Appendix 1 to the reply
Comments by the Steering Committee for
Human Rights (CDDH)
1. The Steering Committee for
Human Rights (CDDH) notes with interest
Recommendation 1865 (2009) of the Parliamentary Assembly on “The protection of
human rights in emergency situations”, which deals with a crucial
problem. At the moment of a declaration of a state of emergency,
the level of surveillance at the national and at the European level
must be effective in order to respect human rights, with the relevant
Council of Europe control mechanisms fully playing their role.
2. The Committee has already looked into situations where fundamental
rights are at risk of being violated, under the pretext of protecting
them, particularly within the framework of drafting the Guidelines
of the Committee of Ministers on Human Rights and the Fight against
Terrorism, adopted on 11 July 2002. Following from Article 15 of
the European Convention on Human Rights and the Court’s jurisprudence,
it is intended that when the fight against terrorism intervenes
in a state of war or public danger which threatens the life of the nation,
it is possible to unilaterally adopt measures temporarily derogating
from certain obligations which follow from international human rights
instruments, but only to the extent strictly required by the exigencies
of the situation, as well as within the limits and under the conditions
fixed by international law. It is emphasised that states may never,
whatever the acts of the person suspected of terrorist activities,
or convicted of such activities, derogate from the right to life
as guaranteed by these international instruments, from the prohibition of
torture or inhuman or degrading treatment or punishment, from the
principle of legality of sentences and of measures, nor from the
ban on the retrospective effect of criminal law (Guideline XV).
3. The CDDH takes note of the suggestion of the Parliamentary
Assembly to grant to the Secretary General, upon the receipt of
a declaration of derogation in accordance with Article 15 of the
Convention, the possibility to request additional information during
and after the state of emergency, in order to pass this information
on to other member states and affected bodies within the Organisation.
It recalls that the legal framework for the exercise of this competence
by the Secretary General already exists in paragraph 3 of Article 15
of the Convention.
4. The CDDH nevertheless recalls that the Court affirmed its
competence for exercising control over the existence of a public
danger threatening the life of the nation: “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 The
Court does not exercise this competence
in
abstracto, but only in the event of a concrete situation
which has been brought to its attention following an individual
or state application.
5. In addition, if it is not for the Court to say what measures
are best adapted to situations of emergency because this comes under
the direct responsibility of governments, the Court has nevertheless
confirmed that “Contracting Parties do not enjoy an unlimited power
of appreciation. It is for the Court to rule on 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. At the same time, in exercising its supervision the
Court must give appropriate weight to such relevant factors as the
nature of the rights affected by the derogation, the circumstances
leading to, and the duration of, the emergency situation”.
Note
6. Rather than extending the list of rights in relation to which
no derogations can be made under Article 15 of the Convention, the
CDDH wants to underline the crucial role of the Court in assessing
the national margin of appreciation.
