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Public Health and the European Court of Human Rights: Using Strasbourg's Arsenal in the COVID-19 Era

Date:27 March 2020

Written by Aikaterini Tsampi, Assistant Professor of Public International Law, Department of Transboundary Legal Studies, Faculty of Law, University of Groningen, a.tsampi@rug.nl

“Admittedly, travel restrictions are instrumental for the protection of public health against highly contagious diseases with a short incubation period, such as cholera or yellow fever or, to take more recent examples, severe acute respiratory syndrome (SARS) and ‘avian influenza’ (H5N1)”.

Τhis excerpt does not belong to a medical report or a health-policy document. Interestingly enough, it is rather to be found in the Kiyutin v Russia judgment of the European Court of Human Rights (ECtHR/Court) issued in 2011, offering a glimpse of how rights can be limited on public health grounds and how the Court has assessed contagious diseases comparable to COVID-19.

Restricting rights on public health grounds is a common human rights law exercise. Only that now it needs to be applied in the context of an unprecedented reaction to the current COVID-19 crisis. International [human rights] bodies along with other stakeholders active in the protection of human rights have already issued monitoring reports, warnings and guidelines for the human rights response to this public health crisis (see, indicatively, UN High Commissioner for Human Rights/OHCHR & Independent experts and bodies, CoE Commissioner for Human Rights – also here, CoE Secretary General, CoE CPT, FRA (ongoing), NHRIs both in Europe  and elsewhere, e.g. Canadian Human Rights Commission, Amnesty International, Human Rights Watch, Forum Asia).

The European Convention on Human Rights (ECHR) and the case-law of the ECtHR will inevitably be largely used to provide for human rights law arguments for the screening of the COVID-19 related response. The scholarly analysis issued so far already builds on ECHR law (see, indicatively, Coghlan, Spadaro). Given the versatile impact of the COVID-19 related measures on a considerable number of human rights, numerous ECtHR cases can be used as guidance for the assessment of the current situation. This is not, however, what this post is about. What we intend to do here is to briefly present the existing ECtHR arsenal, which specifically focuses on public health-related human rights issues, and discuss how it can be of pertinence under the current circumstances.   

Prevention of the spreading of contagious disease s: (wh)a(t) state obligation?

The Court has already clarified that “[m]atters of health care policy, in particular as regards general preventive measures, are in principle within the margin of appreciation of the domestic authorities who are best placed to assess priorities, use of resources and social needs” (Shelley v the United Kingdom [dec.], 2008). This does not however imply that there is no positive obligation under the ECHR for the States to prevent the spreading of contagious diseases. Considering the systemic problems of medical care in Georgian prisons, the Court has held that State authorities are required to take the necessary legislative and administrative measures to prevent the spreading of contagious diseases, such as tuberculosis and hepatitis, to introduce a screening system for prisoners upon admission and to guarantee prompt and effective treatment (Poghosyan v. Georgia, 2009, para 70 and Ghavtadze v. Georgia, 2009, para 105). This does not, however, implicate that that “any potential threat to health that fell short of the standards of Articles 2 (right to life) or 3 (prohibition of torture, inhuman or degrading treatment) would necessarily impose a duty on the State to take specific preventive steps” (Shelley v the United Kingdom).

The aforementioned cases pertain to health care measures in the limited context of prisons (also of relevance under the current COVID-19 crisis, see, indicatively, Human Rights Watch with respect to the overpopulated prisons in Russia) and not to nation-wide measures. They allow us, though, to delineate State obligations in response to the spreading of contagious diseases. While States can be found responsible for not taking measures to curb the spreading of COVID-19 – an interesting question, in this context, is whether opting for herd immunity is a questionable stance then –  it would be unlikely that the Court would impose specific measures over others, suggesting for example that a complete lockdown should be the way forward or that widespread access to COVID-19 testing should be prioritised.

Stigmatisation, disclosure on personal data and spreading of infectious diseases

Identifying persons, who are at risk of contracting the COVID-19 virus, is a critical component of identifying cases and preventing further transmission. However, this process entails the disclosure of certain personal data on the part of suspect or laboratory-confirmed COVID-19 patients who had close contact with them. At the outbreak of the COVID-19 the authorities were even trying to spot patient zero in every country.

The personal data-related challenges, indicatively mentioned above, invite for the consideration of the ECtHR cases on the protection of people with HIV, who have for long encountered similar interferences with their right to privacy under Article 8 ECHR. After all, the only pandemic-related cases brought before the ECtHR relate to HIV (Z v Finland, 1997, para 96). It is noteworthy, as UNAIDS suggested in its recent relevant report, the lessons learnt from the HIV experience should not be neglected when considering human rights in the COVID-19 era. The ECtHR has held that “domestic law must afford appropriate safeguards to prevent any communication or disclosure of personal health data as may be inconsistent with the guarantees in Article 8 ECHR with respect to the right to privacy” (Z v Finland, para 95 and more recently, Mockutė v Lithuania, 2018, paras 93-94). In the case of communicable diseases, the Court connects this principle to the protection of the heath of the individuals concerned but also to the protection of the community. Respecting the confidentiality of health data is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general (see, inter alia, Z v. Finland, para 95). The right to privacy is not an absolute one, though. An interference can be compatible with Article 8 if it is justified by an overriding requirement in the public interest (Z v. Finland, para 96) or in the interest of the safety of hospital staff (Y v. Turkey [dec.], 2015, paras 77-78). The scope of the margin of appreciation enjoyed by the States “depend[s] on such factors as the nature and seriousness of the interests at stake and the gravity of the interference” (Z v. Finland, para 99). 

The role of press to impart information on COVID-19, which reasonably qualifies as a “matter of public interest” can also be considered here, again with reference to HIV-connected case-law. The findings of the Court in the cases of Armonienė v. Lithuania (2008) and Biriuk v. Lithuania (2008) are pertinent here. These cases concerned the publication by Lithuania’s biggest daily newspaper of an article concerning an AIDS threat in a remote part of Lithuania. They cited, in particular, medical staff as having confirmed that the applicants were HIV positive. The Court highlighted domestic law should safeguard patient confidentiality, if not, “those in need of medical assistance may be deterred from seeking appropriate treatment, thereby endangering their own health and, in the case of communicable diseases, that of the community” (Biriuk v. Lithuania, para 43). This conclusion is particularly important in the COVID-19 context, where people with symptoms in small communities, remote areas of a country or islands, might be reluctant to get tested for COVID-19 and seek appropriate treatment. This is, after all, very much connected to the stigmatisation that the current circumstances can entail for those who test positive. This was in particular pertinent at the beginning of the COVID-19 outbreak, even before it was characterised as a pandemic (see, mutatis mutandis, Kiyutin v Russia, para 64 where the Court considers how ignorance about how a disease spreads can bread prejudices which, in turn, had stigmatised or marginalised those infected with the virus). Once, again just like the HIV experience can show, the non-protection of the right to privacy can have devastating consequences for the private and family life of the individual and his or her social and professional situation (see, in particular, I.B. v Greece, 2013), including exposure to stigma and possible exclusion (Z v Finland, para 96).

Pandemics and travel restrictions

The case of travel restrictions in times of pandemics is of particular interest, the reason being that the ECtHR seems to suggest an approach which deviates from the one the WHO formally recommends.

In examining travel restrictions as means for the protection of public health against HIV under Articles 8 and 14 ECHR, the Court juxtaposed HIV against highly contagious diseases with a short incubation period. In the case of the latter, the Court accepted, in an obiter dictum, that “[e]ntry restrictions relating to such conditions can help to prevent their spread by excluding travellers who may transmit these diseases by their presence in a country through casual contact or airborne particles” (see Kiyutin v Russia, para 68). In Novruk and others v Russia (2016) the Court referred in particular to tuberculosis, which can be an apposite example here, given that it “has no symptoms in its latent form but may progress over time to the active phase and be spread through the air when people who have active tuberculosis cough or sneeze” (para 103). At first sight, the aforementioned observations seem to leave little room for doubt as per the compatibility of travel restrictions with the ECHR in the case of a casually transmitted virus such as the COVID-19. This is also supported by the fact that such travel restrictions meet strong support among the Council of Europe member states, reflecting the existence of a European consensus thereon (see Kiyutin v Russia, para 65). Of course, the aforementioned observations do not imply that any travel restriction will be compatible with the ECHR. The proportionality test will still be applicable.

It’s interesting to note, though, that WHO continues to advise, just like it did with SARS,  against the application of travel restrictions to countries experiencing COVID-19 outbreaks (cf. Kiyutin v Russia para 67, where the Court takes into account relevant international reports, including by the WHO, in order to interpret the guarantees of the Convention and to establish whether there is a common standard in the field concerned). According to WHO, “restricting the movement of people […] during public health emergencies is ineffective in most situations and may divert resources from other interventions. This is crucial for the consideration of other rights that might be infringed upon due to travel restrictions. These restrictions may interrupt much-needed aid and technical support, may disrupt businesses, and may have negative social and economic effects on the affected countries. After all, research is inconclusive as per whether travel restrictions effectively flattened the COVID-19 curve (consensus among experts is also considered by the Court, see Kiyutin v Russia, para 67).

S preading of infectious diseases and detention

The spreading of infectious diseases explicitly appears in the text of the Convention and more precisely in Article 5(1) ECHR. According to Article 5(1) ECHR, “[…] No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: […] (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants […]”. The Court has acknowledged that there is a link between all those persons in that they may be deprived of their liberty either in order to be given medical treatment or because of considerations dictated by social policy, or on both medical and social grounds (Witold Litwa v. Poland, 2000, para 60). For the Court, a predominant reason why the Convention allows these persons to be deprived of their liberty “is not only that they are dangerous for public safety but also that their own interests may necessitate their detention” (Witold Litwa v. Poland, para 60).

Movement limitations’, quarantine, isolation, complete lockdown are some of the measures taken to address the COVID-19 crisis. Such measures definitely set restrictions on liberty of movement, which are governed by Article 2 of Protocol No. 4 to the ECHR. Can these cases also qualify as deprivation of liberty, though? The answer to this question is not necessarily an easy one (except for the incidents of arrests for failing to respect the measures, which indeed qualify as deprivation of liberty), even if the Court has envisaged deprivation of liberty outside formal arrest and detention. In Enhorn v Sweden (2005) the compulsory isolation of the applicant in order to prevent him from spreading the HIV virus was considered to fall within the ambit of Article 5. The Court has stressed that the difference between restrictions on movement serious enough to fall within the ambit of a deprivation of liberty under Article 5(1) and mere restrictions of liberty which are subject only to Article 2 of Protocol No. 4 “is one of degree or intensity, and not one of nature or substance” (De Tommaso v Italy [GC], 2017, para 80). The emphasis of the Court on degree and intensity rather than on nature or substance might be an indicator that many of the measures can qualify as deprivation of liberty.

While detention on the ground of spreading of infectious diseases is not in general a common one, it has been applied so far by the Court in cases of HIV, allowing the Court to set two fundamental criteria when assessing the “lawfulness” of the detention of a person “for the prevention of the spreading of infectious diseases”, namely: 1. “whether the spreading of the infectious disease is dangerous to public health or safety”; and 2. “whether detention of the person infected is the last resort in order to prevent the spreading of the disease, because less severe measures have been considered and found to be insufficient to safeguard the public interest”. An important safeguard, here, is that “when these criteria are no longer fulfilled, the basis for the deprivation of liberty ceases to exist” (Enhorn v Sweden, para 44). While the first criterion seems to be fulfilled under the present COVID-19 crisis, the second one needs to be carefully scrutinised, considering the massive character of the measures (not only for those infected).

Vaccination and ECHR

One of the majors implications of the current COVID-19 crisis on the public debate, and on the human rights debate of course, will pertain to mandatory vaccination. The recent referral of the case Vavřička and others v the Czech Republic (on the consequences of the refusal to comply with the Czech legislation on compulsory vaccination) before the Grand Chamber is illustrative of the complexities of the issue. While the eventual discovery of the COVID-19 vaccine will entail the States’ obligation of making it available to the people within their jurisdiction, what will happen with those persons who will not be willing to undertake vaccination? Will compulsory vaccination be the only way out? And what of the suitability of the vaccination?

Compulsory vaccination – as an involuntary medical treatment – amounts to an interference with the right to respect for one’s private life, which includes a person’s physical and psychological integrity, as guaranteed by Article 8(1) (Solomakhin v Ukraine, 2012, para 33). The Court reffered to mandatory vaccination during an epidemic, though, as a case in which this right can be restricted: “It was emphasised that free choice and self-determination were themselves fundamental constituents of life and that, absent any indication of the need to protect third parties – for example, mandatory vaccination during an epidemic, the State must abstain from interfering with the individual freedom of choice in the sphere of health care, for such interference can only lessen and not enhance the value of life” (Jehovah's Witnesses of Moscow v. Russia, 2010, para 136). On the occasion of the case of Solomakhin v Ukraine where the applicant was involuntary vaccinated against diphtheriam, the Court seemed to suggest two criteria to assess the interference with the applicant’s right, namely: 1. public health considerations and the necessity to control the spreading of infectious diseases; and 2. whether necessary precautions had been taken with a view to assess the suitability of vaccination for the inidividual case at hand. It needs to be ensured that “the medical intervention would not be to the applicant’s detriment to the extent that would upset the balance of interests between the applicant’s personal integrity and the public interest of protection health of the population” (Solomakhin v Ukraine, para 36).

Limitations of rights or Derogations of rights?

If the aforementioned findings of the Court can provide some guidance in the assessment of the impact of the current COVID-19 related measures on human rights, it should be noted that they pertain to limitations of rights strictly speaking.

“In time of war or other public emergency threatening the life of the nation” derogation from some of the provisions of the ECHR is possible under Article 15 ECHR (cf. Desierto’s analysis on COVID-19 and the ICESCR which does not have a derogation clause). The current COVID-19 pandemic can qualify as “public emergency threatening the life of the nation” and derogation from obligations assumed under the ECHR can be considered to have become essential for the “safety of the people”. This does not mean, however, that the States  enjoy an unlimited power in this respect. According to Article 15(1) ECHR it is possible to derogate “to the extent strictly required by the exigencies of the situation” and provided that the measures are not inconsistent with the other obligations of the State under international law. 

A number of States have declared a state of emergency, notifying the Secretary General of the Council of Europe of the exercise of the right of derogation from their obligations under the Convention pursuant to Article 15 of the Convention. While this might be considered by some as gesture of diligence (see, Buyse), there are voices which suggest that “[p]rovided the measures in response to the COVID-19 outbreak are necessary, justified and proportionate, a derogation should not be needed” (see, UK Parliament, Joint Committee on Human Rights: Background Paper: COVID-19). We concur with those who suggest that a derogation is indeed needed. Given the intrusive character of the measures adopted, derogating seems to be the way forward. The derogation under Article 15 ECHR is part of the legal arsenal of the Convention and it should be used, not only on legal grounds but also on symbolic ones. The human rights’ impact of the measures taken under these extraordinary circumstances needs to be also understood as extraordinary.