scholarly journals Realization of the right to free movement under quarantine conditions: practice of the European Court of Human Rights

Author(s):  
Anzhelika Krusian ◽  
Vadym Tsiura ◽  
Boris Perezhniak ◽  
Roman Sabodash ◽  
Lyudmila Kazakova

Under uncertain conditions, the introduction of a state of emergency and quarantine measures, the scope of human rights may be subject to state interference and some rights cannot be exercised at all. The aim of the work is to examine the problem of the exercise of the right to freedom of movement and personal integrity in the context of COVID-19 through the practice of the European Court of Human Rights ECTHR. The theme of the study is the social relations that arise in the exercise of the right to freedom of movement and personal integrity in the COVID-19 pandemic. Research methods are the dialectical method, the method of system analysis, synthesis, induction, deduction, modeling, comparison, generalization, and formalization. As a result of the study, the problems of the realization of the right to freedom of movement and personal inviolability in COVID-19 were analyzed through the prism of ECtHR decisions. The international experience of regulating the right to circular under quarantine conditions was clarified and suggested ways to solve this problem to protect human dignity.

2021 ◽  
Vol 37 (2) ◽  
pp. 83-104
Author(s):  
Maša Marochini Zrinski ◽  
Karin Derenčin Vukušić

The European Convention on Human Rights, as a main Council of Europe instrument for the protection of civil and political rights, does not guarantee the right to health care. However, the European Court of Human Rights broadly interprets Convention rights, and within the context of Articles 2, 3 and 8 of the Convention it gave certain indications that it might start dealing with the issue of health care. Without going into details of all the mentioned articles, this paper will analyse cases where the Court dealt with the issue of violation of Article 3 due to non-provision of health care outside the context of detention. Namely, within the context of detention, there is a clear obligation for states to provide health care, and the Court often relies on the reports of the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. What we consider important to point out is the Court’s case-law on providing health care outside the context of detention, given the social character of the right to health care, which goes beyond the civil and political character of the Convention.


Author(s):  
Andrew Yu. KLYUCHNIKOV

The 1950 Convention for the Protection of Human Rights and Fundamental Freedoms is an instrument for the dynamic development of the human rights system in the member states of the European Council. Such an active formation of the latter is due to the activities of the European Court of Human Rights. However, the case-law of the court is not always accepted in national jurisdictions, especially when it comes to the most sensitive areas of life in modern societies. As the goal of the research, the author sets out the identification of the current approach of this international court to the problem of social rights of convicts, especially in the context of ensuring their social rights. The material for the research was the case-law of the ECHR on the social rights of citizens - with special attention to the rights of persons in places of isolation from society, the legal positions of domestic researchers on the problem posed. The author uses traditional research methods - general scientific and special, with an emphasis on historical, social and legal methods. The paper describes the stages of the international soft law sources formation on penitentiary rules and the impact on this of the ECHR practice in the context of the discrimination standarts prohibition regarding the right of ownership and violation of the forced (compulsory) labor prohibition. A common European standard “the right of a convicted person to retire” has not yet been developed, which has been confirmed in the practice of the ECHR. This decision is due to the need to maintain the effectiveness of the entire convention system, the policy of compromises with states. Through the dynamic interpretation of the ECHR, this right is recognized as an element of the convention rights protection, the convict should be granted an increasing amount of social rights.


2021 ◽  
Vol 5 (3) ◽  
pp. 112-125
Author(s):  
N. R. Chebykina ◽  
K. A. Lyamina

The subject of the article is the legal basis of human rights and freedoms, including their restriction as one of the aspects of the COVID-19 pandemic. The purpose of the research is to confirm or confute the hypothesis that the restriction of human rights in particular the right to life, the right to health and freedom of movement in Russia during COVID-19 pandemic is legally justified.The methodology of research includes the formal legal interpretation of legal acts as well as the comparative analysis of Russian and foreign legal literature. The authors analyze and interpret international law, including international treaties and the law of foreign states as well as law of the Russian Federation and the constituent entities of the Russian Federation.The main results. Restrictive measures of main human rights may lead to the violation of the constitutional rights and freedoms of citizens, and can also create conditions for abuse of authority while applying the rules governing the emergency situations. International human rights law allows the suspension of certain rights in an emergency that threatens the life of the nation. This can only be done in cases where the emergency has been officially declared, the adoption of emergency measures is caused by an urgent need in the current situation, does not contradict other obligations under international law, is limited in time and does not lead to discrimination. The provisions of the Russian Constitution provide criteria, which observance is mandatory when introducing restrictions on human and civil rights and freedoms. However, no state of emergency was introduced in the Russian Federation. The state has adopted the self-isolation regime that does not have sufficient legal regulation. It has created legal uncertainty. The legal basis of measures to restrict freedom of movement is questionable. It seems these measures go beyond the high-alert regime and require the adoption of regulations that meet the requirements of legislation in the field of emergency situations. The realization of the right to health requires a solution to the problem of coordinating the needs of other patients and patients with COVID-19.Conclusions. Based on the analysis of international law, the law of foreign states and lawmaking activities of state authorities of the Russian Federation in the context of the spread of coronavirus, the authors conclude that the created legal framework for regulating the current situation is characterized by inconsistency, lack of «transparency» and radicality. Unfortunately, the pandemic has shown that regulation in sphere of emergencies, as well as health care, was not fully prepared for active spread of coronovirus. It is necessary to ensure that all emergency measures, including the imposition of a state of emergency, are lawful, proportionate, necessary and non-discriminatory, with a specific purpose and duration.


2017 ◽  
Vol 86 (3) ◽  
pp. 275-301 ◽  
Author(s):  
Stefan Kadelbach ◽  
David Roth-Isigkeit

Recently, human rights law has been restricted increasingly by measures taken in the interest of public security. This raises the question whether there are limits in human rights protection that cannot be touched without questioning the very essence of individual rights protection itself. This article submits that the jurisprudence of the European Court of Human Rights (ECtHR) in cases dealing with the compatibility of measures taken in the public interest with the echr has defined such limits predominantly in terms of procedure. Accordingly, individuals must not be deprived of the right to independent review in the light of their fundamental rights. Thus, the Court has been developing what may be called a right to invoke rights, a procedural component underlying all guarantees of the Convention. This principle has been established and upheld in three different constellations: general measures for public security, states of emergencies and the implementation of un sanctions regimes.


2020 ◽  
Author(s):  

This GSoD In Focus provides a brief overview of the global state of democracy at the end of 2019, prior to the outbreak of the pandemic, and assesses some of the preliminary impacts that the pandemic has had on democracy globally in 2020. Key findings include: • To address the COVID-19 pandemic, starting in March 2020, more than half the countries in the world (59 per cent) had declared a national state of emergency (SoE), enabling them to take drastic temporary (and in most cases necessary) measures to fight the pandemic. These measures have included in most cases temporarily curbing basic civil liberties, such as freedom of assembly and movement, and in some cases postponing elections. • International IDEA’s Global Monitor of COVID-19’s Impact on Democracy and Human Rights finds that more than half the countries in the world (61 per cent) had, by the end of November 2020, implemented measures to curb COVID-19 that were concerning from a democracy and human rights perspective. These violated democratic standards because they were either disproportionate, illegal, indefinite or unnecessary in relation to the health threat. • Concerning developments have been more common in countries that were already non-democratic prior to the pandemic (90 per cent) and less common, although still quite widespread, in democracies (43 per cent). • The democracies that have implemented democratically concerning measures are those that were already ailing before the pandemic. More than two-thirds were democracies that were either backsliding, eroding or weak prior to the pandemic. • Almost a year since the first outbreak of COVID-19, the pandemic seems to have deepened autocratization in most of the countries that were already non-democratic. However, in at least 3 of those countries (Belarus, Kyrgyzstan, Thailand), the pandemic has also tapped into existing simmering citizen discontent and may have been the tipping point in unleashing massive protest waves demanding democratic reform. The pandemic has also seemingly deepened democratic backsliding processes and exposed the democratic weakness and fragility of new or re-transitioned democracies (Malaysia, Mali, Myanmar, Sri Lanka). In a few cases, the pandemic has also exposed countries that showed no apparent sign of democratically ailing prior to the pandemic, but where concerning democratic developments have occurred during the pandemic and which risk seeing a significant deterioration in their democratic quality as a result (i.e. Argentina, El Salvador). • The aspects of democracy that have seen the most concerning developments during the pandemic are freedom of expression, media integrity, and personal integrity and security. However, the freedoms that have been restricted across most countries are freedom of movement and assembly. Another core democratic process that has been heavily affected by the pandemic is the electoral, with half the elections scheduled between February and December 2020 postponed due to the pandemic. • The pandemic has also shown democracy’s resilience and capacity for renovation. Innovation through accelerated digitalization has occurred across most regions of the world. And democratic institutions, such as parliaments, courts, electoral commissions, political parties, media and civil society actors, have fought back against attempts at executive overreach and democratic trampling or collaborated to ensure effective responses to the pandemic. The review of the state of democracy during the COVID-19 pandemic in 2020 uses qualitative analysis and data of events and trends in the region collected through International IDEA’s Global Monitor of COVID-19’s Impact on Democracy and Human Rights, an initiative co-funded by the European Union.


Religions ◽  
2019 ◽  
Vol 10 (5) ◽  
pp. 314 ◽  
Author(s):  
Davide N. Carnevale

This paper explores the relationship between human rights and social analysis within the main historical and theoretical perspectives adopted by social sciences. In particular, religious freedom will be analysed as one of the central issues in the recent engagement of the social sciences with human rights. After examining current narratives and mainstream approaches of the social sciences towards the right to religious freedom, this article will then underline the importance of a social epistemology which goes beyond a normative and legal perspective, bridging the gap between the framework of human rights and the social roles of religion in context. Within this framework, religious freedom represents a social construct, whose perception, definition and implementation dynamically evolves according to its influence, at different levels, in the lived dimension of social relations. The second part of the article proposes a context-grounded analysis of religious freedom in the Republic of Moldova. This case study is characterised by the impressive growth of Orthodoxy after the demise of the Soviet Union and by a complex and contradictory political approach towards religious freedom, both as a legal standard and as a concept. Emerging through the analysis of local political narratives and some preliminary ethnographical observations, the social importance of religion will be investigated both as a governmental instrument and as an embodied means of dealing with widespread socio-economic insecurity, creating tensions between religious rootedness and religious freedom. The local debate on religious freedom will then be related to the influence of geopolitical borders, the topic of traditional identity and the religious form of adaptation to the ineffectiveness of the new secular local policies, with orthodox institutions and parishes having new socio-political roles at both a global and local scale.


2020 ◽  
Vol 2 (3) ◽  
pp. 146-164
Author(s):  
L.Yu. Fomina ◽  

Introduction. Judges are required to observe certain rules of conduct, some of which can be considered as interference in the sphere of private life. Because of this, the issues of defining the boundaries of the judge’s private life and the possibility of violating them are very relevant. The European Court of Human Rights has a certain practice of protecting the right to respect for private life in relation to judges. This article is devoted to its research. Theoretical Basis. Methods. When writing the article, the authors studied scientific works on the problems of judicial ethics, standards of behavior of public servants, protection of the right to respect for private and family life, and the relationship between private life and public service. The main attention is paid to the practice of the European Court of Human Rights in the context of protecting the private life of judges. Results. The understanding of the private life of a judge based on the practice of the European Court of Human Rights is studied. The approaches applied to the assessment of such violations are considered. The criteria for the permissibility of state interference in the right to respect the private life of a judge are studied. Discussion and Conclusion. In accordance with the practice of the European Court of Human Rights, the sphere of a judge’s private life is interpreted broadly, including professional activities. To identify interference in the private life of a judge, it is important to analyze his behavior in terms of the requirements imposed on him, the consequences of interference for himself or his close circle. A key role in assessing the permissibility of interference, taking into account the criteria of legality, legitimate purpose, and necessity in a democratic society, should be assigned to establishing a fair balance of public and private interests.


2020 ◽  
Vol 38 (4) ◽  
pp. 264-282
Author(s):  
Emre Turkut ◽  
Sabina Garahan

Since the 15 July 2016 failed coup, Turkey has seen the mass arrests and detention of hundreds of thousands of individuals; among them are judges and prosecutors, military personnel, police officers, journalists, lawyers, human rights defenders and opposition politicians who have been deprived of their liberty on an array of terrorism-related charges. While this has raised numerous human rights issues, this article focuses on those relating to pre-trial restrictions imposed on the right to liberty and security of individuals during the post-coup state of emergency. Building on the theory and use of the reasonableness concept in the field of pre-trial detention through a particular focus on the ‘reasonable suspicion’ test under Article 5 § 1 (c) of the European Convention on Human Rights (ECHR or the Convention), the article analyses the role of the European Court of Human Rights (the Court or the ECtHR) in enforcing the guarantees of the right to liberty in the Turkish post-coup cases of Mehmet Hasan Altan, Şahin Alpay, Alparslan Altan and Kavala. Against the background of pre-existing Convention standards on pre-trial reasonable suspicion in states of emergency, it finds that the ECtHR has adopted a stronger supervisory stance regarding the compatibility of Turkish post-coup detention practices than the more hesitant approach shown in the prior derogation context of Northern Ireland. While these decisions give some cause for optimism in the hope for a judicial boldness on the part of the ECtHR in condemning Turkey’s arbitrary detention practices during the state of emergency, the article argues that there is further scope for the Court to strengthen its protection in this respect. Notably, despite the positive aspects in the Court’s approach, by continuing to support the notion that the Turkish legal landscape is capable of addressing Article 5 violations and not tackling the underlying structural issues so clearly at play, the Court leaves a glaring gap in rights protection for those seeking justice.


2017 ◽  
Vol 54 (1) ◽  
pp. 1-11
Author(s):  
Jean Massot

Introduction; Individual and civil freedoms; Individual freedom and the right to not being succumbed to self-willed closure; control of general acts. I the administrative judge for a long time has protected individual freedoms; I.1 In normal times; Freedom of Movement: passports, rights of foreigners, coerced psychiatric treatment; Freedom to enter Marriage, family life and free carrying out of profession; House of Taxation Search I.2 In times of crisis; First World War and the theory of state of emergency; Decolonisation, Terrorism: State of Emergency, Administrative jail and searches; II The administrative judge has developed new tools for confronting new challenges; II.1 New challenges; Human Dignity, Morsang sur Orge, Milhaud and Lambert court decisions; Health and Bioethics, Perruche judgement; Computers and Freedoms, Moon judgement; II.2 New tools; More frequent application of the court practice of the European Court for the protection of human rights; Reducing the area of internal measures (unilateral administrative act) ; Urgent procedure for bringing in measures for the protection of freedom; Priority issue of constitutionality, state of emergency; Conclusion: complementariness, and not competiveness between the general supervisory court and administrative courts.


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