The European Convention on Human Rights and COVID-19: Challenges Ahead

Read the speech of the President of the European Court of Human Rights,Linos-Alexander Sicilianos, at the St. Petersburg International Legal Forum, 10-12 April 2020 for Human Rights under Quarantine:

Dear participants,

Let me, first of all, warmly thank and congratulate the organisers of this important E-conference. How to form a holistic view of the implications of the current health crisis for our societies, our democracies and the economy at large is undoubtedly one of the most topical issues nowadays.
At the beginning of the crisis it was almost impossible to foresee the broad range of implications it could entail for human rights in general and for the rights protected by the European Convention on Human Right in particular.
Effectively responding to the threat to life and physical integrity posed by COVID-19 is part of the positive obligations of States regarding the right to life and the right to respect for private life. The exact scope of such obligations becomes difficult to define because few responses can be delivered locally and cooperation across frontiers is undoubtedly necessary.
In order to meet these positive obligations, States have imposed restrictions on liberty and movement. In view of the magnitude of the crisis such restrictions do have a legitimate aim and, on the basis of what we know today, in most cases they seem to be proportional and thus necessary in a democratic society. However, restrictions of this kind are temporary measures to be discontinued as soon as the circumstances permit. A number of more specific issues could be raised in this connection and the concrete implications of the restrictions need to be carefully examined. This is the case, for instance, with the legal basis for the confinement, the conditional release of persons from prison, etc.

States may also seek to regulate the entry of persons into their own country as well as their ability to leave any country, including their own. Such measures have been already adopted to one degree or the other in Europe and beyond. Striking a fair balance between the protection of public health and the rights of the individuals concerned will not always be easy in this particular area.

The same is true for the prohibition of public and private gatherings, although restrictions for a relatively short period of time seem to be proportionate in view of the health crisis.

Providing accurate information and avoiding causing panic is essential. However, one cannot be too careful when trying to ensure that restrictions on the right to impart and receive information are not disproportionate to the legitimate aims pursued.

Measures taken or to be taken may also have an impact on private and family life, or even the right to marry. Visiting family members, conducting marriage ceremonies and attending funerals might be impossible under present circumstances. Furthermore, mandatory testing, treatment and vaccination may raise delicate issues under a series of articles of the Convention. Any such measures must not be arbitrary. This will largely depend on medical necessity and respect for the right procedures.
Given the closure of schools, colleges and universities, the right to education under Article 2 of Protocol No 1 to the ECHR is also interfered with in the present circumstances. Although such closure seems to be perfectly justified, efforts should be made (and are indeed made by thousands of teachers and professors throughout Europe) to mitigate the impact of this measure, so as not to impair the very essence of the right to education.

In the same vein, it is understandable that the functioning of courts is also affected by the current situation. Depending on the duration of the health crisis, the right to trial within a reasonable time will necessarily be impacted. The same may be true in respect to the right of access to a court. Once again, reasonable efforts should be made in order to mitigate those negative effects. At the same time, this could be a unique occasion in order to promote e-Justice as a valuable tool for the efficient functioning of many aspects of the judicial system.

This is precisely what the European Court of Human Rights is actually doing. By rapidly developing its IT system, the Court has been able to deal efficiently with a number of requests for provisional measures, including those related to COVID-19. Furthermore, the Court is dealing with a number of other cases, especially the most urgent ones so as to limit, to the extent possible, the impact of the social-distancing measures on its own functioning. For thousands of people throughout Europe our Court represents their last hope. It is thus our duty to both strictly respect the security measures needed to protect our human resources and to strive for the protection of the rights and freedoms guaranteed by the European Convention on Human Rights.

A more general question regarding the broad spectrum of restrictions alluded to above is whether or not article 15 of the Convention should be invoked in the present context. It is well-known, indeed, that a number of member States have already notified the Secretary General of the Council of Europe of their intention to use the derogation clause of the European Convention of Human Rights.

There are a number of arguments in favour of or against such an important step. I do not wish to take a firm stance in this debate, all the more so as the question may be raised in the future before the European Court of Human Rights. It is important to stress, however, that all measures aiming at combatting the disease should always be strictly necessary in the circumstances, with proper control of their adequacy and proportionality. They should be temporary and never be used as a pretext in order to curtail the fundamental rights and freedoms which are essential in a democratic society. States that consider availing themselves of the derogation clause have the possibility of seeking the technical advice of the secretariat of the Council of Europe with its considerable expertise in the area. The SG has issued such a call in a particular case, acting within the spirit of PACE Resolution 2209 (2018). A proactive positive attitude at the present stage on the part of all those concerned will certainly facilitate the task of the Court which will be called upon sooner or later to review the compatibility of most emergency measures.

Dear participants,

This health crisis is probably unprecedented in human history. The challenges it raises are huge and we have to face them together. At the same time we should not forget that the European Convention on Human Rights embodies the fundamental values of the European civilisation of the 21st century. This instrument, as interpreted by the European Court, contains the legal tools to deal with the crisis. Confront the pandemic challenge while preserving our values: this should be, in my view, our goal today. Getting there will require courage and virtue. I want to think that there is enough of this in Europe today provided that we stand together behind the institutions that we have wisely created for these purposes.

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