The measures taken by several European countries in the name of Health could result in a collateral victim: the rule of law.
The appearance of COVID-19 in February-March 2020 may have caught us all by surprise and required improvised and urgent measures, but this is no longer the case today. Drastic measures to contain this health crisis may be justified. But they must be better anticipated and, above all, more closely monitored in a democratic way. This has not been the case to date.
Most of the time, measures are taken, on the fly, by the executive, in the wake of defence councils or other consultative committees, whose membership remains a mystery, without any real consultation (in the sense of providing prior information and an opportunity for consideration) of the various partners (social, economic or political) and without any decision by their national parliaments.
Certain fundamental principles - stemming from the European Convention on Human Rights (ECHR) or the Charter of Fundamental Rights - are thus clearly being "set aside", for an unspecified period of time. The freedom of assembly and association (Article 11 ECHR) is violated and drastically limited. The right to express an opinion - via modes of expression such as the cinema or theatre - is prohibited. Particularly noteworthy is the limit on freedom of movement: a curfew at 6 p.m. (in France), permits required to leave the country (in Belgium), etc. Freedom to practise one's religion (Article 9 ECHR), the right to education, and the right to engage in professional activities (Articles 14 and 15 of the charter) are severely curtailed, not to mention the right to respect for privacy and family life (Article 8 ECHR).
These decisions, once taken, are immediately applied, unquestioningly, and often in an arbitrary way. What is a “compelling reason” for crossing a border and what is not? Or an “essential reason” and what is not? It is up to the police authorities, or even mere airline clerks, to check. This is a very sensitive matter.
The European authorities are hardly consulted. For example, Paris did not notify the European Commission of the re-establishment of certain border controls, as stipulated in the Schengen Code. Similarly, the Belgian measures, which are outrageously discriminatory where European employers are concerned, have raised nothing more than an inaudible murmur from the European executive.
As for national parliaments, just like the European Parliament, they seem terrified into submission by the crisis. Everyone is worried that, by demanding compliance with the rules, they will look like a trouble-maker in what has become a national wartime cause, the fight against the epidemic. Yet, in spite of everything, we are not at war. At no time, moreover, have governments made use, in their existing constitutional arsenal, of this provision, which is actually quite well regulated.
Even the clause to opt out of the European Convention on Human Rights, the famous Article 15, has not been invoked, except by a few countries. Europe’s old democracies have not dared to do so for symbolic reasons. In the words of Frédéric Sudre, professor emeritus at the University of Montpellier and one of the most renowned specialists on the ECHR, this is a real "quarantining".
The infringements of democracy and the rule of law are certainly being tolerated by the population, for the moment. But they are no less damaging for being invisible. They could lead to outpourings of anger, as unpredictable as they are explosive. They could cause a shift at the next elections towards the most extreme forms of populism. Above all, they could give strong arguments to the opponents of European unity, both on the continent and beyond. Russia's behaviour towards the head of the European diplomatic corps, Josep Borrell, on February 5 in Moscow, was no random occurrence. We need to wake up.
Nicolas Gros-Verheyde
Editor-in-Chief, bruxelles2.eu
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