The implications of COVID-19 on fundamental human rights : a comparative analysis of Maltese and foreign response

Abstract

For the first time in the history of the European Convention on Human Rights (ECHR), the Covid-19 pandemic resulted in Member States being affected simultaneously by the same crisis, involving the same rights. Covid-19 has significantly challenged legal, political, and social systems’ capacities to respond to such crisis, leading to certain measures taken to control the pandemic interfering with fundamental human rights. This dissertation comparatively analyses how society’s rights are to be protected under the ECHR in such an emergency and whether that protection was catered for under Maltese law with the authorities’ response to Covid-19. Particularly, showing whether Maltese Covid-19 restrictions may have unjustly interfered with Article 2, 3 and 5 of the ECHR. This paper also analyses whether measures and restrictions observe the emergency provisions and limitations permitted under the ECHR, whether derogation was required while highlighting the Maltese legal framework used to combat Covid-19 and if the rule of law was adhered to. Although Malta started with one of the most restrictive regimes, for the most part, measures implemented did not unjustly interfere with the fundamental human rights analysed. However, research shows some interferences in individual’s cases. The Maltese authorities did not derogate via Article 15 of the ECHR and declared a public health emergency while making use of the Convention’s ‘limitation clauses’. This study finds that there was no need to derogate as the principles of proportionality, necessity and legality to the legitimate aim ensued were appropriate. Not derogating was not an indication of abusive practice when democratic accountability was evident. The Rule of law was clearly affected by the virus as judiciaries and parliament were interrupted, partly due to lack of preparedness. Malta used a statutory emergency regime. However, checks and balances by parliament and judiciary helped in curtailing any abuses from certain restrictions.