The impact of the Covid-19 pandemic on human rights and the rule of law
- Author(s):
- Parliamentary Assembly
- Origin
- Text
adopted by the Standing Committee, acting on behalf of
the Assembly, on 13 October 2020 (see Doc. 15139, report of the Committee on Legal Affairs and Human
Rights, rapporteur: Mr Vladimir Vardanyan, and Doc. 15158, opinion of the Committee on Culture, Science, Education
and Media, rapporteur: Mr Bogusław Sonik).See also Recommendation 2180 (2020).
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 obligations under
the European Convention on Human Rights (ETS No. 5, the Convention)
require States to take measures to protect the life and health of
their populations. This imperative does not, however, give States
a free hand to trample on rights, suppress freedoms, dismantle democracy
or violate the rule of law. Even during a state of emergency, the
Convention continues to set limits, thereby ensuring respect for common
European fundamental standards.
2. States have taken a wide range of often broadly similar measures
to limit the spread of Covid-19. These generally include severe
restrictions on freedom of movement and assembly and closures of
educational establishments and premises used for commercial, recreational,
sports, cultural and religious purposes. Such measures interfere
with the enjoyment of Convention rights, sometimes with serious
personal consequences for the individuals concerned, but – despite
their scope and impact – they do not necessarily violate those rights.
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. Interference with these
rights is permissible under the Convention so long as it is lawful,
necessary, proportionate to the public interest being pursued and
non-discriminatory. The Parliamentary Assembly welcomes the timely
and constructive interventions by the Commissioner for Human Rights
of the Council of Europe on various situations relating to this
issue.
3. Measures that restrict freedom of expression, access to information
and media freedom are not readily justifiable. Information is essential
to enable the public to understand the danger and take measures
at a personal level to protect themselves. Restricting the public
flow of information is detrimental to an effective public health
response that attracts the informed and lasting support of the public
based on trust in public institutions. Therefore, the Covid-19 pandemic
– and other potential similar crises that may occur in the future –
should not be taken as a pretext for the adoption of emergency legislation
introducing restrictions on freedom of information that are discriminatory
and go beyond what is lawful, necessary and proportionate. Journalists, whistle-blowers
and human rights defenders are key assets in preventing further
harm by disclosing bad practices in good time for corrective measures
to be taken. Only deliberate dissemination of misinformation that may
cause significant public harm should be controlled, on the basis
of laws that are clearly and narrowly defined and non-discriminatory.
4. Whilst states of emergency or similar exceptional regimes
may allow for a more rapid, flexible and effective response, they
limit the application of normal checks and balances. They are thus
potentially hazardous from the perspective of human rights, democracy
and the rule of law. The Assembly therefore fully endorses the principles
applicable to states of emergency that have been elaborated by the
European Commission for Democracy through Law (Venice Commission).
5. In this connection, the Assembly welcomes the fact that many
member States have already brought their states of emergency to
an end or have replaced them with less restrictive legal regimes
and measures, once the public health situation allowed this. It
also notes that several States have encountered difficulties in identifying
a legal basis for the exceptional measures that they have had to
introduce which meets the requirements of legality and constitutionality.
There should not and need not be any tension between effectiveness
and legality. All member 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.
6. The Assembly notes that an unprecedented number of States
have exercised their right to derogate from their obligations under
the Convention with respect to measures they have taken in response
to the pandemic. It recalls its
Resolution 2209 (2018) and
Recommendation 2125 (2018),
entitled “State of emergency: proportionality issues concerning
derogations under Article 15 of the European Convention on Human
Rights”, in which it recognised that protracted states of emergency
and derogations have the effect of normalising lower standards and
habituating populations to greater interference with their rights.
The aim of the proposals made in these texts was to support national
authorities in understanding the legal complexities in this area
and to encourage a more harmonised approach in future. The Assembly
considers that recent experience underlines the need for this.
7. It is increasingly assumed that smartphone contact tracing
applications (apps) will form part of many countries’ responses
to the pandemic. The Assembly notes that a lack of public trust
in such apps due to privacy-related concerns, resulting in low levels
of installation or use, would seriously undermine their effectiveness.
The Assembly recalls the Council of Europe’s modernised Convention
for the Protection of Individuals with regard to the Automatic Processing
of Personal Data (CETS No. 223, Convention 108+), whose standards
member States should seek to respect when enacting the primary legislation
necessary to introduce and regulate contact tracing apps. It fully
endorses the advice given by the Chairperson of the Consultative
Committee of Convention 108 and the Council of Europe Data Protection
Commissioner on how these standards should be applied in the context
of the Covid-19 pandemic. As regards applications of artificial intelligence
systems to data processing in this context, it welcomes Committee
of Ministers Recommendation CM/Rec(2020)1 on the human rights impacts
of algorithmic systems.
8. The Assembly notes that the functioning of national judicial
systems has also been severely disrupted by the pandemic. It recalls
the rights to liberty and security, a fair trial and an effective
remedy, as protected by the Convention, and the importance of ensuring
respect for constitutional principles. It underlines the need to prioritise
cases according to their urgency, general importance and impact
on individual rights and vulnerable groups. It therefore fully endorses
the “Declaration on Lessons Learnt and Challenges Faced by the Judiciary During
and After the Covid-19 Pandemic” adopted by the European Commission
for the Efficiency of Justice (CEPEJ).
9. The Assembly notes that the situation of persons deprived
of their liberty makes them particularly vulnerable to infection
and the negative consequences of prolonged physical isolation. It
recalls the prohibition on inhuman or degrading treatment or punishment
under the Convention, which obliges states to take action to protect
the health and safety of persons deprived of their liberty. It therefore
fully endorses the “Statement of principles relating to the treatment
of persons deprived of their liberty in the context of the coronavirus disease
(COVID-19) pandemic” adopted by the European Committee for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment (CPT).
10. The Assembly notes that the massive increases in public expenditure
on procurement of medical and other pandemic-related goods, and
on economic support and stimulus measures, create a particular risk
of corruption. It therefore fully endorses the guidance on “Corruption
Risks and Useful Legal References in the Context of COVID-19”, issued
by the President of the Group of States against Corruption (GRECO).
11. All member States of the Council of Europe have been forced
to take exceptional measures in response to the exceptional threat
posed by the Covid-19 pandemic. On the whole, European democracies
have proved themselves capable of responding effectively without
betraying their fundamental values. Whether or not the measures
taken have been successful from a public health perspective, they
should be carefully monitored for compliance with Council of Europe
standards and studied in order to learn lessons for the future.
As an extreme stress-test, Covid-19 is an opportunity to reinforce
national systems, so that if there is another pandemic, authorities
can respond quickly and effectively, confident that they are respecting
human rights and the rule of law.
12. The Assembly therefore calls upon member States of the Council
of Europe to:
12.1 ensure that all
measures restricting human rights that may be taken in response
to a public health emergency are lawful, necessary, proportionate
and non-discriminatory, and that they fully respect the principles
applicable to states of emergency that have been elaborated by the
Venice Commission;
12.2 keep all restrictive measures under review in light of
the evolution of the pandemic, to ensure that only those restrictions
that are still necessary and proportionate remain in force;
12.3 review the measures taken in response to the pandemic,
in order to ensure that a clear and sufficient legal framework exists
for the response to any future pandemic and, where necessary, submit any
proposed reforms to the Venice Commission for opinion;
12.4 take a cautious, progressive approach to emergency measures,
adopting those that require derogation only as a last resort, when
strictly required because other, less restrictive options prove inadequate;
12.5 if a derogation is strictly required, ensure that the
notification to the Secretary General includes full details of the
declaration of the state of emergency, the derogating measures,
the duration of the derogation (or its extension) and the Convention
rights affected;
12.6 fulfil their positive obligation to protect media freedom
and the safety of journalists by using all necessary means to end
physical and verbal attacks on media professionals;
12.7 stop the practice of blocking websites and initiating
criminal prosecution to intimidate and silence critics, on the pretext
of fighting disinformation;
12.8 ensure that all measures involving automated processing
of personal data, including contact- tracing smartphone applications,
fully respect the standards of Convention 108 (and, where relevant, Convention
108+), along with Committee of Ministers Recommendation CM/Rec(2020)1
as regards applications of artificial intelligence systems, taking
full account of expert guidance given by bodies such as the Consultative
Committee of Convention 108;
12.9 where contact tracing may lead to compulsory self-isolation
or quarantine, ensure that rapid testing for infection is available
to the people concerned so that those not infected may be released
from such restrictions as soon as possible, in accordance with the
principle of proportionality;
12.10 sign and ratify Convention 108+, if they have not already
done so;
12.11 ensure that any disruption to the judicial system does
not lead to violations of the rights to liberty and security, a
fair trial and an effective remedy, or of constitutional principles,
including by:
12.11.1 prioritising cases according to their
urgency, general importance and impact on individual rights and
vulnerable groups;
12.11.2 promoting the introduction of technological solutions
such as online services, remote hearings and videoconferencing;
12.11.3 taking full account of the expert guidance given by bodies
such as the CEPEJ;
12.12 ensure that the health and safety of persons deprived
of their liberty are protected and that they are not subjected to
inhuman or degrading treatment or punishment, taking full account
of the expert guidance given by bodies such as the CPT;
12.13 ensure that the massive increases in public expenditure
related to the pandemic and its aftermath are not accompanied by
an increase in corruption, by fully applying the standards of the
Criminal and Civil Law Conventions on Corruption (ETS Nos. 173 and
174) and taking full account of the expert guidance given by bodies
such as GRECO;
12.14 conduct a prompt, thorough and independent review of the
national response to the Covid-19 pandemic, including its effectiveness
and respect for human rights and the rule of law, with a view to ensuring
that if there is another pandemic, the authorities can respond quickly
and effectively, in accordance with Council of Europe standards.
13. The Assembly reiterates its invitation in
Resolution 2209 (2018) to
the Secretary General of the Council of Europe to consider how her
office can play a more proactive role in relation to derogations,
including by:
13.1 providing advice
to any State party, when considering a derogation, on whether derogation
is necessary and, if so, how to limit its scope;
13.2 opening an inquiry under Article 52 of the Convention
in relation to any State that derogates from the Convention;
13.3 on the basis of information provided in response to such
an inquiry, engaging in dialogue with the State concerned with a
view to ensuring the compatibility of the state of emergency with
Convention standards, whilst respecting the jurisdiction of the
European Court of Human Rights.
