CYIL vol. 11 (2020)

EMIL RUFFER CYIL 11 (2020) On 7 April 2020, the Secretary General issued an information document Respecting democracy, rule of law and human rights in the framework of the COVID-19 sanitary crisis: A toolkit for member states (Toolkit). 41 The purpose of this document was “ to provide governments with a toolkit for dealing with the present unprecedented and massive scale sanitary crisis in a way that respects the fundamental values of democracy, rule of law and human rights ” and it stressed that the CoE must remain “ the forum for collectively ensuring that these [restrictive] measures remain proportional to the threat posed by the spread of the virus and be limited in time ”. 42 First of all, the Toolkit addressed the issue of Article 15 derogation in the following manner: The extent of measures taken in response to the current COVID-19 threat and the way they are applied considerably vary from one state to another in different points of time. While some restrictive measures adopted by member states may be justified on the ground of the usual provisions of the European Convention on Human Rights (Convention) relating to the protection of health (see Article 5 paragraph 1e, paragraph 2 of Articles 8 to 11 of the Convention and Article 2 paragraph 3 of Protocol No 4 to the Convention), measures of exceptional nature may require derogations from the states’ obligations under the Convention. It is for each state to assess whether the measures it adopts warrant such a derogation, depending on the nature and extent of restrictions applied to the rights and freedoms protected by the Convention. The possibility for states to do so is an important feature of the system, permitting the continued application of the Convention and its supervisory machinery even in the most critical times. 43 This confirms that the burden of assessment lies with member states, and they have to make a choice, and they should choose wisely. The Toolkit concludes on this issue with a gentle warning: “ While derogations have been accepted by the Court to justify some exceptions to the Convention standards, they can never justify any action that goes against the paramount Convention requirements of lawfulness and proportionality. ” 44 In its second part, the Toolkit enumerates and clearly explains the following fundamental principles, which must be observed even in emergency situations: 45 • The principle of legality (rule of law must prevail); • Limited duration of the regime of the state of emergency and of the emergency measures; • Limited scope of the emergency legislation; the principle of necessity; and • Distribution of powers and checks on the executive action during the state of emergency regime. In the final part, the Toolkit assess the relevant human rights standards of those rights and freedoms most affected by any emergency measures, such as right to life, prohibition of torture and inhuman or degrading treatment or punishment, right of access to health care, right to invoking the possibility to restrict certain rights , such as Article 12 (freedom of movement), Article 19 (freedom of expression) or Article 21 (the right to peaceful assembly), in conformity with the provisions for such restrictions set out in the Covenant, or through invoking the possibility of introducing reasonable limitations on certain rights, such as Article 9 (right to personal liberty) and Article 17 (right to privacy), in accordance with their provisions. ” (emphasis added) 41 Document SG/Inf(2020)11 of 7 April 2020. 42 Toolkit , p. 2. 43 Toolkit , p. 2 (emphasis added). 44 Toolkit , p. 3. 45 Toolkit , pp. 3-4.

30