CYIL vol. 11 (2020)

BIRUTĖ PRANEVIČIENĖ – VIOLETA VASILIAUSKIENĖ CYIL 11 (2020) of the crisis and return, as quickly as possible, to the normality. Prolongation of the state of emergency regime should be subject to the control of its necessity by parliament. An indefinite perpetuation of the general exceptional powers of the executive is impermissible.” 62 Thus, this distinction between permanent and temporary limitations is more theoretic, in practice all the measures have to be abolished once the need for them vanishes. Margin of appreciation. The measures taken by the states limiting human rights on the grounds listed in the ECHR in particular articles come up mostly in every case in ECtHR. Thus, the practice of the Court is extensive and exhaustive on most of the grounds listed in those articles, and the states have thorough guidance on the application of those categories. Even though as we have seen the practice of ECtHR has not yet encountered similar cases, but in case such request arrives, there is extensive case law to decide on this. On the other hand, the case law on Article 15, as we saw above, is not extensive at all, and the Court has stated that in declaring national emergency and applying Article 15 to their situation, the states are much better placed to evaluate the danger upon their societies and enjoy a wide margin of appreciation, and only as “from afar” the Court may come in to see whether the State has not largely overstepped that wide margin afforded to it. Thus, in second case it would seem that the states have a wider margin of appreciation in declaring national emergency than applying disease control laws and relying on public health exception. On the other hand, there is in this case a danger of wider ranging measures, if national emergency is declared, than when strictly applying the legal acts on civil protection and containment of contagious diseases. Conclusions COVID-19 has become a world-wide scourge for all the world. The regime of quarantine is applied to most of the people in the world, some cannot leave the house. The businesses had to close temporarily, many workers lost their jobs, and the tension was mounting in the society. On the other hand, the images of overflowing hospitals, the need for doctors to choose which patients get the lifesaving treatment, and which don’t, the possibility that in case of the difficult evolvement of the disease to be left without proper help to breathe do put pressure to public authorities to do all possible measures and extent those measures as far as needed and more. Thus, it is not easy to navigate those different interests in such a difficult situation. As we can see the principle of proportionality penetrates the process of decision making in times where the derogations from human rights obligations are necessary to counter threats to society. The countries in Europe chose two different legal ways for the justification of the restrictions imposed during COVID-19 pandemic. Both choosing to act based on the legal acts for civil protection and contagious diseases as well as choosing to proclaim national emergency, the states limiting human rights always need to analyse the situation and choose the less restricting means possible in order to minimize the impact on persons’ rights. In the present situation it is not an easy task, as science cannot tell with certainty which approach and which measures are the best and most effective for countering the threat posed by coronavirus. The analysis of the practice of ECtHR shows that there were no similar cases that could be used as guidance in this situation, thus the general principles applicable to all the derogations 62 Ibid, p. 3.


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