COVID-19 e deroghe e restrizioni alla Convenzione europea dei diritti dell’uomo

The spread of the pandemic, known as COVID-19, inevitably encroaches on rights and freedoms guaranteed by the European Convention on Human Rights (ECHR), since States Parties resorted to exceptional emergency measures that affected, suspended or limited fundamental rights to reduce the risk of contagion. In time of public emergency threatening the life of the nation, the European Convention recognizes the possibility of derogating, in a temporary, limited and supervised manner, from their obligation to secure certain rights and freedoms under the Convention (Art. 15). Nevertheless, many States, even if declaring the state of emergency, preferred to restrict the enjoinment of human rights in accordance with the treaty provisions that allow such restrictions to protect public health. This is the case of Italy. On these bases, the paper first illustrates the regulation of derogations and limitations under the main international treaties on human rights; then, it analyzes whether the practice to derogate or restrict human rights in the view to limit the spread of the coronavirus is in conformity with the ECHR. In this regard, it also examines whether the measures – both of derogation or limitation in respect to the freedom of expression, of movement and to the right to personal liberty, adopted by some States – should be assessed by the European Court of Human Rights, as they do not meet the requirements of legality, necessity and proportionality required by the ECHR. Finally, the paper deals with the effect of the soft law acts issued by UN and ECHR treaty bodies to ensure that the above mentioned measures remain proportional to the threat posed by the spread of the virus and do not undermine the genuine long-term interest in safeguarding Europe’s founding values of democracy, rule of law and human rights.