The Whos, the Whats, and the Whys of the Derogations from the ECHR amid COVID-19

 Issues concerning the derogation form the European Convention on Human Rights (‘ECHR’ or the ‘Convention’) amid the COVID-19 pandemic, including the question whether the notification is a pre-requisite for making a valid derogation, have been examined in other EJIL:Talk! posts here, here, and here. This post attempts to provide a more detailed account of the form and substance of the notifications submitted to the Secretary General of the Council of Europe (‘Secretary General’) so far by Latvia, Romania, Armenia Moldova, Estonia, Georgia, Albania, North Macedonia, and Serbia. It does so by comparing and contrasting the wording of the submissions and by examining them in light of the requirements set out in Article 15 (3) of the ECHR.

Preliminary observations concerning the derogations

While derogations from the ECHR are not uncommon, what sets apart this series of notifications is the number of states that resorted to them in a short time span, the unprecedented nature of ‘public emergency’ that the member states invoked, and the fact that, despite facing a similar or even larger number of COVID-19 cases and having imposed similar emergency measures, other ECHR High Contracting Parties chose not to resort to the derogation mechanism.

What all the nine High Contracting Parties have in common is that they are former members of the Eastern/Communist Bloc, either as part of the USSR or as members of the Council for Mutual Economic Assistance. That status entails both a collective memory of human rights violations that took place during the Soviet period and atavisms of a historically different approach to human rights as such, where the collective prevailed upon the individual.

Many of these states have a yet fragile rule of law system. They have registered a significant number of judgments where at least a violation was found compared to the total number of judgments delivered by the European Court of Human Rights (the ‘Court’) in their respect. Many of those judgments concern violations of the rights that were mentioned in the notifications of derogation. This context is valuable in trying to infer the factors that lead to their decision to avail themselves of the right of derogation. It is difficult to pinpoint a single cause, however. One may consider this as an act of transparency, a demonstration of good faith in times where extremely limited resources need to be coupled with more restrictive measures in order to address the overwhelming pressure put by the pandemic on various industries and sectors, or as an attempt to ‘shield’ from potential cases being brought against them at the Court.

A brief analysis shows that the ECHR provisions affected by the derogations vary across states. Latvia and North Macedonia derogated from their obligations under Articles 8 (Right to respect for private and family life) and 11 (Freedom of assembly and association) of the ECHR, Article 2 of Protocol to the ECHR (Right to education), and Article 2 of the Protocol No. 4 (Freedom of movement). In its notification, Moldova referred to Article 11 of the Convention, Article 2 of the Protocol and Article 2 of the Protocol No. 4. In addition to these articles, Estonia noted that the measures it shall take during the state of emergency may involve a derogation from certain obligations under Articles 5 (Right to liberty and security) and 6 (Right to a fair trial) of the Convention. Derogation from Article 5 of the ECHR was mentioned inter alia by Georgia, in addition to Articles 8, 11 and Articles 1 and 2 of the Protocol and Article 2 of the protocol No. 4. Albania informed about derogation from obligations under Articles 8 and 11 of the Convention, as well as Articles 1 and 2 of the Protocol and Article 2 of the Protocol No. 4.

Interestingly, Romania, Armenia, and Serbia did not mention expressly in their Note verbale the articles affected by their derogation. Moreover, the Serbian notification lacks any annexes that would guide the Secretary General and the other High Contracting Parties through the specific measures which have been so far adopted during the emergency and the relevant Convention provisions. While it refers to the website of the Government of the Republic of Serbia, where all the legal acts are published, those have been so far available only in Serbian. The Romanian notification mentions in  Art. 2 of the annexed Presidential decree restrictions concerning the following rights: a) Freedom of movement; b) Right to intimate, family and private life; c) Inviolability of home; d) Right to education; e) Freedom of assembly; f) Right of private property; g) Right to strike; h) Economic freedom. These rights would translate into Art. 8 and 11 of the ECHR, as well as Art. 1 and 2 of the Protocol, Art. 2 of the Protocol No. 4. Also, Romania has been the only country so far to provide the Secretary General follow-up information on the new measures adopted since the submission of its notification on March 15.

It shall be noted that in Lawless v. Ireland (No.1) the Commission Report mentions that there is no prescribed form for the notification (Lawless v. Ireland, no. 332/57, Commission Report of 19 December 1959 [80]). Albeit helpful, the mentioning of specific Convention articles is neither required nor sufficient. The Commission pointed out [80] that sufficient information which would enable the High Contracting Parties and the Commission to ‘appreciate the nature and extent of the derogation from the provisions of the Convention’ is necessary, along with the requirement that the notification is made without delay and that the notification contains the reasons that led the state to derogate from its obligations. In light of this, the vague language used in some notifications and the lack of additional details provided by Serbia inter alia is problematic.

In terms of timeline, the notifications have been made in a matter of several days, except North Macedonia where there was a two-week period between declaring a state of emergency and notifying the Secretary General. Most probably, delays in notifying the Secretary General will not appear as an issue before the Court. If requested, however, North Macedonia should be prepared to justify the time difference. For reference, in Greece v. the United Kingdom (Application No. 176/56), the Commission highlighted that the three-month period between the taking of the derogating measure and its notification by the United Kingdom was an unjustified delay (Greece v. the United Kingdom, no. 176/56, Commission report of 26 September 1958 [158]).

As to the third requirement referred to by the Commission in its Report on Lawless v. Ireland, whether the nine notifications provide sufficient reasons to prove that the derogations are instrumental in addressing the public emergency that threatens the life of the nations is questionable. Most notifications refer to the WHO declaration of March 11, 2020, and a brief mentioning that the measures are necessary to stop the spread of the virus. While this may be easy to understand in the context of Article 11 of the Convention and Article 2 of the Protocol No. 4, the reasons for derogation from Articles 5 and 6 of the Convention or Article 1 of the Protocol, for instance, are not so straightforward and may prove a challenge for the States should they face claims in Court.

In contrast to other notifications, the information provided by some countries such as Armenia also entail restrictions with implications for Article 10 of the Convention. The Decision of the Armenian Government annexed to the Note verbal requires that any dissemination on cases of infection of COVID-19 both in Armenia and outside should take place ‘exclusively by making reference to the information provided by the Commandant’s Office’ (see §23 of the Decision of the Government of the Republic of Armenia No 298-N of 16 March 2020). Depending on how these requirements have been transposed in practice, such restrictions may prove problematic. Moldova has also shown signs of limitations on the freedom of speech. In a recent address to Moldovan citizens, President Dodon called for a ‘total moratorium on political discussions’, contrary to the recommendations in the recently published Council of Europe Toolkit for Member States on Respecting democracy, rule of law and human rights in the framework of the COVID-19 sanitary crisis and the 2007 Guidelines of the Committee of Ministers of the Council of Europe on protecting freedom of expression and information in times of crisis.

The duration of the state of emergency declared by states vary from about 30 days in the case of Latvia, Romania, Armenia, Georgia, Albania, and North Macedonia to approximately 50-60 days in the case of Estonia and Moldova. The latter two countries opted for almost a twice longer period than the others and it may raise questions whether such a long period is necessary. The Romanian President already announced it will extend the state of emergency with another 30 days. However, it should be noted that there is no maximum duration of a ‘public threatening the life of the nation’. If called to examine a claim in light of derogations made by the High Contracting Parties, the Court will assess the circumstances of each case separately. It will be reminded, however, that in Ireland v. the United Kingdom, 18 January 1978, Series A no. 25, and A. and Others v. the United Kingdom, [GC], no. 3455/05, ECHR 2009, that period amounted to years. In the case of infectious diseases which peak in certain seasons, it may be expected that a state of public emergency is declared even several times within a year.

Finally, given the fact that Articles 8, 10 and 11 of the Convention and Article 1 of the Protocol, for instance, are classical examples of qualified rights, were the derogations even necessary in the first place? Prof Dzehtsiarou, for instance, has extensively argued that the derogations will have a limited effect on the assessment of the Court. Indeed, the above-mentioned provisions already have an embedded mechanism allowing the High Contracting Parties to interfere with them, provided that requirements of legality, necessity, and proportionality are in place. In any event, resorting to derogations will not exclude the Court from, first, analyzing whether the measures were permissible under each of the allegedly violated articles. The Court may not find it even necessary to determine whether the derogation is valid. This has been clearly stated in Ireland v. the United Kingdom [191] and reinforced in A. and others v. the United Kingdom [161]. Thus, the Court will proceed with examining the validity of the derogations if the measures do not fit under the normal regime of the ‘accommodation clauses’.

The Court will follow the same algorithm with cases brought in light of Articles 5 as well since that approach was taken when Article 5 was under scrutiny in A. and others v. the United Kingdom. Nevertheless, this does not mean that derogations are unnecessary, particularly with regard to the Convention articles that do allow for very specific limitations but do not contain an open ‘accommodation clause’. The case for using Article 15 to avoid the ‘normalization’ of executive powers was persuasively argued in a recent Strasbourg Observers blog post. Undoubtedly, in its assessment, the Court will give a wide margin of appreciation to the states in both determining the extent of the derogations and the measures necessary to address the pandemic. That, however, will not ‘shield’ the states from detailed scrutiny and analysis against the requirements envisioned in Article 15 (Brannigan and McBride v. the United Kingdom, 26 May 1993, Series A no. 258-B [43]).

Further implications for the European Human Rights System

Articles 5, 6, 8, 11 of the Convention, Articles 1 and 2 of the Protocol or Art. 2 of the Protocol No. 4 will not be the only ones examined by the Court as a result of measures related to COVID-19. The pandemic will have great implications also for non-derogable rights such as the ones enshrined in Articles 2 and 3 of the Convention. Existing death tolls and the concerns over the safeguards put in place in prisons are an early indicator of that. The Court may also be called to develop its case-law on Article 14 of the Convention and Article 12 of the Protocol No. 12, which prohibit discrimination in the enjoyment of the rights enshrined in the Convention, particularly in light of measures that concern minorities.

The COVID-19 pandemic has forced states to learn as they act. Claims arising from the measures or the lack thereof will most likely surface in the next couple of years. In an attempt to perhaps minimize them, several states availed themselves of the right of derogation from some obligations under the ECHR. That, however, will not prevent the Court from exercising careful supervision. After all, the derogation from human rights instruments does not ‘shield’ human rights abuses. The line between necessary measures and abuses may prove thinner than envisioned. Especially in difficult times, that line should be drawn over and over again.