List of declarations made with respect to treaty No. 046

Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto

Status as of: 1/7/2015

 

    Austria :


Reservation made at the time of signature, on 16 September 1963, and renewed at the time of deposit of the instrument of ratification, on 18 September 1969 - Or. Fr.

Protocol No. 4 is signed with the reservation that Article 3 shall not apply to the provisions of the Law of 3 April 1919, StGBl. No. 209 concerning the banishment of the House of Habsbourg-Lorraine and the confiscation of their property, as set out in the Act of 30 October 1919, StGBl. No. 501, in the Constitutional Law of 30 July 1925, BGBl. No. 292, in the Federal Constitutional Law of 26 January 1928, BGBl. No. 30, and taking account of the Federal Constitutional Law of 4 July 1963, BGBl. No. 172.
Period covered: 18/9/1969 -      
The preceding statement concerns Article(s) : 3

 

    Azerbaijan :


Declaration contained in the instrument of ratification deposited on 15 April 2002 - Or. Engl.

The Republic of Azerbaijan declares that it is unable to guarantee the application of the provisions of the Protocol in the territories occupied by the Republic of Armenia until these territories are liberated from that occupation (the schematic map of the occupied territories of the Republic of Azerbaijan is enclosed).
Period covered: 15/4/2002 -      
The preceding statement concerns Article(s) : -

 

    Cyprus :


Declaration made at the time of signature, on 6 October 1988, and confirmed at the time of deposit of the instrument of ratification, on 3 October 1989 - Or. Engl.

The Government of the Republic of Cyprus adopts the position that, according to a proper interpretation of the provisions of Article 4 of the Protocol, they are not applicable to aliens unlawfully in the Republic of Cyprus as a result of the situation created by the continuing invasion and military occupation of part of the territory of the Republic of Cyprus by Turkey.
Period covered: 3/10/1989 -      
The preceding statement concerns Article(s) : 4

 

    France :


Declaration contained in the instrument of ratification, deposited on 3 May 1974 - Or. Fr.

The Protocol shall apply to the whole territory of the Republic, having due regard, where the overseas territories are concerned, to local requirements, as mentioned in Article 63 [Article 56 since the entry into force of the Protocol No. 11] of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Period covered: 3/5/1974 -      
The preceding statement concerns Article(s) : 5

 

    Ireland :


Declaration made at the time of signature, on 16 September 1963 - Or. Engl.

The reference to extradition contained in paragraph 21 of the Report of the Committee of Experts on this Protocol and concerning paragraph 1 of Article 3 of the Protocol includes also laws providing for the execution in the territory of one Contracting party of warrants of arrest issued by the authorities of another Contracting Party.
Period covered: 29/10/1968 -      
The preceding statement concerns Article(s) : 3

 

    Monaco :


Reservation contained in the instrument of ratification deposited on 30 November 2005 - Or. Fr.

The Principality of Monaco declares that the provisions of Article 2, paragraph 1, of Protocol No. 4 apply without prejudice to the provisions of Article 22, sub-paragraph 1, of Order No. 3153 of 19 March 1964 concerning the conditions of entry and stay of foreigners in the Principality, and of Article 12 of the Order on General Police of 6 June 1867.

Commentary

Article 22, sub-paragraph 1, of the Order No. 3153 of 19 March 1964 establishes : « The State Minister can, by measure of police or by issuing an expulsion warrant, enjoin any foreigner to leave immediately the Monegasque territory or to forbid him/her to enter it".

Article 12 of the Order on General Police of 6 June 1867 establishes : «Any foreigner disturbing or who may disturb, by his/her presence, public or private safety or peace, will be directed outside the Principality's territory by order of the Governor General [State Minister]. He/she will not be allowed to return without a special authorisation from the Governor General [State Minister]. In case of infringement, he/she will be sanctioned with six days to one month in prison.

Period covered: 30/11/2005 -      
The preceding statement concerns Article(s) : 2

 

    Netherlands :


Declaration contained in the instrument of ratification, deposited on 23 June 1982 - Or. Fr.

We approve herewith, for the Kingdom in Europe and the Netherlands Antilles, the said Protocol.
Period covered: 23/6/1982 -         
The preceding statement concerns Article(s) : 5


Declaration contained in a letter from the Minister of Foreign Affairs, dated 9 June 1982, handed to the Secretary General at the time of deposit of the instrument of ratification, on 23 June 1982 - Or. Fr.

Since, following ratification by the Kingdom of the Netherlands, Protocol No. 4 to the Convention on Human Rights and Fundamental Freedoms, securing certain rights and freedoms other than those already specified in the Convention and the first Protocol, applies to the Netherlands and to the Netherlands Antilles, the Netherlands and the Netherlands Antilles are regarded as separate territories for the application of Articles 2 and 3 of the Protocol, in accordance with Article 5, paragraph 4. Under Article 3, no one may be expelled from or deprived of the right to enter the territory of the State of which he is a national. There is, however, only one nationality (Netherlands) for the whole of the Kingdom. Accordingly, nationality cannot be used as a criterion in making a distinction between the "citizens" of the Netherlands and those of the Netherlands Antilles, a distinction which is unavoidable since Article 3 applies separately to each of the parts of the Kingdom.

This being so, the Netherlands reserve the right to make a distinction in law, for purpose of the application of Article 3 of the Protocol, between Netherlands nationals residing in the Netherlands and Netherlands nationals residing in the Netherlands Antilles.

[Note by the Secretariat: See also the declaration contained in a Note verbale from the Permanent Representation of the Netherlands, dated 27 September 2010, registered at the Secretariat General on 28 September 2010 - Or. Engl.]
Period covered: 23/6/1982 -         
The preceding statement concerns Article(s) : 3


Declaration contained in a letter from the Permanent Representative of the Netherlands, dated 24 December 1985, registered at the Secretariat General on 3 January 1986 - Or. Engl.

The island of Aruba, which is at present still part of the Netherlands Antilles, will obtain internal autonomy as a country within the Kingdom of the Netherlands as of 1 January 1986. Consequently the Kingdom will from then on no longer consist of two countries, namely the Netherlands (the Kingdom in Europe) and the Netherlands Antilles (situated in the Caribbean region), but will consist of three countries, namely the said two countries and the country Aruba.

As the changes being made on 1 January 1986 concern a shift only in the internal constitutional relations within the Kingdom of the Netherlands, and as the Kingdom as such will remain the subject under international law with which treaties are concluded, the said changes will have no consequences in international law regarding to treaties concluded by the Kingdom which already apply to the Netherlands Antilles, including Aruba. These treaties will remain in force for Aruba in its new capacity of country within the Kingdom. Therefore these treaties will as of 1 January 1986, as concerns the Kingdom of the Netherlands, apply to the Netherlands Antilles (without Aruba) and Aruba.

Consequently the treaties referred to in the annex, to which the Kingdom of the Netherlands is a Party and which apply to the Netherlands Antilles, will as of 1 January 1986 as concerns the Kingdom of the Netherlands apply to the Netherlands Antilles and Aruba.
List of Conventions referred to by the Declaration
......
46. Protocol No. 4 ot the Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto.
Period covered: 1/1/1986 -         
The preceding statement concerns Article(s) : 5


Declaration contained in a Note verbale from the Permanent Representation of the Netherlands, dated 27 September 2010, registered at the Secretariat General on 28 September 2010 – Or. Engl.

In reference to the declaration made by the Kingdom of the Netherlands on ratifying Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms on 23 June 1982, the Kingdom of the Netherlands wishes to make the following declaration :

The Kingdom of the Netherlands, consisting as per 10 October 2010 of the European part of the Netherlands, the Caribbean part of the Netherlands (the islands of Bonaire, Sint Eustatius and Saba), Aruba, Curaçao and Sint Maarten, regards theses parts as separate territories for the applications of Articles 2 and 3 of the Protocol.
Period covered: 1/10/2010 -      
The preceding statement concerns Article(s) : 3

 

    Spain :


Declaration contained in the instrument of ratification deposited on 16 September 2009 - Or. Spa.

If this Protocol were to be extended by the United Kingdom to Gibraltar, Spain would like to make the following declaration:

1. Gibraltar is a non-autonomous territory whose international relations come under the responsibility of the United Kingdom and which is subject to a decolonisation process in accordance with the relevant decisions and resolutions of the General Assembly of the United Nations.

2. The authorities of Gibraltar have a local character and exercise exclusively internal competences which have their origin and their foundation in a distribution and attribution of competences performed by the United Kingdom in compliance with its internal legislation, in its capacity as sovereign State on which the mentioned non-autonomous territory depends.

3. As a result, the eventual participation of the Gibraltarian authorities in the application of this Protocol will be understood as carried out exclusively as part of the internal competences of Gibraltar and cannot be considered to modify in any way what was established in the two previous paragraphs.
Period covered: 16/9/2009 -      
The preceding statement concerns Article(s) : 5

 

    Ukraine :


Derogation contained in a Note verbale from the Permanent Representation of Ukraine, dated 5 June 2015, registered at the Secretariat General on 9 June 2015 - Or. Engl.

On the 21st May 2015, the Verkhovna Rada of Ukraine approved the Resolution №462-VIII by which it adopted the Declaration “On Derogation from Certain Obligations under the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms” which states as follows.

“I
Derogation from Obligations


1. Due to the annexation and temporary occupation by the Russian Federation of the integral part of Ukraine – the Autonomous Republic of Crimea and the city of Sevastopol – as a result of armed aggression against Ukraine, the Russian Federation is fully responsible for respect for human rights and implementation of the relevant treaties in annexed and temporary occupied territory of Ukraine.

2. In view of armed aggression of the Russian Federation against Ukraine involving both regular Armed Forces of the Russian Federation and illegal armed groups guided, controlled and financed by the Russian Federation, an anti-terrorist operation is being conducted by the units of the Security Service of Ukraine, the Ministry of Internal Affairs of Ukraine and the Armed Forces of Ukraine since April 2014, on the territory of certain areas of the Donetsk and Luhansk oblasts of Ukraine. The anti-terrorist operation is a part of the inalienable right of Ukraine to individual self-defense against aggression according to Article 51 of the UN Charter. The Russian Federation, which actually occupies and exercises control over certain areas of the Donetsk and Luhansk oblasts, is fully responsible for respect for and protection of human rights in these territories under international humanitarian law and international human rights law.

3. Ongoing armed aggression of the Russian Federation against Ukraine, together with war crimes and crimes against humanity committed both by regular Armed Forces of the Russian Federation and by the illegal armed groups guided, controlled and financed by the Russian Federation, constitutes a public emergency threatening the life of the nation in the sense of Article 4, paragraph 1, of the International Covenant on Civil and Political Rights, and Article 15, paragraph 1, of the Convention for the Protection of Human Rights and Fundamental Freedoms.

4. In order to ensure the vital interests of the society and the State in response to the armed aggression of the Russian Federation, the Verkhovna Rada of Ukraine, the Cabinet of Minister of Ukraine and other authorities have to adopt legal acts, which constitute the derogation from certain obligations of Ukraine under the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms.

5. On 12 August 2014, the Verkhovna Rada of Ukraine adopted the Law of Ukraine “On Amendments to the Law of Ukraine “On Combating Terrorism” regarding the preventive detention of persons, involved in terrorist activities in the anti-terrorist operation area for a period exceeding 72 hours”. According to the Law, in the area in which a long-term anti-terrorist operation is being conducted, persons involved in terrorist activities may be detained, as an exception, for a period exceeding 72 hours but not exceeding 30 days, with the consent of a prosecutor and without a decision of the court. The application of the provisions of this Law gives reasons for the necessity to derogate from certain obligations of Ukraine under paragraph 3 of Article 2 and Articles 9 and 14 of the International Covenant on Civil and Political Rights and Articles 5, 6 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms. At the same time, the application of this Law exclusively while the anti-terrorist operation is being conducted in exceptional cases for the purpose of the prevention of grave crimes is the limit required by the acuteness of danger caused by the armed aggression of the Russian Federation and actions of the terrorist groups backed by the Russian Federation.

6. On 12 August 2014, the Verkhovna Rada of Ukraine adopted the Law of Ukraine “On Amendments to the Criminal Procedure Code of Ukraine regarding the special regime of pre-trial investigation under martial law, in state of emergency or in the anti-terrorist operation area”. According to the Law, a special regime of pre-trial investigation is introduced for the time during which the anti-terrorist operation is being conducted. In the framework of this regime, the powers of investigating judges, prescribed by the Criminal Procedure Code in force, are temporarily transferred to respective prosecutors, who obtain additional procedural rights. The special regime of pre-trial investigation is applied only in the area of the anti-terrorist operation, and under the condition of impossibility of the investigating judge to perform his duties prescribed by the Criminal Procedure Code in force. The application of the provisions of this law gives reasons for the necessity to derogate from certain obligations of Ukraine under paragraph 3 of Article 2 and Articles 9, 14 and 17 of the International Covenant on Civil and Political Rights and Articles 5, 6, 8 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms. However, the fact that courts do not actually function in certain areas of the Donetsk and Luhansk oblasts because of the armed aggression of the Russian Federation and actions of terrorist groups backed by the Russian Federation is the limit, which allows to transfer powers from investigating judges to prosecutors under condition of threat to the life of the nation.

7. On 12 August 2014, the Verkhovna Rada of Ukraine adopted the Law of Ukraine “On Administering Justice and Conducting Criminal Proceedings in Connection with the Anti-terrorist Operation”. According to the Law on the period of conduct of the anti-terrorist operation, the territorial jurisdiction of court cases amenable to the courts located in the anti-terrorist operation area and investigative jurisdiction on criminal offences, perpetrated in the anti-terrorist operation area, in case of impossibility to conduct pre-trial investigation, was changed. The application of the provisions of this law gives reasons for the necessity to derogate from certain obligations of Ukraine under Article 14 of the International Covenant on Civil and Political Rights, and Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. However, the fact that courts and pre-trial investigation bodies do not actually function in certain areas of the Donetsk and Luhansk oblasts caused by the armed aggression of the Russian Federation and actions of terrorist groups backed by the Russian Federation is the limit which allows to change the territorial jurisdiction of court cases and investigative jurisdiction on criminal offences under condition of threat to the life of the nation.

8. On 3 February 2015, the Verkhovna Rada of Ukraine adopted the Law of Ukraine “On Military and Civil Administrations”. In accordance with this Law, the military and civil administrations were established as temporary state bodies functioning in the Donetsk and Luhansk oblasts, within the Anti-Terrorist Centre of the Security Service of Ukraine, and were intended to provide for the operation of the Constitution and law of Ukraine, ensuring the security and normalization of the life-sustaining activity of the population, provision of the rule of law, participation in the prevention of sabotage and terrorist acts, and the prevention of the humanitarian disaster in the area of the anti-terrorist operation. The abovementioned Law grants powers to military and civil administrations, in particular, to set limits on remaining on the streets and in other public places within a period of 24 hours without specific documents; to temporarily restrict or prohibit the movement of vehicles and pedestrians on the streets, roads and terrain areas; to organize the checking of identification documents of individuals,; and, if necessary, the searching of personal belongings, vehicles, baggage and cargo, office premises and private dwellings of citizens, except the restrictions established by the Constitution of Ukraine. The application of the provisions of this law gives reasons for the necessity to derogate from certain obligations of Ukraine under Articles 9, 12 and 17 of the International Covenant on Civil and Political Rights, Articles 5 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and Article 2 of Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms. However, the anti-terrorist operation being conducted in order to prevent the threat of destruction of the nation because of the Russian Federation armed aggression is the limit, which allows to temporarily restrict freedom of movement and the right to private life.

9. Therefore, Ukraine exercises the right of derogation from its obligations established in Article 2, paragraph 3, and Articles 9, 12, 14 and 17 of the International Covenant on Civil and Political Rights, Articles 5, 6, 8 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, in certain areas of the Donetsk and Luhansk oblasts of Ukraine, which is determined by the Anti-Terrorist Centre of the Security Service of Ukraine in connection with the anti-terrorist operation, for the period until the complete cessation of the Russian Federation armed aggression, the restoration of constitutional order and orderliness in the occupied territory of Ukraine and until further notification to the Secretary-General of the United Nations and the Secretary General of the Council of Europe of the resumption of the application in full of the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms.

10. At the same time, without any prejudice to the application of the remaining provisions of the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms, and bearing in mind the continued existence of the dangerous situation, henceforth while the anti-terrorist operation is being conducted in response to the armed aggression of the Russian Federation, Ukraine reserves the right to take measures that may constitute grounds for derogations from its obligations under other Articles of the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms, on the basis of, and in the manner determined by, the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms and this Regulation. In such case, Ukraine will inform thereof the Secretary-General of the United Nations and the Secretary General of the Council of Europe in due course.

II
Information on the state of security in the Donetsk and Luhansk oblasts and changes to the territory covered by the derogation


Ukraine shall inform the Secretary-General of the United Nations and the Secretary General of the Council of Europe about the state of security in the Donetsk and Luhansk oblasts in due course, and on the change of the territory covered by the derogation of Ukraine from the obligations under the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms.”

The exact limits of certain areas of the Donetsk and Luhansk oblasts of Ukraine, covered by this derogation, will be communicated to the Secretary General of the Council of Europe at the later stage, once they are determined according to the legislation of Ukraine.

The Permanent Representation of Ukraine to the Council of Europe, pursuant to Article 15, paragraph 3, of the Convention, will inform the Secretary General of the Council of Europe about future developments and notify him when these emergency measures have ceased to operate and the provisions of the Convention are being fully implemented again.

List of annexes:

1.The Resolution of the Verkhovna Rada of Ukraine of 21 May 2015 №462-VIII «On derogation from certain obligations under the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms (English version). The Ukrainian version is available at this address: http://zakon4.rada.gov.ua/laws/show/462-19 ;

2. The Law of Ukraine of 12 August 2014, No. 1630-VII “On Amendments to the Law of Ukraine “On Combating Terrorism” regarding the preventive detention of persons, involved in terrorist activities in the anti-terrorist operation area for a period exceeding 72 hours” (English version). The Ukrainian version is available at this address: http://zakon4.rada.gov.ua/laws/show/1630-18 ;

3.The Law of Ukraine of 12 August 2014, No. 1631-VII “On Amendments to the Criminal Procedure Code of Ukraine regarding the special regime of pre-trial investigation under martial law, in state of emergency or in the anti-terrorist operation area” (English version) The Ukrainian version is available at this address: http://zakon4.rada.gov.ua/laws/show/1631-18 ;

4. The Law of Ukraine of 12 August 2014, No. 1632-VII “On Administering Justice and Conducting Criminal Proceedings in Connection with the Anti-terrorist Operation” (English version). The Ukrainian version is available at this address: http://zakon4.rada.gov.ua/laws/show/1632-18 ;

5. The Law of Ukraine of 3 February 2015, No. 141-VIII “On Military and Civil Administrations” (English version). The Ukrainian version is available at this address: http://zakon4.rada.gov.ua/laws/show/141-19 .
Period covered: 9/6/2015 -      
The preceding statement concerns Article(s) : 2

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