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The Principle of Proportionality Toward Risk Prevention— Based on the Judgment Logic of European COVID-19 Derogation Measures
May 23,2022   By:CSHRS
The Principle of Proportionality Toward Risk Prevention
 
Based on the Judgment Logic of European COVID-19 Derogation Measures
 
FAN Jizeng* & WANG Yuhong**
 
Abstract: The COVID-19 pandemic has brought legal challenges to the containment measures adopted by European countries. During the outbreak and containment phase of the pandemic, most European countries adopted measures such as lockdowns and mandatory home quarantines based on the principle of risk prevention. However, Article 15 of the European Convention on Human Rights and judgments by the European Court of Human Rights require such measures to comply with the principle of proportionality. In view of this, this article examines the European Court of Justice’s loose judgments on the derogation measures during the pandemic, and the European Court of Human Rights’ situational judgments in this regard. Based on the analysis of the legitimacy of the principle of risk prevention and the principle of proportionality in responding to public health emergencies, this article prudently examines and predicts the trend of applying the principle of proportionality of risk prevention for the European COVID-19 derogation measures from three perspectives of legitimacy, necessity, and feasibility.
 
Keywords: COVID-19 derogation measures · the principle of risk prevention · the principle of proportionality · the principle of proportionality of risk prevention
 
I. The Challenges Posed by the Derogation of Rights in the Context of the New Normal of the COVID-19 Pandemic 
 
According to statistics from the Johns Hopkins Coronavirus Resource Center, the number of global COVID-19 infections and deaths exceeded 181 and 3.92 million, respectively, as of June 28, 2021.1 Although the number of vaccinations in European countries has gradually increased, virus mutations and their spread happen faster than expected. It is difficult to determine when European society will be able to return to normal. Most European countries have temporarily lifted COVID-19 restrictions, though the Delta and Delta+ variants are more infectious. This might force some severely affected European cities to extend lockdowns or resume lockdown measures at any time. Normalized pandemic prevention and control is an issue that European governments must deal with. Before the spreading of the Delta variant, some European governments decided to extend public health emergencies2 or restart city lockdowns and curfews in late 2020 and early 2021.3 Thanks to increasing vaccinations and the need to restore the economy, most EU countries decided to gradually restore freedom of movement between June and July 2021.4 However, countries cannot afford to ignore the unknown risks COVID-19 might bring.5
 
To deal with the constant threat of COVID-19, governments around the world must carefully balance the maintenance of public health and the protection of personal freedom, with the restoration of economic activities. Although strict risk prevention measures might reduce the risks as much as possible, personal freedom will inevitably be severely restricted as a result. Extreme risk prevention measures will also have negative impacts on economies.6 The principle of proportionality is the usual way to review legislative and administrative decisions in the context of the contemporary European constitutional order.7 The United Nations Human Rights Committee requires in its General Comment No. 29 that signatory states must comply with the principle of proportionality when derogating from the rights of the Convention in states of emergency.8 However, David Dyzenhaus finds that “the sophisticated version of the doctrine of the proportionality test in the constitution and human rights law” in the context of the state of emergency “has not been developed.”9 Due to the fear of the threat of the COVID-19 pandemic to personal life and safety and the impact on limited medical resources, as well as the fact that scientific research falls behind or is uncertain, the EU and some of its member states have formulated radical derogation measures based on the precautionary principle.10 However, the unrestricted use of the precautionary principle heightens the risk of the proportionality principle losing its function of restraining public power. This will not only lead to the principle of proportionality not being able to restrict effectively the government’s derogation measures in a public health emergency but will also correspondingly lower the threshold for governments to justify their derogation measures. To minimize the encroachment of the precautionary principle on the principle of proportionality, it is necessary to have a prudent look at the possible trend of the “principle of proportionality for risk prevention” as a derogation measure for Europe’s pandemic control, while acknowledging the tension between the two principles.
 
First, this article explains the normative definition of the precautionary principle and the inherent tension between the precautionary principle and the principle of proportionality under the framework of EU law. Second, this article discusses the judicial basis of the European Court of Human Rights (the Human Rights Court) under the framework of the European Convention on Human Rights to restrict personal freedom to deal with the spread of disease; and reviews the judicial path of signatory states to implement derogation measures in a state of emergency. Third, this article specifically analyses the two judicial paths of the principle of proportionality in the compliance review of the European Court of Human Rights. Finally, in view of the current review trend of pandemic derogation measures in Europe, this article attempts to reconcile the precautionary principle and the principle of proportionality and provides a prudent look at the potential trend of the application of the principle of proportionality for risk prevention.
 
II. Loose Review: The European Court of Justice’s Judgment Attitude on Pandemic Derogation Measures
 
A. The definition and expanded application of the precautionary principle
 
Under the framework of EU law, the precautionary principle is defined as stricter restrictive measures the government usually takes to avoid the occurrence of harm as an effort to protect public health and ensure a good environment when scientific research has not yet reached a consensus or definitive conclusion on the harmful consequences of a particular situation.11 This definition highlights the protection of public health as a legitimate basis for the precautionary principle.12 Especially, facing uncertain public crises, the EU law requires the government to evaluate, control, and avoid risks and damages based on existing scientific research reports.13 However, the definition of the precautionary principle sets the priority of the right to life and public health at the normative level. The EU General Court finds that “in the process of balancing the protection of the right to health and economic freedom... policymakers inevitably tend to protect the right to health.”14
 
Although the EU and most of its member states did not use the precautionary principle as an open legislative guiding principle when making earlier COVID-19 pandemic prevention and control measures, or explicitly mention the Siracusa Principles that guide countries on how to restrict international human rights norms, EU legislation still provides space for the EU and its member states to adopt risk preventive measures in pandemic prevention and control. Article 191, Paragraph 2, of the Treaty on the Functioning of the European Union, stipulates that, when formulating environmental protection legislation and policies and preventive actions, the EU and its member states shall establish the precautionary principle and preventive actions eliminating all certain and uncertain risks as a benchmark for ensuring high standards to ensure environmental quality in the EU. The European Court of Justice holds that: “guided by this principle, the EU and its member states should do their utmost to prevent, reduce and eliminate pollution and disturbing hazards at the beginning... and eliminate identified risks.”15 The interpretation of the European Court of Justice seems to have expanded the scope of precautionary measures to include not only those environmental risks that are not definite or have not yet been scientifically agreed but also the regulatory results of definite risks. This impacts the traditional definition of the precautionary principle. The scope of application of the precautionary principle has expanded from just environmental protection to all policy fields related to the protection of public health.16
 
B. The loose combination of the precautionary principle and the proportionality principle
 
In the absence of definite scientific conclusions, the precautionary principle might be used by public authorities to justify arbitrary restrictions on the freedoms and rights of individuals. According to the bulletin of precautionary principle issued by the European Commission in 2000, EU institutions and member states must formulate risk prevention measures that “must be proportional to their level of protection” and determine the scope and degree of their application after considering “potential benefits and costs.”17 Although EU bulletins are only soft guides, they establish procedural requirements. Before formulating risk preventive measures, all EU organizations should evaluate the risk level and calculate the positive and negative impacts on society of the measures to be adopted.18 This means that the principle of proportionality and the precautionary principle needs to be closely integrated, with the former being one of the key considerations for evaluating the legality of the latter.19
 
The European Court of Justice has also considered the construction of the relationship between risk preventive measures and the principle of proportionality on the normative level. In its judgment on the Pesce case, the European Court of Justice stated: “the principle of proportionality must be considered in the application of the precautionary principle, or risk prevention measures... should not exceed the limit of the appropriateness and necessity desired by the legislation to achieve the goal. If there are multiple alternative appropriate measures, the government must choose the one that least infringes on constitutional rights. Negative influences that are out of proportion to the desired result shall be prohibited.”20 Juliane Kokott, a judge at the Court of Justice of the European Union, believes that: “The most important thing is to combine the application of the precautionary principle with the evaluation of the principle of proportionality.”21 In her view, uncertainty will “affect the way in which the principle of proportionality is applied.”22 Therefore, the path to a good combination of the two principles is to conduct a comprehensive assessment of the risks of all relevant factors.23 Regardless of the impact of risk prevention measures, an assessment of rationality and predictability of risk prevention measures based on the principle of proportionality has become a universal requirement of EU law. In the judgment of the Spanish herbal medicine case, the European Court of Justice requires member states to conduct independent pharmacological analysis of the various ingredients contained in herbal medicines in the absence of definite scientific conclusions of herbal medicines to predict whether herbal medicines are harmful to the human body.24
 
However, in other cases, the European Court of Justice has not provided a sophisticated review path but allowed the European Commission discretionary power to choose the best plan to prevent risks in the absence of definite evidence.25 This has led to public doubts about whether the principle of proportionality can be used against the precautionary principle in cases involving public health and safety. For example, in the Etimine case, the European Court of Justice refused to review the legality of the European Commission’s decision to ban the production of goods containing certain chemicals. Although the relevant scientific research results have not yet been confirmed beyond question, the European Court of Justice believes that, because the dispute, in this case, is closely related to the protection of important personal health rights, the Court will respect the current decision of the European Commission unless the plaintiff can prove that the current scientific research conclusions are obviously defective.26
 
The European Court of Justice generally allows EU member states and administrative agencies to enjoy greater discretion when making risk prevention policies with regard to public health. As far as pandemic prevention and control is concerned, even if the European Commission has the power to declare a public health emergency in the EU due to the spread of infectious diseases in accordance with Decision No 1082/2013/EU of the European Parliament and the Council on Serious Cross-Border Threats to Health,27 member states always have the power to choose their response measures according to Article 168, paragraph 1 of the Treaty on the Functioning of the European Union. The decentralization of authority between the EU and member states means that the European Court of Justice does not have the power to review structurally the legality of public health emergency measures taken by member states. In addition, Article 52 of the Charter of Fundamental Rights of the European Union lacks special regulations for derogation of basic rights in states of emergency, which means that the European Court of Justice has no power to conduct effective judicial reviews of the pandemic prevention and control measures taken by EU member states. However, this structural constraint cannot prevent us from studying the European Court of Justice’s attitude towards how member states apply risk prevention measures in emergencies. In some judgments involving food safety, the European Court of Justice reviewed emergency bans on the movement of goods issued by the European Commission to specific manufacturers. Normally, the European Court of Justice does not consider the urgency degree of potential risks but agrees to implement immediately the European Commission’s decision to ban the circulation of goods, thereby disproportionately depriving individuals of the right to defences provided for by Article 41, paragraph 2, of the Charter of Fundamental Rights of the European Union.28
 
III. Scenario Reviews: The European Court of Human Rights’ Judgment Attitude on the Pandemic Derogation Measures
 
The European Court of Human Rights has a more focused and professional role than the European Court of Justice in reviewing the legality of derogation measures in states of a public health emergency. Article 15 of the European Convention on Human Rights stipulates that the degree of derogation of the rights in a signatory state must be consistent with the objective emergency. Although legislatively the European Convention on Human Rights uses the word derogation to mean that a signatory state has a bigger space than normal for limiting rights stipulated in the Convention in states of emergency,29 that does not mean it is not subject to the principle of proportionality and can arbitrarily determine the scope of derogation rights.30 During the COVID-19 pandemic, Martin Scheinin, former UN Special Rapporteur on the promotion and protection of human rights, discovered that some EU countries had abused the power of emergency and used emergency as a tool for “suppression of dissenting opinions, dissolution of parliaments, postponement of elections, and even consolidation of personal authority.”31 This conflicts with the principle of effet utile as stipulated in the European Convention on Human Rights. The fact that the power of emergency is abused proves the necessity of the Human Rights Court to reserve the authority to review the signatory state’s derogation measures in states of emergency. Considering the widespread use of lockdowns and quarantines in European countries as derogation measures, it is necessary to examine whether the standards determined by the European Court of Human Rights in the case of Enhorn comply with the requirement of Article 5 of the European Convention on Human Rights for restrictions on personal freedoms. Additionally, by examining the judgments of the Human Rights Court on a signatory state implementing derogation measures in states of emergency, we can make a preliminary decision on whether existing precedents can guide signatory states to formulate derogation measures for pandemic prevention and control.
 
A. Can Article 5 of the European Convention on Human Rights be used as the basis for the judgment of lockdowns?
 
During the pandemic, the governments of most signatory countries issued lockdown orders, which restricted the right to personal freedom provided for in Article 5 of the European Convention on Human Rights and the right to freedom of movement provided for in Protocol No. 4 of the European Convention on Human Rights. Although countries view differently the legal nature of the “lockdown order,” they have all implemented restrictions in an unprecedented way on individual freedoms and rights. Due to these lockdowns, the personal freedom of movement of infected people or people suspected of infection is restricted, healthy people also need to observe compulsory quarantines at home.
 
Since the beginning of the pandemic, there has been controversy over whether compulsory quarantine of healthy people at home is necessary to control the pandemic. The European Court of Human Rights has not yet heard cases in which signatory states are accused of violating the requirements of the European Convention on Human Rights when implementing COVID-19 prevention and control measures. However, the case of Enhorn can nonetheless inspire studies related to the relationship between infectious disease prevention and control measures and human rights protection. The Human Rights Court has held that forcibly quarantining HIV carriers in hospitals and restricting their activities to certain times and places against their wishes violated Article 5 of the European Convention on Human Rights. 32 Although Article 5, paragraph 1, of the European Convention on Human Rights, allows signatory states to quarantine individuals who spread the virus, the Human Rights Court adopts a narrower interpretation that takes into account applicable preconditions and specific consequences, requiring signatory states to consider (1) whether the spread of the virus will threaten public health and safety; and (2) whether any alternative measures achieve the same purpose without restricting individual rights as much as quarantine.33
 
Can the case of Enhorn and the two standards set by the Human Rights Court guide signatory states to take into account the protection of human rights in the fight against COVID-19? Obviously, the HIV carried by the plaintiff, in this case, is fundamentally different from COVID-19. HIV is transmitted mainly through blood and unsafe sex, while the World Health Organization has confirmed that COVID-19 is mainly transmitted through respiratory droplets.34 Asymptomatically infected people can very easily transmit the virus to other people. When the WHO declared that COVID-19 constituted a public health emergency of international concern (PHEIC), the death rate of people infected with COVID-19 in Wuhan, China reached 4 percent.35 According to an early WHO report, the reproductive number (R0) of the virus was between 1.5 and 2.4, and 25 percent of the infected were severely ill patients.36 Obviously, these scientific discoveries were sufficient to prove that the existence and spread of COVID-19 constitute a “threat to public health and safety.” In the early stage, when scientists from around the world had not yet traced the origin of the virus and lacked effective vaccines and medical drugs, quarantining patients and suspected cases was necessary to suppress the rapid spread of highly lethal and infectious viruses.
 
However, the case of Enhorn only provides a legal justification for quarantining patients and suspected infected people. On the contrary, the Council of Europe Parliamentary Assembly found:37 “The lockdown measures in European countries do not restrict the rights of special groups of people within a specific time and geographic range, but instead apply to all people indiscriminately and for a long time.” An objective textual interpretation and relevant legislative records cannot support the idea that Article 5 of the European Convention on Human Rights provides legal justification for signatory states to deprive individuals and groups of their freedom rights indiscriminately and for a long time.
 
However, the abovementioned case can only prove that Article 5 of the European Convention on Human Rights cannot be used as the normative basis for restricting healthy people during the pandemic. The European Court of Human Rights rules that signatory states can take derogation measures based on the needs of the situation without having declared a state of emergency. In the case of Brogan, the Human Rights Court allowed the signatory states to implement normalized restrictions that exceed the norms permitted by the European Convention on Human Rights without having declared a state of emergency. In handing down the judgment, the Human Rights Court did not consider whether the signatory state issued a derogation statement in accordance with its obligations under international law but instead decided whether the measures that severely restricted the rights of the Convention were appropriate based on the security crisis and the threat of terrorism faced by the signatory state.38 Oren Gross believes that such judgment logic is a distortion of Article 5 of the European Convention on Human Rights, forcing it to provide legal space for signatory states to derogate from the rights of the Convention in states of emergency that were exceptions. The Human Rights Court actively used a “contextual approach” to replace Article 15 of the European Convention on Human Rights, allowing signatory states to restrict the rights of the Convention.39 The disadvantage of the “contextual approach” is that it weakens the constraints of normal laws and regulations on administrative power and softens the minimum standards of convention norms under the norms of normal law. However, the preconditions for applying the “contextual approach” in the case of Brogan are only limited to the non-normal state in which social conditions continuously deteriorate or external threats have not yet been removed. The length of time the country faces a threat and the level of fear the people feel are the main criteria for judging whether the model can be activated.
 
B. The Human Rights Court’s judicial path for applying Article 15 of the European Convention on Human Rights
 
If the general norms of the European Convention on Human Rights are interpreted as the compliance basis for signatory states to implement emergency measures, this will inevitably lead to a distorted interpretation of the provisions of the Convention. The promotion of this judicial path will cause the entire order rule-oflaw to lose its predictability and certainty simply to meet the needs of the moment, rendering the norms of the Conventions unable to restrain government behaviour.40 Alan Greene believes that “If we can analyse all matters related to the restriction of Convention rights using the normal principle of proportionality... then the derogation clauses provided for in Article 15 of the European Convention on Human Rights will no longer be applicable, thus normalizing emergency powers under exceptional conditions.”41
 
The judgment of the Brogan case does not mean that the Human Rights Court has ignored the essential difference between Article 15 of the European Convention on Human Rights and other provisions in terms of the degree of restriction of rights. To make up for the shortcomings of derogation measures formulated by signatory states, the Human Rights Court directly judges ex officio whether the existing situation constitutes a state of emergency in some cases, so as to determine whether signatory states can restrict Convention rights more than normal. In the judgment of the case of Brannigan & Bride, the two parties disputed whether the refusal of the signatory state to allow the terrorist suspect in custody to meet with a judge within four to six days constituted a violation of Article 5, paragraph 3 of the European Convention on Human Rights. Considering that the United Kingdom had already withdrawn its declaration of a state of emergency, the UK government did not advocate that the Human Rights Court should hear the case under the framework of Article 15 of the Convention. However, the Human Rights Court determined that “there was a state of emergency that threatened public safety when the case occurred” based on the official documents of the UK government and on the fact that the Irish Republican Army (IRA) posed as a constant threat to Northern Ireland.42 The judgment of this case seemed to encourage the signatory state to take derogation measures directly, without the need to provide a declaration of derogation to the Council of Europe.
 
So far, derogation of Convention rights has mainly occurred in areas related to national security, such as war, anti-terrorism, and the elimination of the threat of a coup d’état.43 The Human Rights Court usually allows signatory states a large margin of discretion when judging the degree of threats to national security and reviewing the compliance of emergency measures.44 In the judgment of Ireland vs. the United Kingdom, the Human Rights Court adopted a more relaxed judicial review and held that the signatory state has the right to initiate derogation measures in response to terrorism under the framework of Article 15 of the European Convention on Human Rights. Generally speaking, when a signatory state faces threat by terrorism against the existing social order, the Human Rights Court usually does not strictly review the compliance of the derogation measures, but instead believes that “the government of a signatory state can better decide than the Court whether it is threatened and what kind of derogation measures should be taken.”45
 
However, the margin of state discretion is always in conflict with the effective protection of human rights. This is particularly evident in the judgment of this case. Although a wider margin of discretion means that signatory states can freely choose effective response measures based on the objective situation, this does not mean that they enjoy an unrestricted margin of discretion under the framework of the Convention.46 The Human Rights Court stated in its judgment: “States do not enjoy unrestricted powers when making and implementing emergency measures. The Human Rights Court has always held the power to examine whether the signatory state’s measures in response to crises exceed the rule stating that the measures must ‘strictly conform to the emergency’ as stipulated in the Convention... The Human Rights Court still has the power to define the margin of discretion of the signatory state.”47 Obviously, the contradiction between the judgment path and the words of this case demonstrates the Human Rights Court’s effort to prevent the implementation of strict judicial review of the signatory states from undermining its ability to respond to crises and shows the determination of the Court to protect the rule of law and order in Europe. Although scholars represented by Oren Gross believe that the ambitions expressed by the European Court of Human Rights are nothing more than “unrealistic rhetoric,”48 this judgment truly reflects the European Court of Human Rights’ vigilance against “states of emergency” being turned into arbitrary derogation from Convention rights by signatory states.
 
Since the judgment of the Lawless case in the 1950s, the Human Rights Court has continued to refine and improve the judicial standards that define the elements that constitute a state of emergency and restricted the abuse of the right of emergency by signatory states by reviewing specific elements. In the case of Lawless, the Human Rights Court ruled that the threat to “life of the nation” stipulated in Article 15 of the Convention specifically refers to the exceptions arising out of national crises and emergencies that have “affected all people and posed a threat to the organized community life.”49 When examining the case of derogation of basic rights caused by the military coup in Greece, the then European Commission on Human Rights stipulated that in accordance with Article 15 of the European Convention on Human Rights, the derogation of basic rights must meet four conditions: (1) it must be realistic and obvious; (2) it must affect the life of the entire nation, not just the political security of the national government; (3) the organized social life within the society faces constant threat; (4) and all forms of crises or external threats are non-normal and normal restrictive measures do not work.50
 
In the cases where suspect terrorists have their fair trial rights derogated, the Human Rights Court repeatedly used the trial path established in the Brannigan & McBride case, that is, when reviewing the compliance of specific emergency measures, the Court focuses on “considering some relevant factors, such as the nature of the derogated Convention rights, the cause of the emergency, and the duration of the emergency.”51 Because some Convention rights are highly moralistic and personally relevant, emergencies cannot be dealt with effectively through the derogation of these rights. Therefore, they are deemed to be non-derogable rights. When reviewing emergency measures, the Human Rights Court not only needs to consider the continuously changing social background and the country’s political context, it is also is bound by precedents. Specifically, the European Court of Human Rights must take into account the dilemmas faced by signatory states in a state of emergency and monitor whether the derogation measures the states adopt can truly cope with external threats. Defining the minimum standards for the inviolability of Convention rights has become a key part of the Human Rights Court’s review of the compliance of the derogation measures. Especially in the field of protecting the right to personal freedom, a refusal to provide any judicial remedy procedures for detainees obviously violates the core of the right and damages the order and value of the rule of law. Although the signatory state can extend the period of custody based on the necessity of an emergency, custody that is not guaranteed by habeas corpus is at risk of violating the Convention.52 If the signatory state cannot justify its refusal to provide detainees with judicial remedies and habeas corpus, it will inevitably risk breaching the obligations of the Convention.53
 
IV. The Judicial Path of the European Court of Human Rights Applying the Principle of Proportionality to Review Derogation Measures
 
A. The case of A & Others: The Human Rights Court clarifies the judicial path for applying the principle of proportionality
 
Defining the core scope of Convention rights can only meet the minimum standards for safeguarding the rights and values of the Convention. The Human Rights Court needs to set up a more refined and clearer review path within the framework of Article 15 of the European Convention on Human Rights. Defining the margin of discretion of signatory states and reviewing the compliance with the margin of discretion are the key links. The complexity and unpredictability of the state of emergency make the Human Rights Court unable to set up a unified model that balances the maintenance of public safety and the protection of individual rights.54 Adopting a loose review model and fully agreeing with the derogation measures of signatory states makes human rights easily fall victim to the governments’ response to the crisis. According to Article 15 of the European Convention on Human Rights, the signatory states “may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation,” it can be seen that the drafters of the Convention are wary of the possibility that the state of emergency might be used as an excuse to derogate Convention rights arbitrarily. The United Nations Human Rights Committee’s General Comment No. 29 has also made “geographic coverage”, “material scope”, and the authenticity and effectiveness of emergency measures the core requirements for reviewing the compliance of any derogation of rights. Therefore, the principle of proportionality has become a universal norm for reviewing the compliance of emergency measures. If the comment of the Human Rights Committee is to be implemented, then the principle of proportionality will become the decisive factor.55
 
Regrettably, the European Court of Human Rights rarely demonstrates clearly its reasons for balancing and the methods of applying the principle of proportionality in its judgments. The case of A & Others is the only judgment in which the Human Rights Court explicitly declares that the signatory state violated the principle of proportionality by derogating from the Convention rights. However, this is not a judgment independently made by the European Court of Human Rights but is one that concurs with the reason of the judgment by Judge Lord Hoffmann of the UK Supreme Court in the Belmarsh case. Lord Hoffmann believes that different from the political intention of the German Nazi Party to subvert the UK’s liberal democratic order, terrorists only want to harm and destroy the lives and property of citizens. This is fundamentally different from “threatening the life of the nation” as defined in the European Convention on Human Rights. Terrorists only want to destroy the life and property rights of the UK people. After agreeing with Lord Hoffmanns analytical reasons and conclusions, the Human Rights Court directly declared that the derogation measures that denied foreign terrorist suspects in long-term custody the right to meet with judges violated the principle of proportionality.
 
In the judgments involving derogation of the rights of terrorist suspects, the Human Rights Court repeatedly used the key points in the Brannigan & McBride case, that is, when reviewing the compliance of specific emergency measures, the Court has focused on “considering some relevant factors, such as the nature of the derogated Convention rights, the cause of the emergency and the duration of the emergency.” This means that the Human Rights Court will adopt judicial reviews of different intensities due to differences in rights derogation and the duration of the state of emergency. Specifically, the Human Rights Court must take a dynamic approach to the examination of the legitimacy and necessity of derogation measures, and balance the pros and cons of derogation measures for maintaining national security and violating individual rights.
 
B. Maintaining the value of human rights: The judicial path of the principle of proportionality tacitly declared by the Human Rights Court
 
In the recent case in which the Human Rights Court reviewed derogation measures of the Turkish government, the Court examined whether derogations of Article 5 of the European Convention on Human Rights met the requirements from a procedural perspective and to use a subsumptive approach to decide whether derogations jointly damage the value core of Convention rights. However, this judicial review model ignores whether the substantiveness of derogation of basic rights is proportional to the crisis facing the nation. In the case of Alparsan, the Human Rights Court found that in the legal provisions of the new Criminal Procedure Law promulgated after the military coup d’état which allowed the government’s security department to imprison judges in a state of emergency, the Turkish government ignored the independent judicial system and the protection of the right to life of judges as called for in the European Convention on Human Rights.56 In the Mehmet case, the Human Rights Court warned the Turkish government not to abuse pre-trial detention procedures even in a state of emergency. Whether in a state of emergency or not, pretrial detention can only be applied when all other alternative measures fail to guarantee the implementation of the proceedings.57 In the Base case, the Human Rights Court’s review of the Turkish government’s emergency measures increased in intensity as the state of emergency continued.58
 
Because Turkey has a political and cultural background that is special among all the parties to the Convention, it is not yet certain whether the review standards set by the European Court of Human Rights against Turkey can be generalized to other signatory states. Gross has found that the results of the reviews and intensity with which the European Court of Human Rights reviews the emergency measures of a signatory state are closely related to the country’s human rights evaluation.59 Usually, even at the stage of reviewing relevant facts, the Human Rights Court decided that derogation measures implemented by the Turkish government do not meet the requirements of the Convention. For example, the Human Rights Court found that the purpose of the Turkish government’s derogation measures was not solely to respond to external threats but to suppress freedom of expression60 and deprive people of personal freedoms provided for by Article 5 of the European Convention on Human Rights.61
 
The two judgments show that the Human Rights Court failed to convincingly show balanced arguments and the refined application of the principle of proportionality in its judgments. However, the above cases nonetheless highlight the review mode of the Human Rights Court when applying the principle of proportionality: The nature of rights derogation, the cause of the emergency, and the duration of the state of emergency are key dimensions for reviewing the proportionality of derogation measures; in specific cases, the scope of the core of inviolable convention rights is defined through an objective value order; and reviews are conducted to decide whether the purpose and implementation consequences of derogation measures violate the human rights values upheld by the European Convention on Human Rights and whether the government of a signatory state has seriously considered the necessity to continue derogation measures based on new information and circumstances.62 Undeniably, the European Court of Human Rights has not yet reviewed the compliance of derogation measures implemented by signatory states in a public health emergency.63 Because emergencies of different types have different characteristics, simply adopting the emergency military measures involved in the above cases in derogation measures for public health emergencies may negatively impact the pandemic prevention and control measures by the government.64 Therefore, identification of different types of emergencies is a prerequisite of reviewing the compliance of derogation measures.
 
V. The Review Trend of Derogation Measures Due to the COVID-19 Pandemic in Europe: The Principle of Proportionality for Risk Prevention
 
A. Justification of the principle of proportionality for risk prevention
 
The precautionary principle under the framework of EU law applies to scientifically uncertain evidence. Even if some people doubt that the certainty of COVID-19’s harm to humans is not in line with the traditionally defined precautionary principle, they cannot prove that the precautionary principle cannot justify the response to the COVID-19 pandemic. Although it can be determined as seen in the fact that COVID-19 is harmful to human health and safety, scientists still do not know enough about how it behaves, why it mutates as it does, how it originated, and how it spreads. European countries are facing the fourth onslaught of COVID-19. If the vaccines cannot effectively cope with the spread of the current Delta+ variant and other variants, lockdowns will need to continue to be imposed. Limited and slow medical awareness made many European countries unable to contain the spread of the virus or control the number of infections before May 2021. For example, even after socially extensive vaccination, there are still numerous COVID-19 infections in the UK. During outbreaks and fast spreads of COVID-19, the best options to deal with the unknowns and a lack of knowledge about the disease inevitably include risk prevention and control measures to prevent people-to-people contact in public places, compulsory home quarantine, and suspension of travel. Even if close contact with healthy people does not cause any danger, the national or local legislatures of most European countries criminalize any violations of the prevention and control measures.65 Unlike the fields, such as food, the environment, and traditional crafts where the EU or its member states often apply the precautionary principle, the spread of COVID-19 affects almost all social, economic, and political activities. It is true that acknowledging the legality of risk prevention measures means that legislative and administrative agencies can avoid public interest crises caused by slow scientific research. However, people can be scientifically one-sided, absurd, and wrong at a certain stage. Indeed, this is inevitable.66 When reviewing the legality of the application of the precautionary principle the European Court of Justice required the EU institutions and member states to reflect on the necessity of existing risk prevention measures based on the latest scientific findings.67
 
At the same time, the principle of proportionality is a reflection of the rationality of a country ruled by law. Even if Carl Schmitt believes that “the law will withdraw” in a state of emergency68 and unrestricted sovereign authority will reappear, his political discourse only structurally explains how the modern state emerges but does not explain the inherent qualities of sovereignty from the value perspective of national rationality. The protection of human rights and the rule of law have become the common constitutional features of modern-day European countries and transnational organizations. This indirectly reflects that national sovereignty is essentially not nihilistically irrational. On the contrary, the rational balance of interests based on the protection of human dignity has become “inherent” in modern sovereignty.69 This means that even if the state does not have legislation to deal with emergencies, a rational spirit of sovereignty will guide state behaviour to comply with the principle of proportionality.
 
From the perspective of legal interest, the right to life connects the principle of proportionality and the precautionary principle. The latter is the basis for the formulation and application of the precautionary principle in EU law. Robert Alexy interprets the right to life as “a normative priority over other freedoms.”70 Since the purpose of applying the principle of proportionality is the optimization of constitutional principles, allowing one to easily deprive the other of life or endanger it will undermine the goal of applying the principle of proportionality. The loss of life will render the optimal realization of the goal meaningless. Recognizing the special status of the right to life in the constitutional system guides the concept of the “principle of proportionality for risk prevention.”
 
B. Necessity analysis of the principle of proportionality for risk prevention
 
Both the principle of proportionality and the precautionary principle based on safeguarding public health can justify the effort to restrain the spread of COVID-19. However, there is a conceptual tension between the two. The former prohibits certain behaviours to avoid uncertain risks, while the latter restricts constitutional rights that conflict with it to protect certain interests. Excessive reliance on the former will lower the threshold to justify derogation measures, and will gradually lose the process of balancing conflicting values,71 while excessive reliance on the latter will restrict the government’s ability to take actions against risks. Therefore, it is necessary to reconcile the two principles normatively towards the application of the “principle of proportionality for risk prevention” and guide the government to formulate derogation measures in a public health emergency.
 
In practice, the precautionary principle applies to fields where there is no scientific certainty or consensus regarding public health hazards, while the core of the principle of proportionality is the factual and normative analysis of definitely conflicting constitutional interests. Because the definition of a state of emergency in international human rights law includes authenticity and obviousness, proportional derogation measures are based on definite facts. If the normative conflict between the two principles is to be reconciled, such reconciliation should not be limited to the application conditions and conceptual differences of the two principles. Instead, finding a consensus basis for the two principles and softening the exclusivity of the precautionary principle is the key to such reconciliation.
 
The precautionary principle itself does not provide risk prevention measures for policymakers. Although the scientific community may reach a consensus on a risk assessment report, decision-makers may adopt different risk prevention measures.72 For example, when most European countries adopted strict border closures and lockdowns, the Swedish government continued to maintain loose border management and the UK government attempted to implement “herd immunity” in response to the pandemic.73 Therefore, policymakers need to first predict how risk prevention measures to control the pandemic and protect public health will turn out, and further make predictions and choices by placing the measures within the context of the larger society. Articles published in authoritative medical journals have already stated that risk prevention measures are ideal and necessary to prevent the spread of the COVID-19.74 Numerous NGOs and national governments also advocate that policymakers should be more cautious and implement risk preventive measures until scientists have a better understanding of the virus.75 Although they can reduce the risk of human-to-human transmission, such measures seriously affect economic development and tax revenue, resulting in an increase in the number of people in poverty and an increase in states’ financial burdens. This requires governments to weigh the benefits of different options according to the principle of proportionality when planning derogation measures.
 
C. A Feasibility study of the principle of proportionality for risk prevention
 
In the early stage of the COVID-19 outbreak, the general public rarely heard about infections or deaths in their communities. So they might strongly oppose derogation measures such as lockdowns and home quarantine. During the period of COVID-19 containment, scientists knew very little about the origin and transmission channels for the virus. It was difficult for governments to justify lockdowns and home quarantine as an effective approach to stopping the spread of the virus and to prove measures restricting fundamental rights as necessary to achieve that goal. However, the spread of the spread of the virus and the repeated waves of new strains have caused an increase in the number of infections and deaths, a shortage of medical resources, and a lack of materials, which has affected governance capabilities. This justifies lockdowns being strictly implemented by governments to protect public health. However, derogation measures that do not have clearly set time limits for individual freedoms do not respect individual rights. According to the judgment of the Human Rights Court in the Kuimov case, compulsory home quarantine “is only a temporary measure and must change as the objective situation does... Maintaining a compulsory home quarantine that seriously affects personal freedom for an excessively long time violates the principle of proportionality.”76
 
Therefore, after the implementation of strict quarantine, the anti-pandemic effort enters a respite period, with a decline in the number of new infections, an increase in the number of discharged patients, and the restoration of medical resources. Scientific knowledge and medical experience accumulated around the world during the containment period are not only a weapon in the fight against the COVID-19 pandemic, but also provide a scientific basis for the government to adjust strict restrictions and make new control policies. The policy for the respite period should prioritize the lifting of home quarantine as appropriate and plans to restore social life and economy. However, before the origin of the virus is traced and vaccination is widespread, COVID-19 remains a threat to human society. For example, the second wave of COVID-19 at the end of 2020 forced some European governments to reactivate states of emergency and curfews, while other countries adopted relatively loose prevention and control measures.
 
We need to figure out what fits the concept of a country under the rule of law. If it is agreed that the protection of human rights stands at the core value of European countries under the rule of law, then it is necessary to seriously consider how to make proportional risk prevention measures for the respite period after the lifting of home quarantine. Although there is a conflict between the precautionary principle and the principle of proportionality, both aim to protect the right to life and public health. This is where the two principles can work together.
 
Evaluating medical reports and the socio-economic status quo and reducing government restrictions on individual freedom are the core tasks for the respite period of the pandemic and are also a preparation for possible normalized pandemic prevention and control. Although there are still scientific uncertainties and the removal of all restrictions remains a risky move, national or local governments are obliged to evaluate the probability of the occurrence of large-scale infections and assess the social and economic costs of continuing to adopt strict derogation measures based on scientific reports after several months of strict risk prevention measures. If the number of recovering patients increase and the number of hospitalizations decrease steadily, the government should lift lockdowns and instead support mild measures such as wearing masks and maintaining social distancing in an environment where COVID-19 has not been eradicated yet. Even if the risk of large-scale infection still exists, while adopting tracking technology, the government should restore social and travel freedoms for certain groups of people to ensure an orderly recovery in important production sectors, services, psychological and medical assistance, and family visits. Obviously, the lifting of strict home quarantines and limited restoration of freedom of travel will be the best result after weighing the pros and cons. Mild proportional prevention measures are better than extreme ones. In constitutional disputes, the national constitutional courts need to weigh the cost of derogating basic rights and the benefits of protecting public health. For example, the legislature should not use the precautionary principle against the rights to all demonstrations or assemblies. When participants are few in number and the meeting place is large in area, maintaining social distancing and wearing masks become the prerequisite for legally performing the right to freedom of expression. Only when social distancing is not possible or the number of infections may overwhelm the local medical service capacity can the court ban a demonstration.77
 
Finally, the virus may enter the stage of mutation and break out again during the winter. Limited scientific knowledge and lack of effective vaccines expose human society to the threat of COVID-19 again. The increase in the number of infections between the end of 2020 and the beginning of 2021 exceeded the peak in March 2020. The Delta variant has again caused a rise in the number of deaths and infections in many countries, and the virus is continuing to mutate. Governments and scientists need to constantly assess the development of the COVID-19 pandemic based on new findings. On the one hand, some viral mutations have increased infectivity. On the other hand, the good news is that the mortality rate is gradually decreasing. Scientists have not yet determined whether COVID-19 is more deadly in winter than in summer. If statistics show that the mortality rate is significantly lower than that in the early stage, the government can fine-tune and lower the alert level, without needing to completely restore the extreme prevention and control measures introduced in early 2020. However, in the absence of effective vaccines against the new strains of the virus, bars and entertainment venues which are small enclosed spaces where there are many social interactions should be closed, and non-essential offline meetings should be banned. On the contrary, well-staffed schools with sufficient space can remain open, and only need to track the temperatures and physical conditions of their students. Unless the new strains cause the mortality rate to rebounds or an increase in the number of infections that threaten to overwhelm the medical system, there is no need to reintroduce the previous strict prevention and control measures.
 
VI. Conclusions
 
In view of the unprecedented COVID-19 pandemic having caused great harm to personal life and health, most European governments have implemented derogation measures based on the precautionary principle and prioritized the maintenance of public health order. Although the threat of COVID-19 to health is indisputable, scientists remain in the early stages of their effort to understand the virus and how best to control it. After COVID-19 has caused huge losses, strict derogation measures such as city lockdowns and mandatory home quarantine have become the best choice for most European countries to deal with the spread of the virus. However, General Comment No. 29 of the United Nations Human Rights Committee, Article 15 of the European Convention on Human Rights and the Siracusa Principles require that derogation measures comply with the principle of proportionality. The precautionary principle and the principle of proportionality have theoretical and practical tensions. Excessive reliance on any one of them will have an adverse impact on pandemic prevention and control. Therefore, it is necessary to reconcile the two principles toward the application of the “principle of proportionality for risk prevention”.
 
In short, during the outbreak and containment of COVID-19, extreme risk prevention measures can be justified because they protect public health. Considering that a ruling of the European Court of Human Rights stipulates that long-term home quarantine should not be implemented, the government must consider the feasibility of gradually lifting home quarantine during the respite phase of the pandemic. Even if scientists do not yet have a definite understanding of the pathology and transmission of COVID-19, governments should prioritize plans to restore limited freedom of travel for some citizens and restart the economy. Even if societies cannot fully return to normal, governments must consider adopting measures to minimize the restrictions on rights of individuals after having implemented strict risk prevention measures in the initial stage. Lengthy travel restrictions for all are not justifiable simply because the government wants to protect public health. With the development of vaccines and the restoration of medical resources, the justifiable space for European governments to continue to implement strict lockdowns is shrinking. The current situation has improved compared with that in the spring of 2020. Although new strains of the virus mean there is still a high number of infections, the declining mortality rate, the ever-increasing recovery rate, and the promotion of vaccines have reduced public fear and the pressure on the government. Unless this trend changes or the number of new infections and severely ill patients overwhelm local medical systems, derogation measures that impose extreme restrictions on personal freedom, such as city lockdowns and home quarantine, should not be resumed.
 
(Translated by JIANG Yu)
 
* FAN Jizeng ( 范继增 ), Associate Professor of Law School of Shandong Technology and Business University, Researcher of European Studies Center of Sichuan University.
 
** WANG Yuhong ( 王瑜鸿 ), Project Assistant of Human Rights Law Research Center of Sichuan University Law School. This article is a phased project of the National Social Science Fund of China’s major project “Research on Legislation and Categorization in Emergencies” (20&ZD175), and the National Social Science Fund of China’s project “Research on the Relationship between Constitution and International Law"(18BFX034)
 
2. The Italian parliament decided on October 7, 2020 to extend the public health emergency until January 31, 2021. See “Delibera del Consiglio dei Ministri del 07 ottobre 2020”, accessed June 30, 2021, http://www.
protezionecivile.it/amministrazione-trasparente/provvedimenti/-/content-view/view/1336884.
 
3. “France to impose virus curfew after lockdown, including New Year’s Eve”, accessed June 30, 2021, https://
www.france24.com/en/live-news/20201210-france-to-impose-virus-curfew-after-lockdown-including-newyear-s-eve. 
 
4. BBC, “COVID: How is Europe lifting lockdown restrictions?” accessed June 30, 2021, https://www.bbc.com/news/explainers-53640249. 
 
5. “Delta variant forces new lockdowns as Europe eases curbs”, accessed June 30, 2021, https://www.livemint.
com/news/world/delta-variant-forces-new-lockdowns-as-europe-eases-curbs-11624763828528.html. As of the time of writing, St. Petersburg, Russia and Sydney, Australia, had announced new lockdown measures in response to the spread of the virus. 
 
6. See WHO, “Updated International Recommendation for International Traffic in Relation to COVID-19 Outbreak”, 29 February 2020, accessed June 30, 2021, https://www.who.int/news-room/articles-detail/updated-who-recommendations-for-international-traffic-in-relation-to-covid-19-outbreak. The World Health Organization (WHO) statedin an early official report that “travel bans to affected areas or denial of entry to passengers coming from affected areas are usually not effective in preventing the importation of cases but may have a significant economic and social impact.”
 
7. Alan Greene, Permanent State of Emergency and the Rule of Law: Constitutional in the Age of Crisis (Oxford: Hart Publishing, 2018), 208-209.
 
8. UN Human Rights Committee (HRC), CCPR General Comment No. 29: Article 4: Derogations during a State of Emergency, 31 August 2001, CCPR/C/21/Rev.1/Add.11, accessed June 30, 2021, https://www.refworld.org/docid/453883fd1f.html, para. 4. 
 
9. David Dyzenhaus, “State of Emergency”, Oxford Handbook of Comparative Constitutional Law (Oxford: Oxford University Press, 2012), 460.
 
10. Goldner Lang, “‘Laws of Fear’ in the EU: The Precautionary Principle and Public Health Restriction to Free Movement of Persons in the Time of Covid-19”, European Journal of Risk Regulation, first view (2021), 1-2. For the EU’s first clearly mentioned legal document using the precautionary principle to prevent and control COVID-19, please refer to Joint European Roadmap towards Lifting COVID-19 Containment Measures, 2020/C 126/01, C/2020/2419, OJ C 126, 17 April 2020, 3: “EU member states can formulate measures to restrict individual freedom based on relevant disease characteristics and precautionary principle.”
 
11. Cass R. Sunstein, Laws of Fear: Beyond the Precautionary Principle (Cambridge: Cambridge University Press, 2006), 18-20. According to Cass Sunstein, the EU law is based on the implementation of preventive measures against uncertain risks, or “in case of huge health or environmental risks, even if the scientific evidence is not yet certain, actions are taken to stop the risks.” For the research results of Chinese scholars in this field, please refer to Gao Qinwei: “On the Precautionary Principle of EU Administrative Law”, Journal of Comparative Law 3 (2010): 54-63. 
 
12. Su Yu: “Structural Interpretation of the Precautionary Principle”, Chinese Journal of Law 1 (2021): 50. 
 
13. Article 3 (11) and Article 6 (2) of EU Regulation 178/2002 (general principles and requirements of food law). Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety OJ L 31, accessed June 30, 2021, https://eur-lex.europa.
eu/legal-content/EN/ALL/?uri=celex%3A32002R0178. Wang Guisong, “The Precautionary Principle in Risk Administration”, Journal of Comparative Law, 1 (2021): 55. 
 
14. Case T-257/07 [2011] ECR II-4159, para. 141.
 
15. Case C-318/98 [2000] ECR I-4785, para. 37.
 
16. Case C-616/17, judgment 1 October 2019, para.41. The European Court of Justice ruled that EU institutions and member states need to apply the precautionary principle when formulating public health policies, common agricultural policies and single market policies; Case C-157/96 [1996] ECR I-2211, para. 64. As early as 1996, the European Court of Justice required that the precautionary principle be used in formulating related policy areas. 
 
17. Cfr Kenisha Garnett and David J. Parson, “Multi-Case Review of the Application of Precautionary Principle in the European Law and Case Law”, 37 Risk Analysis 3 (2017): 503.
 
18. Chen Haisong: “Reflections on the Theory and Practice of the Precautionary Principle: Concurrently on the Core Issues of the Precautionary Principle”, Northern Legal Science 4 (2010): 13; Giulia Claudia Leonelli, “Acknowledging the Centrality of the Precautionary Principle in Judicial Review of EU Risk Regulation: Why It Matters, 57 Common Market Law Review 6 (2020): 1776.
 
19. J. Scott, Legal Aspects of Precautionary Principle (London: British Academy, 2018), 12.
 
20. Joined Case C-78/16 & 79/16, Judgment 9 June 2016, para. 50.
 
21. Case C-343/09, Opinion 6 May 2010, para. 54.
 
22. Case C-343/09, para.62
 
23. Case C-343/09, para.70.
 
24. Case C-88/07, judgment 5 March 2009, paras. 31 and 34.
 
25. A typical case is the judgment of the European Court of Justice in the case of Enviro Tech. Case C-425/08, Judgment 15 October 2009, paras. 50-55.
 
26. Case C-15/10, judgment 21 July 2011, paras.128-129.
 
27. Decision No 1082/2013/EU of the European Parliament and of the Council of 22 October 2013 on serious cross-border threats to health and repealing Decision No 2119/98/EC Text with EEA relevance, OJ L 293, 5.11.2013, accessed June 30, 2021, http://data.europa.eu/eli/dec/2013/1082/oj.
 
28. Filipe Brito Bastos and Annick De Ruijter, “Break or Bend in the Case of Emergency?: Rule of Law and State of Emergency in the European Public Health Administration”, 10 European Journal of Risk Regulation 4 (2019): 623-624. Based on the judgments of the European Court of Justice in the cases of Dokter and Malagatti-Vezinhet, the two authors found that the European Court of Justice generally adopts a one-sizefits-all approach to emergency food safety injunctions, and does not weigh the protection of public health and defense of personal rights based on the facts and circumstances of specific cases.
 
29. Xie Hui: “On State Governance in a State of Emergency”, Science of Law 5 (2020): 42. 
 
30. Sun Meng: “European Standards and Practices for the Derogation and Protection of Human Rights in a State of Emergency”, Dongyue Tribune 12 (2010): 174. 
 
31. Martin Scheinin, “COVID-19 Symposium: To Derogate or not to Derogate?”, accessed June 30, 2021, http://
opiniojuris.org/2020/04/06/covid-19-symposium-to-derogate-or-not-to-derogate/. 
 
32. Enhorn vs. Sweden, appl no.56529/00, judgment 25 January 2005, para. 33.
 
33. Ibid., para. 44.
 
34. Please refer to related scientific research results, “Modes of Transmission of Virus Causing COVID-19: Implication for IPC Precaution Recommendations”, WHO, accessed June 30, 2021, https://www.who.int/
news-room/commentaries/detail/modes-of-transmission-of-virus-causing-covid-19-implications-for-ipc-precaution-recommendations. 
 
35. For related information, see “Statement on the First Meeting of the International Health Regulations (2005) Emergency Committee Regarding the Outbreak of Novel Coronavirus (2019-nCoV)”, WTO, accessed June 30, 2021, https://www.who.int/news/item/23-01-2020-statement-on-the-meeting-of-the-international-health-regulations-(2005)-emergency-committee-regarding-the-outbreak-of-novel-coronavirus-(2019-ncov). 
 
36. Ibid. 
 
37. Council of Europe Parliamentary Assembly, “Report on the Impact of the COVID-19 Pandemic on Human Rights and the Rule of Law”, 29 June 2020, AS/JUR (2020) 13, page 7.
 
38. Brogan and Others vs. UK, appl no.11209/84, judgment 29 November 1988, para.44. The Human Rights Court stated that “The Court, having taken notice of the growth of terrorism in modern society, has already recognized the need, inherent in the Convention system, for a proper balance between the defense of the institutions of democracy in the common interest and the protection of individual rights.” The Human Rights Court acknowledged that the United Kingdom had withdrawn the declaration of the implementation of the state of emergency from the Council of Europe before the occurrence of this case, but the Human Rights Court still allowed a limited implementation of derogation measures provided for in Article 15 of the European Convention on Human Rights when the national security of the signatory state is under threat. In its judgment, the Human Rights Court stated that “the derogation of basic rights does not exclude a proper consideration of the specific circumstances of the case.”
 
39. O. Gloss and F. Ní Aoláin, Law in Time of Crisis: Emergency Power in Theory and Practice (Cambridge: Cambridge University Press, 2006), 279.
 
40. David Dyzenhaus, “The Compulsion of Legality”, Emergency and the Limits of Legality (Cambridge: Cambridge University Press, 2008), 41.
 
41. Alan Greene, “States Should Declare a State of Emergency Using Article 15 ECHR to Confront the Coronavirus Pandemic”, Strasbourg Observer, 1 April 2020, accessed June 30, 2021, https://
strasbourgobservers.com/2020/04/01/states-should-declare-a-state-of-emergency-using-article-15-echr-to-confront-the-coronavirus-pandemic/. 
 
42. Brannigan & McBride vs. UK, appl nos. 14553/89 & 14554/89, judgment 25 May 1993, paras. 45-47.
 
43. See Stuart Wallace, “Derogations from the European Convention on Human Rights: The Case for Reform”, 20 Human Rights Law Review 4 (2020): 774-775.
 
44. A. Mowbray, Cases, Materials, and Commentary on the European Convention on Human Rights, 3rd edition (Oxford: Oxford University Press, 2012), 840.
 
45. Ireland vs. UK, appl no. 5310/71, decision 18 January 1978, para. 207.
 
46. Qiu Jing, “The Relativity of the Practice of the European Court of Human Rights and the Protection of Human Rights”, International Forum 5 (2019): 78-79. 
 
47. Ibid., 207.
 
48. Oren Gross and Fionnuala Ní Aoláin, “From Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rights”, 23 Human Rights Quarterly 3 (2001): 635.
 
49. Lawless vs. Ireland (no.3), appl no. 332/57, judgment 1 July 1961, para. 28.
 
50. O. de Schutter, International Human Rights Law: Cases, Materials, Commentary (Cambridge: Cambridge University Press, 2010), 519. Quoted from Zhao Jianwen: “On the Derogation Clause of the Human Rights Convention”, The Jurist 5 (1996): 9-10. 
 
51. Brannigan & McBride vs. UK, para. 43.
 
52. Ibid., 63-64.
 
53. Aksoy vs. Turkey, appl no.21987/98, judgment 18 December 1996, para. 78.
 
54. Ronald St J. MacDonald, “The Margin of Appreciation in the Jurisprudence of the European Court of Human Rights”, in International Law at the Time of Its Codification — Essays in the Honor of Roberto Ago (Milan: Guffrè, 1987), 207. MacDonald believes that “the margin of appreciation in a particular case is difficult to determine beforehand... The Human Rights Court must appropriately balance conflicting interests in individual cases.”
 
55. Alan Greene also believes that “Article 15 of the Human Rights Convention is not based on the right of the government of a signatory state to deal with emergencies completely as it wishes”. Alan Greene, “Separating Normalcy from Emergency: The Jurisprudence of Article 15 of the European Convention on Human Rights”, 12 German Law Journal 10 (2011): 1776. In its advisory opinion on habeas corpus in a state of emergency, the Inter-American Court of Human Rights clearly adopted the principle of “compliance with the principle of proportionality and the principle of reasonableness” as the basis for judging the compliance of emergency measures. See 4I-A Court HR, Advisory Opinion OC-8/87, January 30, 1987,(Continued on Next Page)(Continued)Habeas Corpus in Emergency Situations (arts. 27(2), 25(1) and 7(6) American Convention on Human Rights), Series A, No. 8, page 39, para. 22. When reviewing the periodic reports of signatory states, the United Nations Human Rights Committee also uses the principle of proportionality to determine whether the emergency measures adopted by signatory states meet the standards of the International Covenant on Civil and Political Rights. See The Administration of Justice during the State of Emergency, in Human Rights in Administration of Justice, OHCHR, 2002, page 853.
 
56. Alparsan Altan vs. Turkey, appl no. 12778/17, judgment 14 April 2019, paras. 104-115.
 
57. Mehmet Hasan Altan vs. Turkey, appl no.13237/17, judgment 20 March 2018, para. 211.
 
58. Bas vs. Turkey, appl no.66448/17, judgment 3 March 2020, para. 224.
 
59. Oren Gross and Fionnuala Ní Aoláin, “From Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rights”, 23 Human Rights Quarterly 3 (2001): 287.
 
60. Kavala vs. Turkey, appl no.28749/18, 10 December 2019, paras. 217-232.
 
61. Mehmet Hasan Altan vs. Turkey, para. 139.
 
62. Laurence R. Helfer, “Rethinking Derogation from Human Rights Treaties”, 115 American Journal of International Law 1 (2021): 27-28.
 
63. Before the outbreak of the COVID-19, only the government of Georgia informed the Council of Europe in 2006, submitting a statement that Georgia would take measures that derogated from the rights of the European Convention on Human Rights due to the seriousness of the spread of avian influenza virus in certain areas of the country.
 
64. Vassilis P. Tzevelekos & Kanstantsin Dzehtsiarou, “Normal as Usual? Human Rights in the Times of COVID-19”, 1 European Convention on Human Rights Law Review 1 (2020): 145.
 
65. Nicola Canestrini, “COVID-19 Italian Emergency Legislation and Infection of Rule of Law”, 11 New Journal of European Criminal Law 2 (2020): 120.
 
66. The spread of COVID-19 shows that a slow scientific understanding and misjudgments have made European governments generally fail to take timely preventive and control measures. The European Center for Disease Prevention and Control stated in a report submitted to the European Commission on January 9, 2020 that “there is no evidence that the novel coronavirus pneumonia transmits from people to people, and no patients have been found outside of Wuhan, China. So it is determined that it is very unlikely that it will occur in the EU.” See European Center for Disease Prevention and Control, Pneumonia cases possibly associated with a novel coronavirus in Wuhan, China, 9 January 2020, page 2. The European Center for Disease Prevention and Control even believed that the spread of the disease could not be effectively prevented by closing the borders after EU member states had outbreaks. See European Center for Disease Prevention and Control, Guideline for the use of non-pharmaceutical measures to delay and mitigate the impact of 2019-nCov, 2020, page 8.
 
67. Joined Case C-78/16 & 79/16, judgment 9 June 2016, para. 50.
 
68. Carl Schmitt, Political Theology, trans. by George Schwab (Chicago: University of Chicago Press, 2005), 6. 
 
69. Jizeng Fan and Yuhong Wang, “Precautionary Proportionality Principle as an Instrumental Preventive Measures from the COVID-19: Can European Human Rights Survive in the State of Public Health Emergency”, 21 Przegląd Europejski 1 (2021): 121-122.
 
70. Robert Alexy, “On the Balancing of Subsumption. A Structural Comparison”, 16 Ratio Juris 4 (2003): 440.
 
71. Goldner Lang, “‘Laws of Fear’ in the EU”, 19-21.
 
72. Tae Hoon Kim, “Why Sweden is unlikely to make U-turn on its controversial Covid-19 strategy”, The Guardian, 22 May 2020, accessed June 30, 2021, https://www.theguardian.com/commentisfree/2020/may/22/sweden-u-turn-controversial-covid-19-strategy. 
 
73. David Conn & Paul Lewis, “Documents contradict UK government stance on Covid-19 ‘herd immunity’”, The Guardian, 12 April 2020, accessed June 30, 2021, https://www.theguardian.com/world/2020/apr/12/documents-contradict-uk-government-stance-on-covid-19-herd-immunity. 
 
74. Lauren Crosby and Edward Crosby, “Applying the Precautionary Principle to Personal Protective Equipment Guidance during the COVID-19 Pandemic: Did We Learn the Lessons from the SARS”, 67 Canadian Journal of Anesthesiologist 10 (2020): 1327-1331.
 
75. Jose Felix Pinto-Bazurco, “The Precautionary Principle”, accessed June 30, 2021, https://www.iisd.org/articles/precautionary-principle. 
 
76. Kuimov vs. Russia, appl no.32147/04, judgment 15 May 2007, para. 96.
 
77. Holger Hestermeyer, “Coronavirus Lockdown-Measures before the German Constitutional Court”, IDEA, 30 April 2020, accessed June 30, 2021, https://constitutionnet.org/news/coronavirus-lockdown-measures-german-constitutional-court. 
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