Blog by: Suzan Salama, Hilde Baarsma, Abdulrahman Mohamed
UN human rights experts have called on governments around the world to respect human rights whilst combatting COVID-19. This blog post provides a few examples of how COVID-19 measures may impact human rights; to which extent can Governments impose strict measures to tackle COVID-19, how are the rights of vulnerable groups such as refugees and asylum seekers impacted and protected, and how do COVID-19 measures impact gender rights?
Under international human rights law, emergency measures responding to COVID-19 must be proportionate, strictly necessary and must not unduly restrict human rights. According to Article 4 of the International Covenant on Civil and Political Rights, ICCPR, any derogation from covenant rights in times of emergency is only permitted "to the extent strictly required by the exigencies of the situation".
“any derogation from covenant rights in times of emergency is only permitted "to the extent strictly required by the exigencies of the situation”
In the Netherlands the Dutch Government has taken an "intelligent lockdown" approach – in place until at least 28 April - to tackle COVID-19: entailing closure of schools, universities, bars, restaurants, museums, theatres and clubs, advising people to stay and if possible work from home, and keeping a social distance of at least 1.5 meters.
However, where a time restriction on the measures is in place in the Netherlands, in Hungary we have seen Viktor Orban's request for powers to rule by decree during the coronavirus emergency. His request was accepted by the Hungarian Parliament on 30 March 2020. The law contains no time limit and according to human rights groups, these unlimited government powers will suppress the human rights of individuals in Hungary. Some of the new powers include the suspension of elections, the suspension of enforcement of certain laws, and imprisonment of anyone who shares information on COVID-19 which is viewed to be untrue. This last power – imprisonment of anyone who shares information “which is viewed to be untrue” – is a power that could be easily misused against journalists or activist who are critical of the government.
The use of the law as a tool to restrict human rights and particularly freedom of speech is a pattern seen by UvA’s Doing Business Right Clinic preliminary findings in its research on strategic lawsuits against public participation (SLAPP) in Europe, which are often initiated by individuals or corporations against activists, journalists and NGO and which have a chilling effect. These SLAPPs threaten civil society space in Europe.
In a global world it is irresponsible to think that a large-scale public health threat like the one we are currently facing can be handled without considering every single person who is part of the society, among which refugees and asylum seekers should come first.
Considering their uncertain and overcrowded living conditions in camps or shelters, lacking most of the basic sanitation and hygiene facilities as well as decent healthcare, they are specifically vulnerable to diseases. It would not be surprising if COVID-19 starts spreading faster throughout the global population also as part of the humanitarian emergency we all have played a role in.
Therefore, it is vital that national authorities fully include refugees and asylum seekers in the national anti-COVID responses and policies, granting them access to healthcare services and detailed information in their own languages. Travel restrictions put in place by governments to contain this outbreak may be applied to them in the same way, as a restriction of movement, but it is crucial that they do not result in a policy that would disproportionally affect their right to seek asylum. In this regard, different countries have embraced different approaches.
“it is vital that national authorities fully include refugees and asylum seekers in the national anti-COVID responses and policies, granting them access to healthcare services and detailed information in their own languages.”
Italy, the most affected COVID-19 European country, has adopted stringent containment measures. This resulted in a suspension of refugee status determination interviews and an interruption of appeal court hearings for as long as Courts are closed. Services and legal assistance are consequently delayed. Refugees, asylum seekers and the relevant personnel find themselves disoriented and without guidance due to a lack of information by the authorities on how to respect the legislative framework on asylum according to the current public health emergency, as with the current stringent measures and the inability to ensure hygiene safeguards.
In the Netherlands a similar policy can be observed. The Dutch Ministry of Justice and Security decided to suspend the entire asylum procedure. The handling of new applications is suspended, most deportations are postponed, and asylum seekers no longer have the right to reception in an AZC (asylums seekers’ center) which includes, among other things, medical care and a weekly financial allowance, according to Dutch law. After being pressured, the government decided to build emergency shelters for refugees already present in the Netherlands, who aren’t allowed in the AZC at the moment and for those who are crossing the Dutch border in the coming months.
Providing emergency shelters is a good step forward. However, by not accepting applications for asylum and not providing the associated right to reception, the government violates the law. The Dutch association of asylum lawyers raised their concerns in a letter to state secretary Ankie Broekers-Knol asking critical questions about the current policy. They pointed out that there is no clear justification for not processing applications: asylum seekers are still being registered, searched and their fingerprints are taken. Therefore, there is still contact between the different parties involved in an asylum procedure and except for formally signing an application for asylum, the procedure does not actually request more actions.
The outbreak of COVID-19 has also affected the judicial system. Measures limiting access to court hearings may harm people’s right to an effective remedy and a fair trial, as stated in article 47 of the Charter of Fundamental Rights of the European Union and article 6 of the European Convention on Human Rights. Furthermore, slowing down justice processes inevitably results in more people being detained, with the risk of overcrowding detention centres or prisons furthering the spread of the virus.
“slowing down justice processes inevitably results in more people being detained, with the risk of overcrowding detention centres or prisons furthering the spread of the virus.”a
Justified restriction on personal freedom and basic human rights should be individualized and cannot, in any case, limit the right to meet with legal counsel and, where not possible to consult legal counsel through phone or online tools. Blanket restrictive measures violate the principles of fair trial and therefore are not permitted. To safeguard the functioning of the judiciary, alternative measures must take place, such as remote hearings, considering the potential effective participation of those directly concerned, and considering access to the (online) court hearings by journalists. However, constraints can emerge in the judicial system’s ability to work remotely, using electronic devices to access files through databases and conducting proceedings via video conference, especially in those Member States with less developed IT systems in their judiciary.
The UVA’s Fair Trials Clinic works on trial monitoring projects and was scheduled to travel to Turkey beginning of April to monitor the trial of detained journalists in Turkey. However, due to the COVID19 outbreak, it was not possible for the Fair Trials Clinic to travel to Turkey. At this moment Turkey has suspended most of the court hearings leaving exceptions for among others pre-trial detention cases.
COVID-19 and related government measures heavily impact women. A poignant example of the gender impact COVID-19 measures may have, is access to abortion services. In England, and France the respective governments announced temporary measures to enable women to manage medical abortions through the abortion pill at home for as long as the COVID-19 measures are in place. This means that women, after a telephone or video medical consultation, can receive the abortion pill per post or from their pharmacy and can take the abortion pills at home instead of taking the first pill at an abortion clinic or health facility. However, in the Netherlands there does not seem to be such possibility.
“A poignant example of the gender impact COVID-19 measures may have, is access to abortion services.”
Dutch legislation stipulates that an abortion treatment is only allowed by a doctor in a hospital or abortion clinic that has received a permit by the ministry to carry out such treatments, if conducted otherwise criminal prosecution could be possible. On Friday 10 April, two Dutch organizations Women on Waves and Bureau Clara Wichmann, with two female plaintiffs filed a summary proceeding against the Dutch state. They argued that several groups of women in the Netherlands do not have access to medical abortion as current COVID-19 measures prevent them from travelling to an abortion clinic. According to the plaintiffs, an alternative solution, providing the abortion pill per post or in the pharmacy, should be made available. Until then, according to the plaintiffs, the COVID-19 measures combined with current Dutch legislation disproportionally impact a group of women who seek medical abortion and infringe on their right to private life.
Examples of women who find themselves in such situations are: women whose family members are or might be infected with COVID-19 and who are therefore not allowed to leave the house to travel to a clinic; women who live in remote areas, who need to travel for several hours to visit an abortion clinic, during which they expose themselves to possible COVID-19 contagion; and women who find themselves in a situation of domestic violence or with a controlling partner, they do not have the possibility to secretly travel to a clinic as “we all, if possible, work from home, stay at home”.
The district court of The Hague rejected the request; its legal reasoning is pending until 20 April.