Evangelos Venizelos gives his own response to yesterday’s reference by Foreign Minister Giorgos Gerapetritis that he is “confused” regarding the issue of invoking Article 15 of the European Convention on Human Rights, which concerns derogation in case of “emergency.” According to Evangelos Venizelos, Giorgos Gerapetritis stated that the government “does not activate” Article 15 of the ECHR, meaning it does not want the country to be placed under a derogation regime from the ECHR. However, he co-signed and supported the official government statement that measures are being taken “in violation of the obligations provided for in the Convention.”
He noted that essentially the country “ignores” the ECHR, as in any case Article 3 of the Convention applies, stating that “individual applications to the ECtHR for mistreatment of migrants are judged based on Article 3 of the ECHR (prohibition of inhuman or degrading treatment) from which no derogation is permitted even when Article 15 is applied.”
Evangelos Venizelos’s statement
In response to Foreign Minister Giorgos Gerapetritis’s references to his yesterday’s post, Evangelos Venizelos made the following comment:
I referred yesterday to the fact that the government, in order to justify the amendment it submitted regarding the treatment of those entering the country “illegally by any watercraft coming from North Africa,” invokes Article 15 of the European Convention on Human Rights (ECHR). It claims, according to its own formulation, that “the conditions of Article 15 of the European Convention on Human Rights are met, according to which contracting states, in case of public danger threatening the life of the nation, may take measures even in violation of the obligations provided for in the Convention, to the extent strictly required by the situation.”
The Foreign Minister and dear colleague in the field of legal science Giorgos Gerapetritis, always with politeness, found that I have fallen into “confusion” because the government “does not activate” Article 15 of the ECHR, meaning it does not want the country to be placed under a derogation regime from the ECHR. However, he co-signed and supported the official government statement that measures are being taken “in violation of the obligations provided for in the Convention.”
So is Article 15 being invoked and the country officially declaring that it derogates from the ECHR or is it simply violating it and saying so “boldly”? When measures are taken “in violation of the obligations [of the state] provided for in the Convention,” these measures are also taken “in violation of the obligations [of the state] provided for in the Constitution.” The fundamental rights protected under the ECHR are protected in their entirety by the Constitution as it interpretively develops its normative content. Greek courts review not only the unconstitutionality of laws but also their incompatibility with the ECHR and EU law.
Furthermore, when the Greek government declares that the conditions for applying Article 15 of the ECHR are met, it must be aware that it is declaring that the conditions for applying Article 48 of the Constitution are met (“public danger threatening the life of the nation” in the case of Article 15 ECHR, “immediate threat to national security” in the case of Article 48 Constitution). Obviously it does not activate Article 48 – heaven forbid! – but plays with extreme concepts in serious matters.
The paradox is that the government’s invocation of Article 15 ECHR is practically useless since individual applications to the ECtHR for mistreatment of migrants are judged based on Article 3 of the ECHR (prohibition of inhuman or degrading treatment) from which no derogation is permitted even when Article 15 is applied!
I therefore try to compose the complete government argument:
“A. We take very harsh temporary measures to stop the flow from North Africa, so harsh that we derogate from the ECHR because, as Article 15 provides, there is a ‘public danger threatening the life of the nation.’
B. However, we do not officially activate Article 15, which anyway does not allow derogation from Article 3 ECHR based on which individual applications to the Strasbourg Court are made. We simply ignore the ECHR.
C. Furthermore, we emphasize that obviously the fundamental rights guaranteed by the Constitution apply in full, which interpretively include, according to jurisprudence, all the protective content of the ECHR under the control of national courts and with the path of individual application to the European Court of Human Rights (ECtHR) open.
D. We never mentioned Article 48 Constitution, which can be activated when there is an ‘immediate threat to national security,’ because when we say there is a ‘public danger threatening the life of the nation’ (Article 15 ECHR) and thus there can be derogations from the ECHR, we do not mean that this ‘public danger threatening the life of the nation’ constitutes an ‘immediate threat to national security’ (Article 48 Constitution).”
In this sequence I confess that I find no logical and legal coherence. I simply find a deliberately harsh rhetoric that for purely communicative reasons devalues the European Convention on Human Rights and when it realizes that it thus devalues the Constitution and that all this is practically impossible to escape judicial control, national and international, it contradicts itself by saying that the Constitution applies strictly but not the ECHR!
Greece went through the decade of economic crisis without invoking Article 15 ECHR, undergoing constant judicial control from the Council of State and other supreme courts, the ECJ and the ECtHR. It went through the pandemic without invoking Article 15 ECHR, while other countries did invoke it. It faced many major pressures from migration flows since 2010 both at Evros and on the islands without invoking Article 15 and the need for derogation or violation of the ECHR and is constantly under strict control of the ECtHR. Why did it now have to provoke this discussion not only here among us but also with international institutions?
