The Derogation from Article 5 pursuing Article 15:

the Appraisal of the Existence of a Public Emergency

The condition of “emergency” has been drawn on by states when justifying rights being encroached upon. Consequently, when allegedly facing times of “war or other public emergency threatening the life of the nation”, the provisional opt-out foreseen in Article 15 has been activated by states as to limit the extent of some of the obligations internationally undertaken.

The lodging of a notice of derogation¹²² has mainly affected the application of Article 5 since, as alleged by respondent governments and upheld by the ECtHR, in times of crisis, arrests and detentions are a crucial tool to combat disturbances and, hence, extra powers in this field are required.¹²³

119 Leva v Moldova, para. 50.

Noteworthy is the fact that the overwhelming majority of

120 Murray v UK, para. 51.

121 Ibid, para. 47.

122 Four countries to date have applied for the temporal opt-out foreseen in Article 15: Greece, Ireland, United Kingdom and Turkey.

123 See, e.g., Ireland v UK, no. 5310/71, 18 January 1987 (Ireland v UK), para. 220.

27 cases examining Article 15 by the ECtHR address states counter-terrorism policies and practices.¹²⁴

In such circumstances, the ECtHR has been several times asked the question of whether derogations from Article 5 have been entered in compliance with the wording and purpose of the ECHR, i.e., the measures taken were strictly required by the exigencies of the situation and not inconsistent with other state obligations under international law.

In order to review the lawfulness of the measure, the ECtHR has articulated a sort of questionnaire by which first it inquires into the existence of a public emergency threatening the life of the nation¹²⁵

This approach implies that where the measures looking at the general situation in the country concerned are found to be disproportionate to the threat and “discriminatory in their effect” the derogation will be rendered inappropriate and, in turn, there will be no need to go further and examine the individual complaints.

and then it evaluates if the measures were strictly required by the exigencies of the situation. That is, the ECtHR must be satisfied that it was a genuine response to the emergency situation, fully justified by the special circumstances of the emergency and with adequate safeguards against abusive practices in place.

126

When it comes to determine whether there is indeed a serious public emergency, the approach taken by the ECtHR clearly obeys the rules of the doctrine of the “margin of appreciation”. That is, the ECtHR does not second-guess the substantive grounds alleged to assert the existence of exceptional circumstances which ask for exceptional measures mainly to be taken by the executive branch. It has rather been considered by the ECtHR as a matter of bona fide, which in the end reflects strong deference to the government’s assessment of crisis.

127

For instance, in Brannigan and McBride v UK, even when it was set forth by the applicant and submitting parties that the threat in Ireland was not of sufficient magnitude

124 Pati, 2009, p. 255.

125 As to the meaning of the “public emergency threatening the life of the nation” in the context of Article 15, the ECtHR, in A. and others v UK, para. 176, has stated that it refers to “an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed”.

126 Ibid, para. 185.

127 Gross & Ní Aoláin, 2006, p. 271.

28 anymore, the ECtHR came to the conclusion that “there can be no doubt that such a public emergency existed at the relevant time”.¹²⁸

However, the assumption had little basis on the immediate state of affairs, since to carry out its own assessment, the ECtHR recalled the cases Lawless v Ireland and Ireland v UK, which were handed down twenty-two and fifteen years ago, respectively, to depict the impact of terrorist violence in Northern Ireland and elsewhere in UK; moreover, the description of the situation was based on general statistics of casualties tracing back to the beginning of the 1970s and was drafted in a wording resembling by and large the one used to portray the situation in Brogan and others v UK and in Fox, Campbell and Hartley v UK.

This way to fill in the background information, with broad brush strokes, without referring essentially to the circumstances prevailing at the material time to assess if there was indeed a public emergency, denotes on one side, the leeway left to states to appreciate the extent of the threat and, on the other side, the unwillingness or incapability of the ECtHR to challenge the reality of the public emergency assertion.¹²⁹ The ECtHR lays down this rationale in the same judgment when affirming that “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” and “accordingly in this matter a wide margin of appreciation should be left to the national authorities”.¹³⁰

Lastly, noteworthy is the fact that the ECtHR has already been faced with the evaluation of a notice of derogation filed in the aftermath of the 11 September 2001 bombings. UK contended that the threat from international terrorism was a continuing one and, therefore, a public emergency, within the meaning of Article 15 para. 1 of the ECHR existed in the country. In the merits, the ECtHR concluded, after recalling the wide margin of appreciation to be enjoyed by governments “as guardians of their own people’s

128 Brannigan and McBride v UK, nos. 14553/89, 14554/89, 26 May 1993 (Brannigan and McBride v UK), para. 47.

129 See Ní Aoláin, 2007, p. 68, who suggests that “[t]he case [Brannigan and McBride] illustrates the danger of the burden of proof shifting silently in favour of the state in a way that creates the danger that derogation functions only as an edifice for accountability”.

130 See Ireland v UK, para. 207, where the ECtHR averred that the limits on the Court’s powers of review are “particularly apparent” where Article 15 is concerned. For more critical opinions, see Soulier, 1992, pp.

26–28; Ní Aoláin, 2007, pp. 64–74.

29 safety”, that there was a public emergency threatening the life of the nation. Nevertheless, it noted that it was “striking that the UK was the only Convention State to have lodged a derogation in response to the danger represented by Al-Qaeda”.¹³¹

3.3. Extended and Extrajudicial Detention as a Key Tool to Prevent and Combat