C Explanatory
memorandum by Mr Holger Haibach, rapporteur
1 Introduction
“The frequent use of emergency
powers to cope with crises, coupled with the success of these powers acclimatises
administrators to their use, and makes recourse to them in the future,
all the easier. The danger is that succeeding generations of administrators
inherit these powers as being efficient and unobjectionable, and
in a particular emergency, do not give proper consideration to the
possibility of less drastic measures being used. In addition, social
attitudes develop so as to accept recourse to emergency measures
as the norm and over time there grows an insensitivity to the human
rights problems that are inevitably associated with public emergencies.”Note
1. This report stems from a motion for a resolution
(
Doc. 10641) on the protection of human rights in emergency situations
presented by Mrs Renate Wohlwend and others on 5 July 2005. In response
to the violence that erupted on 13 May 2005 in the Uzbek city of
Andijan – where government security forces forcefully dispersed
a crowd of peaceful protestors, resulting in several hundred deaths
Note – Mrs Renate Wohlwend and her colleagues
noted that such acts of repression are contrary to the European
Convention on Human Rights (hereinafter ‘the Convention” or “ECHR”)
and to the obligations of member States of the Council of Europe.
Moreover, they recalled that derogations in times of emergency are
allowed under Article 15 of the Convention, but that “
a balance must be struck between the threat
facing the State and the rights of individuals as guaranteed under
the ECHR.” The motion also called for clear instructions
for state security forces in times of difficulty, so that any action
taken be grounded in respect for human rights and the rule of law.
2. Recent events in Yerevan (Armenia) and Tbilisi (Georgia) have
reinforced the need for such an examination. After ten days of peaceful
protests, following the 19 February 2008 Armenian presidential election,
Note outgoing President Robert Kocharian
declared a state of emergency on 1 March when police attempted to
remove opposition encampments from the streets and violent battles
ensued.
Note Similarly, on 7 November 2007,
following five days of protests calling for the resignation of Georgian
President Mikhail Saakashvili, President Saakashvili declared a
15-day state of emergency– which was ultimately lifted after just eight
days
Note –
banning assemblies and non-state-run news media.
3. Both situations may have involved possible non-compliance
with the Convention, including, the Article 3 (non-derogable) prohibition
on torture (regarding alleged police brutality as inhuman and degrading),
the Article 2 (non-derogable) right to life (regarding the resulting
deaths), the Article 5 right to liberty and security (detentions
not conducted according to law), the Article 10 freedom of expression
(excessive censorship), and the Article 11 freedom of assembly and
association (regarding subsequent restrictions placed on peaceful assemblies).
Note
4. This report contains an overview of key themes, issues, and
proposals related to the preservation of human rights in emergency
situations. In order to prepare this report, the committee held
a hearing on 9 September 2008 with the following experts: Ms Finola
Flanagan, member of the European Commission for Democracy through
Law (“Venice Commission”) and Director General in the Office of
the Attorney General, Dublin; Ms Kirsten Mlacak, Head of the Human
Rights department, Office for Democratic Institutions and Human
Rights (ODIHR), OSCE, Warsaw; Ms Anya Tsitsina, Europe Programme
Assistant, International Crisis Group (ICG), Brussels and Mr Avetik
Ishkhanyan, Chairman of the Helsinki Committee in Armenia, Yerevan.
2 When
can restrictions to human rights be justified in emergency situations?
2.1 Legitimate aim
5. As the Committee of Ministers has recognised, States
have an obligation “to take the measures needed to protect the fundamental
rights of everyone within their jurisdiction against terrorist acts,
especially the right to life."
Note Moreover, the European Court of
Human Rights (hereinafter “the Court”) has added that the protection of
the right to life "may also imply in certain well-defined circumstances
a positive obligation on the authorities to take preventive operational
measures to protect an individual whose life is at risk from the
criminal acts of another individual."
Note This means that the rights
of those with criminal intent may legitimately be restricted in
the interests of society as a whole.
Note Under specific
circumstances, the declaration of a state of emergency is a quick
and legitimately legal method of doing so. But by its very nature
this also means that the rights and freedoms of all people – criminal
or not – will be restricted in the process.
6. A balance must therefore be struck between public safety and
fundamental rights, a measurement not conducive to concrete calculations.
Note Specific
context and timing are key to assessing fairness of any measures
during a state of emergency, and thus criticisms that hold in one
situation, may not be appropriate in other, even apparently similar
situations. However, it is a basic premise of international law
(
jus cogens) that any “
right or freedom concerned may not be curtailed
in its essence”
Note.
Emergency legislation should help preserve the rule of law, not
flout it.
2.2 Definitions
7. In light of the necessary flexibility of restrictions
on rights in emergency situations, all elements should be as clearly
defined as possible. According to the Court, an “emergency situation”
is defined as “
an exceptional situation
of crisis or emergency which affects the whole population and constitutes
a threat to the organised life of the community of which the State
is composed.”
Note State
of emergencies cannot be invoked to prevent merely local or relatively
isolated threats to law and order, nor as a pretext for imposing
vague or arbitrary limitations.
Note
8. The Lawless case outlines a three-pronged approach to the
identification and assessment of such situations: “[T]he government
of any High Contracting Party has the right, in case of war or public
emergency threatening the life of the nation, to take measures derogating
from its obligations under the Convention ... provided that such
measures are strictly limited to what is required by the exigencies
of the situation, and also that they do not conflict with other
obligations under international law ... it is for the Court to determine
whether the conditions laid down in Article 15 for the exercise
of the exceptional right of derogation have been fulfilled in the
present case.”
Note
9. Specific elements were further described by the former European
Commission of Human Rights: (1) the threat must be actual or imminent;
(2) its effects must involve the whole nation; (3) the continuance
of the organised life of the community must be threatened and (4)
the crisis or danger must be exceptional, in that the normal measures
or restrictions, permitted by the Convention for the maintenance
of public safety, health and order, are plainly inadequate.
Note
10. In other words, even given an individualised assessment of
the circumstances of a state of emergency, the key questions are:
(1) Is the state of emergency justified?; (2) Is the resulting response
necessary and proportional to the threat?; and (3) Do the actions
taken conflict with any of the State’s other international obligations?
(Namely, the International Convention on Civil and Political Rights
Article 4, which contains its own set of non-derogable rights, similar
to, but not completely equivalent to those contained in the ECHR).
Note All these
questions represent important restrictions and conditions placed
on the actions of a government during a state of emergency.
2.3 Restrictions and
strict conditions
11. Any discussion of emergency situations must begin
with the understanding that Article 15 ECHR relieves parties to
the Convention of their obligations under specific articles in times
of crisis, expressing the essential principles of temporality and
imminence in such a situation (echoed in the
Lawless case,
cited above). This Article reads:
“1.
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 they
are not inconsistent with its other obligations under international
law.
2. No derogation from Article 2, except in respect of
deaths resulting from lawful acts of war, or from Articles 3, 4
(paragraph 1) and 7 shall be made under this provision.
3. Any High Contracting Party availing itself of this
right of derogation shall keep the Secretary General of the Council
of Europe fully informed of the measures which it has taken and
the reasons therefore. It shall also inform the Secretary General
of the Council of Europe when such measures have ceased to operate
and the provisions of the Convention are again being fully executed.”
12. Thus, a state of emergency requiring derogations from the
Convention is formally established when it is (1) announced publicly
within the nation and (2) in a formal derogation the Secretary General
of the Council of Europe is notified of the measures taken. One
should keep in mind however, Court’s Judge Lech Garlicki’s caution
that “
neither proclamation of national
emergency nor invocation of Article 15 is required in order to take reasonable
measures protecting national security, territorial integrity, public
safety, or other important public interest.”
Note It
is in the best interest of the cause of human rights in Europe that
the Convention remains whole and in place. Thus, “
as long as such measures are provided by law,
related to protection of an important public interest and necessary
in a democratic society, the Court may be ready to accept their
compatibility with the Convention standards.”
Note
13. In terms of duration of a state of emergency, there is no
specific case law, but commentators suggest that, “if the intensity
of the danger is of various developing phases or degrees, the measures
taken during each phase must vary accordingly.”
Note Moreover,
in De Becker v. Belgium, the Commission stated that, “[an] action taken
under measures justified only by the emergency may not be continued
after the emergency has ended.”
Note The
operation of Article 15, is also of course, subject to the procedural
limitation of keeping the Secretary General of the Council of Europe
up-to-date on the situation – which helps to create a basis for subsequent
review.
Note However
the effective operation of this limitation may be limited in that,
unlike the International Covenant on Civil and Political Rights
or the American Convention on Human Rights, it does not contain
time constraints or parameters for this notification.
14. As to specific reasons, generally, the Court has taken a deferential
position on the issue of justification, stating that, “By reason
of their direct and continuous contact with the pressing needs of
the moment, the national authorities are in principle in a better
position than the international judge to decide on both the presence
of an emergency and on the nature and scope of derogations necessary
to avert it. In this matter Article 15... leaves those authorities
a wide margin of appreciation.”
Note With this decision the Court looks for
an appropriate balance between the flexibility in restrictions imposed
by national authorities and the necessity to give as clear a definition
as possible of a state of emergency, as indicated in paragraph 7
above.
15. However, the Court probes the proportionality by means of
three tests.
Note First, ordinary law must be shown
to be insufficient to deal with the emergency. Second, the measure
should be specifically intended to end the emergency. And third,
relatively severe measures are acceptable as long as adequate safeguards
exist (e.g. procedural protections like
habeas
corpus, or the equivalent). Thus, as the Court said in
Brannigan and McBride v. United Kingdom:
“
Contracting Parties do not enjoy an
unlimited discretion. It is for the Court to rule whether, inter
alia, the States have gone beyond the "extent strictly required
by the exigencies" of the crisis. The domestic margin of appreciation
is thus accompanied by a European supervision. In exercising this supervision,
the Court must give appropriate weight to such relevant factors
as the nature of the rights affected by the derogation and the circumstances
leading to, and the duration of, the emergency situation.”
Note
16. As the final and most significant restriction on the ability
to derogate in a state of emergency, Article 15 prohibits actions
which would violate other obligations under international law (e.g.
the ICCPR) and derogations from the right to life (Article 2), the
prohibitions on torture (Article 3), slavery (Art. 4), and punishment
without law (Article 7). These provisions ensure that the state
of emergency is conducted legally,
not only under the Convention but under all international agreements
protective of human rights, and that the most fundamental human
rights of all remain untouchable in all circumstances.
17. Thus, to recapitulate, the following conditions must always
be respected during a state of emergency: (1) temporality, (2) imminence,
(3) public declaration, (4) appropriate international notification,
(5) proportionality, (6) legal conduct, and (7) the inviolability
of non-derogable rights.
Note
3 Consequences of
the declaration of the state of emergency and applicable normsNote
18. The situations in Armenia and Georgia are emblematic
of the consequences that can result from improperly conducted states
of emergency. In Armenia, although the Council of Europe
was notified of specific derogations
under Article 15,
Note the
police are accused of violently attacking fleeing protestors in
a quasi-military operation with tanks, tear gas, beatings, detainments
and “
very heavy” and indiscriminate
shooting, “
for more than an hour.”
Note At least eight people were killed,
including a 12-year-old boy.
Note The
state of emergency – in place until 20 March – also allowed President
Kocharian to ban assemblies and impose restrictions on the media
Note. Armenian
news organizations were ordered to report only information provided
by the government and local stations were advised no longer to broadcast
foreign-produced programmes.
Note Finally,
the Armenian law on assemblies and demonstration was amended to
tighten enforcement of the prohibition of spontaneous rallies and
to limit independent judicial review of restrictions on assemblies.
In a joint statement by the Council of Europe’s Venice Commission
and the OSCE’s Office for Democratic Institutions and Human Rights (ODIHR),
the amendments were found to be unacceptable as challenging the
right to assembly
Note and
it was only under pressure from the Venice Commission and the Parliamentary
Assembly’s Monitoring committee,
Note that
Armenia lifted those restrictions.
Note
19. The Council of Europe Commissioner for Human Rights, Thomas
Hammarberg, then visited Armenia to interview key players in the
wake of the crisis and assess whether non-derogable human rights
under the Convention were upheld during the state of emergency.
Note The
Commissioner found that “some of the imposed restrictions [had]
not contributed to stabilizing and defusing the tensions in the
society post-elections and 1 March event, nor have they strengthened
the democratic institutions and processes.” He also noted increase police
abuses – possibly in violation of the non-derogable prohibition
on torture.
Note
20. In its
Resolution
1609 (2008) adopted following the events, the Assembly made four
main demands, including the setting up of an “independent, transparent
and credible” inquiry into the March events and the release of all
those who did not personally commit any violent acts or serious
offenses. In a further resolution adopted in January 2009,
Resolution 1643 (2009), the Assembly welcomes the establishment by the President of
Armenia of a “fact-finding group of experts to inquire into the
events of 1-2 March 2008” while pointing out that “it is the manner
in which this group will conduct its work, as well as the access
it will have to information by the relevant state institutions at
all levels, that will ultimately determine its credibility”.
Note
21. Meanwhile, Louise Arbour, the then UN High Commissioner for
Human Rights, called the use of force in Tbilisi – including water
cannons, batons, rubber bullets, and tear gas – “
disproportionate” and emphasised
the importance of human rights even in a state of emergency – pointing
to Georgia’s obligations under the ICCPR and its non-derogable provisions
for the right to life and prohibition on torture (which are obviously
also non-derogable under the Convention).
Note Moreover,
assemblies and non-state-run news media were also banned.
22. Thus, while there are several nefarious consequences that
may grow out of the mismanagement of an emergency situation, three
stand out in particular: restrictions on the freedom of assembly,
restrictions on the freedom of expression, and the excessive use
of force.
3.1 The use of forceNote
23. Despite the non-derogability of Articles 2 and 3
ECHR, the use of force remains a persistent problem in State responses
to emergency situations and, as described above, violence is often
the most tangible evidence of a state of emergency gone wrong.
Note
24. Methods of crowd control and other police actions must thus
always be “
proportionate and appropriate” in
order to preserve the inviolability of the right to life.
Note The case-law of
the Court is clear on this point: force used to disperse protestors
must be “
no more than is absolutely necessary.”Note This rule applies
even in cases where the demonstration itself is not fully peaceful.
The use of weapons must always be proportionate to force exerted
by the civilians.
Note Additionally,
the Court has found that States must provide adequate precautions
for the safety of civilians when conducting anti-terrorist operations.
Note Moreover, the obligation to avoid or
minimise the risk of loss of lives not only applies to security
forces in planning and executing an operation, but also to the executive
authorities and the legislature, who have to put into place an adequate
administrative and legislative framework to regulate the use of
force.
Note
25. Various international bodies have commented on and recommended
best practices for police and security forces in terms of the use
of force. Two principle guidelines are the UN Basic Principles on
the Use of Force and Firearms by Law Enforcement Officials (1990)
Note and the Council of Europe’s European
Code of Police Ethics (2001).
Note
26. The UN Basic Principles recommend (among many other suggestions):
the use of non-violent control means first; a clear warning and
self-identification when intending to use force; the development
of practices to allow for a “differentiated
use of force” including “self-defensive
equipment... in order to decrease the need to use weapons of any
kind;” immediate medical aid for the wounded; and departmental
rules regulating “the control, storage,
and issuing of firearms.” Moreover, the Basic Principles
call for transparency in reporting any incidents, responsibility
of superior officers, and the punishability under the criminal code
of manifestly unlawful violations of basic standards. Finally, the
UN calls on the relevant agencies to conduct regular screening procedures
to assess the fitness of their agents, give “special
attention to issues of police ethics and human rights”
and provide stress counselling to agents serving during crises.
27. The European Code of Police Ethics promulgated by the Council
of Europe provides substantially similar recommendations. It adds
however, that the police should be under civilian leadership
Note with
operational independence from other state bodies.
Note The
Code notes specifically that the police must be subject to “
efficient external control”, that
“
state control of the police shall be
divided between the legislative, the executive and the judicial
powers”
Note and that national police codes of
ethics should be created “
and overseen
by appropriate bodies”.
Note The
Code also reiterates the simple principle controlling any discussion
of the use of force, that appropriate police conduct “
is fundamental to the meaning of the rule of
law and therefore to the whole meaning and purpose of police duty
in a democracy.”
Note
28. In view of these principles, the rapporteur is worried about
the reported existence of secret orders of the Russian Interior
Ministry (Order No. 870 of 10 September 2002, which approves the
“Manual for Planning and Preparation of Manpower of Internal Affairs
Organs and Internal Troops of the Russian Interior Ministry to Actions
in Emergency Circumstances”), which refer to the possible ‘destruction’
of rioters and to internment in ‘filtration stations’ without court
authorisation. The existence of such secret orders has been revealed
by the Public Commission of Investigation of the Events in Blagoveshchensk,
where several hundred citizens were violently beaten by the local
militia in December 2004. The existence of ‘filtration stations’
was known to be used in the USSR. In 1990 and in 1991, their existence
had been reported in the framework of the Afghan war and of the
Transcaucasian conflict. Such filtration stations are also reported
to have been used in the Northern Caucasus and to have been the
site of numerous human rights violations, including torture and
enforced disappearance
Note.
29. It is particularly troubling to note that the “special measures”
foreseen in the secret orders are very similar to the way the security
forces have reacted in Andijan. It tends to indicate that certain
former Soviet Union countries might still have these kind of secret
orders.
30. The rapporteur is therefore adamant that the rules of engagement
of security forces in all Council of Europe countries, and in particular
in those countries which have inherited the rules in question from
the Soviet period, be thoroughly reviewed and modernised as necessary
in light of the requirements of the ECHR.
3.2 Restrictions to
freedom of assembly
31. Because Article 11 ECHR is derogable, restrictions
on the freedom of assembly are common in emergency legislation of
Council of Europe member States. For example:
- The Federal Constitutional Law “On the State of Emergency”
(of 30 May 2001, as amended up to 2005, No.3-FKZ) of the Russian
FederationNote provides
in Article 11 for a “ban on or restriction
of meetings, rallies, demonstrations, marches, picketing and other
mass events.”
- Ukraine’s Law No.1550-III “On the Legal Regime of the
State of Emergency” (March 2000)Note Article
15 allows for the institution of martial law wherein “the issue of the prohibition of activities
of political parties and public organisations [may be addressed],
if they endanger the sovereignty, the national security, the national
independence, territorial integrity of Ukraine, and the life of
individuals.”
- Article 46 of Georgia’s 1995 Constitution, as amended
in 2004, provides that “freedom of peaceful assembly”
may be restricted in a state of emergency.
- A 1955 French law on state of emergency (in terms of public
order and safety) – used for the first time in France on 8 November
2005 in response to rioting in a number of French cities – bans
public meetings for up to 12 days in emergency situations.
- Turkey’s State of Emergency Law of 25 October 1983 (Act
No. 2935)Note Article
11 provides for the “prohibition of, postponement of, or imposition
of a requirement to obtain permission for assemblies and demonstrations
in both enclosed and open spaces; regulation of the time and place
of permitted assemblies and demonstrations; and supervision, and
if deemed necessary dispersal, of all kinds of permitted assemblies.”
32. However, all member States are bound by the general obligation,
as parties to the ECHR, to respect the fundamental freedoms of the
people under their jurisdiction. It is thus imperative for the preservation
of those principles that any lawful derogations be as circumspect
as possible – in other words, that the presumption of freedom of
assembly should be maintained as far as possible even during an
emergency situation and that any restrictions thereof be instituted
lawfully.
Note As the European Court of
Human Rights has stated, “
Sweeping measures
of a preventive nature to suppress freedom of assembly and expression
other than in cases of incitement to violence or rejection of democratic
principles – however shocking and unacceptable certain views or
words used may appear to the authorities, and however illegitimate
the demands made may be – do a disservice to democracy and often
even endanger it.”
Note
33. To this end, there are several international norms surrounding
the right to assemble. The most recent and thorough analysis comes
from the OSCE/ODIHR/Venice Commission in their Guidelines on Freedom
of Peaceful Assembly (2007).
Note That
document notes specifically (emphasis added):
“Any
[lawful] restrictions [under the ECHR] must be designed to ensure
that both the responsibilities of those in the [security] services concerned
are properly discharged and that any need for the public to have
confidence in their neutrality is maintained.”Note The
document also notes that there are effective alternatives to strict
prohibition of assemblies which might nevertheless protect public
safety: the time, place and manner in which an event is conducted
may all be regulated without preventing that this fundamental right
is exercised at all.
Note
34. The case law of the Court has also emphasised that
post hoc arrest and prosecution
for unlawful conduct during an assembly is preferable to any prior
restraints of Assembly on the freedom.
Note The Guidelines
reiterate that generally “
legislation
relating specifically to freedom of assembly should not contain
any general provisions regarding criminal or administrative liability
unless the offences deal with freedom of assembly specifically”
and that one should not be prosecuted merely for attending an assembly.
Note
35. Thus, as the Venice Commission has said, “Article 11 ECHR
is a ‘qualified’ right and the state is therefore entitled to justify
what is a prima facie interference with the right... A system of
permits and its application, however, must not affect the right
of assembly as such: prohibition of an assembly must always be capable
of justification having regard to the express terms of Article 11(2)
ECHR [the provision allowing for interference] as interpreted by
the case law of the European Court of Human Rights.”
Note
36. The rapporteur welcomes in this context the adoption of the
Armenian Law on Amending and Supplementing the Law on Conducting
Meetings, Assemblies, Rallies and Demonstrations in line with Council of
Europe standards, but notes that, despite the adoption of this Law,
the Assembly has still asked “
that freedom
of assembly should also be guaranteed in practice in Armenia” by
insisting
“that the Armenian authorities
should ensure that no undue restrictions are placed on rallies organised
by the opposition in compliance with the Law on Conducting Meetings,
Assemblies, Rallies and Demonstrations, especially with regard to
the venues requested”.
Note
3.3 Restrictions to
freedom of speech
37. Also common in the emergency legislation of member
States are provisions for restrictions on the freedom of expression:
- Russia’s law on emergenciesNote provides
that where a state of emergency is introduced following “mass riots”,
authorities may respond by imposing “restriction[s]
of freedom of the press and other media of mass information.”
- Article 15 of the Ukrainian law on martial lawNote enables
authorities “to control the operation of communication enterprises,
printing enterprises, publishing houses, television and radio broadcasters, theatres,
concert and entertainment enterprises, institutions and organisations,
to use local radio stations, television centres and printing works
for the needs of military and the performance of the explanatory
work among troops and population; to regulate the operation of civil
television and radio centres, to prohibit the operation of the individual
and collective amateur receivers and transmitters, and the transmission
of the information via computer networks; [and] in case of the violation
of requirements or the failure to comply with the measures of the
legal regime of the military law, to seize the radio transmitters,
the television, video and audio equipment, computers and, if necessary,
other telecommunication facilities from enterprises, institutions
and organisations of all ownership forms, and individual citizens
...”
- On 17 October 1997 Georgia enacted a Law “On State of
Emergency.”Note Under Article 4 of the law authorities
can “subject media to their control”
and “introduce special rules on the use
of communication facilities”
- Similarly, the 1955 French law cited above enables the
police to control the movement of information.
- In emergency situations, Turkish authoritiesNote may prohibit
or require permission for “the publication (including issuance of
reprints and editions) and distribution of newspapers, magazines,
brochures, books, etc.; [the] importation and distribution of publications
published or reprinted outside regions declared to be under a state
of emergency; and confiscat[e] books, magazines, newspapers, brochures, posters
and other publications of which publication or dissemination has
been banned [as well as] control and, if deemed necessary, restriction
or prohibition of every kind of broadcasting and dissemination of words,
writings, pictures, films, records, sound and image bands (tapes)...”
38. The Johannesburg Principles on National Security, Freedom
of Expression and Access to Information (UN, 1996) emphasise that
such restrictions are often not necessary – that reporting of facts
and expression of opinions should not be regarded as constituting
a threat to national security (including mere advocacy of change
of government policy or of the government itself) where that advocacy
does not incite immediate and substantial violation of the law or
create a serious and imminent threat that a substantial violation
of the law will actually occur.
Note A
similar point has been made by the European Court of Human Rights:
“
It is of the essence of democracy to
allow diverse political projects to be proposed and debated, even
those that call into question the way a State is currently organised.”
Note
39. Johannesburg Principle 11, “General Rule on Access to Information”,
also states that: “Everyone has the right to obtain information
from public authorities, including information relating to national
security. No restriction on this right may be imposed on the ground
of national security unless the government can demonstrate that
the restriction is prescribed by law and is necessary in a democratic
society to protect a legitimate national security interest.”
40. The Council of Europe has examined in on this subject as well.
In its Guidelines on Protecting Freedom of Expression and Information
in Times of Crisis (2007),
Note the Committee of Ministers
insists on the following: (1) the personal safety of media professionals
must be ensured in times of crisis, (2) there should be guaranteed
freedom of movement to media in crisis areas, (3) military and civilian
authorities should provide a regular flow of information to media
(and do so without discrimination), and (4) national legislatures
must provide guarantees against the misuse of defamation legislation
and allow journalists to protect their source material. Also, the
Committee of Ministers has insisted that vague terms not be used
when imposing legal restrictions on freedom of expression and that
there should be criminal or administrative liability for officials
who try to use the media to manipulate public opinion.
4 The need to strengthen
supervision of states of emergency
41. The principle way of avoiding the disastrous consequences
which may result from a mismanaged state of emergency is to ensure
that all member States have adequate safeguards in their national
law systems – i.e. that they follow the international norms of conduct
as discussed above – and that those safeguards are actually put
into place through effective supervision of measures and institutions.
The three most basic supervisory elements are the constitutional
limitation of the duration of the state of emergency, judicial oversight,
and the last resort of international supervision.
4.1 Time limit/duration
and legislative oversight
42. Time limits are the first line of defence to prevent
states of emergency from growing out of proportion. This is linked
to the importance of healthy attitudes within the population itself;
and the development of a civil society and effective opposition
groups to hold leaders accountable. It is critical that the average
citizen shall not be lulled into the complacent view that life under
emergency measures is normal or average. If time limits are properly
enforced they also send a clear message that the measures taken
are out of the ordinary.
43. The concept has been recognised by many member States, such
as Russia and Ukraine, which limit duration to 30 days
Note,
with the limit ranging from two weeks to one year in other member
States.
Note These limits are often renewable
Note,
and this renewability provides a simple way of imposing legislative
oversight on the process – going hand in hand again with the notion
of a healthy civil society and a vocal opposition as the best defence
of human rights. But control through civil society requires public
access to information, which must therefore not be overly restricted
even during the emergency situation itself.
44. Many States, like Germany, declare states of emergency through
the most directly democratically legitimate branch of government,
the legislative, but many others, like France, Russia, Lithuania,
Slovakia, and Romania, leave the decision on the state of emergency
and its proclamation to the head of state.
Note Instituting constitutional
limitations, like a sunset provision with extension subject to periodic,
regular parliamentary approval is, as the Venice Commission has
noted, one element “
important for the
realisation of the rule of law and democracy.” The Venice
Commission has further observed that: “
The
question of by whom, how and when emergency rule is to be terminated
cannot...be left to executive enjoying its increased power. It must
be the function of the Parliament. This implies a continuity of
parliamentary life during the period of emergency.”
Note The Venice
Commission’s conclusion that parliamentary limitations must be provided
for, cannot be stressed more highly. Even legislation carefully
drafted to protect human rights, needs to be implemented in that
spirit. Requiring parliaments to have a central voice in the operation
of a state of emergency works to protect the integrity of that legislation.
4.2 Judicial supervision
45. The continuation of the rule of law, which is the
aim of all guidelines for human rights in emergencies, is necessarily
contingent on judicial review and a working judicial system generally.
In many countries there is no judicial review of the establishment
of the emergency situation, only of the actions taken under it.
However, as established above, the Court has consistently asserted
that it is competent to assess the legitimacy of the proclamation
of states of emergency under Article 15, and thus it follows from
the Court’s subsidiary role that national judiciaries should be
able to assert the same oversight. Judicial approval of the constitutionality
of a state of emergency provides yet another stop gap against illegitimately
declared emergencies (likely to threaten rights) and also firmly
establish judicial jurisdiction over all facets of the actions taken.
Note
46. Effective judicial safeguards and oversight are essential
in any emergency situation if someone is to be held to account for
any violations of the rights discussed above and many others which
may be violated in an emergency situation.
Note The
preservation of a working judicial system is especially important
given that some emergency legislation in Council of Europe member
States may pose problems in this arena.
Note Fortunately,
it is the area of law and legal protections during emergency situations
where the international community has made itself most clear.
47. In 2001, the UN Human Rights Committee drafted a new General
Comment on Article 4 to the International Covenant on Civil and
Political Rights in response to recommendations by Leandro Despouy, then
United Nations Special Rapporteur on Emergency Situations.
Note General
Comment 29 emphasises in relevant part, that states of emergency
cannot be used to cover violations of peremptory norms of international law
– including for example, Common Article 3 of the Geneva Conventions.
The General Comment also highlights that the provision of an effective
remedy is a non-derogable fundamental obligation – i.e. procedural rights;
particularly stating that, although not listed in Article 4, the
following are non-derogable:
- the
elements of the right to a fair trial recognised by international
humanitarian law, especially the presumption of innocenceNote
- the right to an effective remedy for any violation of
the Covenant, including in particular the right to challenge the
legality of deprivation of liberty in a courtNote
These
two rights thus suggest that denial of access to counsel is a violation
as well; and in its General Comment 32 (adopted in 2007) the non-derogability
of the right to a fair trial is reiterated, the Committee stating that,
“
the requirement of competence, independence,
and impartiality of a tribunal... is an absolute right not subject
to any exception.”
Note
48. Mr Despouy’s own Draft Guidelines for the Development of Legislation
on States of Emergency (1991) highlight the significant point that
“
in most circumstances the only right
[in the judicial sphere] which should be affected is the right to
a prompt trial. Given the presumption that states of emergency should
be of relatively short duration, if the exigencies of the emergency
make it difficult to try certain suspects under normal procedures,
the solution which usually will have the least possible impact on
their rights is to postpone the trial until it can be conducted
with full respect for all guarantees of due process.”
Note
49. Similarly, the International Law Association’s Paris Minimum
Standards of Human Rights Norms in a State of Emergency (1984)
Note are
notable in that they include specific judicial protections including communication
with an attorney, review of case by a judicial body within 30 days,
right to
habeas corpus and various
provisions regarding the right to a fair trial. Moreover, the document
places a large emphasis on the independence, security, and power
of the judiciary in times of emergency. For example, it states that:
“The judiciary shall have the power
and jurisdiction to decide: firstly, whether or not an emergency legislation
is in conformity with the constitution of the state; secondly, whether
or not any particular exercise of emergency power is in conformity
with the emergency legislation; thirdly, to ensure that there is
no encroachment upon the non-derogable rights and that derogatory
measures derogating from other rights are in compliance with the
rule of proportionality; and fourthly, where existing municipal
laws and orders are not specifically rescinded or suspended, the
judiciary shall continue to regard them as being in effect. A court
of law shall have full powers to declare null and void any emergency
measure (legislative or executive) or any act of application of
any emergency measure which does not satisfy the aforesaid tests.”Note
50. As regards the European Convention on Human Rights specifically,
derogations under Article 15 may legally extend to Article 6 ECHR
(right of access to a court) and Article 13 ECHR (right to an effective
remedy), but in accordance with the international norms cited above,
they must not extend past what is strictly required, and a domestic
supervisory mechanism – preferably the courts as they normally exist
– must remain operational, as the Court has said, “
whereby, subject to the inherent limitations
of the context, the individual can secure compliance with the relevant
laws.”
Note The UN Human Rights
Committee adds that even if a State “
may
introduce adjustments to the practical functioning of its procedures
governing judicial or other remedies, the State party must comply
with the fundamental obligation... to provide a remedy that is effective.”
Note Thus,
to summarise, the integrity of the judicial system should be safeguarded
as far as possible.
51. Furthermore, it is necessary that all alleged violations of
human rights that reportedly occurred during or in the aftermath
of a state of emergency undergo an effective and thorough investigation.
This was one of the requirements of the Parliamentary Assembly as
regards the March 2008 events in Armenia; the co-rapporteurs welcomed,
on 24 October 2008, the creation of a fact-finding group to look
into these events and the circumstances that led to them
Note. Also, governments
should be made accountable for human rights violations they could
have prevented.
4.3 Enhancement of
international/ Council of Europe supervision
52. International supervision of emergency situations
may also be enhanced, with the Council of Europe taking the lead.
Most importantly, the Parliamentary Assembly and the Committee of
Ministers should make it clear that the international community
expects member States to take the institutions of basic safeguards seriously
– especially emphasising the non-derogation from Articles 6 and
13 of the European Convention on Human Rights when at all possible.
The Assembly could especially take the lead in monitoring such situations and
continue publicly expressing its opinions on State conduct because
critical resolutions can exert effective political pressure on member
States. The recent resolution adopted following the events in Armenia
is a good example
Note.
Leaving most of the necessary criticism up to the Committee of Ministers
risks burying abuses in the Committee’s oft-required conciliatory
stance, or delaying necessary action in response.
Note
53. Other possible reforms could include increasing oversight
of declared states of emergencies by the Council of Europe’s Commissioner
for Human Rights
Note or Secretary General.
The Secretary General is in a particularly unique position as the
recipient of the notification of derogations under Article 15. This
passive role may be extended in future so as to allow the Secretary
General not only to receive a notification of declaration of derogation
under Article 15 ECHR but also to request supplementary information
during and after the state of emergency, when and if necessary.
Note He
should then transmit this information to all Contracting Parties,
the Chairperson of the Committee of Ministers, the President of
the European Court of Human Rights, the Council of Europe Commissioner
for Human Rights, as well as the Presidents of the Parliamentary
Assembly and of the Congress of Local and Regional Authorities.
Note
54. Similarly, the advisory jurisdiction of the Court could be
expanded to something comparable to that of the Inter-American Court
of Human Rights, allowing it expedite expressions of disapproval
in on-going situations (perhaps following referral of cases by the
Human Rights Commissioner or Secretary General) – thereby stemming
the tide of abuses before it gains full strength. This contrasts
with the situation where judgments often occur years after abuses
have already wrecked lives. Finally, member States might consider adding
more rights to the list of those that are currently non-derogable.
Note
55. To make the process complete, the Council of Europe should
enhance its scrutiny for a certain time period after the state of
emergency has been lifted, since it appears that violations occur
even after this. It is, for instance, worrying that the Armenian
Law on staging meetings, rallies, marches and demonstrations - as amended
following the March 2008 state of emergency - has been used since
then by the Yerevan City Hall to turn down dozens of applications
to stage a rally sponsored by the opposition. The Assembly had specifically asked
in its Resolution 1609 (2008) that the recent amendments on this
Law be revoked, in line with the recommendations of the Venice Commission.
56. Most simply, the Council of Europe must create new ways, or
find ones within its existing framework to elevate and broaden the
level of scrutiny applied to emergency declarations, increase the
speed at which the various Council organs can respond to fast moving
events on the ground, and express a fundamental and firm intolerance
for abuses committed under the shroud of emergencies.
5 Prevention
57. During the expert hearing, held by the committee
on 9 September 2008, the question of the prevention of the use (and
abuse) of state of emergency provisions was raised.
58. As mentioned by one of the experts, practice has shown that
the warning signs (e.g. human rights abuses by security forces,
restrictions on freedom of speech, judicial corruption, etc.) can
usually be observed early enough for relevant international actors
to take action which could prevent the situation from escalating to
the extent of declaring a state of emergency
Note.
59. The experts agreed on three basic requirements to avoid the
misuse of emergency provisions: a functioning democracy, the protection
of human rights and the rule of law. These are indeed the areas
of excellence of the Council of Europe and on which it should concentrate
its efforts.
60. It has also been stressed that special attention should be
paid to the judiciary, which must be independent, as well as to
the freedom of speech. When the right to independent and fair trial
is non-existent, other rights become ineffective.
61. Since it appears that declarations of a state of emergency
are often around the time of elections and especially in democracies
in transition, special scrutiny should be given in these sensitive
times. OSCE-ODHIR already offers expertise in such situations and
is able to deploy observation missions for a longer period before and
after elections than the Parliamentary Assembly does. In this field,
co-operation between both Organisations already exists but might
need to even be reinforced when a state of emergency is declared before,
during or shortly after elections.
62. The analysis of draft legislation is also of utmost importance.
Member States should be encouraged to submit relevant draft legislation
to the Venice Commission and to take its opinions fully into account
Note. Obviously, this
is particularly important as regards the national legislation on
state of emergency as well as legislation elaborated following emergency
situations.
6 Conclusions
and proposals
63. Declaring a state of emergency may be a legitimate
State action, but such an action must be conducted with the utmost
care. Governments must exercise emergency powers with the understanding
that states of emergency are intended to preserve democracy and
the rule of law. It is not an excuse to flout those norms.
64. Thus states of emergency (and derogations from the ECHR, if
necessary) should only be invoked in the direst of circumstances
where the existence of the nation is threatened. The measures taken
should never extend beyond what is strictly required by the situation,
and states should note that an ECHR derogation does not excuse other
obligations to protect human rights under international law. The
principles of temporality, imminence, public declaration, international
notification, proportionality, legality, and the inviolability of
non-derogable rights must always be respected.
65. National authorities should take care to properly train their
first responders on legally acceptable behaviour – i.e. respect
for the non-derogable rights to life and freedom from torture and
inhuman treatment – and the use of force as an extreme last resort.
Security forces should also have as many non-violent and non-lethal
means of crowd control as possible. Police forces should always
remain operationally independent of the government, subject to administrative
and judicial sanctions for misconduct, and the public should be
assured of their neutrality in any emergency operation.
66. There is a presumption of freedom of assembly in all situations
and all restrictions upon that qualified right instituted pursuant
to an emergency must be lawfully initiated. Thus, restrictions on
time, place, or manner of assembly are preferable to a outright
ban.
67. Reporting facts and expressing opinions as such should not
be regarded as constituting a threat to national security. Thus
any restrictions of the freedom of expression must be shown to be
necessary in a democratic society to protect a legitimate national
security interest. Such restrictions should be as clear and limited
as possible. The public should have constant access to independent
media, and those who manipulate the media in times of public crisis
should face sanctions.
68. Safeguards on the national level are of the highest importance.
States should be able to deal with crises without threatening their
own people, and be able to respond to the threat of human rights
violations, preferably without international intervention.
69. There should be clear time limits and effective legislative
oversight of any state of emergency – perhaps through a sunset provision
with extension subject to periodic, regular parliamentary approval
– and civil society or voices of opposition should not be unduly
suppressed. Judicial approval of the constitutionality of a state
of emergency may also be appropriate. The integrity of the judicial
system – its competence, independence, and impartiality – should
be safeguarded as far as possible, with special attention given
to preserving access to the courts and to an effective remedy.
70. The Council of Europe should consider expanding its oversight
role to supplement these good practices in member States. The organs
of the Council of Europe can contribute to elevating the level of
scrutiny over emergency situations both politically and in the sphere
of international law. Should national safeguards prove insufficient
to protect the human rights of individuals under emergency rule,
the ultimate aim should be that governments who are violating the
human rights of their people should be held firmly and fast accountable.
71. Finally, the Assembly should invite the Committee of Ministers
to look into ways and means to achieve this, by instructing its
relevant committees to:
- consider
granting the Secretary General, upon receipt of a notification of
declaration of derogations under Article 15 ECHR, the possibility
to request supplementary information during and after the state of
emergency, and to transmit this information to all Contracting Parties,
the Chairperson of the Committee of Ministers, the President of
the European Court of Human Rights, the Council of Europe Commissioner
for Human Rights, as well as the Presidents of the Parliamentary
Assembly and of the Congress of Local and Regional Authorities;
- consider adding more rights to the list of those that
are currently non-derogable under Article 15 ECHR, especially with
respect to rights whose suspension is not essential even in a state
of emergency, as in Article 27 of the American Convention on Human
Rights.
Reporting committee:
Committee on Legal Affairs and Human Rights
Reference to committee:
Doc. 10985, Reference No. 3281 of 6 October 2006
Draft resolution and draft recommendation adopted unanimously
by the committee on 24 March 2009
Members of the committee:
Mrs Herta Däubler-Gmelin (Chairperson),
Mr Christos Pourgourides,
Mr Pietro Marcenaro, Mr Rafael Huseynov (Vice-Chairpersons), Mr
José Luis Arnaut, Mrs Meritxell Batet Lamaña (alternate:
Mr Arcadio Díaz Tejera),
Mrs Marie-Louise Bemelmans-Videc, Mrs Anna Benaki,
Mr Erol Aslan Cebeci, Mrs Ingrīda Circene,
Mrs Ann Clwyd (alternate: Mr Christopher Chope),
Mrs Alma Čolo (alternate: Mrs Milica Marković),
Mr Joe Costello, Mrs Lydie Err, Mr Renato Farina,
Mr Valeriy Fedorov, Mr Joseph
Fenech Adami (alternate: Mrs Marie-Louise Coleiro
Preca), Mrs Mirjana Ferić-Vac, Mr György Frunda, Mr Jean-Charles Gardetto, Mr Jószef Gedei, Mrs
Svetlana Goryacheva (alternate: Mr Alexey Aleksandrov),
Mrs Carina Hägg, Mr Holger Haibach,
Mrs Gultakin Hajibayli, Mr Serhiy Holovaty,
Mr Johannes Hübner, Mr Michel Hunault, Mrs Fatme Ilyaz, Mr Kastriot
Islami, Mr Želiko Ivanji,
Mrs Iglica Ivanova, Mrs Kateřina Jacques,
Mr András Kelemen, Mrs Kateřina Konečná,
Mr Franz Eduard Kühnel, Mr
Eduard Kukan (alternate: Mr József Berényi),
Mrs Darja Lavtižar-Bebler, Mrs Sabine Leutheusser-Schnarrenberger,
Mr Aleksei Lotman, Mr Humfrey Malins,
Mr Andrija Mandic, Mr Alberto Martins,
Mr Dick Marty, Mrs Ermira Mehmeti, Mr Morten Messerschmidt,
Mr Akaki Minashvili, Mr Philippe
Monfils, Mr AlejandroMuñoz
Alonso, Mr Felix Müri, Mr
Philippe Nachbar, Mr Valery Parfenov, Mrs Maria Postoico, Mrs Marietta
de Pourbaix-Lundin, Mr Valeriy Pysarenko,
Mr Janusz Rachoń, Mrs Marie-Line Reynaud (alternate: Mr René Rouquet), Mr François Rochebloine,
Mr Paul Rowen, Mr Armen Rustamyan, Mr Kimmo Sasi, Mr Ellert Schram, Mr Dimitrios
Stamatis (alternate: Mr Emmanouil Kefaloyiannis),
Mr Fiorenzo Stolfi, Mr Christoph Strässer,
Lord John Tomlinson, Mr Mihai
Tudose, Mr Tuğrul Türkeş,
Mrs Özlem Türköne, Mr Viktor Tykhonov, Mr Øyvind Vaksdal, Mr Giuseppe Valentinon
(alternate: Mr Gianni Farina),
Mr Hugo Vandenberghe, Mr Egidijus Vareikis,
Mr Luigi VItali, Mr Klaas de Vries,
Mrs Nataša Vučković, Mr Dimitry Vyatkin, Mrs Renate Wohlwend, Mr Jordi Xuclà i
Costa
N.B.: The names of the members who took part in the meeting
are printed in bold
Secretariat of the committee:
Mr Drzemczewski, Mr Schirmer, Mrs Maffucci-Hugel, Ms Heurtin
