, not to mention Brannigan and McBride (Judgment of 26 May 1993) and the Marshall decision (inadmissibility decision of 10 July 2001). But my goal this evening is not to dwell on the Irish perspective, rich and instructive as it is, but rather to focus on some of the more contemporary questions that have arisen in recent years.

Theory Emergency powers, while not quite as old as the hills, have been around for some time. When the Roman Senate determined that a grave emergency existed and that ordinary methods were inadequate to secure the safety of the Republic it would propose that the Consuls appoint a Dictator. This has been described as an elective tyranny. The arguments for electing a dictator rested on what is essentially the justification for a modern day derogation from the ECHR.

With traditional Roman wisdom the constitutional lawyers of the day also recognised that there were inherent dangers in conferring such a large amount of power on one political figure. Important safeguards against abuse or excess of power, were regarded as essential.

For the American constitutional theorist, Alexander Hamilton, those responsible for the nation’s defence must be granted all of the powers necessary to govern the republic and to preserve it from harm both external and internal. At the same time a declaration of emergency has always been controversial and viewed with suspicion and even horror. It has been dubbed as the law’s attempt to control the absence of law. Benjamin Franklin famously

and scathingly said:

“Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety”.

Anne Brasseur, a highly respected former President of PACE, reacted to the

prospects of the French state of emergency with a cautionary warning:

“We have to be honest and clear: there is no free society without threats to security. Human rights should not be sacrificed on the altar of the fight against terrorism – this is precisely what the terrorists want! We must not give this to them”.

What Anne Brasseur is driving at is the recognition that emergency regimes create serious dangers for democratic governance and human rights and, as has been recognised by the Court in Klass v Germany ( Judgment of 6 September 1978) – the famous telephone tapping case -, that the effort to protect democracy may lead to its weakening and potential destruction.

What are these dangers of abuse? The most obvious danger is that the extensive powers conferred on the executive are used to suppress political opposition to consolidate a hold on office. Or that individual abuses are more likely to occur in conditions of crisis when great power is concentrated in the hands of the security services – torture, arbitrary detention, disappearances, rendition, harassment of vocal critics of the regime and the use of powers such as house arrest or censorship for purposes other than those intended. We have seen many of these dangers materialising in the response to 9/11! They are closely scrutinised by the Court in the Polish rendition judgments given in 2014 in the Al Nashiri and Husayn (Abu Zubayadah) cases (Judgments of 24 July 2014).

But the most insidious danger of all is that regular and uncontrolled recourse to emergency powers acclimatizes both the executive and certain sectors of public opinion to their use - to the point where they are simply taken for granted as a necessary evil. This may be accompanied by a steady erosion of confidence in the security forces and the rule of law, on the one hand, and on the other, a growing insensitivity to the human rights issues that are inevitably associated with emergency powers – no matter how well-intentioned.

It is thus of the essence to surround the use of emergency powers with safeguards against abuse with a view to checking excesses and ensuring that permanent damage is not inflicted on the norms and values underpinning constitutional government. Indeed, the central argument of this talk is that judicial review of emergency action in times of crisis is essential to the maintenance of democracy and the rule of law and that the national judges must play their part in ensuring that emergency laws are not abused rather than leaving it to international judges. I would even go further and suggest that the neutralisation of the judiciary – e.g. by suspension of habeas corpus creates a presumption of disproportionality and therefore illegality.

Article 15 But what does Strasbourg law say?

Article 15 allows states to derogate from the rights and freedoms of the Convention “In time of war or other public emergency threatening the life of the nation”. Thus the emergency must be of a particular magnitude to justify derogation. In addition, the state is bound by the principle of proportionality in that the measures taken must be “strictly required by the exigencies of the situation” and Article 15 para 2 provides that there can be no derogation from the right to life (except in respect of deaths resulting from lawful acts of war) or from the Article 3 prohibition of torture, inhuman and degrading treatment or punishment, the Article 4 prohibition of slavery and the principle of the nonretroactivity of the criminal law under Article 7. To that must be added the prohibition of the death penalty (Protocols 6 and 13) and the right not to be tried or punished twice for the same offence (Protocol 7). A vital procedural safeguard in also contained in Article 15 para 3 that the SG of the COE shall be kept fully informed of the measures taken and the reasons therefor and, of course, when the measures cease to operate. It is through the SG that other Contracting Parties, as well as the CM and PACE, are kept informed when another Party lodges a derogation so that other states are kept fully aware of what is happening. All of the above-mentioned conditions in Article 15 are reviewable by the Strasbourg Court. That breakthrough was what the Court decided in the Lawless case.

Recent French and Ukrainian derogations

Prior to 2015 there have been relatively few derogations - 8 altogether concerning Albania/Armenia/France/Georgia/Greece/Ireland/Turkey and the United Kingdom. In addition to the French derogation of November 2015 Ukraine lodged a geographically specific derogation in June 2015 in respect of the armed conflict in the Donbass region of Ukraine.

Comparison of the two derogations is instructive. In the first place the Ukrainian derogation does not involve the whole of the national territory whereas the French derogation covers the whole of metropolitan France as well as its overseas territories. In the second place, the Ukrainian derogation is very specific pointing to the provisions of the Convention it purports to derogate from – namely Articles 5,6 8 and 13. The French derogation, on the other hand, is much vaguer - mentioning no specific article of the Convention and indicating that its legislation “may” involve a derogation from the Convention. Thirdly, France, unlike Ukraine, had entered a reservation3 in respect of Article 15 when it ratified the Convention in 1974 purporting, in effect, to ensure that the Court could not second guess its determination that there was a state of emergency and, further, the expression in Article 15 “ the extent strictly required by the exigencies of the situation” would not restrict the power of the President to take such measures as he considers necessary in the circumstances.

The lack of article-specificity of the French derogation should not normally call into question its legal validity where the nature and scope of the measures involved has been made clear by the Notice of Derogation since Article 15 para 3 only requires a statement of the measures the state has taken and the reasons therefor without any requirement to specify the precise articles it seeks to derogate from (although this is obviously desirable from the standpoint of legal certainty). The key question to be decided in any future case is whether the precise scope of the derogation is clear from the documentation furnished by the State. On the other hand, it is difficult to see that a reservation seeking to tie the hands of an international court from examining the compatibility of derogatory measures with one of the central The Government of the Republic, in accordance with Article 64 of the Convention [Article 57 since the entry into force of the Protocol No 11], makes a reservation in respect of paragraph 1 of Article 15, to the effect, firstly, that the circumstances specified in Article 16 of the Constitution regarding the implementation of that Article, in Section 1 of the Act of 3 April 1878 and in the Act of 9 August 1849 regarding proclamation of a state of siege, and in Section 1 of Act No. 55-385 of 3 April 1955 regarding proclamation of a state of emergency, and in which it is permissible to apply the provisions of those texts, must be understood as complying with the purpose of Article 15 of the Convention and that, secondly, for the interpretation and application of Article 16 of the Constitution of the Republic, the terms to the extent strictly required by the exigencies of the situation shall not restrict the power of the President of the Republic to take the measures required by the circumstances.

provisions of the Convention – in other words to exclude all international control of presidential emergency measures - (thereby neutralising the effect of the Lawless judgment) could be upheld under the Court’s existing jurisprudence concerning the validity of reservations – it being clear from Article 64 of the Convention that reservations of a general nature are not permitted.

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