Tilburg Law Review (Dec 2021)
Legality of Human Rights Restrictions During the COVID-19 Pandemic Under the European Convention on Human Rights
Abstract
The European Convention on Human Rights, the regional international treaty adopted in 1950, requires that any restriction, limitation, or interference with the rights and freedoms guaranteed in the Convention should be ‘prescribed by law’, ‘in accordance with the law’ or ‘provided by law’. In the case-law of the European Court of Human Rights, the assessment of ‘legality’ requires that the impugned measure have a legal basis in national law, and refers to the quality of law. At the outset of the COVID-19 pandemic, numerous states worldwide rolled out a patchwork of different provisions limiting (restricting) the implementation of human rights and fundamental freedoms. Understandably, the immediacy of the emergency required a quick and efficient reaction from states; therefore, some situationally appropriate, however aggressive, restrictions on the exercise of human rights were imposed without a proper legal basis in national law. The article deals with the concept of the legality of limitations (restrictions) on the implementation of human rights and fundamental freedoms in a public health emergency, and in particular, the question of whether Article 15 of the Convention includes the possibility to deviate from the “classical” legality standard. The ‘derogation clause’ enshrined in Article 15 and the ‘restrictive clause’ established in, e.g., the second paragraphs of Articles 8–11, have an essential value in assessing the ‘legality’ of interference in the exercise of the Convention rights and freedoms during the COVID-19 pandemic, especially in cases where States Parties to the Convention had not used the possibility to derogate from the Convention obligations under Article 15. Relying on the case-law of the ECtHR in respect of the legality of interference in the exercise of human rights, the authors argue that legality in a state of emergency should follow the same logic as in the absence of such a state. This is reflected in the constitutional case-law, although the national dimension of the legality requirement varies depending on different constitutional arrangements in the countries.
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