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COUNCIL OF EUROPE BALANCES FREEDOM AND CONFINEMENT
AS COVID-19 PANDEMIC RAGES
By Helen Gavaghan
Many freedoms now being curbed by European nations are protected by
the European Convention on Human Right (ECHR). Derogation from some
aspects of the ECHR are allowed in public emergencies, if the action
is proportionate to the threat. The test is whether the European
Court of Human Right, part of the Council of Europe, would uphold an
action, given the known threat.
Seeing its 47 Member States thus caught between a rock and a hard
place the Council of Europe earlier this week published guidance
entitled, "Respecting democracy, rule of law and human rights in the
framework of the covid-19 sanitary crisis". The document is blunt.
It admits the virus is destroying lives and much of what is dear to
Measures taken by Member States which contravene any part of the
ECHR must be notified to the secretary general of the Council of
Europe and have basis in national law, such as the UK's Coronavirus
There is no requirement to declare a state of emergency, but members
of the Council of Europe must tell the secretary general why they
are acting as they are.
Certain elements of the ECHR cannot be ignored by members, even in a
public emergency. For example, there can be no derogation from
abolition of the death penalty, nor from the right not to be tried
or punished twice. Prohibition of torture, inhuman and degrading
behaviour, slavery, servitude and punishment without law cannot be
contravened. The right to life must be maintained.
During a crisis, such as the Covid-19 pandemic now gripping nations,
the ECHR binds its member states to the rule of law. Admitting that
governments may take emergency powers,the Council of Europe's newly
released guidance says those powers must be for a limited time and
that Parliament must be responsible for prolongation of emergency
Equally important is that the scope of powers adopted by the
executive is as limited as possible in the circumstances, and that
they are curtailed by parliament as soon as possible. Fundamental
legal reforms should be put on hold and any power transferred to the
executive from regional or local government should be restored as
soon as possible. Throughout the crisis member states have an
obligation, says the guidance document, to ensure adequate medical
care to people deprived of freedom, and an obligation to protect
people in State care from deadly diseases.
*Unless legislation.gov.uk has had chance to make a correction the url in the text is correct,
and the final word is emacted rather that enacted, which would have been the intended word.
The Council of Europe is separate from the European Union. One of the Council's institutional
bodies is the European Court of Human Rights, which hears cases in relationship to the
European Convention on Human Rights. The ECHR is a separate document from the more recent
Charter of Fundamental Rights adopted by the European Union.
The CoE guidance document published on Tuesday this week has the reference designation of
SG/Inf (2020) 11. It can be found at the following URL.
Issue one, 9 AprilInexplicably this date online was for a short time incorrect 2020. In Our World. ISSN: 2634 1794(online).
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