Impact of COVID-19 on Human Rights

ანოტაცია

On March 11, 2020, the World Health Organization declared a coronavirus pandemic. The economy stopped, the lives of billions of people changed. As a result of pandemic, a number of constitutional rights have been restricted. Restrictions imposed during the state of emergency affected public life and threatened the implementation of international human rights instruments at the national level. Number of States declared state of emergency to tackle with pandemic. Herewith, a few states refrained from doing so. The foregoing article reviews the impact of COVID-19 on the rights and freedoms protected by the European Convention on Human Rights, relevant state practice of derogating from obligations under the Convention, statistical data and the supervisory role of the European Court of Human Rights (ECtHR) against abuse of the derogation mechanism.

Keywords: Human Rights, Defence of Freedom, European Court.

Introduction

Since the end of 2019, the new coronavirus COVID-19 has spread globally. On January 30, 2020, the Secretary General of the World Health Organization announced the outbreak of the new coronavirus. On March 11, 2020, the World Health Organization declared a coronavirus pandemic. The economy stopped, the lives of billions of people changed. "We have no experience of a pandemic caused by the coronavirus, and there has not been a pandemic that could be controlled" - said the head of the World Health Organization, Tedros Adhanom Ghebreyesus.

The created situation led to the need to impose restrictions in various areas. As a result of the pandemic, a number of human rights guaranteed by the European Convention on Human Rights (European Convention) have been restricted.

As a highly infectious disease, COVID-19 required and requires special measures to stop the spread of the virus. Across the Council of Europe, ten states (Georgia, Estonia, Armenia, Romania, Moldova, Latvia, North Macedonia, Albania, Serbia and San Marino) declared a state of emergency and, in accordance with Article 15, made a decision to derogate from their obligations under the Convention (derogation). Restrictions imposed during the state of emergency affected public life and threatened the implementation of international human rights instruments at the national level.

Declaring a state of emergency and derogating from the rights guaranteed by the Convention: essential requirements established by the European Convention and case law

According to Article 15 of the European Convention, a High Contracting Party may derogate from its obligations under the Convention if it meets three conditions. First, derogation is permitted only "in time of war or other public emergency threatening the life of the nation." Second, deviation from obligations is allowed only "to the extent strictly required by the exigencies of the situation". Third, the derogation must be consistent with the State's "other obligations under international law."

It is important to note that according to Article 15, paragraph 2 of the Convention, it is not allowed to derogate from some of the rights. The Convention does not allow for derogations from Articles 2 (right to life), 3 (prohibition of torture), 4 (prohibition of slavery and forced labour) and 7 (no punishment without law). In addition, each High Contracting Party making a derogation shall inform the Secretary General of the Council of Europe of the measures taken.

The European Court of Human Rights in the case Lawless v. United Kingdom defined "war or other emergency situation threatening the existence of the nation" as "a particular crisis or other emergency situation affecting the population and constituting a threat to the community of which the State is composed.”[1] A state of emergency must be based on an immediate and real danger.[2] However, the declaration of a state of emergency is legitimate when the usual restrictions provided for by the Convention are considered insufficient.[3] The Convention does not establish the terms and duration of declaring a state of emergency. However, the Court's case law makes it clear that for the purposes of Article 15, a state of emergency can be extended for many years.

It is the job of the national government to decide the existence of a state of emergency, the nature and extent of the deviation. In this regard, Article 15 provides a wide scope of action.[4] However, states do not have unlimited powers. To determine whether the authorities have crossed the red line, the court considers the following factors:

• Whether it was possible to deal with the danger caused by the emergency situation under the applicable law, bypassing the derogation provided for in Article 15;[5]


• Whether the measures have been used for the purposes for which they were adopted;[6]


• Whether the measures taken were proportionate and whether there were other alternative, lighter means of achieving the intended goal;[7]


• What is the extent of the derogation from the obligations of the Convention;[8]


• Whether the need for derogation was subject to periodic review;[9]


• Whether there was a possibility of judicial control over such measures.[10]

As the court explained, "a state of emergency that threatens the nation" should not become an excuse for arbitrary interference with rights. Even during a state of emergency, any measure must serve to protect democratic order and values, human rights and freedoms.[11]

The cases considered by the court regarding the state of emergency so far were related to terrorist activities or armed conflict. Although the Court has not considered health-related issues in the context of the state of emergency, the aforementioned rules established by the Court's case law are unconditionally relevant to restrictions caused by the pandemic.

The supervisory role of the European Court of Human Rights in case of abuse of the state of emergency by the authorities

The decision of the authorities to derogate from the obligations imposed by the Convention must meet the principle of good faith in order to exclude the danger of arbitrariness and abuse of the state of emergency. However, before the implementation of the adopted measures, the European Court cannot assess the legality of the implemented measure. The necessity and proportionality of the restrictive measures are assessed only after the relevant complaint reaches the European Court. This leads to long delays in responding to abuses of these measures.

One of the important safeguards established by Article 15 is the principle of notification. In particular, according to paragraph 3 of Article 15 of the Convention “Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefore. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.”

It should be noted that the convention does not provide for the deadline and form of notification. The Court's case law does not contain an explicit requirement that such notice be given "immediately, without any delay". The obligation provided for in paragraph 3 of Article 15 is actually translated into the registration of the notification. Accordingly, the essential assessment of the restrictions during the state of emergency cannot take place until the applicant appeals it before the European Court. This indicates the formal nature of the state of emergency notifications.

Based on the above, there is a need to introduce new means of non-judicial supervision of the state of emergency or to strengthen the existing means. 4 years ago, the long-term derogation from the Convention by France, Ukraine and Turkey made clear to the Parliamentary Assembly of the Council of Europe (PACE) the necessity to use other mechanisms of the Council of Europe.

Accordingly, Council of Europe Parliamentary Assembly No. Resolution 2209 (2018) emphasized the authority of the Secretary-General, in the context of Article 52 of the Convention[12], to supervise existing derogations "through dialogue with the State concerned to ensure the compliance of the measures taken during the state of emergency with the principles established by the Convention."

Article 52 of the Convention obliges the States, upon the request of the Secretary General, to submit explanations of how the High Contracting Party ensures the effective implementation of the provisions of the Convention in national law.

The provisions of Article 52 were used six times. Finally, in 2005, the Secretary General requested clarifications from 47 member states regarding alleged violations of the European Convention on Human Rights related to the alleged presence of US Central Intelligence Agency (CIA) secret detention centers in Council of Europe member states. A special rapporteur was appointed to investigate the allegations. These reports established a high probability that CIA operational detention centers existed in Poland and Romania. As a result, the Parliamentary Assembly adopted several resolutions regarding this issue.

Article 52 was used only in three cases in relation to a specific participating state: in 1999, regarding the implementation of the provisions of the Convention by the Russian Federation in Chechnya; In connection with the suspension of the registration of a political party in the Republic of Moldova in 2002 for violating the rules on assembly and demonstrations; in 2015 to Azerbaijan. In the latest case, the Secretary-General requested clarifications regarding the implementation of the final decision of the European Court of Human Rights in the Ilgar Mammadov v. Azerbaijan case,[13] which concerned the illegal detention of a political opposition activist.

State Practice

Across the Council of Europe, many countries have declared a state of emergency to take unprecedented measures to tackle the COVID-19 pandemic. However, many states refrained from taking such a step. Ten states (Georgia, Estonia, Armenia, Romania, Moldova, Latvia, North Macedonia, Albania, Serbia and San Marino) used the option to derogate from the Convention due to the threat of the spread of COVID 19.

Derogation from the Convention affected a number of rights, including the right to freedom (Article 5), the right to a fair and public trial (Article 6); the right to privacy (Article 8), the right to participate in religious gatherings and the enforcement of religious rules (Article 9), Article 10 (freedom of expression), the right to assembly and demonstrations (Article 11), freedom of movement (Article 2 of Protocol 4).

As for the terms, all the states that used the right of derogation, submitted information about the declaration of the state of emergency and the measures taken within a few days. An exception is North Macedonia, which submitted such notification 2 weeks late. For reference, in Greece v. United Kingdom, the Commission emphasized that the three-month period between the declaration of a state of emergency and notification was unjustified.[14]

There are legitimate questions as to whether the notifications submitted include sufficient and reasonable grounds to demonstrate that the diversion was a necessary and proportionate measure given the dangers posed by the pandemic. Most of the messages are based on the World Health Organization's declaration of March 11, 2020, stating that the measures taken are necessary to stop the spread of the virus, which may not be sufficient justification to justify a derogation.

Finally, taking into account that Articles 8, 9, 10, 11 of the Convention and Article 1 of Additional Protocol 1 do not constitute absolute rights, it is important to determine the extent to which it was necessary to depart from these Articles using the mechanism under Article 15. Obviously, the provisions of the above-mentioned convention provide for the possibility of interfering with protected rights if the criteria of legality, necessity and proportionality are met. Presumably, the court will, first of all, consider whether there are justified circumstances to interfere with these rights. If answered in the affirmative, the court may not even consider the legitimacy of derogating from Article 15. Thus, the court will continue to examine the reasonableness of the derogation unless the restrictive measures are justified by the above-mentioned 3-step test.

Limitations on Specific Rights

- Article 2 of the Convention (right to life)

The right to life is one of the fundamental rights protected by the Convention. According to Article 15 of the Convention, derogation from the obligations of Article 2 is not allowed.

Although the right to health is not a right protected by the European Convention, Articles 2 and 8 of the Convention impose a positive obligation on the High Contracting Parties to ensure the supervision of the health sector through the adoption of appropriate regulations.[15] Article 2 also covers a situation where it is established that the authorities of a contracting state endanger human life by refusing to provide health care, while they have undertaken the obligation to make health care available to the population.[16]

In two exceptional cases, the Court established state liability for the actions and omissions of the medical service provider: first, when the patient's life was knowingly endangered by the refusal of emergency medical care;[17] Second, when due to systemic and structural deficiencies in medical facilities, a patient is deprived of the right to access emergency medical treatment, when the authorities knew or should have known about this risk and did nothing to eliminate it.[18]

Given the dire situation caused by the pandemic, which is affecting many people, it is essential that the authorities ensure effective enforcement of health regulations and equal access to medical services, especially for those who need emergency medical care.

- Article 5 of the Convention (right to liberty and security)

In the case of Enhorn v. Sweden,[19] the applicant, who was suffering from AIDS, indicated that he had been involuntarily hospitalized after having sexually transmitted the virus to another man.

In the decision made in the mentioned case, the court established the following important criteria to assess the legality of arresting persons "to prevent the spread of infectious diseases":

...whether the spread of infectious diseases is dangerous to the health and safety of the public, whether the arrest of an infected person is the last resort to prevent the spread of the disease, for the reason that less severe measures have been considered and regarded as insufficient to protect the public interest.

In the Einhorn case, the Court found a violation of Article 5 § 1 on the basis that the applicant's forced isolation did not constitute an extreme measure to prevent him from spreading the AIDS virus, as less severe measures were not even considered. It is also significant that he stayed in the medical institution involuntarily for 1 year and 6 months. Therefore, the Swedish authorities have rightly failed to balance the prevention of the spread of the virus with the applicant's right to liberty.

The quarantine regime, based on the objectives of Article 5 of the Convention, leads to the "deprivation of liberty" of many people. Such deprivation of liberty shall be in accordance with the practice of the European Court of Human Rights if the deprivation of liberty is in accordance with national procedural law; Imprisonment is limited in time; Imprisonment serves a legitimate purpose, namely the prevention of the spread of infectious diseases.

- Article 6 of the Convention (right to a fair trial)

Unless there are exceptional circumstances, the right to a public hearing is a right under Article 6 at least in one instance.[20]

As a result of pandemic, the publicity of the meetings is limited, in order to prevent the spread of the virus. Participants of the process, defendants, media representatives, in most cases, are involved in the discussion of cases remotely. In this case, the use of remote involvement would be justified if the rights of a defendant will be adequately protected.[21]

- Article 8 of the Convention (right to protection of private and family life)

Physical, psychological and moral inviolability is part of the right to privacy, one of the components of which is health care and medical treatment. Free and informed consent to medical treatment is one of the most important issues in the court case law.

The case of Glass v. United Kingdom concerned the performance of a medical procedure (taking diamorphine) on a disabled child by medical personnel without the mother's consent. In this case, the issue before the court was whether the medical institution's decision to perform a medical procedure without clear, free and informed consent was valid. The European Court found that the decision of the state authorities to ignore the applicant's refusal to receive treatment violated Article 8 of the Convention.[22]

On April 8, 2021, the European Court issued one of its landmark judgments in the case of Vavrichka et al. v. Czech Republic concerning compulsory vaccination of children.[23]

In this case, the applicants complained that the imposition of fines on the parents of the child and the refusal to admit them to kindergarten for failure to comply with the legal obligation of compulsory vaccination violated Article 8 of the European Convention.

The applicants claimed that mandatory vaccinations unreasonably limited their right to autonomy in making decisions about their own health. The children's parents pointed out that compulsory vaccination unjustifiably restricted the right to free development and the right of parents to ensure the upbringing of their children in accordance with their conscience, beliefs and opinions. In this regard, the applicants believed that the best interest of the child should be assessed first and foremost by the parents and that the intervention of the authorities should be allowed only in extreme cases.

The court explained that compulsory vaccination, as an involuntary medical intervention, represented an interference with the right to privacy.[24]

Regarding the legal obligation to vaccinate, the court explained that the purpose of the relevant legislation is to protect people from diseases that may pose a serious threat to health. This applies both to those who are subject to appropriate vaccinations and to those who have not received the vaccine and are vulnerable. This purpose is consistent with the purposes of protecting health and protecting the rights and freedoms of others.

States therefore have an obligation to act in the best interests of the child in all decisions affecting the child's health and development. When it comes to immunization, the goal should be to protect the child from serious diseases. In most cases, this is achieved by compulsory vaccination of children. Those who cannot afford such treatment are indirectly protected from infectious diseases when they develop herd immunity.

Taking the above and other reasons into account, the European Court found that mandatory vaccination did not violate the right to privacy.

- Articles 9 and 11 of the Convention (right to religion and assembly)

The above rights are not absolute. The European Convention clearly allows interference with these rights under certain conditions. The burden of proof is on the respondent state, which must justify the reasonableness of the interference with these rights.

When assessing the proportionality of a specific measure, the court will take into account whether there is another alternative means or means of achieving the intended goal. The court will assess whether the restrictive measures are "adequate" and "sufficient." An important factor in assessing proportionality is also the existence of an effective system of control of the restrictive measures.

Several states have banned public gatherings to prevent the spread of the virus. These events include, among others, religious gatherings, political rallies, concerts, sporting events, and more. The imposition of such restrictions is highly likely to be a proportionate measure, as it aims to protect the health, rights and freedoms of others in a democratic society.

- Article 10 of the Convention (freedom of expression)

Media outlets play an important role in disseminating information related to Covid-19. At the same time, in order to prevent the spread of inaccurate information, some states were forced to take specific steps that limited freedom of expression and the right to spread information (for example, Armenia). This raises the question: whether the restrictions established in terms of freedom of expression meet the criteria of proportionality and necessity, as required by paragraph 2 of Article 10 of the Convention.

Undoubtedly, if such limitations are imposed, the court will apply a strict standard of assessment. Although some aspects of freedom of speech may be limited, the main core of this right must remain intact and must be protected. According to the Court's assessment, even during a state of emergency, all government efforts should serve to protect democratic values ​​and not limit them.[25]

- Article 2 of the 4th additional protocol of the Convention (freedom of movement)

As a result of the pandemic, many states have restricted movement. International travel has been restricted, including the entry of foreign nationals into the country.

In the context of the coronavirus pandemic, the contracting states of the Convention have significantly taken into account the interest of protecting public health, which led to restrictions on the freedom of movement and travel of people. As stated in paragraph 3 of this article, restrictions on freedom of movement can be imposed if this restriction is provided for by law and is necessary to achieve a legitimate goal in a democratic society.

In case law, the European Court has repeatedly emphasized that restrictions on freedom of movement, such as quarantine restrictions, should be temporary measures that should be stopped as soon as possible. The long-term use of such a restrictive measure may be disproportionate if the maintenance of this measure is not a necessary and extreme measure to achieve a legitimate aim.[26]

Conclusion

The coronavirus pandemic is a global crisis that is costing the lives and health of many people.

Countries must act immediately to stop the spread of the virus. The strategy to fight the disease includes, among others, patient testing, contact tracing of infected patients, travel restrictions, isolation of citizens, which leads to the restriction of rights and freedoms guaranteed by the constitution and international human rights documents.

It is the national government's job to protect citizens from deadly diseases, including by declaring a state of emergency. Despite this, states should not cross the red line. A state of emergency that threatens the life of a nation should not become a pretext for arbitrary interference with rights. Even during a state of emergency, any measure should serve to protect democratic order and values, human rights and freedoms.

On the other hand, there is a danger of the government abusing the state of emergency and disproportionately restricting human rights in general. In this regard, the supervisory role of the European Court is important. However, as discussed above, before the implementation of the adopted measures and the submission of the relevant complaint to the European Court, the court cannot abstractly evaluate the legality of the implemented measure.

Accordingly, there is a need to strengthen other means of non-judicial supervision of the state of emergency. One such tool is Article 52 of the Convention, on the basis of which the Secretary General of the Council of Europe is authorized to supervise the existing derogations in order to ensure the compliance of the measures adopted during the state of emergency with the principles established by the Convention. Strengthening non-judicial mechanisms of supervision will contribute more to solving the complex problem of abuse of rights restrictions and protecting the rule of law - the main value of the Council of Europe.

Bibliography

1. European Convention on Human Rights. (In English)


2. Protocol 1 to the European Convention on Human Rights. (In English)


3. Factsheet – Covid 19 health crises. available at: <https://www.echr.coe.int/Documents/FS_Covid_ENG.pdf> (In English)


4. Council of Europe Parliamentary Assembly No. Resolution 2209 (2018) (In English)


5. Ilgar Mammadov v. Azerbaijan, application 15172/13, 13 October 2014 (In English)


6. Vasileva v. Bulgaria, application 23796/10, 17 March 2016 (In English)


7. Cyprus v. Turkey, application, 25781/94, 10 May 2001 (In English)


8. Mehmet Şentürk and Bekir Şentürk v. Turkey, Application 13423/09, April 9, 2013 (In English)


9. Aydoğdu v. Turkey, application 40468/09, 30 August 2016 (In English)


10. Enhorn v. Sweden, application 56529/00, 25 January 2005 (In English)


11. Lundevall v. Sweden, Application 38629/97, November 12, 2002 (In English)


12. Marcello Viola v. Italy, Application 45106/04, 5 January 2007 (In English)


13. Glass v. UK, application 61827/00, 9 March 2004 (In English)


14. Vavrichka et al. v. Czech Republic, application 37621/13, April 8, 2021 (In English)


15. Solomakhin v. Ukraine, application 24429/03, March 15, 2012 (In English)


16. Mehmet Hasan Altan v. Turkey, Application 13237/17, March 20, 2018 (In English)


17. Lawless v. Ireland, Application 332/57, 14 November 196(In English)


18. Ireland v. the United Kingdom, Application 5310/71, 1978(In English)


19. Denmark, Norway, Sweden and the Netherlands v. Greece(In English)


20. A and Others v. the United Kingdom), Grand Chamber, 2009(In English)


21. Brannigan and McBride v. the United Kingdom, 1993(In English)


22. Demir and others v. Turkey, application 21380/93, 23 September 1998 (In English)


23. Şahin Alpay v. Turkey, Application 16538/17, June 20, 2018 (In English)

Footnotes

[1] Lawless v. Ireland, Application 332/57, 14 November 1960, §26.

[2] Ireland v. the United Kingdom, Application 5310/71, 1978, § 205.

[3] Denmark, Norway, Sweden and the Netherlands v. Greece, Commission Report, 1969, § 153.

[4] Supra note 2, § 207.

[5] Lawless v. Ireland, § 212.

[6] Ibis. §38.

[7] A and Others v. the United Kingdom), Grand Chamber, 2009, § 190.

[8] Brannigan and McBride v. the United Kingdom, 1993, § 66.

[9] Ibis, § 66.

[10] Demir and others v. Turkey, application 21380/93, 23 September 1998, §52.

[11] Şahin Alpay v. Turkey, Application 16538/17, June 20, 2018, §180.

[12] Pursuant to Article 52, at the appropriate request of the Secretary General of the Council of Europe, each High Contracting Party shall provide an explanation of the manner in which its domestic law ensures the full implementation of the provisions of the Convention.

[13] Ilgar Mammadov v. Azerbaijan, application 15172/13, 13 October 2014.

[14] Greece v. United Kingdom, § 158.

[15] Vasileva v. Bulgaria, application 23796/10, 17 March 2016, § 63.

[16] Cyprus v. Turkey, application, 25781/94, 10 May 2001, § 219.

[17] Mehmet Şentürk and Bekir Şentürk v. Turkey, Application 13423/09, April 9, 2013, § 80.

[18] Aydoğdu v. Turkey, application 40468/09, 30 August 2016, § 79.

[19] Enhorn v. Sweden, application 56529/00, 25 January 2005.

[20] Lundevall v. Sweden, application 38629/97, 12 November 2002.

[21] Marcello Viola v. Italy, Application 45106/04, 5 January 2007.

[22] Glass v. UK, application 61827/00, 9 March 2004, §70.

[23] Vavrichka et al. v. Czech Republic, application 37621/13, April 8, 2021.

[24] Solomakhin v. Ukraine, application 24429/03, March 15, 2012, § 33.

[25] Mehmet Hasan Altan v. Turkey, Application 13237/17, March 20, 2018, §210.

[26] Kuimov v. Russia, application 32147/04, April 8, 2009.