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Derogations (Necessity: Measure taken must be ‘strictly required by the…

- - - - European System:
        The Greek case, Comm. Report of 5th November 1969, YB ECHR Vol.12, Commission: characteristics of a public emergency :
        Actual or imminent (at the time of the derogation)
        Its effect must involve the whole nation
        The continuance of the organised life of the nation must be threatened
        The crisis or danger must be exceptional, in that the normal measures or restrictions, permitted by the Convention for the maintenance of public safety are plainly inadequate
        
        The Greek case, Comm. Report of 5th November 1969, YB ECHR Vol.12:
        Commission makes reference to the ‘margin of appreciation’.
        Commission majority : there is no ‘public emergency threatening the life of the nation’; social disorder could be handled by the police; the outcome of elections was not forgone conclusion
        Commission minority: there was an emergency, should give greater weight to states assessment
        Case did not go to the Court as Greece left Council of Europe
      - The Greek case, Comm. Report of 5th November 1969, YB ECHR Vol.12:
        Commission makes reference to the ‘margin of appreciation’.
        Commission majority : there is no ‘public emergency threatening the life of the nation’; social disorder could be handled by the police; the outcome of elections was not forgone conclusion
        Commission minority: there was an emergency, should give greater weight to states assessment
        Case did not go to the Court as Greece left Council of Europe
      - Lord Bingham’s leading opinion: In Ireland, Brannigan, Aksoy and Marshall states had actually ‘experienced widespread loss of life caused by an armed body dedicated to destroying the territorial integrity of the state.’
        But not clearly the case in Ireland v UK.
        Relative institutional competence: pre-eminently political judgment.
        But section incompatible on other grounds (see Slide 37).
        
        Lord Hoffmann’s dissent: ‘I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation’.
        No threat to ‘institutions of government or our existence as a civil community’.