derogation

Question 1

There is a conflict between human rights and the need to maintain security.
Maintaining security is a public goal that sometimes requires what?

Answer 1

interfering with the liberty of individuals

Question 2

There is an arguable need to balance the goals of human rights and the need to maintain security; for example what could too much emphasis on the interests of individuals result in and what could too much deference to government’s security goals mean?

Answer 2

judges overriding government’s legitimate attempts to keep its citizens safe

or that core rights of individuals are undermined

Question 3

There are circumstances where it should be appropriate to restrict a certain level of application of some rights in extreme circumstances, such as in emergencies, though what did Dworkin in the Guardian argue?

Answer 3

that you cannot calculate human rights based on cost

Question 4

There are circumstances where it should be appropriate to restrict a certain level of application of some rights in extreme circumstances, such as in emergencies, though who argued that you cannot calculate human rights based on cost

Answer 4

Dworkin in the Guardian

Question 5

What are the 2 approaches to managing the conflict between security and human rights?

Answer 5

1) uphold rights even if it comes at the cost of security

2) balance between security and rights through proportionality analysis (minimal interference)

Question 6

Article 15 of the Convention declares that there are some rights which must be upheld in all circumstances, no matter how dire the political situation or state of emergency ; these are known as non derogable rights
what are they?

Answer 6

There are 4 ‘absolute’ non-derogable rights (s.2):
1) Article 2, right to life

2) Article 3, the right not to be subjected to torture or inhuman or degrading treatment
3) Article 4(1), the right not to be subjected to forced labour
4) Article 7, the right not to be subjected to retrospective criminal laws or penalties

Question 7

there are derivable rights with no general proportionality test but can be derogated from in emergencies what are they?

Answer 7

article 5 and

article 6

Question 8

there are qualified derogable rights are subject to a general proportionality test what are these?

Answer 8

articles 8 and

articles 11

Question 9

what is article 2

Answer 9

right to life

Question 10

what is article 3

Answer 10

the right not to be subjected to torture or inhuman or degrading treatment

Question 11

what is article 4(1)

Answer 11

the right not to be subjected to forced labour

Question 12

what is article 7

Answer 12

the right not to be subjected to retrospective criminal laws or penalties

Question 13

“human rights are both fundamental and contestable” and for this reason there is a better approach in establishing a hierarchy of rights to allow security considerations

who said this?

Answer 13

andrew ashworth in ‘security, terrrosim and human rights’

Question 14

who said that A human right should be strong enough to override a simple argument that public safety or the public good would be enhanced if the right were curtailed

Answer 14

Raz 1986

Question 15

what did raz comment in 1986?

Answer 15

that A human right should be strong enough to override a simple argument that public safety or the public good would be enhanced if the right were curtailed

Question 16

what does para 1 Art 15 say?

Answer 16

“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”.

Question 17

What does para 2 Art 15 say?

Answer 17

“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”.

Question 18

Some of these non derogable rights do however have exceptions in extremely defined circumstances such as what?

Answer 18

Article 2 (right to life)permits the use of force which is no more than absolutely necessary
• (a) in defence of any person from unlawful violence;
• (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
• (c) in action lawfully taken for the purpose of quelling a riot or insurrection

Question 19

What happened in the case of Gafen v Germany which is an example of how a non derogable cannot be breached?

Answer 19

The police threatened the man who killed a child and demanded a ransom with considerable suffering.
HELD:
The ECtHR held that the threat of torture was inhuman treatment and constituted a violation of Article 3 as torture, inhuman or degrading treatment cannot be inflicted even in circumstances where the life of an individual is at ris

Question 20

The police threatened the man who killed a child and demanded a ransom with considerable suffering.
HELD:
The ECtHR held that the threat of torture was inhuman treatment and constituted a violation of Article 3 as torture, inhuman or degrading treatment cannot be inflicted even in circumstances where the life of an individual is at ris

Answer 20

What happened in the case of Gafen v Germany which is an example of how a non derogable cannot be breached?

Question 21

What does para 3 of Article 15 state?

Answer 21

that The High Contracting State shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken

Question 22

What is Article 17?

Answer 22

This Article has been rarely applied by the court and is aimed at the actions of groups, including extreme right wing groups such as Combat 18 or ISIS intended to undermine the Convention rights

Question 23

What case is Article 17 actually used?

Answer 23

Leishideux v France

Question 24

Leishideux v France is a case whereby Article 17 is actually used
discuss this case

Answer 24

A case heard by the ECHR regarding a group justifying pro-Nazi policy which the court ruled could not be allowed to enjoy the protections of Art 10.
HELD: 
the protections in Article 17, the prohibition of abuse of rights, could restrict the right of free speech granted under Art 10

Question 25

A case heard by the ECHR regarding a group justifying pro-Nazi policy which the court ruled could not be allowed to enjoy the protections of Art 10.
HELD: 
the protections in Article 17, the prohibition of abuse of rights, could restrict the right of free speech granted under Art 10

Answer 25

Leishideux v France is a case whereby Article 17 is actually used
discuss this case

Question 26

what is article 5

Answer 26

right to liberty and security

Question 27

what is article 6

Answer 27

right to fair trial

Question 28

When will article 5 and 6 be derogated from?

Answer 28

“[i]n time of war or other public emergency threatening the life of the nation”

Question 29

“[i]n time of war or other public emergency threatening the life of the nation” articles 5 and 6 can be derogated.
How must an emergency be defined?

Answer 29

within the application of the margin of appreciation doctrine

Question 30

“[i]n time of war or other public emergency threatening the life of the nation” articles 5 and 6 can be derogated.
an emergency must be defined within the application of the margin of appreciation doctrine
What case is this considered in?

Answer 30

Lawless v Ireland

Question 31

“[i]n time of war or other public emergency threatening the life of the nation” articles 5 and 6 can be derogated.
an emergency must be defined within the application of the margin of appreciation doctrine
This is considered in Lawless v Ireland
discuss case

Answer 31

Lawless was a member of the IRA who was imprisoned in Ireland under a provision subject to a derogation notice. The ECtHR had 2 issues.
1) whether there existed a state of emergency in ireland as defined by Art 15 and if so
2) whether the measures introduced were proportionate to the extingenies of the situation
HELD:
the ECtHR held that the phrase ‘public emergency threatening the life of nation’ when given its natural and customary meaning referred to an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organized life of the community of which the state is composed..’
these conditions were deemed to exist for 3 reasons
1) the existence of a secret army engaged in unconstitutional activities such as violence in the Republic of Ireland
2) the army was operating outside the territory of the State
3) the steady and alarming increase in terrorist activities

Question 32

in lawless v ireland the court found the existence of a public emergency (narrowly in this case) for 3 reasons which met the definition ; what are they?

Answer 32

1) the existence of a secret army engaged in unconstitutional activities such as violence in the Republic of Ireland
2) the army was operating outside the territory of the State
3) the steady and alarming increase in terrorist activities

Question 33

under “[i]n time of war or other public emergency threatening the life of the nation” articles 5 and 6 can be derogated.
The Greek Case defined a public emergency as having to have 4 characteristics; what are they?

Answer 33

1) it must be actual or imminent
2) its effects must involve the whole nation
3) the continuance of the organised life of the community must be threatened
4) The criss or danger must be exceptional

Question 34

under “[i]n time of war or other public emergency threatening the life of the nation” articles 5 and 6 can be derogated.
What happened in the case of Ireland v UK

Answer 34

Case concerned measures used on suspected members of the IRA
HELD:
“It falls in the first place 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 in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it. In this matter, article 15(1) leaves those authorities a wide margin of appreciation”.

Question 35

Case concerned measures used on suspected members of the IRA
HELD:
“It falls in the first place 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 in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it. In this matter, article 15(1) leaves those authorities a wide margin of appreciation”.

Answer 35

under “[i]n time of war or other public emergency threatening the life of the nation” articles 5 and 6 can be derogated.
What happened in the case of Ireland v UK

Question 36

In regards to A v UK under “[i]n time of war or other public emergency threatening the life of the nation” articles 5 and 6 can be derogated. What demonstrates that the UK was given a wide margin of appreciation?

Answer 36

as even though the UK was the only Contracting State to lodged a derogation in response to the danger of Al’Qaeda, the Court held that it was for each Government as the guardian of their own people’s safety to make an assessment

Question 37

under “[i]n time of war or other public emergency threatening the life of the nation” articles 5 and 6 can be derogated.
Strict circumstances
What happened in the case of
A v UK?

Answer 37

Case concerned foreign national suspected of terrorist involvement but could not be deported for fear of being tortured; which the UK government did after derogating from the Convention after assurances were given by the home nations that they would not be tortured on return
HELD:
The national authorities are better place than the international judge to decide on the presence of an emergency and the nature and scope of derogations necessary to avert it\
The Court is able to reach a contrary conclusion if it is satisfied that the national court misinterpreted Article 15

Question 38

Case concerned foreign national suspected of terrorist involvement but could not be deported for fear of being tortured; which the UK government did after derogating from the Convention after assurances were given by the home nations that they would not be tortured on return
HELD:
The national authorities are better place than the international judge to decide on the presence of an emergency and the nature and scope of derogations necessary to avert it\
The Court is able to reach a contrary conclusion if it is satisfied that the national court misinterpreted Article 15

Answer 38

under “[i]n time of war or other public emergency threatening the life of the nation” articles 5 and 6 can be derogated.
Strict cirucumstances
What happened in the case of
A v UK?

Question 39

Who is responsible for ensuring the observance of the states’ engagements and are empowered to rule that states have gone beyond that required by the extingencies of the crisis

Answer 39

the court with the commission

Question 40

the court and commission are responsible for ensuring the observance of the states’ engagements and are empowered to rule that states have gone beyond that required by the extingencies of the crisis

in summary what does this mean?

Answer 40

that the domestic margin of appreciation is accompanied by a European supervision

Question 41

what does the doctrine of the margin of appreciation reflect?

Answer 41

the subsidiary role of the Court

Question 42

Traditionally wide margins of appreciation are given to what areas? (4)

Answer 42

1) emergencies
2) national security
3) matters of public morality
4) no uniform consensus in Europe

Question 43

Under strictly requires by the extingenies of the situation what is the question which must be considered?

Answer 43

Are the measures taken strictly required by the exigencies of the situation

Question 44

In which case did the court hold that the UK Government had not exceeded their margin of appreciation by derogating from their obligations under Article 5 to the extent that suspected terrorists were allowed to be held for 7 days without judicial control

Answer 44

Brannigan and McBridge

Question 45

Under strictly requires by the extingenies of the situation

What happened in the case of Brannigan and McBridge

Answer 45

In which case did the court hold that the UK Government had not exceeded their margin of appreciation by derogating from their obligations under Article 5 to the extent that suspected terrorists were allowed to be held for 7 days without judicial control

Question 46

What is the leading case in regards to strictly requires by the extingenies of the situation

Answer 46

Aksoy v Turkey

Question 47

the leading case in regards to strictly requires by the extingenies of the situation is Aksoy v Turkey
discuss case

Answer 47

In this case the applicant was detained for 14 days without being brought before a judge
The Government justified this measure by reference to the demands of police investigations with a terrorist organisation receiving outside support
HELD:
The court could not accept it necessary to hold a suspect for 14 days without judicial intervention as it is an exceptionally long period and no reasons were given why the fight against terrorism rendered judicial intervention impractical
It was also held that this left the suspect vulnerable to torture as the Commission considered the Turkish system as having insufficient safeguards to detainees

Question 48

In this case the applicant was detained for 14 days without being brought before a judge
The Government justified this measure by reference to the demands of police investigations with a terrorist organisation receiving outside support
HELD:
The court could not accept it necessary to hold a suspect for 14 days without judicial intervention as it is an exceptionally long period and no reasons were given why the fight against terrorism rendered judicial intervention impractical
It was also held that this left the suspect vulnerable to torture as the Commission considered the Turkish system as having insufficient safeguards to detainees

Answer 48

the leading case in regards to strictly requires by the extingenies of the situation is Aksoy v Turkey
discuss case

Question 49

How do the two cases of Branngan v McBridge and AKsoy v Turkey contrast even though both concerned the lengthy detention of terrorists without judicial control?

Answer 49

as in ireland the court found that there were effetive safeguards in operation against arbitrary behaviour and a legally enforceable right to consult a solicitor 48 hours after the time of arrest as well as being able to inform a friend of their detention however in Turkey, the applicant was given no access to a lawyer, doctor, relative or friend and left completely at the mercy of those holding him

Question 50

What is the leading case in regards to proportionality and judicial deference in determining an emergency

Answer 50

A and Others v UK

Belmarsh Case

Question 51

the leading case in regards to proportionality and judicial deference in determining an emergency is A and others v UK (Belmarsh Case)
discuss case

Answer 51

9 defendants, all foreign nationals living in the UK were detained without trial in the Belmarsh prison because of their suspected links to terrorist organisations
WHY?
Following 9/11 the UK Gov concluded there was a public emergency threatening the life of the nation
HELD:
imminent?
AG held that an emergency could be regarded as imminent if an atrocity was credibly threatened by a body such as Al-Qaeda
temporary?
the ECtHR’s reasoning has advanced by emphasising that a state of emergency does not have to be temporary and thus has abolished the very concept that justifies a state of emergency

The HOL declared the relevant legislation incompatible; the government did not prove that the extingenies of the situation warranted such a derogation

Question 52

9 defendants, all foreign nationals living in the UK were detained without trial in the Belmarsh prison because of their suspected links to terrorist organisations
WHY?
Following 9/11 the UK Gov concluded there was a public emergency threatening the life of the nation
HELD:
imminent?
AG held that an emergency could be regarded as imminent if an atrocity was credibly threatened by a body such as Al-Qaeda
temporary?
the ECtHR’s reasoning has advanced by emphasising that a state of emergency does not have to be temporary and thus has abolished the very concept that justifies a state of emergency

The HOL declared the relevant legislation incompatible; the government did not prove that the extingenies of the situation warranted such a derogation

Answer 52

the leading case in regards to proportionality and judicial deference in determining an emergency is A and others v UK (Belmarsh Case)
discuss case

Question 53

In regards to the Belmarsh Case, what did David Pannick QC note?

Answer 53

that the UK suffered no attack like 9/11 and the US nor any of the 40+ states in the Council of Europe has introduced similar measures
No reason why detention without trial is ‘strictly required’ in the UK alone
the HOL held that the question of proportionality is ultimately a judicial decision

Question 54

The ECHR has provided Contracting States with a wide margin of appreciation in assessing whether the emergency exists and if necessary which steps are necessary as in which 2 cases?

Answer 54

Ireland v UK and

brannigan and McBridge v UK

Question 55

The ECHR has provided Contracting States with a wide margin of appreciation in assessing whether the emergency exists and if necessary which steps are necessary as in Ireland v UK and Brannigan and McBridge v UK though what is this accompanied by?

Answer 55

European supervision

Question 56

The ECHR has provided Contracting States with a wide margin of appreciation in assessing whether the emergency exists and if necessary which steps are necessary as in Ireland v UK and Brannigan and McBridge v UK though this is accompanied by European supervision. For example what circumstances worked in favour of the derogation in Brannigan and McBridge ?

Answer 56

3,000 deaths in Northern Ireland and 40,000 terrorist incidents from 1972-1992

Question 57

which section of article 15 ensures that member states must follow procedural requirements?

Answer 57

article 3(3) 
that The High Contracting State shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken

Question 58

What has A Greene commented has created a permanent state of emergency where so all temporary powers are perpetuated and human rights enroached upon?

Answer 58

the events of the 20th and early 21st century particular the aftermath of 9/11

Question 59

briefly what are the two limbs of Art 15 ?

Answer 59

that there must exist a threat to the life of the nation and

that measures taken on foot of a declaration of emergency must be proportionate to the exigencies of the situation

Question 60

what is the effect of the fact that The threshold that a phenomenon (emergency) must cross in order to justify a declaration is set extremely low, and the level of scrutiny the ECtHR that applies

Answer 60

this renders the first limb of Art 15 merely a procedural hurdle to be crossed rather than an effective line

Question 61

How has the ECtHR’s reasoning in Belmarsh advanced?

Answer 61

by emphasizing that a state of emergency does not have to be temporary and in doing so, has abolished the very concept that justifies a state of emergency.

Question 62

the ECtHR’s reasoning in Belmarsh advanced further by emphasizing that a state of emergency does not have to be temporary and in doing so, has abolished the very concept that justifies a state of emergency.
instead what is the duration of the emergency ?

Answer 62

it is merely another factor to be taken into account when assessing whether the measures taken on foot of a declaration are proportionate to the exigencies of the situation.

Question 63

emergency does not describe a specific phenomenon, instead it is an umbrella term; thus a war or armed insurrection may meet this threshold as would a serious natural disaster or outbreak of disease despite the substantive differences between them. However why must an emergency be broad?

Answer 63

given the intangible, sudden and unforeseen nature of ‘emergency’ and so restricted by a more rigorous definition is of minimal assistance

Question 64

the effect of a declaration of emergency is to permit and facilitate a response that would not be possible were normal conditions to prevail. In a liberal democratic order, what are the constraints in which derogation can overrule>

Answer 64

human rights, separation of powers doctrine and the rule of law

Question 65

A Greene suggests that it is the temporality of emergency that makes often-draconian measure palatable. What case conflicts with this?

Answer 65

belmarsh which has emphasised that a state of emergency does not have to be temporary and in doing so, has abolished the very concept that justifies a state of emergency.

Question 66

Many academics have argued that the state of emergency has now become so frequent that it is essentially permanent. Why is this?

Answer 66

due to modern day terrorism which has created a novel challenge

Question 67

What is the effect of the modern day terrorist threat?

Answer 67

emergencies are now intangible and no longer easily identifiable or limited to individual, spatial or temporal contexts

Question 68

What do the monism or business as usual models of crisis management reject?

Answer 68

the notion that emergencies justify any alteration in the ordinary scheme of governance. \ Emergency therefore creates no additional power that the state may use to defend itself.

Question 69

he monism or business as usual models of crisis management reject the notion that emergencies justify any alteration in the ordinary scheme of governance. \ Emergency therefore creates no additional power that the state may use to defend itself.
What country is an example of the business as usual model?

Answer 69

the US Apart from the provision that Congress may suspend the writ of habeas corpus in a time of war, the US Constitution is silent on emergency powers.This has led the US Supreme Court to hold in the ex Parte Milligan case, that the same law applies in war as in peace. the “business as usual” approach to offer a more robust defense of human rights than the state of emergency

Question 70

Article 15 does not afford a state ______ _______o deal with a threat as it sees fit, once a state of emergency is declared. Rather the second limb of Article 15 requires that such measures be “proportionate to the exigencies of the situation.”

Answer 70

carte blanche

Question 71

The two limbs of Art 15 appear to be well conditioned however ….

Answer 71

they are framed in quite broad language meaning that a public emergency covers a potentially infinite array of crises

Question 72

Lawless presents the image of a judicially active court declaring its jurisdiction to review the decision of a sovereign state as to the existence of an emergency.
however what is the reality?

Answer 72

his is substantially tempered by the wide margin of appreciation afforded to a state when assessing whether an emergency exists or not.. Thus, despite appearing to assess whether a state of emergency exists or not, the ECtHR’s approach in Lawless renders the first limb of Article 15 redundant, as serious scrutiny of whether such a state exists is not undertaken.

Question 73

Lawless presents the image of a judicially active court declaring its jurisdiction to review the decision of a sovereign state as to the existence of an emergency.
this is substantially tempered by the wide margin of appreciation afforded to a state when assessing whether an emergency exists or not.. Thus, despite appearing to assess whether a state of emergency exists or not, the ECtHR’s approach in Lawless renders the first limb of Article 15 redundant, as serious scrutiny of whether such a state exists is not undertaken.
Instead what does the ECtHR focus on in Lawless?

Answer 73

he second limb: whether the measures enacted were proportionate to the exigencies of the situation

Question 74

In Belmarsh, the ECtHR declared that “the national authorities are, in principle, better placed than the international judge to decide …. on the presence of such an emergency.”87 Accordingly, a wide margin of appreciation should be left to the national authorities. The declaration of a state of emergency by the UK was therefore not challenged, despite the fact that it was the only Council of the European Union Member State to lodge a derogation notice under Article 15 of the ECHR, even though it was not the only country at risk of a terrorist attack
What position did the ECtHR take?

Answer 74

The ECtHR took an almost-identical position to the majority, focusing little attention on whether an emergency existed, concentrating instead on whether the measures enacted were proportionate to the exigencies of the situation

Question 75

To date there is only one example in which a declaration fo emergency was rejected by the Commission ; what is it ?

Answer 75

The Greek Case

Question 76

The ECtHR in Belmarsh further damages this shielding effect by eliminating the exceptional nature that phenomena must constitute to trigger a state of emergency, by declaring that emergency under Article 15 does not necessarily have to be temporary.102
instead what does it become?

Answer 76

duration becomes merely another factor in deterring whether the measures undertaken were proportionate to the exigencies of the situation.1

Question 77

How would u conclude Art 15 limbs?

Answer 77

Describing the two limbs of Article 15 as two barriers protecting human rights is inaccurate. The requirement that a state of emergency must exist in order to derogate from treaty obligations does little to protect human rightsnstead, the requirement that a state of emergency be declared is little more than an administrative procedure, facilitating the encroachment of human rights, rather than containing them. Focusing only on whether the measures are proportionate to the exigencies of the situation is not sufficient, and only serves to further blur the distinction between normalcy and emergency. The ECtHR must ensure this by effectively scrutinizing the decision of a Member State to declare a state of emergency in the first instance.