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France declares its intention to derogate from the European Convention on Human Rights

Translated Monday 14 December 2015, by Adrian Jordan

With just a simple communiqué, France informed the Secretary General of the Council of Europe, Thorbjorn Jagland, of its intention to no longer respect the European Convention on Human Rights (ECHR) during the state of emergency.

It was to be expected. The decision banning rallies around the COP21 this weekend is already a violation of the freedom of association under Article 11 of the ECHR.

Nonetheless, the format is surprising. With a simple communiqué, the country of the Rights of Man declares it will no longer respect the said convention. “Several measures invoked within the framework of the state of emergency, declared following the large-scale terrorist attacks perpetrated in Paris, are likely to necessitate derogation from certain rights guaranteed under the European Convention on Human Rights”, explained the communiqué.

However the convention remains in force in France. Above all, derogation from certain rights would be unacceptable, warned the Council of Europe - notably the right to life and prohibition against torture or inhuman or degrading punishment or treatment. Equally, freedom from slavery and the principle defined in Article 7 – no punishment without law – cannot be derogated from. The form for this notification of derogation is set out in Article 15 of the ECHR: “In time of war or other public emergency threatening the life of the nation”, a signatory state “may take measures derogating from its obligations under [the] Convention” by informing the Secretary General of the Council of Europe.

The Human Rights from which France may derogate in this situation are the right to a fair trial (Art 6), respect for private life (Art 8), freedom of expression (Art 10) and freedom of assembly and association (Art 11). The European Court of Human Rights (ECtHR), guardian of the convention, can make a declaration on the validity of the derogation, should it be called upon to do so, in regard to possible allegations of abuse of fundamental rights by France.

Interior minister, Bernard Cazeneuve, stressed on Thursday that the state of emergency was "not abandoning the rule of law because the rule of law so provides". “We must remain very attentive to the manner in which the measures, under the state of emergency, are put into operation”, the minister also stressed.

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