Some thoughts on COVID-19 and the Rule of Law


11 Apr. 2020


By Süleyman Feyyaz Keyik


Following the outbreak of COVID-19 in Wuhan (China) the coronavirus has rapidly emerged as a global concern to public health. After COVID-19’s declaration as a “pandemic” by the World Health Organization (WHO) and an increasing death toll attributed to the disease, several countries began implementing strict measures against the disease, which affected both countries’ public and private sectors to control this crisis. In Italy, one of the most affected countries in Europe, more than 5000 people have passed away. German chancellor Angela Merkel’s address to the German people described the pandemic as follows: “The situation is serious. Take it seriously.” States’ responses to the disease aim at controlling the number of infections, so as to make them more manageable for the respective country’s healthcare system.


In dealing with the spread of the pandemic, countries are tested by the law. COVID-19 does not merely examine countries’ healthcare systems, but also the workings of democracy and the rule of law. After becoming overburdened with patients on Italian intensive care units proved insufficient, obliging doctors to select which patients would continue to receive treatment, based on their higher life expectancy. Italian doctors were forced into moral and legal dilemmas. 


It is not least for this reason that it is important to start considering what, restrictions on fundamental rights and freedoms are, in fact, permitted under the constitutions of the affected countries. For now, Italy, France, the United Kingdom, Spain and Germany have entered lock downs. For instance, in France, only 1 person from each family is allowed to leave the house for shopping. Similarly, in Germany people are asked to ride bicycles or drive private automobiles while commuting, instead of using public transportation. According to a recent decision of the European Commission, apart from some specified repatriation flights, all flights to the Schengen region are suspended. In addition, Spain and Hungary have already declared states of emergency. 


While “states of emergency” have become an increasingly popular policy option among decisionmakers, their gravity should not be underestimated. The limits on a state’s power are lifted during the state of emergency. One of the main concerns surrounding states of emergency is the absence of a binding power, which would force governments to return its power back into ordinary limits. Even though the state of emergency might be justified to expedite decision-making processes, it makes human rights more vulnerable. Of course, COVID-19 threatens to become a disaster for public health, still it’s possible effects on contemporary democracies are unknown. While in crises fundamental rights may seem to be curtailed easily, they may be difficult to reinstate. The unusual and exceptional situation could become usual. Germany’s Infection Protection Act and Police Act enable the government to restrict certain rights. However, individual policymakers and commentators have regarded this existing legislation insufficient for the severity of the current situation. 

Across Europe people are warned to stay at home. Almost all public events have been suspended or canceled. People were mandated to leave public places and to remain in the private sphere. 


Even though the effectiveness of these measures in terms of fighting COVID-19 is still uncertain, severe economic consequences have ensued, which are expected to be magnitudes larger than the 2008 financial crisis. In 2008, people and companies faced bankruptcies while swathes of the US population lost their homes. In 2020 economic activity seems largely suspended, while global stock markets have taken a hit. According to a report by the Kiel Institute for the World Economy the Germany economy is expected to contract as result of COVID-19. 


Apart from these economic problems, the pandemic has caused several judicial issues that are waiting to be resolved. For instance, it is unclear how European countries will react once the current outbreak spreads to prisons. According to the Germany’s Robert-Koch Institute, the most efficient protection way against COVID-19 is to reduce our social interaction as much as possible. Yet, this may not be possible in prisons. Moreover, prisons pose problems regarding the supply of cleaning products. Correspondingly the Germany Federal Ministry of Justice and some federal states in Germany have started to delay the implementation of punishments for certain misdemeanors, such as unlicensed driving. However, possible effects of COVID-19 for German prisons are still unknown.


Following the German example, other countries are also considering to the implementation of criminal sanctions, in case of a possible spread of COVID-19 to prisons. The Turkish Parliament has expedited legislative procedures concerning the remission of prisoners, in discussion for more than one year. The proposed legislation aims to release more than 100.000 prisoners. Turkey, known for serious human rights violations and the detention of political dissidents, faces hopelessly overcrowded prisons. As such, the possible “amnesty legislation” may be necessary to safeguard prisoners’ right to life and physical integrity under the European Convention for Human Rights. 


Another key legal issue pertains to the balance to be stuck between the freedom of speech and states’ imperative to inform citizens about the pandemic. Countries like China are notorious for censoring press coverage and limiting public’s access to information. While China eventually reached out to the WHO concerning COVID-19 and has provided some information about the virus, it continues to punish its citizens who publish information about COVID-19 on social media. China sought to control the flow of information and to disseminate propaganda about its handling of the crisis. Yet, information from China has been received with increasing suspicion in the West. Yet even beyond China, countries struggle to control the proliferation of miss-information, fake news, and conspiracy theories. To achieve this goal, transparency is important. 


As COVID-19 continues, it is possible that at least some countries may consider constitutional amendments that may reconsider several fundamental rights and personal freedoms, including the rights to assembly and free movement in the face of concerns over public health. These considerations may require societies to find a new balance between freedom and security. 



Edited by Julius Rogenhofer.