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States that derogate from the Convention must exercise ‘caution and restraint’

States may take preventive measures to protect the interests of society in time of war or other public emergency threatening the life of the nation that exceed what is normally permitted under the European Convention on Human Rights, in accordance with the rules on derogations set out in its Article 15. Without appropriate guarantees, however, such measures create serious risks for democracy, human rights and the rule of law, PACE declared today in a resolution adopted on the basis of a report by Raphael Comte (Switzerland, ALDE).

On this basis, the Assembly examined the current or recent states or emergency in Ukraine, France and Turkey. It found that the potential duration of preventive detention in Ukraine may exceed what is strictly necessary, and other derogating measures there could be better applied. By the time it was lifted, the duration of the French state of emergency had become questionably long, and some emergency measures were ill-defined and improperly applied; the new law on security and terrorism must be applied in full compliance with Convention standards. As to Turkey, the Assembly concluded that the measures taken under its state of emergency were “disproportionate on numerous grounds”, and called upon it to “bring an end to the state of emergency at the expiration of the current period”. The Assembly made recommendations to all three states to address these issues.

The Assembly was also particularly concerned that the Turkish authorities had brought forward the date of the presidential and parliamentary elections to fall within the period of the latest extension of the state of emergency.

As to any future use of derogations in general, the Assembly made a series of recommendations to all member States. It also called on the Secretary General of the Council of Europe to open an inquiry under Article 52 of the Convention in relation to any State that derogates, and on the Committee of Ministers to prepare a recommendation to member States identifying legal standards and best practice in relation to derogations from the Convention.