European Convention on Human Rights

ECHR - Article 15: Derogations

Article 15 – derogations

Main article: Article 15 of the European Convention on Human Rights

Article 15 allows contracting states to derogate from certain rights guaranteed by the Convention in a time of "war or other public emergency threatening the life of the nation". Permissible derogations under article 15 must meet three substantive conditions:

1. there must be a public emergency threatening the life of the nation.

2. any measures taken in response must be "strictly required by the exigencies of the situation"; and

3. the measures taken in response to it must be in compliance with a state's other obligations under international law.

In addition to these substantive requirements, the derogation must be procedurally sound. There must be some formal announcement of the derogation and notice of the derogation and any measures adopted under it, and the ending of the derogation must be communicated to the Secretary-General of the Council of Europe.

As of 2016, eight member states had ever invoked derogations. The Court is quite permissive in accepting a state's derogations from the Convention but applies a higher degree of scrutiny in deciding whether measures taken by states under a derogation are, in the words of Article 15, "strictly required by the exigencies of the situation". Thus, in A v United Kingdom, the Court dismissed a claim that a derogation lodged by the British government in response to the September 11 attacks was invalid but went on to find that measures taken by the United Kingdom under that derogation were disproportionate.

Examples of such derogations include:

· In the 1969 Greek case, the European Commission of Human Rights ruled that the derogation was invalid because the alleged Communist subversion did not pose a sufficient threat. This is the only time to date that the Convention system has rejected an attempted derogation.

· Operation Demetrius—Internees arrested without trial pursuant to "Operation Demetrius" could not complain to the European Commission of Human Rights about breaches of Article 5 because on 27 June 1975, the UK lodged a notice with the Council of Europe declaring that there was a "public emergency within the meaning of Article 15(1) of the Convention".