Article originally published in German on Amnesty International Austria, 16 April 2020 – accessible here
The COVID-19 pandemic poses an unprecedented threat, affecting all aspects of our lives and having unforeseeable consequences for our society. It is therefore also a comprehensive threat to all our human rights. Amnesty International Austria monitors, documents and analyses the measures taken to combat the coronavirus in Austria and provides an overview of the human rights currently affected. This represents a first, non-exhaustive review of the situation. To this end, we have analysed laws and regulations and taken into account reports from the media and civil society organisations, as well as complaints submitted to Amnesty International in recent weeks.
STATE DUTIES TO PROTECT AND RESPECT
Amnesty International is studying the impact of the crisis on civil, political, economic, social and cultural rights. Human rights are universal, indivisible, interdependent and interrelated – as the current crisis clearly shows us – and entail duties to protect and respect them.
The state is obliged to contain the COVID-19 pandemic and must protect and guarantee our right to life, health and other human rights. To this end, appropriate and necessary measures must be taken.
For this assessment, it is important what information the state has or should have regarding the threat, what capacities are available for protection, and whether the necessary care is taken to avoid violation. In addition, the state must respect our human rights and any intervention must be justified. To this end, the measures must first be clearly regulated by law. All people must know what they are allowed to do and what they cannot do. They must be able to rely on existing laws and foresee the legal consequences of their own actions.
In principle, therefore, human rights interventions cannot be regulated by decree (a general instruction to administrative bodies), but must always be based on a legal authorisation. In a joint statement, administrative judges also criticised that mere decrees do not constitute a permissible means of encroaching on the fundamental rights of citizens. Furthermore, the measures must – according to scientific findings – be appropriate and necessary to achieve the desired objective. This means that an intervention must not go beyond what is necessary in the circumstances to achieve the objective (protection of public health). The least invasive, least harmful and most effective means must be chosen.
Furthermore, the measures must also be proportionate. This requires a balance to be struck between the expected result of the measure and the interference with human rights. Finally, the measures must be neither discriminatory nor have a discriminatory effect.
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BAN ON MEETINGS AND RESTRICTIONS ON POLITICAL PARTICIPATION
The right to freedom of assembly (Art. 10 AEMR, Art. 21 IPbpR, Art. 11 ECHR, Art. 12 StGG) is also affected by the currently applicable initial restrictions. The exercise of the right of assembly is particularly important in times of crisis, in order to express dissatisfaction with politics – especially because the political participation of the population is severely restricted. In Austria, for example, political elections did not take place due to the COVID-19 pandemic – as was previously the case with the municipal elections in Styria and Vorarlberg – but were postponed due to the pandemic.
However, the right to freedom of assembly may only be restricted to the extent necessary to protect health. A less severe form of restriction to the current de facto ban on assembly could be to allow assembly under certain conditions – for example, by means of distance rules and the compulsory wearing of a mouth and nose protector.
Therefore, the prohibition of a demonstration with four participants announced by the Austrian National Union of Students Vienna (ÖH Uni Wien) has to be viewed critically. For, although the state has a fundamental discretionary power with regard to the necessary means to protect public health, this must always be the least restrictive. It is therefore questionable whether the complete prohibition of the assembly was really necessary and proportionate, especially since the organizer had stipulated a minimum distance of two meters and the wearing of mouth-nose protection masks and gloves. In any event, it is unavoidable that the competent authority, when examining announcements of assemblies – even in times of the COVID-19 pandemic – must check in the specific case whether such a serious encroachment on fundamental rights – such as a ban on the assembly – is necessary and proportionate.
In addition, it must be critically questioned why, for example, assemblies for the maintenance of economic activities (e.g. for work on construction sites) – while observing a distance requirement of one metre – are permitted, but the exercise of the right of assembly is fundamentally not made possible. In any case, a gradual restoration of the right of assembly is thus also required at the latest when the restrictions on business activities are relaxed.