CONVENTION RIGHTS AND FREEDOMS UNDER QUARANTINE: CHALLENGES FOR THE JURISPRUDENCE OF THE EUROPEAN COURT OF HUMAN RIGHTS IN THE ERA OF PANDEMIC

Abstract

The unprecedented COVID-19 pandemic resulted into limitations of the movement and rights
under Article 5 and Article 2 of Protocol No. 4 and interferences with other rights guaranteed
by the Convention, which will inevitably lead to new applications brought before the ECtHR.
This paper will focus on the implications of the crisis and its potential transformative impact
on the Court’s jurisprudence related to emergency situations by exploring whether the wellestablished principles and doctrines of the Court’s adjudication need to be revisited to tackle
the challenges posed by the pandemic. This will involve examination of the extent of judicial
scrutiny to be applied - whether the Court should demonstrate judicial activism regarding the
measures taken at national level, or it should be deferential to the national policy choices.
In this respect, special attention will be paid to the degree of margin of appreciation which
has to be granted to the States, as a reflection of the principle of subsidiarity, formally
introduced with Protocol 15 to the Convention. Such discretion should leave room for a
proper substantive and procedural review by the Court, but it should not be regarded as carte
blanche for the national authorities in the exercise of their powers.
Moreover, the paper will deal with legality, necessity and proportionality of the restrictions
that have been adopted and with the relevance of the balancing exercise which should
properly weigh collective (public) interests with the individual rights, as well as reconcile
conflicts between certain Convention rights.
Finally, this paper seeks to provide a clear methodological framework which will
accommodate the particularities of the situation, in order to keep the States accountable and
ensure that the effectiveness of the human rights protection is not jeopardized, regardless
whether the State concerned has derogated of its Convention obligations under Article 15 of
the Convention.