In order to provide an answer with universal applicability to all European States, the European Convention on Human Rights is the ideal instrument: With 47 signatories and with provisions guaranteeing a wide spectrum of liberties, the ECHR is the sword of Damocles hanging over those who adopted restrictive measures. 

A quick look at the provisions, or even their titles, is more than sufficient to pinpoint the articles involved in the “dispute” between the ECHR and the COVID-19: Articles no. 2 (right to life), 3 (prohibition of torture), 5 (right to liberty and security), 6 (right to a fair trial), 8 (right to respect for private and family life), 9 (freedom of thought, conscience and religion), 10 (freedom of expression), 11 (freedom of assembly and association), 12 (right to marry), 14 (prohibition of discrimination) and 15 (derogation in time of emergency) are all more or less related to the action taken to minimize the effects of the newly detected virus. Article 2 of Protocol 4 (freedom of movement) together with article 1 and 2 of Protocol 1 (protection of property, right to education) are associated with the pandemic as well. And the list of articles could be even longer, as more freedoms guaranteed by the ECHR might be addressed by the court when the first applications related to the pandemic are judged. 

As for the right to life, which constitutes a rare example of a non-derogable right included in the text of the ECHR, article 2 of the Convention imposes a positive obligation to Member States to protect the lives of the people under their jurisdiction. Therefore, the -thankfully rejected- “herd immunity” plan would constitute an omission of the State, resulting in a violation of article 2. The elderly and people with pre-exiting conditions could under no circumstances be sacrificed for the welfare of the general public, as their lives are equally protected by the Convention, which leaves no room for discrimination of any kind. However, in case any death occurs, the causal link between the omission and the result has to be proven, and this prerequisite has to be fulfilled for a violation to be found. All in all, effectively responding to the threats to life and to physical integrity posed by COVID-19 is part of the positive obligation of States. The positive obligation of states is not fulfilled when the nature of the measures to be taken is clear, and their adoption is feasible for the government (Finogenov and Others v. Russia, no. 18299/03, 20 December 2011). Controversial scientific data, though, render the adoption of adequate measures a hard political decision, falling within the margin of appreciation of each Member State.

As for the prohibition of torture -another example of a non-derogable right of the ECHR- the lack of proper and effective medical treatment could constitute degrading and inhumane treatment, leading to a violation of article 3 of the Convention. The significance of the article is greater in Member States which are currently dealing with migratory flows, as the conditions under which the asylum seekers are detained are extremely favourable for the transmission of the virus. The refusal to access, though, to medication at an experimental stage was not regarded as a violation of the Convention (Hriztozov and Others v. Bulgaria, no. 47039/11, 13 November 2012).

As for article 5 of the ECHR, house arrests surely constitute a “deprivation of liberty”. The severity of the restrictions is crucial in order to determine the proportionality and the necessity of the measure, but in any case an unprecedented sanitary crisis and the need to contain the spread of coronavirus within the population is enough to justify limitations to liberty. No question of legitimacy arises when it comes to infected people, who are obliged to stay at home so as to avoid the further transmission of the illness, as article 5-1(e) allows the detention of persons for the prevention of the spreading of infectious diseases. House arrests have to be made in accordance with national law, and must not exceed a restricted time limit, as such measures are justified only when necessity precludes the wrongfulness they would entail if imposed under normal conditions. According to the case-law of the European Court of Human Rights (Enhorn v. Sweden, no. 56529/00, 25 January 2005), it must be established that the restrictions of liberty must be the ultimum refugium for the prevention of further contamination and that the spreading of the disease poses a danger to public health. In case Kuimov v. Russia (no. 32147/04, 8 January 2009), the Court established that limitations to liberty must be discontinued as soon as permitted and noted that the fact that they last for a long period of time indicates their disproportionality. Factors such as the type, the duration, the effects and the manner of implementation of the measures in question are significant when evaluating their compliance with the ECHR. The same case led the Court to the conclusion that a 3-month quarantine is not disproportionally long in duration.

Concerning article 6 of the Convention, the right to a fair trial was affected significantly by COVID-19, as the majority of civilians were unable to be served by justice after most courts were closed because of the pandemic. One alternative so as to avoid violations of article 6 is the utilization of technology, enabling citizens to resolve their disputes electronically without any physical presence (e-justice). In the case at hand, the right to trial within reasonable time is of essence so as to avoid violations of article 6 of the Convention. The example of the European Court of Human Rights, which dealt with the issue in question in a similar manner, could be followed by all Member States. However, despite the fact that this method could be proven ideal for civil and administrative law trials, penal proceedings often require physical presence so as to ensure a fair trial. When the situation which is accountable for the inability to serve justice, though, is not under the control of the State, there was thought to be no violation of the Convention (Khlebik v. Ukraine, no. 2945/16, 25 July 2017 and Agga v. Greece, no. 37439/97, 25 January 2000). In addition, the inability to resolve urgent disputes (i.e. domestic violence) could lead to violations of articles 2 and 3 of the Convention (Opuz v. Turkey, no. 33401/02, 9 June 2009).

As far as articles 8-11 of the ECHR are concerned, all provisions of the Convention include restrictions apart from the content of each right. All provisions resemble one another and refer to public health as a justification for limitations. In any case, though, the core of each right has to be unaffected by the measures adopted. 

More specifically, as far as article 8 is concerned, the measures adopted so as to enable the State to deal with the medical crisis often requires medical and location data in order to assess the compliance of the public and the progress of the pandemic. Any medical test results fall within the definition of privacy and they must be carefully handled by States in order to ensure the minimum intervention to the right to privacy possible. Any measure has to be proportionate, in pursuance of a legitimate aim. As for family life, the ability to communicate via video calls nowadays minimizes the possibility for violations of article 8 to be found in this respect. As for the right to physical integrity protected by article 8, in Case Acamanne and Others v. Belgium (no. 10435/83, 10 December 1984), the Court established that obligatory tests to detect tuberculosis so as to protect public health, were not regarded as a violation of article 8 of the Convention. The tests, though, must not be conducted in a manner constituting degrading and inhumane treatment (Jalloh v. Germany, no. 54810/00, 11 July 2006). Mandatory testing, treatment and vaccination must always be dictated by medical necessity and safeguards against arbitrariness are required under the provisions of the ECHR. 

In Solomakhin v. Ukraine (no. 24429/03, 15 March 2012), compulsory vaccination was considered as a violation of article 8. However, the Court found that obligatory vaccination was not a violation of article 8 when its aim was to prevent the spreading of infectious diseases. The vaccination will most likely be regarded as a violation of the Convention if the vaccine is at the experimental stage. Religious beliefs are not sufficient as a justification to avoid vaccination (Jehovah’s Witnesses of Moscow and Others v. Russia, no. 302/02, 10 June 2010).

As for article 10, the panic caused by the announcement of the impact of COVID-19 led governments to selective revelation of news, violating the right of the public to impart accurate information. This practice is an ideal example of “interference by public authority” prohibited by article 10 of the Convention. The only permissible restriction under the latter would be the relatively limited impartment of (accurate) information for reasons of medical necessity, so as to protect the people working at radio or television stations. 

Concerning the right to marriage protected by article 12, the delay caused to someone’s marriage due to the pandemic does not interfere with the essence of the right (Frasik v. Poland, no. 22933/02, 5 January 2010), and therefore no violation is likely to be found. 

As for the prohibition of discrimination enshrined in article 14 of the Convention, the provision plays a significant role when it comes to the determination of priorities in case limited State resources are available for the combat against the pandemic and as a result choices have to made in favour of some and to the detriment of others (Pentiacova and Others v. Moldova, no. 14462/03, 4 January 2005). 

As for article 15 of the ECHR, numerous Member States have already informed the Secretary General of the Council of Europe that they intend to derogate from the provisions of the Convention pursuant to article 15. However, the derogation clause does not allow Member States to interfere with human rights the way they desire, as according to the provisions of the ECHR all measures are permitted “to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law”. All limitations have to be necessary to deal with the pandemic and limited in time. Derogation from the provisions of the ECHR, though, does not affect non-derogable human rights, such as the right to life and the prohibition of torture. All the remaining human rights examined above, though, could subject to restrictions. It must be noted that articles 8-11 of the ECHR can be limited for the protection of public health without derogating from the provisions of the Convention. Every restriction must be prescribed by law and must be necessary in a democratic society. Consequently, article 15 can under no circumstances be used as a pretext to violate human rights enshrined in the ECHR. 

Regarding the protection of property enshrined in article 1 of Protocol 1, the severe measures imposed to economic entities interfered with their right to property as far as expropriation, control of use or peaceful enjoyment is concerned. However, the protection of public health is an aspect of public interest with a significance which outweighs the enjoyment of economic rights during the pandemic. 

As for the right to education, enshrined in article 2 of Protocol 1, efforts must be made so as to mitigate the impact of the pandemic to the education of students. E-learning provides an effective solution to the problems caused by the virus and every restriction to the right to education must be justified by the pressing need not to spread the virus in overcrowded schools. 

Mutatis mutandis, the same analysis applies to all the rest human rights affected by COVID-19. In any case, the effectiveness and essence of the right must remain intact (Leyla Şahin v. Turkey, no. 44774/98, 10 November 2005).

The COVID-19 pandemic illustrated that human rights and the effective implementation of severe measures are not mutually exclusive. The pandemic did under no circumstances provide the authorities with excessive powers, as the ECHR only includes legal tools to handle the crisis and not to violate numerous provisions which enshrine fundamental liberties.