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.