Friday, 3 July 2020

New ECHR Readings

Please find below a new batch of recent ECHR-related publications:


* Aikaterini Tsampi, 'The new doctrine on misuse of power under Article 18 ECHR: Is it about the system of contre-pouvoirs within the State after all?', Netherlands Quarterly of Human Rights, vol. 38(2), pp. 134-155:

'The case-law on Article 18 of the European Convention on Human Rights has been evolving recently in a dramatic fashion. This evolution, which shaped a new doctrine on the misuse of power, focuses on the criminalisation of dissent within a State where undemocratic tendencies arise. The purpose of this article is to highlight these undemocratic tendencies and demonstrate that Article 18 ECHR addresses the systemic deficiencies in the balance of powers within a State. A violation of Article 18 ECHR occurs when the executive branch of government male fide tries to erode the social, political and economic contre-pouvoirs within a State and when the institutional contre-pouvoirs, namely the judicial and the legislative branch of government, fail to avert this erosion.'

* Vladislava Stoyanova, ‘Common law tort of negligence as a tool for deconstructing positive obligations under the European convention on human rights’, The International Journal of Human Rights, vol. 24(5) 2020, 632:

'This article examines how the common law tort of negligence can provide a helpful guidance for deconstructing and elucidating some of the disparate analytical issues that are subsumed under the umbrella of positive obligations under the European Convention on Human Rights (ECHR). Both frameworks, the common law and ECHR, aim to delimit the circumstances where responsibility for omissions can be found and have similar conceptual basis of protection in that they protect fundamental interests. However, in the context of the common law certain analytical elements are more thoroughly considered and better articulated. These elements are: the distinction between a duty and a breach of duty; the level of foreseeability of harm; the proximity between the state and the person who has suffered harm; the reasonableness of imposing a duty; the causation between the harm and the alleged omission. Two main arguments emerge from the juxtaposition of the ECHR analysis against the common law. First, by failing to explicitly articulate and distinguish certain analytical elements, the ECHR positive obligation judgments offer little general guidance as to the limits of responsibility. Second, the analytical inquiry applied when adjudicating positive obligations is in tension with the idea of the correlativity between rights and obligations.' 

* Lisa McIntosh Sundstrom, ‘Seeking better judgment: LGBT discrimination cases in Russia and at the European Court of Human Rights’, The International Journal of Human Rights, vol. 24(6) 2020 750:

'Drawing upon data from field interviews, court records, and media and NGO reports, this article examines Russian cases claiming LGBT discrimination in domestic courts and at the European Court of Human Rights (ECtHR). The ECtHR has provided a less homophobic venue than Russia’s domestic courts for such claims, but its judgments have had little effect in Russia. We argue that the Russian case illustrates a paradox in the domestic politics of international human rights litigation. Activists from domestic contexts where discrimination is most prevalent are most likely to make successful claims in international human rights courts, while in those same contexts, informal discriminatory norms are likely to be strongest, resulting in those international court decisions having the least impact on the ground.' 

* M. Lufti Chakim, ‘The margin of appreciation and freedom of religion: assessing standards of the European Court of Human Rights’, The International Journal of Human Rights, vol. 24(6) 2020 850:

'Throughout history, the relationship between religion and State has posed challenges. The issue of religious symbols in the public sphere is an area where the European Court of Human Rights has granted a wide margin of appreciation to States. The main argument is that there is no European consensus on the issue and that national authorities are better positioned to determine when interference with the freedom of religion becomes necessary in a democratic society. However, this argument has evoked criticism that no strong legal reasons or standards have been applied to the doctrine of the margin of appreciation. This article aims to analyse the Court’s standards through an examination of the limits imposed on the doctrine under European supervision. Notwithstanding the controversy over its application, the doctrine does play an essential role in accommodating the diversity of human rights protection in Europe. Therefore, in future judgements, the Court should focus on a proportionality test against the State arguments, which would allow the Court to determine the applicability of the doctrine in the case of freedom of religion.'

* Veronika FikFak, ‘Non-pecuniary damages before the European Court of Human Rights: Forget the victim; it’s all about the state’, Leiden Journal of International Law, vol. 33(2) (2020) 335:  

'This article studies how the European Court of Human Rights (ECtHR, the Court) adjusts damages for human rights violations. The article empirically analyses 13 years of ECtHR’s case law in relation to Articles 2 (right to life), 3 (torture, inhuman and degrading treatment), and 5 (arbitrary detention) of the European Convention on Human Rights (ECHR, the Convention). The goal is to understand whether the statements made by the Court about the aims pursued through just satisfaction are confirmed in practice. Through an empirical quantitative study relating to non-pecuniary damages, the article analyses the practice of the Court in awarding non-pecuniary damages for human rights violations and compares it to the competing visions of the ECtHR’s function. In particular, I am interested in determining whether just satisfaction is aimed at redressing the suffering of the victim, her circumstances and vulnerability, or whether the focus is more on the respondent state, its conduct and its past human rights record. The answers to these questions will contribute to the debate whether the ECtHR’s role is one of delivering ‘individual justice’ or whether the Court is – as an international court enforcing an international treaty – focused on the ‘state’.' 

* Thiago Alves Pinto, ‘An Empirical Investigation of the Use of Limitations to Freedom of Religion or Belief at the European Court of Human Rights’, Religion and Human Rights, vol. 15(1-2) (2020) 96:

'Most literature on freedom of religion or belief argues that there should be a high threshold for the imposition of limitations to the manifestation of the right. However, the practice of the European Court of Human Rights shows that the bar is much lower than academics suggest. This article explores this issue by analysing a plethora of cases and on the basis of interviews with lawyers connected to the Court. While the Court often considers the requirements of legality, legitimacy, and necessity, it does so briefly; focusing mostly on the analysis of proportionality and the margin of appreciation to the State in question. This approach makes the decisions exceedingly subjective and leads to little legal certainty in the area. Therefore, it is suggested that if the Court would analyse all criteria to impose limitations strictly, it could become more efficient while providing greater protection for persons to manifest their religion or belief.'

Thursday, 18 June 2020

Guest Post: Implementation of the ECtHR’s judgments – A Call for Greater Transparency

It is my pleasure to host another guest post - this time by Ewa Garbarz, who is interning at the European Implementation Network (EIN):

Implementation of the ECtHR’s judgments – A Call for Greater Transparency 

The latest Committee of Ministers’ Annual Report on the status of execution of the leading judgments of the European Court of Human Rights (ECtHR) suggests a success in states’ compliance with the Court’s judgments and their implementation. Whereas the overall number of cases pending implementation is indeed decreasing, the disaggregation of the data demonstrates that the implementation of judgments in leading pending judgments still poses a significant problem. This matter has been the subject of criticism in the past; it has been pointed out that the lack of understanding of this issue as well as a clear evidence base makes it difficult for the key actors, such as Human Rights NGOs, funders and guardians of the ECHR system, to effectively address the problem of non-implementation.  

The independently undertaken research for this short blog has revealed that the obligation of ECHR state parties to report on the progress of leading judgment implementation is being neglected. This happens by causing substantial delays in submitting Action Plans and Action Reports or not filing them at all. Such information, despite being critical for both civil society and for the Council of Europe itself, is not easily accessible. As a result, the issue is not being dealt with properly. Transparent, state-by-state data regarding average implementation time and the rate with which Action Plans and Reports are submitted is essential for a swift and successful implementation and would be helpful for Human Rights NGOs in taking critical decisions on whether to prioritise work on litigation or implementation.

ECHR state parties are at liberty to choose the means of implementation which according to them are the most appropriate to address the violation. Nevertheless, they have a duty to report and collaborate with the Committee of Ministers in order to successfully comply with the judgment. Certain mechanisms of monitoring that process ensuring that states do in fact comply with the verdicts exist. However, the data regarding Moldova, Romania and Bulgaria collected and calculated in my research suggests that those mechanisms might not be sufficient and might not guarantee successful implementation or even collaboration from the part of the state. 

My research shows that in Romania the average time of implementation of the ECtHR’s leading judgments is 4 years, 6 years in Bulgaria, and 8 years in Moldova (data for March 2020). It is concerning that such delays exist, and that this data is not available to search in a state-by-state manner. The data is not easily accessible either on the HUDOC-EXEC search engine, or in the Committee of Ministers’ Annual Report. Using these main sources, it is not possible to easily find out the average length of the execution process per country – data crucial for national NHRIs, NGOs and anyone attempting to improve the national implementation rate or speed up that process, as it provides a full picture of how well the given state is working towards the successful implementation and fixing structural problems. It is believed that adding these options to the search engine could considerably aid NGOs and NHRIs working on the implementation improvement. 

For an average user of HUDOC-EXEC, the information with what success and frequency the states are filing Action Plans and Reports regarding specific judgments are not easily available either. It is a requirement for a state to provide an Action Plan with relevant information on the execution of the judgment of the ECtHR after that judgment has become final, and subsequently, Action Reports as soon as execution is deemed completed by the respondent State. Knowledge about Action Plans and Reports is important as it provides significant data about the rate of the compliance of states with the judgments. While HUDOC-EXEC allows to check for the overall number of submitted and awaiting documents, the information about the length of the procedure or the delay of a state in submitting an Action Plan or a Report is not that easily accessible. The only way to find out about the date of the submission of an Action Plan or state’s, applicant’s or an organization’s communications is a time-consuming and quite complicated procedure of reviewing each case individually. This makes that crucial piece of information inaccessible to the general public, and most importantly, to the organisations and institutions which otherwise equipped with that knowledge could have become involved putting pressure on the authorities in case of a delay. 

The fact that this information is essentially unknown results in no action being taken, whereas the research shows it is desperately needed; from the analysed data for Moldova, Bulgaria and Romania it appears that the average time since last the filed report (it being either Action Plan, or Action Report) for Romania is equal 2.2 years, for Bulgaria – 2.5 years and for Moldova – 6.3 years. In fact, apart from the issue of late submission of Action Plans, another pressing problem is that in some cases it is not received at all. It should be reminded at this point that states have an obligation to report on the process and workings on the implementation in the first 6 months after the judgment has been delivered. For example, in Romania in exactly 25% of leading pending cases, the Action Plan (AP) is still awaiting. In the case of Moldova that percentage is over twice as big reaching 57%. This means that an AP has not been submitted in 29 out of 52 leading pending cases. It is clear that some states are not abiding by the 6-months-rule, leaving the Committee of Ministers uninformed about the state of affairs, slowing down or even completely abandoning the process of implementation. These critical facts should be apparent and easily accessible so that an intervention from the part of interested NGOs or NHRIs is rendered possible.

To conclude, the approach taken by the Council of Europe and the Committee of Ministers, of presenting the general number of pending cases including leading and repetitive ones is insufficient. Additionally, the data concerning average implementation time or average time since last report per state is not available and only possible via conducting an independent analysis. What is needed is a database with state-by-state information setting out the extent of the problem of non-implementation and non-reportingIt would certainly prove useful for the Council oEurope as a whole, providing insight into states’ individual approaches to the execution of the judgments. Furthermore, such a tool would certainly be of great help to the civil society movement within each country making the organisations and institutions aware of the scale of the problem and enabling them to successfully put pressure on governments pursuing swift and successful implementation. 

Tuesday, 16 June 2020

New Book on Extraterritorial ECHR Application

Conall Mallory of Newcastle University has published Human Rights Imperialists. The Extraterritorial Application of the European Convention of Human Rights with Hart Publishers. To human rights academics, the topic of this book will not be unfamiliar: entire research projects have been based on the issue of extraterritoriality of human rights treaties. And ECHR scholarship has also had its fair share of writing about the issue. What this book adds is a detailed analysis not just of the development of Strasbourg jurisprudence on the issue but also of the position of other actors, specifically domestic courts - the case study here, if one wants to frame it as such, is the practice of British courts and executive authorities. And specifically, it goes beyond explaining the what and dives into the 'why' issue: why did case-law and practice develop as it did? One of the particularly attractive features of this book is its accessible style, and stup really drawing the reader in at the start of each chapter with very concrete examples and questions and thus avoiding a potentially dry narrative on a very technical issue. Recommended! This is the abstract:

'To what extent do a state’s obligations under the European Convention on Human Rights apply beyond its territorial borders? Are soldiers deployed on overseas operations bound by the human rights commitments of their home state? What about other agents, like the police or diplomatic and consular services? If a state’s obligations do apply abroad, are they to be upheld in full or should they be tailored to the situation at hand?

Few topics have posed more of a challenge for the European Court of Human Rights than this issue of the Convention’s extraterritorial application. This book provides a novel understanding on why this is by looking at the behaviour of those principally tasked with interpreting the treaty: the Strasbourg Court, state parties, and national courts. It offers a theory for how these communities operate: what motivates, constrains and ultimately shapes their interpretive practices. Through a detailed analysis of the jurisprudence, with a particular focus on British authorities and judges during and after the Iraq War (2003), the book provides an explanation of how the interpretation of extraterritorial obligations has developed over time and how these obligations are currently understood. Some have argued that it is imperialistic to apply the Convention extraterritorially. If this is the case, the focus of this book is on those ‘imperialists’ who have interpreted European human rights law to extend beyond a state’s borders, as it is with them that any lasting solution to the challenge will be found.' 

The book is both available as hardback and as an E-book.


Thursday, 4 June 2020

Miscellaneous Updates: Webinar Recordings and NGO Guide

Dear readers, two different updates relating to earlier blogposts on here:

First, the recording of the very interesting webinar / public online talk of President Robert Spano, held last week, has now been put online on the iCourts website. A big thanks to the team in Copenhagen for making this available, also for future reference (and all the more so as the livestream was hampering for many viewers, so it recording provides for high-quality, buffering-free watching and listening). Warmly recommended, as Spano addressed a lot of topical aspects of judicial independence and answered questions coming in on Twitter from the audience.

Also mentioned before, last month the European Implementation Network organised a webinar on effective domestic ECHR implementation. This has now also been put online. On that occasion, an EIN Guide for civil society on domestic advocacy for the implementation of Strasbourg Court was also launched. Accordign to its compilers, these are the contents:

'The examples compiled in this guide show that, where NGOs have sought, identified and pursued opportunities for engaging with the authorities, where they have formed alliances with other civil society actors and used the media to drive implementation forward, they have managed to secure important human rights gains. 

We hope that civil society actors in Europe will draw inspiration from the best practices and lessons learned presented in this toolkit. Because the conditions for effective implementation vary from country to country, from time to time and even from case to case, this guide does not provide a blueprint, one-size-fits-all approach to domestic advocacy for judgment implementation. Instead, it is conceived as a ‘menu’ of potential strategies, tools and actions that NGOs could take at the national level to push for the execution of judgments. The readers are encouraged to pick and choose those elements of this guide that are most relevant to them.

This guide is also a ‘living document’. It seeks to spark a wider conversation among civil society about how to use advocacy at the domestic level to push for the implementation of judgments. We therefore warmly invite our readers to send us feedback, and share their own experiences with domestic advocacy for the implementation of Strasbourg Court judgments with us. So please get in touch!' 

Friday, 29 May 2020

First Issue ECHR Law Review

A new academic baby is born, but one with very dedicated and experienced parents: the first issue of the new European Convention on Human Rights Law Review has now been published online (with Brill Publishers). With a number of short musings about the Court and the Convention, the first articles and book reviews, this is well worth a read. This is the table of contents of issue number 1:

* The Conscience of Europe that Landed in Strasbourg: A Circle of Life of the European Court of Human Rights, Kanstantsin Dzehtsiarou and Vassilis P Tzevelekos

* Key Challenges for the ECHR System: Protecting and Empowering Institutions, Human Rights Defenders and Minorities, Eva Brems

* The European Court of Human Rights at Sixty – Challenges and Perspectives, Angelika Nussberger

* Strasbourg’s Integrationist Role, or the Need for Self-restraint?, Ed Bates

* The European Convention on Human Rights as a Tool of European Integration, Christos Rozakis

* Loyalty, Subsidiarity, and Article 18 ECHR: How the ECtHR Deals with Mala Fide Limitations of Rights, Corina Heri

* The European Court of Human Rights and FIFA Current Issues and Potential Challenges, Daniel Rietiker

* Bouyid v Belgium: The ‘Minimum Level of Severity’ and Human Dignity’s Role in Article 3 ECHR, Natasa Mavronicola

* Sexuality & Transsexuality Under the European Convention on Human Rights: A Queer Reading of Human Rights, written by Damian A Gonzalez-Salzberg, Eszter Polgári

* The European Convention on Human Rights as an Instrument of Tort Law, written by Stefan Somers, Zoë Bryanston-Cross

* Behind the Veil: A Critical Analysis of European Veiling Laws, written by Neville Cox, Myriam Hunter-Henin

Congrats to the editors! You can also follow the new journal on twitter (follower are promised to get open access to the first issue, as currently most articles are still behind a paywall).

Tuesday, 26 May 2020

Guest Post on the European Court, Domestic Oversight of COVID-19 Emergency Measures, and Procedural Rationality

It is my pleasure to introduce a guest post commenting a specific aspect of the current COVID-19 pandemic: how the European Court of Human Rights could foster oversight within ECHR state parties by using procedural rationality. It was written by my SIM colleague Kushtrim Istrefi and his co-author Vassilis Tzevelekos. Good food for thought!

A Way for the ECtHR to Foster the Domestic Oversight of Emergency Measures Against the Pandemic: Procedural Rationality’s Special Mission

Dr Vassilis P Tzevelekos, senior lecturer at the University of Liverpool School of Law and Social Justice, and Dr Kushtrim Istrefi, assistant professor with the Netherland Institute of Human Rights (SIM) at Utrecht University

In the wake of the current pandemic, a number of international institutions have stressed the importance of parliamentary and judicial oversight of national emergency policies. For instance, in the COVID-19 toolkit, the Secretary General of the Council of Europe noted that any emergency measures “should comply with the constitution […] and, where applicable, be subjected to review by the Constitutional Court”. The Venice Commission has highlighted the importance of parliamentary oversight and judicial review with respect to declarations and prolongations of states of emergency. In similar terms, the OSCE has called for stronger parliamentary oversight of emergency measures. The UN, in its policy brief on COVID-19 and human rights, underlined parliamentary scrutiny as a good practice and criticised weak domestic oversight of executive measures.

These calls highlight the importance of domestic oversight of emergency measures in the wake of COVID-19. In this blog, we argue that the European Court of Human Rights (ECtHR) has a ‘tool’ of analysis, namely procedural rationality, that allows for closer engagement with domestic oversight. This engagement, in our view, can ensure stronger European supervision of such measures and help to build common standards of domestic oversight in a manner that also takes into account the pluralism that prevails between the Council of Europe member states with respect to emergency measures.   

The importance of domestic oversight of emergency measures  

The international calls for domestic oversight of states of emergency in the wake of COVID-19 are in line with constitutional traditions of checks and balances in liberal democracies, in particular in times of crisis. For example, when discussing the Coronavirus Bill, the UK Parliament recently stated that “robust parliamentary scrutiny […] and judicial oversight are imperative for granting such significant powers to ministers”. The extraordinary nature of emergency measures and their effect on fundamental rights protection make it imperative that effective domestic oversight is in place to ensure that governments are duly controlled and that they lawfully and legitimately exercise any emergency powers at their disposal or those which they have been given exceptionally.

During a public emergency, national courts and parliaments can control whether the executive duly exercises its enhanced powers. National courts have already performed this function with regard to measures against the coronavirus and prevented the executive from applying various unlawful emergency measures. For instance, constitutional courts in Germany, Kosovo and Bosnia and Herzegovina have recently declared specific measures related to COVID-19 unconstitutional. These judicial interventions can serve as examples of the role that human rights can play in times of emergency. Scrutiny by courts can ensure that national policies fighting the pandemic do not become abusive or go beyond what is necessary. Mutatis mutandis, parliamentary oversight can offer democratic legitimacy to emergency measures, control the executive and apply pressure, for instance by inviting governments to re-evaluate whether emergency powers or measures are still required. This way, they can prevent so-called entrenched emergencies. Thorough oversight of national policies against COVID-19 at the domestic level is essential to maintain respect for human rights, to endow these policies with legitimacy and to enhance their effectiveness.

The pertinence of procedural rationality for domestic oversight of emergency measures

Domestic oversight is of significance for the purposes also of the international scrutiny of emergency legislation that interferes with human rights. Domestic parliamentary debates and judicial decisions reveal the goals pursued by emergency measures, the priorities that they set, the values that underpin them, and the risks and trade-offs that they involve. They are also telling of the aptness of the measures, their duration, necessity and legitimacy. These are all elements that the ECtHR can duly consider when reaching a decision on the compatibility of national emergency measures against COVID-19 with the ECHR.

The ECtHR can engage with the practice of national parliaments and national courts through so-called procedural rationality review. According to Popelier and Heyning, when applying procedural rationality analysis, the ECtHR “takes the quality of the decision-making procedure at the legislative, the administrative as well as the judicial stage, as a decisive factor for assessing whether government interference in human rights was proportional, thereby avoiding intense substantive review”. This procedural approach allows the Strasbourg Court to rely on domestic oversight by considering parliamentary debates or the lack thereof, the attempt to weigh competing interests, and the reliance of national courts on the ECtHR’s case law, to name a few factors. As a result, to use the words of Kleinlein, procedural rationality can “increase the ‘ownership’ of European human rights by domestic institutions and the general public and rationalize the debate”. 

The engagement with and the reliance on domestic oversight sends a signal for cross-party politics and the proper weighing of different interests at a time when the power in the hands of a few has the potential to heavily cost the many. This approach, to borrow the words of President Spano, can thus have “democracy enhancing” effects during challenging times. Furthermore, as the Strasbourg Court itself cannot provide a timely review of states of emergency, reliance on domestic oversight helps the ECtHR to take cognizance of larger policy implications when looking at individual applications. Finally, as discussed in further detail below, by means of procedural rationality the Court can set certain standards of domestic oversight that states ought to meet. In this way, as Gerards and Brems argue, the ECtHR can also “impose[…] quality standards upon national legislators and encourage […] national courts to conduct their own procedural rationality review”.

Overall, our argument is that procedural rationality can prove to be particularly helpful in the case of emergency measures. With this type of review, the focus moves from the consequences that emergency measures have for human rights per se to the procedure behind these measures and to the procedural safeguards a polity offers to control these measures. Procedural safeguards thus offer a first layer of defence at the local level and, possibly, in real time, whilst the emergency is still ongoing. Procedural rationality is not merely a matter of procedure. The procedure can complement, underpin and condition the substance of human rights, in particular when these are threatened by extraordinary measures. That being said, it is not surprising that the role of parliaments in states of emergency has already been raised before the ECtHR in the past. In A and others v. UK, the UK Government specifically noted that the contested measure “was not only the product of the judgment of the Government but was also the subject of debate in Parliament”. In that case, when assessing whether derogations of long duration are compatible with the ECHR, the Court also relied upon the fact that such measures had been annually reviewed by the UK parliament (para 178). Admittedly, the weight given by the ECtHR to domestic oversight is not entirely clear in this particular case. In the future, however, the Court can take a stronger procedural turn by way of engaging with the quality of domestic parliamentary and judicial review in more depth.

Procedural rationality and deference to national authorities

Procedural rationality can potentially be a subsidiarity-friendly tool, by means of which the ECtHR - whilst also taking into account other relevant factors - decides when (or the extent to which) it should defer to national decision making and scrutiny. As such, in an eventual application before the ECtHR, elements such as the quality of decision-making processes at the national level, high standards of good governance and the thoroughness of domestic oversight can be decisive in determining the rigidity and completeness of the test of conventionality carried out by the ECtHR.

A process-based review may give the impression that the ECtHR is lowering its standards or that, by granting leeway, it is enfeebling the scrutiny that it traditionally exercises; however, this is not a very safe conclusion to reach. 

First, this largely depends on, inter alia, the intensity of procedural rationality and its outputs. Procedural rationality does not necessarily result in increased leeway being given to national authorities. 

Second, the ECtHR could adopt a “semiprocedural review”, that pairs with substantive review. That is to say, it would not be unreasonable if, particularly in the context of emergency measures, procedural rationality would complement - instead of replacing or mitigating - the traditional test of conventionality. With procedural rationality, the ECtHR could add one extra layer of scrutiny and, alongside other elements such as proportionality, also check the quality and adequacy of domestic oversight in cases involving emergency measures. This extra layer could even be added in a more oblique or concealed way. For instance, procedural rationality analysis could be associated with (or absorbed by) other questions traditionally explored by the ECtHR, such as the legitimacy of the aim pursued by an interference with ECHR rights or the existence within domestic law of a legal basis for the interference. 

Third, even if procedural rationality (applied in light of the particular circumstances of a case) leads to deference through a wide margin of appreciation precluding a full test of proportionality, process-based review can still offer rather satisfactory results. Essentially, it shifts the level where full scrutiny is being exercised. Instead of applying its usual scrutiny, the ECtHR can replace it with a more general review that the requisite scrutiny has been duly exercised domestically. The reason that procedural rationality may result in the granting of a wider margin of appreciation is that the national authorities of the respondent state are considered to have done their job in a manner that in principle complies with the ECHR.

To that end, national authorities must duly consider human rights law and strive to give the ECHR effects that satisfy the ECtHR in that they are close enough to those that it would have given, had it decided to proceed with its traditional full test. The key issue in the case of emergency powers is not so much who (i.e. national authorities or international institutions) exercises oversight, but that this is duly exercised in a timely manner. Mutatis mutandis, without undermining the importance that subsidiarity holds to states, the key issue with the use of procedural rationality with respect to emergency measures is not so much the granting of a margin of appreciation, but the fact that procedural rationality puts the accent on domestic oversight. This is the key reason why we contend that procedural rationality is an apposite method for cases involving emergency measures.

The importance of procedural rationality lies in the emphasis that it places on the quality of oversight procedures at the national level, and also in its possible connection with margin of appreciation, which is essential for both states’ and the ECtHR’s legitimacy. As Lord Atkin once lamented, in times of crisis, the risk remains that courts become “more executive minded than the executive”. With respect to international courts such as the ECtHR, this danger goes hand in hand with another risk, namely, to overly restrict national sovereignty. This can be more problematic when national authorities fight an emergency and, to be in a position to do this in an effective manner, they need more leeway. It is largely accepted that the ‘era of subsidiarity’ within the ECHR regime emerged as a reaction to criticism that the ECtHR has been more interventionist than (certain) states would have desired it to be in the past. By relying on (ergo essentially also controlling the quality of) domestic judicial and parliamentary oversight of emergency measures as a criterion and a precondition to defer to decision making at the local level, the ECtHR does not second-guess but rather cross-checks what the competent domestic actors have decided about emergency measures.

Procedural rationality, pluralism and common minimum standards

Procedural rationality allows the ECtHR to pay due regard to domestic procedures in each case and possibly defer to national authorities. This is particularly important as domestic procedures may well differ from one state to another. Constitutional variety on how oversight of emergency measures should be exercised is a ‘natural’ consequence, and also evidence of (constitutional) pluralism (and wealth) regarding certain aspects of a polity’s reaction to an emergency, including the special procedures, legal bases and logic behind the allocation of competences for adopting emergency measures.

Procedural rationality enables the ECtHR to show - when it deems it necessary - how much it respects different legal traditions and the different paths taken to respond to a crisis. In other words, this method can help the Strasbourg Court to maintain a due balance between the (constitutional) pluralism with respect to extraordinary measures that inevitably prevails within a community of 47 states, on the one hand, and the exigencies of human rights, on the other. The former aspect involves subsidiarity and deference to national authorities. The latter involves ‘smart’ forms of scrutiny, such as procedural rationality that can help to determine whether national procedures meet certain common minimum standards regarding the way in which they should operate. 

These common standards of procedural rationality translate into: a) guarantees of due consideration of the substance of a human rights issues, primarily at the national level and, if need be (i.e. if a state fails the procedural rationality test or if the process-based review of the ECtHR complements substantive review rather than precluding it) to an extent by the ECtHR; b) respect for national sensitivities and special features (i.e. the idiosyncrasy of each national constitutional order in the way it regulates reactions to emergencies); and also c) the gradual building of a common core of minimum procedural standards that each member state ought to meet as a precondition for them to pass the procedural rationality test and possibly ‘gain’ an increased margin of appreciation.

Given that the margin of appreciation that states traditionally enjoy in states of emergency is wider, procedural rationality could act as a precondition for granting margin of appreciation in a way that does not sacrifice the substance of human rights protection, respects legal pluralism, subsidiarity and sovereignty, whilst also emphatically placing the accent on what is essential in times of crises which lead to emergency measures and the granting of extraordinary executive powers. This way, procedural rationality can positively contribute to the strengthening of domestic oversight and supervision and, thereby, to the protection of fundamental human rights by establishing certain ‘red lines’ with respect to domestic procedures pertaining to the oversight of emergency measures or by setting certain ‘goals’ of domestic scrutiny and oversight -which could be met in a ‘flexible’ manner, adjusted to the constitutional physiognomy of each member state. Finally, we must stress that domestic oversight during states of emergency and its use by the Strasbourg Court through procedural rationality is not a magic tool to mitigate or tolerate instances of misapplication or misuse of executive power in a state of emergency.

Conclusion

The use of procedural rationality is not without criticism. Some could argue that it is a form of judicial activism or that the Court lacks the authority to scrutinise the quality of parliamentary debates. Given its confines, the purpose of this blog is not to argue in favour or against procedural rationality in general, but to underscore the pertinence of procedural rationality with respect to emergency measures. The primary advantage of the use of this method in the context of emergency measures is that procedural rationality focuses on what is essential for such measures, i.e. the quality and depth of domestic oversight, guaranteeing that the emergency measures are taken with appropriate deliberation, control and reflection, inter alia as to their compatibility with the rights enshrined in the ECHR. 

By employing the procedural rationality analytical tool, the ECtHR can place the accent on timely domestic oversight as a crisis/situation calling for emergency measures unravels. The ECtHR’s case law can thereby contribute to the establishment of a common threshold, that is, common minimum standards regarding due oversight of national emergency measures. 

Our view is that by means of procedural rationality, the ECtHR can contribute to the strengthening of domestic oversight of extraordinary measures. It can infuse international scrutiny with democratic legitimacy stemming from the national level, whilst also giving shape to a common pan-European core of checks and balances in times of emergency in a manner that can, in principle, be subsidiarity-friendly and respectful of (constitutional) pluralism within the 47 Council of Europe member states. To borrow the EU motto, procedural rationality can thus help the member states of the Council of Europe to become more “united in diversity” in times of emergency.

The authors are thankful to Professor Janneke Gerards, Dr Dimitrios Kagiaros and Dr Nikos Vogiatzis for their helpful comments. 

Tuesday, 19 May 2020

Online Talk by Robert Spano on Judicial Independence

In a very nice collaboration, the research centre iCourts in Copenhagen and Verfassungsblog are organising an online public talk on Friday 29 May at 14h00 CET by the new President of the European Court of Human Rights, judge Robert Spano. The topic wil be judicial independence. The livestream can be accessed here. This is the formal announcement:

'In his first public talk since taking over the presidency of the European Court of Human Rights, Judge Robert Spano will speak about "The Principle of Judicial Independence and the Democratic Virtues of Human Rights Law." The talk will be followed by questions from the online audience, chaired by iCourts Director, Professor Mikael Rask Madsen.

President Robert SpanoThis event is a collaboration between iCourts - Centre of Excellence for International Courts at the University of Copenhagen’s Faculty of Law and Verfassungsblog, a journalistic and academic forum of debate on topical events and developments in constitutional law and politics.

The live stream will be freely accessible (no registration required) and will take place May 29th at 14:00 CET.

Following the talk, the audience will have the opportunity to ask questions through the chair by tweeting their questions to iCourts (@iCourts_jur) using the hashtag #AskSpano.'

Friday, 15 May 2020

Updated CoE HELP Course on Introduction to the ECHR

The HELP programme (Human rights Education for Legal Professionals) of the Council of Europe has launched a revised version of its free online course that provides an introduction to the ECHR. This is the announcement:

'The 47-nation Council of Europe has launched an updated version of its free online “Introduction to the European Convention on Human Rights”, a 5-hour interactive training course aimed at legal professionals, public authorities, civil society and students.

“Europe has the strongest system of international human rights protection anywhere in the world, thanks to the European Convention on Human Rights. For the system to fulfil its potential, we need lawyers, judges, government officials, NGOs and other professionals across Europe to learn how it functions and to use that knowledge in their daily work,” said Council of Europe Secretary General Marija Pejčinović Burić.

The updated course is part of the Council of Europe’s extensive HELP programme Human Rights Education for Legal Professionals.

It contains modules on the European Convention on Human Rights, the European Court of Human Rights and – for the first time – the execution of judgments from the Strasbourg court, which is essential in helping to raise human rights standards.

The updated course is now available in English, with several other language versions due to be released in the coming months.'

Wednesday, 13 May 2020

Factsheet on ECtHR Judgments and Constitutional Reform

One of the most contentious and difficult legal consequences of a judgment of the European Court of Human Rights is when not (just) an adjustment of national policy or ordinary law is concerned, but when it necessitates a change in a state's constitution. It is in those instances that the age-old discussions of national sovereignty, the role of international law, deference and democracy come to the fore. To go beyond theoretical, doctrinal and political debates, a view at practice may be very useful. In that context, a new document comes in very handy: the Department for the Execution of Judgment's of the Committee of Ministers has produced a new factsheet. It is entitled 'Constitutional Matters', a very useful thematic overview on implementation of the Court's case-law. It includes: 

'The Council of Europe’s Department for the Execution of Judgments has published a new thematic factsheet highlighting the impact of the European Convention on Human Rights on constitutional matters across Europe over more than 50 years.

The factsheet summarises 117 relevant cases or groups of cases concerning 32 different Council of Europe member states, dating back to 1968.

It explains how judgments from the European Court of Human Rights – on a wide range of issues including access to justice, free speech and freedom of association – have led to important changes in national legislation or the way in which constitutions are interpreted by national courts.

This is the first in a series of thematic factsheets related to the implementation of judgments from the Strasbourg court. Similar factsheets on environmental issues and effective investigations following actions of security forces will follow soon.

Judgments from the European Court of Human Rights are implemented by member states under the supervision of the Council of Europe’s Committee of Ministers.'

Monday, 4 May 2020

EIN Webinar on Effective Domestic ECHR Implementation

The European Implementation Network is organising a webinar on 19 May on the issue of civil society on domestic advocacy for the implementation of Strasbourg Court judgments, at the occasion of a new guide produced by the network. This is the official announcement:

'The European Court of Human Rights continues to act as a ‘beacon of hope’ for victims of human rights violations denied justice at the national level. But unless judgments are properly implemented, a case won in Strasbourg does not translate into tangible human rights gains.

It is on the ground, at the national level that greater civil society advocacy is needed to promote the full and effective implementation of human rights judgments. Over the course of the past year, EIN has tapped into the collective knowledge and experience of its members and partners and collated good practice examples of how domestic civil society actors effectively engage with the authorities, form advocacy alliances, and use the media to promote implementation in their countries.

This has culminated in a new EIN Guide for civil society on domestic advocacy for the implementation of Strasbourg Court judgments. This latest EIN resource will be launched on Tuesday, 19 May at 11.00 am CEST.  

Join us at our one-hour webinar launch via Zoom to:

- Be among the first to hear about the lessons we have learned about effective domestic advocacy;
- Draw inspiration from EIN members and partners as they discuss how they have successfully used various domestic advocacy avenues to push implementation forward; and
- Share your own experience with us during a Q&A.

Panellists

Chairs: Anne-Katrin Speck and George Stafford, EIN Co-Directors (Strasbourg, France)

- Professor Başak Çalı, EIN Chair (Hertie School of Governance, Berlin and Koç University, Istanbul)
- Teodora Ion-Rotaru, Executive Director, Asociaţia ACCEPT (Bucharest Romania)
- Kirill Koroteev, Head of International Practice, Agora International Human Rights Group (Moscow, Russia).

The Webinar will be recorded, and made available to EIN members and official partners.

Please register by Friday 15 May at 2pm CEST via this link. As participation is limited to 100 people, we encourage early registration.'

Wednesday, 29 April 2020

ECHR MOOC Starts Again on 4 May

Virtually all teaching has switched to online delivery globally in these times of pandemic. One of our ongoing efforts in this regard is the free Massive Open Online Course (MOOC) on the ECHR starting again on Monday 4 May. Registration is open now! To enroll, please go to the Coursera platform.

The MOOC entitled 'Human Rights for open Societies - An introduction into the ECHR' is taught by myself (Antoine Buyse) and my Utrecht University colleagues professor Janneke Gerards and Claire Loven. This is the abstract of our six-week course:

'Human rights are under pressure in many places across the globe. Peaceful protests are violently quashed. Voting is tampered with. And minorities are often excluded from decision-making. All of this threatens the ideal of an open society in which each of us can be free and participate equally. A solid protection of human rights is needed for an open society to exist and to flourish. But it is often an uphill battle to work towards that ideal. Equip yourself and learn more about what human rights are and how they work. 

In this course, we will introduce you to one of the world’s most intricate human rights systems: the European Convention on Human Rights. You will see when and how people can turn to the European Court of Human Rights to complain about human rights violations. You will learn how the Court tries to solve many of the difficult human rights dilemmas of today. We will look, amongst other things, at the freedom of expression and demonstration, the right to vote, and the prohibition of discrimination. And we will address the rights of migrants, refugees, and other vulnerable groups. And, of course, we will see whether it is possible to restrict rights and if so under what conditions. You will even encounter watchdogs and ice cream in this course. We invite you to follow us on a journey of discovery into the European Convention!'

Please watch this short introduction video to get an impression:


Wednesday, 22 April 2020

Robert Spano New President of the Court

This week, the European Court of Human Rights has elected judge Robert Spano to become its new President. Spano has been a judge of the European Court of Human Rights in respect of Iceland since 1 November 2013. Previously, he was President of Section (1 May 2017 to 30 April 2019) and Vice-President of the Court (since 5 May 2019). He will succeed current President Linos-Alexandre Sicilianos, whose term of office expires on 17 May 2020. 

Judge Spano's Presidency of the Court would presumably last until the end of his judicial term, so until November 2022. It thus fits in the trend of the last few year's of relatively short-serving Presidents compared to the earlier decades of the Court's history. Next to this work at the Court, Judge Spano is well-known for his academic writings and for introducing the notion of the 'Age of Subsidiarity' to describe the newest phase of the Court's evolution. In the current challenging times, this may also be the Age of Distance-Functioning for the Court in different ways than subsidiarity means to convey. Many challenges ahead for the Court with the many derogations due to the pandemic and the working-from-home set-up of the current Court, reflecting many other workplaces currently. But with his great intellectual energy, judge Spano is no doubt well-placed to tackle these together with his colleagues.

Congrats to judge Spano and best wishes for the coming term!

Wednesday, 15 April 2020

New Book on ECHR and International Judicial Review

In these highly exceptional circumstances, with the highest simultaneous number of derogations from the ECHR ever recorded since its creation and the Court just having prolonged the exceptional measures for its continued functioning until at least halfway June, things are anything but business as usual. The ramifications for human rights of the current pandemic are both acute and long-term. All the more reason to continue to infuse current debates with much needed original thought and knowledge-based input. In that context, allow me to give point you to an important new book on the key debate on international judicial review by Shai Dothan (iCourts, University of Copenhagen):

* Shai Dothan, International Judicial Review. When Should International Courts Intervene? (Cambridge University Press 2020):

The book is motivated by a question: When should international courts intervene in domestic affairs? To answer this question thoroughly, it is broken down to a series of separate inquiries: When is intervention legitimate? When can international courts identify good legal solutions? When will intervention initiate useful processes? When will it lead to good outcomes? These inquiries are answered based on reviewing judgments of international courts, strategic analysis, and empirical findings. The book outlines under which conditions intervention by international courts is recommended and evaluates the implications international courts have for society. 

The European Court of Human Rights is the main case study in the book.

Friday, 27 March 2020

An Analysis of Covid-19 Responses and ECHR Requirements

Dear readers, it is my pleasure to introduce to you a guest post by Jeremy McBride, an esteemed colleague of mine in the Council of Europe's Expert Council on NGO Law, as well as a lawyer representing victims in many important cases before the European Court of Human Rights. He has written, of course in his personal capacity, a much-needed and thorough analysis of the measures many ECHR State Parties are currently taking to combat Covid-19 and Corona, including their invocation of derogations under the European Convention on Human Rights. Well worth a read!

COVID-19 AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Jeremy McBride, Barrister, Monckton Chambers, London, and Visiting Professor, Central European University, Budapest

Introduction

The rapid spread of Coronavirus - and the consequent risk to life and the heavy burden on health services from persons succumbing to Covid-19, the disease caused by it – has led to the imposition by governments of many restrictions on normal life in Council of Europe member States. These restrictions necessarily have implications for the enjoyment of rights and freedoms under the European Convention on Human Rights (“the Convention”) whether or not their imposition has been accompanied by the recent notification under Article 15 ECHR of derogations as already done by Armenia, Estonia, Georgia, Latvia, the Republic of Moldova and Romania. The need for such derogations may depend upon factors such as the nature of the restrictions and/or their duration and is considered further below.

Until now, the taking of action by a State to deal with any form of illness has not been a significant feature of the applications submitted to the European Court of Human Rights (“the Court”). The main instances of such applications have, in fact, been the alleged adequacy of either measures to protect prisoners from hepatitis, HIV and tuberculosis, or to treat those who have succumbed to them. In some cases, this has led to findings of a violation of the prohibition in Article 3 of inhuman and degrading treatment. There has also been one instance of a person with HIV being detained and another of the imposition of a quarantine preventing one family member from visiting another, raising issues respectively of compliance with the right to liberty and security and the right to respect for family life under Articles 5 and 8.

After considering the obligation to act in response to the threat posed by Covid-19, this note reviews the potential implications of measures taken or envisaged for compliance with obligations under the Convention of restrictions, including the extent to which they may either require a derogation or could exceed what is permitted under one. 

Insofar as derogations need to be relied upon to justify departure from the requirements to be observed outside of the emergency being invoked, the conditions prescribed in Article 15 would have to be fulfilled. There can be no doubt that the threat posed by Covid-19 is, depending upon the country concerned, either actual or imminent, is one involving the whole nation and is one affecting the continuance of organised life in it (A and Others v. United Kingdom [GC], no. 3455/05, 19 February 2009).

Whether the danger posed is such that the measures or restrictions that would be permissible in more normal circumstances are inadequate to deal with it, thereby allowing greater interference with derogable rights and freedoms than would otherwise be possible, is a matter to be judged by reference to the exigencies of the situation. However, in all cases, such measures must be no more than strictly required entailing the existence of safeguards against possible abuse of power.

All restrictions – whether or not based on a derogation – must, of course, always have a legal basis and that includes compliance with relevant constitutional guarantees and requirements of the member State concerned (Mehmet Hasan Altan v. Turkey, 13237/17, 20 March 2018).

An obligation to act

The challenge which is posed to the threat to life and physical integrity by Covoid-19 undoubtedly has the potential to engage positive obligations for member States with respect to the right to life under Article 2 and the right to respect for private life under Article 8. Certainly, there is scope to argue that insufficient steps to inform the public as to risks posed by succumbing to Covid-19 and to advise particular preventive steps could, as in other circumstances considered by the Court, result in a breach of the positive obligation to take the measures necessary to protect life. 

However, the threat posed by physical conditions such as a build-up of methane (as in Öneryildiz v. Turkey [GC], no. 48939/99, 30 November 2004) or inadequate defences against natural hazards (as in Budayeva and Others v. Russia, no. 15339/02, 20 March 2008) is undoubtedly different in character from that resulting from the emergence of an entirely new virus, both on account of the very specific place in which those conditions existed and the advance knowledge of the gravity of the risks of inaction. 

Moreover, account must be taken of operational choices which must be made by a State in terms of priorities and resources when faced with risks to life and physical integrity (see, e.g., Osman v. United Kingdom [GC], no. 23452/94). While hindsight might point to a different course of action being preferable, its revelations are not a basis for finding a violation of the Convention.

Nonetheless, once the nature of the measures required to tackle a threat has become clear and these are within the capacity of the State to take – notably through restricting the activities that can be undertaken by inhabitants – then the failure to adopt them could well be viewed as violating the positive obligations owed under Articles 2 and 8 (as in Finogenov and Others v. Russia, no. 18299/03, 20 December 2011). It may, of course be much easier to assess the capacity of the State to act than to judge which are the measures required to be taken, especially where there is conflicting medical and scientific opinion as to the best course of action to take.

What makes the Covid-19 pandemic particularly difficult in this regard is that the response can never be a localised one and indeed cooperation beyond frontiers is undoubtedly essential. In addition, while there could be responsibility for failure to take some coercive measures to restrain behaviour which puts the life and physical integrity of others at risk – such as by ignoring a requirement for social distancing – there will undoubtedly be limits as to the extent to which this is feasible when compared with behaviour by identifiable individuals disrupting the exercise by others of rights and freedoms under the Convention (cf Identoba and Others v. Georgia, no. 73235/12, 12 May 2015).

Liberty and movement

However, the undoubted existence of some obligation to act to protect life and physical integrity will necessarily be relevant in judging the compatibility of restrictions that might be imposed on other rights and freedoms. Thus, Article 5(1)(e) specifies that the prevention of the spreading of infectious diseases is one of the grounds for which a person may be deprived of his or her liberty. 

Furthermore, the protection of health is a legitimate aim for which restrictions can be imposed on the rights to respect for private and family life, freedom to manifest one’s religion or beliefs, freedom of expression and freedom of assembly and association, under Articles 8-11 ECHR and freedom to chose one’s residence or to leave any country, including one’s own under Article 2 of Protocol No. 4 ECHR.

In the case of a deprivation of liberty, the Court has established (in Enhorn v. Sweden, no. 56529/00, 25 January 2005) that it must also be demonstrated that the spreading of the infectious disease is dangerous to public health or safety and that the detention of the person infected is the last resort in order to prevent the spreading of the disease, because less severe measures have been considered and found to be insufficient to safeguard the public interest. Moreover, whenever these criteria cease to be fulfilled, the basis for the deprivation of liberty ceases to exist.

In the case of restrictions imposed on other rights, the standard to be met is that these must be necessary in a democratic society and thus proportionate to the legitimate aim pursued. Undoubtedly, there will be some margin of appreciation left to States. However, the Court emphasised in the only case in which the application of a quarantine has been considered – Kuimov v. Russia, no. 32147/04, 8 January 2009 – that the restriction should be “a temporary measure, to be discontinued as soon as circumstances permit” and that “severe and lasting restrictions …a long duration are particularly likely to be disproportionate to the legitimate aims pursued” (para. 96). This suggests that the approach to the assessment of the admissibility of restrictions will be broadly the same, whatever the right or freedom involved.

Nonetheless, in the case of Covid-19, it will be worth bearing in mind that the Court was ready to accept – even without a derogation under Article 15 ECHR – an extensive interference with a right where a State adopted measures in response to “the existence of an exceptional crisis without precedent” (albeit a financial one; Koufaki and Adedy v. Greece (dec.), no. 57665/12, 7 May 2013, at para. 37). While, this approach occurred in relation to the interference with the right to property as a result of measures cutting wages and salaries to safeguard the national economy, it would not be surprising if extensive restrictions to preserve the health infrastructure were not also accorded a fairly generous, if not unlimited, margin of appreciation. This is likely to be especially so given the apparent need for generalised measures rather than those taken against just specific individuals, as seen in the limited cases so far before the Court that have dealt with related issues.

In Enhorn the Court considered that “the HIV virus was and is dangerous to public health and safety”. However, the compulsory isolation of the applicant in that case was found not to be a last resort in order to prevent him from spreading the HIV virus because less severe measures had not been considered and found to be insufficient to safeguard the public interest. Moreover, the Court also considered that the duration of this isolation – almost one and a half years over a period of nearly seven years – had failed to strike a fair balance between the need to ensure that the HIV virus did not spread and the applicant's right to liberty.

It remains to be determined whether the restrictions imposed so as to halt the spread of Coronavirus amount to a deprivation of liberty or are just an interference with freedom of movement under Article 2 of Protocol No. 4 ECHR. As the Court has repeatedly emphasised, “In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5, the starting-point must be his or her specific situation and account must be taken of a whole range of factors such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation and restriction of liberty is one of degree or intensity, and not one of nature or substance (De Tommaso v. Italy [GC], no. 43395/09, 23 February 2017 para. 80).

Certainly, confinement to one’s home even though the conditions there may be much better than in a prison can amount to a deprivation of liberty (see Buzadji v. Republic of Moldova [GC], no. 23755/07, 5 July 2016). However, there is a difference between a total bar on leaving one’s home and not being able to so, except in case of necessity, between 10 p.m. and 6 a.m. The latter would not be regarded as amounting to “house arrest” and thus a deprivation of liberty for the purpose of Article 5 ECHR (as in De Tommaso).

A much more restricted ability to leave one’s home – such as for essential shopping or exercise – might be viewed differently even in the absence of any actual physical duress, particularly where there is also a complete prohibition on receiving visitors (cf. the situations in Guzzardi v. Italy [P], no. 7367/76, 6 November 1980 with Nada v. Switzerland [GC], no. 10593/08, 12 September 2012). However, the absence of any surveillance in such cases is also likely to be a factor militating against such a conclusion as the persons concerned will not then be under the exclusive control of the authorities (cf. the absence of this in Nada with its existence in Amuur v. France, no. 19776/92, 25 June 1996). A factor supporting the view that a deprivation of liberty is involved could also be the consequences following from non-compliance with requirements to stay at home, such as heavy fines or enforced confinement (as envisaged in the derogation by Georgia). 

Whether or not social distancing enforced through criminal sanctions amounts to a deprivation of liberty or just an interference with freedom of movement, its acceptability as a restriction on either right under the Convention will turn on a number of factors. Thus, it matters whether it can be demonstrated to be necessary to halt the spreading of Coronavirus, whether a measure was adopted only when other less extensive restrictions did not work and whether it was not maintained for longer than could genuinely serve the objective being pursued. The ability to obtain the necessities for life and well-being will be an important factor in determining whether or not the balance between either of these rights and the public interest has been respected. Equally important in this regard will be the ability to communicate with others and to receive news and information (cf. Amuur).

Restrictions on access to particular places or areas or parts of the country and even to places of residence will inevitably interfere with the right to freedom of movement under Article 2 of Protocol No. 4 ECHR. However, one restriction affecting access by an individual to a particular area in a city which lasted 14 days was not considered disproportionate by the Court when imposed as a response to an “emergency situation” because of the public trafficking and use of hard drugs after lesser measures had not been effective (in Landvreugd v. Netherlands, no. 37331/97, 4 June 2002 and Olivieira v. Netherlands, no. 33129/96, 4 June 2002). 

However, many of the restrictions currently being imposed are of general application affecting many parts of the country and, in some instances precluding people from travelling more than a very short distance from their homes. Moreover, Estonia’s derogation envisages restriction on travel to certain islands, only allowing persons with permanent residence on them to go there if they do not show symptoms of Covid-19. The proportionality of these restrictions – both as regards their scope and duration - will be dependent upon their demonstrated relevance to preventing the spread of the disease but also on their impact on obtaining the essentials of life, such as shopping for food and to withdraw money (the applicant in Landvreugd was still able to collect his social security and mail from the area otherwise covered by the prohibition) and even housing for those persons prevented from returning to their place of residence.

The conditional release of persons from prison – as is envisaged in the derogations of Georgia and Latvia – could protect those released from the risk of being infected. However, this should not occur without assessing the consequent risk to members of the public that this might pose as the infliction of physical violence by a released person could be in breach of the duty of care to the victim, entailing a violation of Articles 2 and 3 (see, e.g., Maiorano and Others v. Italy, no. 28634/06, 15 December 2009 and Opuz v. Turkey, no. 33401/02, 9 June 2009). 

The Latvian derogation also seems to envisage the possible prolongation of prisoners’ sentences. Any such prolongation would, given the likely absence of a causal connection with the original sentence, not be justified under Article 5(1)(a). Furthermore, in the absence of a being a measure required to prevent the spread of infectious diseases – such as where the prisoner concerned has become infected with Covid-19  - and thus a justifiable ground for deprivation of liberty pursuant to Article 5(1)(d), reliance on the derogation would undoubtedly be necessary to prevent any violation of the Convention. However, in such circumstances, it is hard to see delayed release really being strictly required by the exigencies of the situation.

Entry and departure

The derogations by Armenia, Estonia and Latvia envisage the prohibition on the entry to them of all or some persons who are not citizens or lawful residents. Furthermore, Armenia envisages prohibiting its citizens from leaving the country except for transportation of goods and a virtually similar result will be achieved by Latvia’s order to close international passenger transport, as well as requiring all business trips to countries affected by COVID-19 to be cancelled, postponed and not planned and calling on individuals to refrain from foreign trips. In their derogations, both the Republic of Moldova and Romania envisage unspecified restrictions on freedom of movement.

Under Article 3(2) of Protocol No. 4 ECHR, no one shall be denied the right to enter the territory of the state of which he or she is national. On the face of the derogations, this right would not be infringed by them. Moreover, the exception made in them for lawful residents is consistent with their right to respect for private and family life under Article 8. There is, however, scope for difficulties in respecting both rights where the holding of the nationality of or the lawful residence in the State refusing entry is contested (see, e.g., Oudrhiri v. France (dec.), no. 19554/92, 31 March 1993). In cases where the respective status is unjustifiably denied, the refusal of entry would amount to an expulsion contrary to the foregoing rights.

It will, therefore, be important that there continues to be an effective remedy to assert these rights, as required by Article 13 ECHR (see the violation of that provision found in Milen Kostov v. Bulgaria, no. 40026/07, 3 September 2013, in respect of the related right under Article 2 of Protocol No. 4).  Furthermore, given that the consequences of a refusal of entry could be the return of the person concerned to a country where he or she might be refused entry or exposed to a great risk of infection by Covid-19, the seeking of such a remedy should have suspensive effect on the execution of any removal decision (cf. M.S.S. v. Belgium and Greece [GC], no. 30696/09, 21 January 2011, at para. 293).

Although the text of Article 3(2) of Protocol No. 4 ECHR does not specify any limitations that might be imposed upon the right guaranteed, it can be expected that these would be seen by the Court as implied (cf. such an approach to the unrestricted right to education in Leyla Şahin v. Turkey [GC], no. 44774/98, 10 November 2005, at para. 154). Moreover, this right is not non-derogable. It might, therefore, be argued that a bar on the return of nationals and lawful residents on a temporary basis would be essential because of the risk of them infecting others with Covid-19. However, this would almost certainly not be regarded as a compelling justification by the Court given the precautions that officials could take to avoid being infected at the point of entry and the subsequent ability to subject such persons to quarantine. A blanket and indiscriminate approach might also be seen as amounting to discrimination based on a person’s health status (cf. Kyutin v. Russia, no. 2700/10, 10 March 2011).

The ability of a person to leave any country, including one’s own, is guaranteed by Article 2(2) of Protocol No. 4 ECHR. However, Article 2(3) provides that it may be subject to restrictions, including ones for the protection of health, where necessary in a democratic society. Such restrictions have, for example, been upheld outside of a health crisis to ensure the fulfilment of military service obligations (Marangos v. Cyprus (dec.), no. 31106/96, 20 May 1997) and for the prevention of crime (Antonenkov and Others v. Ukraine, no. 14183/02, 22 November 2005). 

A temporary restriction on departure by all persons where there is uncertainty as to whether they would infect persons there or would return to the country having become infected is likely to be regarded as striking a fair balance between the demands of the general interest and the rights of the individuals concerned. However, such a bar on travelling outside the country might be harder to justify where it precluded a person returning to his or her country of lawful residence or lasted for a prolonged period, particularly where the country to be visited was not one where there was a risk of becoming infected. There should thus be a periodic re-assessment of the need for such a ban (cf. A. E. v. Poland, no. 14480/04, 31 March 2009).

Private and family life

The impact of the influenza quarantine on the possible contact between a father and his child was only partially the basis for the interference with the applicant’s family life that was considered in Kuimov v. Russia, no. 32147/or, 8 January 2009. In that case, much of the period concerned was the result of the child being taken into temporary care for her physical and psychological health. However, as regards the quarantine period – which lasted just over 3 months – the Court emphasised that it did “not last an unreasonably long time and, in addition, the applicant was allowed to come and see A. through the glass window on a weekly basis” (para. 103). 

Similar possibilities as a result of the ban on visiting relatives to prevent the spreading of Coronavirus might be seen to preclude a violation of Article 8 as a result of the availability of communication through video-calls. Moreover, the relatively short duration in Kuimov reflected the nature of disease and a longer interruption in contact might be considered justifiable for something as seemingly virulent as Coronavirus.

Testing and treatment

The detention of someone in order to test whether he or she has been infected by Coronavirus could be justified under Article 5(1)(b) ECHR as being done in order to secure the fulfilment of an obligation prescribed by law if there is indeed a legal requirement to that effect. Although this will normally only be permissible where the person concerned has first had an opportunity to fulfil it, immediate resort to detention without such an opportunity would be possible where this can be shown to be essential for the effective execution of the obligation concerned, which would probably be the case where there was concern about him or her infecting others (cf. this approach being accepted in McVeigh and Others v. United Kingdom (Rep.), no. 8022/77, 18 March 1981 in respect of person suspected of involvement in terrorist activity). 

Any such detention must not be arbitrary or should not be effected for an ulterior purpose. Moreover, it must respect the principle of proportionality and be designed to secure the immediate fulfilment of the obligation and so should be of quite a short duration and should certainly cease after the fulfilment of the obligation (cf. the overlong detention periods for identity checks in Vasileva v. Denmark, no. 52792/99, 25 September 2003 and Epple v. Germany, no. 77909/01, 24 March 2005 and the failure of release after the completion of such a check in Shimovolos v. Russia, no. 30194/09, 21 June 2011). 

Furthermore, compulsory screening for tuberculosis by tuberculin skin-reaction test or by chest x-ray to protect the health of the public and the person concerned has not been considered a disproportionate interference with the right to physical integrity under Article 8 ECHR (Acamanne and Others v. Belgium (dec.), no. 10435/83, 10 December 1984) and a similar view is likely to be taken of the relatively non-intrusive testing methods for Coronavirus. However, the manner in which the test is conducted should not use such oppressive force that it could amount to the use of inhuman and degrading treatment (cf. Jalloh v. Germany [GC], no. 54810/00, 11 July 2006). 

On the other hand, the enforced medical treatment of a detained person which is a genuine therapeutic necessity from the established principles of medicine should not violate Article 3 ECHR. Certainly, this will not be so where a medical necessity has been convincingly shown and procedural guarantees have been observed. In the case of force-feeding such guarantees have entailed judicial permission (Nevmerzhitsky v. Ukraine, no. 54825/00, 5 April 2005, at para. 94). However, that does not seem to be required in case of a medical necessity to save a person’s life if the procedure is a straightforward and well-established one (Bogumil v. Portugal, no. 35228/03, 7 October 2008). 

Moreover, judicial authorisation may not be thought necessary where a less intrusive medical intervention is involved. Indeed, that seems to have been implicitly accepted by the Court with regard to compulsory vaccination without the use or threat of force, which was acknowledged by it to be an interference with the right to physical integrity of a person under Article 8 (Solomakhin v. Ukraine, no. 24429/03, 15 March 2012). However, the Court considered that there had been no violation of Article 8 ECHR where such vaccination had occurred to stop the spreading of infectious diseases and medical staff had checked a person’s suitability for vaccination prior to carrying it out, thereby ensuring that this would not be to the detriment of the person concerned to the extent of upsetting the balance of interests between personal integrity and the public interest of protection health of the population. 

A different view might be reached where the vaccination did harm the person’s health or that an expired vaccine of poor quality had been used, neither or which was established in this case. Furthermore, the administration of a vaccine which is still experimental without the consent of the person concerned would undoubtedly be seen as at least a violation of Article 8 ECHR. 

However, mandatory vaccination during an epidemic in order to protect others has been recognised by the Court as outweighing objections based upon religious beliefs (Jehovah’s Witnesses of Moscow and Others v. Russia, no. 302/02, 10 June 2010, at para. 136).

The requirement to provide medical assistance that is recognised as arising under Article 3 ECHR for persons who are detained (see, e.g., Khudobin v. Russia, no. 59896/00, 26 October 2006) would undoubtedly be regarded as equally applicable to those whose confinement through social distancing amounts to a deprivation of liberty under Article 5 ECHR. However, this obligation would not require the provision of treatment beyond the level of health care generally available and, as the Court has recognised, this can be shaped by a determination of priorities when allocating limited State resources (see, e.g., Pentiacova and Others v. Moldova (dec.), no. 14462/03, 4 January 2005). 

Moreover, a refusal to allow access to treatments that are still experimental would not be regarded as contrary to the rights under either Articles 3 or 8 ECHR (Hriztozov and Others v. Bulgaria, no. 47039/11, 13 November 2012). Furthermore, it is doubtful whether the allocation of healthcare resources in priority to those providing essential services or are most likely to survive would be regarded as lacking an objective and reasonable justification such as to engage the application of the prohibition on discrimination in Article 14 ECHR in combination with rights under Articles 3 and 8 ECHR.

Functioning of courts

Concern to prevent all involved in justice systems has and will continue to have an impact on the conduct of proceedings before courts. In some instances, it may be possible for these to continue without significant disturbance through recourse to electronic means. However, this is unlikely to be true of most criminal proceedings and many civil and administrative ones.

In many instances, the impact will be limited to delay and, should the crisis endure for just a matter of months there is unlikely to be a consequent breach of the right to trial within a reasonable time. Even if the disruption is longer, the external nature of its cause will mean that it will not be attributable to the States affected so long as they have taken all possible steps open to them to mitigate its effect (cf. the situation considered in Khlebik v. Ukraine, no. 2945/16, 25 July 2017 resulting from inability to access crucial documents for proceedings on account of part of a State’s territory no longer being under its control and also that in Agga v. Greece (No. 1), no. 37439/97, 25 January 2000, where there was a failure to take measures to deal with the effects of a strike by lawyers).

Moreover, although there could be some interference as regards the institution of proceedings, the right of access to court is not an absolute one and this is unlikely to be regarded in most cases as constituting a violation of Article 6(1) ECHR. However, in urgent cases where proceedings might be needed to protect individuals, for example, from domestic violence, the inability to obtain protective measures from a court could lead to violations of Articles 2 and 3 ECHR (cf. Opuz v. Turkey, no. 33401/02, 9 June 2009).

In the absence of a derogation, there can be no departure from normal timelines for bringing an arrested person before a judge with authority to determine whether he or should be released (see Brogan and Others v. United Kingdom [P], no. 11209/84, 29 November 1988). However, even if there was a derogation that could justify some further delay (such as a significant shortage of relevant personnel on account of many of them contracting Covid-19), it is unlikely that a delay of more than 7 days before such production occurs would be seen as acceptable (see Aksoy v. Turkey, no. 21987/93, 18 December 1996 and Sakik and Others v. Turkey, no. 23878/94, 26 November 1997). 

Moreover, it would probably be difficult to justify a derogation from the right under Article 5(4) ECHR to challenge the legality of detention (the acceptance of one in Ireland v. United Kingdom [P], no. 5310/71, 18 January 1978, seems out of line with developments in international human rights law since).

Public and private gatherings

Significant restrictions on public gatherings in terms of the numbers participating or the places in which they can occur have been upheld where the aim was to protect public safety or to preserve public order (see, e.g., Chappell v. United Kingdom (dec.), no. 12587/86, 14 July 1987 and Rai, Allmond and “Negotiate Now” v. United Kingdom (dec.), no. 25522/94, 6 April 1995). The dispersal of a gathering has also been found not to be in violation of the right to freedom of assembly where this was to protect the health and safety of those participating in it (see Cisse v. France, no. 51346/99, 9 April 2002). These have, however, been cases concerned with discrete events and not restrictions or even total bans that are applicable to gatherings occurring in a large part, or even the whole, of a State’s territory.

Nonetheless, the Court has accepted that a general ban on demonstrations can be justified if (a) there is a real danger of these resulting in disorder which cannot be prevented by other less stringent measures and (b) the disadvantage of the ban’s impact on demonstrations which do not by themselves constitute a danger to public order is clearly outweighed by the security considerations invoked to justify it (see Lashmankin and Others v. Russia, no. 57818/09, 7 February 2017, at para. 434). Similar considerations could also be invoked where gatherings in public of any size would generally pose a real risk of facilitating the spread of infection – even if some might not – and thus afford a justification for the resulting interference with political, religious or social gatherings that are protected by Articles 11, 9 and 8 ECHR respectively.

However, material considerations for determining whether or not the imposition of particular restrictions on gatherings for more than a short period of time is a proportionate response would not only be the continued duration of the threat of infection spreading but also whether this would lead to the complete suppression of rights that are essential foundations for a democratic society. Undoubtedly, religious worship does not always have to be collective, and social contact can be maintained through various forms of modern technology. Alternative means of protest might be less readily forthcoming and therefore the restrictions would be harder to justify for a prolonged period. Providing such a justification for this could well be linked to the impact of any restrictions on the freedom to receive and impart information and ideas in exercise of the right guaranteed by Article 10 ECHR.

Information and expression

The existence of a pandemic such as that involving Coronavirus undoubtedly has the potential to cause panic. There may, therefore, be a wish on the part of the authorities to curtail the dissemination of false or unreliable information, as well as of criticism of the official response – whether locally or national – to the unfolding crisis. For example, Armenia in its derogation envisages that reports in any form of publication (including websites and social networks) about infections, testing and isolation – whether inside the country or elsewhere – and also any information causing panic or creating a risk of this occurring should make exclusive reference to official information being provided about this and not contradict it.

Restrictions to similar effect could also result from the measures adopted pursuant to the derogation by the Republic of Moldova with a view to coordinating media activities on informing the public about the situation, the liquidation of its consequences and the protection of the population, as well as to introduce special rules for the use of telecommunication means.

Certainly, the breadth of the restriction envisaged by the Armenian derogation – which does not require consideration of the manner in which a divergent view from the official one is expressed or indeed of the accuracy of the information published – is on the face of it inconsistent with the public watchdog role of the media that the Court sees essential in a democracy. Thus, in response to one journalist’s statements alleged to have created panic among the public, the Court held that it was his task “to impart information and ideas on the relevant political issues and express opinions about possible future consequences of specific decisions taken by the Government” and found that the bounds set by Article 10(2) ECHR had not been overstepped (as in Fatullayev v. Azerbaijan, no. 40984/07, 22 April 2010, at para. 122). 

Moreover, both journalists and non-governmental organisations are seen by the Court as having a responsibility to provide reliable and accurate information when acting in a watchdog role (see, e.g., Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, 8 November 2016 and Radio France and Others v. France, no. 53984/00, 30 March 2004) and so there can be responsibility for publishing false information without any step being taken to check its veracity (Sallusti v. Italy, no. 22350/13, 7 March 2013). 

In the case of the use of social media by individuals, it seems unlikely that the imposition of criminal responsibility for postings on social media would be regarded as consistent with Article 10 ECHR in the absence of any attempt to assess the potential of the statements at hand to provoke any harmful consequences, with due regard to the political and social background, against which they were made, and to the scope of their reach (Savva Terentyev v. Russia, no. 10692/09, 28 February 2018).

Whether the existence of an emergency could be a basis for imposing stricter restrictions on the right to freedom of expression than in normal circumstances will turn on how it can be demonstrated that these will really contribute to tackling the crisis. Although the circulation of rumours and false information can be a nuisance, the suppression of non-official information and views runs counter to the democracy that emergency measures should protect and could undermine public confidence in governments.

Weddings and funerals

The permissibility of restrictions on gatherings already considered will inevitably affect both wedding ceremonies and the attendant celebrations. However, the imposition of a delay on the ability to marry itself on account of well-founded concerns about the spreading of disease is unlikely to be regarded as arbitrary or disproportionate since this is not something that would impair the very essence of the right under Article 12 ECHR (cf. Frasik v. Poland, no. 22933/02, 5 January 2010).

The number of deaths and concern about spreading infection might lead to interference with the ability of a deceased persons’ family and friends choosing the time, place and manner in which their funeral ceremonies and burials can take place, as well as to attend them, something falling within the right to respect for private and family life. Such an interference would only be consistent with Article 8 ECHR where a fair balance was struck between the protection of this right and the legitimate aim of public safety (see, e.g., Sabanchiyeva and Others v. Russia, no. 38450/05, 6 June 2013 and Ploski v. Poland, no. 26761/95, 12 November 2002). Public health considerations might make it imperative for funerals to be held in the absence of a deceased person’s family and friends but it is unlikely that this would excuse a failure to consult them as to the rites to be followed – which could also involve Article 9 ECHR – or justify the use of an unidentifiable last resting place.

Education

Continued attendance at schools, colleges and universities is no longer considered consistent with efforts to combat the spread of Coronavirus. However, the prohibition on the denial of the right to education under Article 2 of Protocol No. 1 ECHR applies to existing institutions and it is unlikely that the inability of them to function in their habitual manner would mean that this prohibition can be completely ignored. Certainly, it is clear that, with due regard to the resources available, any restrictions that are imposed must curtail the right to such an extent as to impair its very essence and deprive it of its effectiveness (Leyla Şahin v. Turkey [GC], no. 44774/98, 10 November 2005, at para.154). 

Although no specific aims are specified as the basis for imposing restrictions, public health would be regarded as a legitimate one for doing so. However, it would only consider a limitation to be compatible with Article 2 of Protocol No. 1 ECHR where there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (Leyla Şahin, at para. 154). This would undoubtedly cover the provision of education through online means that sought to replicate as much as practical that which would normally be provided. It is unlikely that the need to move to online provision would be a sufficient reason to stop the provision of instruction in a particular language that would otherwise be provided (cf. Catan and Others v. Moldova and Russia [GC], no. 43370/04, 19 October 2012).

It may be impossible to undertake assessment in the same manner as would be possible where pupils and students are able to attend the educational institutions concerned. However, the absence of any form of overall assessment of performance at the end of a course or year of study – particularly where this would be crucial for progression to another institution or employment - is likely to be seen as undermining the effectiveness of the education provided. Some modified form of assessment, pursuing the same objectives as the normal one, would thus be required (cf. the finding of a violation of Article 2 of Protocol No. 2 ECHR in Mürsel Eren v. Turkey, no. 60856/00, 7 February 2006, where the applicant’s exam results had been annulled where this lacked a legal and rational basis, resulting in arbitrariness). This may also require the imposition of a requirement to recognise such a modified form of assessment on educational institutions and employers (in this connection, see the recognition by the Court in Tarantino and Others v. Italy, no. 25851/09, 2 April 2013, of the importance of satisfying admission criteria for admission to a programme of study).

Compulsion to work
The derogation by the Republic of Moldova envisages the prohibition of workers resigning and citizens being called upon to provide services in the public interest, while that of Romania provides for possible restrictions on the right to strike.

The prohibition on forced or compulsory labour under Article 4(2) ECHR is a provision of the Convention that can be derogated from. However, even without a derogation, this prohibition is qualified by the exclusion from it by paragraph 3(c) of “any service exacted in case of an emergency or calamity threatening the life or well-being of the community”. The compulsory participation of a hunting tenant in measures of control of epidemics has been held by the former European Commission of Human Rights to fall within the scope of this exception (S. v. Federal Republic of Germany (dec.), no. 9686/82, 4 October 1984). It was undoubtedly significant for this finding that the task that the applicant was called upon to perform was not too remote from what he would normally do – he enjoyed shooting rights in an area for which the local government issued a general order for protection against rabies requiring the gassing of all fox-holes – and did not pose any grave danger to him. 

Reliance on this exception may only be possible, therefore, where the person being compelled to undertake particular tasks has the real capacity to perform them (possibly taking account of any appropriate training that could be provided) and there are suitable efforts to protect him or her from the risks to his or her health or safety that could arise when doing so. The former requirement would normally be met where someone was simply required to remain in an existing post. The fulfilment of the latter one will depend upon the distribution and installation of protective equipment, preventive action such as testing and requirements imposed on those coming into contact with those performing the tasks concerned (such as keeping a particular distance from them).

Furthermore, it should be noted that in a number of cases concerned with the provision of emergency services by doctors – which are part of the normal health coverage rather than ones in the situation covered by paragraph 3(c) - an important factor in the finding that this did not involve forced or compulsory labour was the burden imposed was not disproportionate so that the work could not be considered to be unjust or oppressive or as constituting avoidable hardship (see, e.g., Koller v. Austria (dec.), no. 23772/94, 28 June 1995 and Steindel v. Germany (dec.), no. 29878/07, 14 September 2010). The extent of the obligation to work, as well as its impact on the particular individual, could well be a consideration in determining the applicability of this exception. This might be essentially significant where steps are taken to mobilise retired persons to resume their former functions.

Restrictions, up to and including a ban, can be imposed on the right to strike notwithstanding the right under Article 11 to form and join trade unions for the protection of one’s interests. In particular, a ban on striking could be seen as a proportionate response where its occurrence could have very serious consequences for health and safety, and the environment (Federation of Offshore Workers’ Trade Unions and Others v. Norway (dec.), no. 38190/97, 27 June 2002). This is obviously a matter of judgment regarding the significance of the activity that would be affected but, in present circumstances, it would be hard to imagine a ban not being considered acceptable - even without a derogation – where the provision of health services, the production and distribution of food and essential goods and key public services were involved. However, where a ban is imposed there would still need to be some means for the occupational interests of those subject to the ban to be protected, such as through the use of compulsory arbitration.

Property

Many of the restrictions already imposed in response to the spread of Covid-19 have involved the requirement for shops, restaurant and other public facilities to close, with a consequent economic effect not only on their owners or operators but also on those who supply them, with some items which the latter would have provided losing some or all of their value. Prohibitions with such an effect are envisaged in the derogations of Armenia, Estonia and Latvia. The derogations of Armenia, Georgia, Latvia and the Republic of Moldova envisage at least some of the following measures: the use of medicine, medical items and other materials; the direction of the activities of companies towards the supply of foods, medicinal products, essential goods and the raw materials required for these; the regulation of prices that can be charged for certain products; and the requisitioning of goods.

All such measures necessarily affect the right to property under Article 1 of Protocol No. 1 ECHR, whether in terms of expropriation, a control of use or interference with peaceful enjoyment. This right allows for restrictions to be imposed in the public or general interest and measures clearly linked to the protection of health would undoubtedly be seen as serving a legitimate aim. 

Any deprivation of property would have to be accompanied by the payment of compensation at some point but only the derogation of Armenia refers to “equivalent compensation” being paid where goods are taken. Whether the compensation required under Article 1 of Protocol No. 1 ECHR would have to be at the market value of the property taken would be determined by what is seen as a fair balance between the public and private interest but given the objective anything significantly below that value could be seen as imposing an excessive burden on the owners concerned. However, account might also be taken of efforts by the State to stimulate economic recovery after the crisis has passed.
The inability to open businesses such as shops and restaurants might be seen as a control over use if for a short period but possibly an interference with the peaceful enjoyment of possessions if prolonged. Whether such closures would be seen as imposing an excessive burden on those affected and thus requiring the payment of compensation is far from clear in the absence of anything like a comparable situation having been considered by the Court. However, it might be significant that the closures relate essentially to controls over the activities of potential customers which could mean that there was no legitimate expectation of an income during the period of enforced closure. Some compensation for stock that could no longer be used might, nonetheless be needed (Cf. the approach of the Court to the payment of compensation for stock but not loss of goodwill for businesses affected by the prohibition of handguns (Andrews v United Kingdom (dec.), no. 37657/97, 26 September 2000).

There is also a risk that, with controls on leaving one’s residence, individuals may steal from or damage empty business premises. In such cases, there may be an expectation of an appropriate level of policing to prevent or reduce such possibilities from occurring. However, it is unlikely that a State would be held responsible for such thefts or damage by private persons in the absence of arbitrariness or manifest unreasonableness in the policing arrangements, particularly if the focus is on preventing the spread of the disease (Zagrebačka Banka d.d. v. Croatia, no. 3954/05, 12 December 2013, at para. 251).

Conclusion

The extent to which any restrictions imposed in response to the threat posed by the pandemic will be found to be an unjustified interference with rights and freedoms under the Convention – whether with or without the invocation of a derogation – will be especially dependent upon the specific situation in a member State, as well as their scope and duration. It is doubtful whether all the restrictions being imposed require a derogation to remain consistent with the requirements of the Convention but there are others which may need one, particularly if they last for a prolonged period.

Although the number of member States that have already resorted to a derogation at the same moment is unprecedented, there are many others employing the same measures as those who have done so without submitting one. It remains to be seen whether their actions will be challenged. For many, the restrictions being imposed will – even if inconvenient – seem to be a matter of common sense. However, others who are sanctioned for ignoring or who suffer serious financial losses for complying with them may take a different view.

The situation is undoubtedly an evolving one and those relying on derogations will – pursuant to Article 15(3) ECHR - need to keep the Secretary General of the Council of Europe informed as to the measures being taken.