France has suspended central parts of the European Convention of Human Rights as a consequence of the terror attacks over the past few years. Such suspension gives the police and military forces wide powers in the fight against terrorism, but for what price?
Since the terror attack against the satirical weekly newspaper Charlie Hebdo in January 2015, France has had 11 terror attacks within 19 months[1]. The deadliest attack was the coordinated terror attack on November 13, 2015 against different restaurants in Paris and a concert at the Bataclan arena, which killed 130 people. The second deadliest was the terror attack in Nice on July 14, 2016 on the national day of France, which killed 86 people.
As a consequence of the attack on November 13, 2015, the French government filed a formal notice to the Secretary-General of the Council of Europe about their derogation from the European Convention of Human Rights[2], because they found it “necessary to prevent the commission of further terrorist attacks”[3]. After the attack on Promenade des Anglais in Nice this summer the French government extended the state of emergency and the derogation from the European Convention of Human Rights (hereinafter the Convention) for new six months[4].
The Member states’ right to derogation is provided by article 15 in the Convention. It says that:
- 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 such measures are not inconsistent with its other obligations under international law. (emphasize added).
- 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.
- 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 therefor. 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.
There are three elements that have to be met before the right to derogation can be activated. There has to be (1) a “a time of war or other public emergency threatening the life of the nation”, (2) measures taken by the state have to be “strictly required by the exigencies of the situation”; and (3) measures taken by the state can’t be “inconsistent with its other obligations under international law.”
It also follows from the wording of article 15 second paragraph that article 2, 3, 4 (paragraph 1) and 7 are not derogable, which means that the Member states have to protect and respect those rights no matter what.
The first element of the article gives the threshold required for the situation to get under the scope of the right of derogation at all. The wording of the provision suggests that there has to be a threat against the structure and organisation of the society, which suggests that it is a strict standard. In the Greek-case, App. No. 3321/67, App. No. 3322/67, App, No. 3323/67, App, No. 3344/67, HUDOC (1969)[5] the European Court of Human Rights held that the emergency needs to meet the following requirements to be considered as “threatening the life of the nation”[6]:
(1) it must be actual or imminent.
(2) its effect must involve the whole nation.
(3) The continuance of the organized life of the community must be threatened.
(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.
Later, in the Brannigan and Mcbride v. the United Kingdom, App. No. 14553/89, HUDOC, (1993)[7] the court held that it’s enough that the threat is only against some areas of the nation, as long as the derogation only affects those areas[8]. The last cases about the interpretation of the element show that the element 1 and 4 from the Greek-case are usually the decisive ones[9]. In other words, the question presented is whether there is an imminent and exceptional danger against the normal functioning of the society[10].
The court has also given the nation a wide margin of appreciation in the question whether the public emergency is “threatening the life of the nation”. In Aksoy v. Turkey, App. No. 21987/93, HUDOC (1996)[11] the court held that (para.68):
“[..] it falls to each Contracting State, with its responsibility for “the life of [its] nation”, to determine whether that life is threatened by a “public emergency” and, if so, how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle better placed than the international judge to decide both on the presence of such an emergency and on the nature and scope of the derogations necessary to avert it. Accordingly, in this matter a wide margin of appreciation should be left to the national authorities”. (emphasis added).
In a more recent case, A v. United Kingdom, App. No. 3455/05, HUDOC (2009)[12] the court also underlined that the Member States have a wide margin of appreciation when deciding whether there is a public emergency “threatening the life of the nation”[13]. In the Lawless v. Ireland, App. No. 332/57, HUDOC (1961)[14] the court accepted that Ireland’s request for derogation from the Convention because of attacks from IRA terrorists[15]. The court emphasized the IRA’s political ambitions to make Northern Ireland independent from United Kingdom. Moreover, the court also emphasized that the IRA group had carried out a series of deadly attacks against the police and affected the functioning of the metro[16].
In light of the margin of appreciation and the way the terror attacks in Paris, Brussel and Nice have affected the airports, metros and the normal life, the European Court of Human Rights will likely hold that the terror threat in France is “threatening the life of the nation”.
Even though the threshold in the first element is fulfilled, the other two elements have to be satisfied in order for the state to derogate from the Convention. The measures which are taken to prevent the danger have to be “strictly required by the exigencies of the situation”. The wording of the provision is interpreted to require that the derogation has a legitimate purpose and is proportionate in the light of the danger against the life of nation. In Aksoy v. Turkey (cited above), the Court explained the concept:
“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”[17].
The case law from the European Court of Human Rights shows that it is a consideration of whether the purpose of the measures are sufficiently important to defend a derogation from fundamental rights, such as article 5 of the Convention. The measures also have to be able to meet the purpose. In addition, the measures have to be necessary to meet the purpose.
In the Lawless v. Ireland the question presented was whether the derogation was “strictly required” in light of the terror threat from IRA. The court emphasized the dangerous level of the attacks and that the irish authorities tried to compensate for the lack of procedural guaranties as much as possible[18]. Whether the European Court of Justice will find the derogation “strictly required” will depend on the Court’s consideration of the facts. It is therefore not possible to say in general manner whether the Court is likely to hold that the derogation is “strictly required”.
France’s derogation from the European Convention of Human Rights means that Article 5 and article 8 are suspended until decided otherwise. The Article 5 of the Convention guarantees procedural rights for suspects in criminal cases. First, article 5 requires that every deprivation of liberty of person shall be prescribed by law. Second, article 5 requires that the authorities need to prove “reasonable suspicion” before they can deprive the liberty of a person as a part of criminal investigation[19]. Third, article 5 gives the suspected person a set of minimum procedural rights, such as the right to be informed in a “language which he understands, of the reasons for his arrest and of any charge against him”[20]. The article 8 is the provision which guarantees the right to private life and protect the individuals against arbitrary interference from the authorities.
The French authorities have expressly stated that they will take actions which normally are violations of article 5 and article 8 to be more effective in their fight against terrorism[21]. The state of emergency gives the police forces the opportunity to arrest a person without “reasonable suspicion”. In other words, the French authorities have given themselves a possibility to deprive an actual innocent person of liberty in order to prevent terrorism. The derogation from article 8 gives the French authorities the opportunity to do almost unlimited surveillance of individuals. These actions from the French authorities are in my opinion contrary to the underlying idea of the rule of law. The underlying idea of the rule of law is to give fundamental procedural safeguards and a right to prove your innocence, regardless of what crime you are suspected of committing. One can argue that this underlying idea is even more important to protect when serious crimes are in question. Being convicted of a serious crime as e.g. terrorism without procedural safeguards, is even more disturbing than when other smaller crimes are in question, considering the length of punishment and the possible consequences.
However, it can be argued that the European Convention of Human Rights also gives an obligation for the Member States to protect their people’s right to life. This positive obligation follows from article 2 interpreted in the light of article 1 of the Convention[22]. There are lot of examples from the case law from the European Court of Human Rights, for example the conflict between the freedom of expression and right to private life, where the Court has decided which right is to be prioritized[23]. In extension of that, it can be argued that the right to life is more important than the right to liberty and security of person, as article 15 second paragraph suggests itself (article 2 is not derogable), and therefore the derogation from the Convention should be seen as necessary and legitimate.
The problem is that the terror threat against France and Europe is still overhanging. A lot of experts on terrorism and terror attacks have stated that Europe will have to live with the threat of terror attacks as a part of the reality in the future. This could mean that the terror threat against Europe can lead to a permanent waiver from fundamental human rights guaranteed by the Convention, such as article 5 and article 8.
It can be difficult to see the point with human rights if it depends on the circumstances whether you will get the protection or not – there doesn’t seem to be a guarantee for the rights anymore. However, the case law on the article 15 of the Convention shows that the burden on national authorities to prove that the derogation from the Convention is “strictly required”, increases as time goes on[24]. Only time will show whether the derogation in France continues, but one thing is sure: the longer the derogation in France keeps on lasting, the less significance the Convention gets in the times of crises. It seems that the European countries are willing to pay that price in exchange for security.
[1] http://www.tv2.no/a/8475845/
[2] http://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/005/declarations?p_auth=N5hF4XrW
[3] http://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/005/declarations?p_auth=N5hF4XrW
[4] http://www.bbc.com/news/world-europe-36842311
[5] http://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=001-73020&filename=001-73020.pdf
[6] Id. paragraph.153.
[7] http://hudoc.echr.coe.int/eng?i=001-57819
[8] Id. paragraph 47
[9] See for example Sakık and Others v. Turkey and Case of Ireland v. The United Kingdom.
[10] Rettstat og menneskerettigher, Jørgen Aall, s. 525.
[11] http://hudoc.echr.coe.int/eng?i=001-58003
[12] http://hudoc.echr.coe.int/eng?i=001-91403
[13] Grand Chamber judgment A. and Others v. the United Kingdom 19.02.09, para. 173.
[14] http://hudoc.echr.coe.int/eng?i=001-57518
[15] Id. paragraph 48.
[16] Id. paragraph 28.-30.
[17] Id. paragraph 68
[18] Id. paragraph 35 and 36.
[19] Article 5 (1) c): “the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so”
[20] Article 5 (2)
[21] http://www.liberation.fr/france/2015/11/27/etat-d-urgence-ca-ratisse-large_1416800
[22] Article 1 says: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”. Article 2 is placed in section I of the Convention.
[23] See for example Case of Lillo-Stenberg and Sæther v. Norway. In Schwabe and M.G. v. Germany the Court addressed the same problem regarding the conflict between right to life and right to liberty, but they did not decide which right to be prioritized: “However, it does not permit a State to protect individuals from criminal acts of a person by measures which are in breach of that person’s Convention rights, in particular the right to liberty as guaranteed by Article 5 § 1 … “, Paragraph 85.
[24] Case of Ireland v. The United Kingdom, Paragraph 220.
Published November 6, 2016