Covid-19

Falling at the First Hurdle? Terheş v Romania: Lockdowns and Normalising the Exception

Guest Blogger Admissibility, Article 5, Covid-19, Right to Liberty and Security, Terheş v. Romania , , ,

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.

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Feilazoo v. Malta: Immigration detention in the context of the Covid-19 pandemic and beyond and the right of individual petition

Guest Blogger Covid-19, Feilazoo v. Malta, Prisoners

By Dr. Aristi Volou (Post-Doctoral Researcher at the Centre for Fundamental Rights, Hertie School and Associate Editor of Oxford Reports on UN Human Rights Law)

Introduction

On 11 March 2021, the First Section of the European Court of Human Rights (hereinafter the ‘Court’) delivered a highly anticipated judgment which concerned issues related to the Covid-19 pandemic. More precisely, in Feilazoo v. Malta, the Court was called upon to decide on the applicant’s immigration detention next to new arrivals in Covid-19 quarantine, as well as on the conditions and the lawfulness of his immigration detention and on issues related to the right of petition before the Court.

Although we can praise the Court for its balanced approach to the question of access to medical treatment, other aspects of its decision on the conditions of detention are disappointing. First, the Court did not seize the opportunity to develop clear and adequate standards in the context of the deprivation of liberty during the Covid-19 pandemic and thus clearly failed to live up to expectations that it would play an active role in safeguarding the rights of those most affected by the pandemic such as detainees and prisoners. Second, the Court failed to consider all available evidence which would enable it to hold the respondent State accountable for overcrowding in detention.

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When States Steal Christmas: the Citizens’ Right to Return to the Country of Citizenship in Time of Pandemic

Guest Blogger Covid-19, Freedom of movement

By Andrea Preziosi (University of Birmingham – School of Law)

Prologue

When I started writing this post, I was stuck in Birmingham few days before Christmas instead of being on a flight to Italy to spend the holiday break with my family. Needless to say, it was not my decision, but the result of the decision of the Italian government, as well as many other governments around the world, to ban flights from the UK following the reported news of a new variant of Covid-19 detected in south-east England that threatened to spread anywhere else. Frustration, anger and sadness are not enough to describe my feelings when the news broke out. I thought that Italy had disrupted my plan to visit my  family and condemned me to pass Christmas in total loneliness, as if the forced isolation lasting almost one year had not been enough.

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Announcement: Webinar “Human Rights of Migrants, COVID 19 and the ECHR” (2 June 2020)

Strasbourg Observers Covid-19

We’re looking forward to the fourth webinar from the #HRvsCOVID series on 2 June 2020 (5 pm CET, 4 pm UK time). The webinar will address the question of the human rights of migrants in the context of COVID-19. Here is the announcement of the upcoming webinar:

 Human Rights of Migrants, COVID 19 and the ECHR 

Webinar 

2 June 2020

5 pm CET/4 pm BTS 

Continue reading →

Access to healthcare and social distance during COVID pandemic cannot stop at the prison gate

Guest Blogger Covid-19, Prisoners

By Maïté De Rue

Because they are often very populated places with poor living conditions, prisons present a high risk of contamination in a period of pandemic such as COVID-19. A number of countries have taken measures to decrease pressure on penitentiary institutions by releasing prisoners or decreasing the number of new arrivals. This approach is with no doubt an essential one, especially in light of overcrowding that characterizes many prisons around the world. However, this is not the only measure that States must take to respond to the health crisis, as many people will stay in prison. They have also the duty to organize the protection of health and life of prisoners.

What does such obligation concretely entail when facing a pandemic? The norms and standards developed by the Council of Europe, and in particular by the Court and the European Committee for the prevention of torture (CPT), and by the United Nations can help to answer this question and to define the main duties that define State obligations with regards to protecting prisoners against COVID-19. Continue reading →

Herd Immunity and Lockdown: The Legitimacy of National Policies Against the Pandemic and Judicial Self-Restraint by the ECtHR

Guest Blogger Covid-19

By Dr Vassilis P. Tzevelekos, Senior lecturer in Law, University of Liverpool School of Law and Social Justice; Editor-in-chief of the European Convention on Human Rights Law Review

The ongoing pandemic and the measures adopted to protect human life/health in response to the coronavirus seriously affect the enjoyment of fundamental human rights. The COVID-19 outbreak has led a number of states to derogate from their international human rights obligations. Other states have not (yet) formally derogated, but they have passed emergency legislation restricting rights through the usual means that are available within their domestic legal orders (for instance, regarding the author’s home country, see Karavokyris). This trend raises a number of interesting questions as to whether emergency laws amount to an unnotified, de facto derogation or whether states should declare a state of emergency (Greene, Scheinin). More generally, questions regarding the modalities (Istrefi, Holcroft-Emmess) and the lawfulness of derogations have arisen. Irrespective of whether restrictions to qualified/derogable human rights are made on the basis of a derogation clause contained in an international human rights instrument (such as Article 15 ECHR) or through the habitual route of ‘everyday life’ limitations, in both cases restrictions must ultimately satisfy the proportionality test. Proportionality is thus a common denominator. Continue reading →

Indiscriminate Covid-19 location tracking (Part II): Can pandemic-related derogations be an opportunity to circumvent Strasbourg’s scrutiny?

Guest Blogger Covid-19, Right to Private Life

By Ilia Siatitsa and Ioannis Kouvakas

Yesterday, we argued that blanket mobile phone location tracking measures that aim at containing the spread of the Covid-19 pandemic cannot be regarded as strictly necessary due to their indiscriminate nature and the existence of less intrusive alternatives with potentially similar effectiveness. In this second blog post, we reflect on whether states could derogate from Article 8 in order to impose indiscriminate location tracking.

As of 24 April 2020, ten states, i.e. Albania, Armenia, Estonia, Georgia, Latvia, Moldova, North Macedonia, Romania, San Marino and Serbia have officially derogated from their obligations under the European Convention on Human Rights (ECHR) citing the public health emergency posed by the pandemic, while a domestic court has also attempted to do so on behalf of the United Kingdom! Six of these states Albania, Estonia, Georgia, Latvia, North Macedonia and Romania – have explicitly included Article 8 (or the respective constitutional right) in the list of Articles they have chosen to derogate from. Continue reading →

Indiscriminate Covid-19 location tracking (Part I): Necessary in a democratic society?

Guest Blogger Covid-19, Right to Private Life

By Ilia Siatitsa and Ioannis Kouvakas

In his recent interview on The Intercept, Edward Snowden questioned whether the measures implemented by authorities amid the pandemic are necessary to safeguard people, as well as, whether the pandemic is seen by governments as just another opportunity to make us acquiesce to mass surveillance. In a scramble to track, and thereby stem the flow of new cases of Covid-19, governments around the world are rushing to track the locations of their populace. One way to do this is to leverage the metadata, including location data, held by mobile service providers (telecommunications companies) in order to track the movements of a population, as seen in Italy, Germany and Austria, and with the European Commission.

This is the first of two blog posts that will examine whether indiscriminate location tracking could ever be justified under the Convention, in light of the global pandemic. Continue reading →

Announcement: Webinar “The State’s positive obligations under IHRL during the coronavirus outbreak” (5 May)

Strasbourg Observers Covid-19

After thought-provoking webinars on “Human Rights in the Times of Coronavirus” and “Council of Europe: The Conscience of Europe in a Time of Crisis” (recorded versions of which are available here and here), next week a third webinar in the series will address the role of positive obligations in the context of Covid-19. The webinar takes place on Tuesday 5 May at 3 pm UK time, 4 pm CET. Here is the announcement:

The State’s positive obligations under IHRL during the coronavirus outbreak

Webinar

5 May 2020

3pm (UK time) Continue reading →

Strengthening the supervision of ECHR derogation regimes. A non-judicial avenue

Guest Blogger Covid-19

By Georgiana Epure

This contribution sheds light on the limited effectiveness of the European Court of Human Rights (ECtHR) in supervising states of emergency and highlights one possible non-judicial avenue to strengthen the supervision of derogation regimes: Article 52 of the European Convention on Human Rights (ECHR), which allows the Secretary General of the Council of Europe to open and inquiry into the effective implementation of the Convention. 

The derogation clause and the ECtHR’s limited supervisory role

An epidemic of authoritarian measures may be following on the heels of the COVID-19 pandemic, warned Fionnuala Ní Aoláin, the UN Special Rapporteur on counterterrorism and human rights. Across the Council of Europe membership, numerous countries have declared states of emergency in order to take unprecedented measures to tackle the COVID-19 pandemic. Continue reading →

Announcement: Webinar “Council of Europe: The Conscience of Europe in a Time of Crisis” (21 April)

Strasbourg Observers Covid-19

In follow-up to the succesful webinar on “Human Rights in the Times of Coronavirus” (a recorded version of which is available here), next week another webinar is taking place on the role the Council of Europe could play in the context of the Covid-19 crisis. The webinar takes place on Tuesday 21 April at 4 pm UK time, 5 pm CET. Here is the announcement:

 

Council of Europe: The Conscience of Europe in a Time of Crisis

Webinar

21 April 2020

4 pm

https://zoom.us/j/164030987 (if you wish to participate and ask questions. Come early limited to 100 participants)

https://youtu.be/LrHejIHHAfQ (if you wish to follow the livestream)

The panellists will discuss the role and potential influence of the Council of Europe on the ongoing COVID-19 crisis. The panellists will discuss the expectations and reality of what can be done by a human rights institution in time of de facto emergency.

Panellists:

Chairs: Prof Kanstantsin Dzehtsiarou (University of Liverpool) and Dr Stuart Wallace (University of Leeds)

Dr Veronika Bilkova (Charles University in Prague, Venice Commission)

Prof Philip Leach (University of Middlesex)

Rob Linham OBE (Deputy UK Permanent Representative to the Council of Europe)

Jörg Polakiewicz (Director of Legal Advice and Public International Law Legal Adviser of the Council of Europe)

Prof Ineta Ziemele (President of the Constitutional Court of Latvia, Former Judge of the European Court of Human Rights)

 

Update (22/04): for those who were unable to join, you can watch the recorded version of this Webinar on YouTube.

What Can the European Court of Human Rights Do in the Time of Crisis?

Guest Blogger Covid-19

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. Continue reading →

Announcement: Webinar on Human Rights in the Time of Coronavirus (7 April)

Strasbourg Observers Article 15, Covid-19

Dear readers,

This week, an interesting debate took place on our blog regarding the necessity and/or desirability of derogation under Article 15 in the context of the Covid-19 crisis. The poll we launched yesterday on this question is still quite tight, indicating that many people continue to disagree on the path to take. At Strasbourg Observers, we are therefore very happy to support continued debate on this question in the form of a webinar, which will take place next Tuesday (7 April) at 4 pm UK time, 5 pm CET. Here is the announcement:

 

Human Rights in the Time of Coronavirus: Does England’s Lockdown Violate Human Rights Law?

Webinar

7 April 2020, 4 pm (UK time)

https://zoom.us/j/335812961 Continue reading →

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

Strasbourg Observers Article 15, Covid-19

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. Continue reading →

States should declare a State of Emergency using Article 15 ECHR to confront the Coronavirus Pandemic

Guest Blogger Article 15, Covid-19

By Alan Greene

Carl Schmitt is, without a doubt, the pre-eminent scholar on states of exception. However, his famous maxim of ‘Sovereign is he who decides on the exception’ has tainted the debate on emergency powers, emphasising their antagonistic relation to the legal order they are supposed to protect and downplaying their protective potential. In this post, I argue why Article 15 of the European Convention on Human Rights (ECHR) should be used to accommodate the emergency lockdown powers necessary to confront the Coronavirus pandemic. This is the closest we shall get to an ‘ideal state of emergency’—the very thing it was designed for. In contrast, far from protecting human rights, failure to use Article 15 ECHR risks normalising exceptional powers and permanently recalibrating human rights protections downwards. Continue reading →

COVID-19 and the European Convention on Human Rights

Guest Blogger Article 15, Covid-19

By Prof Kanstantsin Dzehtsiarou (University of Liverpool)

Our life has changed. The main if not the only topic that everyone is interested in is the ongoing pandemic. The World Health Organisation is one of the most popular international organisations at the moment. This crisis will undoubtably have a significant impact on how we live, travel and perceive our governments. These long-term effects will clearly be a subject of numerous dissertations, articles and monographs. This blogpost will make a very brief overview of the role of the European Convention on Human Rights in assessment of this crisis. In recent days a number of states (for example, Georgia, Estonia, Armenia, Romania, and Latvia) submitted their derogations from the ECHR under Article 15. When the situation calms down it would be very interesting to analyse the exact wording and utility of these declarations. Here, I will start by considering implications of Article 15 to the situation at hand. I will then briefly analyse how other Articles of the Convention can be engaged in the COVID-19 crises. Of course, this is only a suggestion, the real impact of COVID-19 will be seen in 5-6 years when measures taken by the Governments now will be analysed in judgments of the European Court of Human Rights. Continue reading →