Strasbourg Observers

To derogate or not to derogate? Poll on emergency Covid-19 measures

April 02, 2020

These are exceptional times. Covid-19 represents a threat to public health in Europe of an extent that is unprecedented in modern times. At the same time, the restrictions on normal life imposed by Council of Europe Member States in response to the outbreak are a test case for the ECHR regime. While the Strasbourg Court itself has temporarily suspended most of its activities, including the delivery of new judgments, the human rights pressures generated by the Covid-19 crisis continue to provide a source for vigorous debate within the ECHR community. An important question that currently divides the ECHR community  is whether or not States should make a derogation under Article 15 ECHR with a view to taking the necessary measures in response to the public health emergency. Via the poll below, we would like to enquire into the view of you, our readers, on the necessity and/or desirability of States making such a declaration.

But first, a recap. Article 15 allows States, “[i]n time of war or other public emergency threatening the life of the nation”, to derogate from their obligations under the ECHR. Derogation, however, does not mean that everything goes, since the Strasbourg Court remains competent to examine ex post facto whether measures derogating from ECHR obligations were “strictly required by the exigencies of the situation” (see, for instance, A. and Others v. the United Kingdom). So far, in the context of the Covid-19 crisis, seven Member States (Albania, Georgia, Estonia, Moldova, Armenia, Romania and Latvia) have made a derogation declaration to the Secretary General of the Council of Europe (you can find these declarations, including possible future ones, here).

In two excellent contributions on this blog, Kanstantsin Dzehtsiarou and Alan Greene have defended different positions in the Article 15 debate. Regarding the necessity of derogation, Dzehtsiarou has argued that ECHR rights do not constitute an obstacle to effective governmental measures in response to the Covid-19 crisis. This is because ECHR rights, and in particular the regular limitations grounds included in most of them, are sufficiently flexible to accommodate such measures. Regarding the desirability of derogation, Dzehtsiarou moreover considers it particularly crucial in times of emergency to keep the authorities accountable and to put a limit on the granting of new extensive powers to the executive.  Greene, on the other hand, considers that derogation is necessary, in particular in order to allow for far-reaching lockdown powers, which are incompatible with Article 5 ECHR (the right to liberty and security). In addition, Greene argues that derogation is desirable, as the alternative is a situation in which emergency powers are conferred via ordinary legal norms, at the risk of such powers becoming permanent, even after the emergency has ended. In addition, there is the risk that courts may construct the ordinary limitation grounds in an expansive manner in order to accommodate for emergency measures, which may lead to a permanent “downwards recalibration” of human rights protection. The derogation regime mitigates such risks, since it “quarantines” exceptional powers to exceptional situations.

Having been enlightened by both authors, it us now up to you, dear readers, to cast your vote on the question whether derogation is necessary and/or desirable to accommodate the adoption of the emergency measures that have been currently taken in various Council of Europe Member States in response to the Covid-19 outbreak, such as lockdowns, quarantines, travel restrictions, restrictions on public and private gatherings and on the dissemination of information that endangers public health and the shutdown of courts and schools (for an excellent discussion, see here). Below the poll, you can find some explanations regarding the different options in order to assist you in picking your choice. Once you’ve voted, you should be able to immediately see the results of the poll. You’re also welcome to contribute to the debate by sharing your reasons for voting in the comments section below.

Derogation is necessary and desirable: We’re dealing with a public health emergency which requires the taking of emergency measures that go further than what the ordinary limitation grounds allow for. The measures should however be strictly restricted in time, in accordance with the duration of the emergency.

Derogation is desirable but not necessary: The ordinary limitation grounds are sufficiently flexible to accommodate the emergency measures that have been taken, if necessary through an expansive interpretation thereof. Derogation would however avoid the risk of “downwards recalibration” of human rights.

Derogation is necessary but not desirable: Some of the emergency measures go further than what is normally allowed under the ordinary limitations grounds, and should be excluded, even if this would go at the expense of the effectiveness of the governemental response to the emergency situation. You may also be of the opinion that the risk of abuse of emergency powers taken under the cloak of an Article 15 derogation outweighs the potential benefits to public health. Alternatively, you may consider that an effective response to the public health emergency rather requires other measures that do not constitute restrictions on human rights at all (e.g. increasing the capacity of health services).

Derogation is neither necessary not desirable: The ordinary limitation grounds are sufficiently flexible to accommodate the emergency measures that have been taken in response to the public health emergency. Derogation would moreover open the door to abuse of emergency powers.

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