OSCE/ODIHR expert meeting in Warsaw examines impact of states of conflict or emergency on fair trial rights

More than 30 academics, legal professionals and representatives of civil society and international organizations explored the implications of states of conflict or emergency on fair trial rights at a meeting organized by the OSCE Office for Democratic Institutions and Human Rights (ODIHR) in Warsaw on 27 and 28 October 2016.

Participants reaffirmed that rule of law principles and fundamental human rights obligations must be upheld during states of conflict or emergency because it is precisely during these stressful times when they matter the most. States of conflict or emergency resulting in derogation from human rights obligations were discussed, including examples from a number of OSCE participating States.

Temporary derogations from certain human rights obligations, necessary and proportionate to the threat of the situation, must not be discriminatory and are only justified if they do not clash with other obligations under international law. The overall right to a fair trial should not be subject to limitation because it is the vehicle through which absolute rights, such as the right to life and freedom from torture, are protected and ensured.

Independent judicial review of any exceptional powers adopted by political institutions is paramount, participants stressed.

“When the protection of fundamental rights is at stake measures that seek either to exclude intervention by or access to an independent judiciary can never be acceptable,” said Aisling Reidy, Senior Legal Advisor with Human Rights Watch. “States cannot invoke national security or a state of emergency as a blanket justification. Experience shows that the removal of judicial safeguards opens the door to abuse.”

The meeting also examined ways to improve the exchange of relevant information across the OSCE region, including through the notification mechanism which requires participating States to inform OSCE institutions if and when they declare a state of emergency and seek to derogate from specific human rights obligations.