Exceptional measures to control the Covid-19 pandemic may require derogations from the European Convention on Human Rights, the body responsible for the convention has said - but any such moves may be subject to challenge in Strasbourg.
In a ‘toolkit’ sent to 47 member states entitled 'Respecting democracy, rule of law and human rights in the framework of the COVID-19 sanitary crisis', the Council of Europe says it is for individual states to assess whether the measures it adopts warrant such a derogation.
It adds that the possibility of derogation is 'an important feature of the system, permitting the continued application of the convention and its supervisory machinery even in the most critical times'. Noting that derogations may be assessed by the European Court of Human Rights (ECtHR) in cases brought before it, the toolkit notes that the court has previously granted states 'a large margin of appreciation in this field'.
However the guidance notes that there can be no derogation in some rights, including Article 2, the right to life, and from the abolition of the death penalty.
The toolkit comes in the wake of the Hungarian government's imposition of indefinite rule by decree. The Council of Europe's secretary general, Croatian politician Marija Pejčinović Burić, last month warned the Hungarian prime minister Viktor Orbán that tackling the Covid-19 crisis 'must be done in a manner that respects the fundamental values of the organisation: democracy, rule of law and human rights.'
The Council of Europe toolkit states that even in an emergency, the rule of law must prevail. Any new emergency legislation should comply with the constitution and international standards and be subject to time limits.
Burić said: 'The virus is destroying many lives and much else of what is very dear to us. We should not let it destroy our core values and free societies.'