Giuseppe Zarra

The Compatibility with Articles 5 and 2, Protocol No. 4, ECHR of the Restrictive Measures Adopted by the Italian Government and the Campania Region to Face the Coronavirus Pandemic

  • Abstract

Informations and abstract

Keywords: COVID-19; sanitary crisis; derogation in time of emergency; discriminations between regions; restrictions to conventional rights.

This paper mainly analyses the compatibility with Arts 5 and 2, Protocol 4, of the ECHR of the measures adopted by the Italian Government and the Campania Region in order to face the sani-tary crisis generated by the COVID-19 coronavirus. It starts from a discussion of the opportunity for States to make recourse to the derogation mechanism set forth by Art. 15 of the ECHR and – after having explained that the current crisis generated a scenario which entitled State to activate the derogation mechanism – criticises the Italian choice not to make recourse to it. The paper then analyses the specific lockdown measures adopted by the Italian Government and the author states that – while both the decrees adopted by the Italian President of the Council of Ministers and the ordinances issued by president of Italian regions satisfy the ‘rule of law test’ set forth in the ECHR – some incompatibilities with the Convention may be generated by the measures enacted by the Campania Region. In this regard, it will be demonstrated that potential violations regard, on the one hand, Arts 5 and 2, Protocol 4, of the ECHR, and, on the other hand, they generate potential discriminations between regions in violation of Art. 14 of the ECHR.

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