Information Note on the Court’s case-law 251

May 2021

TerheÅŸ v. Romania (dec.) - 49933/20

Decision 13.4.2021 [Section IV]

Article 5

Article 5-1

Deprivation of liberty

52-day general lockdown imposed by the authorities to tackle the COVID-19 pandemic: Article 5 inapplicable; inadmissible

Facts – On 11 March 2020 the World Health Organization declared that the world was facing a pandemic caused by COVID-19.

On 16 March 2020 the Romanian President therefore introduced a state of emergency involving restrictions on freedom of movement. No movement outside the home was permitted, except in a certain number of exhaustively listed circumstances and on production of a document attesting to valid reasons for leaving home. Persons breaching the regulations were liable to a fine.

The state of emergency ended on 14 May 2020 at midnight.

Law – Article 5 § 1: The applicant did not rely on Article 2 of Protocol No. 4 in the proceedings before the Court, seeking instead to demonstrate that the general lockdown had constituted a deprivation of liberty and not simply a restriction of the right to freedom of movement.

The measure complained of had been imposed under a state of emergency, with the aim of isolating and confining the entire population on account of a public-health situation which the competent national authorities had deemed to be serious and urgent. Under Romanian law a state of emergency was a special legal regime which enabled a set of exceptional measures to be taken derogating from the established constitutional order. It was thus declared in the event of imminent or actual danger, for a specified period, and allowed the State to take measures restricting the exercise of certain fundamental freedoms. The Romanian President had declared the state of emergency after consulting the competent bodies, and on account of the “exceptional and unforeseeable context” created by the evolving international situation regarding the epidemic: the SARS-CoV-2 coronavirus was spreading throughout the world and the World Health Organization had officially declared it a pandemic. If the authorities had not taken extraordinary measures as a matter of urgency to stem the spread of the virus in the population, their lack of action would have had very serious repercussions, primarily on the right to life and, secondarily, on the right to health. Hence, the gradual introduction by the Romanian State of emergency measures, including lockdown, had been aimed at mitigating the economic and social impact of the epidemic and safeguarding the right to life.

In the Court’s view, the COVID-19 pandemic was liable to have very serious consequences not just for health, but also for society, the economy, the functioning of the State and life in general, and the situation should therefore be characterised as an “exceptional and unforeseeable context”.

The impugned measure had remained in place for fifty-two days. It was a general measure imposed on the whole population through legislation enacted by the various authorities in Romania. As a result of the implementation of the measure the applicant had been obliged to stay at home, being allowed to leave only for one of the reasons expressly provided for in the legislation, and with the relevant exemption form.

Thus, the applicant had been free to leave his home for various reasons and could go to different places, at whatever time of day the situation required. He had not been subject to individual surveillance by the authorities and did not claim to have been forced to live in a cramped space, nor had he been deprived of all social contact. Accordingly, in view of its degree of intensity, the measure in question could not be equated with house arrest.

Furthermore, the applicant had not explained in concrete terms how the measure had affected him. He did not allege that his circumstances were not covered by any of the reasons for leaving home provided for by the legislation and that he had thus been confined indoors for the entire duration of the state of emergency. More generally, he had not provided any specific information describing his personal experience of lockdown.

In view of all these considerations, the level of intensity of the restrictions on the applicant’s freedom of movement had not been such that the general lockdown ordered by the authorities could be deemed to constitute a deprivation of liberty. Accordingly, the applicant could not be said to have been deprived of his liberty within the meaning of Article 5 § 1.

Lastly, Romania had announced its intention to derogate under Article 15 of the Convention from the obligations flowing from Article 2 of Protocol No. 4 guaranteeing freedom of movement, a right which the applicant had not asserted before the Court. In any event, given that Article 5 § 1 was not applicable in the present case, it was not necessary to examine the validity of the derogation notified to the Council of Europe by Romania.

Conclusion : inadmissible (incompatible ratione materiae ).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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