Autore:
Palma, Antonio J. Titolo:
L'ART. 15 DELLA CEDU E LA REGOLA DEL SILENZIO: SESSANT'ANNI DI (CARENTE) APPLICAZIONE DELLO STATO DI ECCEZIONEPeriodico:
Ordine internazionale e diritti umaniAnno:
2014 - Fascicolo:
3 - Pagina iniziale:
464 - Pagina finale:
487The essay deals with the problem of the state of emergency, as regulated in art. 15 of
the European Convention on human rights (hereinafter also “ECHR”).
In particular, it shows the development of this topic in the evolution of the main
reports of the European Commission of human rights and of the main judgments of the
European Court of human rights, analyzing not only several cases in which the provision
has been applied, but also the main principles according to which it allows States to
suspend the protection of some fundamental rights, included in the Convention, in order
to face and overcome a situation of constitutional crisis.
After a brief introduction concerning the historical evolution of the topic of the state
of exception, from its original dimension, exclusively linked to domestic constitutional law,
to its current discipline provided by the “derogatory clauses of human rights” at an
international level, the essay develops some reflections about the notion of public
emergency, defined in article 15 ECHR, and the main principles governing the power of
“suspension of guarantees” regulated therein, such as the principle of proportionality of the
derogation, the principle of the consistency of the derogation itself with other obligations
under international law, the principle of public and official proclamation of the state of
emergency, the principle of non-discrimination and the principle of non-derogability of
some fundamental human rights.
Then, after developing some reflections concerning reservations to article 15 ECHR
and the so-called “margin of appreciation doctrine”, according to which the State enacting
the derogation enjoys a double discretionary power both in the assessment of the
emergency and in the selection of the consequent extraordinary measures, this essay will
provide some considerations upon the relationships between art. 15 and the Italian
domestic system of law.
Finally, several reflections will be provided about recent developments related to
article 15, especially with reference to the proliferation of de facto states of emergency,
enacted by States without resorting to the mechanism of suspension of guarantees defined
by the international provision here under discussion
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SICI: 2284-3531(2014)3<464:L1DCEL>2.0.ZU;2-Y
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