02.04.2021.

Dr Samantha Joy Cheesman, senior lecturer at the Institute of Comparative Law and Legal theory had the pleasure of taking part in an online seminar held by the Academy of European Law (ERA).

The two-day seminar covered key topics such as the rule of law, access to justice and the right to a fair trial with reference to how COVID-19 has impacted upon these areas. The pandemic has become a stress test on how Member States have responded.  One example has been the emergency measures adopted by some Member States at the beginning of the pandemic. 

Participants heard from several speakers including Joachim Hermann, Member of Cabinet of European Commissioner Didier Reynders, Pamela McCormick, Registry Lawyer, European Court of Human rights and Grégory Thuan dit Dieudonné, Lawyer; President of the human Rights Commission of the European Lawyers’ Union (UAE).

Joachim Hermann spoke about the European Commission’s focus on the Rule of Law and their ongoing commitment to ensure that rule of law is safeguarded as it is the foundation from which all the fundamental rights flow. He further elaborated that the commission requires that the emergency measures taken by the Member States comply with being strictly proportionate and clearly limited in time and necessary in a democratic society, with democratic oversight and independent judicial review. 

Ms Pamela McCormick stated that the ECtHR has, to date received 300 interim measure requests and there have been 5 communicated cases addressing COVID-19 measures. The interim measure requests predominantly fall into three categories:

  1. General measures: to lift or bring about lock down under rule 39 requests
  2. Most requests: individuals who are detained (prisoners, migrant centres) release or access to health care. Vulnerable people in detention-migrants
  3. Extradition: prisoners’ risk of catching Covid-19 in the prison going to. The question remains open as to how the ECtHR will assess the relative risks.

France was used as a case study by Grégory Thuan dit Dieudonné to illustrate the importance of principle of legality and certainty when drafting legislation. It was imperative to ensure the accessiblity, predicatbility and legality of all measures. 

A common theme amongst all of the speakers was the fact that the pandemic had resulted in the need for 

  1. urgent & effective decision-making, whilst not bypassing check & balances
  2. to ensure institutional checks were open for scrutiny by civil society & the media. However, in nearly all the Member States had enacted some limitations on the reporting and monitoring of civil society and the media.
  3. Partial closing of national courts: impact on the national justice systems which are a fundamental element of the rule of law. The is ever-growing need for independent and impartial judges.

The pandemic had magnified the ever-widening justice gap felt by more vulnerable groups such as people living with disabilities, people of age and those living in poverty. This was particularly felt when it came to access to justice and the moving of courts online.

It is important that as we begin to emerge from the COVID-19 pandemic and seek to rebuild that we keep in step with Article 2 of the TEU:

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

Our “European way of life” as defined by Article 2 will be the litmus test as we go forwards in the coming months. The speakers were aware that there are challenges to be overcome but these are not insurmountable.