European Court of Human Rights and COVID-19: What are Standards for Health Emergencies? | Pages 380-398 | PDF

Vesna Coric, PhD, Senior Research Associate
Institute of Comparative Law, Serbia

Ana Knezevic Bojovic, PhD, Senior Research Associate,
Institute of Comparative Law, Serbia

Keywords: European Court of Human Rights, COVID-19, emergency, proportionality

The European Court of Human Rights is currently facing a challenge in dealing with numerous applications linked to the COVID-19 pandemic and the related restrictions aiming to protect human life and health, which, at the same time, limit some of the most important human rights and fundamental freedoms. Legal scholars have voiced different views as to the complexity of this task, invoking the previous case law on infectious diseases and on military emergencies to infer standards that would be transferrable to COVID-19-related cases, or the margin of appreciation of domestic authorities pertaining to health care policy as the approaches ECtHR could take in this respect. The present paper argues that the ECtHR would be well advised to resort to a more systemic integrated approach, which implies the need to consider obligations emanating from other health-related international instruments in setting the standards against which it will assess the limitations of human rights during the COVID-19 outbreak. Hence, the authors reflect on the potential contribution of the integrated approach to the proper response of the ECtHR in times of the pandemic. The review shows that both the ECtHR’s caselaw on the integrated approach, as well as its theoretical foundation leave enough room for a wide application by the ECtHR of the right to health, and likewise – soft law standards emanating from the various public health-related instruments, when adjudicating cases dealing with the alleged violations of human rights committed during the COVID-19 outbreak. Subsequently, the paper critically assesses to what extent the ECtHR has taken into account the right to health-related instruments in its previous case law on infectious diseases. This is followed by a review of the existing, albeit sparse, jurisprudence of the ECtHR in its ongoing litigations pertaining to restrictions provoked by COVID-19 pandemic, viewing them also in the context of the integrated approach. The analysis shows that ECtHR did not systemically utilize the integrated approach when addressing the right to health, even though it did seem to acknowledge its potential. The authors then go on to scrutinize the relevant health emergency standards stemming from international documents and to offer them as a specific guidance to the ECtHR regarding the scope of the right to health which will help in framing the analysis and debate about how the right to health is guaranteed in the context of COVID-19. Consequently, building on the proposed integrity approach, examined theoretical approaches, and standards on the right to health acknowledged in relevant supranational and international instruments, the authors formulate guidance on the path to be taken by the ECtHR.