Koch, Katharina

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1/6Lockdown measures as detention? – The case Terheş& La Roumaniejean-monnet-saar.eu/24.09.2021An article written by Katharina Koch*With the outbreak of the COVID-19 pandemic in Europe in spring 2020, many Europeancountries decided to implement measures to stop the spreading of the newly discoveredvirus. This was primarily done to protect vulnerable persons and to make sure thatenough capacities in hospitals are available to treat all patients. Those measures variedquite a lot within Europe and included measures such as an obligation to wear a(medical) mask if one uses public transportation or if one goes shopping or measureswhich restrict contacts as well as curfews.These measures were highly debated, as many citizens doubted the necessity and theproportionality of these new regulations. Many persons considered these measures as anunjustified interference with their human rights. Some raised these concerns in front of acourt including the European Court of Human Rights (ECtHR): e.g. the case Terheş c LaRoumanie  deals with the lockdown regulation adopted in Romania in March 2020. 1.The case: Terheş c La RoumanieBackgroundOn 16 March 2020, the Romanian president adopted the state of emergency for thirtydays which allowed a limitation of the freedom of movement.  Only a couple of dayslater, on 21 March 2020, a new regulation was adopted according to which it was notrecommended to leave the house between 6 am and 10 pm and it was prohibited to leavethe house between 10 pm and 6 am.  On 24 March 2020, a new regulation was adoptedwhich prohibited to leave the house except for buying essentials, urgent medicaltreatments, and short walks.  Everyone leaving the house needed to prove the reasonwith a specific document.  This should enable the enforcement of this regulation by thepolice and other competent authorities. The state of emergency was prolonged on 14April 2020 for thirty days and ended on 14 Mai 2020.The applicant’s claimThe applicant, a member of the European Parliament, claimed that he was not infectedwith Sars-Cov-2 during the time of the measure and did not show any symptoms of thedisease, nor had he had contact with an infected person.  For these reasons, heargued that the measures were an unjustified interference with his right to liberty andsecurity enshrined in Art. 5 of the European Convention on Human Rights (ECHR). Interestingly, the applicant based the application only on Art. 5 ECHR and the right to[i][ii][iii][iv][v][vi][vii][viii][ix]2/6liberty and security as he wanted to show that the measures implemented by Romaniareached the level of detention. Consequently, he did not mention the freedom ofmovement enshrined in Art. 2 § 1 of Protocol No. 4  in his application.The Court’s decisionThe judges of the Strasbourg Court mainly focused on the fact that the measures weredirected against everyone living in Romania to argue that they could not be qualified as adetention and consequently that there was no violation of Art. 5 ECHR.  Therefore, thejudges draw only briefly on the freedom of movement as guaranteed in Art. 2 § 1 Prot.No. 4 as this was not part of the applicant’s claim.This raises primarily two questions: First, whether the judges of the Strasbourg Court areright in arguing that the measure implemented in Romania is not a detention in themeaning of Art. 5 ECHR and whether this decision fits into the case law of the ECtHR.Secondly, whether the restriction of the freedom of movement can be justified. 2. The relationship between the right to liberty and security and the freedom ofmovementThe question whether the measure implemented in Romania reached the level ofdetention is closely linked to the relationship between the right to liberty and securityenshrined in Art. 5 ECHR and the freedom of movement guaranteed in Art. 2 § 1 Prot.No. 4. This relationship has been analysed in detail in the case law of the Strasbourgcourt. According to the court’s interpretation, these two rights are closely linked anddetention is considered to be the harshest restriction on the freedom of movement.  Intwo cases, Austin and others v United Kingdom and De Tomasso v Italy, the ECtHRtherefore stressed the importance to analyse the concrete situation and theimplementation of the measure.  Thus, it is important to take into consideration the kindof restriction of liberty, its length, its effects, and the modalities of the measure.In the Terheş decision the judges referred to those two judgements to assess whether themeasure implemented to stop the spreading of the coronavirus in Romania reached thelevel of detention.  Concerning the modality, the ECtHR stressed that the measure wasnot an individual one directed against the applicant, but rather a collective measuredirected against everyone living in Romania.  Furthermore, it was possible within theframework of the exceptions mentioned in the regulation, to leave the house and to visitplaces which are necessary in everyday life such as shops for essentials and medicaltreatment.  Therefore, the judges of the ECtHR concluded that the applicant was notdeprived of all his social contacts as it had been the case in De Tommaso v Italy. Additionally, the applicant was not able to give an example of a situation in which heneeded to do something that he was not allowed to due to the legislation in force.For these reasons, the measure established by the Romanian authorities to stop thetransmission of the coronavirus did not qualify as detention within the meaning of Art. 5ECHR but rather as an interference with the freedom of movement.[x][xi][xii][xiii][xiv][xv][xvi][xvii][xviii][xix][xx][xxi]3/6Although the measures implemented in Romania might have conveyed the feeling ofbeing detained, the situation was different which is correctly pointed out by the judges.Even if it was necessary to document the reason for leaving the house, that was possiblefor many reasons, including going for short walks. Thus, the exceptions mentioned in theregulation were relatively broad. Additionally, detention is usually characterized by the factthat it is directed against one person or a limited number of persons. In this case,everyone living in Romania was affected by the measure as it was a collective measure.The court was therefore right in considering that the measures implemented in Romaniawere not a detention and consequently, did not fall within the scope of Art. 5 ECHR. Thisis why the Court declared the application as incompatible ratione materiae with theprovisions of the Convention in the sense of Art. 35 § 3 lit. a ECHR and thus inadmissible.However, without doubt the measures constituted a restriction of the freedom ofmovement enshrined in Art. 2 § 1 Prot. No. 4. The question is whether the restriction ofthe freedom of movement could be justified since the ECtHR did not deal with that aspectin its judgement.3. The proportionality of the measureThe proportionality question was not addressed by the Strasbourg Court because theapplicant only based its application on Art. 5 ECHR which makes this question even moreinteresting. A restriction on the exercise of the freedom of movement can be justified according to Art.2 § 3 Prot. No. 4 if they are“[…] in accordance with law and are necessary in a democratic society in the interests ofnational security, for the maintenance of ordre public, for the prevention of crime, for theprotection of health or morals, or for the protection of the rights and freedoms of others.” A justification requires the common three-part test. The measure needs to be prescribedby law, pursue one of the legitimate aims referred to in the third paragraph, and benecessary in a democratic society. The Romanian measures have been implemented asa regulation in Romanian law and thus, they are prescribed by law. The intention of theRomanian authorities was to stop the spreading of the newly discovered coronavirus andaimed at the protection of health which is mentioned in Art. 2 § 3 Prot. No 4.Therefore, the main question is whether the measures implemented were also necessaryin a democratic society. According to the ECtHR’s case law, this means that theinterference needs to correspond to a “pressing social need” and needs to be“proportionate to the legitimate aim pursued”.  The measures introduced very harshrestrictions on the freedom of movement. The persons living in Romania were generallynot allowed to leave their house without proving one of the exceptions mentioned in theregulation. Even though these exceptions were relatively broad and, also included goingfor a short walk as an exception, the measure was a severe limitation of the freedom ofmovement. Additionally, this is also underlined by the fact that the citizens were asked tohave a documentation when they left their house. [xxii][xxiii]4/6Nevertheless, one needs to keep in mind the situation at the time when the measureswere implemented. Back then, the coronavirus was just known for a couple of monthsand started to spread in Europe. Even though it was just the beginning, the virus spreadrapidly, and the hospitals and intensive care units in some regions in Europe were alreadyovercrowded and did not have enough capacities to treat all patients.  Even whencapacities in hospitals were sufficient, many persons, especially the elderly, died afterbeing tested positive for the virus. This underlines the need for the European states to actto protect the citizens and to guarantee that the hospitals had enough capacities to treatall patients. Although the overall situation in Europe became severe, there was a lack of informationabout the virus at that time. That means that it was for example not exactly known howthe virus was transmitted, what typical symptoms were and who belonged to particularlyvulnerable groups and was consequently likely to have a severe course of disease. Thislack of information caused a lot of uncertainties at that time when the governmentsdiscussed what measures could stop the spread of the coronavirus. Keeping these two points in mind, it seems necessary to grant a wide margin ofappreciation to the states as they needed to act in a life-threatening situation with a lot ofuncertainties. This means that the States were allowed to adopt more restrictivemeasures for a certain, limited period of time to stop the spreading of the virus. However,these strict measures had to be constantly monitored and adapted to new scientificinformation as soon as it became available.Although the measures adopted in Romania were rather strict compared to those in otherEuropean countries, the measures fall within this wide margin of appreciation since theywere only implemented for a short period of time (initially for 30 days and then prolongedfor another 30 days) and they were effective to stop the spreading of the virus as they ledto contact restrictions which were at that time known to be the most effective measure tostop the spread of the virus. In view of that result, it would not have been necessary for the Court to examine thevalidity of Romania’s derogation according to Art. 15 ECHR also from the freedom ofmovement, even if the applicant had invoked Art. 2 § 1 Prot. No. 4.4. ConclusionTo summarize, the decision of the ECtHR is the consequent development of its case lawas the court simply applied the criteria developed before. Therefore, it was ratherpredictable that the measure implemented in Romania would not be considered as adetention in the meaning of Art. 5 ECHR, especially as the measure was not an individualsanction for any misbehaviour but a collective measure. Nevertheless, due to the limits given by the application, the court did not address themore interesting question whether the interference in the freedom of movement could bejustified. But based on the uncertainty at the beginning of the pandemic and given theurgent need to act posed by the increasing number of cases and the increasing[xxiv][xxv]5/6hospitalisation rate at that time, it can be justified that a state implements strictermeasures to protect its citizens. However, when a state implements rather strictmeasures, it is necessary that they are limited to a short period, monitored closely andadapted if necessary. As this was the case in Romania, the interference was justified inthis case. But that does not mean that comparable measures could be justified nowadayswith the same line of argumentation because the situation is completely different today.Although the virus has changed and the currently dominant delta variant is more easilytransmitted and deadlier than the previous variants, there are other measures available toreduce the spreading of the virus such as for example vaccines and increased testingcapacities. Additionally, there is much more information available about the virus whichmakes it easier to implement more specific measures. Therefore, the threshold to justifycomparable measures is now much higher than back in March 2020. *Dipl.-Jur. Katharina Koch, LL.M., lic. en droit is a PhD candidate and currently a legaltrainee in Lübeck. An overview of lockdown measures across Europe can be found in the following article:DW, Coronavirus: What are the lockdown measures across Europe?, 14 April2020, https://www.dw.com/en/coronavirus-what-are-the-lockdown-measures-across-europe/a-52905137, 29 August 2021. ECtHR, Terheş c La Roumanie, App. No. 49933/20, Decision of 13 April 2021. ECtHR, Terheş c La Roumanie, para. 5. ECtHR, Terheş c La Roumanie, para. 6. ECtHR, Terheş c La Roumanie, para. 7. ECtHR, Terheş c La Roumanie, para. 7. ECtHR, Terheş c La Roumanie, para. 8. ECtHR, Terheş c La Roumanie, para. 10. ECtHR, Terheş c La Roumanie, para. 31. Romania has signed and ratified Protocol No. 4(https://www.coe.int/de/web/conventions/full-list?module=signatures-by-treaty&treatynum=046, 29 August 2021) ECtHR, Terheş c La Roumanie, para 42 and 45. ECtHR, Terheş c La Roumanie, para. 46 ECtHR, Austin and others v The United Kingdom, App. No. 39692/09, Decision of 15March 2012, para. 57. ECtHR, De Tommaso v Italy, App. No. 43395/09, Decision of 23 February 2017, para.80; ECtHR, Austin and others v The United Kingdom, para. 59.[i][ii][iii][iv][v][vi][vii][viii][ix][x][xi][xii][xiii][xiv]6/6 ECtHR, De Tommaso v Italy, para. 80, ECtHR, Austin and others v The UnitedKingdom, para. 59. ECtHR, Terheş c La Roumanie, para. 36. ECtHR, Terheş c La Roumanie, para. 42. ECtHR, Terheş c La Roumanie, para. 43. ECtHR, Terheş c La Roumanie, para. 43. ECtHR, Terheş c La Roumanie, para. 44. ECtHR, Terheş c La Roumanie, para. 46. Cf. Art. 2 of décret n° 195/2020 establishing the state of emergency in Romania asprinted in the judgement (ECtHR, Terheş c La Roumanie, para. 23). ECtHR, The Sunday Times v. The United Kingdom (No. 1), App. No. 6538/74,Decision of 26 April 1979, para. 62. This was at that time for example the case in the region of Lombardy in Northern Italy(https://www.euronews.com/2020/03/19/bergamo-hospitals-full-as-italy-s-coronavirus-nightmare-worsens, 29 August 2021). See ECtHR, Terheş c La Roumanie, para. 46.[xv][xvi][xvii][xviii][xix][xx][xxi][xxii][xxiii][xxiv][xxv]

Lockdown measures as detention?: The case Terheş & La Roumanie

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Lockdown measures as detention?: The case Terheş & La Roumanie

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