Ilaria Gambardella is currently a research and coordination assistant at the Centre for European Law at the Université libre de Bruxelles. She is a graduate of the Master of Law from the University of Naples (Italy) and a Specialized Master in European Law from the ULB-IEE. Her research focuses on European law and human rights.

The covid-19 pandemic has led national authorities around the world to take a series of measures to prevent the spread of the virus and to address their socio economic consequences.

These measures have had and continue to have serious consequences for the enjoyment of human rights, including but not limited to freedom of assembly, free movement, the right to education, the prohibition of discrimination or the right to private life which are currently restricted.

Yet this does not intervene in a legal vacuum, and legal instruments protecting human rights and enforceable before courts can be mobilised to check the legality and proportionality of these measures. In our post, we will focus on the role the European Courts may play in this regard, and we will to that end analyse recent case-law in which they are precisely called upon to review certain national measures.

Importance of judicial oversight in a pandemic

Due to the urgency of facing an unprecedented health crisis, decisions have been essentially in the hands of governments, with the support of consultation committees. This “executive dominance” raises a number of concerns, as it has been accompanied by a limited parliamentary oversight over the measures adopted.

The role played by national parliaments has been different depending on the constitutional system of each State. For example, the Italian Constitution provides for a form of ex-post parliamentary oversight, requiring the national parliament to transform into law a normative act issued by the government. By contrast, in France the Parliament reviewed and amended the existing legislation to tackle the situation (ex-ante oversight). The Belgian case is also different because parliamentary oversight is exercised both ex ante and ex post: Parliament can delegate legislative powers to the government (pouvoirs spéciaux) and the ministerial decrees following from this delegation must be scrutinized within a period of one year from their entry into force. As of early May 2021, the law to be adopted by the Parliament to claim back its powers has been prepared but its vote is being postponed. These countries share nevertheless a common characteristic: very often the national parliaments approved the measures implemented by the government, as it was difficult to challenge them on political grounds.

This did not prevent many questions to arise about the respect of freedoms and rights, precisely about the conflict between the right to health, on the one hand, and other economic, social and cultural rights, on the other. In this context, besides the parliamentary oversight, the intervention of the judiciary is also necessary both to enhance the legitimacy of counter-pandemic measures and prevent the dangers associated with them.

As the pandemic tends to last longer than initially anticipated, the need for a judiciary intervention becomes more and more intense. A gradual reintroduction of judicial scrutiny is crucial, so as to understand which measures will “survive” the control.

In Europe, the decisions of national courts have differed greatly due to several factors, including: the context and state of the pandemic at the time of the decision, the degree of the threat to public health, the degree of scrutiny, and the seriousness of the interference with the human right in question.

It is thus relevant to see whether the two regional courts with a competence to control respect for human rights in European states will gradually develop a standard of review for covid-related measures. While only a year has passed since the pandemic outbreak, some actions have already been brought before the CJEU and the ECtHR. However, both courts have not yet ruled on the merits. Relying on these actions, we will propose a reading grid of the CJEU’s and ECtHR’s future approaches.

The European Court of Justice as a closed path: the limits relating to the scope of application of EU law

In this part we will analyse the request for preliminary ruling referred to the CJEU in the case Suspension de l’activité judiciaire which is currently the only case before the CJEU about fundamental rights in the context of coronavirus.

An Italian judge (giudice di pace), before which a case about an action for damages in the context of a car accident was pending, asked the CJEU to rule on the compatibility of certain measures taken by the Italian government with the right to an independent tribunal, the right to a fair trial, the right to human dignity, the right to equality and the right to security, all protected by the EU Charter on Fundamental Rights. In particular, the referring judge argued that the national emergency was declared without taking adequate mitigating measures. In fact, judges were not able to continue the urgent judicial activities due to the lack of computerization of justice – needed for remote work – and the impossibility to ensure compliance with sanitary protocols.

However, the Court declared the request inadmissible. Indeed, in its decision, the CJEU recalled that a request for preliminary ruling must be necessary to allow the referring court to decide the dispute before it at any stage of the litigation. Furthermore, there must be a connecting link between the dispute and the provisions of EU law for which interpretation is sought. According to the CJEU, in this case the interpretation of EU law has been requested with the aim of allowing the judge to assess the legitimacy of the organizational measures taken in consequence of the pandemic urgency. Indeed, the referring judge estimated that those measures had affected his independence and many other rights.

Yet, the Court ruled that there was no linking factor between the case pending before the Italian court and the interpretation of the provisions invoked. Moreover, those provisions are mostly stipulated in the EU Charter of Fundamental Rights, and its Article 51, §1 provides that the provisions of the Charter are addressed to the Member States only when they are implementing EU law. In other words, the provisions of the Charter do not have the same scope of application as those of the treaties, as their applicability is subject to the existence of a link with Union law. In the present case, no indication was provided by the referring judge as to the applicability of the Charter. For all these reasons, the Court declared the inadmissibility of the request for preliminary ruling.

As recalled by the Court, the main obstacle to the possibility of obtaining a decision on the merits thus lies with the necessity to fall within the scope of application of the Charter. This is not easily established, as there is a lot of uncertainty about the situations in which the link with EU law is to be found. According to the CJEU case law, the Charter is applicable in the situation in which the Member State executes a regulation or transpose a directive, as well as when the Member State derogates to a freedom of movement. In many other situations, the definition of the Charter’s field of application is still uncertain and unpredictable.

The jurisdiction of the CJEU, as constrained by the scope of application of the Charter, appears in fine limited. Whereas it could be argued that such limits result from an insufficiently drafted request for a preliminary ruling, the CJEU reiterated its strict stance on the matter, and it may not necessarily be the best placed to review national covid-related measures.

The European Court of Human Rights: a possible avenue which may lead to the granting of a margin of appreciation to the States

The European Court of Human Rights (ECtHR) could probably be best placed to answer this type of question as it has been demonstrated by the recent decision on compulsory vaccination, which has been much commented on because of its implications for the covid-19 situation.

Prior discussing the cases that have already reached Strasbourg, it is to be reminded that applicants can bring complaints before the ECtHR only after exhausting internal remedies.  As a consequence, at the time of writing in April 2021, many applications in relation to the respect of rights and liberties in times of coronavirus are still pending before national courts and may reach the ECtHR later.

Firstly, the arguments raised in these applications will be recalled in order to illustrate the diversity of rights impacted by covid-related measures, and the difficult task faced by the Court.

A Russian national has been charged with the offence of disseminating false information with regard to the covid-19 pandemic. She commented on an Instagram post saying that coronavirus does not exist in her region and that people have been paid to declare that their relatives had died because of coronavirus. The Court will now have to decide within which limits the freedom of expression has to be restricted when misinformation affects the protection of public health.

In Greece a religious association claims its right to freedom of religion against the national measures banning the collective manifestation of religion in worship and a detainee in Romania challenges the authorities’ refusal to attend to religious services outside the prison. Again, it remains to be seen how the balance will tilt, when the freedom of religion is on one side of the scales and the right to health on the other.

In Slovakia, two owners of a fitness centre allege the unlawfulness of a series of measures to prevent the spread of covid-19 as they violate their right to property. Although the ECtHR may recognise the exceptional circumstances of the health crisis, the right to property may acquire greater weight if the restrictions are to continue for a long period of time, their potential impact increasing over time.

An association, defending the interests of workers, claims that it has been forced to abandon the organisation of a demonstration planned by withdrawing its application for authorisation, thus relinquishing the exercise of the freedom of assembly.

A French national invokes the violation of his right to health and private life due to the management of the pandemic by the French State. His request has already been declared inadmissible because he challenged the measures taken by the French State as a whole and did not demonstrate to what extent he considers himself to be a victim.

These applications, briefly summarized, illustrate how the current health crisis and the measures taken to contain the spread of the virus have encroached upon the exercise of various rights protected under the Convention.

Due to the complexity of the crisis and the lack of elements to predict future developments of the pandemic, deference to the national margin of appreciation can be expected by the ECtHR. Indeed, the crisis is still ongoing and current scientific knowledge is not sufficient to assess whether the measures that have been taken were appropriate and what kind of measures should be taken in the future. It is thus likely that the ECtHR may consider that national courts are better placed to take a decision and that a wide margin of appreciation has to be granted to governments.

In respect of the latter, the ECtHR posits a “clashing rights principle” according to which the Court “generally allows the national authorities a wide margin of appreciation when it comes to striking a balance between competing human rights”.

Strong arguments can be made both in favour and against such recognition. Nevertheless, this should not be automatic, and it should be regularly revised to enhance the accountability for fundamental rights’ protection. Furthermore, the resolution of human rights clashes demands an endeavour of contextualisation, especially in an exceptional and unprecedented situation such as the current pandemic. The question thus remains to consider how, then, can the control of the European Court of Human Rights implement and ensure the accountability of States for human rights in the context of the pandemic?

Getting out of a dead-end: plea for an integrated approach before the European Court of Human Rights

In our view, the solution to get out the limited judicial oversight is to be found before the European Court of Human Rights, should it choose to adopt an integrated approach to human rights. Such approach would be relevant in the context of the current crisis for several reasons.

Firstly, an integrated approach would circumscribe the margin of appreciation reserved to States, due to the need to consider obligations emanating from other human rights instruments. Although the Court can only directly apply the Convention and its additional protocols, many references can be found to other sources of human rights in the Court’s case-law, restraining further the margin of States.

Secondly, according to the integrated approach, all human rights should have the same weight and the situation brought before the Court should not be examined through the perspective of only one human right. Thus, this approach would allow for special consideration of economic, social and cultural rights, which are defined as “second-generation” rights and yet highly affected in the coronavirus crisis. An integrated approach would avoid a civil and political rights-based approach and bring into the discussion economic, social and cultural rights.

Thirdly, an exceptional crisis, such as the covid-19 pandemic requires contextualisation. When the Court is faced with cases involving multiple and conflicting human rights, the risk is that it may examine the case only from the perspective of the applicant. On the contrary, it is essential to acknowledge all the human rights involved/impacted/affected in order to find an equilibrium. This approach would allow the Court to consider the specificities of the emergency situation in which the decisions were taken, but also to assess whether the State had done everything possible to ensure the protection of human rights.

Finally, an integrated approach to human rights means paying attention to intersectionality. Intersectionality promotes an understanding of human beings shaped by the interaction of different social factors, including age, class, disability, migration, religion, etc. This approach allows a more detailed contextualisation of the facts by grasping the social mechanisms underlying the unfavourable treatment and considering the specific disadvantage that is produced by the interaction of several factors. It allows to understand who is most at risk of suffering from the covid-19 pandemic. While people who are both elderly and in bad health are considered to be more vulnerable from a health perspective. The same consideration can be made about women and children who live in difficult-economic conditions, as they are more exposed to the impact of the pandemic in relation to education and the loss of work. In either case, examining their situation through the lens of intersectional discrimination is particularly relevant, as it gives visibility to situations in which the intersection of several grounds is a different factor of discrimination than of a single ground.

Conclusion

As the applications brought before the European Court of Human Rights are yet to be judged, it is impossible to predict which approach the Court will take and what consideration will be given to economic, social and cultural rights involved. We can only express our support for it to follow an integrated approach to human rights. This would entail a better understanding of the context in which the covid-19 measures have been taken and provide for a more refined assessment as to whether Member States have ensured adequate protection of human rights, especially of the economic, social and cultural rights, thus offering a true judicial oversight of the measures taken in answer to the pandemic.