Helga Law Journal - 01.01.2021, Blaðsíða 154

Helga Law Journal Vol. 1, 2021
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International Legal Research Group
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Government “countered that it was not responsible for the Postel’s interference
with the Applicants’ rights.”163 The ECHR found that in order for the existence
of a positive obligation to be determined, a “fair balance [had] to be struck
between the general interest of the community and the interests of the
individual.”164 It was concluded by the Court that there had been no interference
with the applicants’ Article 11 right,165 whilst in a partly dissenting opinion, Judge
Maruste agreed that spaces resembling the shopping mall (privately owned but
of public character) could be deemed as having such a ‘semi-public’ status,
following that the UK authorities had failed to regulate how this public forum
could be used by the applicants.166 However, it is important to note that it was
recognised by both UK and ECHR courts that if an infringement of the Article
11 right was found, “there was no remedy available to the applicants in domestic
law.”167
Other important developments that have taken place include Plattform “Ärzte
für das Leben” v Austria168, where it was decided that the rights of an anti-abortion
NGO organizing a demonstration had not been infringed due to a counter-
protest overseen by the police, having “[taken] reasonable and appropriate
measures.”169 Similarly, other exceptions to Article 11 have been justified by the
ECtHR, such as in the case of lawful interference with the plaintiffs’ freedom of
association under Article 11(2) in Rekvényi v Hungary170; the ban on police officers
joining political parties was not unlawful in terms of arbitrariness and fell within
the restrictions that states are entitled to impose,171 since it “had been intended
to contribute to the elimination of any direct party political influence on the
police by severing the institutional links.”172 The main area of dispute by the Court
regards whether those any interferences are ‘necessary in a democratic society’
(and therefore, justified). In United Communist Party of Turkey and Others v Turkey173
“the applicants maintained that the fact that the United Communist Party of
Turkey had been dissolved and its leaders... banned from holding similar office
in any other political party had infringed their right to freedom of association.”174
In this case, the arbitrariness of the ban (both in terms of its judicial enforcement
and its proclaimed purpose175) amounted to an infringement of Article 11 rights,

163 Columbia University, ‘Appleby v. U.K.’ (Global Freedom of Expression, n.d.)
<https://globalfreedomofexpression.columbia.edu/cases/appleby-v-uk/> accessed 04 July 2018.
164 (n18) §39.
165 ibid §50-52.
166 ibid, (n 49).
167 (n18) §55.
168 no. 10126/82, ECHR 1988.
169 ibid §34.
170 no. 25390/94, ECHR 1999.
171 European Convention on Human Rights, Article 11, section 2.
172 (n 76) [57].
173 133/1996/752/951, ECHR 1998.
174 ibid [18].
175 ibid [58].
as it was “disproportionate to the aim pursued and consequently unnecessary in
a democratic society.”176
4 How has your country applied derogations from
state obligations regarding the freedom of
assembly in times of public emergency
threatening the life of the nation according to
Article 15 of the ECHR?
4.1 Introduction
The present essay focuses on the provision of derogation from state obligations
with respect to European Convention of Human Rights (ECHR) enumerated in
Article 15 of the Convention. ECHR has been the torch bearer of Human Rights
across Europe with its judgments affecting the legal jurisprudence all across the
world. But this protection is not absolute and is previous to state control through
the provision of Article 15 which would be the emphasis of this essay. The essay
will trace the journey of United Kingdom with respect to Article 15 and for that;
the start of the essay will cast light upon Article 15 and its diverse facets,
especially clause 15(1). The next part will talk about the major decisions of Article
15 and the doctrine of the margin of appreciation. The last part will focus on the
efforts of the court in upholding the human rights and the conclusion.
4.2 Article 15, Meaning and Implications
The derogation clause, or as Article 15 is known, is one of the most essential as
well controversial clause of the European Court of Human Rights as it affords
to Contracting States, in exceptional circumstances, the possibility of derogating,
in a limited and supervised manner, from their obligations to secure certain rights
and freedoms under the Convention177. It occupies a central place in the
discourse of human rights during ‘emergency situations’ and is seen as setting the
parameters within which the balance is to be established for both the states as
well as international organs.178
The text of Article 15 is based on the draft Article 4 of the United Nations
draft Covenant on Human Rights, which later became Article 4 of the

176 ibid [61].
177 European Court of Human Rights, Guide on Article 15 of the European Convention on Human
Rights -Derogation in time of emergency (last update 30 April 2018)
<https://www.echr.coe.int/Documents/Guide_Art_15_ENG.pdf> accessed 27 May 2018 1,5.
178 MM El Zeidy, ‘The ECHR and States of Emergency: Article 15 -A Domestic Power of Derogation
from Human Rights Obligations’ (2003) 4 San Diego International Law Journal, 316.