June 18, 2021
By Alan Greene*
Over a year into the COVID-19 pandemic and the petitions challenging many of the exceptional powers enacted by states across Europe, cases are now beginning to trickle though to the European Court of Human Rights (ECtHR; the Court). In a blog post on this website last year, I cautioned against the dangers of these powers from a human rights perspective. Such powers, I maintained, were absolutely necessary to confront the pandemic. The key human rights concern, however, will be the precedent that these powers may set for similar restrictive measures to be introduced outside of the COVID-19 pandemic. We must, I contended, ensure that these exceptional powers are quarantined to exceptional situations and that formal derogations using Article 15 of the European Convention on Human Rights (ECHR) were the best way of ensuring this. Unfortunately, in Terheş v Romania, the Fourth Section of the Court has fallen at the first hurdle when entrusted with this challenge.
Facts and Judgment
In Terheş, a Romanian Member of the European Parliament challenged Romania’s lockdown measures introduced in response to the COVID-19 pandemic. These measures included: a government ordinance on 21 March 2020 advising against leaving homes between 6am and 10pm and prohibiting them from doing so between 10pm and 6am; and a further ordinance of 24 March 2020 prohibiting all movement outside the home except for a limited number of circumstances, and the requirement to carry a document listing the valid reasons for doing so. These measures stayed in effect until 14 May 2020. The applicant alleged a breach of his right to liberty under Article 5 ECHR.
The Court noted that the measures were applicable to everybody, not just the applicant. There were no specific measures targeted against the applicant such as increased surveillance and there were no particular aggravating circumstances in the applicant’s life that amplified the negative conditions of his confinement. Further, the Court noted that the applicant had been free to leave his home for various reasons and could go to different places. Consequently, the measures could not be equated to house arrest. As a result, the ECtHR found that not only was there no breach of Article 5 but that the measures did not even trigger Article 5 as they did not amount to a deprivation of liberty. The Court then found the application inadmissible.
Restriction v Deprivation of Liberty?
The ECtHR’s reasoning in Terheş is troubling. The Court was certainly correct to look at the various aspects of the confinement regime as a whole with a view to assessing whether the applicant had been deprived of their liberty. Article 5 limits measures that deprive individuals of their liberty; it is not concerned with measures that restrict one’s liberty as enshrined under Article 2 of Protocol 4. However, the Court has stated that the distinction between deprivation and restriction of liberty is ‘merely one of degree and intensity, and not one of nature or substance’. Further, regard must be had to ‘a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question’.
So, on the one hand, the Court was correct to look at the particulars of the regime; on the other hand, the assessment of this regime is deeply problematic. Notably, the Court stressed that Romania’s lockdown regime could not be compared to house arrest; however, this assumes that ‘house arrest’—whatever that means—is the threshold a regime is required to reach before Article 5 is even triggered. This lazy conflation ignores the context specificity that is supposedly built into the restriction-deprivation assessment. As I argued on this site in April 2020:
we cannot simply examine analogous measures previously found by the ECtHR to constitute restrictions rather than deprivation of liberty. For example, simply because a 12-hour curfew under one regime did not constitute a deprivation of liberty, does not mean that a 12-hour curfew under another regime with fewer safeguards or additional restrictions factored in will also not fall within the ambit of Article 5. The variables in each regime need to be factored in.
Yet this is precisely what the ECtHR in Terheş appears to have done by measuring Romania’s lockdown regime against this arbitrary, under-developed concept of ‘house arrest’.
Importantly, the Court in Terheş has ignored the lack of safeguards or person specificity built into lockdown regimes, in fact going so far as to suggest that they point in the direction of lockdowns amounting to restrictions rather than deprivation of liberty. For instance, a burden of proof is often required for an individual to be lawfully deprived of their liberty under Article 5. If such a burden of proof is missing—e.g. if a person can be stopped and searched, or questioned for a period of time without reasonable suspicion— this lack of burden of proof must be a factor to be considered when adjudicating upon whether a measure triggers Article 5. This point is completely overlooked by the ECtHR in Terheş. In fact, the Court appears to have come to the opposite conclusion, implying that since the measures applied to everybody in Romania and not the Applicant in particular, this actually points the lockdown measures in the direction of ‘restrictions’ rather than ‘deprivation’ of liberty. The Court’s emphasis on the lack of evidence adduced by the Applicant pertaining to how the measures affected him specifically is thus a misdirection on the part of the Court. Certainly, bespoke conditions of confinement can push a restriction towards a deprivation of liberty of a specific person, but this still does not obviate the need for the Court to consider the complete lack of person-specific safeguards built into Romania’s lockdown regime when assessing whether the measures constitute a restriction or deprivation of liberty. This is all the more important given the fact that the key to lockdowns is that everybody is subject to them.
To add insult to injury, by finding the application inadmissible, Terheş paves the way for similar applications to be summarily dismissed by a single judge, on similar mis-judged grounds.
Conclusions: Normalising the Exception?
In April 2020, I argued that
If these powers are found to be simply restrictions rather than deprivations of liberty so that Article 5 ECHR is not even triggered, this principle would be open to legitimating similar measures for other crises represented by the state as necessitating them. Such emergencies may be ‘less objective’ than the current pandemic, for example terrorism, and are fertile grounds for human rights abuses. While these measures would still fall under the ambit of Article 2 of Protocol 4 and the qualified right of freedom of movement, it is important to note that states such as the UK and Turkey have not ratified Protocol 4.
The Court has thus fallen at the first hurdle when it comes to the huge challenge of preventing the normalisation of exceptional pandemic emergency powers. The Court did emphasise that the Applicant did not raise the issue of the lockdown regime’s compatibility with Article 2 of Protocol 4, most likely because Romania had derogated from this aspect of the Convention. Romania did not, however, derogate from Article 5 ECHR.
By failing to insist upon the need to derogate from Article 5, the ECtHR has demonstrated the dangers of trying to claim that the state’s ordinary human rights provisions are still in effect in a time of extreme crisis. Rather than increasing human rights standards, the ECtHR’s approach in Terheş shows how these ‘normal’ human rights standards have been stretched to accommodate these exceptional powers. This stretched jurisprudence then ‘lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need’. The principle is not quarantined to a ‘public emergency threatening the life of the nation’ because no such emergency under Article 15 has been formally declared.
Again, I do not wish to give the impression that I am against lockdowns. I believe lockdowns are necessary to control the virus and protect people’s lives. The virus is the ‘ideal state of emergency’. It constitutes an exceptional threat to people’s lives and thus it necessitates an exceptional response. However, we must be careful that this exceptional response does not become unexceptional. In an era of democratic decay and creeping authoritarianism across many Council of Europe states, the ECtHR must be acutely aware of how its pandemic jurisprudence may be deployed outside of the pandemic for less bona fide reasons. Unfortunately, Terheş may be a harbinger of an ECtHR approach that misses this bigger picture.
* Alan Greene is a Senior Lecturer in Law at Birmingham Law School. He is the author of Emergency Powers in a Time of Pandemic (Bristol University Press 2020) and Permanent States of Emergency and the Rule of Law: Constitutions in an Age of Crisis (Hart Publishing, 2018). A list of his publications on the pandemic and human rights can be found here.