CYIL vol. 11 (2020)

CYIL 11 (2020) THE EUROPEAN CONVENTION ON HUMAN RIGHTS IN TIMES OF TROUBLE… With regard to other international obligations, namely under the ICCPR, it would have been expected that the same member states inform other States Parties to the ICCPR, through notification to the Secretary General of the United Nations as the intermediary, of their derogation under Article 4(1) ICCPR. All the above mentioned CoE member states did that, with the exception of Albania, North Macedonia, and Serbia, for reasons which remain unknown to the author. 39 As for the contents of derogations, the restrictive measures notified by the respective governments were pretty much comparable, given that the response to COVID-19 throughout Europe was also comparable, only with different degrees of intensity and different timing following the spread of the virus. Thus, in most countries, the following rights and freedoms were restricted: right to liberty (quarantines, both at home or in medical or other institutions), right to respect for private and family life (various tracking applications and devices), freedom of assembly and association (prohibiting public cultural, sports, or religious events and other gatherings), right to property (closing down restaurants, bars, shops, and other service sectors), right to education (closing of primary and secondary schools and universities), and the freedom of movement both internally (curfews, social distancing etc.) and externally (reintroducing border controls, prohibitions to enter and/or travel abroad etc.). The list is by no means exhaustive and serves only as an illustration of the typology of various measures. What is significant though, is the fact that due to the nature of the restrictive measures adopted to fight the spread of COVID-19, all the notifications made either explicitly or implicitly (by means of describing the measure) reference to some or all of the following ECHR articles: Article 5, Article 8 to 11, Article 1 and 2 of Protocol [No. 1], Article 2 of Protocol No. 4. As we have explained in Part II above, these are all provisions of the ECHR which can be lawfully restricted, inter alia for the protection of public health, without having a recourse to Article 15 derogation. So why did 10 CoE member states felt obliged to notify the Secretary General under Article 15(3) ECHR, and the remaining 37 member states (many of them having also declared a state of emergency, incl. the Czech Republic) did not feel compelled to do so? And, did the CoE give any advice to its member states how to proceed in this unprecedented situation? The answer to the second question might hopefully shed some light on the first question. The CoE is not competent or authorised to instruct its member states, Contracting Parties to the ECHR, as to which measures they should take to comply with their international obligations under the Convention. This is the sole responsibility of the individual governments as representatives of sovereign states. However, the CoE can give useful guidance or advice, and that is precisely what the Secretary General did, in a relatively timely and very efficient manner. 40 it covers a period of almost a month. The reason might be the uneven spread of COVID-19 throughout the continent, some governments adopting measures later than other ones. It might also be due to certain hesitations whether the situation is already “ripe” for making an Article 15 derogation. 39 The complete list of notifications under Article 4(3) ICCPR is available at the webpage of the United Nations Treaty Collection at: 40 It is worth mentioning in this context that with respect to the ICCPR, the Human Rights Committee issued a Statement on derogations from the Covenant in connection with the COVID-19 pandemic (CCPR/C/128/2 of 24 April 2020), which stated the following in para. 2(c): “ States parties should not derogate from Covenant rights or rely on a derogation made when they can attain their public health or other public policy objectives through


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