CYIL vol. 12 (2021)

CYIL 12 (2021) COVID-19 RESTRICTIONS OF FREEDOM OF MOVEMENT IN THE CR AND LITHUANIAs … With regard to emergency situations, international human rights law distinguishes between the derogation and the limitation of fundamental rights. Under Article 15 of the ECHR, states parties may, in line with very precise material and formal requirements, derogate from their obligations under the Convention. With the exception of non-derogable rights enumerated in Article 15 of the ECHR and Protocols No. 6, 7 and 13, states parties may take measures derogating from all rights under the ECHR, but only to the extent strictly required by the exigencies of the situation and provided that such measures are not inconsistent with their other obligations under international law. As a matter of fact, a number of states parties to ECHR have notified the derogation of various human rights under Article 15 of the ECHR. 3 In reaction to the COVID-19 situation both Lithuania and the Czech Republic 4 decided not to invoke Article 15 of the ECHR. As the measures dealing with the COVID-19 pandemic discussed in the article have not yet even reached national courts let alone international courts and tribunals, the major point of the discussion in the present article will be the decisions of national bodies and references will be made to national law of the both countries. In this time of crisis national authorities had to react very quickly and the major point of reference was national law on crisis management and constitutional limits. But the analysis is carried out taking into account the requirements of the ECHR, as the national authorities enacting measures limiting human rights need to respect the principles of legality, legitimacy and proportionality. These conditions established in the ECHR are of course laid down in the constitutions and relevant laws of both countries. Thus international and European human rights law serves as an important point of reference for our analysis. 1. The concept of freedom of movement Anti-COVID-19 measures which have been adopted in various European countries, most typically, affect a number of human rights and fundamental freedoms. The EU Agency for Fundamental Rights, in a report covering the period from 21 March to 30 April 2020 pointed at restrictions and “disruptions” concerning e.g., the fields of education, work, health, justice and travel. Apart from this, the Agency drew attention to the negative impact of COVID-19 measures on specifically vulnerable groups like e.g., older persons and persons with disabilities, Roma, detainees and homeless people. 5 Actually, many of those restrictions concern the freedom of movement directly and indirectly. So, the closure of almost all education facilities in most member states affected the 3 For more details see Pranevičienė, B., Vasiliauskienė, V. State response to COVID-19 limiting human rightgs: National emergency or only quarantine? Czech Yearbook of Public & Private International Law , 2020, pp. 143–161. 4 After thorough consultation involving among others the Czech Ministry of Foreign Affairs, the Ministry of Justice and external experts, the competent authorities decided that anti-COVID measures adopted in the Czech Republic did not require such derogation. See Ruffer, Emil. The European Convention on Human Rights in times of trouble: use of derogations under Article 15 ECHR in the context of pandemic In: ŠTURMA, P., TYMOFEYEVA, A. (eds.), 70th Anniversay of the European Convention on Human Rights , rww, Passau-Berlin- Prague, 2021, p. 162, and Šturma, P. Koronavirus, nouzový stav a lidská práva [Coronavirus, state of emergency and human rights] , Bulletin Výzkumného centra pro lidská práva, 1/2020, p. 3. 5 FRA. Coronavirus pandemic in the EU – Fundamental Rights Implications: with a focus on contact tracing apps – Bulletin # 2, March 2020 – April 2020 (accessible at https://fra.europa.eu/sites/default/files/fra_uploads/ fra-2020-coronavirus-pandemic-eu-bulletin_en.pdf ).

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