Helga Law Journal - 01.01.2021, Síða 159

Helga Law Journal Vol. 1, 2021
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the primacy of the state’s assessment of what is required. Also, the decision opens
an unlimited possibility of applying extended administrative detention for an
uncertain period of time ignoring judicial reviews.207
4.4 The Other Efforts of the Court and Hope for Human
Rights
In the case of Brannigan & McBride, the court had also emphasized that the
domestic margin of appreciation was not unlimited and had to be accompanied
by a European Supervision in which the court must give appropriate weight to
relevant factors such as the nature of rights affected by the derogation, the
duration of the emergency, etc. In determining whether a State has gone beyond
what is strictly required, the Court has to give appropriate weight to factors such
as the nature of the rights affected by the derogation, the circumstances leading
to, and the duration of, the emergency situation.208 It can also consider its own
motion if necessary, even if only to observe that it has not found any
inconsistency between the derogation and a state’s other obligations under
international law.209 The making of a derogation is not a concession; in practice,
when lodging a derogation, the State has to recognise that the measures ‘may’
involve a derogation. Therefore, where an applicant complains that his or her
Convention rights were violated during a period of derogation, the Court first
examines whether the measures taken could be justified under the substantive
articles of the Convention; it is only if it cannot be so justified that the Court
would go on to determine whether the derogation was valid.210
It can be inferred that the machinery of the Strasbourg organs while
examining emergency cases faced fundamental dilemma but part of it can be
contributed to the formulation of Article 15 itself. Firstly, it permits derogation
from specific rights such as Articles 5 and 6 that are no less fundamental than
the ones listed as non–derogable; secondly, there is no specific criterion defining
the required time period for proper notification in accordance with Article
15(3).211 Further, the total lack of sanction mechanism concerning the
notification process gives too much manoeuvrability to states.
Time and again the court has tried to reinforce the exceptional nature of the
threat under which a country can opt to derogate from its human rights
obligations such that the normal measures or restrictions permitted by the

207 DJ Harris et al., The law of the European Convention on Human Rights (1st edn OUP 1995) 501-2.
208 Brannigan and McBride v United Kingdom, no 14554/89, ECHR 1993 [43] and A and Others v. the United
Kingdom [GC], no. 3455/05, ECHR 2009 [173].
209 Lawless v Ireland, no 332/57, EHRR 1961.
210 ibid.
211 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.
convention for the maintenance of public safety are patently inadequate212 and
the same can be assessed by the court with reference to the facts known not only
at the time of the derogation but also subsequently.213
In later cases (Mehmet Hasan Altan v Turkey,214 A v Secretary of State for the Home
Department215), the court clarified that States do not enjoy unlimited power in cases
of decisions concerning derogations and the court was empowered to rule on
whether the state has gone beyond the “extent strictly required by the exigencies”
of the crisis on the basis of each complaint. One can most certainly hope that
the court is conscious of the immense responsibility that it holds in regard to
derogation and that the states such as the United Kingdom do not rely on the
concession provided under Article 15 merely to restrict opposition.
4.5 Conclusion
One can clearly ascertain that there has been a continuous and consistent change
in the perception of states as well as the Court in the case of derogation with the
preference towards the human rights of the individuals. The Court has to
remember that it is a defender of rights and not the governments. Even though
the role and the approach of the Court may be perceived as unsatisfactory, one
also has to bear in mind that the politically sensitive nature inherent in emergency
situations affects the lens through which the court looks at the issues presented
to it.216 To take up the point made by Judge Makarczyk in Brannigan & McBride,217
the issue of UK derogation is an issue of the “integrity of the Convention system
of protection as a whole.”218

212 European Commission of Human Rights, The Greek Case : Report of the Commission : Application No.
3321/67-Denmark v. Greece, Application No. 3322/67-Norway v. Greece, Application No. 3323/67-Sweden
v. Greece, Application No. 3344/67-Netherlands v. Greece (1969) 153.
213 A and Others v. the United Kingdom [GC], no. 3455/05, ECHR 2009.
214 Mehmet Hasan Altan v Turkey, no. 13237/17, ECHR 2018.
215 A v Secretary of State for the Home Department [2004] UKHL 56. Although it regards a domestic
jurisdiction case before House of Lords, the ratio of the case is important.
216(n 32).
217 Brannigan and McBride v United Kingdom, no 14554/89, ECHR 1993.
218 ibid, 45.