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Impact of COVID-19 and response measures

Impact of COVID-19 and response measures on rule of law

Reporting by ENNHRI members in 2021 pointed to a serious impact of measures taken to address the COVID-19 pandemic on rule of law and human rights protection. This year’s reporting confirms this trend is persisting, pointing to the risk of long-term challenges, despite the progressive phasing out of the most restrictive measures.

Emergency regimes and related measures

As already mentioned above in the chapter on checks and balances, ENNHRI members across the region reported in particular about a persisting impact of COVID-19 on the checks and balances systems. Among the most pressing, common concerns, ENNHRI members refer to the need to secure legality and legal basis of restrictive measures, as illustrated in detail by ENNHRI members in Belgium, Croatia, Estonia, Kosovo, Portugal, Romania, Slovenia, Spain, Turkey and Ukraine– also following, in particular in Romania and Slovenia, interventions by constitutional courts. In Georgia, Portugal and Slovenia, ENNHRI members also point, in this regard, at the fact that measures severely limiting fundamental rights entered or remained in force during periods not covered by the state of emergency, or where the pandemic alert was revoked. ENNHRI member in Bulgaria further raised specific concerns about persistence of COVID-19 measures affecting human rights that are no longer legitimate or proportionate.

ENNHRI members in Albania, Austria, Bulgaria, Croatia, the Czech Republic, Estonia, Finland, Ireland, Kosovo, Luxembourg, Northern Ireland, Poland, Slovakia, Slovenia and Spain, also variably referred to the need to ensure quality of law and policy making despite the challenging situation, especially in terms of avoiding the systemic use of accelerated procedures, ensuring more clarity, openness and transparency of regulations and provide for inclusive and genuine consultations of independent bodies, civil society organisations and experts; but also, as mentioned by ENNHRI member in Portugal, as a means to avoid delays in implementation and the insufficient or incorrect application of measures, and to prevent abuses by law enforcement authorities, signalled by ENNHRI member in Greece.

In a number of Member States, ENNHRI members further pointed to the importance of sound impact assessments and an effective review of administrative decisions to ensure proportionality: this was particularly mentioned by ENNHRI members in Austria, the Czech Republic, Germany, Ireland, Northern Ireland, Poland and Slovenia. Only in Denmark, ENNHRI’s member commended the increased proportionality of restrictions compared to the measures first introduced in 2020 and welcomed the normalisation of law-making procedures. In certain EU countries, and in particular in Germany, Romania, Slovakia and Slovenia, ENNHRI members provided examples of the important role played by constitutional courts in ensuring the review of restrictive measures.

Most significant impacts of measures taken in response to the COVID-19 outbreak on the rule of law and human rights protection

Reporting by ENNHRI members also exposed how far-reaching restrictions imposed in response to the public health emergency still affected the exercise of a number of fundamental rights in 2021. These include restrictions on freedom of assembly, as reported in Albania, Belgium, Denmark, Georgia, Hungary, Luxembourg, Northern Ireland, Norway, Slovakia and Ukraine– with ENNHRI members in Azerbaijan, Bosnia and Herzegovina, Denmark, Hungary, Kosovo, North Macedonia and Norway welcoming the progressive phasing out of assembly bans; restrictions on free movement and travelling, including access to private and public spaces and establishments, as mentioned by ENNHRI members in Albania, Azerbaijan, Belgium, Bulgaria, the Czech Republic, Denmark, Georgia, Northern Ireland, Norway, Slovakia, Slovenia, Spain and Ukraine; restrictions affecting the right to family life, in Norway and affecting childcare particularly as illustrated in the country report on the Czech Republic; disruptions on access to and delivery of justice, particularly illustrated by ENNHRI member in Bosnia and Herzegovina, Bulgaria, Greece, Kosovo and Ukraine; as well as violations of privacy and data protection derogations as reported in Albania and Kosovo.

However, the right to health, other socio-economic rights and the right to equality and non-discrimination appear as the mostly affected according to ENNHRI members’ reporting.

As regards the right to health, some ENNHRI members, for example in Greece, praised the authorities’ efforts to vaccinate the population and voiced the need to continue and strengthen efforts for a fair, affordable, timely and full access to a COVID-19 vaccine, including through the prioritisation of most vulnerable population groups by means of objective and transparent criteria. Elsewhere, ENNHRI members alerted about unequal access to vaccination especially for certain categories of people, such as foreign nationals (as reported in the Czech Republic), ethnic minorities such as Roma (as reported in the Czech Republic) and persons with serious pre-existing health conditions (as reported in Kosovo). In Ukraine, the ENNHRI member flagged violations of the rights health care and medical care of citizens living in the temporarily occupied territories. At the same time, in-depth discussions about the opportunity of compulsory vaccination took place in countries such as Greece and Luxembourg. ENNHRI members also expressed concern about unequal access to testing opportunities, especially for citizens living in the temporarily occupied territories (as reported in Ukraine) and reduced access to primary healthcare services (as reported in Bosnia and Herzegovina, Bulgaria, North Macedonia, Portugal, Romania and Slovakia).

The impact on socioeconomic rights is also a common concern of ENNHRI members across the region, as particularly illustrated in country reports on Albania, Austria, Bosnia and Herzegovina, Bulgaria, Georgia, Greece, Ireland, Kosovo, North Macedonia, Romania, Serbia, Spain and Ukraine. Common concerns related to the sharp increase of unemployment, deteriorating working conditions, the widening digital gap, obstacles to the enjoyment of the right to education and to housing as well as unequal access to unemployment and social assistance benefits. In Greece, the NHRI is particularly concerned with the widespread impact of the socioeconomic crisis, and the long-term strain likely to affect the labour market and the national system of social protection.  In Kosovo, the member criticized the late announcement of regular grants to support providers of social services. The impact on socioeconomic rights also increased, according to ENNHRI members, the psychological strain on citizens, and particularly on families and vulnerable groups, as reported in Georgia, Lithuania and Ukraine.

Lastly, ENNHRI members in a majority of Member States expressed concern for the exacerbation of systemic inequalities, discrimination and marginalization as a result of the pandemic and the measures taken to address it. A number of specific groups are said to still be particularly impacted, including minority ethnic groups (in Albania, Cyprus and Ireland), and namely Roma and Travellers (as reported in Albania, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Greece, Ireland, Slovakia) – especially as regards education and access to vaccination (in the Czech Republic), primary healthcare (in Albania and Bulgaria), and widespread segregation practices and mass quarantines (in Slovakia); women, children and youth (as reported in Albania, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Cyprus, the Czech Republic, Georgia, Ireland, Kosovo, Montenegro, Northern Ireland, North Macedonia, Norway, Portugal, Romania, Slovakia, Spain and Ukraine); LGBTI+ people (as reported in Greece); victims of domestic violence (as signalled in Bulgaria, Ireland, Kosovo, Montenegro and Romania); persons in a situation of poverty, precarious employment or homelessness (as reported in Albania, Belgium, Croatia, Cyprus, Ireland, Northern Ireland, Portugal, Spain); the elderly (as reported in Belgium, Bulgaria, Croatia, Cyprus and Ireland); persons with disabilities (as reported in Azerbaijan, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Georgia, Greece, Ireland, Kosovo, Northern Ireland, Norway, Romania, and Ukraine); people with chronic diseases and/or mental health issues (Bosnia and Herzegovina and Lithuania); detainees and other persons deprived of liberty (as reported in Austria, Azerbaijan, Cyprus, Greece, Ireland, Kosovo, Liechtenstein, Lithuania, Northern Ireland, Romania and Turkey); refugees, asylum-seekers and migrants (as reported in Azerbaijan, Bulgaria, Cyprus, Greece, Northern Ireland and Romania). The introduction of immunity certificates is also seen as a potential measure that might deepen inequalities by ENNHRI members in Belgium, Croatia, Hungary, Romania and Spain.

Government initiatives to mitigate challenges 

Many ENNHRI members welcomed State authorities’ efforts to contain the pandemic and mitigate economic and social consequences. Notable examples are the public campaign to reduce debts towards public institutions in the Czech Republic and the suspension of energy and water cuts in Belgium and Spain. In Kosovo, additional funds were allocated for health and safety institutions and deadlines for the use of expired documents were extended as reported by the ENNHRI member in the country. ENNHRI members in Albania and Azerbaijan also commended efforts to strengthen social protection, while the Ukrainian member pointed out efforts to improve health care capacities and facilities.

A number of financial support schemes were introduced by governments across the region, such as, in Northern Ireland, a self-employment income support scheme to support businesses impacted by COVID-19 and local vouchers for all residents over the age of 18 to spend within local businesses. However, some ENNHRI members noticed gaps in particular in terms of access to measures of financial assistance, including in Greece, Portugal and Slovakia, and low awareness and take-up by beneficiaries (such as in Belgium).

In some countries, ENNHRI members also alerted about the risk that inadequate responses to the pandemic lead to lower public trust (as mentioned by ENNHRI member in Croatia and Latvia) and the further polarisation of society, which may be exploited by extremist movements (as signalled by ENNHRI members in Germany and Romania). In Kosovo, ENNHRI member alerted about how the pandemic led to delays in the implementation of the legislative reform agenda.

NHRIs’ role and related challenges

ENNHRI members offer many examples of the key role played by NHRIs in dealing with the impact of the COVID-19 pandemic on rule of law and human rights protection.

NHRIs have been drawing attention to problematic issues and advised and prompted follow-up action by State authorities to address them: this includes the drawing up of a checklist on human rights impact assessments in Belgium, as well as the provision of opinions and advice taking many forms in several other countries including Albania, Austria, Azerbaijan, Bulgaria, Croatia, Cyprus, the Czech Republic, Estonia, Finland, Georgia, Germany, Hungary, Ireland, Kosovo, Latvia, Luxembourg, Northern Ireland, North Macedonia, Norway, Portugal, Romania, Slovakia, Slovenia, the Russian Federation and Ukraine. In some countries, such as Lithuania and Serbia, efforts were carried out in cooperation with international partners.

NHRIs also engaged in regular and close monitoring of the impact of the pandemic and measures taken to address it on rule of law and human rights protection, as reflected for example in the work of the COVID-19 Human Rights Observatory set up by the NHRI in Greece, or in the monitoring work focussed on persons in situations of vulnerability in Croatia, Cyprus, Northern Ireland and Norway, detainees and persons deprived of liberty in Austria, Azerbaijan, Belgium, Hungary, Ireland, Lithuania, North Macedonia and the Russian Federation, of people with disabilities and people in situation of poverty in Belgium and Ireland and of minorities in Albania, Germany and Slovakia.

ENNHRI members in Azerbaijan, Belgium, Bulgaria, Croatia, Estonia, Latvia, Northern Ireland and North Macedonia particularly invested in ensuring accessible communication on public interest information and awareness raising on the pandemic and measures taken to curb or mitigate its consequences, including testing and vaccination campaigns and social protection measures. Elsewhere, such as in Liechtenstein, Northern Ireland, North Macedonia and Portugal, ENNHRI members are working on studies to assess the medium- and long-term impact of the pandemic on human rights and rule of law.

While NHRIs’ efforts are a tangible contribution in terms of monitoring, addressing and mitigating the challenges brought by the pandemic to rule of law and human rights, many ENNHRI members signalled challenges in carrying out this work.

These include lack of cooperation and follow-up by national authorities, as reported in Luxembourg and Slovenia; but also challenges related to the impact of the pandemic on institutions themselves, including in terms of workload (as reported in Belgium, Bulgaria, the Czech Republic, Portugal, Slovenia and Spain); limitations on contacts with the public, stakeholders and authorities and on the possibility to hold in-presence meetings and events (as reported in Austria, the Czech Republic, Denmark, Finland, Germany, Greece, Luxembourg, Slovakia, Slovenia, Moldova, Northern Ireland and North Macedonia); and restrictions on the possibility of carrying out onsite inspections (as reported in Belgium, Denmark, Greece, North Macedonia, Serbia and Ukraine). Against this background, ENNHRI members overall strived to adapt their work and operations, including by investing in their ICT systems, adapting their monitoring work to public health requirements and ensuring flexibility in terms of staff working conditions – with most of them mentioning that this allowed them to maintain quality and efficiency in their day-to-day work.

Key recommendations

ENNHRI members’ reporting point to continued impacts of COVID-19 and of the measures taken to address the pandemic on rule of law and human rights protection. Common concerns include the continued use of emergency law-making procedures and the potential long-term impact on checks and balances as well as the persisting impact on the enjoyment of human rights and in particular the right to health, socio-economic rights and the right to equality and non-discrimination.

As outbreaks of COVID-19 may continue, and in light of the identified medium and long-term consequences of the public health crisis and measures taken to address it on rule of law and human rights protection, ENNHRI and its members recommend to national authorities and regional and international actors to work together, in close cooperation with ENNHRI and NHRIs, to:

1. Ensure a strong legal basis for the adoption of restrictive measures in situations of public health emergency, including by revising current emergency regimes or establishing new legal frameworks if needed;

2. Take steps to ensure that emergency law-making is subject to a sufficient degree of democratic oversight, including through parliamentary scrutiny, genuine and effective public consultations with rightsholders, stakeholders and independent bodies such as NHRIs, dissemination of clear, accessible and timely information and effective constitutional and judicial review;

3. Secure thorough human rights impact assessments, including a specific attention to vulnerable and marginalised groups, and a regular evaluation of restrictive measures in force and their practical application in the light of the principles of legality, legal certainty, necessity and proportionality. This should be done also by seeking the advice and guidance of NHRIs and other independent actors, and may be supported by the setting up of specialist consultative and monitoring bodies at both national and local levels;

4. When planning, designing and implementing responses and mitigating measures, pay increased attention to challenges faced by vulnerable and marginalised groups, to be reflected in positive measures, inclusive consultations, the adequate provision of information, and steps to promote access to justice and effective remedies against undue restrictions or unintended consequences of restrictive measures;

5. Integrate in recovery and resilience plans specific actions to address the impact of the pandemic on socio-economic rights, including the right to health, the right to work and to fair working conditions, the right to education, the right to housing and the fight against poverty and social exclusion;

6. Support the efforts of independent monitoring bodies including NHRIs and of civil society organisations and HRDs to monitor, report on and contribute to address challenges to rule of law and human rights protection, and genuinely cooperate with them, including by ensuring access to information and authorities and taking into due consideration their recommendations.

NHRIs, individually and collectively through ENNHRI, will continue to actively monitor and report on COVID-19 related developments relevant to rule of law and human rights protection, to inform and advise responses by national, regional and international actors (including through engagement with the Council of Europe drafting group on human rights in situations of crisis), and to map and raise awareness about efforts and good practices by NHRIs and civil society to respond and mitigate challenges.