Avrupa İnsan Hakları Sözleşmesi’nin 15. Maddesi Uyarınca Taraf Devletlerin Sözleşme’den Kaynaklanan Yükümlülüklerinin Azaltılması (Derogasyon)

Abstract

Article 15 of the Convention affords the State Parties the opportunity to derogate from their obligations concerning the protection of rights and freedoms guaranteed under the Convention and the Protocols thereto under certain conditions. Having regard to the case-law of the Court, the State Parties are provided with a wide margin of appreciation in terms of the application of Article 15 of the Convention. However, derogation cannot be applied in an unlimited and uncontrolled manner. It must be underlined that exceptional /critical conditions do not provide the State Parties with a carte blanche for distorting the foundations of administration based on the principles of democracy, rule of law and human rights, as the indispensable elements of today’s contemporary States. Paragraph 2 of Article 15 of the Convention enshrines certain substantive and procedural conditions that must be obeyed by the State Parties when they apply for derogation. In cases where derogation is applied, the Council of Europe (the Council) organs carry out two types of supervision / monitoring. Firstly, when considering whether the State Parties comply with the requirements of Article 15 of the Convention, the Strasbourg Court examines whether the measures taken /to be taken are proportionate to the exigencies of the situation, whether they may be considered as a reasonable excuse / requirement, whether this excuse was relevant and whether it was sufficiently justified at international level. Secondly, certain specialisation units of the Council also perform supervision / monitoring. In this study, specific to the ECHR providing for a regional human rights protection system, an examination is made on the practice of “derogation from obligations arising from the Convention in times of emergency” which has to be applied in case of a general risk threatening the existence of the nation such as war, mobilisation, military coup attempt (coup attempt of 15 July), pandemic diseases (COVID-19) or grave economic crisis; in other words, which is a security blanket for the State Parties. In the course of this examination process; the judgments of the Strasbourg Court - as the trial authority of the Council, studies of other organs of the Council concerning derogation practice, such as reports, opinions and explanations, as well as the judgments of the Turkish Constitutional Court in the applications regarding the measures / restrictions imposed within the state of emergency declared in Türkiye have been analysed. Defective aspects of the practice are also tried to be revealed.