Notifications of derogations from the European convention on human rights in Covid-19 context

Ćorić, Vesna and Knežević Bojović, Ana and Višekruna, Aleksandra (2021) Notifications of derogations from the European convention on human rights in Covid-19 context. Arhiv za pravne i društvene nauke (3-4). pp. 119-143. ISSN 0004-1270

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Abstract

States of the Council of Europe have officially derogated from their obligations under the European Convention on Human Rights (ECHR), some of them extending the derogations multiple times. Such widespread recourse to derogations opened the debate on a number of issues, including the question of whether the form and substance of the submitted notifications of derogations were adequate, and of the legal effects in case of their inadequacy. This issue seems particularly pertinent given that the derogation clause under Article 15 of the ECHR which grants states a wide discretion to determine the reasons and the duration of derogations, as well as the aptness of emergency measures, is formulated vaguely. In this paper, the authors examine the regime governing notifications of derogations made under Article 15 of the ECHR. Applying the dogmatic, comparative and normative method, the authors first assess the substantive and procedural requirements which notifications of derogations are to include, and then go to critically examine the contribution of ECtHR in clarifying legal effects of the submitted notifications which do not meet the set requirements. Subsequently, the authors will elucidate the scope of the advisory and supervisory powers of Council of Europe Secretary General over assessing such notifications, taking into account the Parliamentary Assembly of the Council of Europe Resolution 2209. Building on the relevant theoretical approaches, caselaw and standards developed by the competent CoE bodies, the authors formulate guidance on the path to be taken by the ECtHR and other CoE organs in their future supervision of notification regime in the context of derogation from the ECtHR due to the health emergencies.

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