Page - 18 - in Austrian Law Journal, Volume 1/2020

ALJ 2020 Lessons Learned 17 The findings and recommendations of the opinions of the Venice Commission are often ignored as they are not welcome to the governments pursuing a different policy. Where to draw the red line, which is in danger of being redrawn all the time? There is a need of stronger vigilance as any softening and compromise might damage the common good and the common concern, the European system of human rights. 4. Dealing with a state of emergency In several cases, like in the “Greek case”, states of emergency have been announced by governments in order to free themselves from obligations under the Convention. The “Greek case” stands for the approach of the European Commission on Human Rights to insist on a right to review whether a state of emergency was justified and whether the measures taken by states were necessary for a legitimate purpose. Both, in the “Greek case” as well as in the Turkish case in the 1980s, the Commission did not find the declared states of emergency justified. The state of emergency after the recent attempted coup in Turkey can be considered as an “entrenched” derogation, while derogations under Article 15 according to the findings of international bodies and the doctrine should be temporary.69 This raises the question of an abuse of the right similar to the British proposal to derogate from the ECHR in future extraterritorial military operations.70 It is worth noting that the PACE rapporteur on State of Emergency in his report adopted by the Assembly concluded that derogations must be limited in duration71 and questioned the derogation made by France to address “lasting” terrorist threats. Regarding Turkey the report found that the length of the derogation exceeded what was strictly required.72 The practice of the Court, however, seems to suggest that there is no obligation of temporariness as this also does not appear in Article 15.73 The Court somewhat disturbingly also does not consider derogatory measures under a state of emergency as “urgent cases”, which shows a potential discrepancy with the approach taken by the Assembly. In resolution 2209 on state of emergency the Assembly proposed that the Secretary General of the Council of Europe should use its powers under Article 52 ECHR on “inquiries by the Secretary General” to open an inquiry in the case of any state derogating from the Convention.74 This recommendation has been taken up in the literature in the COVID-19 crises when several states notified a state of emergency.75 However, this issue cannot be further pursued in the context of this contribution. 69 See Kushtrim Istrefi, Stefan Salomon, Entrenched Derogations from the European Convention on Human Rights and the Emergence of Non-Judicial Supervision of Derogations, Vol. 22 AUSTRIAN REVIEW OF INTERNATIONAL AND EUROPEAN LAW 7-28 (2017)2019. 70 See Vassilis P. Tzevelekos, The United Kingdom’s Presumption of Derogation from the ECHR Regarding Future Military Operations Overseas: Abuse of Rights, Articles 17 and 18 ECHR, and à la carte Human Rights Protection, Vol. 22 AUSTRIAN REVIEW OF INTERNATIONAL AND EUROPEAN LAW 137-190, (2017). 71 See Parliamentary Assembly, Resolution 2209 (2018) of 24 April 2018 on State of emergency: proportionality issues concerning derogations under Article 15 of the ECHR, para. 4. 72 Id., para. 16.2. 73 See Istrefi, Salomon, supra note 69, at 13. 74 Parliamentary Assembly, Resolution 2209 (2018), para. 20.2. 75 See Kushtrim Istrefi, Supervision of Derogations in the Wake of CVOVID-19: a litmus test for the Secretary General of the Council of Europe, EJIL:TALK!, Apr. 6, 2020.