CYIL vol. 11 (2020)

CYIL 11 (2020) STATE RESPONSE TO COVID-19 LIMITING HUMAN RIGHTS … Thus the aim of the authors of this article was to look into the practice of the ECtHR in both cases – both about restrictions foreseen in the legal acts as allowed by the articles establishing particular rights, and the case law on the restrictions in times of emergency according to Article 15 of ECHR. 4. Analysis of ECtHR practice in the context of danger to public health The following analysis will seek to compare those two regimes as foreseen in ECHR and in ECtHR practice. Articles of ECHR foreseeing the rights of individuals also indicate that most of them may be limited or infringed upon when aiming to protect certain values of the society, to protect it from crimes and to achieve similar legitimate aims. As we have seen the articles and rights most affected are the right to private and family life (Article 8), the freedom of assembly and association (Article 11), the right to education (Article 2 of the Protocol to ECHR), the freedom of movement (Article 2 of Protocol No. 4 of ECHR). 1) Firstly, analysing Article 8 of ECHR , the second part of the Article states: “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Thus, the protection of health and the protection of the rights and freedoms of others is listed among the legitimate aims of the infringement of this particular right. In order to review the practice of ECtHR in this area, the authors have reviewed the cases related to Article 8 by choosing in its internet search engine HUDOC the criteria “(Art. 8) Right to respect for private and family life”, subsection “(Art. 8-2) Necessary in a democratic society”, subsection “(Art. 8-2) Protection of health”. The search yielded 393 entries in the HUDOC database of ECtHR, from which there were 68 unique cases. The aim of such research was to explore whether the Court had encountered any similar situations in its practice and what would be the criteria applicable in this field. Speaking about the results, none of the cases were directly related to the question at hand, at least in the categorized cases there were no instances of limitation of right to privacy due to epidemic diseases. The prevalent cases were related to the disputes over children when there was state interference in family life (there were 38 such cases). The cases mentioned in most instances discussed infringements into family life due to the need to protect physical or psychological health of children which were not satisfactorily met at their home, and this is viewed by the Court as falling under the category of ‘public health’ in such cases. Further, the cases based on public health were related to:  Infringements in building regulations (4 cases);  The possibility to give birth at home (3 cases);  regarding the right of non-citizens to remain in the country despite the crimes committed by them (3 cases);

sanitary crisis. A toolkit for member states’ (SG/Inf(2020)11, 7 April 2020). accessed 28 May 2020. (Council of Europe guidance).


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