CYIL vol. 11 (2020)

EMIL RUFFER CYIL 11 (2020) 2011 he spent six months as a Visiting Fulbright Scholar at Fordham Law School in New York. He has been working in the EU Law Department of the Ministry of Foreign Affairs of the Czech Republic since 2003 and as its director from 2008 to 2016. Subsequently, he has been posted to Strasbourg since April 2016 as the Permanent Representative of the Czech Republic to the Council of Europe. I. Introduction According to some, the best thing to do in times of trouble is just ‘ Let It Be ’. 2 For others, including numerous governments of the Council of Europe (CoE) member states, a response to crisis might require extraordinary measures. Such measures in times of emergency might even amount to the governments willingly and intentionally derogating from the obligations under the European Convention on Human Rights (ECHR or the Convention), 3 according to its Article 15. These specific situations will be focus of this article, not the least due to the fact that the issue of the legality of certain measures and the question “How far can you go?” came to the forefront during the current COVID-19 pandemic. We shall first look at the legal framework enabling possible limitations and restrictions of human rights and fundamental freedoms under substantive provisions throughout the ECHR and its Protocols, as well as the (temporary) derogation of the State Party’s obligations under Article 15 of the ECHR. We shall then examine the practice of derogating from obligations, which is designed for times of war or other public emergencies threatening the life of a nation. Due to its serious nature, it surely should not be used frivolously on a daily basis, but nevertheless, it has been used on a numerous occasions so far, especially for situations of the aftermath of terrorist attacks or during the threat of such attacks. The state practice in this field naturally provoked a number of applications to the European Court of Human Rights (ECtHR or the Court), resulting in well-established case law clarifying various aspects of the state of emergency, the legality of the measures and their conditionality. From the analysis of the case law, with the aim of deriving certain leading principles, we shall move to the current COVID-19 pandemic and different responses of the respective CoE governments, and try to answer the simple question: to derogate or not to derogate? Finally, we shall try to draw some conclusions on whether COVID-19 measures indeed required the recourse of temporary derogations from the ECHR obligations, and whether there might emerge a coherent pattern in the CoE as how to address such unprecedented sanitary crisis. II. The legal framework: restrictions in substantive provisions of ECHR At this point, before dealing with practice and case law, we should try to explain the legal framework enabling restrictions of certain rights, which determines the extent of certain measures taken by governments, and also put clear limits to potential restrictions, since certain rights are non-derogable (absolute) under any circumstances, even in times of war or other public emergencies threatening the life of the nation. 2 “ When I find myself in times of trouble / Mother Mary comes to me / Speaking words of wisdom / Let it be ” – these are the opening lines of a song entitled ‘Let It Be’ by the English pop group The Beatles, from their final studio album ‘Let It Be’, released on Apple label on 8 May 1970 (which is, interestingly enough, Europe day). 3 Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950, ETS No. 5).

20