Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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Vol.39 N° 68
Enero
Junio
2021
Recibido el 15/10/2020 Aceptado el 14/02/2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
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avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
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Vol. 39, Nº 68 (Enero - Junio) 2021, 103-120
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Realization of the right to free
movement under quarantine conditions:
practice of the European Court
of Human Rights
DOI: https://doi.org/10.46398/cuestpol.3968.05
Anzhelika Krusian *
Vadym Tsiura **
Boris Perezhniak ***
Roman Sabodash ****
Lyudmila Kazakova *****
Abstract
Under uncertain conditions, the introduction of a state of
emergency and quarantine measures, the scope of human rights
may be subject to state interference and some rights cannot
be exercised at all. The aim of the work is to examine the problem of the
exercise of the right to freedom of movement and personal integrity in the
context of COVID-19 through the practice of the European Court of Human
Rights ECTHR. The theme of the study is the social relations that arise in
the exercise of the right to freedom of movement and personal integrity
in the COVID-19 pandemic. Research methods are the dialectical method,
the method of system analysis, synthesis, induction, deduction, modeling,
comparison, generalization, and formalization. As a result of the study,
the problems of the realization of the right to freedom of movement and
personal inviolability in COVID-19 were analyzed through the prism of
ECtHR decisions. The international experience of regulating the right to
circular under quarantine conditions was claried and suggested ways to
solve this problem to protect human dignity.
* Doctor of Legal Science, Professor, Head of the Department of Constitutional, Administrative and
International Law of the Kyiv Institute of Intellectual Property and Law. ORCID ID: https://orcid.
org/0000-0001-6437-2864. Email: 370235@ukr.net
** Doctor of Legal Science, Professor of Civil Law Department of Taras Shevchenko National University of
Kyiv. ORCID ID: https://orcid.org/0000-0002-2731-9930. Email: 370235@ukr.net
*** Doctor of Legal Science, Professor of Constitutional Law Department of National University “Odesa Law
Academy” Honored Lawyer of Ukraine, Academician of the National Academy of Sciences of Higher
Education of Ukraine. ORCID ID: https://orcid.org/0000-0002-4096-0861. Email: perezhnyak@
gmail.com
**** Ph. D., Associate Professor of Civil Law Department of Taras Shevchenko National University of Kyiv.
ORCID ID: https://orcid.org/0000-0001-5707-1107. Email: romansabodash@knu.ua
***** Ph. D., Associate Professor of International Politics Department of Uzhorod National University.
ORCID ID: https://orcid.org/0000-0001-7529-9543. E-mail: Luda.kazakova@uzhnu.edu.ua
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Anzhelika Krusian, Vadym Tsiura, Boris Perezhniak, Roman Sabodash y Lyudmila Kazakova
Realization of the right to free movement under quarantine conditions: practice of the European
Court of Human Rights
Keywords: realization of human and civil rights and freedoms; ECtHR
practice; freedom of movement; personal inviolability;
Covid-19 pandemic.
Realización del derecho a la libre circulación en
las condiciones de cuarentena: práctica del tribunal
europeo de derechos humanos
Resumen
En condiciones de incertidumbre, la introducción de un estado de
emergencia y medidas de cuarentena, el alcance de los derechos humanos
puede estar sujeto a la interferencia del Estado y algunos derechos no
pueden ejercerse en absoluto. El trabajo tiene como objetivo estudiar el
problema del ejercicio del derecho a la libertad de circulación y la integridad
personal en el contexto del COVID-19 a través de la práctica del Tribunal
europeo de derechos humanos TEDH. El tema del estudio son las relaciones
sociales que surgen en el ejercicio del derecho a la libertad de movimiento
y la integridad personal en la pandemia de COVID-19. Los métodos de
investigación son el método dialéctico, el método de análisis de sistemas,
síntesis, inducción, deducción, modelado, comparación, generalización y
formalización. Como resultado del estudio, se analizaron los problemas de
la realización del derecho a la libertad de movimiento y la inviolabilidad
personal en COVID-19 a través del prisma de las decisiones del TEDH.
Se aclaró la experiencia internacional de regular el derecho a la circular
en condiciones de cuarentena y se sugirieron formas de solucionar este
problema para resguardo de la dignidad humana.
Palabras clave: realización de los derechos humanos; práctica del
TEDH; libertad de movimiento; inviolabilidad personal;
pandemia de COVID-19.
Introduction
The spread of the Covid-19 pandemic has changed people’s lives. People
began to travel less, visit crowded places, and, generally, move around. Such
activities in November 2020 did not take place voluntarily but as a result of
the adoption of a number of legislative acts. In order to ensure the security
of the state border and to prevent the spread of coronavirus infection, each
state has adopted regulations that have signicantly affected the movement
of its inhabitants and citizens.
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In general, given the growing role of civil society institutions in many
countries, it is important to study the issue of legislative provision of
human and civil rights and freedoms, among which the right to freedom
of movement occupies a special place. Movement is a major element of
freedom, self-determination, and a necessary condition for the exercise of
many other rights and freedoms.
Different countries regulate the issue of restriction of movement in
emergencies, including the Covid-19 pandemic, which necessitates the
analysis of theoretical aspects of legal regulation of this right: its concept
and content, compliance of Ukrainian legislation on this issue with the
provisions of international human rights law, consider the experience of
other states on the constitutional regulation of this right and the content of
bills on the right to freedom of movement in Ukraine, explore the possibility
of restricting this right, and to analyze the case-law of the European Court
of Human Rights (hereinafter – ECtHR) on this issue.
1. Аnalysis of recent research
At present, the question of the implementation of constitutional rights
and freedoms of man and citizen in the context of Covid-19 is just beginning
to be studied by scientists and is extremely relevant.
To study the problematic aspects of the exercise of the right to freedom
of movement and personal inviolability, the works of such scholars, lawyers,
and judges as Buchkivska (2013), Vlasenko (2020), Drozdov (2020),
Egorova (2020), Kokhanovska (2015), Myshchak (2020), Sukmanova et al.
(2020), Chervonenko (2020), and Shutko (2020) were analyzed. As it can
be seen, in order to write relevant work, we used the most recent articles,
research and publications.
Firstly, it should be noted, that Buchkivska (2013) investigated
the restriction of individual freedom and inviolability during criminal
proceedings, taking into account the case-law of the European Court of
Human Rights.
Moreover, in her work, Vlasenko (2020) drew attention to the fact that
Kyiv did not limit the effect of the Convention on Human Rights due to the
epidemic. Thus, the author notes that under quarantine, which provides
for several restrictions for citizens, only eight member states of the Council
of Europe have suspended some articles of the European Convention on
Human Rights and Ukraine is not among them.
Drozdov (2020) analyzed the criteria for ensuring human rights under
Covid-19. The author drew attention to the most popular arguments
about the illegality of restrictions on freedom of movement, which is that
restrictions on constitutional human rights and freedoms are permissible
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Realization of the right to free movement under quarantine conditions: practice of the European
Court of Human Rights
only in a state of war or emergency. Thus, Drozdov (2020) drew attention
to Part 1 of Article 64 of the Constitution and the fact that rights and
freedoms may be restricted in the cases provided for by it. According to
Article 33 of the Constitution, freedom of movement may be restricted by
law. As to the author, the thesis about the illegality of restrictions and the
possibility of imposing them only in a state of emergency or martial law
can be questioned. Regarding the proportionality and social necessity of the
restriction, the author brings attention to the fact that to be constitutional,
the restriction of a right or freedom must not only comply with the law, but
also be proportional and socially necessary.
Besides, Kokhanovska (2015) analyzed the problems of exercising the
right to freedom of movement in Ukraine, as well as the case-law of the
European Court on these issues. She examines the provisions of the Civil
Code of Ukraine and the Constitution of Ukraine and the stipulations of
international instruments the conditions under which these restrictions are
allowed, as well as the right to freedom of movement and the right to free
choice of residence are analyzed on practical examples.
Alternatively, Kravets (2020) studied in detail the interference in various
human rights during the pandemic. Then, Myshchak (2020) explained the
legality of the introduction of quarantine in Ukraine and the compliance
of restrictive measures with constitutional guarantees for the protection of
citizens’ rights. It should be noted that Sukmanova et al. (2020) analyzed
the strengthening of quarantine measures, namely the restriction of free
movement of citizens. Furthermore, Chervonenko (2020) investigated
whether quarantine restrictions in Ukraine contradict the Constitution.
Shutko (2020) summarized, in his work, all the legislative changes caused
by coronavirus disease. What is more, Egorova (2020) emphasizes on how
Covid-19 mobilizes and how civil society adapts to change.
Analytical materials on the researched topic from the sites of law rms
and public platforms were also used in the work.
The above analysis of the literature conrms that the problem of
exercising the right to freedom of movement and personal integrity through
the practice of the ECtHR in quarantine is insufciently studied, which
indicates the need for comprehensive research.
2. Methodology
The study of the implementation of the right to freedom of movement
and personal integrity in Covid-19 through the practice of the ECtHR used
research methods such as dialectical method, method of system analysis,
synthesis, induction, deduction, modeling, comparison, generalization, and
formalization.
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Primarily, the dialectical method made it possible to analyze the
dynamics of the ECtHR’s decisions on the exercise of the right to freedom of
movement and personal integrity and their signicance in the context of the
need to ensure human and civil rights and freedoms during the quarantine.
Further, the method of comparison was used to study and establish
differences between the exercise of the right to freedom of movement and
personal inviolability in normal conditions and the conditions of Covid-19,
as well as between the implementation of the studied right in quarantine in
Ukraine and other countries.
Moreover, the generalization allowed us to identify key issues that
reect the realization of human and civil rights and freedoms in the
context of Covid-19. It is also allowed to analyze the necessary changes for
the successful implementation of the right to freedom of movement and
personal integrity in Ukraine.
The method of abstraction allowed to imaginatively divert attention from
the insignicant properties and connections of the exercise of the right to
freedom of movement and personal inviolability. It helps to investigate the
state of observance and realization of constitutional human and civil rights
and freedoms in Ukraine under normal conditions and various restrictions.
What is more, the method of formalization allowed to reect the
problems of exercising the right to freedom of movement and personal
inviolability through a formal examination of ECtHR decisions.
Using the method of systematic analysis, it became possible to divide
the problem of exercising the right to freedom of movement and personal
inviolability through the prism of the ECtHR decisions into its parts,
namely: problematic aspects of the implementation of the Convention in
Ukraine, problematic issues of legislative enshrinement implementation
and problematic issues of application of the case-law of the European Court
of Human Rights in Ukraine. The synthesis, in turn, made it possible to
unite the individual aspects of social relations that arise, change, and cease
during the exercise of the right to freedom of movement and personal
inviolability as a whole.
The method of induction allowed us to draw conclusions on the research
topic through the general problems of realization of human and civil rights
and freedoms in a pandemic. The method of deduction made it possible
to conclude by analyzing the peculiarities of the exercise of the right to
freedom of movement and personal integrity in quarantine.
Besides, the method of analogy allowed us to analyze the realization of
the right to freedom of movement and personal inviolability with the help
of knowledge about how other rights are realized in the same conditions in
Ukraine.
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Realization of the right to free movement under quarantine conditions: practice of the European
Court of Human Rights
Finally, the method of modeling allowed to model situations in which
the rights and freedoms of citizens will be realized in the conditions of
quarantine in full or with the minimum restrictions which will be justied
by public necessity.
When writing the article, the current legislation and case-law were
analyzed.
3. Presentation of key research ndings
3.1. International experience in ensuring the right to
movement and personal integrity
The right to movement and personal integrity is one of the rights,
affected by state interference during the quarantine. The Convention for the
Protection of Human Rights and Fundamental Freedoms (United Nations,
1950) (hereinafter – the Convention) provides for the interpretation of the
above rights, and the decision of the European Court of Human Rights
(hereinafter – the ECtHR) reects the mechanism of protection of rights
guaranteed by the Convention. The basis of the general the principles of EU
law are the priority of the rights of the individual, enshrined in the European
Convention, which takes into account the constitutional traditions of
European countries.
Concerning the international experience of exercising the right
to movement and personal integrity, it should be noted that foreign
governments have imposed many restrictions on ordinary life in the
member states of the Council of Europe. These restrictions necessarily
affect the exercise of rights and freedoms under the Convention, regardless
of whether their imposition was accompanied by a notication under
Article 15 of the Convention (United Nations, 1950: article 15) on the waiver
of obligations by countries such as Armenia, Estonia, Georgia, Latvia, the
Republic of Moldova and Romania. However, the undoubted existence of
a certain obligation to act to protect life and physical integrity is necessary
when assessing the compatibility of possible restrictions on other rights and
freedoms. Thus, the articles of the Convention stipulate that the prevention
of the spread of infectious diseases is one of the grounds for depriving a
person of his or her liberty.
In Enhorn v. Sweden (European Court of Human Rights, 2005), the
ECtHR found that it must also be demonstrated that the spread of an
infectious disease is dangerous to the health or safety of the population and
that the detention of an infected person is the last resort to prevent the
spread of the disease because less severe measures were recognized and
found insufcient to protect the interests of society. In addition, whenever
these criteria are no longer met, the grounds for deprivation of liberty cease
to exist.
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Restrictions must be necessary for a democratic society and thus
proportionate to the legitimate aim pursued. However, in only one case,
Kuimov v. Russia (European Court of Human Rights, 2009), the ECtHR
emphasizes that the restriction should be a temporary measure that should
be lifted as soon as circumstances permit.
However, in the case of Covid-19, it should be borne in mind that the
ECtHR considers signicant interference with the law when the State has
taken action in response to “the existence of an exceptional crisis without
precedent”.
It is necessary to determine whether the establishment of the
peculiarities of movement is a deprivation of liberty or only interference
with the freedom of movement. The ECtHR notes that to determine whether
a person has been deprived of his or her liberty, it is important to analyze
the situation and to consider the type, duration, consequences, and manner
of the measure, as the difference between deprivation and restriction of
liberty is character or essence.
Therefore, it is essential to prove the need to stop the spread of
coronavirus and whether the measure was adopted only when other smaller
restrictions did not apply, as well as whether it was not kept longer than was
necessary to achieve the goal. Restricting access to certain places, districts,
or parts of the country and even to places of residence is considered an
interference with the right to freedom of movement.
Currently, there have been changes in the movement of Ukrainians.
Thus, during the period of quarantine restrictions, the movement of
Ukrainians changed as follows (Table 1).
Travel points
Change in indicators from the
control value during the Covid-19
pandemic
Retail and recreation -11%
Grocery stores and pharmacies +5%
Parks +3%
Transit stations -6%
Workplaces -27%
Residential +2%
Table 1. The changes in the movement of Ukrainians. Data
provided by the Google (2020).
As for the experience of foreign countries in solving the problem of
realization of rights and freedoms, it was noted that several member states
are deviating from their obligations. Latvia’s resignation also implies a
possible extension of imprisonment. Derogations from the obligations of
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Realization of the right to free movement under quarantine conditions: practice of the European
Court of Human Rights
Armenia, Estonia, and Latvia include a ban on entry to all or some persons
who are not citizens or legal residents. Armenia prohibits its citizens from
leaving the country except for cargo, and a similar result will be achieved
by Latvia’s order to close international passenger trafc, as well as the
requirement to cancel, postpone and not plan all business trips to countries
affected by Covid-19, and appeals to refuse from traveling abroad. In their
waivers, both the Republic of Moldova and Romania impose indenite
restrictions on freedom of movement. The ability of a person to leave any
country, including his or her own, is guaranteed by Article 2 of Protocol No.
4 to the Convention for the Protection of Human Rights and Fundamental
Freedoms (United Nations, 1963: article 2) but may be subject to restrictions,
including health care, if necessary in a democratic society.
The European Union has provided travel recommendations and called
for restrictions on “minor travel” – that is, travel other than travel or trips
to a pharmacy, hospital, shop, or work. The latter is the most important: the
EU and most EU countries believe that restrictive measures can last for a
signicant period of time – from several months to two years, and therefore
should not lead to signicant economic problems and social cataclysms.
To do this, employers need to determine which employees are present
and for how long is critical to maintaining economic activity. Besides, the
EU has introduced restrictions on “minor travel” to the Schengen area.
Thus, within 30 days, foreign nationals will be able to enter the EU only
in exceptional cases. Each country decides individually on measures to
control the coronavirus. These restrictions apply to all those who remain in
its territory for the period of quarantine.
All mass events are banned in Austria; it is forbidden to gather in
groups of more than ve people; all bars and restaurants are closed; entry
restrictions have been introduced. There are no restrictions on public
transport in the country yet.
Estonia has imposed a state of emergency, quarantined, and banned
foreigners from entering. At the same time, in Spain, people can go out
only to buy medicine and food, go to work if there is an urgent need, and
go to medical facilities and banks. Trips to care for children or the elderly
are also allowed. You can leave the house to walk your pet. Some rent out
their pets for this purpose, others go outside with toys. Spain has closed its
borders to foreigners and restricted travel within the country. In Serbia,
people over the age of 65 are banned from going outside. For older people
living in villages and towns with a population of less than 5,000, the age
barrier is slightly higher – the ban applies to anyone over 70 years of age
(ICPS: International Centre for Policy Studies, 2020).
Now, it will be appropriate to pay attention to changes in movement in
foreign countries (Estonia) (Table 2) and compare it with the experience of
Ukraine.
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Travel points
Change in indicators from the
control value during the Covid-19
pandemic
Retail and recreation -12%
Grocery stores and pharmacies +1%
Parks +3%
Transit stations -23%
Workplaces -16%
Residential +7%
Table 2. Mobility changes in Estonia. Data provided by the
Google (2020).
Thus, it can be seen from the Figure 1 (in comparison with the domestic
legislator), in Estonia, new restrictive legislative norms work for the benet
of the population more effectively.
Figure 1. Mobility changes in Ukraine and Estonia:
Comparison Chart. Own elaboration.
It should be noted that the extent of any restrictions imposed in response
to a pandemic threat will be considered an unjustied interference with
the rights and freedoms under the Convention – whether or not there is a
reference to a waiver, will depend in particular on the specic situation in
the Member State, as well as their degree and duration.
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Court of Human Rights
3.2. National legislation concerning the right to movement
According to the provisions of the Constitution of Ukraine (1996),
Ukraine is a sovereign and independent, democratic, social, legal state,
and man, his life and health, honor and dignity, inviolability, and security
are recognized in Ukraine as the highest social value. Human rights and
freedoms and their guarantees determine the content and direction of
the state, which is responsible to man for his activities; afrmation and
protection of human rights and freedoms is the main duty of the state. The
state is responsible to the person for the activity. The rights and freedoms of
man and citizen are inalienable and inviolable. Constitutional human rights
and freedoms are guaranteed and cannot be revoked.
Art. 29 of the Constitution of Ukraine (1996), everyone has the right to
liberty and security of person. Exceptions to this rule are contained in the
Constitution itself. Moreover, the article 33 of the Constitution of Ukraine
states that everyone is guaranteed freedom of movement. Exceptions can
be established only by law, not by-laws.
Under Article 29 of the Law of Ukraine “On Protection of the Population
from Infectious Diseases” (2000: article 29) and the Law of Ukraine “On
National Security of Ukraine” (2018) in order to prevent the spread of
acute respiratory disease Covid-19 caused by coronavirus SARS-CoV-2, the
Cabinet of Ministers of Ukraine by Resolution of March 11, 2020, No 211
“On prevention of the spread of acute respiratory disease Covid-19 caused
by coronavirus SARS-CoV-2” (2020) (with further changes) throughout
Ukraine quarantine (On the establishment of quarantine to prevent the
spread of acute respiratory disease Covid-19 caused by coronavirus SARS-
CoV-2 in Ukraine and the stages of mitigation of anti-epidemic measures:
Resolution, 2020).
By the provisions of the above resolution, several prohibitions have been
established. Thus, it is forbidden:
• To be in public places without wearing personal protective
equipment.
• Relocation by a group of persons of more than two persons, except
in cases of ofcial necessity and accompaniment of persons under
14 years of age.
• Unaccompanied persons in public places under the age of 14.
• Visiting parks, squares, sports and children’s playgrounds,
recreation areas, forest parks and coastal areas, except for walking
pets by one person and in case of business necessity.
• holding mass events.
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• Being on the streets without identity documents conrming
citizenship or its special status; arbitrarily leave places of
observation (isolation), etc. (On the establishment of quarantine to
prevent the spread of acute respiratory disease Covid-19 caused by
coronavirus SARS-CoV-2 in Ukraine and the stages of mitigation of
anti-epidemic measures: Resolution, 2020).
Such restrictions largely affect the scope of human rights and freedoms
in Ukraine. Therefore, given the restrictions, it is important to analyze in
more detail the problems of exercising the right to freedom of movement
and personal integrity in Covid-19, their legality. Further, attention should
be paid to the ECtHR’s position on state protection, to explore how ECtHR
decisions are used by Ukrainian courts and model possible tools for
addressing human rights and fundamental freedoms.
As already mentioned, inviolability and human security are recognized
in Ukraine as the highest social value. The combination of the concepts of
“freedom” and “personal integrity” is not accidental. They have a history.
Freedom is the human right to do everything permitted by law. Under such
conditions, a person can have complete freedom, be free to choose a certain
course of action within the existing laws of the state. If a society does not
ensure the realization of human rights and freedoms, such a society cannot
be considered democratic.
Under modern conditions, this right is enshrined in international law
and national legislation of Ukraine.
The Constitution of Ukraine stipulates that the Convention for the
Protection of Human Rights and Fundamental Freedoms ratied by
Ukraine is part of national legislation.
According to Art. 17 of the Law of Ukraine “On Enforcement of
Judgments and Application of the Case Law of the European Court of
Human Rights” (2006: article 17), courts use the Convention and the case-
law of the European Court of Human Rights as a source of law.
The provisions of Article 19 of the Convention provide that, for States
Parties to comply with the Convention, their obligations under the
Convention and its Protocols, a European Court of Human Rights shall
be established permanently. The Contracting Parties undertake to comply
with the nal decisions of the Court in any case to which they are parties.
That is, Ukraine’s ratication of the Convention has obliged our state
to create reliable and effective mechanisms for enforcing ECtHR decisions
and applying the case law of this court as a source of law. In the case-law
of the ECtHR, the notion of “freedom and personal integrity” is declared
primarily in decisions on violations of Article 5 of the Convention, which
enshrines a fundamental human right, namely the protection of everyone
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from arbitrary interference by the State with his right to liberty. Any
deprivation of liberty, as the Court notes, must be carried out not only under
the basic procedural rules of national law but also following the purpose of
Article 5, i.e. to protect a person from the arbitrariness of the authorities.
Under Article 5 of the Convention, the right to liberty and security of a
person includes freedom from arbitrary arrest and detention, imprisonment
only based on “law”, the right to be informed of the reasons for arrest, the
right to judicial review of arrest and detention, and the right to challenge
the legality of arrest and detention, the right to compensation for illegal
actions.
At the same time, proclaiming the “right to liberty”, the Convention
understands personal freedom as the physical freedom of a person.
3.3. The right to movement and personal integrity in ECTHR
decisions
Consider how the right to movement and personal integrity is ensured
in ECtHR decisions. Thus, the judgments of the ECtHR pursue the general
purpose of the Convention – to ensure that no one may be deprived of
this liberty arbitrarily (judgment in Engel and Others v. The Netherlands
(1976)).
Not all types of deprivation of liberty are prohibited in the Convention.
The right to liberty and security of a person within the meaning of the
Convention shall be construed as protecting against any procedural or
substantive infringement of personal freedom by public authorities. To
ensure the rule of law, national authorities are obliged to comply with
domestic law, and there should be no abuse of power or dishonesty in the
actions of the state.
Thus, in the judgment in Winterwerp v. The Netherlands (European
Court of Human Rights, 1979), the ECtHR emphasized that the notion of
“lawful” encompasses both procedural and substantive rules. It somewhat
coincides with the general concept of “procedure established by law”.
Compliance with domestic law is directly the responsibility of the State, and
the Convention allows the ECtHR to decide whether domestic law has been
complied with. Arbitrary deprivation of liberty carried out in violation of
the law and without observance of the procedures and guarantees provided
for by national law may lead to a violation of Article 5 of the Convention.
The ECtHR noted that the current legislation of Ukraine is imperfect,
and it is necessary to adhere to the principle of legal certainty. Thus, in
the judgment in Yeloyev v. Ukraine (European Court of Human Rights,
2008), the ECtHR considers that the absence of clearly worded provisions
contradicts the criterion of “predictability of the law” for Article 5 § 1 of the
Convention.
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The ECtHR in Garkavyi v. Ukraine (European Court of Human
Rights, 2010) stated that a person may not or may not be deprived of his
liberty, except as provided for in the Convention. This list of exceptions
is exhaustive, and only a narrow interpretation of these exceptions is in
line with the purpose of this provision, which is to ensure that no one is
arbitrarily deprived of his liberty. Thus, the right to freedom and security of
a person is not absolute and may be limited, but only on the grounds and in
the manner clearly dened by law.
Article 3 of the Law of Ukraine “On Freedom of Movement and Free
Choice of Residence in Ukraine” (2003) stipulates that freedom of
movement is the right of a citizen of Ukraine, as well as a foreigner and
stateless persons legally staying in Ukraine, to move freely and without
hindrance at will in the territory of Ukraine in any direction, in any way, at
any time, except for the restrictions established by law.
Thus, the spread of the Covid-19 pandemic has led to several restrictive
measures that have restricted the rights of citizens, foreigners, and stateless
persons in Ukraine, and the right to freedom of movement and personal
integrity cannot be fully realized. However, such restrictions can be
considered justied if their public necessity is proved, the legal procedure
for imposing restrictions is followed, and such restrictions do not contradict
the provisions of the Constitution, the Convention, and other legislative
acts.
4. Discussion of the obtained results
As a result of the study, the problems of realization of the right to
freedom of movement and personal inviolability in the conditions of
Covid-19 through the practice of the European Court of Human Rights were
analyzed and the following conclusions were made.
1. The Convention seeks to ensure that no one shall be deprived of his
liberty arbitrarily.
2. The Convention does not prohibit all kinds of restrictions but
restricts rights not in accordance with the law and without following
the procedures and guarantees provided by national law.
3. The ECtHR considers that clear provisions on restrictions on freedom
of movement should be provided for in domestic law.
4. Restrictions must be necessary and thus proportionate to the
legitimate aim pursued.
5. The restriction shall be a temporary measure which must be
terminated as soon as circumstances permit.
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Conclusions
Thus, the analysis of the ECtHR’s practice on the problematic issues
of exercising the right to freedom of movement and personal integrity in
Covid-19 and the ECtHR’s practice concluded that in quarantine these
rights may be restricted, but such restrictions cannot be imposed arbitrarily.
First of all, restrictions on human rights by the state must be proportionate
to the legitimate aim. In the case of a coronavirus pandemic, the legitimate
aim is to curb the spread of the disease. At the same time, the governments of
the world must use all possible measures to implement such deterrence, and
only as a last resort - to restrict human rights. Moreover, such restrictions
on human rights must be clearly dened in time and cannot be indenite.
In the event of litigation with citizens, the state must prove the justication
for the application of restrictions and whether a certain restrictive measure
was applied only when other minor restrictions did not apply, and whether
it was maintained longer than was necessary to achieve the goal.
An important aspect that can negatively affect the state of protection of
human rights in different countries around the world during a pandemic is
the right of the state in some cases to derogate from the provisions of the
Convention. In particular, the Convention provides for the possibility for a
State party to derogate from its obligations under the Convention during
an emergency (Article 15). Thus, in the event of war or other public danger
threatening the life of a nation, any State Party may take measures which
derogate from its obligations under this Convention only to the extent
required by the urgency of the situation and provided that such measures
do not conict with its other obligations under international law.
As of mid-2020, the States Parties to the Convention (including Latvia,
Romania, Armenia, the Republic of Moldova, Estonia, Georgia, Albania,
Northern Macedonia, Serbia, and San Marino) had already notied the
Secretary-General of the Council of Europe of their decision to apply the
provisions of Art. 15 of the Convention in the context of the Covid-19
pandemic. Some States subsequently reported the extension of the
derogation and / or its termination with a full return to the provisions of
the Convention. In turn, Ukraine did not make such statements.
Thus, this study is an attempt to analyze the rst decisions of the ECtHR
on human rights violations during the coronavirus pandemic. However, it
is currently not possible to predict the extent of the pandemic infringement
cases. The virus continues to spread across the planet, and it is not yet
known what other measures the state will take to prevent it.
It is worth taking into account the duration of the formation of the case-
law of the ECtHR, as the ECtHR considers cases only after the exhaustion
of all national remedies, and the consideration of cases takes some time.
Therefore, it is too early to analyze the ECtHR’s practice of violating
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Convention rights as a result of measures taken by States to prevent
Covid-19 or to draw conclusions about the relevant positions of the ECtHR.
However, given the use of ECtHR case law by Ukrainian courts as a source
of law and the binding nature of ECtHR judgments in cases against Ukraine,
the Ukrainian legal community should monitor possible ECtHR decisions
in pandemic cases.
Undoubtedly, the problem of restricting the right to move requires
further research, especially given the intensive formation of the case-
law of the European Court of Human Rights in this area in the future.
In particular, it is very crucial to study the mechanisms of restoration of
limited human rights and freedoms, because all the possessions of modern
human civilization, one of the most important of which is the right to free
movement, must be preserved.
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