Protection of human rights in emergency situations
- Parliamentary Assembly
debate on 27 April 2009 (11th Sitting) (see Doc. 11858, report of the Committee on Legal Affairs and Human
Rights, rapporteur: Mr Haibach). Text
adopted by the Assembly on 27 April 2009 (11th Sitting).
See also Recommendation
1. The Parliamentary
Assembly is concerned by recent recourse to declarations of a state
of emergency in several member states, in particular Georgia and
Armenia, involving serious human rights violations.
2. It is the state’s responsibility to take preventive measures
to protect the interests of society “in time of war or other public
emergency threatening the life of the nation” (Article 15 of the
European Convention on Human Rights (ETS No. 5), as interpreted
by the European Court of Human Rights). Emergency measures must
not exceed what is strictly required by the situation and cannot
be inconsistent with the state’s other obligations under international
3. In very specific circumstances linked specifically to Article
15 of the European Convention on Human Rights, the declaration of
a state of emergency can be a legitimate legal method to respond
quickly to such threats. However, as it entails restrictions on
the rights and freedoms of individuals, it must be used with utmost care
and as a means of last resort only. Declaring a state of emergency
must not become a pretext to unduly restrict the exercise of fundamental
4. Allegations of abuse of such derogations must be effectively
and thoroughly investigated, and the government must be fully accountable.
5. In order to enhance national oversight of the use of emergency
legislation, the Assembly is convinced that the legislature should
have effective control of this decision-making process.
6. The Assembly notes that an abusively declared or improperly
conducted state of emergency often results in excessive use of force
and, in particular, the stifling of the freedoms of assembly and
7. National authorities should ensure appropriate training for
law-enforcement officials with respect to non-derogable rights,
in particular the rights to life, freedom from torture and inhuman
or degrading treatment and to the principle of “no punishment without
law”, as well as to the use of potentially lethal force only as
a last resort when all other means fail. Security forces should
have at their disposal the appropriate panoply of means of crowd
control that are non-violent and less likely to be lethal and should
remain subject to stringent administrative and judicial supervision
(see, in this connection, the United Nations Basic Principles on
the Use of Force and Firearms by Law Enforcement Officials (1990)
and the Council of Europe’s European Code of Police Ethics (2001)).
8. The Assembly is strongly of the opinion that the rules of
engagement of the security forces in all Council of Europe member
countries, and in particular in those countries which, like the
Russian Federation, have inherited certain rules from the Soviet
period or have recently adopted similar legislation or regulations,
should be thoroughly reviewed and modernised in the light of the
requirements of the European Convention on Human Rights and the
case law of the European Court of Human Rights.
9. Taking into account the Guidelines on Freedom of Peaceful
Assembly (2007) of the Office for Democratic Institutions and Human
Rights (ODIHR) of the Organization for Security and Co-operation
in Europe (OSCE), restrictions on the time, place or manner of assembly
during an emergency are by far preferable to an outright ban.
10. As concerns freedom of expression, the Assembly recalls the
Guidelines of the Committee of Ministers of the Council of Europe
on protecting freedom of expression and information in times of
crisis (2007) and stresses that reporting facts and expressing opinions
as such should never be regarded as constituting a threat to national
security, except in circumstances strictly defined by law; any restrictions
must be shown to be necessary in a democratic society to protect
a legitimate national security interest and respect the proportionality
principle. Such restrictions should be as clear and as limited as
possible. The public should have constant access to independent
11. The Assembly condemns any attempt to set up legislation concerning
demonstrations which would inevitably lead to emergency-like situations
by excessively limiting the rights of freedom of movement or expression
and by setting up inappropriate impediments to receiving authorisation
for such demonstrations to take place.
The Assembly considers that the following safeguards – in
addition to those stated in Article 15 of the European Convention
on Human Rights – should always be provided for in a state of emergency:
12.1 clear time limits and effective
legislative oversight of any state of emergency – for example through
a “sunset clause” with the possibility of extension subject to new
parliamentary approval – while ensuring that the opposition can
play its role;
12.2 judicial scrutiny of the validity of a state of emergency
and its implementation.
13. The integrity of the judicial system – its competence, independence
and impartiality – should be safeguarded, especially as concerns
access to a court and to an effective remedy.
14. At the international level, the oversight of declared states
of emergencies by the Council of Europe’s Secretary General and
the Commissioner for Human Rights should be reinforced. Also, member
states should consider adding more rights to the list of those that
are currently non-derogable, as is the case in other international
human rights mechanisms.