C Explanatory memorandum
by Mr Vardanyan, rapporteur
1 Introduction
1. Although primarily a public
health crisis, the Covid-19 pandemic is also an unprecedented challenge
for human rights and the rule of law – both of which remain applicable
even in times of national emergency. The positive obligation to
protect the right to life under Article 2 of the European Convention
on Human Rights (ETS No. 5, “the Convention”), coupled with protections
under Articles 3 and 8, require States to take measures to protect
the life and health of the population. This imperative does not,
however, give States a free hand to trample on rights, suppress
freedoms, dismantle democracy and violate the rule of law. Even
during a state of emergency, the Convention continues to set limits
and ensure respect for Council of Europe standards.
2. This is why the Bureau of the Parliamentary Assembly, at its
meeting on 7 May 2020, decided to seize the Committee on Legal Affairs
and Human Rights for a report on the impact of the Covid-19 pandemic
on human rights and the rule of law, and the Committee on Culture,
Science, Education and Media for opinion, focussing mainly on journalists’
protection and media freedom in times of restrictions to fundamental
rights motivated by the pandemic.
3. The rapporteur has decided to concentrate on the following
human rights and rule of law aspects: emergency measures; states
of emergency; derogations from the Convention; privacy and data
protection in the context of tracking of patients and tracing of
their contacts; functioning of judicial systems; the situation of persons
deprived of their liberty; and corruption connected with public
procurement and measures to protect the economy.
4. The pandemic is already having an impact on human rights and
the rule of law, on account of measures now in force. Most of these
appear legitimate, given the threat to public health and safety.
A few do not: they are disproportionate in scope or duration, or
they involve attacks on fundamental democratic processes such as
parliamentary scrutiny, judicial oversight, freedom of speech and
media freedom. But there is also a risk that the Covid-19 will continue
to have damaging consequences for human rights and the rule of law
even after the pandemic is over – as was often the case following
previous public crises, most recently those relating to terrorism.
This risk must be anticipated and averted if our European standards
and democratic way of life are to be preserved.
5. The present report takes account of the webinars organised
by the Chairperson of the Committee and the Chairperson of the Sub-committee
on human rights (prior to his appointment as rapporteur) on 27 April 2020
with Mr Dunja Mijatović, the Commissioner for Human Rights of the
Council of Europe, Mr Nicos Alivizatos, rapporteur of the European
Commission for Democracy through Law (Venice Commission) on states
of emergency, Mr Mykola Gnatovskyy, President of the European Committee
for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment (CPT), Ms Alessandra Pierucci, Chairperson of the
Committee of Convention 108 (the Convention for the Protection of
Individuals with regard to Automatic Processing of Personal Data,
ETS No. 108) and Mr Georg Stawa, member and former President of
the European Commission for the Efficiency of Justice (CEPEJ). It
also takes account of the exchange of views between the Committee
and Mr Christos Giakoumopoulos, Director General for Human Rights
and the Rule of Law, on 5 June 2020, during which Mr Giakoumopoulos
presented the Secretary General’s “Toolkit for member States on
respecting democracy, rule of law and human rights in the framework
of the COVID-19 sanitary crisis”.
Note
2 Areas in which the Covid-19 pandemic
has had an impact on human rights and the rule of law
2.1 Emergency
measures
6. States have taken a wide range
of often broadly similar measures to limit the spread of Covid-19,
almost always including severe restrictions on freedom of movement
and assembly. Most European countries have introduced enhanced border
controls, or even closures; many have restricted internal movement
and/ or imposed rules on individual behaviour in public spaces (‘social
distancing’); and a large number have ordered home confinement of
everyone other than essential workers, with minimal exceptions only
for basic needs. Covid-19 patients are often quarantined, to the
extent that children have been prohibited from visiting their dying
parents and grandparents in hospital. Such measures have an obvious
impact on the enjoyment of protected rights. People are prevented
from meeting friends and family, assembling for social, cultural,
political or religious purposes, and moving freely even within their
own neighbourhoods. Other measures also have a clear human rights
impact, such as appropriation of private property for public health-related
use, closure of private premises used for religious, cultural, sporting,
recreational or commercial purposes, school closures, and postponement
of elections and referenda. These measures are often of exceptional
scope, being applied not just to specific groups, in certain places,
for short periods, but to entire populations for weeks or months
on end.
Note
7. Such measures interfere with enjoyment of Convention rights
but – despite their scope and impact – they do not necessarily violate
them. Many Convention rights allow for limitations in order to accommodate
the need to balance individual against public interests, including
the protection of public health and safety. They include notably
the right to private and family life (article 8), freedom of religion
(article 9), freedom of expression, which includes the right to
receive and impart information (article 10), freedom of assembly
and association (article 11) and freedom of movement, which includes
the right to leave any country including one’s own (article 2 of Protocol
No. 4 to the Convention), as well as the protection of property
(article 1 of Protocol No. 1 to the Convention), the right to education
(article 2 of Protocol No. 1), and the right to free and fair elections
(article 3 of Protocol No. 1). Interference with any of these rights
is permissible under the Convention so long as it is lawful, necessary
and proportionate to the public interest being pursued, and non-discriminatory.
Deprivation of liberty for the purpose of preventing the spread
of infectious disease, including compulsory quarantine or self-confinement
and their enforcement, is permitted under article 5.1.e (and enforcement
under article 5.1.b) – again, so long as it is lawful and proportionate,
and the special guarantees of articles 5.2 to 5.5 are respected. Anyone
who is subjected to compulsory quarantine or self-confinement should
be tested for infection at the earliest possibility, so that the
restriction can be brought to an end as soon as possible. The Convention
also requires that States provide an effective remedy to ensure
that measures do not go beyond lawful, proportionate interference
and thereby become violations (article 13).
8. Whilst even very extensive measures that restrict the right
to private and family life and freedom of assembly and movement,
for example, may be readily justifiable in response to the pandemic,
those that restrict freedom of expression, access to information
and media freedom will be far less so. As Commissioner for Human
Rights Dunja Mijatović has stated, “journalism serves a crucial
function during a public health emergency … information is essential
for the public to understand the danger and adopt measures at a personal
level to protect themselves”.
Note The Commissioner
expressed concerns in particular about new legal restrictions on
freedom of expression in Hungary, the Russian Federation, Azerbaijan,
Romania, Bosnia and Herzegovina, and Armenia;
Note about the arrest of
journalists in Turkey; and about interference with the work of journalists
in the Czech Republic, Serbia, Slovenia and Italy. The Commissioner
has separately expressed concerns about the arrest and detention
of journalists in Russia
Note and the Azerbaijani authorities’
use of the health crisis as an excuse to “clamp down on freedom
of expression”.
Note
9. Freedom of expression is also relevant to the situation of
whistle-blowers. One need only recall the case of Dr Li Wenliang,
the Chinese doctor who was punished by the police for having alerted
colleagues to a new respiratory disease in Wuhan. As a result, no
action was taken to suppress the outbreak of Covid-19 until its spread
had become almost irreversible. Two months later, Dr Li died of
Covid-19 contracted whilst treating patients. Had his whistleblowing
been heeded rather than silenced, tens of thousands of lives might
have been saved and world history may have taken a very different
course.
10. More widely, the activities of human rights defenders in general
are hard hit by restrictions on the freedoms of expression and assembly,
despite the fact that their work is particularly important to ensure
that the effect of restrictive measures does not lead to human rights
violations. The public management of the Covid-19 pandemic (health,
public procurement and subsidy, global supply chains, restrictive
measures, digital tracking tools and privacy issues, with decisions
taken following emergency procedures and often with reduced parliamentary
and judicial oversight) may well result in wrongdoings, maladministration
and human rights violations. In this context, journalists, whistleblowers
and human rights defenders are key assets in preventing further
damage by disclosing bad practices in good time for corrective measures
to be taken.
Note
11. Some restrictions on the freedom of expression and information
under article 11 may nevertheless be necessary (for example, combating
disinformation that may cause panic or social unrest). Recognising
this problem, the Venice Commission suggests that “offences which
might apply in ordinary times … can be used in such circumstances,
e.g. deliberately inducing panic in the public” and further suggests
that “existing powers to require internet service providers to remove
‘offensive’ content might also be employed to restrict access to grossly
misleading information. Obviously, such powers and offences have
a great potential for abuse by authoritarian governments.” Some
of the laws that have been introduced during the present crisis,
however, have a questionable legal basis, and are vaguely worded
and potentially disproportionate; they appear to be deliberately
aimed at suppressing public criticism of the authorities’ response
to the pandemic and even at weakening scrutiny by independent media
and civil society in general. These have included the introduction
of vaguely-worded criminal offences purportedly covering dissemination
of false information on the pandemic; restrictions on access to
the internet and social media; and restrictions on public debate.
Such unjustifiable and disproportionate interference is not only
a violation of human rights, it is an attack on the foundations
of democracy. In relation to the Covid-19 pandemic, it is also detrimental
to ensuring an effective public health response that attracts the
informed and sustainable support of the public based on trust in
public institutions.
12. Particular sensitivities may arise in relation to freedom
of religion. The right to manifest one’s religion or belief, “either
alone or in community with others and in public or private”, is
closely connected to the freedoms of expression and assembly. The
closure of religious premises and restrictions on assembly for religious ceremonies
may thus interfere with all three rights. Limitations on leave from
work for the personnel of essential services may interfere with
religious freedoms if people are prevented from observing religious
holidays. The above concerns are particularly significant for Christian,
Jewish and Muslim believers as Easter, Passover and Ramadan all
fell during April-May. The compulsory wearing of protective masks
may interfere with the right to manifest one’s religion through
observance of religiously prescribed dress codes. Appropriation
of religious premises by public authorities for use as medical or
other facilities would interfere with both the right to manifest one’s
religion, as well as the protection of property. Authorities should
take these considerations into account, carefully balancing public
interests and individual rights.
2.2 States
of emergency
13. Most Council of Europe member
States have introduced restrictive measures following the declaration of
a formal state of emergency (or similar). A state of emergency creates
an exceptional legal regime under which the executive has exceptional
authority to exercise exceptional powers in response to an exceptional threat,
with exceptional limitations on the roles of the legislative and
judicial branches under that regime. Whilst such regimes may allow
for a more rapid, flexible and effective response to an acute threat,
they limit the application of normal checks and balances and are
thus potentially hazardous from the perspective of human rights,
democracy and the rule of law. The Venice Commission has identified
a list of “principles governing the state of emergency” that should
be applied in order to ensure compliance with Council of Europe
standards:
- Overarching principle of the Rule of Law. Under
the ‘rule of law approach’, a state of emergency is a “legal institution,
which is subject to legal regulation, though the rules applicable
to it may be somewhat different from those applicable in times of
normalcy … Even in a state of public emergency the fundamental principle
of the rule of law must prevail.”
- Necessity. “Only
measures which are necessary to help the State overcome the exceptional
situation may be justified. The general purpose of emergency measures
is overcoming the emergency and returning to ‘normalcy’.”
- Proportionality. “States
may not resort to measures that would be obviously disproportionate
to the legitimate aim (in terms of their severity or the geographical
area covered …). If they have a choice between several measures,
they should choose the ones which are less radical.”
- “The principles of necessity and proportionality … should be respected
in three contexts: first, in declaring, prolonging and terminating
the state of emergency; secondly, in activating particular emergency
powers; and thirdly, in applying these powers.”
- Temporariness. “Emergency
measures may only be in place for the time the State experiences
the exceptional situation. They must be terminated once the exceptional
situation is over. They should therefore not have permanent effects.”
“The declaration of the state of emergency should be always issued
for a specific period of time, which moreover should not be excessively
long, and should be terminated before the expiry of the period of
the emergency has been overcome and exceptional measures are no
longer necessary. Declarations with no time limit … should not be
considered as lawful. At the same time, it is possible to prolong
the situation for so long as it is necessary.” That said, “the longer
the situation persists, the lesser justification there is for treating
a situation as exceptional in nature with the consequence that it
cannot be addressed by application of normal legal tools.” “There should
be an obligation to terminate the state of emergency immediately
upon overcoming the emergency … as soon as the emergency can be
addressed by the ordinary legal mechanisms”.
- Effective (parliamentary and
judicial) scrutiny – over “both the declaration and possible
prolongation of the state of emergency, on the one hand, and the
activation and application of emergency powers on the other hand.”Note
- Where the state of emergency
is declared by the executive, “it should be subject to immediate parliamentary
approval” and “not enter into force before approval by parliament”.
Where immediate entry into force is necessary without parliamentary
approval, “the declaration should be immediately submitted to parliament
which can repeal it.” “Parliaments should have the power to review
the state of emergency at regular intervals and to suspend it as
necessary. Furthermore, the post hoc general
accountability powers of Parliament ... to conduct inquiries and investigations
... are extremely important for assessing government behaviour.”
- “Judicial control of the declaration of the state of emergency
may be limited to the procedural aspects … If, however, emergency
measures involve derogations from human rights, the substantive
grounds for the state of emergency shall be subject to judicial
review as well … Judicial review over the … application of emergency
powers … should always be possible. The judicial system must provide
individuals with effective recourse in the event that government officials
violate their human rights. Courts should exercise control so that
the derogatory measures do not – either in general or in specific
cases – exceed the boundaries of legality and the limits of what
is strictly required … and do not infringe non-derogable rights”.
- Predictability of emergency
legislation. “The emergency regime should preferably
be laid down in the Constitution, and in more detail in a separate
law, preferably an organic or constitutional law [where such things
exist]. The latter should be adopted by parliament in advance, during
normal times, in the ordinary procedure.”
- Loyal co-operation among State
institutions – important “for the crisis management to
be effective and coordinated and for the sake of equality and fairness
of treatment of all citizens”, especially since “a state of emergency
involves derogations from the ordinary rules of distribution of
powers”.
14. Concerning necessity, proportionality and temporariness, the
need for regular review and adjustment of emergency measures and
the recourse to ordinary law measures as soon as practicable, several
states have indeed varied their approach as the situation has evolved,
including the following:
- In
Bosnia and Herzegovina, the state of emergency ended at federal
level on 31 May (and in the Republika Srpska on 21 May).
- In Bulgaria, the state of emergency ended on 13 May, to
be replaced by a “state of epidemic alert” until 14 June.
- In Cyprus, the state of emergency ended on 30 April.
- In the Czech Republic, the state of emergency ended on
17 May, although some restrictions were maintained until the end
of 2020 under the Law on Public Health.
- In Estonia, the emergency situation was ended on 18 May
(and the derogation to the Convention withdrawn with effect on the
same day).
- In Latvia, as restrictions were gradually lifted, the
scope of the derogation was first reduced and then withdrawn.
- In Georgia, the state of emergency ended on 22 May and
was replaced by special emergency legislation (but the derogation
to the Convention remained in effect).
- In the Republic of Moldova, the state of emergency ended
on 16 May (and the derogation to the Convention was withdrawn on
19 May).
- In Portugal, the state of emergency was replaced on 2
May by a “state of calamity” until 15 June.
- In Romania, the state of emergency ended on 15 May and
was replaced by a “state of alert”, adopted by parliament for 30
days.
- In Serbia, the state of emergency ended on 7 May.
- In Slovenia, the government declared an end to the local
epidemic, although some restrictive measures remained in place.
- In Spain, the government declared a “state of alarm”,
the lowest of three possible degrees of state of emergency.
- In Switzerland, the state of emergency ended on 19 June,
to be replaced by a “state of particular situation”.
15. Whilst it is beyond the scope of the present report to address
the proportionality of measures taken in particular States, the
question of legality – whether or not the measures have a sufficient
legal basis – can more readily be examined. A series of scholars
writing on the
Verfassungsblog have
noted issues concerning the legality and constitutionality of measures
taken in a number of Council of Europe member States.
Note Their observations are indicative
of the problems that States have faced:
- In Albania, article 17 of the Constitution stipulates
that limitations on constitutionally guaranteed rights may only
be imposed “by law”, but Covid-19 limitations were initially imposed
by orders of the Minister of Health and Social Protection and decisions
of the Council of Ministers.
- In Bulgaria, parliament had to retroactively legalise
measures taken by the executive following parliament’s earlier declaration
of a state of emergency.
- In Croatia, a novel legal arrangement to give decision-making
powers to an administrative body required retroactive legislative
amendments to resolve problems this arrangement had created, despite
a general constitutional prohibition on retroactive legislation.
- In the Czech Republic, in the space of two months, the
government adopted 65 resolutions all bearing the same title, plus
resolutions to annul some of those resolutions; the health ministry
adopted additional measures. Some government resolutions were annulled,
only for the same measures to be applied by the health ministry.
- France initially responded to the pandemic using ordinary
law but then introduced a new “state of health emergency” law, despite
the fact that emergency powers regimes already existed (including
a 1955 law that was applied during the 2015-2017 state of emergency).
- In Georgia, parliament approved a Presidential Decree
that authorised the government to restrict rights in some areas
without always specifying the nature or scope of those restrictions.
- In Lithuania, the government adopted and subsequently
amended a “quarantine resolution” to introduce measures that were
not envisaged by the relevant law. Parliament was then obliged to
amend the law retroactively in order to legitimise these measures.
- In Malta, criticism of an order by the Superintendent
of Public Health to close the courts led the parliament to adopt
a law to legitimise this and other measures retroactively.
- In Poland, the constitution requires limitations on rights
to be introduced by statute and be proportionate to their goal,
yet the government introduced severe restrictions on rights on the
basis of new statutory provisions that are worded in vague and very
general terms, and which the restrictions are said to exceed.
- The Portuguese Parliament retroactively ratified the government’s
decree-law that introduced the most significant measures, despite
a constitutional prohibition on retroactive restrictions of fundamental
rights. In addition, the “chaotic body of law and administrative
orders raises issues of legal security and certainty, as doubts
on the interpretation of poorly drafted provisions and successive
amendments grow”.Note
- In Russia, where primary responsibility was conferred
on the regions, regional authorities imposed restrictive measures
(‘self-isolation’) with no basis in federal law.
- In Serbia, “rules on the days and hours of confinement
changed weekly, contributing to the confusion, insecurity and sense
of helplessness”.Note
- In Spain, the government relied on a legal provision allowing
limitations on freedom of movement to impose an almost total ban
on public presence, despite there being an alternative framework
that would have more clearly permitted a total ban.
- In Switzerland, the Federal Council has used emergency
powers to amend federal law and in ways that may contradict the
constitution.
- In Turkey, the government has chosen not to declare a
state of emergency (as was done for several years following the
2016 failed coup d’état) but has instead introduced measures through
a combination of presidential or ministerial circulars, which are
amongst the lowest categories of legal norms and cannot contradict
laws or regulations. The constitution permits restrictions on rights
and freedom only by law. Only one of the numerous presidential or
ministerial circulars on which Covid-19-related measures are based
was published in the Official Gazette.
- In Ukraine, the constitution permits restrictions on rights
and freedoms only on the basis of legislative acts, whereas subsidiary
legislation was used to introduce Covid-19-related measures.
16. The problems encountered seem to fall into four main categories:
- Restricting rights through measures
of a type that is not foreseen for that purpose;
- Restricting rights through measures based on laws that
are insufficiently clear in defining the scope of permissible restrictions,
or through measures that exceed the scope of restrictions permitted
by law;
- Use of retroactive legislation to legitimise measures
taken without sufficient legal basis, in some cases despite retroactive
legislation being forbidden;
- Lack of legal certainty, meaning instability and lack
of clarity and accessibility of the restrictive emergency measures,
taken individually and as a whole.
17. There should and need not be any tension between effectiveness
and legality. The Venice Commission has noted that “many states
have felt the need and chosen to legislate especially for the situation
caused by the Corona-virus epidemic, including several states which
provide, either in their constitution or in ordinary legislation,
for wide-ranging emergency measures. This seems to indicate that
few, if any states, have felt that their existing emergency laws
are adequate for the present emergency”. This would explain the
difficulty that so many States appear to have encountered with the
legal basis for emergency measures. It is clear that many States
would benefit from a thorough review of the measures taken in response
to the pandemic, in order to ensure that a clear and sufficient
legal framework exists for the future: as the Venice Commission
noted, the legal framework shoud be “adopted by parliament in advance,
during normal times, in the ordinary procedure”. This is a lesson
for the future, given that many countries, when already confronted
by the pandemic, found that their existing emergency legal frameworks
were unsuited to it and were therefore obliged to adopt new laws whilst
the crisis was occurring.
18. On one particular aspect, one country has taken an approach
that is fundamentally different from that of any other member State.
Hungary introduced a new form of state of emergency which was not
time-limited. This unique peculiarity was widely criticised, including
by the President of the Parliamentary Assembly,
Note the Secretary
General of the Council of Europe,
Note and the Council of Europe
Commissioner for Human Rights.
Note On 16 June, the Hungarian Parliament
adopted two laws, LVII and LVIII of 2020. The first called for an
end to the state of emergency. The second, amongst other things,
created the legal framework for a new ‘state of medical emergency’,
with no constitutional basis, which is declared and can be repeatedly
extended by government decree, without parliamentary endorsement.
Note The state of medical emergency is administered
by an “operative staff”, bypassing cabinet government and parliamentary
scrutiny.
Note The state of medical emergency
allows the government to suspend the activity of any body (not excluding
parliament or the courts) and increases the role and powers of the
police and army.
Note Normal public procurement
rules may be suspended and the prime minister may award contracts
directly.
Note On 17 June, Prime Minister
Orban issued two decrees, one ending the state of emergency and
the other declaring an immediate state of medical emergency.
Note The new state of medical emergency
also raises serious concerns from the perspective of fundamental
Council of Europe values of democracy and the rule of law.
2.3 Derogations
from the European Convention on Human Rights
19. Many States have activated
national emergency laws in order to allow the introduction of exceptional measures.
Some States have gone on to derogate from their obligations under
the Convention. There is an important distinction to be drawn between
emergency measures and derogations. From a human rights perspective,
a state of emergency merely establishes a legal basis for taking
exceptional measures that may restrict fundamental rights. Such
restrictions may nevertheless be compatible with Convention requirements on
the basis that they are lawful, necessary and proportionate responses
to an acute threat to public health and safety. A derogation, on
the other hand, implies that the State assumes that the restrictions
go beyond what might be permitted under the normal limitations clauses
and are not compatible with Convention requirements. Article 15
of the Convention then allows the State to “take measures derogating
from its obligations … to the extent strictly required by the exigencies
of the situation”. In fact, a State does not have to declare a state
of emergency (which is often the precondition for invoking exceptional
provisions of domestic law) in order to derogate from the Convention,
although this has been the case for at least nine of the Covid-19-related
derogations (the information provided by San Marino is unclear on
this point).
20. The Convention does not allow for derogation from the rights
under articles 2 (right to life), 3 (prohibition on torture), 4.1
(prohibition on slavery and servitude – excluding forced or compulsory
labour, prohibited under article 4.2, from which derogation is permitted)
and 7 (no punishment without law). This means that States can derogate
from all of the rights that allow for proportionate interference
(see above). It is, however, not immediately obvious what advantage
could be gained by derogating from these rights. First, because
permitted grounds for proportionate interference include public
health and safety; and second, because derogation is permitted only
“to the extent strictly required by the exigencies of the situation”
– which is itself a test of proportionality. Six of the ten states
that have so far derogated from the Convention for Covid-19-related measures
have specified the rights that may be affected by these measures:
four of these six refer only to rights that may in any case be limited
in pursuit of public health and safety goals, whilst the other two
refer also to articles 5 (right to liberty and security) and/ or
6 (right to a fair trial).
21. Even derogations to articles 5 and 6 are heavily circumscribed.
Article 15 states that derogating measures must not be “inconsistent
with [the State’s] other obligations under international law”. This
includes peremptory norms such as the prohibitions on collective
punishment and arbitrary deprivation of liberty, and fundamental
fair trial principles such as the presumption of innocence. It also
includes procedural guarantees necessary to the protection of non-derogable
rights in the context of deprivation of liberty, including the right
to life and the prohibition on torture. Furthermore, as noted above,
articles 5 and 6 themselves contain provisions allowing for flexible
application in exceptional circumstances.
22. Derogation does not exclude supervision by the European Court
of Human Rights (the Court) of the measures concerned, although
it does change the nature of the Court’s control. The Court applies
a very wide margin of appreciation to the national authorities’
perception of a state of emergency, and has only once disagreed.
It is less deferential on the question of necessity, recalling that
“States do not enjoy unlimited power in this respect. The Court
… is empowered to rule on whether the State has gone beyond the
‘extent strictly required by the exigencies’ of the crisis. The
domestic margin of appreciation is thus accompanied by a European
supervision.” Again, this does not seem to imply a qualitatively
different approach to cases depending on whether or not a state
has derogated: the Court also allows a “margin of appreciation”
to States when determining whether an interference with a protected
right was proportionate or not.
23. The Assembly has in the past called for a progressive approach
to emergency measures and derogations, recommending that States
(i) exhaust the possibilities offered by ordinary law, (ii) before
having recourse to emergency measures that are nevertheless still
compatible with Convention requirements, and (iii) only as a last
resort introducing particularly restrictive measures that require
derogation from the Convention. Each successive step involves acceptance
of progressively greater interference with protected rights and,
in the case of a derogation, acceptance of standards that fall below
the generally recognised European minimum level. Protracted states
of emergency and derogations have the effect of normalising lowered
standards and habituating populations to greater interference with
their rights. Experience has also shown that governments have a
tendency to retain measures introduced during a state of emergency
even after the emergency itself has ended. Sometimes this is done
by making changes to the ordinary law (and even the constitution)
through emergency procedures lacking democratic safeguards; sometimes
by transposing emergency measures into the ordinary law when the
state of emergency is lifted. On the other hand, a properly designed
state of emergency regime, limited in scope and time and with effective
judicial and parliamentary oversight, should ensure that emergency
measures are brought to an end when the emergency ends.
24. The Venice Commission has also recognised this quandary. “Derogation
is not always necessary … The ECHR provides for the possibility
to restrict several rights on account of protection of health …
Other rights contain more general grounds for restriction, and the
European Court of Human Rights takes account of the context when
interpreting the extent of rights. Refraining from making a derogation
may convey the message that a crisis may be handled without resorting
to exceptional powers: on the other hand, a derogation may give a
clear indication that certain exceptional measures are truly ‘exceptional’
and do not ‘make the law’.” The UN’s Siracusa Principles, however,
state that “A measure is not strictly required by the exigencies
of the situation where ordinary measures permissible under the specific
limitations clauses of the [International Covenant on Civil and
Political Rights] would be adequate to deal with the threat to the
life of the nation.”
Note This
would seem to support the Assembly’s view that measures requiring
a derogation should be a last resort.
25. Whilst the Court is the final arbiter of the lawfulness of
derogating measures in individual cases, the Secretary General also
plays a role. Article 15 of the Convention only requires States
to notify the Secretary General of the measures taken and the reasons
for them. Unfortunately, this lack of detail means that notifications
vary considerably in form, content and level of detail. Certain
past notifications have contained only a description of the situation
giving rise to the emergency and a copy of the derogating measures,
with no information on the rights that may be affected. This makes
it difficult to predict the extent of possible interferences with
protected rights and may complicate the Court’s role of ensuring
posterior judicial control. Most of the Covid-19-related notifications
were generally better:
Note eight of them specified how
and by whom the state of emergency had been declared and summarised
the measures necessitating derogation; eight of them specified the
(initial) duration of the state of emergency (between 30-60 days);
six of them specified the rights that may be affected; and four
of them clarified the role of parliament in declaring a state of
emergency. Outside scrutiny of derogations would be greatly facilitated
if notifications followed a standard pattern, addressing all of
these significant issues.
26. The Convention gives the Secretary General an apparently passive
role as repository of derogation notifications, but the wider institutional
status of the office gives rise to further, as yet unexploited potential.
In a 2018 resolution,
Note the Assembly proposed that the Secretary
General take a more proactive approach, by providing prior advice
to states on whether a derogation appears to be legally necessary,
and if so, on how to formulate it as restrictively as possible.
Another proposal was for the Secretary General systematically to
open inquiries under article 52 of the Convention into whether a
derogating State’s law continued to ensure effective implementation
of the Convention. On the basis of information provided in the course
of this inquiry, the Secretary General would then engage in dialogue
with the State in order to assist it in continuing to meet Convention
obligations. The Assembly also proposed that the Committee of Ministers
prepare a recommendation to member States on derogations, drawing
on existing standards (including from the case-law of the Court)
and good practice, and including a call on member States to co-operate
with the Secretary General.
Note The aim of these proposals was to assist
national authorities in understanding the legal complexities in
this area taking a more harmonised approach in future, supported
by the Council of Europe.
27. Unfortunately, the then-Secretary General responded to the
Assembly’s detailed proposals in very general terms and the Committee
of Ministers replied that it did “not see at the present time any
clear need to envisage a recommendation”. Whilst complete uniformity
is neither necessary, feasible nor desireable, the striking inconsistency
of member States’ approaches to the question of whether and how
to derogate undermines the coherency of human rights protection
across Council of Europe member States; greater harmonisation would
help. The aftermath of the pandemic would be the right time to address
this important issue.
2.4 Innovative
surveillance and contact-tracing measures
28. Many measures proposed in response
to the Covid-19 pandemic make innovative use of technologies such
as closed-circuit television (CCTV), drone surveillance, facial
recognition, and geolocalisation and proximity sensors on mobile
phones. These tools can facilitate the tracking of infected persons
and the tracing of people with whom they have been in contact, or
the enforcement of rules on confinement and quarantine. They are
also all forms of mass surveillance which generate huge amounts
of data on individuals’ behaviour, raising serious privacy concerns.
As well as being technological innovations, they operate at the
limits of current regulatory standards.
29. It is increasingly assumed that smartphone contact tracing
applications will form part of many countries’ responses to the
pandemic. These apps would identify and inform people who have been
in contact with an infected person so that they could present themselves
for testing, or self-quarantine. Two main technical approaches are
possible. The first cross-references geolocalisation data from users’
phones to confirm proximity. The second uses the phone’s own hardware
to confirm the proximity of another phone within a certain distance
for a certain amount of time, with the phones exchanging randomly
generated codes. (In a sense, this scenario mimics transmission
and infection by the virus, with the phones acting as proxies for
their owners and the codes as a proxy for the virus.) Should the
owner of a phone with this app become infected, then (i) either
the codes emitted by their phone over, say, the previous two weeks
would be transmitted to everyone else using the app (as in the collaborative
Google/ Apple ‘exposure notification’ approach, or the DP-3T
Note protocol developed by a group
of European academics), or (ii) the codes received by their phone
would be uploaded to a central server, along with data identifying
the user (as with the French ‘StopCovid’ app). Should someone’s
phone recognise the codes thus transmitted, they would be informed
and could have themselves tested or self-quarantine.
30. It seems that most, if not all European countries prefer the
proximity-sensing approach, which involves processing of less data
(only on occasional relative proximity, as opposed to constant absolute
location). The data obtained can be processed in either one of two
ways: centralised, with information on the identity of persons who
have been in contact with one another stored on a central server;
or decentralised, with personal data remaining on users’ own phones
and the central servers processing only the randomly generated codes, from
which individuals cannot be identified. Here again there is an obvious
and important difference in data protection terms, which is why
many, although certainly not all, countries have preferred a decentralised approach.
31. It is generally considered that tracing apps would have little
effect unless at least 60% of the population used them; in western
Europe, this would mean 80% of smartphone owners (more where the
proportion of the population owning smartphones is lower). This
level of voluntary use has proved hard to achieve: in France, for
example, during its first two weeks of operation, the StopCovid
app was activated by only 1.7 million users, representing just 2.5%
of the population.
Note A lack
of public trust in the app, resulting in low levels of installation or
use, would thus seriously undermine its effectiveness. Public trust
can be reinforced by using primary legislation to establish the
regulatory framework. Tracing apps should not be made compulsory,
either directly or, by being a precondition for certain activities,
indirectly. This is all the more so given that smartphone ownership
is not spread equally across the population, with certain groups,
such as the elderly or economically disadvantaged, being less likely
to own one; any negative consequences of not using a tracing app
would thus be discriminatory. In addition, to be truly effective,
tracing apps depend on an accessible, large-scale, rapid and accurate
system to test for the disease. Indeed, where contact tracing (however
it is done) leads to compulsory quarantine or self-confinement,
testing should always be available to the people concerned so that those
who are not infected can be released from such restrictions as soon
as possible. This is implied by the principle of proportionality,
which stipulates that restrictions must be minimised as much as
possible; it might even be said to create a ‘right to be tested’
in these circumstances. Contact tracing apps should also be inter-operable
between different European countries, so that they continue to function
when people travel and can facilitate the reopening of borders.
Note Tracing apps can only be one part
of a wider strategy; they will not by themselves be the solution
to allow ending restrictions.
32. Mass surveillance and the collection and storage of data on
individuals, even without their permission, is not absolutely prohibited
by the Convention. The normal constraints of legality, necessity
and proportionality, however, do apply.
Note Surveillance
measures must have a foundation in law, and that law must be clear
in its meaning, foreseeable in its application and adequately accessible.
The sufficiency of existing law as a basis for innovative measures
must therefore be assured before they are brought into operation,
and any shortcomings must first be addressed.
33. The 2018 Modernised Convention for the Protection of Individuals
with regard to the Automatic Processing of Personal Data (CETS No.
223, “Convention 108+”) is the Council of Europe’s specialised instrument
for data protection, representing the state of the art in international
standards. The Chairperson of the Committee of Convention 108 and
the Council of Europe Data Protection Commissioner have issued a “Joint
statement on the right to data protection in the context of the
COVID-19 pandemic”.
Note This statement sets
out Council of Europe standards in this area, which allow data processing
for purposes related to the authorities’ response to the pandemic
under the following conditions:
- data
subjects are made aware of the processing of personal data related
to them;
- personal data is processed only to the extent that is
necessary and proportionate to the explicit, specified and legitimate
purpose being pursued;
- an impact assessment is carried out before data processing
begins;
- privacy by design is ensured and appropriate measures
are adopted to protect the security of data; Committee of Ministers’
Recommendation CM/Rec(2019)2 on the protection of health-related
data provides specific guidelines in this regard;
- data subjects are entitled to exercise their rights, including
to correct data held on them and to a remedy for alleged violations
of those rights;
- the principle of lawfulness is respected, meaning:
- processing of data can be carried
out either on the basis of the data subject’s consent or some other
legitimate basis laid down by law;
- legitimate basis notably encompasses data processing necessary
for the vital interests of individuals, and data processing carried
out on the basis of public interest, such as in the case of monitoring
a life-threatening epidemic;
- large-scale personal data processing can only be performed
when, on the basis of scientific evidence, the potential public
health benefits override the benefits of other alternative solutions
which would be less intrusive.
- according to Convention 108+ (see Article 11) exceptions
shall be “provided for by law, respect the essence of the fundamental
rights and freedoms and constitutes a necessary and proportionate measure
in a democratic society”
- where
restrictions are being applied, those measures have to be taken
solely on a provisional basis and only for a period of time explicitly
limited to the state of emergency
- it is crucial that specific safeguards are put in place
and that reassurances are given that full protections are afforded
to personal data once the state of emergency is lifted
- for data processing involving artificial intelligence
systems, see further the Guidelines on Artificial Intelligence and
Data Protection of the Consultative committee of the data protection convention.Note
34. The Joint Statement makes clear that data protection rights
are not incompatible with epidemiological monitoring. It also stresses
that anonymised data is not covered by data protection requirements.
The use of aggregated geolocation data to identify gatherings that
breach confinement regulations or to indicate movements of persons
away from an area with a high rate of infection would thus be permissible.
2.5 Functioning
of the judicial system
35. Restrictions on freedom of
movement and assembly have inevitably had an impact on the work
of the courts, which – in accordance with article 6 of the Convention
– involve public hearings to determine civil and criminal cases.
Such hearings typically involve a considerable number of persons,
variously including the parties/the defendant, the judge(s), in
some countries jury members, lawyers, prosecutors, court clerks, stenographers,
experts, witnesses, security personnel, members of the public and
journalists. On the one hand, the principles of immediacy (physical
presence of all actors) and publicity of court proceedings should apply
in the interests of transparency, fairness, equality of arms and
the trust of the general public in the functioning of the judiciary.
On the other hand, imperative restrictions on freedom of movement
and measures such as ‘social distancing’ are incompatible with the
normal functioning of the courts.
36. Article 6 foresees exceptions to the public nature of court
proceedings on different grounds, including in the interest of public
order in a democratic society and “to the extent strictly necessary
in the opinion of the court in special circumstances where publicity
would prejudice the interests of justice”. Whilst there is no specific
reference to public health as a ground for interference (unlike
in the case of Articles 8 to 11 and others, as described above),
measures to prevent the spread of a catastrophic pandemic should
qualify as being justified by the need to uphold public order and
protect the interest of justice, which should cover the protection of
life and health of the actors of the justice system. The exclusion
of the public, and even journalists, may thus be permissible.
37. Similar considerations apply to exceptions to the rule that
all participants in the proceedings must be physically present.
Witnesses can be heard and questioned by video conference, lawyers
and prosecutors can plead in the same way. For this, however, appropriate
infrastructures must be established as soon as possible, to prevent
delays in proceedings which are particularly damaging in criminal
proceedings (especially when the accused is in pre-trial detention,
which may be subject to custody time limits) and in family law and
child protection proceedings (where individuals may need to be protected
against risks to their health and safety). As with the restrictions
on ‘limitable’ rights, any exceptions must be limited in scope and
duration to what is absolutely necessary for the protection of public
order and in the interest of justice, and last no longer than the public
health crisis persists.
38. The Covid-19 pandemic nevertheless inevitably delays the administration
of justice, either because exceptional procedures are insufficient,
or because the judges in charge prefer not to make use of them.
This is their right, as judges enjoy independence not only in substantive
decisionmaking, but also in managing their proceedings. The discretion
of the courts is, however, not unlimited. In criminal proceedings
and matters affecting civil rights, article 6 ensures that everyone
has the right to trial within a reasonable time. This consideration
is particularly relevant when the accused is in pre-trial detention,
where article 5.3 requires either trial within a reasonable time
or release pending trial. What is a ‘reasonable time’ in circumstances
where few if any trials are taking place because of Covid-19-related
restrictions, however, may be considerably longer than what would
otherwise be ‘reasonable’. The relevant authorities should nevertheless
review decisions on pre-trial detention, bearing in mind that its
duration would be prolonged. There may also be a need to consider additional
compensatory measures where pre-trial detention, whilst still justified
in the circumstances, lasts considerably longer than would otherwise
be the case. In addition to detention cases, priority in the allocation of
temporarily reduced judicial resources should be given to urgent
cases involving, for example, family law, in particular cases involving
child protection and the prevention of domestic violence. For other
civil and criminal cases, article 6 of the Convention establishes
the right to trial within a reasonable time. Whilst what is ‘reasonable’
may vary in the current circumstances, when the length of proceedings
becomes excessive, people have a right to an effective remedy under
article 13.
39. As noted above, article 13 of the Convention requires States
to provide an effective remedy for alleged violations of protected
rights. Whilst Article 13 does not require that this remedy be judicial,
in practice that is often the case, especially for more serious
allegations. As noted above, many of the measures introduced in response
to the coronavirus pandemic interfere, often seriously and extensively,
with protected rights; in some cases, they may be at or beyond the
limit of what is a permissible, proportionate response. Provision
of available and sufficient remedies must be maintained in order
to avoid abusive, mistaken, unlawful or disproportionate use of
emergency measures and to hold to account the officials who are
responsible for implementing them. It is therefore essential that
the judicial system, or whatever other remedial mechanism is intended
to meet the requirements of article 13, continues to be able to
adjudicate such cases.
40. A functioning judicial system is also essential to ensure
the lawfulness of emergency measures both in general and in individual
cases. Interference with a protected right in pursuit of a public
interest is only permissible when it is based on appropriate law.
Courts, notably constitutional courts or their equivalents, must be
able to review emergency laws in order to ensure their compliance
with the domestic legal framework and the state’s international
legal obligations. Constitutional and Supreme Courts in many member
states have already received, and in some cases adjudicated on complaints
relating to Covid-19 measures. For example:
- In Austria, more than 20 applications concerning violations
of human rights by the government’s Covid-19-related measures are
pending before the constitutional court.
- In Bulgaria, around a dozen cases concerning the constitutionality
of Covid-19-related measures have been filed before the constitutional
court, including by the President and opposition parties.
- In Croatia, a dozen cases concerning the constitutionality
of acts of the Civil Protection Directorate are pending before the
constitutional court.
- In the Czech Republic, the Prague municipal court annulled
some measures adopted by the Ministry of Health, stating that they
should have been adopted by the government, and the constitutional
court, by an eight-to-seven majority, dismissed a pilot case on
procedural grounds.
- In France, the Conseil d’Etat (highest administrative
court) banned the authorities from using drones to monitor compliance
with confinement measures until a proper legal framework was established
and ordered the government to lift a “general and absolute” ban
on assembly in places of worship.
- In Germany, more than a thousand cases concerning Covid-19
measures are pending at various levels of jurisdiction, with some
restrictive measures already having been annulled as disproportionate.
- In the Republic of Moldova, an opposition party has contested
the constitutionality of the state of emergency before the constitutional
court.
- In North Macedonia, the constitutional court provisionally
suspended the special restriction on movement of minors and people
over 67.
- In Romania, the constitutional court ruled that most fines
issued by the police for breaching emergency regulations were based
on an unconstitutional decree.
- In the Slovak Republic, MPs called on the constitutional
court to review the compatibility of several measures taken under
the state of emergency with the constitution, the Convention and
the EU Charter of Fundamental Rights.
41. The CEPEJ has collected information from its network of liaison
officers in national judicial systems and has also published the
results of a survey by the Council of Bars and Law Societies of
Europe (CCBE).
Note This information suggests certain
tendencies across Council of Europe member States’ judicial systems.
Broadly speaking, the information shows a tendency to prioritise
cases in the following categories:
- deprivation of liberty (in criminal proceedings) (mentioned
in the information received on Austria, Denmark, Greece, Lithuania,
Poland, Portugal, Serbia, Slovak Republic, Slovenia, Spain and Turkey);
- deprivation of liberty (on mental health grounds) (mentioned
in the information on Poland, Serbia and Slovenia);
- domestic violence/violence against women (Italy, Poland,
Serbia, Spain and Turkey);
- child protection (Italy, Lithuania, Poland, Portugal,
Slovak Republic and Slovenia);
- family cases (mainly relating to alimony/support) (Italy,
Serbia, Slovenia and Turkey);
- “fundamental rights” cases: (Italy and Portugal);
- cases approaching the statute of limitations (Bosnia and
Herzegovina, Greece and Serbia);
- cases involving “irreversible harm” or “serious risks”
(Poland, Slovak Republic and Spain);
- several responses referred to generic “urgent” cases (Austria
(specifically criminal cases), Bosnia and Herzegovina, Croatia,
Denmark (civil cases, where “critical”), Greece (“emergency cases”)
and Norway).
42. The information gathered by CEPEJ and the CCBE also showed
considerable variety in the way that judicial systems used digital
technology to conduct ‘remote hearings’ during the period of restrictions.
In some countries remote hearings are possible in civil cases: Armenia,
Finland (subject to judicial discretion, on defined conditions),
Germany and Norway. In some countries they are possible in criminal
cases: Azerbaijan (pre-trial detention and early release cases),
Note Czech Republic (a pilot project
in prisons), Estonia (with the consent of the accused), Ireland
(sentencing of persons in custody), Republic of Moldova (early release
and complaints about detention conditions), Romania (urgent proceedings)
and the Slovak Republic (interrogation of sentenced prisoners).
In some countries remote hearings were possible in both civil and
criminal cases: Croatia, France and the United Kingdom. The information
on some countries indicated that remote hearings were possible but
did not specify the type of case: Denmark, Greece, Latvia, Lithuania,
the Netherlands, Poland, Portugal, Sweden and Ukraine. Some replies
indicated that remote hearings were permitted in ‘urgent’ cases:
Poland, Republic of Moldova and Romania. Only in Belgium and Cyprus
was it stated that remote hearings were not permitted.
43. CEPEJ has also issued a “Declaration on Lessons Learnt and
Challenges Faced by the Judiciary During and After the Covid-19
Pandemic”, setting out seven principles:
Note
- Human rights and the rule of law: the
right to liberty and security and the right to a fair trial “have
to be protected at all times and become especially important during
a crisis. The continuous functioning of the judiciary and of the
services provided by justice professionals needs to be ensured …
Trust in justice must continue even at a time of crisis.”
- Access to justice: “Locking
down courts might be necessary … but it should be done in a careful
and proportionate manner … The public service of justice must be
maintained as much as possible, including providing access to justice
by alternative means … Special attention must be devoted to vulnerable groups
… Judicial systems should give priority to cases which concern these
groups”.
- Safety of persons: “Safety
measures need to be put in place to respect the physical distancing
within court premises … Teleworking should be open to justice professionals.”
- Monitoring case flow, quality
and performance: “This includes triage of cases and possible
prioritisation and redistribution of cases based on objective and
fair criteria and ensuring quality justice.”
- Cyberjustice: “The
recourse to information technologies offers the opportunity for
the public service of justice to continue functioning during the
health crisis. However, its rapid emergence and excessive use may
equally bring negative consequences. IT-solutions … must always
respect fundamental rights and principles of a fair trial [and]
their use and accessibility for all the users should have a clear
legal basis.”
- Training: “Judicial
training should adapt to the emerging needs, including the use of
IT… The closure of courts … can allow justice professionals to devote
more time to training from home. [There should be] specific training
on teleworking [and] on the new types of cases arising from the
COVID-19 pandemic.”
- Forward-looking justice: “The
COVID-19 pandemic has also been an occasion to introduce emergency innovative
practices. A transformation-strategy for judiciaries should be developed
to capitalise on the benefits of newly implemented solutions … Transforming
the judiciary for the future should be approached in a positive
manner and always with respect for fundamental rights guaranteed
in the ECHR.”
44. The Council of Europe’s Consultative Council of European Judges
(CCJE) has drawn up a list of issues relating to “the functioning
of courts in the aftermath of the Covid-19 pandemic”.
Note Along with practical problems, this
document also includes valuable reflections described as “overarching
considerations”:
- States may
overlook the importance of the role played by courts to provide
effective remedies against emergency measures and adjudicate other
cases relating to the pandemic [here one can note that many of these
cases will involve new and/or previously untested laws, including
laws establishing a state of emergency and decrees adopted under
those laws].
- Judicial systems that are already under-financed may struggle
to address challenges related to the crisis and may face even greater
difficulties if financial constraints lead to further budgetary
cuts.
- Some measures introduced in response to the health crisis
may become permanent (for example remote hearings and the use of
electronic means for other procedures, such as submitting applications
and documents), and the crisis may present opportunities for other
positive changes.
- States should develop an action plan for the courts in
the aftermath of the pandemic, so that they can make their proper
contribution to the return to normal life, including through the
resolution of pandemic-related litigation [and, one could add, the
prompt resolution of the inevitable serious backlog of cases that
will have arisen whilst the courts were mainly closed].
- International courts will also be affected, including
the European Court of Human Rights, especially if cases are not
effectively resolved at national level. To this end, consistency
of judicial outcomes both within and between national judicial systems
will be important.
- A positive role of courts in resolving problems related
to the pandemic could help restore public trust in judicial systems.
- The situation of courts is likely to be affected by the
impact of the pandemic on other sectors, such as legal firms whose
activities were more or less interrupted, prisons seeking to reduce
over-crowding etc.;
- Attention should be paid to the risk of “rule of law backsliding”
in some member States.
45. Both CEPEJ and the CCJE agree that the pandemic should be
taken as a learning experience. The acceleration of previous tendencies
(such as increasing use of digital solutions) and the introduction
of innovative approaches should be carefully examined with a view
to enhancing the efficiency and effectiveness of judicial systems
in future.
2.6 The
situation of detainees
46. The situation of detainees
makes them particularly vulnerable to infection and the negative consequences
of prolonged physical isolation. A special Council of Europe Annual
Penal Statistics report (SPACE) found that in 34 of 45 prison administrations
studied, inmates and/or prison staff had contracted Covid-19.
Note The CPT recently issued a “Statement of
Principles relating to the treatment of persons deprived of their
liberty in the context of the coronavirus disease (COVID-19) pandemic”.
This included the following principles:
- Take all possible action to protect the health and safety
of detainees;
- Respect and implement World Health Organization (WHO),
national health and clinical guidelines;
- Ensure adequate provision of staff with the necessary
support, training and protective equipment;
- Ensure that additional Covid-19-related restrictions on
detainees conform to the procedural safeguards of article 5 of the
Convention;
- Make concerted efforts to use alternatives to deprivation
of liberty and review, in the light of the new circumstances, decisions
to deprive persons of their liberty – especially in relation to
persons detained in overcrowded facilities;
- Pay special attention to the health care needs of detainees
falling within vulnerable or high-risk groups, including older people
and those with pre-existing medical conditions;
- Even where non-essential activities are suspended, ensure
that fundamental rights are protected, including personal hygiene
and daily access to the open air, and compensate for restrictions
on visiting rights by allowing greater access to alternative means
of communication;
- Ensure daily meaningful human contact for any detainee
placed in isolation or quarantine;
- Maintain fundamental safeguards against ill-treatment,
including access to a lawyer and a doctor and notification of custody,
in all circumstances and at all times, using precautionary measures
(for example protective masks) as appropriate;
- Ensure continued access to all places of detention, including
those where detainees are quarantined, for independent monitoring
bodies.
47. As noted above, quarantine and confinement measures may have
a particular impact on detainees’ contact with their lawyers and
families. Such contacts are an important reporting channel that
safeguards against ill-treatment of detainees; if such communications
are interrupted, the risk of ill-treatment may increase, raising
issues under article 3 of the Convention (prohibition of torture)
and, potentially, article 2 (right to life). For detainees awaiting
trial or preparing appeals, lack of contact with their lawyers raises
fair trial-related issues under article 6. Detainees also retain
the right to private and family life, even if its exercise is justifably
limited as part of their sentence. Denial of meaningful contact
with friends and family members, for example, may nevertheless raise
issues under article 8. Persons deprived of their liberty in the
context of armed conflicts will be especially vulnerable and guarantees
of their health and safety are thus particularly important.
48. Several States have proceeded with or are considering the
early release of certain categories of prisoner, such as those convicted
of non-violent offences, those with only a certain short time remaining
on their sentences and those who would be at particular risk from
the disease. Indeed, the SPACE-I report states that over 128 000
detainees were released, almost 103 000 of these in Turkey alone.
Early release is a difficult but necessary choice, balancing between
the public interest in criminal justice and the need to protect
prisoners against risks to their health and lives that would be
incompatible with any lawful detention regime. Early release must,
however, be based on objective, non-discriminatory criteria and
must not exclude categories such as opposition politicians and activists,
critical journalists and academics, or lawyers and other human rights defenders,
especially those whose imprisonment gives rise to suspicion of political
motivation.
Note
2.7 Corruption
risks
49. As the President of the Council
of Europe’s Group of States against Corruption (GRECO) has observed, “As
countries face undeniable emergencies, concentration of powers,
derogations from fundamental rights and freedoms, and as large amounts
of money are infused into the economy to alleviate the crisis (now
and in the near future), corruption risks should not be underestimated.
It is therefore most important that anti-corruption is streamlined
in all COVID-19, and more generally, pandemic-related processes.”
Note To this end, the President of
GRECO issued guidelines covering six areas:
- Procurement systems: “While
emergency legislation is time efficient to procure critical medical
supplies, it may soften the necessary “checks and balances” on public
spending. Procurement systems can also become vulnerable targets
for lobbyists … Greater transparency is key to preventing corruption. Procurement
officials should be prohibited from being employed by any businesses
with contracts with the [offices] exercising supervision or control.”
- Bribery in medical-related
services: “Corruption risks can be a major concern for
hospitals and other medical or medicalised structures struggling
to cope with COVID-19, since they face shortages in staff and equipment
... Petty bribery is also an issue that has emerged again in the
pandemic context (for access or priority access to medical services,
tests and equipment, body collection and burial procedures, circumventing
quarantine rules, etc.) even in countries where this was very uncommon.” “The
Council of Europe Criminal Law Convention on Corruption requires
states to criminalise active and passive bribery in the private
sector … and covers also healthcare providers.”
- Corruption in new research
and development: “Another process vulnerable to corruption
is the investment in research and development of drugs and vaccination
against Covid-19 … Huge amounts of money are being invested … Therefore,
it would be necessary to increase the capacity, authority and public
accountability of State institutions entrusted with regulatory and
control functions in relation to the management of public resources.”
In this context, GRECO also mentions “risks of conflicts of interest, when
health or economic interests are at major stake, e.g. preferential
treatment in delivery of services for friends or family members,
cronyism, nepotism and favouritism in the recruitment, and more generally,
the management of the health care workforce”, along with the need
for transparency of lobbying of senior public decision-makers (“persons
entrusted with top executive functions”) and insider trading.
- Risks of Covid-19-related fraud:
namely “financial scams related to COVID-19, including in relation
to falsified medical products.” In this connection, GRECO underlines
the importance of the Council of Europe Convention on the counterfeiting
of medical products and similar crimes involving threats to public
health (CETS No.211, “the Medicrime Convention”), which requires
states to criminalise the manufacturing of counterfeit medical products;
supplying or offering to supply, or trafficking such products; falsification
of documents; and the manufacture, stocking, importing, exporting,
supplying or offering to supply, or placing on the market of medicinal
products without authorisation and medical devices not in compliance
with regulatory requirements. On 8 April 2020, the Committee of
the Parties of the Medicrime Convention issued its own, specific
advice on application of the convention in the context of Covid-19.Note
- Oversight and the protection
of whistleblowers in the health sector: “As emergency
legislation shifts power towards the executive, the oversight role
of the other branches of power (legislative, judiciary), institutions
(ombudsman, anticorruption agencies and other specialised bodies
dealing with corruption) and civil society (e.g. community-based
responses, information sharing and tracking measures systems, establishment
of hotlines for public reporting, etc.) is key. Media have a particular
role to play and a specific responsibility … Of particular importance
is the need to ensure the protection of persons (whistleblowers)
reporting suspicions of corruption, irrespective of the reporting
lines they choose to pursue … Whistleblowing can be key in the fight
against corruption and tackling gross mismanagement in the public
and private sectors, including the health sector.”
- The private sector: “The
private sector faces increased corruption risks during this crisis.
These risks include facilitation payments/bribes to push ahead processes
that may have stalled due to shortages of staff or closure of public
offices, falsification of documents to meet the conditions of State
aid schemes for pandemic relief measures, bypassing product certification
requirements, non-certification of alternative supply chains, donations,
lack of resources to supervise misconduct by individual employees, etc.”
50. GRECO recognises that independent media reporting forms an
important part of the safeguards against corruption. Indeed, the
media have already reported on situations of concern. For example:
- In Romania, a businesswoman
bought a majority share in an inactive alternative medicine company,
on the day that the World Health Organization declared a pandemic.
Within eight days, this company was awarded a no-bid contract to
supply personal protective equipment (PPE), which it purchased in
Turkey and sold to the government at a 40% profit. The businesswoman
has been described as a former protégé of the current prime minister
when he was deputy mayor of Bucharest and later transport minister
(which he denies), and has a conviction for organised crime. Protective
masks supplied under the contract were reportedly of dangerously
poor quality.Note
- In Slovenia, a series of deals worth a total of €80 million
were struck following ‘one-day’ calls for bids. The largest contracts
all went to companies whose total revenue in previous years had
been far below the value of these single deals, in one case representing
an 11 000% increase in annual income. A company controlled by one
of Slovenia’s richest men, with no previous business interests in
the medical sector, received a €25.4 million government contract
to supply protective equipment.Note The national public television
station reported claims by a whistleblower at the national procurement
agency that the economy minister had intervened personally in favour
of another company, despite its products having been poorly evaluated
by a committee of medical experts; the minister denied any wrongdoing.Note Normal procedural
safeguards in public procurement had been suspended following the
Covid-19 outbreak.
- Ukraine’s response to the pandemic was reportedly disrupted
after the newly-appointed health minister delayed giving approval
for procurement decisions, insisting first on the appointment of
a deputy head of the national medical procurement body. The minister
reportedly described the nominee as his “trusted person”, an expression
that can imply an insider who influences procurement decisions in
the interests of a powerful patron – even though the procurement
body had been specially designed to resist corruption and the nominee
was ineligible for the post due to a previous conviction for dishonesty.
The minister was subsequently dismissed, although the decision did
not refer to these allegations.Note
- Chinese-made antibody tests for Covid-19 are being rebranded
and resold by western companies. Independent checks have shown this
brand of test in particular to be unreliable, producing a high rate
of false negatives, and the World Health Organization (WHO) has
advised against using this type of test for clinical diagnosis.
The manufacturer, however, claims accuracy rates of well over 90%.
A Dutch company resold millions of the test around the world, claiming
that it had been “developed and produced under very strict EU and
Dutch regulations. These regulations leave no room for error and
thus makes for a very reliable and safe product.” An Italian company
also resold what appear to be the same tests, claiming to have manufactured
them itself. Whilst rebranding and reselling are legal, the promotion
of unreliable medical products as reliable is not and can have devastating
consequences.Note
51. It may be that the examples mentioned above are explicable
and involve no wrongdoing. Credible reports of misconduct must,
however, be investigated and appropriate action taken. This is especially
important given the sums of public money involved and the budgetary
difficulties many public authorities will soon face, following pandemic-related
economic contraction.
52. Several countries have already acted on reports of the sort
of misconduct highlighted by GRECO. In Russia, for example, the
authorities seized around 1 800 ventilators manufactured in 1999-2000
that lacked the required certification and registration documents,
and arrested members of the group that had been offering them for
sale to a hospital in the Moscow region. In Bosnia and Herzegovina,
police are investigating how a raspberry farm with no previous experience
in medical procurement, owned by a television presenter, was given
a government contract by the head of the Civil Protection agency
to import 100 ventilators form China, paying $55,000 each despite
international market prices being between $7 000 and $30 000.
Note The
Italian procurement agency, Consip, revoked €28 million of contracts
previously awarded to a private company for the supply of protective
masks, following media reporting that the company was under criminal
investigation for earlier misconduct;
Note the media’s investigations
had been possible because Consip had published information on the
contracts, which underlines the importance of transparency.
53. There are further corruption risks in connection with the
economic support and stimulus packages, which will be worth trillions
of euros in total, that governments have already begun administering
in response to the collapse in economic activity. Transparency,
accountability and effective independent oversight, in accordance with
Council of Europe and other international standards, will be absolutely
essential. As the United Nations Office on Drugs and Crime (UNODC)
has observed, “While recognizing the need for urgent action to prevent economic
and social collapse, the lack of sufficient accountability and oversight
mechanisms in the allocation and distribution of economic stimulus
packages increases the risk that corruption and fraud will weaken
the impact of the measures being taken and result in a shortfall
of desperately needed aid reaching the intended beneficiaries, impacting
the least powerful among the population.”
Note
54. To this end, the UNODC recommends that public authorities
take account of the following considerations (for further details,
see the document referenced in footnote 35):
- Clear, objective and transparent criteria for the qualification
of intended beneficiaries and recipients;
- Account for the risks and vulnerabilities of disbursement
and targeting methods;
- Open clear communication and outreach channels to raise
awareness and understanding of beneficiaries;
- Use of technology for efficient, transparent and accountable
disbursement of resources;
- Comprehensive auditing, oversight, accountability and
reporting mechanisms to monitor the disbursement process and verify
appropriate receipt;
- And for the future, preparation is the key to prevention;
establish the legislative framework before the crisis.
3 Conclusions
and recommendations
55. The gravity of the Covid-19
pandemic and the urgency with which Council of Europe member States
are being forced to take drastic measures in response is putting
modern European standards on human rights and the rule of law under
unprecedented stress. All member States have taken exceptional measures
in response to this exceptional threat. Whether or not these measures
have been successful from a public health perspective, they should
be carefully monitored for compliance with European standards and
studied in order to learn lessons for the future. This report is
an early opportunity to take note of some of the problems that have arisen,
recall the applicable standards and make proposals for greater resilience
in future.
56. In a few countries, governments are cynically exploiting public
fears in order to undermine democracy, human rights and the rule
of law, with the aim of destroying checks and balances and perpetuating
their grip on power. Alongside this, there is now open debate on
whether authoritarian regimes are better suited than liberal democracies
to respond to the Covid-19 pandemic – even if the facts have shown
clearly that they are not. Europe has experience, still within some
people’s living memory, of authoritarian regimes that came to power
on the back of national crises, and of the dangers such regimes
pose to international peace and security. Indeed, the Council of
Europe was established after the Second World War in order to prevent
any future descent into authoritarianism.
57. But the Covid-19 pandemic need not mean regression and on
the whole, European democracies have proved themselves capable of
effective response without betraying their fundamental values. Even
radical measures may be perfectly democratic, so long as they respect
the principles of human rights and the rule of law described in
this report. As an extreme stress-test of national systems, this
experience is nevertheless an opportunity to learn positive lessons
for the future, in order to ensure that when the next pandemic comes, authorities
can respond quickly and effectively in full respect for human rights
and the rule of law. To this end, the rapporteur puts forward the
proposals for action by member States, the Secretary General of
the Council of Europe and the Committee of Ministers set out in
the attached draft resolution and recommendation.
