Vesna B.

ĆORIĆ * 37
UDC: 616.98:578.834]:341.231.14
DOI: https://doi.org/10.22182/apdn.342021.5.
Institute of Comparative Law, Original scienti c paper
Belgrade, Serbia
Ana S. KNEŽEVIĆ BOJOVIĆ ** 38

Institute of Comparative Law,

Belgrade, Serbia
Aleksandra D. VIŠEKRUNA *** 39

Institute of Comparative Law,

Belgrade, Serbia

NOTIFICATIONS OF DEROGATIONS FROM THE

EUROPEAN CONVENTION ON HUMAN RIGHTS
IN COVID-19 CONTEXT
- Summary -

Since the start of the COVID-19 pandemic, ten Member

States of the Council of Europe have o cially derogated from
their obligations under the European Convention on Human
Rights (ECHR), some of them extending the derogations mul-
tiple 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 noti cations
of derogations were adequate, and of the legal e ects 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 emergen-
cy measures, is formulated vaguely. In this paper, the authors
*
E-mail: [email protected]
**
E-mail: [email protected]
***
E-mail: [email protected]

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 АРХИВ, 3-4/2021 - Vesna B. Ćorić, Ana S. Knežević Bojović, Aleksandra D. Višekru-
na, Noti cations of derogations from the European convention on human rights in
Covid-19 context. (стр. 119-143)

examine the regime governing noti cations of derogations made

under Article 15 of the ECHR. Applying the dogmatic, com-
parative and normative method, the authors rst assess the
substantive and procedural requirements which noti cations
of derogations are to include, and then go to critically exam-
ine the contribution of ECtHR in clarifying legal e ects of the
submitted noti cations which do not meet the set requirements.
Subsequently, the authors will elucidate the scope of the advi-
sory and supervisory powers of Council of Europe Secretary
General over assessing such noti cations, taking into account
the Parliamentary Assembly of the Council of Europe Resolution
2209. Building on the relevant theoretical approaches, case-
law 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
noti cation regime in the context of derogation from the ECtHR
due to the health emergencies.
Keywords: European Convention on Human Rights, Article
15, derogation, noti cations, supervisory powers,
Secretary General.

1. INTRODUCTION

The current COVID-19 pandemic has provoked a number of

states to limit some of the most important human rights and funda-
mental freedoms in democratic societies. In response to the wake
of COVID-19 pandemic, various Member states of the Council of
Europe (CoE) have acted in di erent ways.1 Anticipating the upcom-
ing challenges, ten states have o cially derogated from their obli-
gations under the European Convention on Human Rights (ECHR)
in Europe. More precisely, since the start of the pandemic Albania,
Armenia, Estonia, Georgia, Latvia, North Macedonia, Republic of
Moldova, Romania, San Marino and Serbia each noti ed the Secretary
General of the CoE (Secretary General) of a derogation speci cally
with respect to the COVID-19 pandemic.2 They invoked the public
1
Ana Zdravković, “The A air of “State of Emergency” – Was 70 Years of European Convention
on Human Rights Enough to Prepare Member States for COVID-19 Crisis?”, Iustinianus Primus Law
Review, Vol. 11/2021, Special Issue, p. 1, Available at SSRN: https://ssrn.com/abstract=3938255 or http://
dx.doi.org/10.2139/ssrn.3938255.
2
ECtHR, Press Unit, Factsheet, Derogation in time of emergency, January 2022, p. 2. See Igor
Milinković, “Extraordinary Measures in Extraordinary Times: Legal Response to the COVID-19 Crisis

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na, Noti cations of derogations from the European convention on human rights in
Covid-19 context. (стр. 119-143)

health emergency posed by the pandemic and applied Article 15 of

the ECHR related to the “derogation in time of emergency”.3 While
some derogations were noti ed and subsequently withdrawn during
2020, certain countries, such as Latvia and the Republic of Moldova,
had reintroduced and then withdrew derogations during 2021, while
Georgia has recently noti ed the Secretary General that it retains the
already noti ed derogation until January 1, 2023.4
This is a record number of derogations from the ECHR; what
is more, some of them were concurrent and they were all brought
about by the same crisis. The high gures show that the impact of
COVID-19 pandemic was more widespread compared to the e ects
of the previous public emergencies, which triggered derogations from
the ECHR under its Article 15 in the past. While previous military and
public emergencies that were known to the system of human rights
protection under the ECHR did not have an immense trans-national
e ects, the current COVID-19 pandemic and the related health emer-
gency are signi cantly di erent, as they seem to a ect every European
country equally or at least to a comparable degree.5 Moreover, the
e ects of the current pandemic on human rights’ protection globally
show similar tendencies to those present among CoE Member states:
14 Latin American countries derogated from their obligations under
the American Convention on Human Rights (ACHR), while 22 states
derogated from the respective obligations under the International Cov-
enant on Civil and Political Rights (ICCPR).6 Out of the latter, 16 of
them additionally applied the derogation clause under the ACHR or
the ECHR, while six states derogated only from the ICCPR. These are
Senegal, Palestine, Kyrgyzstan, Ethiopia, Namibia and Azerbaijan.7
in Bosnia and Herzegovina”, Medicine, Law & Society, 14(2)/2021, p. 443.
3
Sanja Jovičić, „COVID-19 restrictions on human rights in the light of the case-law of the
European Court of Human Rights”, ERA Forum, No. 21/2021, p. 547, https://doi.org/10.1007/s12027-
020-00630-w.
4
Noti cation - JJ9303C Tr./005-285 - 3 January 2022 as referred to in: Council of Europe, Der-
ogations Covid-19, Noti cations under Article 15 of the Convention in the context of the COVID-19
pandemic (www.coe.int/en/web/conventions/derogations-covid-19, 12.01.2022).
5
Kanstantsin Dzehtsiarou, “Article 15 derogations: Are they really necessary during the COVID-19
pandemic?”, European Human Rights Law Review, No. 4/2020, p. 364.
6
(https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx, 12.01.2022).
7
Derogations by States Parties from Article 21 ICCPR, Article 11 ECHR, and Article 15 ACHR
on the Basis of the COVID-19 Pandemic (Information believed correct as of 3 March 2021), Available
at: www.rightofassembly.info/assets/downloads/Derogations_from_the_Right_of_Peaceful_Assem-
bly_(at_11_November_2020)_.pdf; Audrey Lebret, “COVID-19 pandemic and derogation to human
rights”, Journal of Law and the Biosciences, vol. 7, no. 1/2020, p. 3.

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na, Noti cations of derogations from the European convention on human rights in
Covid-19 context. (стр. 119-143)

Such massive recourse to derogations further inspired academics

to open the debate on various issues e.g. whether that kind of reac-
tion is justi able in the context of health emergencies, such as the
COVID-19 pandemic, as well as whether the form and substance of
the submitted noti cations of derogations is adequate.8 In this contri-
bution, the authors will not examine the issue of the justi ability of
the derogations from the human rights instruments, but rather focus on
examining the regime governing noti cations of derogations which are
made under Article 15 of the ECHR. Derogations noti ed under other
international instruments will not be taken into account. The reasons
for these are twofold. Firstly, the derogation clauses which are covered
by Article 27 of the ACHR, Article 4 of the ICCPR and Article 15
of the ECHR are based on similar, though not identical, principles.9
Secondly, the approaches of competent supranational courts and the
Human Rights Committee also diverge among themselves when it
comes to the applicability of the derogatory regime to human rights
in the context of health emergencies. All of this renders an e ort to
jointly examine the application of noti cations of derogations under
three distinct international human rights instruments very complicated.
This topic seems especially interesting 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 the
aptness of emergency measures, is formulated vaguely.10 In order to,
inter alia, strengthen and clarify the e ects of Article 15(13) dealing
with the noti cations of derogations, the Parliamentary Assembly of
the Council of Europe (hereinafter: PACE) adopted the Resolution
2209 in 2018. Its application was expected to be tested for the rst
time in the COVID-19 pandemics, which brings additional relevance
to topic at hand.

8
See inter alia, Vassilis P. Tzevelekos, Kanstantsin Dzehtsiarou, “Editorial: Normal as Usual?
Human Rights in Times of covid-19”, European Convention on Human Rights Law Review, Vol. 1,
2/2020, pp. 145-146.
9
Scott P. Sheeran, “Reconceptualizing States of Emergency under International Human Rights
Law: Theory, Legal Doctrine and Politics”, Michigan Journal of International Law, vol. 34, no. 3/2013,
p. 508; Ana Rita Gil, “Derogation Clauses of International Human Rights Instruments: protecting rights
at the maximum possible extent in times of crisis”, Catolica Law Review, Vol. V, No. 1/2021, pp. 15-17.
10
Kushtrim Istre , A new mechanism for supervision of derogations from the European Convention
on Human Rights: lling the accountability gap? (http://blog.ucall.nl/index.php/2019/10/a-new-mech-
anism-for-supervision-of-derogations-from-the-european-convention-on-human-rights- lling-the-ac-
countability-gap/, 20.12.2021).

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 АРХИВ, 3-4/2021 - Vesna B. Ćorić, Ana S. Knežević Bojović, Aleksandra D. Višekru-
na, Noti cations of derogations from the European convention on human rights in
Covid-19 context. (стр. 119-143)

The authors will, in this contribution, rst assess the substan-

tive and procedural requirements which noti cations of derogations
shall include, and then go to critically examine the contribution of
ECtHR in clarifying legal e ects of the submitted noti cations which
do not meet the set requirements. Subsequently, the authors will try
to specify the exact scope of the advisory and supervisory powers of
Secretary General over assessing noti cations made under Article
15(3) of the ECHR. Building on the relevant theoretical approaches,
relevant case-law and standards developed by the competent CoE
bodies, the authors will formulate guidance on the path to be taken
by the ECtHR and other CoE organs in their future supervision of
noti cation regime in the context of derogation from the ECHR due
to the health emergencies.

2. VAGUENESS OF THE REGIME GOVERNING THE

NOTIFICATION OF DEROGATIONS UNDER THE ECHR

It was repeatedly stated that the ratio of Article 15(3) of the

ECHR is to promote transparency by publicly informing the oth-
er Contracting States, through Secretary General, of measures that
would, under regular circumstances, constitute a violation of ECHR.11
It seems that such a purpose cannot be fully accomplished since the
said provision does not specify all the relevant aspects governing the
form, substance and (legal) e ects of the submitted noti cations of
derogations in a complete and unambiguous manner. Namely, Arti-
cle 15(3) only requires from a state party to the ECHR to keep the
Secretary General fully informed of the derogation measures and the
reasons for them, as well as to inform the Secretary General when such
measures have ceased to operate, so the provisions of the ECHR are
again being fully executed.12 From the standpoint of legal certainty
and transparency, this provision seems vague and incomplete, as it
failed to stipulate all the substantive and procedural requirements
which noti cations of derogations are to include. Moreover, the said
provision also does not specify the legal e ects in case the submitted
noti cation does not meet the set requirements.13 Finally, it does not
11
Ana Zdravković, “The A air of “State of Emergency” – Was 70 Years of European Convention
on Human Rights Enough to Prepare Member States for COVID-19 Crisis”, op. cit., p. 10.
12
Ibid, p. 9.
13
Natasha Holcroft-Emmess, Derogating to Deal with Covid 19: State Practice and Thoughts on
the Need for Noti cation,

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na, Noti cations of derogations from the European convention on human rights in
Covid-19 context. (стр. 119-143)

set out the exact scope of the powers of Secretary General in terms
of assessing noti cations made under Article 15(3).

2.1. Form and Substance of the Submitted Noti cations of

Derogations from the ECHR

Although scholars such as Gross have argued that derogation

regimes under the ECHR and other human rights treaties rest on,
among others, the component of temporariness, such a procedural
requirement does not derive from Article 15 of the ECHR.14 Moreover,
the existing ECtHR case law further shows that, if states derogating
from the ECHR limit the duration of the derogation, in the rst place
in their derogation notices and subsequently extend the derogatory
measures in time, Article 15 is silent on any temporal limitation to
such extensions.15 However, there are some exceptions in that regard.
The ECtHR stated in its case A and Others v. United Kingdom that
temporality of an emergency has not been entirely absent from its
analysis in the given case. Namely, the ECtHR in that case found that
the duration of a con ict may be signi cant in assessing the propor-
tionality of derogatory measures aimed at addressing such a situation.16
It seems that the duration of the state of emergency that was
declared by states parties to the ECHR due to the COVID-19 pandemic
will not be problematic when it comes to meeting the proportional-
ity criteria. The reported durations vary from about 30 days in the
case of Romania, Latvia, Armenia, Albania, and North Macedonia
to approximately 50-60 days in the case of Moldova and Estonia and
around 90 days in the case of the December 2020 noti cation of Lat-
via. A notable exception to setting relatively short limits is Georgia,
which has recently extended both its emergency legislation and its
(
www.ejiltalk.org/derogating-to-deal-with-covid-19-state-practice-and-thoughts-on-the-need-for-
noti cation/, 05.12.2021).
14
Oren Gross, “’Once More unto the Breach’: The Systemic Failure of Applying the European
Convention on Human Rights to Entrenched Emergencies”, Yale Journal of International Law, No.
23/1998, p. 445 as referred to in Kushtrim Istre , Stefan Salomon. “Entrenched Derogations from the
European Convention on Human Rights and the Emergence of Non-Judicial Supervision of Derogations”,
Austrian Review of International and European Law Online, 22(1)/2019, p. 8.
15
Kushtrim Istre , Stefan Salomon. “Entrenched Derogations from the European Convention on
Human Rights and the Emergence of Non-Judicial Supervision of Derogations”, op. cit., p. 11.
16
David Dyzenhaus, “States of Emergency” in collection of papers: The Oxford Handbook of
Comparative Constitutional Law (eds. Michel Rosenfeld and András Sajó), Oxford University Press,
Oxford, 2012, p. 456.

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Covid-19 context. (стр. 119-143)

derogations until January 2023, thus having extended the derogation

from the initial 30 days to almost three years.17 It should be recalled
that in the aforementioned case A. and Others v. the United Kingdom
that period amounted to years.18 Even though in that case the public
emergency was not based on infectious diseases but on other grounds,
it clearly shows that one to two-month duration cannot be considered
unproportionate. Moreover, in the cases of infectious diseases which
peak in certain seasons, it is reasonable to expect that a state of public
emergency is declared even several times within a year.19
The provision of Article 15(3) further missed to stipulate the
timeframe for submitting noti cations of derogations. The ECtHR
made some initial clari cations through its case law, holding that
noti cations of derogations do not have to be immediate but rather
“without delay”. The ECtHR added more precision in that regard in
Lawless v. Ireland when it allowed for a twelve-day interval between
the time measures came into force and the subsequent noti cation to
the Secretary General.20 It remains to be seen whether the meaning of
the notion “without delay” will be revised in the context of COVID-19
through the ECtHR’s case law. Nevertheless, the approach of deter-
mining the procedural requirements of noti cations of derogations
through evolving caselaw seems inadequate, as it is not conducive
of legal certainty. Legal certainty and transparency would be better
served if such a procedural requirement was being speci ed in other
acts of the CoE.
Further, the provision of Article 15 (3) does not envisage that
a list of particular articles of the ECHR that will be derogated from,
should be a mandatory element of every noti cation of derogation. In
that context, some authors, such as Zdravkovic, rightly argue that it
remains unclear and contradictory how states can inform about the par-
ticular emergency measures, without knowing what substantial articles
17
Council of Europe, Derogations Covid-19, Noti cations under Article 15 of the Convention
in the context of the COVID-19 pandemic (www.coe.int/en/web/conventions/derogations-covid-19,
12.01.2021).
18
See A and Others v United Kingdom, Judgement of the Great Chamber of 19.02.2000, Application
no. 3455/05. The same applies for the judgment in the case Ireland v United Kingdom, Judgement of
18. January 1978, Application No. 5310/71.
19
Patricia Zghibarta, The Whos, the Whats, and the Whys of the Derogations from the ECHR amid
COVID-19 (www.ejiltalk.org/the-whos-the-whats-and-the-whys-of-the-derogations-from-the-echr-amid-
covid-19/, 14.12.2022).
20
Lawless v Ireland (No 3), Judgement of 01.07.1961, Application No. 332/57, para. 47.

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Covid-19 context. (стр. 119-143)

of ECHR they may imperil.21 Other authors conversely argue that in a

situation of great uncertainty states may not immediately know what
measures will be relied upon in order to meet an ongoing crisis and
are hence unable to promptly specify the list of rights those measures
might interfere in the noti cation of derogation.22 This approach can
be showcased by the recent record of COVID-19 related derogations
under the ECHR, where the noti cations of seven states parties do
encompass a list of particular ECHR’s articles that may be derogat-
ed from, while the remaining three countries (Romania, Serbia and
Armenia) do not contain such a list in their Note verbale.23 However,
this argumentation invoking the uncertainty of crisis situations cannot
be accepted as well grounded.
Namely, although it is acceptable that some share of uncertainty
is always present in public emergencies, it seems that such a problem
can be overcome by continuous review of imposed measures. While
the ECHR does not explicitly envisage the possibility of making a con-
tinuous review of the imposed measures, that option may be assumed
to exist. This is because the ECHR within the same provision obliges
states parties to “fully inform” the Secretary General of the CoE of
the derogation measures which they have taken and the reasons for
them. Harris et al. o er a convincing interpretation of the obligation
to ‘fully inform’ by positing that it implies regular updating of the
initial noti cation, as the situation further develops.24 The approach
taken by the ECtHR in the case Brannigan and McBride v United
Kingdom is in line with the aforementioned interpretation o ered by
the legal doctrine, as the ECtHR in that judgment stated that the right
of derogation including the respective obligation to make noti cations
of derogations “requires a permanent review of the need for emer-
21
Ana Zdravković, “The A air of “State of Emergency” – Was 70 Years of European Convention
on Human Rights Enough to Prepare Member States for COVID-19 Crisis?”, op. cit., p. 10.
22
David Harris et al., Law of the European Convention on Human Rights, Oxford University Press,
2018, p. 830.
23
The noti cations of derogations of following states parties to the ECHR encompass a list of
particular articles of the ECHR that may be derogated from: Republic of Moldova, San Marino, Albania,
Georgia, Estonia, Republic of North Macedonia, Georgia, and Latvia. See Council of Europe, Derogations
Covid-19, Noti cations under Article 15 of the Convention in the context of the COVID-19 pandemic,
www.coe.int/en/web/conventions/derogations-covid-19, 12/01/2021. Interestingly, Romania, Armenia,
and Serbia did not mention expressly in their Note verbale the articles a ected by their derogation.
See. Patricia Zghibarta, The Whos, the Whats, and the Whys of the Derogations from the ECHR amid
COVID-19 (www.ejiltalk.org/the-whos-the-whats-and-the-whys-of-the-derogations-from-the-echr-amid-
covid-19/, 14.12.2021).
24
David Harris et al., Law of the European Convention on Human Rights, op. cit., pp. 829-830.

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Covid-19 context. (стр. 119-143)

gency measures”.25 Although the legal doctrine and the ECtHR’s case
law share the same view on the meaning of the obligation to “fully
inform”, we believe that there is further room for the improvement
of the phrasing of Article 15(3) in order to make the obligation of
submitting periodical reports and noti cations unambiguous. When it
comes to the application of the requirement of the “permanent review
of the need for emergency measures”, in the context of COVID-19
pandemic, it is noteworthy that seven states parties to the ECHR that
issued a noti cation of derogation with regard to COVID-19 pandemic
submitted some form of intermediate notice, containing information
on the evolution of the crisis and possible extension of the state of
emergency, while two (Serbia and Estonia) that derogated from the
ECHR did not make subsequent reviews. Moldova opted for a second
noti cation of derogation, while Latvia utilized both approaches. 26
While additional in-depth analysis is needed to determine what are
the main reasons behind the said practices of Serbia and Estonia,
its results could reveal whether the failure of targeted states to meet
that requirement of “permanent review of the need for emergency
measures” are attributable to the lack of understanding of the formal
procedure under Article 15(3) or are motivated by some other reasons.
Finally, the wording of Article 15(3) of the ECHR failed to
clarify to which extent the derogatory measures and their underlying
reasons have to be speci ed in the noti cation. The ECtHR in its
judgment Lawless v Ireland provided some relevant guidance in this
regard, having stated that requirements governing the necessary level
of speci cation of provided information will be met if a letter is sub-
mitted along with the attached copies of the legal texts laying down
emergency measures, as well as an explanation of their purpose.27
Against this background, it must be noted that noti cations of states
parties to the ECHR which made COVID-19 related derogations are
mutually rather inconsistent regarding the amount of information
they provide on derogation measures, attached documents and, most

25
Brannigan and McBride v. United Kingdom, Judgement of 25 May, 1993, Applications No.
14553/89 and 14554/89), para. 54.
26
For more details and the precise timelines please consult: Council of Europe, Derogations
Covid-19, Noti cations under Article 15 of the Convention in the context of the COVID-19 pandemic
(www.coe.int/en/web/conventions/derogations-covid-19, 12.01.2022).
27
Lawless v Ireland (No 3), Judgement of 01.07.1961, Application No. 332/57Lawless v Ireland
(No 3) (1961), 1 EHRR 15, para. 47.

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Covid-19 context. (стр. 119-143)

importantly, about the quality of reasoning for imposing particular

emergency measures.28
Most initial 2020 noti cations refer to the World Health Orga-
nization’s declaration of March 11, 2020, and brie y declare that the
measures are necessary to stop the spread of the virus. While this
may be su cient reason to prove that the derogations from Article
11 of the ECHR and Article 2 of the Protocol No. 4 are instrumental
in addressing the health emergency, the reasons for derogation from
Articles 5 and 6 of the ECHR or Article 1 of its Protocol, for instance,
are not that much straightforward and therefore may prove a signi cant
challenge for the States should they face claims before the ECtHR. In
addition, the Serbian noti cation lacks any annexes that would guide
the Secretary General through the speci c measures which have been
so far adopted during the emergency and the relevant ECHR’s provi-
sions. Instead, the Serbian noti cation refers to the national website
of the Government of the Republic of Serbia, where all the legal acts
are available only in Serbian.29 It is interesting to note that the Latvi-
an noti cation of derogation from December 2020 only refers to the
declared state of emergency and the “continuous threat the COVID-19
pandemic poses to public health” invoking the need “to combat the
spread of virus […] and decrease the number of persons falling ill”. 30
Those diverging practices show that the unclear wording of Arti-
cle 15(3), coupled with sparse case law on the issue, does not provide
su cient guidelines for the time being. In that context, Zdravkovic
rightly observes that in addition to the undeveloped and de cient case
law of ECtHR pertaining to the derogatory regime, one of the main
reasons for the vagueness of the noti cation regime under paragraph
3 of Article 15 of the ECHR is that the ECHR organs have avoided
providing clear standings on that in the past.31

28
Patricia Zghibarta, The Whos, the Whats, and the Whys of the Derogations from the ECHR amid
COVID-19 (www.ejiltalk.org/the-whos-the-whats-and-the-whys-of-the-derogations-from-the-echr-amid-
covid-19/, 14.12.2021).
29
Ibid.
30
On Latvian measures see Anita Rodina, “Protection of fundamental human rights during the
Covid-19 pandemic: the case of Latvia”, in collection of papers: International Organizations and States’
Response to Covid-19 (eds. Sanja Jelisavac Trošić and Jelica Gordanić), Institute of International Politics
and Economics, Belgrade, 2021, p. 366-369.
31
Ana Zdravković, “The A air of “State of Emergency” – Was 70 Years of European Convention
on Human Rights Enough to Prepare Member States for COVID-19 Crisis”, op. cit., p. 11.

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Covid-19 context. (стр. 119-143)

2.2. E ects of a lack of (adequate) noti cation of derogation

The ECtHR and the Commission, while it operated, were con-

sistently reluctant to take a view on whether lack of noti cation or
inadequate noti cations under Article 15(3) shall produce legal e ects
to the derogating state concerned. The same applies to other organs
of the CoE. While the Commission in its First Cyprus case and the
Lawless case held that it has “reserved its view as to whether failure
to comply with requirements of Article 15(3) may ‘attract the sanction
of nullity or some other sanction’”,32 in its subsequent case Cyprus
v. Turkey it further stated that it “still does not consider itself called
upon generally to determine the question” of whether failure to com-
ply with Art. 15(3) nulli es a derogation.33 It follows that in the case
Cyprus v. Turkey the Commission did not ground its opinion on the
failure of Turkey to notify the States Parties under Article 15(3).34
Instead, it found an intelligent argument to avoid it. Rather than deny-
ing Turkey the right to invoke Article 15 because of failure to ful l
the international noti cation requirement from the third paragraph
thereof, the Commission denied itself the competence to invoke this
article because “some formal and public act of derogation” taken by
the responsible authorities at the domestic level were lacking.35 It was
certainly prudent for the ECHR organs to refrain from turning the rule
of noti cation from Article 15(3) into a dead letter in an open and
explicit manner. However, the ECHR organs would be much more
appreciated if they had taken a clear approach by determining what
sanctions, if any, should be applied against states that fail to comply
with the noti cation-related requirements stemming from Article
15(3).
Legal scholars have voiced di erent views on the matter of
whether there should be legal e ects in place in case there was a
failure to make adequate noti cations. In that context, some argue
that the formal noti cation should be a mandatory requirement only
32
See as referred to in case of Cyprus v Turkey, Report of the Commission, p. 161, para. 526.
Mentioned in: Anna-Lena Svensson-McCarthy, The international law of human rights and states of
exception: with special reference to the travaux préparatoires and case-law of the international moni-
toring organs, Kluwer Law International, The Hague, 1998, p. 320.
33
Case of Cyprus v Turkey, Decision of 26 May 1975, Application Nos. 6780/74 and 6950/75,
Report of the Commission, p. 161, para. 527.
34
Anna-Lena Svensson-McCarthy, op. cit., p. 320.
35
Ibid., p. 321.

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na, Noti cations of derogations from the European convention on human rights in
Covid-19 context. (стр. 119-143)

when the prevalence of a state of emergency is not evident, such as

a kind of internal crisis. Yet in the case of a pandemic, such as the
COVID-19, a noti cation should not be a prerequisite of Article 15, as
its existence is indisputable.36 In a similar vein, some authors invoke
and try to apply the principle of systemic integration, according to
which any “relevant rules of international law applicable in the rela-
tions between the parties” shall be taken into account in interpreting
the treaty. In furtherance to that, they argue that the jurisprudence of
the Human Rights Committee clari es that a State’s failure to make
a formal noti cation pursuant to Article 4(3) ICCPR does not lead to
any sanctions for the state concerned. Due to that, they conclude that
the lack of adequate noti cation under Article 15(3) of the ECHR
likewise should not produce any legal e ects.37
Another group of scholars apply a rigid approach, arguing in
favor of introducing sanctions in case of inadequate noti cations of
derogations in the ECHR system. In doing so, they put forward a num-
ber of arguments. Firstly, some authors, such as Forowicz, conclude
that the ECtHR case law so far has been marked by an uneven and
lower level of reception than the ICCPR, regardless of the existing
principle of systemic integration. Therefore, there is no reason to stick
to the interpretation and implementation of the noti cation regime
under the ICCPR. Also, some scholars, such as Holcroft-Emmess, are
not convinced that the aforementioned interpretation of the ICCPR
provided by the Human Rights Committee does indeed go against the
application of respective sanctions. Secondly, those scholars rightly
observe that having noti cation as a mandatory requirement which
conditions the ECHR’ State Party ability to derogate promotes legal
security and transparency, and adherence to the rule of law when the
State is taking measures that would, under normal circumstances,
constitute non-permissible restrictions on human rights. 38 Last but
36
See the view taken by Seniha Birand Cinar as refered to in: Natasha Holcroft-Emmess, Derogat-
ing to Deal with Covid 19: State Practice and Thoughts on the Need for Noti cation (www.ejiltalk.org/
derogating-to-deal-with-covid-19-state-practice-and-thoughts-on-the-need-for-noti cation/, 05.12.2021).
37
See the view invoked by Bruno Gelinas-Faucher as referred to in: Natasha Holcroft-Emmess,
Derogating to Deal with Covid 19: State Practice and Thoughts on the Need for Noti cation (www.
ejiltalk.org/derogating-to-deal-with-covid-19-state-practice-and-thoughts-on-the-need-for-noti cation/,
05.12.2021). In that context, he cites Article 31(3)(c) of the Vienna Convention on the Law of Treaties
and Article 4(3) of the ICCPR.
38
See among others: Natasha Holcroft-Emmess, Derogating to Deal with Covid 19: State Practice
and Thoughts on the Need for Noti cation (www.ejiltalk.org/derogating-to-deal-with-covid-19-state-
practice-and-thoughts-on-the-need-for-noti cation/, 05.12.2021).

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na, Noti cations of derogations from the European convention on human rights in
Covid-19 context. (стр. 119-143)

not least, the existing case-law proves that the ECtHR always has
to consider the necessity of the taken derogatory measures. Such a
necessity test demands a comprehensive analysis of the justi ability of
the individual restrictions in the light of the threats facing the nation.
The proper conduct of the necessity test requires the availability of
data contained in the noti cation of derogations.39
For all those reasons, the aforementioned view according to
which the “visibility” of the COVID-19 pandemics should weaken the
noti cation related obligations of the derogating state parties cannot
be accepted. The information included in the noti cation is useful
for the ECtHR when adjudicating, as it is for other CoE organs, even
if the emergency itself, such as the one provoked by the COVID-19
pandemic, is apparent to all. Therefore, the ECtHR would be advised
to proceed strictly in assessing the noti cation requirements so as to
avoid any potential abuse of emergency powers in massive COVID-19
derogations from the ECHR. It remains to be seen whether in the near
future the convincing arguments brought by legal scholars advocating
a rigid approach will make any impact on the ECtHR when adjudi-
cating cases where noti cation under Article 15(3) is missing, or at
least does not meet the set requirements while the particular state party
took derogatory measures. It should be recalled that the ECtHR, for
the time being, did not decide on the merits of any of the cases when
it comes to the applications against the states which derogated from
Article 15 in the context of the COVID-19 pandemic. Hopefully,
the ECtHR will not miss the opportunity to deal with the quality of
noti cations and legal e ects in case of their lack and by doing so
adequately address this unprecedented health emergency.

2.3. Scope of the Powers of the Secretary General of the CoE

The insu ciently developed case law of the ECtHR and the
Commission dealing with the noti cation regime apparently did not
add clarity to the provision of Article 15(3) of the ECHR. Howev-
er, it is noteworthy that legal scholars rightly posit that no judicial
supervision alone, including that of the ECtHR, due to its inherent

39
Anna-Lena Svensson-McCarthy, op. cit., p. 324.

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na, Noti cations of derogations from the European convention on human rights in
Covid-19 context. (стр. 119-143)

limitations, can e ectively supervise the derogatory regime.40 The

reasons for this are manyfold.
First, the ECtHR is not capable to guarantee a timely review of
derogation measures in order to provide a prompt response to dero-
gation measures in place. According to the applicable priority policy
of 2009 pertaining to the examination of incoming cases, applications
relating to derogatory measures do not appear as a separate category
that enjoys priority. Since they are not classi ed as ‘urgent cases’, it
may take years before the ECtHR decides on them. In that context,
Dzehtsiarou recently claimed that the e ects “of COVID-19 will be
seen in 5-6 years when measures taken by the Governments now will
be analyzed in judgments of the [ECHR]”.41
Second, the ECtHR rulings focus on individual complaints
and, thus cannot address the magnitude of human rights’ concerns
related to derogation regimes, instead examining only those directly
connected to the facts of the pending case. Furthermore, if there are
no admissible complaints before the ECtHR in relation to a particular
derogation practice, the ECtHR cannot deliver a judgment on it.42 It
is reasonable to expect that the anticipated high rate of inadmissible
applications dealing with COVID-19 related issues will undermine
the ECtHR e orts to properly address the matters pertaining to the
adequacy of submitted noti cations of derogations. As of October
2021, apart from received interim measures, there are over forty appli-
cations submitted to the ECtHR in relation to the COVID-19 health
crisis. Most applications that have been brought before the ECtHR
are yet to be judged. However, it is noteworthy that out of the cases
in which a decision has been rendered, ECtHR found the violation of
the ECHR rights only in one case, while all other applications were
declared inadmissible. Nevertheless, the high rate of applications that
were declared inadmissible and the fact that the only rendered ECtHR
judgment on COVID-19 was against Malta, which did not derogate
from the ECHR, show that it is not overly realistic to expect that a
40
Kushtrim Istre , Supervision of Derogations in the Wake of COVID-19: a litmus test for the
Secretary General of the Council of Europe (https://www.ejiltalk.org/supervision-of-derogations-in-
the-wake-of-covid-19-a-litmus-test-for-the-secretary-general-of-the-council-of-europe/, 12.12.2021).
41
Kanstantsin Dzehtsiarou, “Article 15 derogations: Are they really necessary during the COVID-19
pandemic?”, op. cit., p. 364. See also Laurence R. Helfer, “Rethinking Derogations from Human Rights
Treaties”, American Journal of International Law, 115(1)/2021, p. 27.
42
Kushtrim Istre , Stefan Salomon, “Entrenched Derogations from the European Convention on
Human Rights and the Emergence of Non-Judicial Supervision of Derogations”, op. cit., pp. 21-22.

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na, Noti cations of derogations from the European convention on human rights in
Covid-19 context. (стр. 119-143)

fruitful ECtHR’s jurisprudence relevant for the COVID-19- related

derogation will be developed.
Consequently, the ECtHR, just like any other court, alone is
not ill-equipped to systemically address the problems associated with
derogations, including ones related to form, content and e ects of
their noti cations. Due to those inherent limitations, the clear need
for other non-judicial supervisory institutions to step in and address
this issue, was recognized.
It has been further argued that in the past, occasional proactive
engagements of the Venice Commission or the CoE Commissioner for
Human Rights were not able to reduce the loopholes in the supervision
of derogations, whereas substantial development was achieved by
the Resolution 2209 of the PACE, which was adopted in 2018.43 The
Resolution 2209 envisages that the Secretary General should take an
essential role in engaging with complex issues of derogations. More
speci cally, it recommends the Secretary General to take a proactive
role and advise and supervise States before and during a derogation.44
As regards the proposed advisory role of the Secretary General,
there is no clear support in Article 15 of the ECHR to suggest that
states are obliged to seek advice prior to derogation. The wording of
Article 15 of the ECHR envisages that a State only informs, rather
than consults, the Secretary General about a planned derogation.
From the standpoint of Article 15, the advisory role of the Secretary
General in derogation cases depends solely on the willingness of the
States Parties of the ECHR to cooperate.
Nevertheless, the recommended supervisory role of the Sec-
retary General does not seem contentious from a legal standpoint.
According to Resolution 2209, the active supervisory role could be
43
Kushtrim Istre , Supervision of Derogations in the Wake of COVID-19: a litmus test for the
Secretary General of the Council of Europe (https://www.ejiltalk.org/supervision-of-derogations-in-
the-wake-of-covid-19-a-litmus-test-for-the-secretary-general-of-the-council-of-europe/, 12.12.2021).
44
In particular, the Resolution 2209 recommends that the Secretary General: 20.1. as depository of
the Convention, provide advice to any State Party considering the possibility of derogating on whether
derogation is necessary and, if so, how to limit strictly its scope;20.2. open an inquiry under Article
52 of the Convention in relation to any State that derogates from the Convention; 20.3. on the basis
of information provided in response to such an inquiry, engage in dialogue with the State concerned
with a view to ensuring the compatibility of the state of emergency with Convention standards, whilst
respecting the legal competence of the European Court of Human Rights. See more on this at: Kushtrim
Istre , Stefan Salomon, “Entrenched Derogations from the European Convention on Human Rights and
the Emergence of Non-Judicial Supervision of Derogations”, op. cit., p. 23.

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na, Noti cations of derogations from the European convention on human rights in
Covid-19 context. (стр. 119-143)

exercised by way of pressuring states to provide information and

detailed reasons for derogations in line with Article 52 of the ECHR
and, once such information is provided, by engaging in continuous
dialogue with the states concerned about the nature, duration and
adequacy of a derogation and noti cation thereof. The clari cation
and strengthening of the supervisory powers of the Secretary General
with regard to derogatory regime constitutes the key bene t of Res-
olution 2209. Istre argues that through this Resolution, the PACE
has turned a ‘retired’ Article 52 of the ECHR, which was hardly ever
used in the past, into an essential tool, through which the Secretary
General can supervise each derogation practice.45 The revival of Arti-
cle 52 of the ECHR seems critical, since its wording con rms that
a state is obliged to provide the information requested by the Secre-
tary General. The additional bene t of putting into the play Article
52 ECHR in derogation context is that it does not limit the scope of
inquiries. Consequently, it provides the Secretary General with wide
discretionary power to supervise any type of derogation and engage
in dialogue with states about any aspect of derogations.46
The envisaged active advisory and supervisory role by the Secre-
tary General does of course not set aside or limit the wide discretionary
power of states parties to derogate from the ECHR. Nevertheless, it
ensures that any problematic features of derogations are monitored
instantly through a ‘new layer’ of international supervision of dero-
gation practices. In order to properly exercise new powers/functions,
the Secretary General, however, must develop su cient expertise and
procedures to exercise his function properly and e ectively.47 In order
to fully utilize those roles of the Secretary General, the meaning of
Resolution 2209 needs to be speci ed as to make clear whether or
not the Secretary General should open an inquiry under Article 52 in
relation to every single derogation. Although activating Article 52 of
the ECHR could have helped in supervising the massive COVID-19
related derogation, the Secretary General con rmed that they have

45
Kushtrim Istre , A new mechanism for supervision of derogations from the European Convention
on Human Rights: lling the accountability gap? (http://blog.ucall.nl/index.php/2019/10/a-new-mech-
anism-for-supervision-of-derogations-from-the-european-convention-on-human-rights- lling-the-ac-
countability-gap/, 20.12.2021).
46
Kushtrim Istre , Stefan Salomon, “Entrenched Derogations from the European Convention on
Human Rights and the Emergence of Non-Judicial Supervision of Derogations”, op. cit., pp. 20-21.
47
Ibid., p. 21.

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na, Noti cations of derogations from the European convention on human rights in
Covid-19 context. (стр. 119-143)

not used inquires under Article 52 as part of its supervisory role in

relation to current derogations.48
Since the COVID-19 related derogations are the rst deroga-
tions made subsequent to the adoption of Resolution 2209, the active
response of the Secretary General to these derogations could have
released the full potential of the Resolution 2209. Unfortunately, it
seems that this opportunity was completely missed.
Nevertheless, the case of Hungary may serve as an illustration of
an isolated positive step taken by Secretary General in the COVID-19
context. Although Hungary cannot be considered as derogating state,
since it did not activate Article 15 derogations in the COVID-19 con-
text, Resolution 2209 is also applicable to it, given that its applicability
extends to any State Party of the ECHR that considers the possibility
of derogating regardless of the fact whether particular derogation was
made. Subsequent to credible human rights organizations warning
Hungary that it may misuse COVID-19 emergency measures, on
March 24, 2020, the Secretary General o ered to Hungary all expertise
and assistance on how to ensure compatibility of emergency measures
with human rights.49 This response of Secretary General was com-
patible with the advisory role recommended by Resolution 2209. In
furtherance to it, however, on 31 March 2020, Hungary adopted a law
on emergency powers, without having consulted with the Secretary
General. Therefore, the Secretary General in the case of Hungary
missed the opportunity to consider activating its supervisory powers
as envisaged by Resolution 2209 in order to e ectively supervise the
implementation of emergency measures in Hungary. The approach
of the Secretary General with regard to COVID-19 related practices
will determine whether it will become an e ective and important
supervisory and advisory mechanism or will continue to serve as a
mere “mailbox” as referred by Istre where state parties deposit their
noti cations of derogations.50 Without strengthening the advisory and
48
Kushtrim Istre , Supervision of Derogations in the Wake of COVID-19: a litmus test for the
Secretary General of the Council of Europe, (https://www.ejiltalk.org/supervision-of-derogations-in-
the-wake-of-covid-19-a-litmus-test-for-the-secretary-general-of-the-council-of-europe/, 12.12.2021).
49
Secretary General of the CoE to Viktor Orban, Prime Minister of Hungary, 24 March 2020,
Internet https://rm.coe.int/orban-pm-hungary-24-03-2020/16809d5f04, 12/01/2022.
50
Kushtrim Istre , A new mechanism for supervision of derogations from the European Convention
on Human Rights: lling the accountability gap? (http://blog.ucall.nl/index.php/2019/10/a-new-mech-
anism-for-supervision-of-derogations-from-the-european-convention-on-human-rights- lling-the-ac-
countability-gap/, 20.12.2021).

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na, Noti cations of derogations from the European convention on human rights in
Covid-19 context. (стр. 119-143)

supervisory functions of the Secretary General over states parties

making COVID-19 related derogations, the spirit of Resolution 2209
as well as the ratio of Article 15(3) of the ECHR cannot be ful lled
in the near future.

3. CONCLUSION

The record number of simultaneous derogations from the ECHR

provoked by the COVID-19 pandemic presented a valuable opportu-
nity to reexamine the vague and incomplete noti cation regime under
Article 15(3) of the ECHR. The envisaged ratio of Article 15(3) of
the ECHR to promote transparency and legal certainty by publicly
informing other Contracting States, through Secretary General, of the
derogatory measures taken cannot be fully accomplished under the
existing regime, since the said provision fails to regulate all the aspects
governing the form, substance and legal e ects of the submitted noti-
cations of derogations in a complete and unambiguous manner.
As for the incompleteness of the substantive and procedural
requirements which the noti cations of derogations shall include,
rst of all, Article 15(3) is silent on their various temporal aspects,
such as the maximum duration of the derogations, limitation of their
potential extensions and the timeframe for submitting noti cations of
derogations. Moreover, ECHR’s Article 15(3) fails to determine the
necessary level of speci cation of information that should be provided
in noti cations. The existing approach of having the requirements of
noti cations of derogations determined through evolving case law of
the ECtHR seems inadequate, and certainly not conducive of legal
certainty. This can be showcased by the recent record of COVID-19
related derogations under the ECHR, where the noti cations of states
parties to the ECHR are mutually rather inconsistent regarding the
aforementioned substantive and procedural requirements of noti -
cations. Those diverging practices show that the unclear wording
of Article 15(3), coupled with sparse case law on the issue, does
not provide su cient guidelines for the time being. Legal certainty
and transparency would be better served if such requirements were
speci ed either in the ECHR or in other acts of the CoE. This is par-
ticularly relevant in the context of the observation made in the 2021
annual report of the Secretary General of the Council of Europe,51
51
State of Democracy, Human Rights and the Rule of Law, A democratic renewal for Europe, p.

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na, Noti cations of derogations from the European convention on human rights in
Covid-19 context. (стр. 119-143)

which reiterates that “Covid-related restrictions and measures must

not only be necessary and proportionate, but also limited in duration.
This means that, as the public health crisis eases, they should be lifted
in as complete and timely a manner as possible”.
When it comes to failure of the provision of Article 15(3) to
determine the legal e ects of the lack of adequate noti cations of
derogations, it is noteworthy that the ECtHR and the Commission,
while it operated, were consistently reluctant to take a view on whether
or not a lack of noti cation or inadequate noti cations under Article
15(3) produce legal e ects to the derogating state concerned. It was
certainly prudent for the ECHR organs to refrain from turning the
rule of noti cation from Article 15(3) into a dead letter in an open
and explicit manner. However, the ECHR organs would be much
more appreciated if they had taken a clear approach by determining
what sanctions, if any, should be applied against states that fail to
comply with the noti cation-related requirements stemming from
Article 15(3).
The view invoked in legal doctrine according to which the
“visibility” of the COVID-19 pandemics should weaken the noti -
cation- related obligations of the derogating state parties cannot be
accepted. The information included in the noti cation is rather useful
for the ECtHR when adjudicating, as it is for other CoE organs, even
if the emergency itself, such as the one provoked by the COVID-19
pandemic, is apparent to all. Therefore, the ECtHR would be advised
to proceed strictly in assessing the noti cation requirements so as to
avoid any potential abuse of emergency powers in massive COVID-19
derogations from the ECHR. However, it remains to be seen whether
in the near future the convincing arguments brought by legal scholars
advocating a rigid approach will make any impact on the ECtHR when
adjudicating cases where adequate noti cation under Article 15(3) is
missing, while the particular state party took derogatory measures. It
should be recalled that the ECtHR, for the time being, did not decide
on the merits of any of the cases when it comes to the applications
against the states which derogated from Article 15 in the context of
the COVID-19 pandemic. Hopefully, the ECtHR will not miss the
opportunity to deal with the quality of noti cations, and legal e ects
in case of their lack and by doing so adequately address this unprec-
8 (https://rm.coe.int/annual-report-sg-2021/1680a264a2, 21.12.2021).

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na, Noti cations of derogations from the European convention on human rights in
Covid-19 context. (стр. 119-143)

edented health emergency. This would be particularly relevant in the

context of repeated extension of derogations, especially those covering
substantial periods of time.
Nevertheless, it is reasonable to expect that the anticipated high
rate of inadmissible applications dealing with COVID-19 related
issues will undermine the ECtHR’s e orts to properly address the
matters pertaining to the adequacy of submitted noti cations of der-
ogations. As of October 2021, apart from received interim measures,
there are over forty applications submitted to the ECtHR in relation
to the COVID-19 health crisis. The high rate of applications that were
declared inadmissible and the fact that the only rendered ECtHR
judgment on COVID-19 was against Malta, which did not derogate
from the ECHR, show that it is not overly realistic to expect that a
fruitful ECtHR’s jurisprudence relevant for the COVID-19- related
derogation will be developed.
Due to the inherent limitations of the judicial organs such as
the ECtHR to systematically address the problems associated with
noti cations of derogations, the clear need for other non-judicial
supervisory institutions to step in and address this issue is apparent.
In that regard, much has been expected from the Resolution 2209
of the PACE of 2018 as it clari es and strengthens the advisory and
supervisory powers of the Secretary General with regard to noti cation
regime under Article 15(3) of the ECHR. Given that the COVID-19
related derogations are the rst derogations made subsequent to the
adoption of this resolution, the active response of the Secretary Gen-
eral to these derogations could have released the full potential of the
Resolution 2209. Unfortunately, it seems that this opportunity so
far has been completely missed. Since the COVID-19 pandemic is
still ongoing, there are certain prospects that the ECtHR as well as
the Secretary General, in case of new derogations, will activate their
inherent powers in order to e ectively supervise states parties with
regard to their noti cation practices. Again, these reinforced roles
seem to be needed in the overall social context in the European Conti-
nent or rather, what is, according to the annual report of the Secretary
General, a democracy in distress, resulting in a call for the national
authorities to recommit to the ECHR and respect and execute ECtHR
decisions. Without strengthening the roles of the Secretary General
and the ECtHR over states parties making COVID-19 related dero-

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na, Noti cations of derogations from the European convention on human rights in
Covid-19 context. (стр. 119-143)

gations, the spirit and the ratio of Article 15(3) of the ECHR cannot
be ful lled in the near future.

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Covid-19 context. (стр. 119-143)

Весна Б. Ћорић, Ана С. Кнежевић Бојовић,

Александра Д. Вишекруна

ОБАВЕШТЕЊА О ОДСТУПАЊУ ОД ЕВРОПСКЕ

КОНВЕНЦИЈЕ О ЉУДСКИМ ПРАВИМА У КОНТЕКСТУ
ПАНДЕМИЈЕ КОВИДА 19

- Резиме -

Од почетка пандемије Ковида 19, десет држава чланица Савета Европе

званично је одступило од својих обавеза по Европској конвенцији о заштити
људских права и основних слобода (ЕКЉП), при чему су неке од њих ова
одступања продужавала више пута. Овако значајан број држава које су се
определиле да искористе могућност одступања од ЕКЉП отворио је простор
за дебате о многим питањима, укључујући и то да ли су форма и садржина
обавештења о одступањима биле адекватне, те о правним последицама
пропуста, у случају да нису. Ово питање чини се нарочито значајним ако се има
у виду да одредба члана 15 ЕКЉП која се односи на одступања, а којом се дају
широка овлашћења државама чланицама приликом опредељивања разлога за
одступања и трајање одступања, није довољно прецизно формулисана. Отуда,
у овом раду ауторке испитују правни режим који се односи на обавештења
о одступањима у складу са чланом 15 ЕКЉП. Користећи се нормативним,
догматским и упоредноправним методом, ауторке прво анализирају
материјалне и процесне аспекте обавештења о одступању, а потом критички
преиспитују допринос Европског суда за људска права у прецизирању правних
последица пропуштања да се наведени материјални и процесни захтеви
испуне. Потом, ауторке указују на саветодавну и надзорну улогу Генералног
секретара Савета Европе у односу на дата обавештења, са нарочитим освртом
на Резолуцију 2209 Парламентарне Скупштине Савета Европе из 2018. године.
Узимајући као полазну основу релевантна правнотеоријска становишта, те
праксу и стандарде развијене под окриљем Савета Европе, ауторке формулишу
смернице о приступу који треба да користе како Европски суд за људска права,
тако и друга тела Савета Европе у контексту одступања од ЕКЉП у ванредним
околностима у вези са јавним здрављем.
Кључне речи: Европска конвенција о људским правима, члан 15, одступања,
обавештење, надзорна овлашћења, Генерални секретар
Савета Европе. 52

*
Рад је примљен 16.12.2021. године, а прихваћен на састанку Редакције 21.02.2022. године.

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