Elena Shakhova

Elena Shakhova

Chair, HR NGO "Citizens' Watch"

At the start of the pandemic, High Commissioner for Human Rights Michelle Bachelet warned states against human rights violations under the guise of emergency response to the pandemic: “Emergency powers should not be a weapon that governments can use to suppress dissent, control populations, or even perpetuate their stay in power. They should be used to cope effectively with the pandemic – nothing more, nothing less”

As evidenced by the results of monitoring the human rights situation of members of the Civil Solidarity platform, despite all the admonitions, this is exactly what happened. Pretexts to combat the coronavirus have been and continue to be used in the OSCE region to unduly restrict human rights, and documents developed by the OSCE to help member states meet their human rights commitments in difficult circumstances have not been taken into account.

International human rights treaties, the obligations of which are committed by OSCE member states, contain provisions allowing for derogation from them in the event of an emergency. In particular, paragraph 1 of article 4 of the International Covenant on Civil and Political Rights states: “During a state of emergency in a state in which the life of the nation is threatened and the existence of which is officially declared, the States parties to this Covenant may take measures derogating from their obligations under the present Covenant only to the extent required by the exigencies of the situation, provided that such measures are not incompatible with their other obligations under international law and do not entail discrimination solely on the basis of race, color, sex, language, religion or social origin ”. A similar provision is included in Article 15 of the European Convention on Human Rights.

Among the OSCE member states, only a few have declared derogation from international treaties. For example, Serbia, Romania, North Macedonia, Latvia, Estonia, Albania, Georgia, Moldova, Armenia sent relevant notifications to the Secretary General of the Council of Europe in the first half of 2020. Countries did not massively impose a state of emergency, restrictions on human rights often occurred not on the basis of legislative acts at the level of federal law, but on the basis of orders from departments and local executive authorities. Thus, based on the existing jurisprudence of the European Court, in the absence of a corresponding notification on the limitation of the Convention in connection with a state of emergency, the restrictions imposed by countries in connection with COVID-19 are neither legal nor reasonable.

Instead of using the time that has passed since the start of the pandemic to develop quality laws, many countries are now elevating previous departmental acts to the rank of federal laws, such as Russia, where a bill is now being discussed that would prohibit accused persons held in pre-trial centers from meeting with a lawyer during the quarantine period.

Monitoring human rights during a pandemic also gave us an answer to the question: why most states did not impose a state of emergency. The state of emergency is spelled out in the legislation and provides for clear procedures and rules; under the state of emergency, it would not be possible to adopt ad hoc legislation and act ad hoc without worrying too much about legal norms, as was often the case.

As a result, almost all rights and freedoms were unreasonably limited. The most dangerous situation is in the following areas:

The right to a fair trial within a reasonable time

The COVID-19 pandemic has brought about changes in the functioning of the judiciary throughout the OSCE region. Often, only urgent matters were considered, such as the election of a preventive measure in the form of arrest, all the rest were postponed. The access of the public to the courts was completely prohibited, and many cases were considered via a web conference. These restrictions were imposed by the orders of the judicial authorities, i.e. were not legal. For example, in Bulgaria and Serbia, the legal basis for the administration of justice in a remote format was the special decisions of the executive authorities, in Poland – the decisions of the chairmen of the courts, in Russia – a joint decision of the Presidium of the Supreme Court of the Russian Federation and the Council of Judges. The principle of openness of justice is one of the main ones; accordingly, its limitations should be based on federal or similar legislative act in terms of legal significance. The existing procedure for making a decision on remote administration of justice is contrary to international regulation of the right to a fair trial:

  • the need to prevent infectious diseases is not a reason for holding a court session behind closed doors;
  • neither the chairpersons of the courts, nor the supreme courts, together with the bodies of the judicial community, nor the executive authorities are authorized to limit the principle of publicity of legal proceedings by their decisions.

The only way to resolve the conflict that has developed as a result of the pandemic between international fair trial standards and restrictive measures is through the adoption by parliament of a law establishing measures to compensate for the limitation of the principle of transparency. In addition, the COVID-19 pandemic has accelerated the introduction of information technology into legal proceedings. Legislation on remote administration of justice is promptly adopted in countries, but they do not at all take into account the interests of vulnerable groups: children, women, people with disabilities, migrants.

Freedom of assembly

Under the pretext of fighting the spread of infection, it was forbidden to hold peaceful assemblies, including those caused by the government’s overly harsh measures to combat coronavirus. We have recorded numerous cases of such bans throughout the OSCE region, including in Germany, Russia, Albania, the Czech Republic, etc. Despite the bans, citizens of many countries came out to peaceful protests, they were detained, beaten, sentenced to an administrative fine or arrest. For example, in October 2020 in the Czech Republic, police used tear gas and a water cannon to disperse hundreds of anti-coronavirus protesters. In Russia, in the spring and summer of 2020, massive protests took place, caused by amendments to the Constitution, about 200 people were detained, many of them received fines and arrests for violating anti-coronavirus measures. People were even held accountable for holding single pickets.

Freedom of speech

The governments of at least 12 OSCE member states (Russia, Turkey, Armenia, Moldova, Romania, Kazakhstan, etc.) have used existing or adopted new legislation in order to prevent criticism in the media regarding the measures taken by the authorities to combat the coronavirus. infection, threatened or fired medical workers who talked about the situation in the health care system in the media or personal blogs, blocked or closed objectionable media outlets. For example, in Russia and Azerbaijan, amendments to the media legislation were adopted, which provide for criminal liability or heavy fines for publicly disseminating false information about circumstances that threaten the life and safety of citizens, or about measures taken by the state to ensure the safety of the population.

Prisoners’ rights

Persons deprived of their liberty are more vulnerable to the COVID-19 outbreak and are held in overcrowded, cramped conditions with limited access to fresh water and air. Ensuring the health of prisoners in accordance with the requirements of international human rights law is an integral part of the state’s obligations. To help states ensure the provision of medical care during a pandemic, to reduce the spread of the virus in closed institutions, international organizations have developed relevant standards with respect for human rights standards.

These are four documents:

  1. Body of Principles for the Treatment of Persons in Detention in the Context of the Coronavirus Infection (COVID-19) Pandemic (Council of Europe Committee against Torture)
  2. COVID-19 Pandemic Recommendations (UN, Committee Against Torture)
  3. COVID-19 preparedness, prevention and control in prisons and other places of detention (World Health Organization)
  4. Guidelines for monitoring places of deprivation of liberty during a pandemic (OSCE)

However, many countries did not take these recommendations into account, and since the beginning of the pandemic and until now, restrictions on the rights of prisoners have been introduced without any compensation measures. These restrictions were expressed in the prohibition of visits with relatives, the prohibition of meetings with lawyers, the prohibition of packages, walks, and many others. other.

In addition, the recommendations of international bodies on reducing the prison population through more active early release, postponement of serving a sentence, imposing types of punishment not related to imprisonment, choosing measures of restraint other than imprisonment during the investigation were not accepted by many countries, for example, Russia. Kazakhstan, etc.

Numerous barriers have been and continue to be posed to members of national preventive mechanisms and similar structures from visiting closed institutions. In the absence of regular monitoring visits, society does not have the ability to monitor the observance of human rights in the penitentiary system, does not have information about the state of affairs in these institutions.

All these examples clearly indicate that human rights were not and still are not a priority in the state policy of the OSCE member states, and the pandemic’s challenges were widely used as an excuse for failing to fulfill their obligations to protect human rights.

We recommend:

OSCE Institutions and Political Bodies

ODIHR should monitor the implementation of the OSCE recommendations “GUIDANCE Monitoring Places of Detention through the COVID-19 Pandemic”, “Fair Trial Rights and Public Health Emergencies” among all member states, publicize its results and urge member states to comply with these recommendations;

OSCE should publicly assess massive human rights violations under the pretext of fighting the pandemic;

OSCE should monitor, provide the necessary assistance to member states in the development of legislation related to public health, and assess it to ensure that restrictions are proportionate, that compensatory measures are in place, and that the rights of vulnerable groups such as people with disabilities, children, women, migrants are properly accounted for.

OSCE participating States

Comply with OSCE recommendations on human rights restrictions and compensation for public health concerns;

End the criminal and administrative prosecution of citizens exercising their civil and political rights under the pretext of fighting the COVID-19 pandemic and any new threats to public health;

Bring national legislation in line with international human rights standards;

Stop putting pressure on the media, citizens, medical workers for criticizing the actions of the authorities in connection with the pandemic or any other actions of state bodies;

To disclose and inform the population as fully and regularly as possible about the situation with the pandemic, the situation in the penitentiary system;

Ensure the unimpeded implementation of public control in all areas, primarily the work of national preventive mechanisms, ombudsmen for human rights and public monitoring commissions that monitor the observance of human rights in places of deprivation of liberty;

Ensure that all measures taken by authorities at various levels of government to protect public health and combat the COVID-19 pandemic are implemented in a strictly proportionate and non-discriminatory manner;

Immediately develop and implement measures to mitigate the disproportionate impact of quarantine measures on vulnerable groups such as women, children, migrants, homeless people, people with disabilities;

Immediately end discrimination against vaccinated and unvaccinated people, ensure the freedom to choose any vaccine registered as an effective remedy in at least one country;

Remove all restrictions on freedom of movement between countries and within countries.

 


 

Photo by Martin Sanchez on Unsplash