By Dominique Mollet, University of Groningen, s.d.mollet student.rug.nl

Earlier this month, the European Court of Human Rights (ECtHR) published its first case challenging measures taken by a State in response to the Covid-19 pandemic. In (https://hudoc.echr.coe.int/eng#{%22appno%22:[%2223796/10%22],%22itemid%22:[%22001-161413%22]}) Le Mailloux v. France (press release in English), the applicant invoked Articles 2 (right to life), 3 (the prohibition of torture), 8 (right to respect for private life) and 10 (freedom of expression) of the European Convention on Human Rights (ECHR), challenging the French response to the outbreak of the coronavirus.[1] On 5 November 2020, the Fifth Section of the Court declared the application inadmissible. In this column, I will present my analysis of the complaint and the decision of the Court.

The complaint

In many States, measures in response to the outbreak of the coronavirus are met with widespread dissatisfaction: from the disturbances of protestors heard during Prime Minister Mark Rutte’s speech announcing the hard lockdown in the Netherlands, to protests in French cities by, among other sectors, the cultural sector. In light of this resistance, one mainly expects complaints concerning alleged infringements with, among other rights, the right to education, freedom of expression and the right to private and family life to arise.

Consequently, the nature of the present complaint may come as a surprise for some (including myself). In Le Mailloux c. France, the applicant relies on positive obligations imposed on States parties to the ECHR, rather than on negative obligations: the complaint is thus not about how measures interfere with freedoms, but rather about how the State has failed to protect people due to the absence and deficiency of measures. The applicant’s complaint concerns the French omission of acting upon its positive obligations under certain provisions of the ECHR, challenging the lack of positive action taken by the State (e.g. taking measures to protect individuals’ lives and physical integrity). In this regard, the specific complaints made by the applicant covered the limited access to diagnostic tests, preventive measures and certain treatments, and the fact that individuals died of the virus alone.[2]

The fact that the first decision concerns the omission by the State to act upon positive obligations, however, does not have a conclusive meaning. This is rather a random matter: it is a coincidence that the first case decided upon concerns positive obligations. Naturally, complaints regarding alleged violations with negative obligations will also be heard by domestic courts and the ECtHR.[3] In fact, such complaints have already been communicated to the Court (see, for instance, (https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22covid%22],%22sort%22:[%22kpdate%20Ascending%22],%22itemid%22:[%22001-207274%22]}) Toromag, S.R.O. v. Slovakia and four other applications, alleging an interference with the right to property under Article 1 of Protocol No. 1 to the ECHR). The arising of the complaint in Le Mailloux c. France does, however, demonstrate the challenges we are facing while trying to find the right (legal) balance in the present pandemic.

Another point that deserves attention is the fact that the Court interpreted the applicant’s complaint in terms of the ‘right to health’: a right which is not explicitly guaranteed by the Convention, but of which some components are protected under other provisions (e.g. the right to life). The Court also noted this, but added that ‘States have positive obligations to take the measures necessary to protect the lives and physical integrity of persons within their jurisdiction, including in the sphere of public health’.[4] This does not come as a surprise, as this notion has previously been upheld in the Strasbourg case law (see, for example, (https://hudoc.echr.coe.int/eng#{%22appno%22:[%2256080/13%22],%22itemid%22:[%22001-179556%22]}) Lopes de Sousa Fernandes v. Portugal, §165; (https://hudoc.echr.coe.int/eng#{%22appno%22:[%2223796/10%22],%22itemid%22:[%22001-161413%22]}) Vasileva v. Bulgaria, §63). It does, however, confirm that the Court considers this dimension to be relevant in the balancing of rights in the present pandemic.

The Court’s decision

The Court did not assess the complaint substantively, due to the fact that the application was inadmissible ratione personae: the applicant did not fulfil all the admissibility criteria set out under Article 34 ECHR, as he lacked victim status. In order for a complaint to be admissible, applicants must themselves be victims of alleged violations of the Convention: they must be able to demonstrate they were directly affected by the measure allegedly infringing upon their Convention rights. In this case, however, the facts complained of are rather in abstracto, and the application concerns an actio popularis, which is not recognized under the Convention: one may not bring a complaint before the ECtHR if a State’s act simply appears to infringe with Convention rights in general. The applicant in the present case failed to demonstrate that he was a victim of the alleged measure himself and rather aimed to contest the measures taken in France in response to the outbreak of the coronavirus more generally.[5]

The emphasis on victim status in this case may seem particularly strict given the present circumstances. The Court has previously made certain exceptions where applicants could not prove they were individually affected by a State’s measure (e.g. (https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57510%22]})Klass and Others v. Germany, concerning secret surveillance measures). Nevertheless, the stringency with which the Court acted should not be overstated in the present case. First of all, Mr Le Mailloux participated as a third-party intervener in the domestic proceedings before the Conseil d’Etat: the case was brought by The Aix and Region Medical Union and two private parties.[6] In accordance with previous case law, this does not provide Mr Le Mailloux with victim status (https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-85589%22]}) Tourkiki Enosi Xanthis et Autres c. Grece, §39).[7] Furthermore, Mr Le Mailloux’s application lacked information concerning his own condition and he failed to substantiate how the State’s omission had affected his health.[8] In light of the above, the Court correctly stated that ‘if the applicant would have been refused assistance or treatment resulting from the general sanitary measures which he complains to be insufficient, he could challenge their compatibility with the Convention before domestic courts’.[9] Although the Court’s strict approach to victim status may be challenged by human rights lawyers, it should not be overemphasized in the present decision. Not only does it emphasize the weaknesses of the claim, it also seems to confirm the general trend traceable in the case law: victim status is a crucial requirement for admissibility and an actio popularis is not recognized in this regard.

Concluding remarks

What does this inadmissibility decision imply? In my reading of the Court’s decision, it signals a positive dimension to the protection of rights by States, especially in light of the present pandemic. Similarly, the nature of the present claim, the present decision and further complaints illustrate that the ongoing sanitary crisis requires not only States, but also the Court to rethink the balancing of rights: as our rights and freedoms are uniquely challenged during the pandemic, it might have to reconsider its stance on the right to health at a certain point. I am, therefore, curious to see what approach the Court will take in further cases – both in cases concerning positive and negative obligations.

[1] Le Mailloux c. France app. no. 18108/20, 5 November 2020, para. 5.

[2] ibid, para. 7.

[3] Cases concerning other aspects, including harshness and ineffectiveness of domestic measures are currently pending before national and regional courts, see ‘ECHR Decides the First Case Regarding Covid-19 Measures’ (ECHR Blog, 3 December 2020) < http://echrblog.blogspot.com/2020/12/echr-decides-first-case-regarding-covid.html> accessed 15 December 2020.

[4] Le Mailloux c. France (n 1) para. 9, the original decision is produced in French, the translation belongs to the author.

[5] ibid, paras. 9-15.

[6] ibid, para. 4-5, 12; ‘Inadmissibility of Application lodged by individual complaining about handling of Covid-19 health crisis’ (Press Release, Registrar of the Court, 3 December 2020).

[7] ibid, para. 12.

[8] ibid, para. 13.

[9] ibid, para. 14, the original decision is produced in French, the translation belongs to the author.