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State of emergency: proportionality issues concerning derogations under Article 15 of the European Convention on Human Rights

Doc. 14506: collection of written amendments | Doc. 14506 | 23/04/2018 | Final version

Caption: AdoptedRejectedWithdrawnNo electronic votes

ADraft Resolution

1It 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, as the Parliamentary Assembly has previously noted in Resolution 1659 (2009) on the protection of human rights in emergency situations. Such situations may even require restrictive measures that exceed what is normally permitted under the European Convention on Human Rights (ETS No. 5, “the Convention”). Without appropriate guarantees, such measures create serious risks for democracy, human rights and the rule of law.
2The Convention is adaptable to any and all circumstances, continuing to regulate the State's actions even in the event of national crisis. Article 15 of the Convention allows States to derogate from certain of their obligations in time of war or other public emergency threatening the life of the nation. In no circumstances, however, does it allow national authorities to act without constraint.
3There can be no derogation at all from certain rights, as specified in Article 15; nor may derogations from other rights violate international humanitarian law or peremptory norms of international law, or procedural guarantees in such a way as to circumvent the protection of non-derogable rights. Fundamental safeguards of the rule of law, in particular legality, effective parliamentary oversight, independent judicial control and effective domestic remedies, must be maintained even during a state of emergency. Due democratic process, including separation of powers, as well as political pluralism and the independence of civil society and the media must also continue to be respected and protected.
4Beyond these constraints, the overarching principle of proportionality limits the action that may be taken, via the stringent test of what is “strictly required by the exigencies of the situation”. Normal measures or restrictions permitted by the Convention for the maintenance of public safety, health and order must be plainly inadequate before derogatory, emergency measures are permissible. A state of emergency that requires derogation from the Convention must be limited in duration, circumstance and scope. Emergency powers may be exercised only for the purposes for which they were granted. The duration of emergency measures and their effects may not exceed that of the state of emergency.
5The State must, without any unavoidable delay, inform the Secretary General of the Council of Europe of the measures taken and the reasons for them, and of when such measures have ceased to operate and the Convention is again being fully applied.
6Three States have or, until very recently, had derogations in force: in chronological order, Ukraine, France and Turkey.
7Ukraine notified the Secretary General of its derogation on 9 June 2015. It stated that the “public emergency threatening the life of the nation” consisted of the “ongoing armed aggression of the Russian Federation against Ukraine, together with war crimes and crimes against humanity committed both by regular Armed Forces of the Russian Federation and by the illegal armed groups guided, controlled and financed by the Russian Federation”. Ukraine's derogation concerns four specific laws adopted on 12 August 2014. It extends only to certain specified localities in the Donetsk and Luhansk oblasts. The notification specifies the Convention rights from which Ukraine derogates and indicates the nature of the circumstances in which the derogation may be withdrawn.
8The Assembly reiterates its condemnation of the Russian aggression in Ukraine, in violation of international law and the principles upheld by the Council of Europe, and recalls the credible reports of violations of international human rights and humanitarian law by all sides to the conflict.
9The Assembly is concerned about the provision in one of the Ukrainian laws permitting preventive detention for up to 30 days. Whilst this provision seems not to have been applied, its potential duration may be disproportionate. The Assembly is also concerned about the manner in which some of the other laws have been applied, in particular administration of and material conditions at the crossing points between government-controlled and non government-controlled territory, and the functioning of courts transferred from non government-controlled territory to government-controlled territory.
10France notified the Secretary General of its derogation on 24 November 2015. The notification recalls that “on 13 November 2015, large-scale terrorist attacks took place in the Paris region” and asserts that “the terrorist threat in France is of lasting nature”; later notifications prolonging the derogation refer also to “an imminent danger resulting from serious breaches of public order”. France's derogation relates to its application of Law No. 55-385 of 3 April 1955 on the state of emergency (“the 1955 Law”), which grants a range of restrictive powers to the administrative authorities throughout metropolitan France and its overseas territories. The state of emergency has been prolonged on several occasions, sometimes with modifications made to the 1955 Law and its application. The notifications do not specify the Convention rights from which France derogated.
11The Assembly reiterates its condemnation of these terrorist attacks, which target the very values of democracy and freedom, recalling that since November 2015, France has repeatedly suffered further such atrocities.

23 April 2018

Tabled by Mr Roman HAIDER, Mr Martin HEBNER, Mr Martin GRAF, Mr Ulrich OEHME, Mr Axel KASSEGGER

Votes: 20 in favor 59 against 18 abstentions

In the draft resolution, replace paragraph 11 with the following paragraph:

"The Assembly reiterates its condemnation of these jihad attacks, which target France because of its laudable participation in the just war against the Islamic State, recalling that since November 2015, France has repeatedly suffered further such atrocities. The Assembly likewise recalls that the French Government reports that the state of emergency helped intelligence agencies to thwart more than 30 attacks.".

12The Assembly notes with concern the various criticisms made of the state of emergency in France, including its use of subjective and insufficiently precise terms to define the scope of application and its reliance on posterior judicial review by the administrative courts, including on the basis of notes blanches provided by the intelligence services, instead of the prior authorisation by the ordinary courts required under criminal law. It is also concerned about the cases of improper behaviour by police during administrative searches and the application of emergency measures to situations not directly related to the grounds for the state of emergency. It notes that these matters have been carefully examined by the competent domestic courts. It welcomes the structured, continuous parliamentary oversight of the state of emergency and the close scrutiny given to it by national human rights structures, civil society and the media, to whose criticisms the government remained attentive.
13On 30 October 2017, France adopted a new law on “reinforcing domestic security and the fight against terrorism” (“the 2017 Law”), including measures with a similar aim to some of those previously available under the state of emergency, subject to enhanced legal guarantees. This permitted the lifting of the state of emergency and the withdrawal of the derogation. The Assembly, recognising the legal and political complexities involved, welcomes the end of the state of emergency in France, whose duration had become questionably long. It encourages the French authorities to ensure that the 2017 law is applied in full compliance with Council of Europe standards, including those of the Convention.

23 April 2018

Tabled by Mr Roman HAIDER, Mr Martin HEBNER, Mr Martin GRAF, Mr Ulrich OEHME, Mr Axel KASSEGGER

Votes: 10 in favor 87 against 7 abstentions

In the draft resolution, paragraph 13, after the first sentence, insert the following sentence: "The law allows the French Government, inter alia, to shut mosques or other locations suspected of preaching hatred. A poll conducted in early October 2017 showed more than 80 per cent of support for the bill.".

14Turkey notified the Secretary General of its derogation on 21 July 2016. The notification refers to the failed coup attempt of 15 July 2016 and its aftermath, which, “together with other terrorist acts have posed severe dangers to public security and order, amounting to a threat to the life of the nation in the meaning of Article 15 of the Convention”. Turkey's derogation relates to the successive emergency decree-laws that have been passed under the state of emergency that was declared on 20 July 2016 and prolonged on several occasions since. Turkey has notified the Secretary General of all prolongations of the state of emergency and most, but not all of the decree-laws. It has not explained whether there were particular circumstances to justify the prolongations. The notifications do not specify the Convention rights from which Turkey derogates.

23 April 2018

Tabled by Mr Mustafa YENEROĞLU, Mr Akif Çağatay KILIÇ, Ms Sahiba GAFAROVA, Mr Samad SEYIDOV, Mr Sabir HAJIYEV

Votes: 84 in favor 8 against 14 abstentions

In the draft resolution, paragraph 14, insert the following words at the end of the first sentence: ", stating that the measures taken may involve derogation from the obligations under the Convention, permissible under Article 15.".

Explanatory note

It is appropriate to record, as stated in Turkey's official notification that the measures taken by Turkish authorities in the framework of the right and opportunity recognised by the Convention, may lead to derogations from Turkey's obligations arising from the Convention.

In the draft resolution, paragraph 14, fourth sentence, delete the following words: "most, but not".

Explanatory note

This amendment is about a factual mistake. The Secretary General of the CoE has been informed about all decree-laws issued.

In the draft resolution, paragraph 14, insert the following words at the end of the last sentence: ", this not being a requirement of Article 15."

Explanatory note

It is appropriate to record that the specification of the Convention rights subject to derogation is not required by the Convention.

15The Assembly reiterates its firm condemnation of the criminal attempt to overthrow Turkey’s democratically elected institutions and again fully acknowledges that these events were traumatic for Turkish society. It also reiterates its recognition of the multiple threats and challenges facing Turkey, the existence of a legitimate reason to declare a state of emergency, and Turkey’s right and duty to fight terrorism and address security issues in order to protect its citizens and its democratic institutions.

23 April 2018

Tabled by Mr Mustafa YENEROĞLU, Mr Akif Çağatay KILIÇ, Ms Sahiba GAFAROVA, Mr Samad SEYIDOV, Mr Sabir HAJIYEV

Votes: 97 in favor 2 against 12 abstentions

In the draft resolution, at the end of paragraph 15, insert the following sentence: "The Assembly also firmly condemns terrorist attacks, which target the very values of democracy and freedom, recalling that since the terrorist coup attempt, Turkey has repeatedly suffered further such atrocities.".

Explanatory note

It would be convenient to add the condemnation of the terrorist attacks in Turkey to the draft resolution, since the terrorsit attacks in France are strongly condemned in the draft resolution.

16The Assembly recalls the conclusions it reached on the state of emergency in Resolution 2156 (2017) on the functioning of democratic institutions in Turkey. It also recalls the relevant positions taken by the Congress of Local and Regional Authorities of the Council of Europe, the Council of Europe Commissioner for Human Rights, the Conference of International Non-governmental Organisations and the European Commission for Democracy through Law (Venice Commission), among others. On this basis, it considers that Turkey’s response to the unquestionably serious situation described in the derogation is disproportionate on numerous grounds, in particular:
16.1the powers granted to the government have been used for purposes going beyond what is strictly required by the exigencies of the situation giving rise to the state of emergency;

23 April 2018

Tabled by Mr Mustafa YENEROĞLU, Mr Akif Çağatay KILIÇ, Ms Sahiba GAFAROVA, Mr Samad SEYIDOV, Mr Sabir HAJIYEV

Votes: 105 in favor 4 against 7 abstentions

In the draft resolution, paragraph 16.1, insert the word "certain" before the word "purposes".

Explanatory note

It would be more convenient to avoid a generalisation.

16.2the duration of the state of emergency has exceeded what is strictly required;
16.3emergency powers have been used, without effective parliamentary or judicial oversight, to make permanent changes both to the status and rights of natural and legal persons and to legislation, including in areas of particular political and legal significance;
16.4the impact of emergency measures on natural and legal persons has been excessive, both in scope and by being indiscriminate as to the degree of alleged culpability and permanent in effect;

In the draft resolution, paragraph 16.4, before the word "impact", insert the word "overall" .

Explanatory note

It would be more convenient to avoid a generalisation in the statement. Otherwise, it may lead to a misperception as if the impact of all measures has been excessive.

16.5delays in implementing a timely effective remedy have unduly prolonged the impact of emergency measures on persons who may have been wrongly affected.

In the draft resolution, paragraph 16.5, after the word "remedy", insert the following words: "for such a large number of cases".

Explanatory note

Remedies regarding the impact of emergency measures have been implemented as soon as possible. The commitment of the government in this regard has been strong, however the scope of threat and complexity of the necessary measures, which did not allowed to take expeditious steps, should be taken into consideration.

17The Assembly also reiterates its concerns about the wider situation in Turkey concerning political pluralism, local democracy, the judiciary, the situation of human rights defenders and civil society and the media, notably in relation to application of anti-terrorism laws. This background heightens the Assembly’s concerns in relation to the disproportionality of measures taken under the state of emergency.

In the draft resolution, paragraph 17, at the end of the last sentence, insert the following words: "; the Assembly will continue to follow up this issue.".

Explanatory note

It is important for both PACE and Turkey to provide a common vision as well as to strengthen mutual understanding and institutional cooperation. In this context, it would be more helpful to make a statement in which the Assembly has an active role.

In the draft resolution, at the end of paragraph 17, insert the following sentence: "The Assembly is particularly concerned by the fact that on 18 April 2018, the President of Turkey called for the presidential and parliamentary elections, previously expected in November 2019, to be brought forward to 24 June 2018, just hours before the Turkish parliament renewed the state of emergency for a further three months. In this respect, the Assembly recalls the clear position of the Venice Commission against the holding of elections or referenda under a state of emergency, when normal democratic freedoms may be severely restricted, as is currently the case in Turkey.".

18The Assembly therefore recommends that:
18.1Ukraine:
18.1.1reconsider the utility and hence the necessity of maintaining the provision on 30-day preventive detention, which the Constitutional Court should be given the opportunity of examining;
18.1.2make further efforts to enhance material conditions for people using the crossing points between government-controlled and non government-controlled territories;

23 April 2018

Tabled by Mr Oleksii GONCHARENKO, Mr Leonid YEMETS, Mr Viktor VOVK, Mr Serhii KIRAL, Mr Sergiy VLASENKO

Votes: 98 in favor 4 against 14 abstentions

In the draft resolution, replace paragraph 18.1.2 with the following paragraph:

"make further efforts to enhance material conditions for people in the Donetsk and Luhansk regions using the crossing points between government-controlled territories and temporarily occupied territories controlled by the Russian occupation administration;".

18.1.3make further efforts to ensure the proper functioning of and sufficiency of resources for courts transferred from non government-controlled areas;

23 April 2018

Tabled by Mr Oleksii GONCHARENKO, Mr Leonid YEMETS, Mr Viktor VOVK, Mr Serhii KIRAL, Mr Sergiy VLASENKO

Votes: 100 in favor 3 against 9 abstentions

In the draft resolution, paragraph 18.1.3, replace the words "non government-controlled areas;" with the following words: "temporarily occupied territories in the Donetsk and Luhansk regions controlled by the Russian occupation administration;".

18.1.4ensure that parliamentary scrutiny of the emergency measures is sufficient and effective;
18.2France:
18.2.1review the 1955 Law, which remains on the statute books and could be used again in future, in light of recent criticisms and the availability of comparable measures under the 2017 Law, examining in particular concerns relating to definitions used in certain provisions, the effectiveness of judicial oversight, individual remedies for damage or misconduct committed by the authorities when implementing emergency measures and the possibility of using emergency measures for purposes without a direct link to the situation that gave rise to the declaration of a state of emergency;
18.2.2to this end, conduct a careful review of the implementation in practice of the recent state of emergency, involving representatives of the executive and administrative authorities, the legislature, local authorities, the judiciary and civil society;
18.2.3ensure that the 2017 Law is applied in full compliance with Council of Europe standards, in particular those of the Convention;
18.3Turkey:
18.3.1immediately inform the Secretary General of all outstanding decree-laws introduced under the state of emergency;

23 April 2018

Tabled by Mr Mustafa YENEROĞLU, Mr Akif Çağatay KILIÇ, Ms Sahiba GAFAROVA, Mr Samad SEYIDOV, Mr Elshad HASANOV

Votes: 24 in favor 77 against 11 abstentions

In the draft resolution, delete paragraph 18.3.1.

Explanatory note

The paragraph should be deleted since Turkey has informed the Secretary General regarding all decree-laws.

18.3.2proceed without further delay with a critical examination by parliament of all outstanding decree-laws, with a view to rejecting any that are disproportionate, especially those having permanent effect or whose purpose is insufficiently related to the emergency situation;

23 April 2018

Tabled by Mr Mustafa YENEROĞLU, Mr Akif Çağatay KILIÇ, Mr Samad SEYIDOV, Ms Sahiba GAFAROVA, Mr Asim MOLLAZADA

Votes: 90 in favor 10 against 15 abstentions

In the draft resolution, delete paragraph 18.3.2.

Explanatory note

All of the decree-laws have been approved by the Grand National Assembly of Turkey and the necessary amendments have been made. The provisions of the decree laws have passed through the normal legislative process. Herewith, the way for the examination by the Constitutional Court was also opened.

18.3.3review as a matter of the utmost urgency all dismissals of public officials based only on indirect or questionable evidence, with a view to the immediate reinstatement of those whose dismissal was not justified to a high standard of proof;
18.3.4in order to ensure the timely availability of effective domestic remedies, expedite examination by the Inquiry Commission of outstanding applications, establishing clear standards for the examination and treatment of evidence and the legal basis for its decisions, and by the administrative and superior courts of any subsequent appeals; and expedite examination by the administrative courts of appeals by other public officials dismissed under the state of emergency;

23 April 2018

Tabled by Mr Mustafa YENEROĞLU, Mr Akif Çağatay KILIÇ, Mr Samad SEYIDOV, Ms Sahiba GAFAROVA, Mr Asim MOLLAZADA

Votes: 103 in favor 6 against 10 abstentions

In the draft resolution, paragraph 18.3.4, replace the words "establishing clear standards for the examination and treatment of evidence and the legal basis for its decisions" with the following words: "whilst ensuring its independence, impartiality and transparency".

Explanatory note

Recalling core principles like "independence, impartiality and full transparency" would make the statement stronger. This approach was also preferred by Mr Jagland during his last visit to Turkey. These terms were used by him regarding the work of the Commission.

18.3.5refrain from issuing any further decree-laws unless strictly required by the immediate exigencies of the situation as defined in the original notification of derogation;
18.3.6repeal all provisions of existing decree-laws with permanent effect or whose purpose is not directly related to the emergency situation, and use normal administrative and legislative processes for the reinstatement of any measures that may require it;

23 April 2018

Tabled by Mr Mustafa YENEROĞLU, Mr Akif Çağatay KILIÇ, Mr Samad SEYIDOV, Ms Sahiba GAFAROVA, Mr Asim MOLLAZADA

Votes: 99 in favor 3 against 10 abstentions

In the draft resolution, paragraph 18.3.6, delete the words: "repeal all provisions of existing decree-laws with permanent effect or whose purpose is not directly related to the emergency situation, and".

Explanatory note

All of the issued decree-laws have been approved by the Grand National Assembly of Turkey. Herewith, the provisions of the decree laws were passed through the normal legislative process. As a result, there are no more existing decree-laws which could be repealed. So, making such a call has no purpose anymore.

23 April 2018

Tabled by Mr Mustafa YENEROĞLU, Mr Akif Çağatay KILIÇ, Mr Samad SEYIDOV, Ms Sahiba GAFAROVA, Mr Asim MOLLAZADA

Votes: 111 in favor 2 against 10 abstentions

In the draft resolution, after paragraph 18.3.6, insert the following paragraph:

"to continue its expert-level dialogue with the Council of Europe on State of Emergency (SoE) measures with a view to producing further concrete results such as the establishment of an Inquiry Commission on SoE measures;"

Explanatory note

It would be convenient to make a reference to the expert dialogue between Turkey and the Council of Europe.

18.3.7bring an end to the state of emergency at the expiration of the current period, withdrawing the derogation to the Convention and thereafter using the normal procedures to adopt any future measures that may be needed to address the security situation in the country, in conformity with Council of Europe standards, including those of the Convention as applied in full.

23 April 2018

Tabled by Mr Mustafa YENEROĞLU, Mr Akif Çağatay KILIÇ, Mr Samad SEYIDOV, Ms Sahiba GAFAROVA, Mr Asim MOLLAZADA

Votes: 20 in favor 90 against 7 abstentions

In the draft resolution, paragraph 18.3.7, replace the words "at the expiration of the current period" with the following words: "as soon as the circumstances and threats which led to the declaration of state of emergency are eliminated,"

Explanatory note

The phrase indicates a time pressure. The circumstances and threats which led to the declaration of state of emergency have their own reality. These circumstances must be dealt with rigourously and precisely in order to avoid human rights violations. Therefore, from such precise time limits should be abstained.

19The Assembly recommends that all States Parties to the Convention:
19.1exercise the utmost caution and restraint when adopting measures that might necessitate derogation from the Convention, and before doing so, explore every possibility for responding to the emergency situation using normal measures;
19.2liaise with the Secretary General, as repository of the Convention, to ascertain whether derogating is necessary and, if so, strictly delimit the scope of any derogation;
19.3should derogation be necessary, ensure that the Secretary General is notified immediately and in any case without any unavoidable delay not only of the measures taken and the reasons therefor, as required by the Convention, but also of the Convention rights affected; and explain the justification for any extension of a derogation in time, circumstance or scope in the relevant notification to the Secretary General;
19.4should a state of emergency be declared, constantly review the necessity of maintaining it and any measures taken under it, with, at the expiration of every period, a presumption against extending the state of emergency or, if it is extended, in favour of repealing it or, if not repealed, further limiting the scope of measures taken under it;
19.5on the basis of such review, periodically provide information to the Secretary General, including in the context of any inquiry under Article 52 of the Convention, on the evolution of the emergency situation and the implementation of the state of emergency, with a view to engaging in dialogue on the compatibility of the state of emergency with Convention standards;
19.6ensure that the normal checks and balances of a pluralistic democracy governed by the rule of law continue to operate to the maximum extent possible, respecting democratic process and the authority of parliament and local authorities, the independence of the judiciary and national human rights structures and the freedoms of association and expression, especially of civil society and the media.
20The Assembly recommends that the Secretary General of the Council of Europe:
20.1as 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;
20.2open an inquiry under Article 52 of the Convention in relation to any State that derogates from the Convention;
20.3on 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.

BDraft Recommendation

1The Parliamentary Assembly refers to its Resolution … (2018) “State of emergency: proportionality issues concerning derogations under Article 15 of the European Convention on Human Rights”.
2The Assembly recommends that the Committee of Ministers examine State practice in relation to derogations from the European Convention on Human Rights (ETS No. 5), in the light of the requirements of Article 15 and the case law of the European Court of Human Rights, the requirements of international law and the Assembly’s findings and recommendations in Resolution … (2018), with a view to identifying legal standards and good practice and, on that basis, adopt a recommendation to member States on the matter.