In democratic countries, fundamental human rights tend to be taken for granted. Unfortunately, there are (and must be) exceptional situations when states can create exceptions to fundamental human rights.
Calamities of a scale of COVID-19 must represent a rare case when the European Convention on Human Rights (ECHR) allows major incursions into standard civil rights and liberties.
Of course, the whole COVID-19 situation is new to the European Court of Human Rights (ECtHR) and judgments of the ECtHR have never handled a pandemic of COVID-19 scale, but ECtHR judgments involving contagious diseases such as HIV incorporate judge-made rules that should guide our policymakers in these difficult times.
In this short article, I shall provide a bird’s-eye view of some ECHR articles and ECtHR judgments I believe to be relevant to the existing scenario.
To my knowledge, one of the few instances the ECHR expressly contemplates the contingency of a pandemic is Article 5, ECHR on the right to liberty and security. Article 5 says that “the lawful detention of persons for the prevention of the spreading of infectious diseases” is allowed.
The 2005 case of ‘Enhorn v Sweden’ addressed the topical issue of state-imposed isolation. Enhorn had AIDS and was subjected to mandatory self-isolation. Enhorn complained that a compulsory isolation order served upon him combined with his involuntary placement in hospital was in breach of Article 5.
The European Court of Human Rights agreed with Enhorn but only because “the compulsory isolation of the applicant was not a last resort in order to prevent him from spreading the HIV virus because less severe measures had not been considered and found to be insufficient to safeguard the public interest”.
The ECtHR added that “by extending over a period of almost seven years the order for the applicant’s compulsory isolation, with the result that he was placed involuntarily in a hospital for almost one-and-a-half years in total, the authorities failed to strike a fair balance between the need to ensure that the HIV virus did not spread and the applicant’s right to liberty.”
Enhorn was awarded damages of €12,000 plus costs. The conclusion remains that compulsory isolation that meets minimum standards of proportionality is allowed.
COVID-19 is a calamity which warrants extreme measures
Article 4, ECHR, prohibiting slavery and forced labour, does not speak of contagious diseases but allows “any service exacted in case of an emergency or calamity threatening the life or well-being of the community”. Few would doubt whether significant threats posed by COVID-19 are a calamity which warrants the extreme measures contemplated in Article 4, ECHR.
Contagious diseases like COVID-19 tend to stretch human right regimes to their limits. In the case of ‘Sergey Antonov v Ukraine’ a failure by prison authorities to promptly diagnose a medical condition and to provide prompt and comprehensive medical assistance while in detention was held to amount to inhuman and degrading treatment in breach of Article 3, ECHR.
Article 8, ECHR even allows intrusions in the right to privacy when “in accordance with the law and… necessary in a democratic society in the interests of… public safety… for the protection of health…”.
In the 1997 case of ‘Z v Finland’ (an HIV case), the ECtHR concluded that there had not been a violation of Article 8 with respect to the orders requiring Ms Z’s medical advisers to give evidence, the seizure of Z’s medical records and subsequent inclusion of such data in an investigation file.
On the other hand, the ECtHR found that making the medical data concerned accessible to the public and publishing Z’s identity and medical condition in a court judgment was in breach.
Even compulsory medical treatment has raised concerns under Article 8. In the case of ‘Solomakhin v Ukraine’, the ECtHR explained that according to its case-law, the physical integrity of a person is covered by the concept of ‘private life’ and that compulsory medical intervention constitutes an interference with this right.
Nonetheless, the interference with the applicant’s physical integrity was justified by the public health considerations and necessity to control the spreading of infectious diseases. Proportionality and fair balance are key.
Articles 9 (Freedom of Conscience), 10 (Freedom of Expression) and 11 (Freedom of Assembly) and Article 2, Protocol 4 (Freedom of Movement) all allow restrictions “for the protection of health”.
Finally, there is Article 15, the ECHR’s nuclear button for extreme situations. Article 15 ECHR prescribes that in a “…public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention...” The right to exercise such an extreme measure is subject to tight controls but its existence cannot be dismissed.
In a report entitled ‘Human Rights Dimensions of COVID-19 Response’ published on March 19, Human Rights Watch tended to be critical of extreme measures taken by certain countries to fight COVID. Success in keeping the invisible enemy at the gates has come at a cost.
Those of us who are complaining of being unable to visit their nail technician of choice should realise that, in the circumstances, measures taken to date cannot be classified as being heavy handed, at least by standards set by the ECtHR.
Robert Attard is a lawyer who has argued human rights cases, drafting submissions in the landmark case ‘Lekic v Slovenia’ (Grand Chamber ECtHR).