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Title
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Freedom-restricting measures in times of crisis: Giving shape to the legality principle from a European human rights perspective
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Author
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Abstract
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| This paper looks into the principle of legality under the European Convention on Human Rights (ECHR) with regard to measures restricting the individual in his fundamental right to liberty of movement, imposed in view of the corona (COVID-19) crisis. COVID-19 has created an exceptional global health crisis, which has given rise to an amount of exceptional measures taken by the affected States. These measures can be questioned as to their compliance with our fundamental rights, especially the right to freedom of movement. Numerous measures adopted by these States (severally) interfere with the right to free movement, either directly (e.g. distancing measures, curfews, residence requirements), or indirectly (e.g. restrictions or prohibitions on gathering or demonstration). Although it is in particular the proportionality of these measures that was often under discussion, important questions also arise in view of their legality. The legality principle is a fundamental principle, stemming from the rule of law and a key value in preventing arbitrary state interference, thus well deserving further examination. Furthermore, not all States have taken the same path when it comes to the legal basis for these measures. Some States, such as Belgium, have relied on already existing, ordinary legal options for restricting fundamental rights, such as the right to free movement. Other States, on the contrary, have opted for introducing (some kind of) a state of emergency or an exceptional legal framework for emergency situations. This is for instance the case for France resp. the Netherlands. Does or should this have consequences for the content of the legality principle with regard to freedom-restricting measures in crisis times? Does or should the presence of a crisis make a difference in the intensity of (judicial) review of these measures? To what extent does or should factors such as the passage of time or the increase in knowledge and expertise, play a role as to the requirements with which the legal basis must comply? In short, how is the legality principle with regard to freedom-restricting measures shaped - or should it be shaped - from a European human rights viewpoint in times of crisis? These and other questions are addressed in this contribution, with the aim of drawing some lessons from the corona pandemic regarding the legality principle applied to freedom-restricting measures in crisis times. To that end, this contribution outlines the general principles applied by the European Court of Human Rights as to the right to free movement and the legality principle. It compares these principles to the freedom-restricting measures imposed in Belgium to tackle the corona virus, where questions arise about their legality. In order to find some inspiration for this legality, but also for potential future legislation on freedom-restricting measures in crisis times in Belgium or in other State parties, this contribution will also compare where useful with the prevailing law on this issue in the Netherlands and France. |
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Language
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English
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Publication
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2021
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Volume/pages
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p. 1-14
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