A new mechanism for supervision of derogations from the European Convention on Human Rights: filling the accountability gap?

Article 15 of the European Convention on Human Rights (ECHR or the Convention) provides that in time of war or other public emergencies a State may derogate from most of its human rights obligations. This derogation clause grants a State a wide discretion to determine the reasons and the duration of a derogation as well as the aptness of emergency measures. The rationale is that a State is best placed to determine what constitutes a public emergency and how to restore order in its territory.

Nevertheless, such a discretionary power inherently leaves room for abuse. In the context of derogations, worrisome practices are not scarce in our present times, where crisis and emergencies (under the notions of terrorism, mass migration etc.) are pronounced lightly. In this vein, it is of pivotal importance that States’ derogation practices are exposed to strict scrutiny by international supervisory mechanisms.

At the level of the Council of Europe (CoE), the European Court of Human Rights (ECtHR or the Strasbourg Court) was the sole mechanism to exercise such a supervisory role. In addition, the Venice Commission has issued recommendations on certain derogation practices. However, it lacks the institutional mandate to engage in any meaningful supervisory function. This blog argues that the Parliamentary Assembly of the Council of Europe (PACE) has, through its Resolution 2209 (2018), established a new layer of supervision of derogation regimes by empowering the Secretary General of the CoE to actively engage with derogation practices. This blog will, first, outline why the Strasbourg Court by itself is not capable to effectively supervise states of emergency and, second, whether this gap can be filled by the enhanced role of the Secretary General of the CoE. 

The Strasbourg Court’s supervisory role of derogation practices

Since its very first inter-State and individual case on derogations, the Strasbourg Court (and before that the Commission) defined its supervisory function by examining, in each case, whether the emergency measures were strictly required by the exigencies of the situation. This judicial supervision alone, however proactive and activist, has intrinsic limitations to be effective or sufficient. At least four arguments support this view. First, the ECtHR rulings focus on the facts of an individual complaint and, therefore, cannot address the magnitude of human rights concerns related to derogation regimes. Second, the length of judicial proceedings in derogation cases often take more time than the state of emergencies themselves. As a consequence, the ECtHR cannot guarantee a timely review of derogation measures. Third, if there are no admissible complaints before the ECtHR in relation to a derogation practice, the Court cannot deliver a judgment on it. Lastly, the ECtHR, or for that matter any court, is ill-equipped to address in a systemic manner the effects of emergency measures on the rule of law and democracy. For illustration, the use of emergency measures by Turkey (2016 – 2018) which involved the arrest of an international judge, a director of Amnesty International and thousands of teachers and journalists will no doubt have a lasting effect not only on human rights but also on the independence of institutions and democracy as a whole.

The emergence of a new layer of supervision of derogations from ECHR: the enhanced role of the Secretary General of the CoE

In the light of the long duration and potential abuse of emergency powers in recent derogations from the ECHR by France (2015 – 2017), Ukraine (2015 – ongoing) and Turkey (2016 – 2018), PACE has realised that the Strasbourg Court may not be able to effectively supervise derogations on its own. As a result, PACE recommended in Resolution 2209 that the Secretary General of the CoE steps in as a new layer of supervision of derogations in Europe. In particular, the resolution recommends that the Secretary General:

20.1. as depository of the Convention, 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;

20.2. open an inquiry under Article 52 of the Convention in relation to any State that derogates from the Convention;

20.3. on the basis of information provided in response to such an inquiry, engage 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.

The above paragraph 20 suggests that the Secretary General should act as (i) an advisory body before and during the derogation phase as well as (ii) an active supervisory body during the derogation phase.

(i) Secretary General as an advisory body on derogation practices

As outlined above, paragraph 20.1 of the Resolution 2209 empowers the Secretary General to engage in active dialogue with States before and during the derogation phase. This creates an expectation on States to consult the Secretary General on both whether derogating from the Convention is necessary and, if so, what type of emergency measures are adequate. States may, at times, have a genuine interest to seek advice on such matters. For illustration, many States may be interested in knowing whether they can and should derogate from the ECHR in relation to foreign military operations. They may also be interested in knowing the best practices of derogations in the context of counter-terrorism. At the same time, the wording of Article 15 does not suggest that States are under an obligation to collaborate with the Secretary General in the pre-derogation stage. Article 15 ECHR provides that States “shall keep the Secretary General (…) fully informed of the measures which it has taken and the reasons thereof (…) [and] when such measures have ceased to operate”. Furthermore, the wording of Article 15 suggests that a State only informs and not consults the Secretary General about the planned derogation. In light of Article 15, the Secretary General may encounter difficulties in exercising her advisory role in the pre-derogation stage. Despite such challenges, a proactive role by the Secretary General could result in a timely review of problems associated with derogation regimes which then could be presented to PACE or the Committee of Ministers of the CoE for further political pressure on the derogating State.

(ii) Secretary General as a supervisory body on derogation practices

Paragraph 20.2 of the Resolution 2209 calls on the Secretary General to use the inquiry procedure under Article 52 ECHR whenever a State derogates from the Convention. Article 52 ECHR provides that a State “shall furnish an explanation of the manner in which its internal law ensures the effective implementation of any of the provisions of the Convention”. The language of Article 52 is rather imperative. The former CoE Secretary General has argued that Article 52 establishes an unconditional obligation on States to provide truthful information and collaborate with the Secretary General on any issue concerning the effective implementation of the Convention.

In a rather creative fashion, PACE has turned a ‘retired’ Article 52 ECHR (hardly ever used in the past) into an essential tool through which the Secretary General can supervise each derogation practice.

While Article 52 provides that inquiries should be in relation to the implementation of the Convention provisions, it is expected that the Secretary General particularly focuses on the wider effects of derogation measures on the rule of law and democracy. Indeed, paragraph 20.3 suggests that the findings of the inquiry procedure should not overlap with the work of the ECtHR. Hence, the Secretary General should avoid as far as possible inquiries into individual cases and should instead complement the work of the Strasbourg Court by way of ensuring that the rule of law and democracy, the two pillars holding the Convention system, are upheld.

Conclusion

The creation of such a new layer of supervision of derogations from the ECHR is a welcome initiative. This should inspire other legal regimes, including the UN, to seek modalities for enhancing supervisory functions of political institutions in the context of derogations. For instance, Article 4 of the International Covenant on Civil and Political Rights provides that derogations should be registered with the UN Secretary General and, in that context, a more engaging role for the UN Secretary General could be argued (for earlier views on this matter see here).

At the same time, the creation of a new layer of international supervision of derogations does not itself guarantee effectiveness. The success of the Secretary General of the CoE will depend as much on the cooperation of States Parties to the ECHR as on the resources needed to discharge the ambitious mandate of an expert and supervisory body on derogation. The future derogation practices will determine whether the Secretary General will become an effective supervisory body or continue to serve as a mailbox where States deposit their declarations on derogations.