Human Rights in Times of Emergency – the Role of the Judiciary Under the European Convention on Human Rights
The Ninth Annual Regional Rule of Law Forum for South East Europe, hosted by the AIRE Centre and Civil Rights Defenders, took place in Tirana, Albania on 25 and 26 November 2022. The event was supported by the United Kingdom FCDO, the Government of Sweden and the Konrad-Adenauer-Stiftung.
The aim of the Forum was to promote the implementation of the European Convention on Human Rights in the region, encourage regional cooperation in the continued development of the rule of law and human rights, and assist the process of EU integration of the region. The 2022 Forum focused on the protection of human rights in times of emergency. Almost two years ago, amid the Covid-19 pandemic, at our 2020 Forum, we discussed Covid-19 and Human Rights. At the time, there was limited jurisprudence (at both a European and domestic level) concerning the protection of human rights during the pandemic and the Forum provided an opportunity to examine how existing legal provisions and case law might need to be applied to safeguard human rights in the face of the unprecedented situations and questions which arose. Now, two years on, the Forum presented an opportunity to reflect on key legal developments and lessons learned during this period. The Forum also presented our updated guide on Covid-19 and human rights, which takes account of relevant European and domestic jurisprudence delivered since the start of the pandemic. These cases, and the updates to the guide, provide vital guidance on questions regarding how to balance and protect rights in the context of the pandemic, but also have wider importance regarding the protection of rights during times of emergency more generally.
As we emerge from the pandemic, the Forum provided the opportunity to discuss lessons learned during this unprecedented time regarding the effective protection of human rights in times of emergency. This included, for example, the approach taken by the Strasbourg Court in respect of the invocation of Article 15 ECHR to derogate from the Convention, the role of the judiciary in scrutinising emergency measures, and the key factors that must be taken into account when balancing competing rights and interests in the context of an emergency and how principles such as proportionality and subsidiarity are and should be invoked in this context. These are all questions which were of great significance during the pandemic. However, as we continue to face new challenges and emergencies, such as the war in Ukraine, it is clear that understanding such issues will also be vital to future-proofing the protection of human rights more generally.
“When States are required to respond quickly to a serious and complex emergency, it is clear that rigorous parliamentary scrutiny of emergency measures and their compatibility with human rights might not always be possible. In this context, effective and independent judicial scrutiny of executive measures becomes yet more essential to hold governments to account and to protect fundamental rights and the rule of law..”
“In the emergency times, state authorities are required to react quickly, to set measures and protect their citizens. Unfortunately, as we have seen in the last years, such actions might also often lead to violation of human rights, especially in countries with authoritarian regimes and hybrid democracies. Our task is to ensure that full respect of international human rights standards is always a priority.
This year Europe is facing new challenges, including the war in Ukraine, climate and energy crises. Lessons from Covid-19 can provide a valuable opportunity for us to learn how to act and respond to emergency situations, and ensure the judicial and democratic scrutiny of emergency measures.”
“Respect for human rights and guarantee of human rights, as well as their elaboration in line with the recent social, cultural and economic developments make such forum one of the forms of our regional cooperation and dialogue. This dialogue is about ensuring the highest protection of human rights possible in a multi-level system, which enables fundamental rights to be guaranteed by various national and international bodies.”
“As a general consideration of the last three years with the pandemic we have had a kind of illustration of the fact that emergencies, whatever their cause is, are threatening lives and health of people. But they also represent a stress test. They test how strong and consolidated democratic institutions are, and how the rule of law system responds..”
“Can we use emergency as an excuse to violate human rights? No, I would argue, we cannot. Because principles for human rights do not change when we have a situation of emergency. It’s only the circumstances that change for a moment.”
“Even when we are challenged by these times of emergency and urgent issues, and we have to respond to the emergencies, we must not miss the impact on human rights and values .”
“Liberal democracies that adhere to the rule of law, as most of the countries do, have made a profound and humane choice – to preserve as many lives as possible during the pandemics, and to preserve economy, welfare and social peace. The governments must answer how to implement this decision, while preventing economic collapse and staying true to our liberal democratic values and protection of human rights.”
“Keynote Speech by Robert Spano, former President of the European Court of Human Rights”
“The Forum’s first panel session introduced the importance of effective judicial scrutiny of emergency measures, as articulated in the case law of the European Court of Human Rights, and provided the opportunity to analyse what exactly constitutes ‘effective’ judicial review during times of emergency. The opening panel has laid the foundations for discussions at the rest of the Forum, exploring what exactly constitutes a ‘time of emergency’ and ’emergency measures’ and identifying the broad scope of situations in relation to which discussions regarding ‘times of emergency’ are relevant. The panelists have considered what constitutes ‘effective review’ under Articles 5 and 6 ECHR, as well as the requirements for effective review which form part of the proportionality assessments under other Convention Articles, before analysing how such requirements could permissibly be adapted during times of emergency..”
“The panel discussion has explored the role of democratic scrutiny during times of emergency, recognising the limits of judicial scrutiny and the need for other effective mechanisms by which to review emergency measures. Informed by the latest caselaw of the Strasbourg Court, the panellists examined the principles of legality, proportionality and the margin of appreciation and discussed how these principles can and should be applied during times of emergency, including the factors which should be taken into account when making a proportionality assessment of an emergency measure. The panel focused on the introduction of ‘lockdown’ measures across Europe, and the relevant ECtHR case law in respect these measures, as an example of the how the principles discussed throughout the session are applied in practice.”
“Lessons learned – future proofing the judiciary and ensuring a Convention compliant response to times of emergency”
Taking account of the conversations and issues raised within the working group sessions, the final panel provided the opportunity to reflect on key lessons learned during the pandemic. The panellists distilled best practice identified as having emerged during the pandemic, to suggest how courts can build on lessons learned to future-proof the efficacy of judiciaries and the protection of human rights more generally. The panel analysed the introduction of different vaccination policies across Europe in response to the pandemic, and the relevant caselaw in respect of this, as an example of how human rights can and should be applied in the context of the novel questions which arise during an emergency. The session has taken account of how the Strasbourg and national courts adapted to continue to function during the pandemic, looking to the future to evaluate which practices can and should be carried forward, to respond to any ongoing and future challenges facing courts at every level.”