La pandémie de COVID-19 et le droit européen des droits de la personne : réflexions sur l’application de la Convention européenne des droits de l’homme à l’ère du confinement et des masques obligatoires

Abstract

How is the European Convention on Human Rights likely to apply to the many aspects of the current pandemic? As always with novel factual questions, the answer can only be found in a thorough and innovative examination of the case-law of the European Court of Human Rights. We consider firstly the duties of Member States with respect to health issues under the Convention. From this starting point, we will then seek to determine whether the measures adopted by States to limit the spread of the virus should be viewed as the fulfillment of the positive obligation to protect the right to life enshrined in the Convention, or rather as an encroachment on that right because of the many "side-effects" of those measures on the day to day lives of individuals. We will then present two fictional scenarios involving the potential deleterious impact of common measures such as confinement and mandatory masks in the context of the question of how victims might obtain redress from the Court for the alleged violation of certain rights and freedoms protected under the Convention, for example the prohibition against inhumane and degrading treatment, arbitrary detention and discrimination. 1.Le confinement et la discrimination .