Reinsalu: Rights guaranteed by the ECHR can be restricted in an emergency

Estonia has informed the Council of Europe it has activated Article 15 of the European Convention on Human Rights (ECHR), which provides an opportunity to partly restrict freedoms, including religious freedoms and freedom of expression, to deal with the coronavirus crisis.

Armenia, Moldova, Georgia, Latvia and Romania have also notified the Council of Europe. The countries did not act as a group. Estonian notified the council on March 20 and the move was unexpected.

Article 15 of the ECHR states that, in a time of war or other public emergency threatening the life of the nation, any contracting party to the convention may take measures derogating from its obligations under the convention to the extent strictly required by the exigencies of the situation. However, this can happen only provided measures are not inconsistent with the state's other obligations under international law.

Minister of Foreign Affairs Urmas Reinsalu (Isamaa) said in an interview with ERR's Indrek Kiisler on Saturday that the state may need to take measures to limit rights guaranteed by the convention to resolve the coronavirus crisis during the emergency situation which is set to last until May 1.

Reinsalu said lawyers for the Ministry of Foreign Affairs believe it is right to inform the council that measures may be taken to limit the rights guaranteed by the convention.

Reinsalu added: "The fact is, we have already taken these steps during the emergency situation. In the opinion of the Republic of Estonia, these steps are legitimate, but the final assessment will be made by the European Court of Human Rights. For example, we have limited freedom of assembly, because we are currently prohibited from assembling. This is a restriction within the meaning of the convention on human rights, and it is therefore logical and appropriate for the Council of Europe to be informed."  

Reinsalu said this was a legal and not a political action, adding he did not sign the letter and neither did Prime Minister Jüri Ratas (Center), but it was carried out by officials.

He also said Estonia did not act as part of a bloc of countries. 

"We have not withdrawn from the ECHR with this letter, but it is clear that certain rights are restricted in Estonia today. But the reason for the restrictions is legitimate," he said.

On March 17, Estonia declared an emergency situation and banned the right of people to gather in public, which includes meeting for religious worship. All concerts and performances were banned, schools were closed and moved online. Border checks were reintroduced. As of March 25, people can only meet or move about in groups of two, in public (families excepted).

Ministry: Estonia is not suspending the rights guaranteed by the Convention

The Ministry of Foreign Affairs said in a statement the Council of Europe will be informed if new restrictions are introduced during the coronavirus crisis. It said Estonia will immediately inform the council and continue the fulfilment of international human rights, including the ECHR.

The filing of the notice the council does not mean that Estonia has stopped ensuring the rights which are laid out in the convention.

The case-law of the European Court of Human Rights states countries must notify the Secretary General of the Council of Europe of the measures imposed quickly enough in order for the exception made to be applicable in court cases later.

The conformity of the restrictions imposed in Estonia with the ECHR will be decided about by the European Court of Human Rights after the completion of domestic legal procedures.

Relying on Article 15 of the convention does not absolve the Estonian state from responsibility if the state has taken excessive and disproportionate measures.

The measures taken in an emergency situation must be justified and proportionate.

Estonia will adhere to valid laws and ensure the protection of the fundamental rights of individuals also in the emergency situation, the ministry said.

Chancellor of Justice: this does not change the validity of the Estonian Constitution

Chancellor of Justice Ülle Madise said activating Article 15 does not mean the Estonian constitution is in jeopardy.

"I can assure you that as long as independent constitutional scrutiny is upheld, no constitutional violation will be allowed," Madise said in a post on social media.

"The suspension of the full implementation of the European Convention for the Protection of Human Rights and Fundamental Freedoms does not suspend or modify the validity of the Constitution of the Republic of Estonia. Moreover: the state of emergency imposed to combat the epidemic is not constitutionally comparable to a state of emergency or a state of war."

MEP Paet: Not necessary to invoke Article 15

Member of the European Parliament Urmas Paet (Reform) said there is no need for Estonia to notify the Council of Europe about the need to take disproportionate measures, as a totally separate provision regulates the freedom of assembly in the human rights convention. 

Paet said when a member state informs the secretary general of the Council of Europe about invoking that article, it will be possible for the state to restrict the freedom of religion, freedom of speech or other freedoms. 

"Such behavior is surprising, as Estonia effectively has no reason to notify about the need for the introduction of such disproportionate measures. All the more so as ensuring fundamental rights is particularly important in the current health care themed crisis," Paet said.

"Furthermore, the overwhelming majority of other democratic countries of the Council of Europe have not sent such notice or expressed the wish to do it, although coronavirus is being tackled everywhere."

The MEP said that reasons Reinsalu laid out in an interview justifying the move are "neither valid, nor substantively" answer the question.

"Invoking Article 15 is necessary only when a member state plans to take steps which are not described in the convention. Hence, the move by the Estonian government has caused a situation causing concern, as it sets a dangerous precedent which could be used as if to justify restricting fundamental rights," he said, calling on the foreign minister to withdraw the notice.

Article 15

The European Convention on Human Rights can be viewed in full here; article 15 is below:

  1. 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 [the] 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.
  2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (§ 1) and 7 shall be made under this provision.
  3. 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 which it has taken and the reasons therefore. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed."


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Editor: Helen Wright

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