Dimensions of Human Rights during COVID 19 Pandemic in Europe. Derogations from basic human rights during COVID 19 Pan- demic under Article 15 ECHR.

Kumush SUYUNOVA

Master's thesis

Abstract:

In many legal systems, the state of emergency is a well-known and recognized legal instrument which allows a certain degree of derogation from human rights stand- ards. However, in some cases emergencies provide governments with convenient reasons to strengthen their powers, weaken democratic institutions and repress political oppo- nents. The magnitude and severity of the COVID-19 pandemic has clearly risen to the level of danger to public health and has given rise to a wide range of legal responses across the Council of Europe States which can justify restrictions on certain rights. Many steps taken to slow the spread of the virus and implement social distancing are common across States Parties. However, there is uncertainty about whether States Parties should apply derogation provisions under Article 15 of the European Convention on Human Rights or should rely solely on limitation clauses. In this regard, only 10 of the 47 ECHR Member States issuing a notice of derogation in response to COVID-19 could be a warn- ing sign of Member States disregarding the ECHR's principles. Alternatively, Council of Europe Member States might believe that any restriction on human rights applied as a COVID-19 combatting measure is justified in light of the limited nature of some rights and freedoms. Many scholars believe that when derogation clauses are used, there is a risk of going beyond the principle of proportionality, which may bring to the abusive exercise of power. Nevertheless, while dealing with COVID-19 Pandemic, formal decla- ration of a state of emergency and the notification of derogations under the Human Rights Treaty may have a positive impact on the constraining of emergency powers within pre- scribed limits.

Abstract:

In many legal systems, the state of emergency is a well-known and recognized legal instrument which allows a certain degree of derogation from human rights stand- ards. However, in some cases emergencies provide governments with convenient reasons to strengthen their powers, weaken democratic institutions and repress political oppo- nents. The magnitude and severity of the COVID-19 pandemic has clearly risen to the level of danger to public health and has given rise to a wide range of legal responses across the Council of Europe States which can justify restrictions on certain rights. Many steps taken to slow the spread of the virus and implement social distancing are common across States Parties. However, there is uncertainty about whether States Parties should apply derogation provisions under Article 15 of the European Convention on Human Rights or should rely solely on limitation clauses. In this regard, only 10 of the 47 ECHR Member States issuing a notice of derogation in response to COVID-19 could be a warn- ing sign of Member States disregarding the ECHR's principles. Alternatively, Council of Europe Member States might believe that any restriction on human rights applied as a COVID-19 combatting measure is justified in light of the limited nature of some rights and freedoms. Many scholars believe that when derogation clauses are used, there is a risk of going beyond the principle of proportionality, which may bring to the abusive exercise of power. Nevertheless, while dealing with COVID-19 Pandemic, formal decla- ration of a state of emergency and the notification of derogations under the Human Rights Treaty may have a positive impact on the constraining of emergency powers within pre- scribed limits.

Keywords

derogation clause, limitation clauses, emergency powers, human rights, COVID-19, Article 15 of the ECHR, a state of emergency, Council of Europe.

Language used: English

Date on which the thesis was submitted / produced: 31. 7. 2021

Thesis defence

• Supervisor: JUDr. Pavel Bureš, Ph.D.

Palacký University Olomouc

Faculty of Arts

Master programme / field:
Humanities / Euroculture