CYIL vol. 11 (2020)

CYIL 11 (2020) STATE RESPONSE TO COVID-19 LIMITING HUMAN RIGHTS … WHO, “integrating human rights protections and guarantees into our shared responses is not only a moral imperative, it is essential to successfully addressing public health concerns.” 5 Numerous publications and documents have been released since the beginning of the COVID-19 pandemic analysing state response to this crisis, which detail the measures taken and their impact on certain human rights 6 . This article will try to step one step back and list not the limitations themselves, but their legal base, the provisions of ECHR allowing for derogations from certain rights and the conditions posed therein. As for the lawyer’s point of view it is important to view at the legal basis of such limitations, as the human rights are considered inalienable and are very important safeguards for the enjoyment of our everyday life, our freedom. Thus, the criteria for such occasions has to be very clear. The main aim of the article is to compare two different regimes allowing for the derogations from the human rights allowed in ECHR (firstly, derogation in case of danger to public health foreseen in the articles enumerating rights and national emergency derogations possibility listed in Article 15 of ECHR) and present the research of ECtHR practice regarding those limitations. The authors will illustrate the analysis with some examples, but it is not the aim of the authors to provide a comprehensive view of the limitations enacted as this had been done in numerous reports, we aim to get insight into the legal basis of those restrictions and the ECtHR practice regarding them. Furthermore, the article will present the comparison of those two legal grounds and concerning practice. 1. Scale of COVID-19 disease and state response At the moment of writing (May 2020) there were 7,3 million cases diagnosed worldwide of COVID-19, 3,6 million people were considered recovered and 409 000 people have died 7 . Most of the states affected (in Europe – only with the exception of Sweden and Belarus) have adopted strict measures regarding movement of people, social contact and education. For example, Albania had notified the Council of Europe that “measures adopted by the Government, among others include, gradual restriction of air, land and sea traffic, suspension of education process, establishment of quarantine procedures and self-isolation, restriction of assembly, manifestation and gathering, restriction on the right of property, special regulation on public service delivery and administrative proceedings.” 8 The international travel between states by air and land was severely restricted and remains very limited. The economic activity was restrained, some employees were fired, others had to work from home and take care of 6 Fundamental Rights Agency. ‘2020 Coronavirus COVID-19 outbreak in the EU – Fundamental Rights Implications – May 2020 – Country studies’, , accessed 06 July 2020; Fundamental Rights Agency, ‘Coronavirus pandemic in the EU – Fundamental Rights Implications – Bulletin 1’, , accessed 06 July 2020; Venice Commission, ‘Compilation of Venice Commission Opinions and Reports on States of Emergency’ (CDL-PI(2020)003-e) , accessed 06 July 2020, and others mentioned in this article. 7 ‘COVID-19 CORONAVIRUS PANDEMIC’ (Worldometer, 2020) accessed 31 May 2020. 8 ‘Note verbale from the Permanent Representation of Albania to the Council of Europe’ (JJ9020C, Tr./005-231, 31 March 2020) concerning Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms accessed 31 May 2020 (Note verbale from Albania). 5 Ibid.


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