April 14, 2020
By Prof Kanstantsin Dzehtsiarou (University of Liverpool, Editor-in-chief of the European Convention on Human Rights Law Review)
In my previous blog post I have analysed what consequences the COVID-19 crisis might have on Human Rights enshrined in the European Convention on Human Rights. Here I will look at the institutional aspect of what the Strasbourg Court can do to ensure ongoing human rights protection in the face of the COVID-19 crisis. Unfortunately, my preliminary answer is not that much. The nature of the European Court of Human Rights as well as many other courts around the world is that they predominantly act post factum, in other words they assess the events after they have already taken place. That said, it is not impossible for the Court to get involved in the current affairs, even though the scope of such involvement is quite limited. In the following parts I will analyse what the Court can and should do in the current situation.
When an application reaches the Court and if this application is not inadmissible the Court sends this application to the respondent state and requests explanations of the alleged violations. The challenge here is that the applications cannot appear in the Court right after the event. In the vast majority of cases the applicant needs to exhaust domestic remedies before she can apply to the ECtHR. In the current situation this exhaustion can take a considerable amount of time. There are few types of cases in which this period can be significantly shortened. For instance, in extradition cases the Court considers if the applicant will be under risk of inhuman and degrading treatment in the receiving state. Although the requirement to exhaust domestic remedies is the same in extradition cases is the same as in any other cases, the crucial difference here is that the applicants argue that they will be under risk of inhuman treatment in the future namely in the receiving country upon extradition. So, those cases which have already been pending at the national level for some time even before the COVID-19 crisis might include reference to COVID-19 now. One may argue that the risk of COVID-19 infection may reach the necessary level of severity and that the Court should stay an extradition. There is only one reported case of Hafeez v the UK in which the applicant is under threat of being extradited to the US. In this case, the UK government was asked: ‘Having particular regard to the ongoing Covid-19 pandemic, if the applicant were to be extradited would there be a real risk of a breach of Article 3 of the Convention on account of the conditions of detention he would face on arrival?’. In this case if the Court finds that there is a risk of breaching of Article 3 (prohibition of inhuman treatment) due to the COVID-19 pandemic then this extradition can be stayed. Although this case might not result in finding a violation, it is an important signal to the States that the Court will be looking into the situation and that the risk of infection can be considered in the context of Article 3. In cases like Hafeez, the Court only assesses the risk of infection. It is almost inevitable that complaints against the measures taken by the states such as quarantine, prevention of family visits in prisons, delays in dealing with criminal and civil cases and many more will also end up in the Court. It is also highly likely that the Court will communicate at least some of them. Communication can act as a confirmation of the fact that the Court will scrutinise those measures that interfere with the rights enshrined in the Convention.. One can speculate as to what impact such communications might have in reality but the mere possibility of accountability can deter some governments from going too far in fighting the pandemic.
The Court has adopted a priority policy, according to which it prioritises certain applications over others. At the moment, the priority policy does not distinguish between the “normal” cases and cases that originate from the emergency situation. It was suggested that the priority policy should reflect the current crisis. I think that this is problematic as it means that emergency cases will get priority over other “priority” cases such as cases in which Article 2 (right to life) or Article 3 (prohibition of torture) are involved. Those emergency cases that involve potential violations of Articles 2 and 3 will anyway be prioritised. Apart from the troubling effect of postponing other important cases that are not linked to the COVID-19 pandemic, I see two further challenges with amending the priority policy. First, if the priority policy is amended by prioritising the cases from states that formally declared a state of emergency, then very similar applications coming from different countries will be treated differently. At the moment less than a quarter of all Contracting Parties have declared the state of emergency and their cases would have to be prioritised even if they are less “serious” than the cases coming from the non-derogating states. Second, priority will never result in overly speedy adjudication by the Court. The European Court takes its time even in priority cases and hopefully the pandemic will be over when the Court starts dealing with the cases stemming from the COVID-19 restrictive measures. Therefore, changing the priority policy might not have intended consequences of influencing the crisis as it unfolds.
Pursuant to Rule 39 of the Rules of Court, the ECtHR can request the relevant government to refrain from some actions that can violate human rights, for example – in extradition cases the Court can ask not to extradite the applicant before it decides whether such extradition will put the applicant in risk of human rights violation. Alternatively, the Court can ask the state to undertake certain positive actions to improve the situation of the applicant. For example, the Court can request the state to transfer an injured prisoner from a prison hospital to a civilian one if the level of care in the former one is not appropriate. The states normally comply with such interim measures; every case of incompliance is treated very seriously by the Court. The reason for success of these measures is that they are used rarely in the “life or death” situations and that they have precise and unambiguous meaning. Interim measures can be used by the Court in the context of the COVID-19 pandemic but they should be used in a very limited number of cases and take the difficult situation of the crisis into account. So it means that, although interim measures can be effective in some extreme cases, they cannot change the situation strategically. This current crisis is clearly not the right case for using “sweeping” interim measures as the Court did in some recent inter-state cases. I do not think that the Court has legitimacy, mandate and expertise to stop the state from certain practical measures unless these measures are manifestly in violation of the convention. For instance, a request by the Court to transfer all sick prisoners to civil hospitals would be clearly excessive. The Court understands that it needs to be careful in using this instrument because, if the states start ignoring interim measures in high numbers, their effectiveness more generally will be undermined.
During the recent webinar on Human Rights in the Time of Coronavirus, Dr Ed Bates suggested that the Court could use a newly acquired competence to deliver advisory opinions on the substantive questions of interpretation of the European Convention of Human Rights. According to Protocol 16, one of the national superior courts can send a request to the European Court to explain a legal issue in relation to the case that is pending before this national court. I was sceptical about the idea of advisory opinions and the first opinion delivered by the Court at least partially confirmed my scepticism. It is highly unlikely that advisory opinions can act as an effective tool of ongoing involvement into the COVID-19 crisis. First, the request needs to come from a superior court of a Member State. Not all states ratified Protocol 16 and therefore the courts of those countries which did not ratify cannot send their requests. For instance, the UK has not ratified this protocol. Second, there should be an application pending before the superior court. It might take time to go through the system of national courts to reach the highest court of the country. Third, the opinion will have to be delivered by the Grand Chamber of the Court (17 judges involved) – it might be difficult to deliver such an opinion within a short period of time. Finally, the substance of such opinion might prove to be problematic. The opinion needs to be both abstract to be meaningful beyond the case at hand and concrete to allow the requesting court to follow the advice. Keeping this balance can be difficult. Moreover, the Court might be required to legislate through the means of advisory opinions which can be seen as illegitimate judicial activism. By legislating I mean setting abstract standards of general application regulating the state’s activities during the pandemic that do not strictly speaking stem from the Convention. This concern is particularly pressing if by some miracle the Court manages to deliver an advisory opinion while the pandemic is still ongoing. Taking into account that the Court announced suspension of some of its activities, delivering such opinion will be highly challenging.
Other organs of the Council of Europe
Although this blogpost is about the European Court of Human Rights, it seems that the Council of Europe has other bodies that are better suited to impact the ongoing situation. These organs are political ones and they do not need to abide by the constraints explained above. They can supervise the developments much quicker than the Court would be able to. The Parliamentary Assembly of the Council of Europe, the Committee of Ministers, the Secretary General, the Human Rights Commissioner, the Commission for the Prevention of Torture and others have political mechanisms of influence which they must use and they need to seek support from the Member States in doing that. These mechanisms include various reporting procedures, supervisory missions, political reactions and statements as well as many others. One might doubt the effectiveness of these measures, the Council of Europe had very mixed responses to its political activities. This crisis is a good opportunity to review the effectiveness of such measures; that said, the reliance on the ECtHR as a means of ongoing protection of human rights is misguided.
The European Court of Human Rights has a limited toolkit of influencing the ongoing emergency, moreover it needs to be careful with how it uses what is available. Having said that, the Member States of the Council of Europe need to know that their actions will be scrutinised and this will hopefully act as some deterrent against disproportionate limitations of rights. Other political organs of the Council of Europe are perhaps better suited to react to the ongoing situation.
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