Emergencies inevitably lead to excesses, says court expert

Michael O’Boyle believes crises create dangers that can weaken or destroy democracy

Former deputy registrar at the European Court of Human Rights Michael O’Boyle. File photograph: Alan Betson/The Irish Times

Former deputy registrar at the European Court of Human Rights Michael O’Boyle. File photograph: Alan Betson/The Irish Times


The economic slump, the refugee crisis, conflict on European soil and the rise of extremism and Islamic terrorism, have all led to a flow of issues being raised at the European Court of Human Rights in Strasbourg, an expert on the court has said.

Delivering a lecture on the European Convention on Human Rights and States of Emergency, the former deputy registrar at the court, Michael O’Boyle, said it was his view that states of emergency inevitably led to excesses.

It was crucial that national courts retained the power to review the actions sanctioned by governments that had lodged derogations from the European Convention of Human Rights, the agreement which the Strasbourg court oversees.

Lasting nature

The state of emergency declared in the wake of the November attacks in Paris was based on the view that France was facing a threat of a lasting nature, he said.

The November attacks showed there was a real danger to the democratic way of life. The question was how to reconcile the issue of national security with that of human rights. Emergency regimes created serious dangers for democracies and it was important that they were not allowed weaken, or destroy democracy. The dangers included the regular use of such powers leading to their being taken for granted.

Where rights were set aside the emergency rules should be subjected to a strict test of proportionality, he said.

Up to 2015 there had been eight cases of derogations from the convention, and during 2015 there were two, France, and Ukraine. In the latter case it was only for the Donbass region. The Ukrainian derogation was very specific and it was very encouraging to see the effort and care that went into it, he said.

The number killed in Turkey was greater than the number killed in France and it was interesting that Turkey had not sought a derogation from the convention. Perhaps the Turkish authorities did not want to signal a state of public alarm, said Mr O’Boyle.

The Egyptian ambassador to Ireland, Soha Gendi, asked from the floor about the issue of refugees and returning fighters, and the convention. Mr O’Boyle said he believed these issues could be dealt with by ordinary law.

In response to Mr Justice John Hedigan, who chaired the meeting, Mr O’Boyle said the campaign of Donald Trump in the US “frightens the wits out of me”. The lecture was organised by the Law Society’s Human Rights Committee and the Department of Foreign Affairs and Trade.