CYIL vol. 11 (2020)

CYIL 11 (2020) STATE RESPONSE TO COVID-19 LIMITING HUMAN RIGHTS … Using the same methodology, we chose the criteria “(Art. 11) Freedom of assembly and association”, “(Art. 11-2) Necessary in a democratic society”, “(Art. 11-2) Protection of health”. There were six entries under this heading and only one case with some translations. The case of Chernega and others v. Ukraine 34 concerned the protection of health of other workers from the actions of the applicants who were protesting in a dangerous way. The present situation concerns total ban on the freedom of assembly, as it is deemed dangerous for the spread of disease. This was the practice of many states, banning any public gatherings, events, concerts, theatre performances, therefore this ban extended to more sectors than the right to assemble in public spaces, but also to cultural and other events. The effect of such prohibition will most likely be evaluated post factum , whether the practice of the restricting states and states which opted for less restriction were better for the saving of people’s lives and for the better quality of healthcare in the particular country. 3) Furthermore, the right to education enshrined in Article 2 of the Protocol to ECHR was analysed in the similar manner. Article 2 of the Protocol to ECHR states that “No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” 35 It is interesting that this article does not speak about the exceptions to this right, maybe because this right could be considered not so absolute as the other rights listed above. The article itself speaks about the state’s ability to exercise its functions towards education. The cases related to the right to education were searched in a different way as there was no criterion for infringements of the right in order to protect public health, so the keyword was (P1-2) Right to education-{general}, and in the search field we put in the term “health”. The outcome was 32 entries. In essence, none of the cases were directly related to the restrictions of the right to education regarding health, one case could be mentioned, where a blind girl was not allowed to enter the academy of music on the basis that she was blind, the ECtHR has found infringement of the right to education by discrimination of the applicant. 36 10 cases were related in one way or another to the right to religion and its relation to education (in some cases the right was invoked in order as not to participate in religious education classes, in other cases there were other aspects analysed). 10 cases were related to Roma people’s rights and their children’s right to education, there were instances in several cases where the Roma children were put in special schools which were designed for disadvantaged children. 3 cases were related to the language of education, 4 cases were concerned with discrimination. Other cases related to other questions, some not related to the right of education at all. Thus, the practice of ECtHR does not give answers in this particular situation, and will need to be developed along the general principles regarding the restrictions of the rights, especially the principle of proportionality. Furthermore, the distinguishing factor in this case is the fact that the education was provided, but in a different and maybe more challenging manner, that is by distance education. Therefore, it cannot be stated that the right to education was limited totally, maybe the more correct evaluation is that it was limited partially, changing the manner of the deliverance of the classes and other activities. The problem arose regarding

34 No. 74768/10 (ECtHR 18 June 2019). 35 ECHR (n 17). 36 Case of Çam v. Turkey, no. 51500 (ECtHR 23 January 2016).


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