RESTRICTIONS OF HUMAN RIGHTS UNDER THE EUROPEAN CONVENTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS - new tendencies
Abstract
The majority of human rights can be restricted in certain situations, despite their significance for every democratic society. That means that those rights are not absolute. Such situations represent, for example, war and states of emergency, according to the European Convention on Human Rights. Then, in order to protect the interest of the state and national security, human rights, that means the interests of individuals, come second. In that case, it is necessary to achieve a balance between the necessary restrictions and the preservation of the state’s interests. One of the best examples of the restrictions of human rights during a state of emergency is the period of Covid-19. Many rights, such as right to respect for private and family life, were restricted during Covid-19 in a variety of countries in Europe, but each country established its own measures according to its own situation. The cases regarding these restrictions and violations will be presented before the European Court of Human Rights in the years to come.
References
Books and articles
- Alan Desmond, “The Private Life of Family Matters: Curtailing Human Rights Protection for Migrants under Article 8 of the ECHR?”, The European Journal of International Law, 29/2018.
- Alexander Hamilton, James Madison, John Jay, The Federalist Papers, Signet 2003.
- Andrea Bianchi, Yasmin Naqvi, International Humanitarian law and Terrorism, Hart Publishing 2011.
- Anna-Lena Svensson-McCarthy, The International Law of Human Rights and States of Exception, Martinus Nijhoff Publishers 1998.
- Biljana Braithwaite, Catharina Harby, Goran Miletić, Covid-19 and the Impact on Human Rights - An overview of relevant jurisprudence of the European Court of Human Rights, AIRE Centre 2020.
- Bojan Tubić, “Ograničenje prava na neometano uživanje imovine u praksi Evropskog suda za ljudska prava”, Zbornik radova Pravnog fakulteta u Novom Sadu, 4/2017.
- Christoph Schreuer, “Derogation of Human Rights in Situation of Public Emergency: The experience of the European Convention on Human Rights”, Yale Journal of World Public Order, 9/1982.
- Daphna Shraga, “Human Rights in Emergency Situations under the European Convention on Human Rights”, Israel Yearbook on Human Rights, 16/1986.
- David Harris, et al., Law of the European Convention on Human Rights, Oxford University Press 2009.
- Elzbieta Kuzelewska, Mariusz Tomaszuk, “European Human Rights Dimension of the Online Access to Cultural Heritage in Times of COVID-19 Outbreak”, International Journal of the Semiotics of Law, 35/2020.
- European Court of Human Rights, Guide on Article 15 of the European Convention on Human Rights - Derogation in time of emergency, 31 August 2022.
- European Court of Human Rights, Guide on Article 7 of the European Convention on Human Rights - No punishment without law: the principle that only the law can define a crime and prescribe a penalty, 31 August 2022.
- Henkin Louis, The International Bill of Rights: the Covenant of Civil and Political Rights, Columbia University Press 1981.
- Jaime Oraa, Human Rights in States of Emergency in International Law, Oxford University Press 1992.
- Leslie C. Green, “Derogation of Human Rights in Emergency Situations”, Canadian Yearbook of International Law, 16/1978.
- Ljubinko Mitrović, Nikolina Grbić Pavlović, Gojko Pavlović, ,,Derogiranje ljudskih prava u vanrednom stanju - slučaj Bosne i Hercegovine”, Pravni vjesnik, 3-4/2016.
- Mohamed M. El Zeidy, “The ECHR and States of Emergency: Article 15-A Domestic Power of Derogation from Human Rights Obligations”, Michigan State University Detroit - College of Law’s Journal of International Law, 11/2002.
- Nicole Questiaux, “Question of the Human Rights of Person Subjected to any Form of Detention or Imprisonment: Study of the Implications for Human Rights of Recent developments concerning situations known as states of siege or emergency”, United Nations Special Report, 27 July 1982.
- Oren Gross, “Once more unto the Breach: The Systematic Failure of Applying the European Convention on Human Rights to Entrenched Emergencies”, The Yale Journal of International Law, 23/1998.
- Oren Gross, Fionnuala Ni Aolain, Law in Times of Crisis: Emergency Powers in Theory and Practice, Cambridge University Press 2006.
- Pieter van Dijk, Godefridus J.H. van Hoof, Theory and Practice of the European Convention on Human Rights, Martinus Nijhoff Publishers 1993.
- Robin C.A. White, Clare Ovey, European Convention on Human Rights, Oxford University Press 2010.
- Ronald St. J. MacDonald, “Derogations under Article 15 of the European Convention on Human Rights”, Columbia Journal of Transnational Law, 36/1998.
- Ronald St.J. Macdonald, Franz Matscher, Herbert Petzold, The European System for the protection of human rights, Martinus Nijhoff Publishers 1993.
- Scope of Article 8 see European Court of Human Rights, Guide on Article 8 of the European Convention on Human Rights - Right to respect for private and family life, home and correspondence, 31 August 2022.
- Toni Pfanner, “Asymmetrical warfare from the perspective of humanitarian law and humanitarian action”, International Review of the Red Cross, Vol. 87, 2005.
- Torkel Opsahl, “Emergency Derogation from Human Rights”, Mennesker og Rettigheter, 5/1987.
- Uliana Koruts, Roman Maksymovych, Olha Shtykun, “Legal Grounds for Restrictions of Human Rights in the European Court of Human Rights Case-Law”, Access to Justice in Eastern Europe, 4/2021.
Legal sources
- Convention for the Protection of Human Rights and Fundamental Freedoms - European Convention on Human Rights, Council of Europe, Rome, 4 November 1950.
- International Covenant on Civil and Political Rights, United Nation General Assembly Resolution 2200A, New York, 16 December 1966.
- International Covenant on Economic, Social and Cultural Rights, United Nation General Assembly Resolution 2200A, New York, 16 December 1966.
- Protocol no. 13 to the Convention for the protection of human rights and fundamental freedoms concerning the abolition of the death penalty in all circumstances, Vilnius, 3 May 2002.
- Protocol No. 15 amending the Convention on the Protection of Human Rights and Fundamental Freedoms, Council of Europe, Strasbourg, 24 June 2013.
- Protocol no. 6 to the Convention for the protection of human rights and fundamental freedoms concerning the abolition of the death penalty, as amended by Protocol no. 11, Strasbourg, 28 April 1983
- Protocol no. 7 to the Convention for the protection of human rights and fundamental freedoms, as amended by Protocol no. 11, Strasbourg, 22 November 1984.
- The Universal Declaration of Human Rights, United Nation General Assembly, Paris, 10 December 1948.
The jurisprudence of the European Court of Human Rights
- A. and Others v. The United Kingdom, European Court of Human Rights, App. No. 3455/05, Judgment of 19 February 2009.
- Alparslan Altan v. Turkey, European Court of Human Rights, App. No. 12778/17, Judgment of 09 September 2019.
- Boughanemi v. France, European Court of Human Rights, App. No. 22070/93, Judgment of 24 April 1996.
- Brannigan and McBride v. The United Kingdom, European Court of Human Rights, App. No. 14554/89, Judgment of 25 May 1993.
- Caruana v. Malta, European Court of Human Rights, App. No. 41079/19, Decision as to the Admissibility of 15 May 2018.
- Cyprus v. Turkey, European Court of Human Rights, App. No. 6780/74, Report of the Commission of 10 July 1976.
- Cyprus v. Turkey. European Court of Human Rights, App. No. 8007/77, Report of the Commission of 4 October 1983.
- Denmark, Norway, Sweden and the Netherlands v. Greece, European Court of Human Rights, App. No. 3321/67, Judgment of 5 November 1969.
- Greece v. The United Kingdom, European Court of Human Rights, App. No. 176/56, Report of the European Commission of Human Rights (Article 31 of the Convention) of 26 September 1958.
- Grzeda v. Poland, European Court of Human Rights, App. No. 43572/18, Judgment of 15 March 2022.
- Guhn v. Poland, European Court of Human Rights, App. No. 45519/20.
- Handyside v. United Kingdom, European Court of Human Rights, App. No. 5493/72, Judgment of 4 November 1976.
- Ireland v. The United Kingdom, European Court of Human Rights, App. No. 5310/71, Judgment of 18 January 1978.
- Khoroshenko v. Russia, European Court of Human Rights, App. No. 41418/04, Judgment of 30 June 2015.
- Kuimov v. Russia, European Court of Human Rights, App. No. 32147/04, Judgment of 8 January 2009.
- Lawless v. Ireland, European Court of Human Rights, App. No. 332/57, Judgment of 1 July 1961.
- Marckx v. Belgium, European Court of Human Rights, App. No. 6833/74, Judgment of 13 June 1979.
- Mehmet Hasan Altan v. Turkey, European Court of Human Rights, App. No. 13237/17, Judgment of 20 March 2018.
- Michalski v. Poland, European Court of Human Rights, App. No. 34180/20.
- Nitecki v. Poland, European Court of Human Rights, App. No. 65653/01, Decision as to the Admissibility of 21 March 2002.
- Novotná v. the Czech Republic, European Court of Human Rights, App. No. 3867/14, Judgment of 8 April 2021.
- Sahin Alpay v. Turkey, European Court of Human Rights, App. No. 16538/17, Judgment of 20 June 2018.
- Schmidt v. Germany, European Court of Human Rights, App. No. 32352/02, Decision as to the Admissibility of 5 January 2006.
- Sommerfeld v. Germany, European Court of Human Rights, App. No. 31871/96, Judgment of 8 July 2003.
- Susnescu v. Romania, European Court of Human Rights, App. No. 19034/21.
- Vasileva v. Bulgaria, European Court of Human Rights, App. No. 23796/10, Judgment of 17 March 2016.
- Vavrička v. The Czech Republic, European Court of Human Rights, App. No. 47621/13, Judgment of 8 April 2021.
Internet sources
- Sean Molloy, Covid-19 and Derogation Before the European Court of Human Rights, https://verfassungsblog.de/covid-19-and-derogations-before-the-european-court-of-human-rights, accessed date 16.11.2022.
- The effects of digital contact on children’s well-being: evidence from public and private contexts, https://www.nuffieldfjo.org.uk/resource/digital-contact-childrens-wellbeing , accessed date 17.11.2022.
- The Ministry of the Republic of Latvia, Note verbale, 15 March 2020, https://rm.coe.int/09000016809ce9f2, accessed date 16.11.2022.
- The Ministry of the Republic of Serbia, Note verbale, 6 April 2020, https://rm.coe.int/09000016809e1d98, accessed date 16.11.2022.