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Pandemics and states of emergency: there should and need not be any tension between effectiveness and legality

Whilst a ‘state of emergency’ may allow for a more effective response to a major health crisis like that of COVID-19, it might also be potentially hazardous from the perspective of human rights, democracy and the rule of law. But according to the Committee on Legal Affairs, “there should and need not be any tension between effectiveness and legality”.

Adopting a draft resolution based on a report prepared by Vladimir Vardanyan (Armenia, EPP/CD), the committee called on Council of Europe member States to 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”. All restrictive measures should be kept 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”.

In a wide-ranging resolution, the committee described COVID-19-related concerns relating to data protection, judicial systems, detention conditions and anti-corruption measures, endorsing the specific guidance given by relevant Council of Europe bodies.

The parliamentarians called on European States to conduct a prompt, thorough, 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”. The Council of Europe as a whole should contribute to this, through exchange of experience and good practice between member States.

The accompanying recommendation to the Committee of Ministers also calls for inter-governmental work to harmonise the way in which States derogate from the European Convention on Human Rights, following an unprecedented ten derogations related to COVID-19.