COVID-19 restrictions on human rights in the light of the case-law of the European Court of Human Rights
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COVID-19 restrictions on human rights in the light of the case-law of the European Court of Human Rights Sanja Joviˇci´c1
© The Author(s) 2020
Abstract The aim of this article is to examine the restrictions imposed by European States on individual human rights during the COVID-19 pandemic in the light of the European Convention of Human Rights and Fundamental Freedoms. After an overview of the development of the case-law of the European Court of Human Rights on public emergencies and Article 15 of the Convention, the article will examine how the Court’s case-law could be applied to the current sanitary situation. Keywords International Human Rights Law · ECHR
1 Introduction The current COVID-19 pandemic has strained the global economy and limited some of most important human rights and fundamental freedoms in democratic societies. Health safety restrictions have had an impact on freedom of liberty and security for persons being quarantined as a result of contracting or being suspected of having contracted the virus. Limits on freedom of expression have been imposed in order, allegedly, to prevent information disorder. Assemblies and protests have been prohibited to prevent the spread of the virus. Equally, access to courts has been impeded or allowed only under special arrangements. One might argue that there have been violations of the right to life of individuals who have died because of the virus and of the lack of sufficient medical care, especially in detention or care institutions. The right to family life has been disrupted due to restrictions on movement of persons across Europe. Furthermore, there have been instances of interference with the right
B S. Joviˇci´c
[email protected]
1
Course Director in International Human Rights Law, Academy of European Law, Trier, Germany
S. Joviˇci´c
to respect for private life by public authorities tracking infected persons. The emergency situation has caused an unprecedented chain of events affecting everyone and forcing States to take decisions restricting human rights within short time limits. The aim of this article is to examine the restrictions imposed by European States during the COVID-19 pandemic in the light of the European Convention of Human Rights and Fundamental Freedoms. I will present the development of the case-law of the European Court of Human Rights on public emergencies and on Article 15 of the Convention and how it is currently applied by the Court. At the same time, I will examine the current COVID-19 restrictions put in place by a number of States Parties to the Convention, providing critical analysis and concrete recommendations for the future.
2 Limitations and derogations in time of emergency under the European Court of Human Rights case-law The Court examined cases relating to public emergencies either where a derogation of Art. 15 of the Convention applied or in the absence of such a derogation under the limitation clauses contained in some articles of the Convention, such as Arts. 8-11. In the absence of a limitation clause, the Cou
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