Saint Petersburg Legal Forum, “Human Rights under Quarantine”

10 April 2020, online

• I often hear comparisons between the current situation and World Wars. I will not venture into this, but I will say this. Compared to the end of World Wars, we have a big advantage: we already have our Statute and we already have our Council of Europe. We need to stand by it, apply our standards and remind them to those who may temporarily be tempted to overlook them. 
• As the Virus caused loss of lives around the world, it will not cause the loss of our basic values and freedoms, precisely because we have the Council of Europe. During today’s event, I would like to make five main points [, drawn from the Secretary General document mentioned earlier.] This is of course a selection of the issues that are relevant in the current context, given the time allocated to me.
• First, let me refer to the emergency legislation passed in many countries to face the crisis. The Founding Fathers of the Council of Europe were not crazy or extremists. They understood that certain rights and freedoms enshrined in the European Convention on Human Rights could be temporarily derogated in exceptional circumstances. This is why they included Article 15 which allows for derogations in times of emergency, like the one we are witnessing right now due to the Coronavirus. A number of states have in fact taken advantage of this provision. 
• However, the derogation is not absolute and indefinite. Even in an emergency situation the rule of law must prevail. In addition, while governments may receive a general power to rule by decrees, this is acceptable only provided that those general powers are of a limited duration and any prolongation subject to Parliamentary control. Those who think that there can be an indefinite perpetuation of the general exceptional powers of the executive are missing the point all together. This would not be Strasbourg-compliant.  
• My second point is about new technologies. As the confinement measures continue in many countries and discussions on de-confinement start in others, the common thread is about new technologies. It is undeniable that during the crisis, new technologies have allowed many of us to continue working, connecting, playing, learning, studying, and staying healthy. We have all discovered that a lot can be done via video-conferencing facilities, perhaps learning new good practices to maintain even after the crisis is over. In a post-crisis scenario, no day goes by without media revealing the latest technological application to contain the pandemic and prevent future contagion. There is much talk about “epidemic surveillance”, with Apps ready made to know whether our neighbor has contracted the Virus. 
• One of the most advanced computer technologies of our time, artificial intelligence, has also been mobilised for various applications: support for medical research and doctors, filtering disinformation/misinformation on social networks, but also to enhance the efficiency of population surveillance systems. Some of the applications I have just mentioned also propose to use AI to assess the risk of contamination. Innovation and inventiveness are necessary in times of crisis, but we should avoid solutionism by creating new problems instead of solving them.
• The intrusive potential of modern technologies must not be left unchecked and unbalanced against the need for respect for private life. Data protection principles and the Council of Europe Data Protection Convention have always allowed a balancing of high protective standards and public interests, including public health. The Convention allows for exceptions to ordinary data-protection rules, for a limited period of time and with appropriate safeguards, and an effective oversight framework to make sure that these data are collected, analysed, stored and shared in legitimate and responsible ways. Large-scale processing of personal data by means of artificial intelligence should only be performed when the scientific evidence convincingly shows that the potential public health benefits override the benefits of alternative, less intrusive solutions. 
• There is a balance to be found here. It is not safety to the detriment of privacy or vice-versa. It is both safety and privacy at the same time. This balance can and must be found.
• My third point is about fake news and freedom of expression. Fake news span from conspiracy theories about the Virus to fake de-confinement plans, from pretended miraculous cures to the latest business opportunity, and more. In this context, media and professional journalists, in particular public broadcasters, have a key role and special responsibility for providing timely, accurate and reliable information to the public, but also for preventing panic and fostering people’s co-operation. They should adhere to the highest professional and ethical standards of responsible journalism, and thus convey authoritative messages regarding the crisis and refrain from publishing or amplifying unverified stories, let alone implausible or sensationalist materials. 
• Similarly, as country need to ensure the necessary transparency and access to public information, journalists, media, medical professionals, civil society activists and public at large must also be able to criticise the authorities and scrutinise their response to the crisis. Any prior restrictions on certain topics, closure of media outlets or outright blocking of access to on-line communication platforms call for the most careful scrutiny and are justified only in the most exceptional circumstances. This pandemic cannot be used to silence the media, whistle-blowers or political opponents.
• Certain rights in the European Convention on Human Rights are not-negotiable. They are absolute. This will be my fourth point. The right to life and the prohibition of torture and inhuman or degrading treatment or punishment belong to the core rights under the Convention and cannot be subject to any derogation. This applies to anyone under the jurisdiction of a member state, including those who are deprived of their liberty. 
• In this connection, let me recall the very recent and timely statement by our Committee for the Prevention of Torture, the CPT, on “Principles relating to the treatment of persons deprived of their liberty in the context of the COVID-19 pandemic”. They apply to various places, including police detention facilities, penitentiary institutions, immigration detention centres, psychiatric hospitals and social care homes, as well as in various newly-established facilities or zones where persons are placed in quarantine in the context of the COVID-19 pandemic. The CPT principles also refer to the need to protect staff working in these institutions and to ensuring continuous access by national independent monitoring bodies to detention facilities. The CoE Commissioner for Human Rights also published a Statement on urgent steps needed to protect the rights of prisoners in Europe.
• For the sake of completeness, let me remind us all that States’ responsibility under Articles 2 and 3 of the Human Rights Convention may also be invoked in respect of severely ill patients, people with disabilities or elderly persons, who have particularly suffered during the crisis.
• My fifth and last point is about the dark-side. The crisis has been and continues to be an opportunity for unscrupulous criminals to take advantage from the collective sufferings to pursue their personal gains and dirty plans. There is no limit to the extent criminals can be perverse. 
• Violence against women and children, cyber-crimes and counterfeit medical products have regrettably been on the rise. Confinements have been fertile grounds for increased domestic violence and violence against children, including online. Our over-reliance on the Internet during work-from-home times has allowed cybercriminals to target a growing number of individuals and threaten critical infrastructures on which we are all relying. And no day goes by that we don’t receive an e-mail selling face masks for 0.2 USD a piece, minimum purchase 50,000 pieces, delivery time 1-2 days, or the latest fake COVID-19 testing kit. Needless to say that all these criminal phenomena will, in most cases, have an international dimension.
• In Europe, we have the ability and the most modern legal tools to prevent and counter these crimes. The Council of Europe Istanbul and Lanzarote Conventions tackle respectively violence against women and sexual exploitation and abuse of children; the Budapest Cybercrime Convention is the only and most advanced treaty to combat crimes committed on, against or through computer systems; and the Medicrime Convention aims at stopping counterfeit medical products from flooding the market. We know what we need countries to do: sign, ratify and effectively implement these four important Council of Europe treaties. This will go a long way in reducing and hopefully stopping these crimes on our Continent and beyond. 
• Let me conclude. This is not a time to be fearful. Europe is strong because our foundations are strong. They are solidly rooted in the Council of Europe. While we look for a medicine and a vaccine against the Virus and we support our economies to rebound, we must stand united by the Council of Europe and its values as the strongest foundation we have to exit the crisis, rebuild our societies and facilitate our “economic and social progress”. The latter are, not coincidentally, words from the Council of Europe Statute.
• Thank you for your attention.