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“The team was recently visible advising on a number of pharmaceutical cases. Sources agree that the team is “moving in the right direction” and are particularly impressed by its work in the pharmaceutical sector”.

 

Why Turkey Will not Violate the European Convention on Human Rights

12.08.2016

Oleksandr Dementiev, lawyer at Ilyashev & Partners Law Firm
Source: European Pravda

The world’s media and the public with a genuine concern follow the events in Turkey in connection with the attempt to seize power on July 15.

During the clashes in Ankara and Istanbul, the military men dropped two bombs on the buildings of the parliament and the presidential palace, opened fire on civilians and police. According to official reports, the number of deaths as a result of collisions was 246 people, and about a thousand and a half were injured.

Some days later the news blossomed reports that “Turkey will refuse to fulfill the requirements of the European Convention on Human Rights for the duration of the state of emergency”.

The absurdity of titles, in fact, made the author of these lines to write an explanation.

What is special about the state of emergency

Introduction in the country of the “emergency” situation is caused by various kinds of extreme and unforeseen situations that pose a threat to a large number of people in a single state, a threat to the constitutional order or the existence of the state or even the nation.

Its purpose is to prevent or mitigate the consequences of such situations although the usual methods of state response are insufficient.

In other words, introduction of the state of emergency means transition to the emergency state management methods, the special regime of regulation of relations in many or all spheres of life, which is usually manifested in a temporary change in the powers of various government and regulatory authorities, change of social and economic, political and other rights and freedoms of citizens.

It should be understood that the introduction of the state of emergency is usually accompanied by a restriction of fundamental civil rights and freedoms.

This, in turn, means the temporary abandonment of the guarantees of personal integrity and the right to respect for home, strengthening of the administrative and criminal liability, restriction of procedural safeguards, introduction of an accelerated trial procedure, conducting searches, arrests and detentions, restriction of freedom of expression and confidentiality of correspondence, freedom of assembly and meetings, freedom of association, freedom of residence and movement; limitations of economic rights and freedoms, such as the right to respect for private property, are also possible.

Thus, Turkey has no need to “freeze” the effect of the Human Rights Convention, even in such a difficult time for the state.

The absurdity of headings is that the Human Rights Convention itself provides ample opportunity to depart from its provisions, in particular, during the war or during the introduction of a state of emergency.

What happens in practice?

Article 15 of the Convention empowers its State Parties to temporarily derogate from the rights and freedoms set out in it, “in time of war or other public emergency threatening the life of the nation”.

The interpretation of the term “in time of war” is not difficult. War can be declared officially by the state or against it, or if a state is actually involved in an international armed conflict.

However, the interpretation of the concept of “a state of emergency” objectively may cause some difficulties.

In its Judgment in the case of “Lawless v. Ireland” the European Court of Human Rights described the state of emergency as the one which threatens the life of the nation, as “an exceptional situation of crisis which affects the whole population and constitutes a threat to the organized life of the community of which the State is composed”.

In the case of “Greece v. the United Kingdom” it was clarified:

  • in case of an emergency danger must be real or imminent;
  • the effects should cover the whole state;
  • the ordinary course of social life must be under threat;
  • crisis or danger must be extraordinary;
  • thereto, the usual precautions and limitations provided for by the Convention for the maintenance of public order, are unacceptable.

Convention on Human Rights also refers to a number of rights that may not be restricted.

For example: the right to life (except in respect of deaths resulting from lawful acts of war), the prohibition of torture, the prohibition of slavery and forced labor (except for the service, which is obligatory in case of an emergency or calamity threatening the life or well-being of the population), the right to punishment based solely on the law.

In addition, the Convention envisages a prerequisite to inform the Secretary General of the Council of Europe of derogation by the State from its obligations, the measures taken, the reasons for their taking and the expected date of termination of such measures and the resumption of the implementation of the Convention in its entirety.

Upon analyzing the information available in the media, the Council of Europe was informed by the Turkish party of introduction of the state of emergency, the reasons for its introduction, the measures taken and its duration (3 months).

Whereas the Government of Turkey took all the formal steps following the requirements of the Convention, we can conclude that Turkey does not plan to abandon the effect of the Human Rights Convention on its territory. It is just the question of derogations of its provisions admissible by the Convention.

The obligations undertaken by Turkey upon ratification of the Convention in 1954, in particular, suggest that derogations from the usual activities of the state must be brought down to a minimum, and that the criteria that justify the state of emergency should be interpreted strictly restrictively.

In this case, all competent government agencies temporarily conferred with “special” powers should remember that the only purpose of the state of emergency as such is the quickest possible return of the society facing the need to resolve the exceptional circumstances the usual state – the democratic public order.

 
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