Thursday 3 December 2020

ECHR Decides the First Case Regarding Covid-19 Measures

The pandemic Covid-19 has affected the entire globe. Yet, the States have had different responses to this public health emergency. Measures vary from full to partial to ‘intelligent’ to no lockdown. Each response has been guided by different considerations, some paying more attention to public health, others to economy. From a human rights perspective, some States resorted to restricting human rights while others derogated from them.

People have complained about these various Covid-19 measures for being discriminatory, harsh or lenient, effective or ineffective and thus blamed governments and other institutions for not doing their job properly. Such cases are already reaching national and regional courts.

On 3 December 2020, a three judge Committee of the European Court of Human Rights decided (decision in French is here, and press release in English is here) in the case of Le Mailloux v. France on the adequacy of French Covid-19 measures. The applicant, a French national, invoking Articles 2, 3, 8 and 10 of the Convention complained of the "failure by the State to fulfil its positive obligations to protect the lives and physical integrity of persons under its jurisdiction. He complained in particular of restrictions on access to diagnostic tests, preventive measures and specific types of treatment, and interference in the private lives of individuals who were dying of the virus on their own".

The Court found that the applicant had not showed that he personally had been denied assistance or care in the context of the impugned general health measures. The Court ruled that if he were to have been directly affected by such measures, he should first contest the compatibility of such refusal with the Convention in the domestic courts.

In light of the above, the Court decided that the applicant complained in abstracto about the Covid-19 measures taken by the French Government. In particular, he had failed "to provide any information about his own condition and had failed to explain how the alleged shortcomings of the national authorities might have affected his health and private life". 

In these circumstances, the application was considered to amount "to an actio popularis and the applicant could not be regarded as a victim, within the meaning of Article 34 of the Convention, of the alleged violations".

This is the first decision of the ECtHR on Covid-19 measures and certainly will not be the last of cases to question the States’ responses to Covid-19.