In January 2021, a curfew was adopted in the Netherlands, prohibiting people from going outside between 21:00 and 04:30. The curfew affects a range of human rights, including, inter alia, the freedom of movement, the right to private and family life and the freedom of assembly. The legality and necessity of this measure were challenged before the Dutch courts by a local foundation. On 16 February, the Hague Regional Court (Rechtbank) found that the curfew could not be based on the law that was invoked by the Government and that such a measure was unnecessary. In its judgment of 26 February, the Court of Appeal (Gerechtshof) rejected the findings of the Hague Regional Court and ruled in favour of the Government. This blog argues that the courts’ findings on the legality and necessity of the curfew were largely based on the (mis)conception of what an emergency means, and what form and intensity of judicial review is required in such situations. In doing so, however, the Dutch courts omitted the crucial question regarding the use of emergency measures in the situation of normalised and entrenched emergencies. Lees verder
Article 15 of the European Convention on Human Rights (ECHR or the Convention) provides that in time of war or other public emergencies a State may derogate from most of its human rights obligations. This derogation clause grants a State a wide discretion to determine the reasons and the duration of a derogation as well as the aptness of emergency measures. The rationale is that a State is best placed to determine what constitutes a public emergency and how to restore order in its territory.
Nevertheless, such a discretionary power inherently leaves room for abuse. In the context of derogations, worrisome practices are not scarce in our present times, where crisis and emergencies (under the notions of terrorism, mass migration etc.) are pronounced lightly. In this vein, it is of pivotal importance that States’ derogation practices are exposed to strict scrutiny by international supervisory mechanisms.
At the level of the Council of Europe (CoE), the European Court of Human Rights (ECtHR or the Strasbourg Court) was the sole mechanism to exercise such a supervisory role. In addition, the Venice Commission has issued recommendations on certain derogation practices. However, it lacks the institutional mandate to engage in any meaningful supervisory function. This blog argues that the Parliamentary Assembly of the Council of Europe (PACE) has, through its Resolution 2209 (2018), established a new layer of supervision of derogation regimes by empowering the Secretary General of the CoE to actively engage with derogation practices. This blog will, first, outline why the Strasbourg Court by itself is not capable to effectively supervise states of emergency and, second, whether this gap can be filled by the enhanced role of the Secretary General of the CoE. Lees verder