The Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) is part of the domestic law of the Republic of Bulgaria, which takes precedence over those norms of domestic law that contradict it. It guarantees the protection of a certain set of rights – the right to life, the right to liberty and security, freedom of expression and choice of religion, etc. In case of violations of ECHR every person can look for protection before a specific international body – the European Court of Human Rights in Strasbourg.
The Convention provides for the possibility for States to relieve themselves of part of their obligations during war or other state of emergency that threatens the existence of the nation. In such situations, any State may take actions which release it from the fulfilment of its obligations under the Convention, but only to the extent that the situation so requires and provided that such actions are not incompatible with its other obligations under international law.
The following are not allowed:
– violations of the right to life, except in respect of deaths resulting from lawful acts of war;
– exemption from the prohibition of torture;
– breach of the prohibition of slavery and forced servitude;
– breach of the prohibition to be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed;
– breach of the requirement not to impose a heavier penalty than the one that was applicable at the time the criminal offence was committed;
– breach of the prohibition to be tried or punished twice for the same act.
Each State availing itself of the right to derogation is obliged to provide the Secretary General of the Council of Europe with full information on the actions taken and the causes thereof. It must also inform the Secretary General of the Council of Europe of the date of termination of such actions and of the resumption of full application of the provisions of the Convention.
Another international treaty that provides obligations for the Republic of Bulgaria under international law is the International Covenant on Civil and Political Rights. It provides for the possibility, in time of public emergency, for the States to take measures derogating from their obligations to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
In such cases, there is again a range of fundamental rights that cannot be violated, such as the right to life, the prohibition of torture and slavery, the prohibition of conviction for an act that was not declared a crime at the time of its commission, etc. There is a procedure in place for notification to other States, through the intermediary of the Secretary-General of the United Nations.
The Constitution of the Republic of Bulgaria states that the fundamental rights of citizens are inalienable. It provides for the possibility of restricting certain civil rights upon declaration war, martial law or other state of emergency by law.
The right to life, the prohibition of torture, the right of the accused to have access to court, the presumption of innocence, and the right to privacy cannot be restricted in any way. The right of citizens not to be monitored, photographed, filmed, recorded or subjected to other similar activities without their knowledge or despite their explicit disagreement may be restricted in the cases provided for by law. Freedom of conscience, freedom of thought, and choice of religion and religious or atheistic views cannot be restricted, but at the same time freedom of conscience and religion cannot be directed against national security, public order, public health and morals or against the rights and freedoms of other citizens.
The Constitution does not put forward guarantees that the restriction of citizens’ rights will conform to the specific reasons that led to the state of emergency and that non-related rights will not be restricted.
At present, no derogations from the Convention for the Protection of Human Rights and Fundamental Freedoms have been made and there are no grounds for restricting all rights protected by it, since the restriction of all rights guaranteed by the Convention is not related to the restriction of coronavirus infection.
Should the entire Convention or certain provisions of the Convention be derogated, the persons affected by a violation cannot be deprived of their right to file a complaint with the European Court of Human Rights. Even if the complaint alleges a violation of rights that were restricted by the State during the state of emergency, this should not automatically render the complaint inadmissible.
National authorities have a margin of appreciation as to whether a state of emergency is necessary and what obligations and to what extent might be derogated in order to handle a problem. However, this right is not unlimited.
The European Court of Human Rights should consider the complaints filed and assess whether, in each individual case, the values whose protection lead to the derogation are being endangered and whether the measures taken are necessary to maintain those values and are proportionate. The purpose of derogation should be to overcome the crisis and the measures taken by the State must be proportionate in view of the threat.
The rights that are affected by the derogation, the circumstances that led to the derogation, and the duration of the state of emergency should also be assessed. The State must prove that the existing legislation before the crisis and the normal procedures for maintaining the legal order were not sufficient. The measures taken need to be proportionate to the threat and not more burdensome and not more restrictive than necessary. It is also necessary to take into account the effect of individual measures over time and whether or not the need for some of them has been eliminated.
The effective protection of the rights guaranteed by the Convention requires that derogations should be minimized.
Before filing complaints to the European Court of Human Rights, local remedies should be exhausted first.
Consideration should also be given to the measures taken by the European Court of Human Rights to prevent the spread of the coronavirus infection. The Registry of the Court announced the suspension of the 6-month time limit for bringing new complaints. This clause is temporarily suspended for a period of one month starting from 16 March 2020.