The pandemic is no excuse for torture

In late May, the NGO No Name Kitchen reported that a group of boys seeking sanctuary in Europe had been found by the Slovenian police just after crossing the border from Croatia. A 16-year-old boy told the organisation that soon after being discovered, the group was ordered to sit on the ground. They did, the boy explained, at which point police dogs were used to intimidate them. One dog attacked him, biting his ear – a piece of which had to be removed when the wound was sewn up.* Police officers are said to have laughed at them and taken pictures after the attack.

In the same month, the Italian Slovene-language newspaper Primorski Dvenik reported an incident involving a white Italian couple living in Slovenia. The couple say that they were out walking when two Slovenian soldiers stopped them and ordered them to sit on the ground. Once on the ground, one soldier aimed his automated rifle straight to the head of the Italian man. The soldier lowered the rifle only when the Italian man started to speak Slovenian. According to him, the soldiers then apologised and told couple that they were looking for ‘illegal migrants’. The Slovenian Armed Forces have denied involvement, leading to speculation that the soldiers might have been members of an anti-migrant armed militia known to be operating in the country.

Does the pandemic allow governments to abuse human rights?

Since the World Health Organization declared COVID-19 as a pandemic on 11 March, several European countries have invoked Article 15 of the European Convention on Human Rights, which allows them to temporarily derogate from some of their human rights obligations. Notably, ten out of forty-seven countries (Latvia, Moldova, Romania, Armenia, Estonia, Georgia, Albania, North Macedonia, Serbia and San Marino) have notified the Secretary General of the Council of Europe that some of the measures taken to curb the pandemic may have human rights implications for their citizens.

Even though Article 15 does not require a state to indicate which ECHR article it is derogating from, six of them have specified it in their note verbale. Derogations mostly involved the right to respect for private and family life, the right to education, freedom of movement and freedom of assembly. In fewer cases, also the right to liberty and security and right to a fair trial were concerned.

Most of the above-mentioned rights and freedoms, such as freedom of assembly, freedom of movement and right to privacy already contain a limitation clause which permits some restrictions for, among other reasons, the maintenance of public safety.

To derogate or not to derogate?

One could think that derogating from the ECHR is the best practice to make sure special powers do not become the new normal and individual rights are protected. Supporters of this view (including human rights scholar Alan Greene) focus on the idea that, without a proper notification of derogation, some states could pretend exceptional measures they have invoked are compatible with the normal legal framework. Moreover, a proper derogation would make sure that the European Court of Human Rights can clearly monitor how powers are being implemented.

Differently, other scholars claim that invoking Article 15 during these trying times is not particularly useful and may send a wrong political message. This has been emphasised by Council of Europe spokesperson Daniel Holtgen, who declared that most measures taken to prevent the spread of the pandemic are already covered by the European Convention on Human Rights, therefore the Council of Europe had not encouraged or obliged member states to make the notification. Three states (Estonia, Moldova and Romania) have already withdrawn their derogation clauses.

Slovenia did not derogate

Regardless of what constitutes the best practice, the important thing is making sure human rights are respected and promoted in this public health emergency (and in its aftermath). Therefore, what is clear is that every state (whether they filed a notification of derogation or not) will have to answer for their actions in three-four years, when the European Court of Human Rights will effectively analyse whether measures were compatible with the ECHR framework.

One of the restrictions imposed by Article 15 is the presence of non-derogable rights: a state can never suspend specific rights, such as the prohibition of torture (Article 3) and right to life (Article 2). However, recent episodes in Slovenia may compromise the state’s prohibition of torture and degrading treatment.

Slovenia did not avail itself of the right to derogation from articles of the ECHR, but as Article 3 provides a non-derogable right to freedom from torture, inhuman and degrading treatment they cannot commit these acts, even during a pandemic or other ‘national emergency’. No-one should ever be attacked in the way described by the 16 year old boy, and it points to deeper political and rule of law problems in Slovenia.

In early April, Slovenian Prime Minister Janez Janša submitted a proposal to the Parliament to grant exceptional powers to the Slovenian Armed Forces, highlighting the need to send soldiers to the Croatian border in order to protect the country from the entry of transitory migrants during the public health emergency. The Parliament rejected the proposal, but the government announced that it would not give up on its plan. On 2 June, the Slovenian Press Agency reported that more than a thousand soldiers had been sent to the border with Croatia.

The ECHR is essential for human rights on the continent, but it is not preventing violence towards some of Europe’s most marginalised people during the current crisis. The need to make ‘Never Again’ meaningful is real and urgent, and in the case of Slovenia it is political pressure that is needed.

Alice Pineschi is an international affairs analyst and a graduate of the University of Siena.

*QCEA staff have seen photographs of the child after the attack, but have decided not to publish them out of respect for the survivor.

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