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Covid-19 and the Impact

on Human Rights

An overview of relevant jurisprudence

of the European Court of Human Rights

Covid-19 and the Impact

on Human Rights

An overview of relevant jurisprudence of the

European Court of Human Rights

Editors

Biljana Braithwaite, Western Balkans Programme Director, the AIRE Centre Catharina Harby, Senior Legal Consultant, the AIRE Centre Goran Mileti?, Director for Europe, Civil Rights Defenders

Main contributors

Ledi Bianku, former Judge at the European Court of Human Rights and Associate Professor, University of Strasbourg Nuala Mole, Founder and Senior Lawyer, the AIRE Centre Hannah Smith, Lawyer and Legal Project Manager, the AIRE Centre

We are also grateful to

Klara Slater and Emma Gilbert

for their contributions to the publication.

© 2020 AIRE Centre

This original English version has also been translated into Bosnian/ Croatian/Montenegrin/Serbian, Albanian and Macedonian

Design by

Kliker Dizajn

3

Covid-19 and the Impact on Human Rights - An overview of relevant jurisprudence of the European Court of Human Rights

Preface

This Guide on the European Convention on Human Rights in the time of the Covid-19 pandemic provides the framework for the Seventh Annual Regional Rule of Law Forum for South East Europe. Since 2014, this Forum has brought together representatives of international, supreme and constitutional courts, presidents of judicial councils, directors of judicial training academies and institutions, government agents before the Strasbourg Court, representatives of NGOs, and prominent legal experts to discuss the most relevant issues under the European Convention on Human Rights for the Strasbourg and national jurisdictions participating in the Forum. It is unnecessary to emphasise how relevant it is for this year's Forum to focus on the impact on human rights protection of the Covid-19 pandemic. The entire world was caught unprepared to deal with the emergencies associated with the pandemic and the Western Balkan countries are no exception. There is no doubt that the pandemic has impacted on a signi?cant number of human rights and freedoms protected by the European Convention on Human Rights and that it has raised several di?cult legal issues under the Convention. The Covid-19 pandemic is the ?rst time in the history of the Convention that many of the Member States have been a?ected concurrently by the same exceptional crisis situation and by one which a?ects so many Convention rights. The pandemic engages States' positive obligations to protect life and health and other rights, whilst the measures such as lockdowns which were implemented by governments in an e?ort to contain the pandemic and protect health interfered with numerous other Convention rights. National courts and the Strasbourg Court itself had to close their doors and postpone hearings and deliberations. The choice of topic for this year's Forum was, therefore, rather easy. With this in mind, we sought to prepare a Guide that, in Part 1, brie?y analyses the Convention rights that are most a?ected by the Covid-19 pandemic and by government responses to contain it. This narrative is based on the ECHR provisions and the judgments and decisions most relevant to the legal issues raised by the pandemic and seeks to apply the existing case law of the Strasbourg Court to the novel set of facts with which we are currently faced. Given that some States derogated from the Convention under Article 15 in response to the pandemic, Part

1 goes on to describe the procedural and substantial criteria to lawfully derogate

from the Convention. It ends with a discussion of the institutional and procedural guarantees which can and should be implemented during a crisis situation to safeguard human rights. 4

Covid-19 and the Impact on Human Rights - An overview of relevant jurisprudence of the European Court of Human Rights

Part 1 of this year's Guide may be described as somewhat of a novelty as, unlike the previous publications prepared for the Rule of Law Forum, it is designed in a way that addresses numerous Convention rights and covers a whole range of issues, many of which traverse multiple Convention Articles. Part 2 of the Guide contains the summaries of the Strasbourg case-law we identi?ed as most relevant to the Convention rights discussed in Part 1. The identi?cation of relevant case law certainly proved to be a more complex exercise than in previous years, given the scope of the issues and the number of Articles of the Convention that are engaged. It is obvious that this Guide does not and could not give conclusive answers to the complex legal issues which have arisen in the context of the pandemic. However, the Guide is written in a way that tries to o?er the keys to understanding the ways in which Articles of the ECHR may be involved in a pandemic like Covid-19 and what is, up to now, the status of the relevant Strasbourg Court case-law. That case law might prove critical to ?nding the proper answers to the multitude of human rights related issues that have arisen during the pandemic. We therefore hope this Guide can assist Member States to structure their responses to the pandemic in a way which protects health without compromising our collective purpose of protecting human rights. It is also our hope that this Guide will prove a useful resource to courts tasked with deciding cases on issues that have arisen in the context of the Covid-19 pandemic, as well as non-governmental organisations working with individuals whose rights and freedoms have been a?ected during the pandemic. In this spirit, we will distribute this Guide widely across the region in the hope that it can assist the wide range of institutions and organisations that are currently, or will soon be, required to contend with the complex legal questions raised by the pandemic.

Biljana Braithwaite Goran Mileti

The AIRE Centre Civil Rights Defenders

September 2020

5

Covid-19 and the Impact on Human Rights - An overview of relevant jurisprudence of the European Court of Human Rights

Contents

PART 1........................................................................

Introduction

...................................13

Chapter I - Rights engaged by the Covid-19

pandemic and by States' responses to the pandemic

1. Article 2 - Right to life

...............20 a. Positive obligations to safeguard life

b. Procedural investigative duties ........................................................................

....34

2. Article 3 - Protection from inhuman and degrading treatment

......................38 a. Positiv e obligations to protect individuals from inhuman and degr ading treatment ..........................................................39

b. Procedural investigative duties ........................................................................

....53

3. Article 8 - Right to respect for private and family life

......................................54 a. Scope of Article 8 ............................55 b. Limitations ....................................64

4. Article 5 - Right to liberty

........68 a. Scope of Article 5 ............................68 b. Permitted exceptions ....................72 c. Safeguards under Article 5 .............74

5. Article 2 o f Protocol No. 4 - Right to freedom of movement,

including the right to leave and enter one's country .......................................78 a. Freedom of movement ..................78 b. Right to enter one's own country 83

6. Article 6 - Right to a fair hearing

a. Overall fairness and e?ective participation in proceedings ..............................87 b. Public hearing ................................90 c. Within a reasonable time ..............91 d. The rights of the defence to prompt,

prac tical and eective legal assistance ...............................................................92

6

Covid-19 and the Impact on Human Rights - An overview of relevant jurisprudence of the European Court of Human Rights

7. Article 10 - Right to free expression .................................................................96

a. Scope of Article 10 ..........................97 b. What constitutes an interference with

the right to freedom of expression? .................................................................99

c. Permitt ed interferences with the

right to fr eedom of expression ........................................................................

...102

8. Article 11 Right to freedom of association and manifestation

.......................108 a. Scope of Article 11 .........................108 b. Permitt ed interferences with the right to freedom o f association and manifestation .....................................................109

9. Article 3 of Protocol No.1 - Right to vote

a. Scope of Article 3 of Protocol No.1 115
b. Permitted interferences with the right to vote c. The right to participate in an election campaign d. Holding elections during the pandemic

10. Article 2 of Protocol 1 - Right to education

a. Scope of Article 2 of Protocol No.1 121
b. Permitted interferences with the right to education c. Discrimination and the link between

Article 14 and Ar ticle 2 of Protocol No.1 ...........................................................123

11. Article 1 of Protocol No.1 - Right to property

a. Peaceful enjoyment of possessions b. Nature of the interference ...........128 c. Legality d. The public interest test .................130 e. Proportionality ...............................131

Article 14 and Article 1 of Protocol No. 12

- Freedom from discrimination ..134 a. Health b. Domestic Abuse ...........................137 c. Enforcement of restrictions on movement and assembly ...............................139

Chapter II - Derogations

..............141

1. Background

..............................141 7

Covid-19 and the Impact on Human Rights - An overview of relevant jurisprudence of the European Court of Human Rights

2. How does the ECHR operate in cases of derogation? ......................................143

a. Substantial criteria ........................143 b. Procedural criteria ........................148 c. To der ogate or not to derogate during

the Covid- 19 pandemic situation? ....................................................................149

Chapter III - Institutional and procedural

guarantees during a crisis situation

1. The criteria against abuse

.........156 a. Legality b. Proportionality, including temporality of the measure .....................................158

2. The guarantees against abuse

.160 a. Parliamentary control ..................160 b. Judicial control ..............................162 c. Intra g overnmental control and

independent ombudsperson(s) .......................................................................164

Chapter IV - Conclusion

...............166

PART 2 /

Case Summaries

.............168

I. Derogation and exceptional measures

GRAND CHAMBER JUDGMENT IN THE CASE OF

A. AND OTHERS v. UNITED KINGDOM

JUDGMENT IN THE CASE OF AKSOY v. TURKEY

JUDGMENT IN THE CASE OF BRANNIGAN AND

McBRIDE v. THE UNITED KINGDOM

.178 DECISION IN THE CASE OF KOUFAKI AND ADEDY v. GREECE ..................................181 JUDGMENT IN THE CASE OF LAWLESS v. IRELAND (No. 3)

JUDGMENT IN THE CASE OF AHIN ALPAY v. TURKEY

II. Positive obligations to protect life and health including in detention premises ..192 JUDGMENT IN THE CASE OF BUDAYEVA AND OTHERS v. RUSSIA ...........................192 JUDGMENT IN THE CASE OF CALVELLI AND CIGLIO v. ITALY ....................................196 GRAND CHAMBER JUDGMENT IN THE CASE OF CENTRE FOR LEGAL RESOURCES ON

BEHALF OF VALENTIN CÂMPEANU v. ROMANIA

JUDGMENT IN THE CASE OF CORDELLA AND OTHERS v. ITALY ..............................203 8

Covid-19 and the Impact on Human Rights - An overview of relevant jurisprudence of the European Court of Human Rights

JUDGMENT IN THE CASE OF EUGENIA LAžAR v. ROMANIA ...................................207 JUDGMENT IN THE CASE OF GHAVTADZE v. GEORGIA..............................................211

JUDGMENTIN THE CASE OF KHUDOBIN v. RUSSIA

GRAND CHAMBER JUDGMENT IN THE CASE OF

LOPES DE SOUSA FERNANDES v. PORTUGAL

JUDGMENT IN THE CASE OF MOUISEL v. FRANCE

JUDGMENT IN THE CASE OF NENCHEVA AND OTHERS v. BULGARIA .....................226 GRAND CHAMBER JUDGMENT IN THE CASE OF ÖNERYILDIZ v. TURKEY ................231

JUDGMENT IN THE CASE OF OPUZ v. TURKEY

JUDGMENT IN THE CASE OF OSMAN v. THE UNITED KINGDOM ...........................239

JUDGMENT IN THE CASE OF OYAL v. TURKEY

DECISION IN THE CASE OF SHELLEY v. UNITED KINGDOM

....................................248 GRAND CHAMBER JUDGMENTIN THE CASE OF ŠILIH v. SLOVENIA ........................251 JUDGMENT IN THE CASE OF CASE OF STRAZIMIRI v. ALBANIA ..............................254

III. Expulsion and extradition

.....259 GRAND CHAMBER JUDGMENT IN THE CASE OF PAPOSHVILI v. BELGIUM .............259

IV. Restrictive measures and detention

GRAND CHAMBER JUDGMENT IN THE CASE OF

AUSTIN AND OTHERS v. THE UNITED KINGDOM

GRAND CHAMBER JUDGMENT IN THE CASE OF

BUZADJI v. THE REPUBLIC OF MOLDOVA

GRAND CHAMBER JUDGMENT IN THE CASE OF DE TOMMASO v. ITALY ...............270

JUDGMENT IN THE CASE OF ENHORN v. SWEDEN

JUDGMENT IN THE CASE OF EPPLE v. GERMANY

JUDGMENT IN THE CASE OF GUZZARDI v. ITALY

GRAND CHAMBER JUDGMENT IN THE CASE OF NADA v. SWITZERLAND ..............286

V. Judicial proceedings and guarantees

JUDGMENT IN THE CASE OF BAJIĆ v. CROATIA

JUDGMENT IN THE CASE OF BOGUMIL v. PORTUGAL

JUDGMENT IN THE CASE OF KHLEBIK v. UKRAINE

JUDGMENT IN THE CASE OF OTGON v. REPUBLIC OF MOLDOVA ..........................302 VI. Private life/medical examination, treatment & research..............................304

JUDGMENT IN THE CASE OF BATALINY v. RUSSIA

JUDGMENT IN THE CASE OF GLASS v. THE UNITED KINGDOM ..............................308 JUDGMENT IN THE CASE OF HRISTOZOV AND OTHERS v. BULGARIA .....................312

JUDGMENT IN THE CASE OF JEHOVAH'S WITNESSES

9

Covid-19 and the Impact on Human Rights - An overview of relevant jurisprudence of the European Court of Human Rights

OF MOSCOW AND OTHERS v. RUSSIA ......................................................................316

JUDGMENT IN THE CASE OF M.A.K. and R.K. v. THE UNITED KINGDOM ...............320

DECISION IN THE CASE OF NITECKI v. POLAND

JUDGMENT IN THE CASE OF PANTELEYENKO v. UKRAINE

DECISION IN THE CASE OF PENTIACOVA AND OTHERS v. MOLDOVA ....................330

JUDGMENT IN THE CASE OF R.S. v. HUNGARY

JUDGMENT IN THE CASE OF SOLOMAKHIN v. UKRAINE

VII. Informed Consent

................339 JUDGMENT IN THE CASE OF ALTUĞ AND OTHERS v. TURKEY ................................339 JUDGMENT IN THE CASE OF DVOÁEK v. THE CZECH REPUBLIC .........................342

JUDGMENT IN THE CASE OF ELBERTE v. LATVIA

VIII. Storage of data including tracking

JUDGMENT IN THE CASE OF AVILKINA AND OTHERS v. RUSSIA .............................348

JUDGMENT IN THE CASE OF L.H. v. LATVIA...............................................................351

JUDGMENT IN THE CASE OF RADU v. REPUBLIC OF MOLDOVA .............................354

GRAND CHAMBER JUDGMENT IN THE CASE OF

ROMAN ZAKHAROV v. RUSSIA

.........357

GRAND CHAMBER JUDGMENT IN THE CASE OF

S. AND MARPER v. THE UNITED KINGDOM

JUDGMENT IN THE CASE OF Y.Y. v. RUSSIA

IX. Family life........................................................................ ...............................369

JUDGMENT IN THE CASE OF KUIMOV v. RUSSIA

JUDGMENT IN THE CASE OF SABANCHIYEVA AND OTHERS v. RUSSIA ..................373

X. Freedom of expression / right to information

GRAND CHAMBER JUDGMENT IN THE CASE OF

GUERRA AND OTHERS v. ITALY

.........378

GRAND CHAMBER JUDGMENT IN THE CASE OF

MAGYAR HELSINKI BIZOTTSÁG v. HUNGARY

JUDGMENT IN THE CASE OF SALLUSTI v. ITALY

JUDGMENT IN THE CASE OF WOMEN ON WAVES

AND OTHERS v. PORTUGAL

..............388

JUDGMENT IN THE CASE OF YOUTH INITIATIVE

FOR HUMAN RIGHTS v. SERBIA

.........391

XI. Freedom of assembly

............394

JUDGMENT IN THE CASE OF CISSE v. FRANCE

10

Covid-19 and the Impact on Human Rights - An overview of relevant jurisprudence of the European Court of Human Rights

XII. Freedom of movement including the right

to leave a country and enter one's own country

JUDGMENT IN THE CASE OF A.E. v. POLAND

JUDGMENT IN THE CASE OF ANTONENKOV AND OTHERS v. UKRAINE ...............400

JUDGMENTS IN THE CASES OF

(1) OLIVIEIRA v. THE NETHERLANDS AND (2) LANDVREUGD v. THE NETHERLANDS

JUDGMENT IN THE CASE OF MILEN KOSTOV v. BULGARIA

....................................406

DECISION IN THE CASE OF OUDRHIRI V. FRANCE

XIII. Discrimination

.....................411

JUDGMENT IN THE CASE OF KIYUTIN v. RUSSIA

11

Covid-19 and the Impact on Human Rights - An overview of relevant jurisprudence of the European Court of Human Rights

List of Acronyms

The following table describes the signi?cance of various abbreviations and acronyms used throughout the handbook.

Abbreviation Denition

ECHR / the Convention

The European Convention on Human Rights

The Court / the ECtHRThe European Court of Human Rights State(s) / Contracting State(s)Contracting State(s) of the European Convention on Human Rights

Western Balkan States

Albania, Bosnia and Herzegovina, Kosovo, Montenegro, the Republic of North Macedonia and Serbia

ICJInternational Court of Justice

ICCPRInternational Covenant on Civil and Political Rights

Istanbul Convention

The Council of Europe Convention on preventing and combating violence against women and domestic violence

Lanzarote Convention

The Council of Europe Convention on Protection of Children against

Sexual Exploitation and Sexual Abuse

CPT European Committee for the Prevention of Torture and Inhuman or

Degrading Treatment or Punishment

CPT Statement of Principles

CPT's Statement of Principles relating to the treatment of persons deprived of their liberty in the context of the Covid-19 pandemic

PPE Personal Protective Equipment

Notes on Citations, Footnotes and Case Summaries

For European Court of Human Rights cases, references will give the name in italics, the date of the decision or the judgment, and the application number. It will also be noted where cases that are mentioned in the text are summarised in Part 2quotesdbs_dbs29.pdfusesText_35

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