An article written by Katharina Koch*
With the outbreak of the COVID-19 pandemic in Europe in spring 2020, many European countries decided to implement measures to stop the spreading of the newly discovered virus. This was primarily done to protect vulnerable persons and to make sure that enough capacities in hospitals are available to treat all patients. Those measures varied quite 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 measures which restrict contacts as well as curfews.[i]
These measures were highly debated, as many citizens doubted the necessity and the proportionality of these new regulations. Many persons considered these measures as an unjustified interference with their human rights. Some raised these concerns in front of a court including the European Court of Human Rights (ECtHR): e.g. the case Terheş c La Roumanie[ii] deals with the lockdown regulation adopted in Romania in March 2020.
1.The case: Terheş c La Roumanie
On 16 March 2020, the Romanian president adopted the state of emergency for thirty days which allowed a limitation of the freedom of movement.[iii] Only a couple of days later, on 21 March 2020, a new regulation was adopted according to which it was not recommended to leave the house between 6 am and 10 pm and it was prohibited to leave the house between 10 pm and 6 am.[iv] On 24 March 2020, a new regulation was adopted which prohibited to leave the house except for buying essentials, urgent medical treatments, and short walks.[v] Everyone leaving the house needed to prove the reason with a specific document.[vi] This should enable the enforcement of this regulation by the police and other competent authorities. The state of emergency was prolonged on 14 April 2020 for thirty days and ended on 14 Mai 2020.[vii]
The applicant’s claim
The applicant, a member of the European Parliament, claimed that he was not infected with Sars-Cov-2 during the time of the measure and did not show any symptoms of the disease, nor had he had contact with an infected person.[viii] For these reasons, he argued that the measures were an unjustified interference with his right to liberty and security enshrined in Art. 5 of the European Convention on Human Rights (ECHR).[ix] Interestingly, the applicant based the application only on Art. 5 ECHR and the right to liberty and security as he wanted to show that the measures implemented by Romania reached the level of detention. Consequently, he did not mention the freedom of movement enshrined in Art. 2 § 1 of Protocol No. 4[x] in his application.
The Court’s decision
The judges of the Strasbourg Court mainly focused on the fact that the measures were directed against everyone living in Romania to argue that they could not be qualified as a detention and consequently that there was no violation of Art. 5 ECHR.[xi] Therefore, the judges 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.[xii]
This raises primarily two questions: First, whether the judges of the Strasbourg Court are right in arguing that the measure implemented in Romania is not a detention in the meaning 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 of movement
The question whether the measure implemented in Romania reached the level of detention is closely linked to the relationship between the right to liberty and security enshrined 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 Strasbourg court. According to the court’s interpretation, these two rights are closely linked and detention is considered to be the harshest restriction on the freedom of movement.[xiii] In two cases, Austin and others v United Kingdom and De Tomasso v Italy, the ECtHR therefore stressed the importance to analyse the concrete situation and the implementation of the measure.[xiv] Thus, it is important to take into consideration the kind of restriction of liberty, its length, its effects, and the modalities of the measure.[xv]
In the Terheş decision the judges referred to those two judgements to assess whether the measure implemented to stop the spreading of the coronavirus in Romania reached the level of detention.[xvi] Concerning the modality, the ECtHR stressed that the measure was not an individual one directed against the applicant, but rather a collective measure directed against everyone living in Romania.[xvii] Furthermore, it was possible within the framework of the exceptions mentioned in the regulation, to leave the house and to visit places which are necessary in everyday life such as shops for essentials and medical treatment.[xviii] Therefore, the judges of the ECtHR concluded that the applicant was not deprived of all his social contacts as it had been the case in De Tommaso v Italy.[xix] Additionally, the applicant was not able to give an example of a situation in which he needed to do something that he was not allowed to due to the legislation in force.[xx]
For these reasons, the measure established by the Romanian authorities to stop the transmission of the coronavirus did not qualify as detention within the meaning of Art. 5 ECHR but rather as an interference with the freedom of movement.[xxi]
Although the measures implemented in Romania might have conveyed the feeling of being 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 possible for many reasons, including going for short walks. Thus, the exceptions mentioned in the regulation were relatively broad. Additionally, detention is usually characterized by the fact that 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 Romania were not a detention and consequently, did not fall within the scope of Art. 5 ECHR. This is why the Court declared the application as incompatible ratione materiae with the provisions 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 of movement enshrined in Art. 2 § 1 Prot. No. 4. The question is whether the restriction of the freedom of movement could be justified since the ECtHR did not deal with that aspect in its judgement.
3. The proportionality of the measure
The proportionality question was not addressed by the Strasbourg Court because the applicant only based its application on Art. 5 ECHR which makes this question even more interesting.
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 of national security, for the maintenance of ordre public, for the prevention of crime, for the protection 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 prescribed by law, pursue one of the legitimate aims referred to in the third paragraph, and be necessary in a democratic society. The Romanian measures have been implemented as a regulation in Romanian law and thus, they are prescribed by law. The intention of the Romanian authorities was to stop the spreading of the newly discovered coronavirus and aimed at the protection of health which is mentioned in Art. 2 § 3 Prot. No 4.[xxii]
Therefore, the main question is whether the measures implemented were also necessary in a democratic society. According to the ECtHR’s case law, this means that the interference needs to correspond to a “pressing social need” and needs to be “proportionate to the legitimate aim pursued”.[xxiii] The measures introduced very harsh restrictions on the freedom of movement. The persons living in Romania were generally not allowed to leave their house without proving one of the exceptions mentioned in the regulation. Even though these exceptions were relatively broad and, also included going for a short walk as an exception, the measure was a severe limitation of the freedom of movement. Additionally, this is also underlined by the fact that the citizens were asked to have a documentation when they left their house.
Nevertheless, one needs to keep in mind the situation at the time when the measures were implemented. Back then, the coronavirus was just known for a couple of months and started to spread in Europe. Even though it was just the beginning, the virus spread rapidly, and the hospitals and intensive care units in some regions in Europe were already overcrowded and did not have enough capacities to treat all patients.[xxiv] Even when capacities in hospitals were sufficient, many persons, especially the elderly, died after being tested positive for the virus. This underlines the need for the European states to act to protect the citizens and to guarantee that the hospitals had enough capacities to treat all patients.
Although the overall situation in Europe became severe, there was a lack of information about the virus at that time. That means that it was for example not exactly known how the virus was transmitted, what typical symptoms were and who belonged to particularly vulnerable groups and was consequently likely to have a severe course of disease. This lack of information caused a lot of uncertainties at that time when the governments discussed what measures could stop the spread of the coronavirus.
Keeping these two points in mind, it seems necessary to grant a wide margin of appreciation to the states as they needed to act in a life-threatening situation with a lot of uncertainties. This means that the States were allowed to adopt more restrictive measures 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 scientific information as soon as it became available.
Although the measures adopted in Romania were rather strict compared to those in other European countries, the measures fall within this wide margin of appreciation since they were only implemented for a short period of time (initially for 30 days and then prolonged for another 30 days) and they were effective to stop the spreading of the virus as they led to contact restrictions which were at that time known to be the most effective measure to stop the spread of the virus.
In view of that result, it would not have been necessary for the Court to examine the validity of Romania’s derogation according to Art. 15 ECHR also from the freedom of movement, even if the applicant had invoked Art. 2 § 1 Prot. No. 4.[xxv]
To summarize, the decision of the ECtHR is the consequent development of its case law as the court simply applied the criteria developed before. Therefore, it was rather predictable that the measure implemented in Romania would not be considered as a detention in the meaning of Art. 5 ECHR, especially as the measure was not an individual sanction for any misbehaviour but a collective measure.
Nevertheless, due to the limits given by the application, the court did not address the more interesting question whether the interference in the freedom of movement could be justified. But based on the uncertainty at the beginning of the pandemic and given the urgent need to act posed by the increasing number of cases and the increasing hospitalisation rate at that time, it can be justified that a state implements stricter measures to protect its citizens. However, when a state implements rather strict measures, it is necessary that they are limited to a short period, monitored closely and adapted if necessary. As this was the case in Romania, the interference was justified in this case. But that does not mean that comparable measures could be justified nowadays with 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 easily transmitted and deadlier than the previous variants, there are other measures available to reduce the spreading of the virus such as for example vaccines and increased testing capacities. Additionally, there is much more information available about the virus which makes it easier to implement more specific measures. Therefore, the threshold to justify comparable measures is now much higher than back in March 2020.
*Dipl.-Jur. Katharina Koch, LL.M. is a PhD candidate and currently a legal trainee in Lübeck.
[i] An overview of lockdown measures across Europe can be found in the following article: DW, Coronavirus: What are the lockdown measures across Europe?, 14 April 2020, https://www.dw.com/en/coronavirus-what-are-the-lockdown-measures-across-europe/a-52905137, 29 August 2021.
[ii] ECtHR, Terheş c La Roumanie, App. No. 49933/20, Decision of 13 April 2021.
[iii] ECtHR, Terheş c La Roumanie, para. 5.
[iv] ECtHR, Terheş c La Roumanie, para. 6.
[v] ECtHR, Terheş c La Roumanie, para. 7.
[vi] ECtHR, Terheş c La Roumanie, para. 7.
[vii] ECtHR, Terheş c La Roumanie, para. 8.
[viii] ECtHR, Terheş c La Roumanie, para. 10.
[ix] ECtHR, Terheş c La Roumanie, para. 31.
[x] 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)
[xi] ECtHR, Terheş c La Roumanie, para 42 and 45.
[xii] ECtHR, Terheş c La Roumanie, para. 46
[xiii] ECtHR, Austin and others v The United Kingdom, App. No. 39692/09, Decision of 15 March 2012, para. 57.
[xiv] 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.
[xv] ECtHR, De Tommaso v Italy, para. 80, ECtHR, Austin and others v The United Kingdom, para. 59.
[xvi] ECtHR, Terheş c La Roumanie, para. 36.
[xvii] ECtHR, Terheş c La Roumanie, para. 42.
[xviii] ECtHR, Terheş c La Roumanie, para. 43.
[xix] ECtHR, Terheş c La Roumanie, para. 43.
[xx] ECtHR, Terheş c La Roumanie, para. 44.
[xxi] ECtHR, Terheş c La Roumanie, para. 46.
[xxii] Cf. Art. 2 of décret n° 195/2020 establishing the state of emergency in Romania as printed in the judgement (ECtHR, Terheş c La Roumanie, para. 23).
[xxiii] ECtHR, The Sunday Times v. The United Kingdom (No. 1), App. No. 6538/74, Decision of 26 April 1979, para. 62.
[xxiv] 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).
[xxv] See ECtHR, Terheş c La Roumanie, para. 46.
Suggested Citation: Koch, Katharina, Lockdown measures as detention?: The case Terheş & La Roumanie, jean-monnet-saar 2021, DOI: 10.17176/20220427-144926-0