Interim measures – European Court of Human Rights

Few areas of life have remained untouched by the Coronavirus (COVID-19) pandemic, which has swept across Europe and the rest of the globe over the course of nearly two years. Governments of member States have faced enormous challenges on how to respond, following the worldwide health crisis. The unexpected and unprecedented spread of the pandemic, as well as the novel nature of the disease, prompted many States to take urgent and drastic measures, in an attempt to stem the tide of infections. From a human rights perspective, States have had to strike a balance between their positive obligation to protect their citizens’ health, safety and well-being and their negative obligation not to disproportionately restrict citizens’ freedoms

The European Court of Human Rights may, under Rule 39 of its Rules of Court, indicate interim measures to any State party to the European Convention on Human Rights. Interim measures are urgent measures which, according to the Court’s well-established practice, apply only where there is an imminent risk of irreparable harm. Such measures are decided in connection with proceedings before the Court without prejudging any subsequent decisions on the admissibility or merits of the case in question.

At the height of the sanitary crisis, the Court maintained its essential activities, including the handling of priority cases and the examination of urgent requests for interim measures under Rule 39 of the Rules of Court. The six-month time-limit for the lodging of applications, under Article 35 of the European Convention on Human Rights, was suspended for applications introduced during a certain time period.

The Court received a number of interim measure requests concerning compulsory vaccination schemes (for example, Abgrall and 671 Others v. France, no. 41950/21 (press release); Kakaletri and Others v. Greece, no. 43375/21 (press release); Theofanopoulou and Others v. Greece, no. 43910 (press release)). These requests were lodged by medical professionals, employees working in medical facilities and firefighters who challenged the compulsory vaccination and/or draft legislations concerning vaccination scheme. The requests were rejected for being out of scope of application of Rule 39 of the Rules of Court. The Court also received an interim measure request, in April 2020, from an association asking the Court to urge the Government of Spain to take all necessary measures to enforce a complete lock-down in Madrid, not allowing any person to leave or enter the city. This request was rejected.

The pending case of Toromag, S.R.O. v. Slovakia, no. 41217/20 and 4 other applications concerns the issue of financial damage to businesses caused by the COVID-19 pandemic. The applicants were forced to close their business (fitness centers) by virtue of measures adopted 12 by the Slovak Public Health Authority to prevent the spread of the virus. The applicants allege under Article 1 of Protocol No. 1 (peaceful enjoyment of possessions) that they have thereby incurred pecuniary damage and lost future income as well as clientele.

The COVID-19 pandemic will likely continue to have a profound effect upon the operation of State and regional institutions, and by extension, the human rights of citizens across Europe and beyond. This article briefly illustrated the diversity of human rights issues implicated by the health crisis; the difficult balancing act faced by member States in fulfilling their positive obligations while respecting individual freedoms.

The Court’s case-law on human rights during the health crisis is still developing: moreover, with a large number of received and pending applications before it, and the continued, evolving nature of the pandemic, it is forecast to continue expanding for many years to come. In addition to this body of jurisprudence, the standards developed by other Council of Europe, regional and international bodies, as well as intra-State knowledge-sharing, can be of real value as member States look for solutions, both to enduring and evolving human rights challenges resulting from COVID-19.

https://echr.coe.int/Documents/Seminar_background_paper_2022_ENG.pdf