Miniature figurines on the European flag surrounded by a surgical mask, a medical glove and a hydro-alcoholic solution | Source: EC - Audiovisual Service

The EU did not lose any time from engaging with the challenges that the pandemic brought forward. It has announced solidarity measures for the countries most affected by the crisis with the transfer of medical equipment and teams being at the spearhead of this effort. It has also announced a financial aid package (“Team Europe”) to support partner countries with more than 20 billion euros. Yet, these are not the sole areas in which the EU is taking action. Being a values-based organisation, it has also taken special care to protect human rights, democracy and the rule of law during this period. In that respect its cooperation with the Council of Europe is of particular importance.

A quick reaction and warnings to protect human rights in times of crisis

Already from the first days of the emergency CoE and EU officials were quick to underline the challenges that this situation posed with regard to human rights. Just to take a few examples officials from the CoE have raised issues relating to the exacerbation of domestic violence, the further isolation of the older population, the instigation of hate-speech. Last but not least, the Secretary General of the Council of Europe has issued a toolkit for governments across Europe on respecting human rights, democracy and the rule of law during the COVID-19 crisis.

One can find similar statements from the EU side. The EU is taking active measures to protect the employers and employees and to safeguard their social and economic rights. At the apex of this effort is the new financial instrument SURE proposed by the Commission with the aim of protecting jobs and workers affected by the coronavirus pandemic. The Commission has also taken note of the elevated risks that a COVID contagion would pose for immigrants located in camps across the EU border. It subsequently moved to ease the pressure by achieving an agreement on the partial relocation of unaccompanied minors. Finally, it has called upon member-states to ensure that vulnerable population received the needed support during the pandemic.

The value of CoE standards and monitoring system in the face of a sanitary emergency

The incessant efforts of CoE and of the EU to protect human rights during the epidemic should also continue in the future as the quarantine drags on and the aftermath of the crisis becomes evident. The following are some areas where the CoE expertise can be pertinent:

• Mitigating violence against women and domestic violence via the Istanbul Convention.
• Ensuring that the economic aftermath of the crisis will not lead to limited labour rights. The work of the European Social Charter is orientated towards this direction.
• Rebuking the false narratives that are perpetuated vis-à-vis the spreading of the virus on racial and xenophobic grounds. The monitoring conducted by the European Commission against Racism and Intolerance is fit to contribute towards this effort.
• Making sure that governments face scrutiny if they still use, after the crisis, the tracking mechanisms that are employed to monitor movement during the pandemic. The Committee of Convention 108 and the Data Protection Commissioner of the CoE are uniquely placed to ensure that this will not be the case.
• Monitoring and mitigating falsified medicines and illegal online pharmacies. The European Directory for the quality of medicine and healthcare has already taken actions on this front. Moreover, the Committee of the Parties of the Council of Europe’s MEDICRIME Convention on the counterfeiting of medical products and similar crimes have issued relevant advice to governments.

A temptation to derogate from human rights standards

Of even more importance with regard to future challenges is the role of the European Court of Human Rights (ECtHR). As numerous CoE member states have taken drastic measures to protect public health, we need to ensure the compatibility of these measures with the European Convention on Human Rights (ECHR).

The ECHR allows states to announce and implement a derogatory regime in the form of a state of emergency and several states have already notified the CoE of their intention to derogate from the ECHR.

Yet, such derogations should always abide by strong safeguards and be proportional to the situation that countries face; they should be limited in duration, circumstance and scope.

Maybe the most telling example of such a controversy comes from the measures taken by the Hungarian government. In a letter addressed to Viktor Orbán, CoE Secretary General pointed out that an indefinite and uncontrolled state of emergency cannot guarantee that the basic principles of democracy will be observed. In his response, the Hungarian PM rejected such worries. The European Commission announced that it would evaluate the emergency measures taken by Hungary and other EU member states with regard to fundamental rights.

The Parliamentary Assembly of the CoE seized itself of the matter and is also preparing a report titled “COVID-19 – an effective and human rights-compliant response”. It is obvious that these debates and controversies are just starting.

Conclusion

All in all, the measures taken to fight the outbreak of the disease pose serious limitations on rights that we have taken for granted until now. Values-based organisations like the EU and Council of Europe can act as a political and moral compass for policy-makers and citizens alike during such an era. As explicitly noted in the EU Human rights and Democracy Action Plan 2020-2024 enhancing and extending the cooperation between the EU and the CoE is of strategic importance in order to ensure coherence and complementarity in the field of human rights protection. In the COVID-era this is even more important as the two organisations need to ensure that safeguarding citizen's health does not come at the expense of their fundamental rights and liberties.