
Former deputy prime minister Evangelos Venizelos, who served in a coalition government with the currently ruling New Democracy, has publicly criticised the government's legal justification for a recent amendment on migration, which references Article 15 of the European Convention on Human Rights (ECHR). In a sharply worded statement, he calls for the withdrawal of what he describes as the government’s “etiological thought” – its explanatory statement – accompanying the proposed legislation.
Venizelos writes:
“The government cites Article 15 of the ECHR, equivalent to Article 48 of the Constitution, for the implementation of siege law!”
The explanatory memorandum accompanying the amendment, submitted by the relevant ministers, addresses the handling of people entering the country “illegally by any floating means originating from North Africa”. It includes the following assertion:
“The conditions set out in Article 15 of the European Convention on Human Rights are met. According to this article, contracting states, in the event of a public emergency threatening the life of the nation, may take measures derogating from their obligations under the Convention, to the extent strictly required by the situation.”
Venizelos challenges the government’s interpretation and use of the article. He reminds readers that Article 15 of the ECHR, which corresponds to Article 48 of the Greek Constitution on the state of siege, permits the temporary suspension of certain rights only under extreme and exceptional circumstances:
Article 15 – Derogation in time of emergency
In time of war or other public emergency threatening the life of the nation, any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.
No derogation from Article 2 (right to life), except in respect of deaths resulting from lawful acts of war, or from Articles 3 (prohibition of torture), 4(1) (prohibition of slavery and servitude), and 7 (no punishment without law) shall be made under this provision.
Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures taken and the reasons therefor. It shall also inform the Secretary General when such measures have ceased and the provisions of the Convention are again being fully executed.
A summary of jurisprudence from the Secretariat of the European Court of Human Rights further clarifies that:
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Derogation is permitted only in times of war or other emergencies threatening the life of the nation.
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Any measures taken must be strictly necessary for the situation at hand.
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No derogation may violate other international obligations.
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Certain rights are non-negotiable under any circumstances, including the prohibition of torture and slavery.
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States must notify the Council of Europe Secretary General of any derogation measures and when they are lifted.
Venizelos argues that even if the conditions of Article 15(1) were met, the government’s reference to Article 48 of the Constitution implies the potential imposition of a state of siege over all or part of the country. He deems this possibility “obviously inappropriate”, adding pointedly: “At least, I hope so.”
He acknowledges the pressure caused by migratory flows from Libya and North Africa more broadly, but notes that Greece has faced similar challenges in the past. In those cases, he says, measures were taken within the bounds of the Constitution and the ECHR, and under the judicial scrutiny of the European Court of Human Rights (ECtHR). Some cases remain pending before the Court, raising issues related to Article 15.
“The easy and unacceptable invocation of this ECHR provision raises questions of the utmost importance for the rule of law in our country and for respect for its fundamental obligations under international law,” Venizelos concludes.
“At the very least, the explanatory statement accompanying the amendment must be withdrawn – aside from the other legal problems it clearly presents.”
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