Rik Daems, the President of the Parliamentary Assembly of the Council of Europe (PACE), has urged European governments to abide strictly by the European Convention on Human Rights when adopting emergency measures to deal with the COVID-19 crisis.
“The spread of the COVID-19 virus has caused a dramatic public health, economic and social crisis around the world. Europe is among the hardest hit.
Every State has a responsibility to take protective measures in time of public emergency. Such situations may even require restrictive measures that exceed what is normally permitted under the European Convention on Human Rights. But without appropriate guarantees, such measures create serious risks for democracy, human rights and the rule of law.
The Convention is adaptable to any and all circumstances, continuing to regulate the State’s actions even in the event of a national crisis. Article 15 nonetheless allows derogations from certain rights. But, fundamental safeguards of the rule of law - in particular legality, effective parliamentary oversight, independent judicial control and effective domestic remedies - must be maintained even during a state of emergency.
This is a matter of democratic principle, and also a necessary condition for people’s trust in their leaders, without which necessary measures cannot be implemented successfully.
I should like to stress that the overarching principle of proportionality limits the action that may be taken, via the stringent test of what is “strictly required by the exigencies of the situation”. Normal measures or restrictions permitted by the Convention for the maintenance of public safety, health and order must be plainly inadequate before derogations and emergency measures are permissible. A state of emergency that requires derogation from the Convention must be limited in duration, circumstance and scope. Emergency powers may be exercised only for the purposes for which they were granted, and the duration of emergency measures and their effects may not exceed that of the state of emergency.
As President of the Council of Europe’s Parliamentary Assembly, I therefore call on all member States, and in particular their parliaments, to:
- continue in their fight against the COVID-19 virus, applying at the same time the safeguards established by the European Convention on Human Rights;
- constantly review the necessity of maintaining any state of emergency and any measures taken under it, and apply, at the expiration of every period, a presumption against extending the state of emergency; and
- ensure that the normal checks and balances of a pluralistic democracy governed by the rule of law continue to operate to the maximum extent possible, respecting democratic process and the authority of parliament and local authorities, the independence of the judiciary and national human rights structures, and the freedoms of association and expression, especially of civil society and the media.
I am convinced that in so doing, the European nations united in the Council of Europe will overcome this crisis, without abandoning our shared values.”