Human Rights in Exceptional Times: Trends in Derogations Regimes among the Council of Europeâs Members, and the Responses of the European Court of Human Rights

StÃ©phanie Lagoutte

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Chapter 9 Human Rights in Exceptional Times: Trends in Derogations Regimes among the Council of Europeâs Members, and the Responses of the European Court of Human Rights

äºEuropean Yearbook on Human Rights 2024

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StÃ©phanie Lagoutte

StÃ©phanie Lagoutte
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Page Range:: 244â277

DOI:: https://doi.org/10.1163/9789004708389_010

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Abstract

This contribution analyses how States have made use of the derogation regime offered by the ECHR in recent different circumstances, ranging from invasion of their territory by a foreign army to energy shortages or contagious diseases. Facing exceptional circumstances, European States have chosen different paths. Some States derogate, others manage by further restricting rights, within the framework of ordinary laws, and in a manner that they find proportionate to the protection of public order and security. The border between extraordinary and ordinary regimes becomes blurred. Traditionally, the ECtHR gives latitude to the Statesâ decisions to proclaim a state of emergency and derogate. Consequently, the ECtHR almost never adjudicates on the material legality of the derogation. A limited assessment of the exceptional situation by the ECtHR may take place through the control of the legality and the proportionality of the individual measures taken. However, the control exercised in the recent Turkish cases mostly focuses on the existence of procedural and remedy safeguards within the realm of Articles 5 and 6 securing the maintaining of the rule of law in emergency regimes. In recent French cases, the ECtHR has chosen to assess the emergency measures as ordinary limitations on the freedom of movement. This contribution shows that the control of the decision to enter an extraordinary human rights regime is more limited than ever, which may prompt a need to strengthen political control of the content of the decision to derogate, including of the repeated extension of derogation.

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European Yearbook on Human Rights 2024

ä¸ç¼ï¼ European Yearbook on Human Rights, å·ï¼ 1

ISBN:: 9789004708389

åºçç¤¾:: Brill | Nijhoff

å°å·åºçæ¥æ:: 07 Mar 2025

Subjects
- Human Rights and Humanitarian Law
  - Human Rights
- International Law
  - International Law: Regional Perspectives

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Part 1 Human Rights Developments in EUROPE and Beyond

Part 2 Jurisprudence by the Courts

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Chapter 9 Human Rights in Exceptional Times: Trends in Derogations Regimes among the Council of Europeâs Members, and the Responses of the European Court of Human Rights

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Chapter 9 Human Rights in Exceptional Times: Trends in Derogations Regimes among the Council of Europeâs Members, and the Responses of the European Court of Human Rights

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