The outbreak of the COVID-19 pandemic has prompted governments to adopt emergency measures with exceptional powers, which threaten a number of our fundamental rights. A situation that worries civil society observers and experts.

No right to gather, no right to education, children prohibited to go out or to follow their parents in supermarkets, people not allowed to pay by cash, the use of drones to track offenders to lockdown rules, personal geolocation data used to track the virus … those are but a few of the challenges to human rights as posed by the sanitary confinement worldwide, including in the European Union.

So far, eight of the 47 member states of the Council of Europe have suspended their participation to the European Convention on Human Rights (ECHR) – amongst which three EU countries, Estonia, Latvia and Romania.

All EU countries at risk

This situation challenges some fundamentals of EU democracies, says Margarida Silva, an activist at Corporate Europe Observatory, a group that tracks corporate lobbying.

Margarida Silva, campaigner at CEO : “A big threat for Europe” (in English)

“We are seeing that this crisis can also give an opportunity for those that want to attack or weaken democracy to do so. And that’s a really big threat.”

For many analysts, the most worrying threat to fundamental rights came from the Hungarian government, when it declared the state of emergency on March 11, then extended on March 30 without any sunset clause. As a result, the government can rule by decree with hardly any legal supervision.

Among the measures was an up to five years imprisonment sentence for spreading “fake news”, a threat that will complicate making impartial reporting of the pandemic. For Julie Majerczak, who heads the Reporters Without Borders office in Brussels, this is a new attack against journalists in an already autocratic country.

Julie Majerczak, Head of Reporters Without Borders Brussels office : “Journalists threatened in Hungary (in French)

“We fear, at Reporter Without Borders, that this law will be used mainly to silence independent and outspoken media, which have been already weakened and under attack for long by (prime minister Viktor) Orbán. And here, under the pretext of fighting the pandemic, Orbán is establishing a strict censorship regime, where he will decide what is true or false. And this is extremely dangerous. »

But Hungary is not an isolated case.

In nearby Poland, the government has recently announced that, due to the pandemic, it would carry out the May presidential elections wholly by postal vote – but no campaign was allowed to proceed because of the virus.

But such threats to democracy are not exclusively observed in Eastern Europe, says Jeremy Shapiro, a research director of the European Council on Foreign Relations (ECFR).

Jeremy Shapiro, Research director at ECFR : “Every EU country is concerned” (in English)

“I think it’s fair to make an opposition to say that countries that already had authoritarian tendencies, already had authoritarian leaders who were intent on seizing power, are going to use this particular crisis to reinforce that trend. But I think it would be a mistake to, because of that, to take your eye off the ball of even a country like France. I mean the amount of powers that are accruing to the government in France and the United States as a result of this crisis are unprecedented.”

But governments’ pursuit of ensuring their citizens’ right to health is put above all other rights, sometimes justifying disproportionate decisions.

For instance, in France, police officers can impose fines on anyone outside their home without a “good” reason; temporary exceptions to criminal law procedures are allowed; and some employees can be asked to work more than the legal time limit.

In Denmark, the government initially wanted the emergency law to allow police forces to enter private homes without a court order, if a coronavirus infection was suspected – a proposal that was however dropped after the parliament opposed it.

For MEP Patrick Breyer, from German Pirate party, the effects of these restrictions are not perceptible by a large part of the population and are, in this lockdown period, likely to pass under the democratic radar screen.

Patrick Breyer, Pirate Party MEP (Germany, Greens/ALE) : “The importance of fundamental rights” (in English)

“The thing about fundamental rights, is that you don’t really often directly see why they exist and why they are important. Often, they protect minorities, they protect activists, they protect whistleblowers. All these people are very important to our society, but we may not be affected by restrictions on their lives directly.”

EU monitoring

At the end of March, 13 member states co-signed a statement condemning all extraordinary measures that do not respect fundamental rights. They have now become 18, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Greece, Ireland, Italy, Latvia, Lithuania, Luxembourg, the Netherlands, Portugal, Romania, Spain and Sweden. Even Hungary announced that it supported the statement – thereby weakening the statement’s meaning.

A few days later, president of the European Commission Ursula von der Leyen expressed, for the first time, her concerns about the situation in Hungary. The Commission is monitoring and mapping all emergency measures, and will respond adequately, the president said in her declaration.

Ursula von der Leyen, president of the European Commission: “Commission’s reaction” (in English)

“I understand that member states may need to take emergency measures to address the immediate health crisis. But I am concerned that certain measures go too far. (…) These emergency measures have to be limited to what is necessary, they have to be strictly proportionate, because they have to be adequate in the situation, they should not last indefinitely and – very important – they should be subject to regular scrutiny.”

The Commission could, for instance, open an infringement procedure against all member states suspected of breaching the democratic rules. According to its regular calendar, the Commission should publish a report in September on the rule of law situation in all member states.

Long-term vigilance

However, one of the issues that worries Jeremy Shapiro the most is the duration of these measures.

Jeremy Shapiro, Research director of the ECFR : “History teaches us that governments don’t give up power easily” (in English)

“History shows that governments don’t give up those powers so easily, even in fairly well-established democracies. (…) I don’t think anyone is saying that what the governments are doing right now isn’t important for the crisis. But what we know from past crisis is that it’s that these measures tend to persist, and they’re very hard to end.”

The 9.11 attacks have had a radical, worldwide impact on liberties, Shapiro explained.

The coronacris, and the endless measures to respond to its consequences, could have a similar impact.

Jeremy Shapiro, Research director of the ECFR: “The key question is, does it ever end” (in English)

“I think that you will see the governments, particularly governments that are very criticised for not acting forcefully enough at the beginning of this crisis, saying: “actually, this crisis isn’t over, we have a huge economic crisis now and that also requires enhancement of national power that requires suspension even of liberties in various ways”. And so, that is why I think the key question in emergencies is never the beginning, it’s always when does it end – and does it ever end.”

For him, vigilance at all levels is crucial as of today, before we realise it is too late.