The impact of the Covid-19 pandemic on human rights and the rule of law
Reply to Recommendation
| Doc. 15398
| 10 November 2021
- Author(s):
- Committee of Ministers
- Origin
- Adopted at the 1416th meeting
of the Ministers’ Deputies (3 November 2021). 2022 - First part-session
- Reply to Recommendation
- : Recommendation 2180
(2020)
1. The Committee of
Ministers has carefully examined Parliamentary Assembly
Recommendation 2180 (2020) on “The impact of the Covid-19 pandemic on human rights
and the rule of law” and communicated it to the Steering Committee
for Human Rights (CDDH), the Steering Committee on Anti-Discrimination, Diversity
and Inclusion (CDADI), the Committee of Legal Advisers on Public
International Law (CAHDI), and the European Committee of Social
Rights (ECSR) for information and possible comments.
2. The Committee recognises that an unprecedented number of member
States derogated from their obligations to secure certain rights
and freedoms under the European Convention on Human Rights (ETS No. 5)
in respect of measures taken in response to the Covid-19 pandemic.
Nine of those States have since withdrawn their notifications, considering
them no longer necessary. While acknowledging the concern of the Parliamentary
Assembly that derogations may pose a risk to the maintenance of
common human rights standards across Europe, the Committee of Ministers
recalls that the right to derogate under Article 15 of the Convention
is an important feature of the Convention system, permitting the
continued application of the Convention and its supervisory machinery
even in the most critical times. Decisions to derogate can be, and have
been, challenged before national courts, and any derogation from
the Convention is subject to formal requirements and to supervision
by the European Court of Human Rights.
3. As concerns paragraphs 3 and 4 of the recommendation, the
Committee of Ministers recalls that significant efforts have already
been undertaken to provide guidance to member States, notably through
the “Guide on Article 15 of the Convention – Derogation in time
of emergency” of the European Court of Human Rights and its factsheet
“Derogation in time of emergency”, both of which also refer to the
relevant case law of the Court. Guidance was also provided by the
Secretary General in the early days of the crisis in her Information
Document “Respecting democracy, rule of law and human rights in
the framework of the Covid-19 sanitary crisis: A toolkit for member
States”, which began with a section on “Derogation in time of emergency (Article
15 European Convention on Human Rights)”. The Venice Commission
has also contributed to clarifying this issue through its Rule of
Law Checklist, the compilation of its works on the state of emergency,
the launching of its Observatory of the state of implementation
of declarations of states of emergency and of emergency legislation
in Venice Commission member States, and its publication “Respect
for democracy, human rights and the rule of law during states of
emergency – Reflections”.
4. Regarding paragraph 5 of the recommendation, the Committee
recalls that important work on reviewing national experience in
responding to the pandemic and identifying good practice has been
carried out by different sectors of the Organisation, as highlighted
in the Secretary General’s annual reports of 2020 and 2021. At the
intergovernmental level, as a first step, exchanges of national
experiences in responding to the Covid-19 pandemic have already
been carried out. In particular, in the framework of the Steering
Committee on Anti-Discrimination, Diversity and Inclusion (CDADI),
measures taken by member States to mitigate the impact of the pandemic
on vulnerable groups have been compiled and resulted in a study
on which the Guidelines of the Committee of Ministers on upholding
equality and protecting against discrimination and hate during the
Covid-19 pandemic and similar crises in the future, adopted on 5
May 2021, are based. The Committee also highlights the statements
of the Committee on Bioethics (DH-BIO) on Covid-19 and vaccines: ensuring
equitable access to vaccination during the current and future pandemics,
published on 22 January 2021, and on human rights considerations
relevant to “vaccine pass” and similar documents, published on 4 May
2021; the advice of the Committee of the Parties of the MEDICRIME
Convention on the application of the MEDICRIME Convention in the
context of Covid-19, published on 8 April 2020; and the statement
of interpretation on the right to protection of health in times
of pandemic, adopted by the ECSR on 21 April 2020, as well as the
on-going work of the ECSR on guidance related to a wide range of
social rights as they are being impacted by the pandemic. In the
latter context, the Committee points out that no member State has
availed itself of the possibility to derogate from its obligations
under the European Social Charter, as provided for by Article F
of the Revised Social Charter (Article 30 of the 1961 Social Charter).
The Committee particularly underscores the need for fair and non-discriminatory
access to vaccines, as well as for providing accurate and reliable
information about available vaccines.
5. At the same time, the Committee of Ministers informs the Parliamentary
Assembly that it will give due consideration to its recommendation
to give terms of reference to the appropriate intergovernmental
committee or committees to review national experience in responding
to the Covid-19 pandemic, with a view to pooling knowledge and experience
and identifying good practice on how to ensure an effective response
to public health emergencies that respects human rights and the
rule of law. Such pandemic-related work may be proposed in the context
of the Programme and Budget 2022-2025, possibly including a report
on member States’ practice in relation to derogations from the Convention
in case of major hazards and a toolkit for human rights impact assessment
of measures taken by the State in such cases, and potentially leading
to drafting a non-binding instrument to assist member States to
fully respect human rights, democracy and the rule of law in case
of major hazards like the present Covid-19 crisis. In this regard,
the Committee recalls its reply, adopted on 17 February 2021, to
the Assembly’s
Recommendation
2174 (2020) on “Lessons for the future from an effective and rights-based
response to the Covid-19 pandemic”.