The Affair of 'State of Emergency' - Was 70 Years of European Convention on Human Rights Enough to Prepare Member States for COVID-19 Crisis?

Abstract

Seventy years after the adoption of the European Convention on Human Rights (hereinafter: ECHR), its one of a kind, carefully built and long-nurtured system of protection of human rights was unexpectedly and ultimately challenged by the outbreak of the COVID-19 pandemic.In response to this still ongoing crisis, various Member states have acted in different ways. At least nine of them have formally notified derogations to the ECHR, which naturally inspired academics to open the debate whether that kind of reaction is justifiable.According to Article 15 of the ECHR, a famous ‘derogation clause’, Member states are allowed, in exceptional circumstances of war or other public emergency threatening the life of the nation, to derogate from their obligations under the ECHR to the extent strictly required by the exigencies of the situation. While it can be argued that the risks posed to public health by the new virus can amount to an exceptional situation which threatens the life of the nation and requires special measures that may run afoul of the ECHR, it is still questionable whether usual restrictions permitted by the ECHR in regard to e.g. right to liberty and security, right to respect for private and family life, freedom of assembly and association or freedom of movement, have really shown to be inadequate and insufficient. Even more so, considering the fact that states of emergency carry a grave risk of being abused, often for political purposes.This paper aims to analyse the legal nature, necessary conditions and the scope of Article 15 of the ECHR, from a general as well as COVID-19 pandemic point of view. Special attention will be paid to how Serbia is managing the crisis, especially since the state of emergency was declared even though there was another instrument at hand – statutory law adopted specifically for the purposes of natural disasters such as epidemic diseases.