Prolonged emergency and derogation of human rights: Why the European Court should raise its immunity system

Abstract

States of emergency pose the most significant challenges to the safeguarding of fundamental rights and civil liberties. Crises are generally characterized by a strengthening of the executive to the detriment of judicial authority and parliamentary oversight. One of the immediate consequences of emergencies is the absence of effective domestic mechanisms of supervision of the executive. The gradual replacement of the judicial role with police operations represents a symptom of how prolonged emergencies prompt the eclipse of legal certainty and lead to the rapid and irreversible degradation of public institutions. This Article addresses the difficult compromise between defending national interests and protecting individual rights during public emergencies. It analyzes the common features across the recent derogations and exceptional measures of Ukraine, France, and Turkey. The derogations submitted by the three countries in question, together with the exceptional measures adopted for counter-terrorism purposes, substantially restrict several fundamental rights enshrined in the European Convention on Human Rights (Convention). In particular, preventive detention measures, with the suspension of the habeas corpus otherwise approved by the three States, not only enable police forces to use arbitrary and unlimited use of force, but also seriously affect the protection of absolute and non-derogable rights. The Article concludes that, as the recent emergency laws and their widespread and apparently indiscriminate implementation present the risk of destabilizing the whole European system of protection, it becomes ever more necessary that the European Court of Human Rights depart from its previous jurisprudence and adopt a more rigorous and principled scrutiny of the derogation conditions under Article 15 of the Convention.