An Analysis of Covid-19 Responses and ECHR Requirements by Jeremy McBride, Barrister, Monckton Chambers, London, and Visiting Professor, Central European University, Budapest.
Introduction
The rapid spread of Coronavirus – and the consequent risk to life and the heavy burden on health services from persons succumbing to Covid-19, the disease caused by it – has led to the imposition by governments of many restrictions on normal life in Council of Europe member States. These restrictions necessarily have implications for the enjoyment of rights and freedoms under the European Convention on Human Rights (“the Convention”) whether or not their imposition has been accompanied by the recent notification under Article 15 ECHR of derogations as already done by Armenia, Estonia, Georgia, Latvia, the Republic of Moldova and Romania. The need for such derogations may depend upon factors such as the nature of the restrictions and/or their duration and is considered further below.
Until now, the taking of action by a State to deal with any form of illness has not been a significant feature of the applications submitted to the European Court of Human Rights (“the Court”). The main instances of such applications have, in fact, been the alleged adequacy of either measures to protect prisoners from hepatitis, HIV and tuberculosis, or to treat those who have succumbed to them. In some cases, this has led to findings of a violation of the prohibition in Article 3 of inhuman and degrading treatment. There has also been one instance of a person with HIV being detained and another of the imposition of a quarantine preventing one family member from visiting another, raising issues respectively of compliance with the right to liberty and security and the right to respect for family life under Articles 5 and 8.
After considering the obligation to act in response to the threat posed by Covid-19, this note reviews the potential implications of measures taken or envisaged for compliance with obligations under the Convention of restrictions, including the extent to which they may either require a derogation or could exceed what is permitted under one.
Insofar as derogations need to be relied upon to justify departure from the requirements to be observed outside of the emergency being invoked, the conditions prescribed in Article 15 would have to be fulfilled. There can be no doubt that the threat posed by Covid-19 is, depending upon the country concerned, either actual or imminent, is one involving the whole nation and is one affecting the continuance of organised life in it (A and Others v. United Kingdom [GC], no. 3455/05, 19 February 2009).
Whether the danger posed is such that the measures or restrictions that would be permissible in more normal circumstances are inadequate to deal with it, thereby allowing greater interference with derogable rights and freedoms than would otherwise be possible, is a matter to be judged by reference to the exigencies of the situation. However, in all cases, such measures must be no more than strictly required entailing the existence of safeguards against possible abuse of power.
All restrictions – whether or not based on a derogation – must, of course, always have a legal basis and that includes compliance with relevant constitutional guarantees and requirements of the member State concerned (Mehmet Hasan Altan v. Turkey, 13237/17, 20 March 2018).
An obligation to act
The challenge which is posed to the threat to life and physical integrity by Covoid-19 undoubtedly has the potential to engage positive obligations for member States with respect to the right to life under Article 2 and the right to respect for private life under Article 8. Certainly, there is scope to argue that insufficient steps to inform the public as to risks posed by succumbing to Covid-19 and to advise particular preventive steps could, as in other circumstances considered by the Court, result in a breach of the positive obligation to take the measures necessary to protect life.
However, the threat posed by physical conditions such as a build-up of methane (as in Öneryildiz v. Turkey [GC], no. 48939/99, 30 November 2004) or inadequate defences against natural hazards (as in Budayeva and Others v. Russia, no. 15339/02, 20 March 2008) is undoubtedly different in character from that resulting from the emergence of an entirely new virus, both on account of the very specific place in which those conditions existed and the advance knowledge of the gravity of the risks of inaction.
Moreover, account must be taken of operational choices which must be made by a State in terms of priorities and resources when faced with risks to life and physical integrity (see, e.g., Osman v. United Kingdom [GC], no. 23452/94). While hindsight might point to a different course of action being preferable, its revelations are not a basis for finding a violation of the Convention.
Nonetheless, once the nature of the measures required to tackle a threat has become clear and these are within the capacity of the State to take – notably through restricting the activities that can be undertaken by inhabitants – then the failure to adopt them could well be viewed as violating the positive obligations owed under Articles 2 and 8 (as in Finogenov and Others v. Russia, no. 18299/03, 20 December 2011). It may, of course be much easier to assess the capacity of the State to act than to judge which are the measures required to be taken, especially where there is conflicting medical and scientific opinion as to the best course of action to take.
What makes the Covid-19 pandemic particularly difficult in this regard is that the response can never be a localised one and indeed cooperation beyond frontiers is undoubtedly essential. In addition, while there could be responsibility for failure to take some coercive measures to restrain behaviour which puts the life and physical integrity of others at risk – such as by ignoring a requirement for social distancing – there will undoubtedly be limits as to the extent to which this is feasible when compared with behaviour by identifiable individuals disrupting the exercise by others of rights and freedoms under the Convention (cf Identoba and Others v. Georgia, no. 73235/12, 12 May 2015).
Liberty and movement
However, the undoubted existence of some obligation to act to protect life and physical integrity will necessarily be relevant in judging the compatibility of restrictions that might be imposed on other rights and freedoms. Thus, Article 5(1)(e) specifies that the prevention of the spreading of infectious diseases is one of the grounds for which a person may be deprived of his or her liberty.
Furthermore, the protection of health is a legitimate aim for which restrictions can be imposed on the rights to respect for private and family life, freedom to manifest one’s religion or beliefs, freedom of expression and freedom of assembly and association, under Articles 8-11 ECHR and freedom to chose one’s residence or to leave any country, including one’s own under Article 2 of Protocol No. 4 ECHR.
In the case of a deprivation of liberty, the Court has established (in Enhorn v. Sweden, no. 56529/00, 25 January 2005) that it must also be demonstrated that the spreading of the infectious disease is dangerous to public health or safety and that the detention of the person infected is the last resort in order to prevent the spreading of the disease, because less severe measures have been considered and found to be insufficient to safeguard the public interest. Moreover, whenever these criteria cease to be fulfilled, the basis for the deprivation of liberty ceases to exist.
In the case of restrictions imposed on other rights, the standard to be met is that these must be necessary in a democratic society and thus proportionate to the legitimate aim pursued. Undoubtedly, there will be some margin of appreciation left to States. However, the Court emphasised in the only case in which the application of a quarantine has been considered – Kuimov v. Russia, no. 32147/04, 8 January 2009 – that the restriction should be “a temporary measure, to be discontinued as soon as circumstances permit” and that “severe and lasting restrictions …a long duration are particularly likely to be disproportionate to the legitimate aims pursued” (para. 96). This suggests that the approach to the assessment of the admissibility of restrictions will be broadly the same, whatever the right or freedom involved.
Nonetheless, in the case of Covid-19, it will be worth bearing in mind that the Court was ready to accept – even without a derogation under Article 15 ECHR – an extensive interference with a right where a State adopted measures in response to “the existence of an exceptional crisis without precedent” (albeit a financial one; Koufaki and Adedy v. Greece (dec.), no. 57665/12, 7 May 2013, at para. 37). While, this approach occurred in relation to the interference with the right to property as a result of measures cutting wages and salaries to safeguard the national economy, it would not be surprising if extensive restrictions to preserve the health infrastructure were not also accorded a fairly generous, if not unlimited, margin of appreciation. This is likely to be especially so given the apparent need for generalised measures rather than those taken against just specific individuals, as seen in the limited cases so far before the Court that have dealt with related issues.
In Enhorn the Court considered that “the HIV virus was and is dangerous to public health and safety”. However, the compulsory isolation of the applicant in that case was found not to be a last resort in order to prevent him from spreading the HIV virus because less severe measures had not been considered and found to be insufficient to safeguard the public interest. Moreover, the Court also considered that the duration of this isolation – almost one and a half years over a period of nearly seven years – had failed to strike a fair balance between the need to ensure that the HIV virus did not spread and the applicant’s right to liberty.
It remains to be determined whether the restrictions imposed so as to halt the spread of Coronavirus amount to a deprivation of liberty or are just an interference with freedom of movement under Article 2 of Protocol No. 4 ECHR. As the Court has repeatedly emphasised, “In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5, the starting-point must be his or her specific situation and account must be taken of a whole range of factors such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation and restriction of liberty is one of degree or intensity, and not one of nature or substance (De Tommaso v. Italy [GC], no. 43395/09, 23 February 2017 para. 80).
Certainly, confinement to one’s home even though the conditions there may be much better than in a prison can amount to a deprivation of liberty (see Buzadji v. Republic of Moldova [GC], no. 23755/07, 5 July 2016). However, there is a difference between a total bar on leaving one’s home and not being able to so, except in case of necessity, between 10 p.m. and 6 a.m. The latter would not be regarded as amounting to “house arrest” and thus a deprivation of liberty for the purpose of Article 5 ECHR (as in De Tommaso).
A much more restricted ability to leave one’s home – such as for essential shopping or exercise – might be viewed differently even in the absence of any actual physical duress, particularly where there is also a complete prohibition on receiving visitors (cf. the situations in Guzzardi v. Italy [P], no. 7367/76, 6 November 1980 with Nada v. Switzerland [GC], no. 10593/08, 12 September 2012). However, the absence of any surveillance in such cases is also likely to be a factor militating against such a conclusion as the persons concerned will not then be under the exclusive control of the authorities (cf. the absence of this in Nada with its existence in Amuur v. France, no. 19776/92, 25 June 1996). A factor supporting the view that a deprivation of liberty is involved could also be the consequences following from non-compliance with requirements to stay at home, such as heavy fines or enforced confinement (as envisaged in the derogation by Georgia).
Whether or not social distancing enforced through criminal sanctions amounts to a deprivation of liberty or just an interference with freedom of movement, its acceptability as a restriction on either right under the Convention will turn on a number of factors. Thus, it matters whether it can be demonstrated to be necessary to halt the spreading of Coronavirus, whether a measure was adopted only when other less extensive restrictions did not work and whether it was not maintained for longer than could genuinely serve the objective being pursued. The ability to obtain the necessities for life and well-being will be an important factor in determining whether or not the balance between either of these rights and the public interest has been respected. Equally important in this regard will be the ability to communicate with others and to receive news and information (cf. Amuur).
Restrictions on access to particular places or areas or parts of the country and even to places of residence will inevitably interfere with the right to freedom of movement under Article 2 of Protocol No. 4 ECHR. However, one restriction affecting access by an individual to a particular area in a city which lasted 14 days was not considered disproportionate by the Court when imposed as a response to an “emergency situation” because of the public trafficking and use of hard drugs after lesser measures had not been effective (in Landvreugd v. Netherlands, no. 37331/97, 4 June 2002 and Olivieira v. Netherlands, no. 33129/96, 4 June 2002).
However, many of the restrictions currently being imposed are of general application affecting many parts of the country and, in some instances precluding people from travelling more than a very short distance from their homes. Moreover, Estonia’s derogation envisages restriction on travel to certain islands, only allowing persons with permanent residence on them to go there if they do not show symptoms of Covid-19. The proportionality of these restrictions – both as regards their scope and duration – will be dependent upon their demonstrated relevance to preventing the spread of the disease but also on their impact on obtaining the essentials of life, such as shopping for food and to withdraw money (the applicant in Landvreugd was still able to collect his social security and mail from the area otherwise covered by the prohibition) and even housing for those persons prevented from returning to their place of residence.
The conditional release of persons from prison – as is envisaged in the derogations of Georgia and Latvia – could protect those released from the risk of being infected. However, this should not occur without assessing the consequent risk to members of the public that this might pose as the infliction of physical violence by a released person could be in breach of the duty of care to the victim, entailing a violation of Articles 2 and 3 (see, e.g., Maiorano and Others v. Italy, no. 28634/06, 15 December 2009 and Opuz v. Turkey, no. 33401/02, 9 June 2009).
The Latvian derogation also seems to envisage the possible prolongation of prisoners’ sentences. Any such prolongation would, given the likely absence of a causal connection with the original sentence, not be justified under Article 5(1)(a). Furthermore, in the absence of a being a measure required to prevent the spread of infectious diseases – such as where the prisoner concerned has become infected with Covid-19 – and thus a justifiable ground for deprivation of liberty pursuant to Article 5(1)(d), reliance on the derogation would undoubtedly be necessary to prevent any violation of the Convention. However, in such circumstances, it is hard to see delayed release really being strictly required by the exigencies of the situation.
Entry and departure
The derogations by Armenia, Estonia and Latvia envisage the prohibition on the entry to them of all or some persons who are not citizens or lawful residents. Furthermore, Armenia envisages prohibiting its citizens from leaving the country except for transportation of goods and a virtually similar result will be achieved by Latvia’s order to close international passenger transport, as well as requiring all business trips to countries affected by COVID-19 to be cancelled, postponed and not planned and calling on individuals to refrain from foreign trips. In their derogations, both the Republic of Moldova and Romania envisage unspecified restrictions on freedom of movement.
Under Article 3(2) of Protocol No. 4 ECHR, no one shall be denied the right to enter the territory of the state of which he or she is national. On the face of the derogations, this right would not be infringed by them. Moreover, the exception made in them for lawful residents is consistent with their right to respect for private and family life under Article 8. There is, however, scope for difficulties in respecting both rights where the holding of the nationality of or the lawful residence in the State refusing entry is contested (see, e.g., Oudrhiri v. France (dec.), no. 19554/92, 31 March 1993). In cases where the respective status is unjustifiably denied, the refusal of entry would amount to an expulsion contrary to the foregoing rights.
It will, therefore, be important that there continues to be an effective remedy to assert these rights, as required by Article 13 ECHR (see the violation of that provision found in Milen Kostov v. Bulgaria, no. 40026/07, 3 September 2013, in respect of the related right under Article 2 of Protocol No. 4). Furthermore, given that the consequences of a refusal of entry could be the return of the person concerned to a country where he or she might be refused entry or exposed to a great risk of infection by Covid-19, the seeking of such a remedy should have suspensive effect on the execution of any removal decision (cf. M.S.S. v. Belgium and Greece [GC], no. 30696/09, 21 January 2011, at para. 293).
Although the text of Article 3(2) of Protocol No. 4 ECHR does not specify any limitations that might be imposed upon the right guaranteed, it can be expected that these would be seen by the Court as implied (cf. such an approach to the unrestricted right to education in Leyla Şahin v. Turkey [GC], no. 44774/98, 10 November 2005, at para. 154). Moreover, this right is not non-derogable. It might, therefore, be argued that a bar on the return of nationals and lawful residents on a temporary basis would be essential because of the risk of them infecting others with Covid-19. However, this would almost certainly not be regarded as a compelling justification by the Court given the precautions that officials could take to avoid being infected at the point of entry and the subsequent ability to subject such persons to quarantine. A blanket and indiscriminate approach might also be seen as amounting to discrimination based on a person’s health status (cf. Kyutin v. Russia, no. 2700/10, 10 March 2011).
The ability of a person to leave any country, including one’s own, is guaranteed by Article 2(2) of Protocol No. 4 ECHR. However, Article 2(3) provides that it may be subject to restrictions, including ones for the protection of health, where necessary in a democratic society. Such restrictions have, for example, been upheld outside of a health crisis to ensure the fulfilment of military service obligations (Marangos v. Cyprus (dec.), no. 31106/96, 20 May 1997) and for the prevention of crime (Antonenkov and Others v. Ukraine, no. 14183/02, 22 November 2005).
A temporary restriction on departure by all persons where there is uncertainty as to whether they would infect persons there or would return to the country having become infected is likely to be regarded as striking a fair balance between the demands of the general interest and the rights of the individuals concerned. However, such a bar on travelling outside the country might be harder to justify where it precluded a person returning to his or her country of lawful residence or lasted for a prolonged period, particularly where the country to be visited was not one where there was a risk of becoming infected. There should thus be a periodic re-assessment of the need for such a ban (cf. A. E. v. Poland, no. 14480/04, 31 March 2009).
Private and family life
The impact of the influenza quarantine on the possible contact between a father and his child was only partially the basis for the interference with the applicant’s family life that was considered in Kuimov v. Russia, no. 32147/or, 8 January 2009. In that case, much of the period concerned was the result of the child being taken into temporary care for her physical and psychological health. However, as regards the quarantine period – which lasted just over 3 months – the Court emphasised that it did “not last an unreasonably long time and, in addition, the applicant was allowed to come and see A. through the glass window on a weekly basis” (para. 103).
Similar possibilities as a result of the ban on visiting relatives to prevent the spreading of Coronavirus might be seen to preclude a violation of Article 8 as a result of the availability of communication through video-calls. Moreover, the relatively short duration in Kuimov reflected the nature of disease and a longer interruption in contact might be considered justifiable for something as seemingly virulent as Coronavirus.
Testing and treatment
The detention of someone in order to test whether he or she has been infected by Coronavirus could be justified under Article 5(1)(b) ECHR as being done in order to secure the fulfilment of an obligation prescribed by law if there is indeed a legal requirement to that effect. Although this will normally only be permissible where the person concerned has first had an opportunity to fulfil it, immediate resort to detention without such an opportunity would be possible where this can be shown to be essential for the effective execution of the obligation concerned, which would probably be the case where there was concern about him or her infecting others (cf. this approach being accepted in McVeigh and Others v. United Kingdom (Rep.), no. 8022/77, 18 March 1981 in respect of person suspected of involvement in terrorist activity).
Any such detention must not be arbitrary or should not be effected for an ulterior purpose. Moreover, it must respect the principle of proportionality and be designed to secure the immediate fulfilment of the obligation and so should be of quite a short duration and should certainly cease after the fulfilment of the obligation (cf. the overlong detention periods for identity checks in Vasileva v. Denmark, no. 52792/99, 25 September 2003 and Epple v. Germany, no. 77909/01, 24 March 2005 and the failure of release after the completion of such a check in Shimovolos v. Russia, no. 30194/09, 21 June 2011).
Furthermore, compulsory screening for tuberculosis by tuberculin skin-reaction test or by chest x-ray to protect the health of the public and the person concerned has not been considered a disproportionate interference with the right to physical integrity under Article 8 ECHR (Acamanne and Others v. Belgium (dec.), no. 10435/83, 10 December 1984) and a similar view is likely to be taken of the relatively non-intrusive testing methods for Coronavirus. However, the manner in which the test is conducted should not use such oppressive force that it could amount to the use of inhuman and degrading treatment (cf. Jalloh v. Germany [GC], no. 54810/00, 11 July 2006).
On the other hand, the enforced medical treatment of a detained person which is a genuine therapeutic necessity from the established principles of medicine should not violate Article 3 ECHR. Certainly, this will not be so where a medical necessity has been convincingly shown and procedural guarantees have been observed. In the case of force-feeding such guarantees have entailed judicial permission (Nevmerzhitsky v. Ukraine, no. 54825/00, 5 April 2005, at para. 94). However, that does not seem to be required in case of a medical necessity to save a person’s life if the procedure is a straightforward and well-established one (Bogumil v. Portugal, no. 35228/03, 7 October 2008).
Moreover, judicial authorisation may not be thought necessary where a less intrusive medical intervention is involved. Indeed, that seems to have been implicitly accepted by the Court with regard to compulsory vaccination without the use or threat of force, which was acknowledged by it to be an interference with the right to physical integrity of a person under Article 8 (Solomakhin v. Ukraine, no. 24429/03, 15 March 2012). However, the Court considered that there had been no violation of Article 8 ECHR where such vaccination had occurred to stop the spreading of infectious diseases and medical staff had checked a person’s suitability for vaccination prior to carrying it out, thereby ensuring that this would not be to the detriment of the person concerned to the extent of upsetting the balance of interests between personal integrity and the public interest of protection health of the population.
A different view might be reached where the vaccination did harm the person’s health or that an expired vaccine of poor quality had been used, neither or which was established in this case. Furthermore, the administration of a vaccine which is still experimental without the consent of the person concerned would undoubtedly be seen as at least a violation of Article 8 ECHR.
However, mandatory vaccination during an epidemic in order to protect others has been recognised by the Court as outweighing objections based upon religious beliefs (Jehovah’s Witnesses of Moscow and Others v. Russia, no. 302/02, 10 June 2010, at para. 136).
The requirement to provide medical assistance that is recognised as arising under Article 3 ECHR for persons who are detained (see, e.g., Khudobin v. Russia, no. 59896/00, 26 October 2006) would undoubtedly be regarded as equally applicable to those whose confinement through social distancing amounts to a deprivation of liberty under Article 5 ECHR. However, this obligation would not require the provision of treatment beyond the level of health care generally available and, as the Court has recognised, this can be shaped by a determination of priorities when allocating limited State resources (see, e.g., Pentiacova and Others v. Moldova (dec.), no. 14462/03, 4 January 2005).
Moreover, a refusal to allow access to treatments that are still experimental would not be regarded as contrary to the rights under either Articles 3 or 8 ECHR (Hriztozov and Others v. Bulgaria, no. 47039/11, 13 November 2012). Furthermore, it is doubtful whether the allocation of healthcare resources in priority to those providing essential services or are most likely to survive would be regarded as lacking an objective and reasonable justification such as to engage the application of the prohibition on discrimination in Article 14 ECHR in combination with rights under Articles 3 and 8 ECHR.
Functioning of courts
Concern to prevent all involved in justice systems has and will continue to have an impact on the conduct of proceedings before courts. In some instances, it may be possible for these to continue without significant disturbance through recourse to electronic means. However, this is unlikely to be true of most criminal proceedings and many civil and administrative ones.
In many instances, the impact will be limited to delay and, should the crisis endure for just a matter of months there is unlikely to be a consequent breach of the right to trial within a reasonable time. Even if the disruption is longer, the external nature of its cause will mean that it will not be attributable to the States affected so long as they have taken all possible steps open to them to mitigate its effect (cf. the situation considered in Khlebik v. Ukraine, no. 2945/16, 25 July 2017 resulting from inability to access crucial documents for proceedings on account of part of a State’s territory no longer being under its control and also that in Agga v. Greece (No. 1), no. 37439/97, 25 January 2000, where there was a failure to take measures to deal with the effects of a strike by lawyers).
Moreover, although there could be some interference as regards the institution of proceedings, the right of access to court is not an absolute one and this is unlikely to be regarded in most cases as constituting a violation of Article 6(1) ECHR. However, in urgent cases where proceedings might be needed to protect individuals, for example, from domestic violence, the inability to obtain protective measures from a court could lead to violations of Articles 2 and 3 ECHR (cf. Opuz v. Turkey, no. 33401/02, 9 June 2009).
In the absence of a derogation, there can be no departure from normal timelines for bringing an arrested person before a judge with authority to determine whether he or should be released (see Brogan and Others v. United Kingdom [P], no. 11209/84, 29 November 1988). However, even if there was a derogation that could justify some further delay (such as a significant shortage of relevant personnel on account of many of them contracting Covid-19), it is unlikely that a delay of more than 7 days before such production occurs would be seen as acceptable (see Aksoy v. Turkey, no. 21987/93, 18 December 1996 and Sakik and Others v. Turkey, no. 23878/94, 26 November 1997).
Moreover, it would probably be difficult to justify a derogation from the right under Article 5(4) ECHR to challenge the legality of detention (the acceptance of one in Ireland v. United Kingdom [P], no. 5310/71, 18 January 1978, seems out of line with developments in international human rights law since).
Public and private gatherings
Significant restrictions on public gatherings in terms of the numbers participating or the places in which they can occur have been upheld where the aim was to protect public safety or to preserve public order (see, e.g., Chappell v. United Kingdom (dec.), no. 12587/86, 14 July 1987 and Rai, Allmond and “Negotiate Now” v. United Kingdom (dec.), no. 25522/94, 6 April 1995). The dispersal of a gathering has also been found not to be in violation of the right to freedom of assembly where this was to protect the health and safety of those participating in it (see Cisse v. France, no. 51346/99, 9 April 2002). These have, however, been cases concerned with discrete events and not restrictions or even total bans that are applicable to gatherings occurring in a large part, or even the whole, of a State’s territory.
Nonetheless, the Court has accepted that a general ban on demonstrations can be justified if (a) there is a real danger of these resulting in disorder which cannot be prevented by other less stringent measures and (b) the disadvantage of the ban’s impact on demonstrations which do not by themselves constitute a danger to public order is clearly outweighed by the security considerations invoked to justify it (see Lashmankin and Others v. Russia, no. 57818/09, 7 February 2017, at para. 434). Similar considerations could also be invoked where gatherings in public of any size would generally pose a real risk of facilitating the spread of infection – even if some might not – and thus afford a justification for the resulting interference with political, religious or social gatherings that are protected by Articles 11, 9 and 8 ECHR respectively.
However, material considerations for determining whether or not the imposition of particular restrictions on gatherings for more than a short period of time is a proportionate response would not only be the continued duration of the threat of infection spreading but also whether this would lead to the complete suppression of rights that are essential foundations for a democratic society. Undoubtedly, religious worship does not always have to be collective, and social contact can be maintained through various forms of modern technology. Alternative means of protest might be less readily forthcoming and therefore the restrictions would be harder to justify for a prolonged period. Providing such a justification for this could well be linked to the impact of any restrictions on the freedom to receive and impart information and ideas in exercise of the right guaranteed by Article 10 ECHR.
Information and expression
The existence of a pandemic such as that involving Coronavirus undoubtedly has the potential to cause panic. There may, therefore, be a wish on the part of the authorities to curtail the dissemination of false or unreliable information, as well as of criticism of the official response – whether locally or national – to the unfolding crisis. For example, Armenia in its derogation envisages that reports in any form of publication (including websites and social networks) about infections, testing and isolation – whether inside the country or elsewhere – and also any information causing panic or creating a risk of this occurring should make exclusive reference to official information being provided about this and not contradict it.
Restrictions to similar effect could also result from the measures adopted pursuant to the derogation by the Republic of Moldova with a view to coordinating media activities on informing the public about the situation, the liquidation of its consequences and the protection of the population, as well as to introduce special rules for the use of telecommunication means.
Certainly, the breadth of the restriction envisaged by the Armenian derogation – which does not require consideration of the manner in which a divergent view from the official one is expressed or indeed of the accuracy of the information published – is on the face of it inconsistent with the public watchdog role of the media that the Court sees essential in a democracy. Thus, in response to one journalist’s statements alleged to have created panic among the public, the Court held that it was his task “to impart information and ideas on the relevant political issues and express opinions about possible future consequences of specific decisions taken by the Government” and found that the bounds set by Article 10(2) ECHR had not been overstepped (as in Fatullayev v. Azerbaijan, no. 40984/07, 22 April 2010, at para. 122).
Moreover, both journalists and non-governmental organisations are seen by the Court as having a responsibility to provide reliable and accurate information when acting in a watchdog role (see, e.g., Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, 8 November 2016 and Radio France and Others v. France, no. 53984/00, 30 March 2004) and so there can be responsibility for publishing false information without any step being taken to check its veracity (Sallusti v. Italy, no. 22350/13, 7 March 2013).
In the case of the use of social media by individuals, it seems unlikely that the imposition of criminal responsibility for postings on social media would be regarded as consistent with Article 10 ECHR in the absence of any attempt to assess the potential of the statements at hand to provoke any harmful consequences, with due regard to the political and social background, against which they were made, and to the scope of their reach (Savva Terentyev v. Russia, no. 10692/09, 28 February 2018).
Whether the existence of an emergency could be a basis for imposing stricter restrictions on the right to freedom of expression than in normal circumstances will turn on how it can be demonstrated that these will really contribute to tackling the crisis. Although the circulation of rumours and false information can be a nuisance, the suppression of non-official information and views runs counter to the democracy that emergency measures should protect and could undermine public confidence in governments.
Weddings and funerals
The permissibility of restrictions on gatherings already considered will inevitably affect both wedding ceremonies and the attendant celebrations. However, the imposition of a delay on the ability to marry itself on account of well-founded concerns about the spreading of disease is unlikely to be regarded as arbitrary or disproportionate since this is not something that would impair the very essence of the right under Article 12 ECHR (cf. Frasik v. Poland, no. 22933/02, 5 January 2010).
The number of deaths and concern about spreading infection might lead to interference with the ability of a deceased persons’ family and friends choosing the time, place and manner in which their funeral ceremonies and burials can take place, as well as to attend them, something falling within the right to respect for private and family life. Such an interference would only be consistent with Article 8 ECHR where a fair balance was struck between the protection of this right and the legitimate aim of public safety (see, e.g., Sabanchiyeva and Others v. Russia, no. 38450/05, 6 June 2013 and Ploski v. Poland, no. 26761/95, 12 November 2002). Public health considerations might make it imperative for funerals to be held in the absence of a deceased person’s family and friends but it is unlikely that this would excuse a failure to consult them as to the rites to be followed – which could also involve Article 9 ECHR – or justify the use of an unidentifiable last resting place.
Education
Continued attendance at schools, colleges and universities is no longer considered consistent with efforts to combat the spread of Coronavirus. However, the prohibition on the denial of the right to education under Article 2 of Protocol No. 1 ECHR applies to existing institutions and it is unlikely that the inability of them to function in their habitual manner would mean that this prohibition can be completely ignored. Certainly, it is clear that, with due regard to the resources available, any restrictions that are imposed must curtail the right to such an extent as to impair its very essence and deprive it of its effectiveness (Leyla Şahin v. Turkey [GC], no. 44774/98, 10 November 2005, at para.154).
Although no specific aims are specified as the basis for imposing restrictions, public health would be regarded as a legitimate one for doing so. However, it would only consider a limitation to be compatible with Article 2 of Protocol No. 1 ECHR where there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (Leyla Şahin, at para. 154). This would undoubtedly cover the provision of education through online means that sought to replicate as much as practical that which would normally be provided. It is unlikely that the need to move to online provision would be a sufficient reason to stop the provision of instruction in a particular language that would otherwise be provided (cf. Catan and Others v. Moldova and Russia [GC], no. 43370/04, 19 October 2012).
It may be impossible to undertake assessment in the same manner as would be possible where pupils and students are able to attend the educational institutions concerned. However, the absence of any form of overall assessment of performance at the end of a course or year of study – particularly where this would be crucial for progression to another institution or employment – is likely to be seen as undermining the effectiveness of the education provided. Some modified form of assessment, pursuing the same objectives as the normal one, would thus be required (cf. the finding of a violation of Article 2 of Protocol No. 2 ECHR in Mürsel Eren v. Turkey, no. 60856/00, 7 February 2006, where the applicant’s exam results had been annulled where this lacked a legal and rational basis, resulting in arbitrariness). This may also require the imposition of a requirement to recognise such a modified form of assessment on educational institutions and employers (in this connection, see the recognition by the Court in Tarantino and Others v. Italy, no. 25851/09, 2 April 2013, of the importance of satisfying admission criteria for admission to a programme of study).
Compulsion to work
The derogation by the Republic of Moldova envisages the prohibition of workers resigning and citizens being called upon to provide services in the public interest, while that of Romania provides for possible restrictions on the right to strike.
The prohibition on forced or compulsory labour under Article 4(2) ECHR is a provision of the Convention that can be derogated from. However, even without a derogation, this prohibition is qualified by the exclusion from it by paragraph 3(c) of “any service exacted in case of an emergency or calamity threatening the life or well-being of the community”. The compulsory participation of a hunting tenant in measures of control of epidemics has been held by the former European Commission of Human Rights to fall within the scope of this exception (S. v. Federal Republic of Germany (dec.), no. 9686/82, 4 October 1984). It was undoubtedly significant for this finding that the task that the applicant was called upon to perform was not too remote from what he would normally do – he enjoyed shooting rights in an area for which the local government issued a general order for protection against rabies requiring the gassing of all fox-holes – and did not pose any grave danger to him.
Reliance on this exception may only be possible, therefore, where the person being compelled to undertake particular tasks has the real capacity to perform them (possibly taking account of any appropriate training that could be provided) and there are suitable efforts to protect him or her from the risks to his or her health or safety that could arise when doing so. The former requirement would normally be met where someone was simply required to remain in an existing post. The fulfilment of the latter one will depend upon the distribution and installation of protective equipment, preventive action such as testing and requirements imposed on those coming into contact with those performing the tasks concerned (such as keeping a particular distance from them).
Furthermore, it should be noted that in a number of cases concerned with the provision of emergency services by doctors – which are part of the normal health coverage rather than ones in the situation covered by paragraph 3(c) – an important factor in the finding that this did not involve forced or compulsory labour was the burden imposed was not disproportionate so that the work could not be considered to be unjust or oppressive or as constituting avoidable hardship (see, e.g., Koller v. Austria (dec.), no. 23772/94, 28 June 1995 and Steindel v. Germany (dec.), no. 29878/07, 14 September 2010). The extent of the obligation to work, as well as its impact on the particular individual, could well be a consideration in determining the applicability of this exception. This might be essentially significant where steps are taken to mobilise retired persons to resume their former functions.
Restrictions, up to and including a ban, can be imposed on the right to strike notwithstanding the right under Article 11 to form and join trade unions for the protection of one’s interests. In particular, a ban on striking could be seen as a proportionate response where its occurrence could have very serious consequences for health and safety, and the environment (Federation of Offshore Workers’ Trade Unions and Others v. Norway (dec.), no. 38190/97, 27 June 2002). This is obviously a matter of judgment regarding the significance of the activity that would be affected but, in present circumstances, it would be hard to imagine a ban not being considered acceptable – even without a derogation – where the provision of health services, the production and distribution of food and essential goods and key public services were involved. However, where a ban is imposed there would still need to be some means for the occupational interests of those subject to the ban to be protected, such as through the use of compulsory arbitration.
Property
Many of the restrictions already imposed in response to the spread of Covid-19 have involved the requirement for shops, restaurant and other public facilities to close, with a consequent economic effect not only on their owners or operators but also on those who supply them, with some items which the latter would have provided losing some or all of their value. Prohibitions with such an effect are envisaged in the derogations of Armenia, Estonia and Latvia. The derogations of Armenia, Georgia, Latvia and the Republic of Moldova envisage at least some of the following measures: the use of medicine, medical items and other materials; the direction of the activities of companies towards the supply of foods, medicinal products, essential goods and the raw materials required for these; the regulation of prices that can be charged for certain products; and the requisitioning of goods.
All such measures necessarily affect the right to property under Article 1 of Protocol No. 1 ECHR, whether in terms of expropriation, a control of use or interference with peaceful enjoyment. This right allows for restrictions to be imposed in the public or general interest and measures clearly linked to the protection of health would undoubtedly be seen as serving a legitimate aim.
Any deprivation of property would have to be accompanied by the payment of compensation at some point but only the derogation of Armenia refers to “equivalent compensation” being paid where goods are taken. Whether the compensation required under Article 1 of Protocol No. 1 ECHR would have to be at the market value of the property taken would be determined by what is seen as a fair balance between the public and private interest but given the objective anything significantly below that value could be seen as imposing an excessive burden on the owners concerned. However, account might also be taken of efforts by the State to stimulate economic recovery after the crisis has passed.
The inability to open businesses such as shops and restaurants might be seen as a control over use if for a short period but possibly an interference with the peaceful enjoyment of possessions if prolonged. Whether such closures would be seen as imposing an excessive burden on those affected and thus requiring the payment of compensation is far from clear in the absence of anything like a comparable situation having been considered by the Court. However, it might be significant that the closures relate essentially to controls over the activities of potential customers which could mean that there was no legitimate expectation of an income during the period of enforced closure. Some compensation for stock that could no longer be used might, nonetheless be needed (Cf. the approach of the Court to the payment of compensation for stock but not loss of goodwill for businesses affected by the prohibition of handguns (Andrews v United Kingdom (dec.), no. 37657/97, 26 September 2000).
There is also a risk that, with controls on leaving one’s residence, individuals may steal from or damage empty business premises. In such cases, there may be an expectation of an appropriate level of policing to prevent or reduce such possibilities from occurring. However, it is unlikely that a State would be held responsible for such thefts or damage by private persons in the absence of arbitrariness or manifest unreasonableness in the policing arrangements, particularly if the focus is on preventing the spread of the disease (Zagrebačka Banka d.d. v. Croatia, no. 3954/05, 12 December 2013, at para. 251).
Conclusion
The extent to which any restrictions imposed in response to the threat posed by the pandemic will be found to be an unjustified interference with rights and freedoms under the Convention – whether with or without the invocation of a derogation – will be especially dependent upon the specific situation in a member State, as well as their scope and duration. It is doubtful whether all the restrictions being imposed require a derogation to remain consistent with the requirements of the Convention but there are others which may need one, particularly if they last for a prolonged period.
Although the number of member States that have already resorted to a derogation at the same moment is unprecedented, there are many others employing the same measures as those who have done so without submitting one. It remains to be seen whether their actions will be challenged. For many, the restrictions being imposed will – even if inconvenient – seem to be a matter of common sense. However, others who are sanctioned for ignoring or who suffer serious financial losses for complying with them may take a different view.
The situation is undoubtedly an evolving one and those relying on derogations will – pursuant to Article 15(3) ECHR – need to keep the Secretary General of the Council of Europe informed as to the measures being taken.
