CYIL vol. 11 (2020)

BIRUTĖ PRANEVIČIENĖ – VIOLETA VASILIAUSKIENĖ CYIL 11 (2020) Government are proportionate and targeted, required by the exigencies of the situation and are not inconsistent with other obligations under international law.” 28 Speaking about the other way – using the legal instruments available regarding the limitation of particular rights when the need to protect the public health arises, we can state that all other European states, except for those listed above have not declared national emergencies. They relied on the laws on the containment of contagious diseases and legal rules on the proclamation of quarantine. There are differing opinions of authors who have analysed the situation of COVID-19 restrictions in the face of human rights. Alan Greene argues in favour of declaring the state of emergency according to Article 15 of the ECHR. He states that this Coronavirus pandemic “is the closest we shall get to an ‘ideal state of emergency’—the very thing it was designed for. In contrast, far from protecting human rights, failure to use Article 15 ECHR risks normalising exceptional powers and permanently recalibrating human rights protections downwards.” 29 He argues that “Indeed, the coronavirus pandemic is possibly the closest we have ever seen of a phenomenon that can objectively be categorised as necessitating exceptional measures. The objectivity of a threat, however, needs to be given legal recognition through the declaration of a state of emergency. […] Refusing to call a spade a spade does not make it any less of a spade.” 30 On the other hand, other authors state that “most measures taken to prevent the spread of the coronavirus are already covered by international human rights law. The most fundamental human rights are “absolute”. Under the ECHR, these include the ban on the death penalty, torture and forced labour. Most rights, however, are not absolute in character and states can limit the exercise of these rights for valid reasons, including public health emergencies. Examples are the rights to freedom of expression, freedom of association, freedom of assembly, and freedom of movement.” 31 The representatives of the Council of Europe seem to be more in the favour of states declaring the state of emergency and notifying the ECtHR of derogation according to Article 15 of ECHR. It is stated in the Council of Europe guidance to the states that “[w] hile some restrictive measures adopted by member states may be justified on the ground of the usual provisions of the European Convention on Human Rights (Convention) relating to the protection of health (see Article 5 paragraph 1e, paragraph 2 of Articles 8 to 11 of the Convention and Article 2 paragraph 3 of Protocol No 4 to the Convention), measures of exceptional nature may require derogations from the states’ obligations under the Convention. It is for each state to assess whether the measures it adopts warrant such a derogation, depending on the nature and extent of restrictions applied to the rights and freedoms protected by the Convention.” 32 28 Note verbale from the Permanent Representation of the Republic of North Macedonia to the Council of Europe (1 April 2020), concerning Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms accessed 28 May 2020. 29 Alan Greene ‘States should declare a State of Emergency using Article 15 ECHR to confront the Coronavirus Pandemic’ (April 1, 2020) Strasbourg Observers accessed 28 May 2020. 30 Ibid. 31 MOLLOY, Sean, ‘Covid-19 and Derogations Before the European Court of Human Rights’ (10 April 2020) Verfassungsblog. On Matters Constitutional. accessed 28 May 2020. 32 Council of Europe ‘Respecting democracy, rule of law and human rights in the framework of the COVID-19


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