ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency

Europarådet 2020-21
ERD Alm.del Bilag 18
Offentligt

THE CORONAVIRUS PANDEMIC

AND FUNDAMENTAL RIGHTS:

A YEAR IN REVIEW

―

FOCUS

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

This publication was originally published in 2021 as part of the FRA Fundamental Rights Report 2021 (Annual report), available at:

https://fra.europa.eu/en/publication/2021/fundamental-rights-report-2021

Reproduction is authorised provided the source is acknowledged.

For any use or reproduction of photos or other material that is not under the European Union Agency for Fundamental Rights

Neither the European Union Agency for Fundamental Rights nor any person acting on behalf of the Agency is responsible

for the use that might be made of the following information.

Luxembourg: Publications Office of the European Union, 2021

PDF

ISBN 978-92-9461-253-3

ISBN 978-92-9461-255-7

doi:10.2811/930054

doi:10.2811/68877

TK-01-21-030-EN-C

TK-01-21-030-EN-N

Photo credits:

Page 3: ©Victor/Adobe Stock

Page 4: ©maticsandra/Adobe Stock

Page 5: ©National Network of Roma Health Mediators

Page 8: ©Studio Romantic/Adobe Stock

Page 9: ©C5Media/Adobe Stock

Page 14: ©MIA Studio/Adobe Stock

Page 15: ©Shutter B/Adobe Stock

Page 17: ©Fundación Secretariado Gitano (FSG)

Page 18: ©RichLegg/iStock

Page 20: ©Cedric Blondeel/Adobe Stock

Page 22: ©CasarsaGuru/iStock

Page 24: ©Leo Patrizi/iStock

Page 25: ©freemixer/iStock

Page 27: ©Me studio/Adobe Stock

Page 28: ©nito/Adobe Stock

Page 29: ©NurPhoto/Getty

Page 29: ©Günter Schiffmann/EC-Audiovisual Service

Page 30: ©Schwartz/FRA

Page 32: ©evergreentree/Adobe Stock

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

Contents

AN UNPRECEDENTED CHALLENGE TO FUNDAMENTAL RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

EMERGENCY MEASURES: IMPACT ON FUNDAMENTAL RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

IMPACT OF THE PANDEMIC ON FUNDAMENTAL RIGHTS IN DAILY LIFE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

3.1.

3.2.

3.3.

3.4.

3.5.

3.6.

3.7.

SOCIAL INTERACTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

HEALTHCARE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

EDUCATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

WORK AND BUSINESS ACTIVITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

JUSTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

TRAVELLING WITHIN AND INTO THE EU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

PRIVACY AND PERSONAL DATA PROTECTION – USE OF TECHNOLOGY TO FIGHT THE PANDEMIC . . . . . . . . . . . . . . . . . 23

IMPACT OF PANDEMIC ON RIGHTS OF PARTICULAR GROUPS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

4.1.

4.2.

4.3.

4.4.

4.5.

4.6.

4.7.

4.8.

4.9.

OLDER PERSONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

PERSONS WITH DISABILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

VICTIMS OF DOMESTIC VIOLENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

ROMA AND TRAVELLERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

LGBTI PEOPLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

REFUGEES AND MIGRANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

HOMELESS PEOPLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

DETAINEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

ETHNIC MINORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

FRA OPINIONS �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ 34

ENDNOTES �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ �½ 37

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

AN UNPRECEDENTED CHALLENGE TO

FUNDAMENTAL RIGHTS

“We must look out for each other,

we must pull each other through

this. Because if there is one thing

that is more contagious than this

virus, it is love and compassion. And

in the face of adversity, the people

of Europe are showing how strong

that can be.”

Ursula von der Leyen, President of

the European Commission,

Speech

the plenary session of the European

Parliament, 26 March 2020

In 2020, the COVID-19 pandemic and the measures it prompted raised an

unprecedented collective challenge to the fundamental and human rights of

everyone living in the EU. The EU Charter of Fundamental Rights enshrines

these rights.

Fundamental and human rights obligations of EU Member States also derive

from other international human rights instruments. These include the European

Convention on Human Rights (ECHR),

or the treaty system of the European

Social Charter,

and the instruments adopted in the context of the United

Nations (UN), such as the international covenants on civil and political rights

and on economic, social and cultural rights.

In addition, fundamental and

human rights are well rooted in the constitutions and legislation of EU Member

States. They are also among their commonly shared values on which the

EU is founded.

All these instruments shape the human and fundamental rights framework

that calls for a rights-based approach in dealing with the COVID-19 pandemic

and its consequences.

This focus takes a look at measures imposed in response to the pandemic,

and explores their implications for a wide range of rights. Specifically, it first

looks at states of emergency, and equivalent emergency situations and

measures, that Member States have declared (Section 2). It then examines

the pandemic’s impact on rights in key areas of daily life (Section 3), and on

the rights of particular groups in our diverse societies (Section 4).

The evidence provided is mainly linked to provisions of the EU Charter of

Fundamental Rights, which is of particular importance in the EU context.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

EU and its

Member States

bound by Charter

when tackling the

pandemic

Tackling a public health crisis is primarily

the responsibility of EU Member States�½ EU

institutions, as required by the EU Treaties,

provide coordination and support�½ The EU

Charter of Fundamental Rights applies,

however, when the measures taken by the

Member States to contain COVID-19 are

linked to the implementation of EU law�½

For instance, they may affect non-

discrimination and equality in accessing

rights (e�½g�½ in healthcare, education,

services, social protection), freedom of

movement within the EU, the internal

market, working conditions, data

protection, or asylum and migration�½

More broadly, the emergency measures

have implications for human dignity, the

functioning of democratic institutions,

rule of law and the overall respect for

human rights – all core EU values�½ In

this regard, upholding the Charter when

taking decisions to fight the pandemic

is obligatory for EU institutions and for

Member States when implementing EU law�½

In addition, EU Member States remain

bound by the provisions of the ECHR

and by other international human rights

obligations�½

As the European Affairs Committee of the

French Senate stressed – while recognising

the need for Member States to take urgent

measures to tackle COVID-19 – “the Charter

of Fundamental Rights of the European

Union continues to apply during the

pandemic”�½*

For more on the Charter, see Chapter 2 in

the

Fundamental Rights Report 2021�½

* France, Senate (Sénat), European Affairs

Committee (2020),

Minutes

of the session

of 6 May 2020, ‘Respect for the rule of law

in Europe during the COVID-19 epidemic’.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

A human rights-

based framework

to tackle the

COVID-19

pandemic

Since the outset of the COVID-19 pandemic,

international organisations have recalled

that fighting against the pandemic is

also a matter of human rights�½ They have

consistently promoted a rights-based

approach to tackling the pandemic�½

Such an approach requires, for example,

protecting everyone’s right to life and the

right to health without discrimination,

paying attention to the needs and rights

of the most vulnerable, balancing rights

when adopting restrictive measures, or

using emergency legislation and measures

in compliance with the standards and

guarantees of international human

rights law for emergency situations�½ It

also requires ensuring transparency and

involving those concerned in decision

making�½

As the UN Secretary General underlined in

April 2020, “human rights can and must

guide COVID-19 response and recovery”

while “people – and their rights – must be

front and centre”�½

The Office of the UN High Commissioner

for Human Rights (OHCHR) provided

guidance throughout 2020�½

It published

a compilation of statements that UN

human rights treaty bodies adopted on

COVID-19, which addressed rights-related

issues based on their mandate�½ In addition,

the OHCHR prepared a toolkit translating

international human rights standards, as the

international human rights instruments and

relevant jurisprudence shaped them, “into

an operational contribution to strengthen

the human rights-based approach”�½

The human rights-based approach is also at

the heart of the work of the Council of Europe

(CoE) on the pandemic�½ For example, the

CoE addressed guidance to governments on

respecting human rights, democracy and the

rule of law in the context of the pandemic�½

is a useful, practical reminder for CoE member

States of their obligations on issues such as

derogating from the ECHR and upholding

the rule of law and democratic principles in

times of emergency; human rights standards,

including freedom of expression, privacy

and data protection, protection of vulnerable

groups from discrimination and the right to

education; and protection from crime and

protecting victims of crime, in particular

regarding gender-based violence and human

trafficking�½

The CoE also focused on children by

adopting a rights of the child perspective

when reviewing measures taken�½

Throughout the year, the CoE Commissioner

for Human Rights raised issues of particular

concern as regards vulnerable groups,

for example older persons; persons with

disabilities; persons in care facilities;

Roma and Travellers; refugees and

migrants, including in the context of rescue

operations at sea and migration detention;

or prisoners�½

Treaty bodies of the CoE also provided

human rights guidance on specific topics,

such as the treatment of persons deprived

of their liberty; the protection of children

against sexual exploitation and abuse;

human rights principles guiding health

decisions; tackling domestic violence and

gender-based violence against women;

fighting trafficking in human beings; and

COVID-19 tracing apps and their side effects

on data protection�½

Of particular importance in the context

of the health crisis was the ‘Statement of

interpretation on the right to protection of

health in times of pandemic’ (Article 11 of

the European Social Charter) by the European

Committee of Social Rights (ECSR)�½ It called

for the adoption of all necessary emergency

measures and highlighted the goal of “health

equity”�½

In a rare public statement, the European

Commission against Racism and Intolerance

(ECRI) raised the alarm about the situation

of Roma and migrants as well as LGBTI

persons during the pandemic, and provided

guidance�½

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

Different aspects of life are becoming

ever more digital during the pandemic�½

Reflecting the general trend, the CoE

Human Rights Education for Legal

Professionals (HELP) platform for online

human rights education went from 42,000

users in January to 78,000 in December

2020�½ HELP topical courses cover both the

CoE and EU legal systems�½

Academic analysis also focused on the

impact of the pandemic and the measures

taken to contain it on human and

fundamental rights�½ Debates and country

reports examined how states used their

emergency powers from the perspectives

of democracy, human rights and the rule of

law�½

Research suggested models for assessing

human rights protection and promotion

during the pandemic in a comprehensive

way�½ These models aim to measure the

impact on economic and social rights, civil

and political rights, equality and non-

discrimination, as well as the rule of law�½

UN Secretary General (2020),

Statement

‘We are all in this together: Human rights

and COVID-19 response and recovery’,

23 April 2020; UN Secretary General (2020),

Policy Brief ‘COVID-19 and human rights –

We are all in this together’,

23 April 2020.

in the context of COVID-19’,

September;

OHCHR, HRTB (2020),

‘Internal HRTB

toolkit of treaty law perspectives and

jurisprudence in the context of COVID-19’,

15 July 2020.

CoE (2020), ‘Coronavirus:

Guidance to

governments on respecting human rights,

democracy and the rule of law’,

8 April

2020.

CoE (n.d.), ‘Protecting

and empowering

children during the Covid-19 pandemic’.

CoE Commissioner for Human Rights (n.d.),

‘Pandemic

and human rights’.

CoE, ‘Covid-19:

Human rights are more

important than ever in times of crisis’.

CoE, ECSR (2020),

Statement of

interpretation on the right to protection of

health in times of pandemic,

21 April 2021.

CoE, ECRI (2020),

Statement on the impact

of the Covid-19 pandemic and related

government responses on groups of

concern to ECRI,

19 May 2020.

CoE (n.d.), ‘HELP

online courses’.

Verfassungsblog (2020), ‘COVID

19 and

states of emergency’.

OHCHR (2020), ‘COVID-19

guidance’,

13 May; OHCHR, Human Rights Treaties

Branch (HRTB) (2020), ‘Compilation

statements by human rights treaty bodies

Scheinin, M. and Molbæk-Steensig, H.

(2020), ‘Pandemics

and human rights: Three

perspectives on human rights assessment

of strategies against COVID-19’,

European

University Institute, Department of Law, EUI

Working Paper LAW 2021/01.

First and foremost, the deadly impact of the virus and the obligation of

governments to act to protect the rights of people to life (Article 2) and

health (Article 35 on healthcare) required their urgent action.

Following advice and guidance by national, EU and international health

authorities, including the European Centre for Disease Prevention and Control

(ECDC), they took a wide range of measures to deliver on this obligation.

These measures ranged from imposing curfews, travel restrictions and bans,

and preventing people from meeting, to closing schools and restricting the

functioning of many economic sectors.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

Towards

a European

Health Union

On 11 November 2020, the

European Commission took a first

step towards a European Health

Union, acknowledging that more

coordination at EU level is necessary

to tackle the pandemic and future

health crises effectively.

Its proposal refers to the EU’s

obligation to ensure a high level

of human health protection, as the

EU Charter of Fundamental Rights

requires. It aims to strengthen the

EU’s health security framework and

reinforce its crisis preparedness,

enhancing the mandates of the two

key EU agencies, the ECDC and the

European Medicines Agency (EMA).*

* European Commission (2020),

Communication from the

Commission on Building a European

Health Union,

COM(2020) 724 final,

Brussels, 11 November 2020.

However, many of these measures had

significant implications for nearly all other rights

that international human rights law enshrine

and the Charter sets out. For instance, they

interfered with:

―

the right to the integrity of the person and

the prohibition on selecting persons when

practising medicine and biology (Article 3);

―

the rights to liberty and security (Article 6),

private and family life (Article 7) and the

protection of personal data (Article 8);

―

the freedoms of religion (Article 10),

expression and information (Article 11) and

assembly and association (Article 12);

―

the prohibition of discrimination (Article 21);

―

and the freedoms of movement and

residence (Article 45).

They also affected how people access and enjoy

many social and economic rights, in particular:

―

the right to education (Article 14);

―

rights related to the labour market (e.g. to

engage in work, to conduct a business and

make use of property, or to fair and just

working conditions; Articles 15, 16 and 17,

and 31 respectively);

―

the right to social protection and assistance

(Article 34);

―

or the right to healthcare (Article 35) for

reasons other than COVID-19, including

mental health.

The pandemic particularly affected:

―

the rights of children (Article 24);

older persons, especially those living in institutions (Article 25);

persons with disabilities (Article 26);

as well as the equal access to rights (Article 21) of vulnerable groups of

the population such as Roma, refugees and migrants, or homeless people.

Moreover, it had implications on people’s access to justice and their right to

an effective remedy and a fair trial (Article 47).

Overall, the pandemic exacerbated already existing challenges and inequalities.

According to the United Nations, it had major implications on the efforts

to achieve the global Agenda 2030 for sustainable development and its

Sustainable Development Goals (SDGs).

The global Agenda 2030 and the SDGs

are closely linked and reflect human and fundamental rights commitments

and obligations.

Its core principle requires that “no one will be left behind”.

By accelerating the process of digitalisation of our societies, the pandemic

also revealed how important it is, for that purpose and for equality, to ensure

that everyone has access to the internet and appropriate digital equipment

and is able to profit from technological developments.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

FRA ACTIVITY

Highlighting the pandemic’s fundamental

rights implications

Between April and November 2020, FRA

published a series of six bulletins looking

at the impact on fundamental rights of the

COVID-19 pandemic across the EU and the

measures to contain it.*

These bulletins aim to provide evidence

to inform the efforts of the EU and its

Member States to provide rights-based

responses to the pandemic and its

consequences.

Five of the bulletins looked at three

fundamental rights aspects of the impact

of the pandemic: states of emergency

and other emergency situations; impact

on key areas of daily life; and impact on

particular groups in society.

In addition, Bulletin 2 had a specific

focus on contact-tracing apps, Bulletin 3

considered how the pandemic has

affected older persons, and Bulletin 6

addressed the impact of the pandemic on

social rights. Bulletin 5 looked specifically

at the pandemic’s impact on the rights of

Roma and Travellers.

* FRA (2020),

Fundamental rights

implications of COVID-19.

Vaccination plans

in full respect

of fundamental

rights

In late December 2020, vaccination

against COVID-19 started in some Member

States�½* It will be crucial to ensure that

the rollout of the vaccines fully respects

fundamental rights, including equitable

access to vaccines, the principle of non-

discrimination and the right to personal

data protection�½

Encouragingly, national vaccination plans,

in line with EU guidelines,** prioritise

healthcare workers, older persons, those

with pre-existing health conditions, and

those at greater risk of exposure to the virus

due to their living settings and conditions�½

These may include people living in care

settings, Roma and Traveller settlements,

refugee and migrant facilities, prisons or

homeless shelters�½

In this regard, the statement of the CoE’s

Committee on Bioethics about equitable

access to vaccination underlines that,

within each group that the prioritisation

process defined, everyone, without

discrimination, should be offered a fair

opportunity to receive a safe and effective

vaccine�½***

Vaccination plans and rollouts have

important fundamental rights implications�½

So do interrelated issues�½ For example, free

and informed consent to have the vaccine

is linked to the right to personal integrity,

and access to rights depending on whether

people have been vaccinated or not (e�½g�½

‘vaccine passports’) is linked to equality�½

These topics will be under scrutiny in 2021�½

* European Commission (2020), ‘European

Commission authorises first safe and

effective vaccine against COVID-19’,

press

release, 21 December 2020; Euractiv (2020),

‘EU

begins vaccinations to end Covid

“nightmare”’,

28 December 2020.

** European Commission (2020),

‘Coronavirus vaccines strategy’; ECDC

(2020),

‘ECDC releases COVID-19 vaccination

rollout strategies for EU/EEA’,

22 December

2020.

*** Council of Europe, Committee on

Bioethics (2021), ‘COVID-19

and vaccines:

Equitable access to vaccination must be

ensured’,

22 January 2021.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

EMERGENCY MEASURES: IMPACT ON

FUNDAMENTAL RIGHTS

Starting in the spring of 2020, to contain the spread of the virus, the majority

of EU Member States, exercising their national competence, officially declared

a state of emergency or resorted to other equivalent emergency legislation.

This other legislation included declaring, for example, a ‘state of alarm’,

‘state of health emergency’, ‘state of epidemic situation’, ‘state of calamity’,

or ‘state of danger’.

Nine EU Member States –

Bulgaria, Czechia, Finland, Estonia, Hungary,

Luxembourg, Portugal, Romania,

and

Spain –

declared an official state of

emergency or equivalent, based on constitutional provisions.

Another five

EU Member States declared a state of emergency under their ordinary laws –

namely

France, Germany, Italy, Latvia

and

Slovakia.

This meant granting governments extraordinary decision-making powers. It

affected all human rights and allowed governments to impose restrictions

on many of them, such as the freedom of movement, including travelling

within the EU and within countries, the freedom of assembly, the right to

private and family life, the right to access goods and services or the right to

work and conduct a business.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

As the situation improved, states of emergency or equivalent legislation

were gradually lifted or eased over the summer, only to be partially or

fully reinstated in the autumn with the ‘second wave’ of the pandemic.

This happened, for example, in

Czechia, France

and

Slovakia.

Emergency

legislation remained in force in

Italy.

Other Member States – such as

Bulgaria,

Hungary, Portugal, Romania

and

Spain –

kept in force or introduced special

emergency legislation that replaced previously applied states of emergency

or similar legal regimes.

During 2020, three EU Member States (Estonia,

Latvia

and

Romania),

as well

North Macedonia

and

Serbia,

gave notice under Article 15 of the ECHR

that they exercised their right to temporarily derogate from their obligations

enshrined in the Convention.

In December, for the second time in a year,

Latvia

notified the CoE under Article 15 about measures taken concerning in

particular the freedom of assembly.

Such notices reveal the gravity of the

situation. At the same time, however, they ensure transparency and comply

with the rules set in the ECHR.

As many as 13 EU Member States –

Austria, Belgium, Croatia, Cyprus, Denmark,

Greece, Ireland, Lithuania, Malta, the Netherlands, Poland, Sweden

and

Slovenia –

adopted exceptional, emergency and restrictive measures without

declaring a state of emergency or introducing equivalent legislation during

the pandemic.

The use of emergency legislation drew the attention of the European

Parliament and the European Commission.

In a November 2020 resolution, the European Parliament, echoing the CoE’s

Venice Commission,

recalled that “even in a state of public emergency,

the fundamental principles of the rule of law, democracy and respect for

fundamental rights must prevail, and that all emergency measures, derogations

and limitations are subject to three general conditions, those of necessity,

proportionality in the narrow sense and temporariness”.

It called on Member

States “to explicitly define in a legislative act, where a de facto state of

emergency is maintained, the objectives, content, and scope of the delegation

of power from the legislature to the executive”.

A stringency

index to

measure

strictness of

policies

Oxford University has developed

a COVID-19 Government Response

Tracker. Through 19 indicators it

systematically collects information

on policy responses to the pandemic,

such as school closures and travel

restrictions. It now has data from

more than 180 countries. The tool

also includes a ‘stringency index’,

which records the strictness of

policies that restrict people’s

behaviour.

University of Oxford, Blavatnik

School of Government, ‘Coronavirus

government response tracker’.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

According to the Venice Commission, a system of de jure constitutional state

of emergency is preferable to a de facto extra-constitutional one because it

“provides for better guarantees of fundamental rights, democracy and the

rule of law and better serves the principle of legal certainty”.

However,

the constitutional framework of Member States may not always provide

for such options.

The European Commission has been monitoring the emergency measures

in all the Member States. Its first annual Rule of Law Report, published in

September 2020, reflected this where relevant.

The Commission monitored

in particular if safeguards exist to ensure that measures are necessary, strictly

proportionate and clearly limited in time, and if parliamentary and judiciary

oversight, as well as scrutiny by the media and by civil society, continue.

For more about the rule of law, see Chapter 9 in the

Fundamental Rights

Report 2021.

FRA ACTIVITY

Highlighting civil society experiences

COVID-19 and measures introduced to

contain it had a strong impact on civil

society organisations and their work.

There were obvious practical challenges,

such as reduced access to beneficiaries,

travel bans, or the cancellation of events.

In addition, there were far-reaching

consequences on the space to operate,

notably as regards access to decision-

makers, freedom of assembly and, to

some extent, freedom of expression.*

In November 2020, FRA conducted an

online consultation with its civil society

network, the

Fundamental Rights

Platform,

on how measures taken since

March 2020 to address the COVID-19

pandemic affected their work, and how

organisations could mitigate adverse

effects. In total, 177 human rights civil

society organisations (CSOs) from across

the EU completed the brief online survey.

For many CSOs, measures to contain the

pandemic exacerbated pre-existing civic

space challenges.**

The majority (75 %) of the responding

CSOs found the measures to contain the

pandemic overall justified. Fewer (56 %),

albeit still the majority, considered them

proportional. Moreover, most CSOs

(75 %) said that the impact of measures

on their operations and activities since

March 2020 had been negative. Of those

who said the measures had a negative

impact, 41 % were very worried and 52 %

somewhat worried that this would persist

for the next 6 months.

Some restrictions affected CSOs’ physical

access to their beneficiaries, e.g. older

persons, asylum seekers and protestors.

They significantly affected 44 % of CSOs.

More than a quarter (27 %) faced financial

difficulties “often”, and 15 % “every time”.

Almost a third (29 %) also said that

reduced work contribution by volunteers

was “often” an important practical

challenge, and 18 % “every time”.

The full results from the consultation,

including examples of promising

practices – such as dedicated financial

support to CSOs –will be published in

autumn 2021 as part of FRA’s upcoming

report on civic space in the EU.

* FRA,

COVID-impact on civil society

work – Results of consultation with FRP

2020,

Vienna, 24 February 2021.

**FRA (2018),

Challenges facing civil

society organisations working on human

rights in the EU;

FRA (2020),

Civic space –

Experiences of organisations in 2019.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

It is a basic international human rights principle that any restrictions to a right –

including in emergencies, when certain rights may even be suspended – must

be prescribed by law, proportionate, necessary and non-discriminatory, and of

limited duration. The approach of the European Parliament and the European

Commission adheres to this principle.

The European Court of Human Rights

(ECtHR) has based well-established case law on Article 15 of the ECHR. It also

provides that derogations from the ECHR, which may result in the suspension

of certain rights, need to be notified, and should happen only in exceptional

circumstances and in a limited and supervised manner.

Moreover, certain rights – such as the right to life, or the right to be free from

torture and other inhumane or degrading treatment or punishment – are non-

derogable. Last but not least, emergency measures must be under parliamentary

and judicial scrutiny. Governments should not use their extraordinary powers

to bypass parliaments and their legislative function on issues unrelated to the

pandemic.

The CoE also points out that “as a general rule, fundamental legal

reforms should be put on hold during the state of emergency”.

Tackling

disinformation

while

upholding

rights

An emergency can generate disinformation and the spread of conspiracy theories. They may

negatively affect citizens’ trust in democracy, the rule of law and fundamental rights. In a health

crisis, they may affect public trust in the efforts of the authorities and undermine the fight

against the pandemic. Fighting disinformation is therefore an important aspect of safeguarding

fundamental rights in times of emergency, including protecting people’s life and health.

The results of a large-scale online survey about COVID-19 disinformation/fake news in

France,

Italy, Germany, Spain

and the

United Kingdom

came out in September. Over half of those

surveyed in each country had seen COVID-19 disinformation/fake news, it found. A smaller but

substantial portion reported sharing COVID-19 disinformation with others either intentionally or

unintentionally.* Despite significant differences between countries, respondents who had seen

and/or shared COVID-19 disinformation/fake news tended overall to be younger, daily users of

social media, with fewer years of formal education and more likely to self-identify as a minority.

Effectively fighting disinformation needs adequate and accurate data, and transparency about

the data and the criteria used to inform and justify authorities’ decisions. However, evidence

collected by FRA indicated data gaps in 2020 – for example, regarding the numbers of infections

and deaths of people living in institutional settings.**

On 13 November 2020, the European Parliament called on Member States to provide citizens

with comprehensive, up-to-date, precise and objective information about public health and

measures taken to safeguard it. Furthermore, it urged Member States to fight disinformation

that discredits or distorts scientific knowledge, but at the same time to ensure freedom of

expression and information, and media pluralism. They should not create a chilling effect

on freedom of expression and on journalists, healthcare workers or others by resorting to

criminalisation or disproportionate sanctions.***

For its part, the European Commission highlighted the crucial role that freedom of expression

and a pluralistic democratic debate play in fighting disinformation.****

* Crime and Security Research Institute, Cardiff University (2020), ‘Survey

of public attitudes

to coronavirus disinformation and fake news in France, Germany, Italy, Spain and the UK –

Summary findings’.

** FRA (2020),

Bulletin #3 – Coronavirus pandemic in the EU – Fundamental rights

implications: With a focus on older people,

p. 37.

*** European Parliament (2020),

Resolution on the impact of COVID-19 measures

on democracy, the rule of law and fundamental rights,

P9_TA(2020)0307, Brussels,

13 November 2020.

**** European Commission (2020),

Tackling COVID-19 disinformation – Getting the facts

right,

JOIN(2020) 8 final, 10 June 2020.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

STATES OF EMERGENCY AND EMERGENCY MEASURES

UNDER JUDICIAL SCRUTINY

The examples below highlight select high court decisions that examined

limitations on freedom of movement, including travelling within a given

country, on freedom of assembly and demonstration, and on freedom of

religion. Other areas of life and the impact of emergency measures on

relevant rights are covered in the following sections.

The

Belgian

Council of State rejected an urgent appeal to suspend a prohibition

on protest. It stated that the infringement of the freedom to demonstrate

was not sufficient to justify the urgency of the appeal.

The court highlighted,

however, that the measure banning protests was temporary and subject to

continuous review.

The

Greek

Council of State rejected a similar appeal for the suspension of

an order prohibiting demonstrations. It considered the order justified for

overriding reasons of public interest relating to the protection of public health.

The

French

Council of State ruled that the prohibition of demonstrations in

public is justified only when COVID-19 physical distancing and other preventive

measures cannot be respected or when the event may bring together more

than 5,000 people.

Considering the scope of and grounds for the curfew

restricting freedom of movement, the same court concluded in October that

the curfew did not violate fundamental rights.

Germany,

the Federal Constitutional Court ruled on an application for

a temporary injunction. It found that some local authorities infringed the

freedom of assembly when they banned an assembly after interpreting

a regulation in Hesse as generally prohibiting any meeting of more than

two persons.

In a separate case, the court provisionally disapplied a provision of a COVID-

19-related regulation in Lower Saxony. The provision did not allow for case-

by-case exceptions to the general ban on religious services and other religious

gatherings, even where there was no significant increase in the infection

risk.

The court had previously ruled that prohibitions of religious services

are severe limitations of religious freedom and require strict scrutiny of

proportionality in the light of new developments concerning the pandemic.

In April, the

Slovenian

Constitutional Court assessed if a government ordinance

restricting freedom of movement and assembly in public places, and banning

the movement and travel of residents outside their municipalities, was

constitutional. To ensure that the measures were proportionate, the court

ordered the government to assess, at least every seven days, if they remain

necessary to achieve the objectives pursued.

The same court, however,

found in August that measures restricting movement between municipalities

were proportionate.

These national high court decisions confirm, first of all, the critical role

of the judiciary as a safeguard for human and fundamental rights when

emergency legislation applies. Second, they also confirm that all restrictions

of rights need to be in line with international standards (i.e. legality, necessity,

temporariness, proportionality). Third, they prove that in each case the

balancing of requirements deriving from different rights and objectives

is a challenging exercise. This makes it important to collect evidence on

fundamental and human rights implications of the pandemic, and to provide,

promote and make visible the guidance from international human rights

bodies, as well as international human rights jurisprudence.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

IMPACT OF THE PANDEMIC ON

FUNDAMENTAL RIGHTS IN DAILY LIFE

This section outlines how COVID-19 has affected fundamental rights in six key

areas of daily life, namely social interaction, healthcare, education, work, the

judicial system, and travel to and within the EU. It also highlights concerns

regarding privacy and personal data protection.

3.1. SOCIAL INTERACTION

At the outbreak of the pandemic, EU

Member States introduced physical

distancing measures limiting social

interaction.

Most instituted

mandatory physical distancing

measures for everyone, such as

suspension of mass gatherings,

stay-at-home requirements

(including quarantine measures),

closure of public spaces, limitations

in public transport and physical

distancing when outside the house.

In some cases entire provinces,

regions or cities were placed under

quarantine (e.g. in

Austria, Bulgaria,

Italy

and

Lithuania).

In others,

leaving home without a permit was

prohibited (e.g. in

France, Greece,

Italy

and

Spain).

Such measures affected different rights enshrined in national constitutions, EU

and international human and fundamental rights instruments. They primarily

affected the right to liberty and security, including freedom of movement,

and the right to private and family life. They also had an impact on other

rights, such as the right to protection of personal data, freedom of religion,

the right to education, work and business-related rights, or the right to health,

especially mental health.

The use of the internet and digital communication tools helped keep alive

some interaction between people, alleviating feelings of loneliness and

psychological stress. At the same time, it highlighted the importance of

having access to the internet and digital equipment, and of digital literacy.

Social and physical distancing measures were lifted or eased over the

summer,

but were largely reintroduced after the summer to mitigate the

health impact of subsequent pandemic waves.

The adoption and easing of

measures varied in each country and region depending on its epidemiological

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

situation. Sanctions were introduced to ensure enforcement – typically fines,

but in some cases also custodial sentences.

Courts and oversight bodies scrutinised if actions enforcing such measures

complied with fundamental rights. For example,

France’s

highest administrative

court ruled out the use of drones to observe if people were respecting the

lockdown rules in Paris.

Poland,

the Ombuds body warned that no legal provision permitted police

officers to forward personal data obtained from police interventions to

the sanitary inspector for imposing penalties.

Slovenia,

the Ombuds

body stated that the failure to comply with the government decree on the

mandatory use of face masks in enclosed public spaces could not be penalised

because it was not based on proper legal grounds.

A common factor in these cases is that they highlight that not only do the

measures themselves need to comply with human rights standards – so do

the authorities’ enforcement actions.

3.2. HEALTHCARE

The measures taken to fight the pandemic have sometimes had an adverse

impact on the right they sought to protect, namely the right to health and

healthcare. It requires ensuring access to both preventive healthcare and

medical treatment.

A major issue was how to ensure access to healthcare

on an equal footing for all, in a context where health systems had to prepare

for and faced huge pressure, as well as limited staff and equipment (e.g.

intensive care beds).

FRA’s collected evidence indicated cases of de-prioritisation based on age

and medical triage on the same ground.

At the same time, the need to fight

the pandemic, to prevent health staff and patients from infections, and to

prioritise treating people infected with COVID-19 led to de-prioritising access

to healthcare for reasons other than COVID-19. That sometimes affected

patients with other critical health conditions such as cancer, or people facing

mental health issues.

Physical access to doctors and healthcare services, including hospitals, was

limited, at least at the onset of the pandemic. Non-urgent medical treatment,

including surgical interventions, was often postponed. For example, in

Romania

the number of hospitalised cancer patients dropped by 46 % between 2019

and 2020.

Finland,

at the end of August 2020, 137,165 patients were

waiting to receive non-urgent specialised healthcare.

This situation affected particularly older people, as they are more likely to

have pre-existing health conditions requiring medical attention.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

More broadly, certain groups of the population, in particular people living

in institutions, people with disabilities, Roma and Travellers, refugees and

immigrants, or homeless people, may face compounded difficulties in accessing

healthcare.

People also reported incidents of discrimination based on their

racial or ethnic minority background.

Such practices raised concerns about the equal treatment of all when accessing

healthcare. Several

German

medical associations recommended, for instance,

that prioritisation in providing medical treatment should follow the principle

of equality.

It should not only cover those infected with COVID-19 and should

not be based solely on age or social criteria. The main criteria are the urgency

of treatment and its chances of success.

Last but not least, the pandemic has put a lot of pressure on healthcare

workers, threatening their rights to life and health. Healthcare workers have

been the most infected community during the COVID-19 pandemic, as a World

Health Organization (WHO) report highlights.

Data from EU Member States corroborate this finding.

Ireland,

for example,

healthcare workers exceeded 20 % of the total number of COVID-19 infections

as of the middle of October. Several COVID-19 hospital units in

Romania

temporarily suspended their operations because so many medical workers

were either sick or in quarantine. Reports of burnout among medical staff

emerged in

Latvia.

As an acknowledgement of their efforts, many Member States introduced

additional financial benefits in 2020.

To address staff shortages, several

Member States also relaxed recruitment procedures and the working

conditions of medical staff. Some countries also mobilised military staff to

support hospitals.

3.3. EDUCATION

By late March 2020, almost all EU Member States had closed their educational

facilities. This led to an unprecedented shift to distance learning to ensure

the continuity of education.

Educational facilities started reopening in late

spring. After the summer break most Member States sought to keep them

open, in particular primary schools, to minimise the impact on children’s right

to education and their well-being.

However, the rise of infections in autumn soon led many to close them again

and reintroduce distance learning to varying extents.

Some kept a number

of schools open for children of parents working in ‘essential’ professions, or

for families that had no other solution but childcare provided by grandparents.

In some cases authorities distinguished between age groups, usually keeping

older children in distance learning.

The sudden transition to distance learning affected the education of all

children. Educational systems were not prepared for such a swift transition.

They often lacked the necessary digital infrastructure or training. Fewer than

40 % of educators felt ready to use digital technologies in teaching, according

to the 2018 Organisation for Economic Co-operation and Development (OECD)

Teaching and Learning International Survey (TALIS), but there were wide

differences between Member States.

Moreover, children in many cases

lacked support to cope with the needs of distance learning, although measures

such as special leaves for parents to stay at home and take care of their

children were helpful.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

The European Commission highlighted that many low-income homes have

no access to computers, and broadband access varies widely across the

EU depending on household income.

Throughout the EU, children from

socio-economically disadvantaged backgrounds were particularly negatively

affected, FRA’s evidence confirms. They lacked adequate computer equipment,

internet access and appropriate work spaces, as well as home support. This

situation exacerbated existing learning inequalities.

For example, in

Bulgaria

the Ombuds body expressed concern that some

70,000 children, particularly from families with low incomes, unemployed parents

or more than one child, did not have computers and internet access.

Romania,

25 % of all children did not have access to online education, a survey by the NGO

Save the Children shows.

Spain,

a survey with almost 11,000 respondents

found that only one third of Roma children had access to a computer at home

and more than 40 % of Roma students did not have access to the internet.

EU action plan

promotes

digital

education

Member States are responsible for

education, in particular for teaching

and the organisation of their

education systems. However, the

EU can contribute and support their

efforts, including through guidance

and recommendations. The European

Commission published its Digital

Education Action Plan 2021–2027

on 30 September 2020. It sets out

key measures for high-quality and

inclusive digital education and

training where the EU can bring

added value to national efforts.

Acknowledging the impact of

the pandemic on education and

training systems, the Action Plan

points out that these difficult

circumstances accelerated the digital

transformation, triggering rapid,

large-scale change. In this light, the

Action Plan asks Member States

to develop higher quality, more

accessible and more inclusive digital

teaching, learning and assessment,

making full use of the EU’s Recovery

and Resilience Facility to adapt their

education and training systems to

the digital age.

European Commission (2020),

Digital

Education Action Plan 2021–2027:

Resetting education and training for

the digital age,

COM(2020) 624 final,

30 September 2020.

Another issue that required attention is the

protection of children’s privacy and personal

data in digital education settings. The CoE

adopted relevant guidelines in November 2020

addressing policymakers, data controllers and

the industry.

For more information on the impact of COVID-19

on children’s rights, see Chapter 8 in the

Fundamental Rights Report 2021.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

Encouragingly, all Member States intensified their efforts to support schools’

capacity for distance learning – for example, by creating online platforms, and

providing disadvantaged pupils with digital devices and internet connections.

To promote the digitisation of schools,

Germany

increased its investments in

the School Digital Pact to € 6.5 billion.

The funding can be used, for example,

to procure suitable devices for teachers, as well as for pupils in need, who

can receive them through their schools.

Such efforts deliver on the obligation to ensure the right of children to

education. During emergencies, such as the COVID-19 pandemic, that right

requires effective distance learning systems. By including targeted measures

for children in more disadvantaged socio-economic situation, those efforts

also deliver on the obligation to ensure the equal access of all children to

education. At the same time, they help bridge the digital divide between

different social groups, implementing the principle of the European Pillar

of Social Rights that everyone has the right to access essential services,

including digital communications.

3.4. WORK AND BUSINESS ACTIVITY

Many sectors of the economy remained closed for long periods during 2020.

The impact on a range of social and economic rights became increasingly

clear, in particular on those relating to work. These include the rights to

engage in work, to fair and just working conditions, to conduct a business

and to make use of property.

T he pandemic exacerbated

existing inequalities, widening the

gap between rich and poor and

disproportionately affecting those

in precarious and low-income jobs,

young people, women and minority

ethnic groups. It exposed serious

gaps in EU’s and Member States’

social safety nets, raising concerns

about the effective implementation

of the right to social security and

assistance.

The EU and Member States put

in place wide-ranging economic

support measures to mitigate the

impact on businesses, workers and

their families and to bolster their

incomes.

These included helping

businesses by supplementing wages;

other financial support, including

unemployment benefits and relief for

home owners and renters; support

and compensation for self-employed people and businesses (e.g. by covering

loss of monthly turnover to a certain extent); support for particular groups

in society; support for people with caring responsibilities; sick leave; and

support for people in quarantine.

Several Member States introduced programmes specifically targeting those

employed in precarious forms of work, such as seasonal workers, domestic

workers or those on ‘zero-hours’ contracts. However, the pandemic worsened

the already precarious situation of platform workers, research published by

the European Trade Union Institute (ETUI) shows.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

EU action counters

pandemic’s social

and economic

impact

The EU took extensive measures in 2020

to contain the spread of the pandemic,

counter its socio-economic impact and

support national healthcare systems�½*

In May, the Council of the EU adopted the

European instrument for temporary support

to mitigate unemployment risks in an

emergency (SURE), a temporary scheme

to provide up to € 100 billion in loans to

Member States to support businesses

and self-employed people, among other

purposes�½**

In November, the European Parliament and

the Council of the EU reached agreement

on a recovery package of € 1�½8 trillion�½***

It combines the EU budget for 2021–27 and

NextGenerationEU, a temporary recovery

instrument allowing the Commission to

raise funds on the capital market to address

the immediate economic and social damage

the pandemic has caused in the Member

States�½

To monitor progress systematically

across the EU, on 17 December Eurostat

launched the European Statistical Recovery

Dashboard�½ It gives monthly and quarterly

indicators from a number of statistical areas

that are relevant to tracking the economic

and social recovery from the COVID-19

pandemic�½****

* See the European Commission’s

Coronavirus response web page

for an

overview.

Council Regulation (EU) 2020/672 of 19

May 2020.

***

European Commission welcomes

agreement on €1.8 trillion package to

help build greener, more digital and more

resilient Europe.

**** See an overview of relevant data

in the

European Statistical Recovery

Dashboard.

Overall, in spite of all efforts, unemployment rose, particularly among young

persons. The number of unemployed young persons (under 25) was much

higher in December 2020. Compared with December 2019, it increased by

438,000 persons in the EU, an increase of 3 percentage points (from 14.8 %

to 17.8 %).

The EU unemployment rate was 7.5 % in December 2020, according to

Eurostat.

That was up from 6.5 % in December 2019, an increase of around

15 %. This increase amounts to around 1.95 million more people unemployed.

Almost 1.1 million of them were women, showing that women are affected

more than men.

Unemployment rates were alarmingly high in certain EU countries

and in particular sectors of the economy, such as tourism, hospitality,

entertainment and the arts, in which businesses and related employment

were disproportionally affected. The risk of layoffs or reduced hours in the

second quarter of 2020, measured as a probability from 0 to 1, was 0.5 for

the sector of accommodation and food services and more than 0.3 for other

services.

Another significant consequence of the pandemic was the expanded use of

teleworking. In July a third (34 %) of respondents were solely working from

home, according to the second Eurofound ‘Living, Working and Covid-19’

survey.

Telework/information and communication technology mobile work

(T/ICTM) tends “to extend working hours, create an overlap between paid

work and personal life due to a blurring of work-life boundaries, and also

lead to the intensification of work”.

Eurofound advised better regulation

of T/ICTM, including the ‘right to disconnect’ to improve work-life balance.

For many types of work, teleworking arrangements, and hence saving jobs,

were not an option. These jobs are often lower paid. Those who telework

tend to be relatively privileged in terms of their high levels of educational

qualifications and economic resilience, Eurofound’s data show.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

From a fundamental rights perspective, the evidence presented here indicates

the areas where action by duty-bearers is most urgent. This action needs to

have a particular focus on those most affected by unemployment, reduced

working hours and income. It also needs to pay attention to the new working

environment that moving to teleworking arrangements creates – especially

for those who face more challenges to keep their work-life balance, including

as a result of caring responsibilities.

Pandemic proves

particularly

challenging for

women

The pandemic has disproportionately

affected women, particularly in

employment, work-life balance and caring

responsibilities, evidence indicates�½ They

have also been more exposed to health

risks, as they are more represented among

essential workers, especially as frontline

workers in the health and care sector�½*

For example, people are returning to more

traditional gender roles at home, research

by the Vienna University of Economics and

Business and the Chamber of Labour in

Austria

shows�½** Women report feeling

that they do most of the work at home

and that they are under intense pressure

to handle the multiple responsibilities of

telework, childcare and domestic work�½

Women are more likely than men to be

caring for a child and, as a result, are

finding it more difficult to work from home,

a survey by the

Irish

Central Statistics

Office reveals�½ Similarly, the expansion of

unpaid work in the care of children, older

family members and the home is a serious

challenge for women’s professional lives,

the women’s office of the trade union

Pancypriot Confederation of Labour

highlights�½***

Unemployment prompted by the pandemic

also affects women more adversely than

men, a study published by the National

Institute for Demographic Studies in

France

(INED) shows�½**** Only two in three

women employed on 1 March 2020 were

still in employment two months later,

compared with three in four men�½ This

corroborates Eurostat’s data�½

* For a comprehensive presentation of

gendered impacts of the pandemic, see

the European Institute for Gender Equality’s

dedicated web page on

COVID-19 and

gender equality.

** Vienna University of Economics and

Business and Chamber of Labour (2020),

Online survey on time use of couples

during COVID-19.

*** FRA (2020),

Bulletin #4 – Coronavirus

pandemic in the EU – Fundamental rights

implications,

p. 22.

**** INED (2020),

How the COVID-19

epidemic changed working conditions in

France,

July 2020.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

3.5. JUSTICE

Restrictive measures affected the work of courts in EU Member States.

This had an impact on people’s access to justice, which is important for

ensuring the right to an effective remedy and a fair trial. From the end of

May 2020, courts began to resume functioning in many Member States, but

new restrictions were adopted in the autumn.

Courts were often closed down, ‘non-urgent’ cases and investigations were

suspended, and hearings were postponed. In many cases this extended

both proceedings and case backlogs.

In some cases concerns were also

raised about people missing judicial deadlines.

Detailed information on

temporary measures taken in EU Member States is available on the European

Commission’s e-Justice Portal.

The CoE has also created a web page on

national judiciaries’ COVID-19 emergency measures.

“The [ECtHR] has established

that physical absence does not

necessarily constitute a violation

of the right to a fair trial. The

ECtHR has pointed to several

international law instruments

that provide for participation in

the trial using videoconferencing

as a way of respecting Article 6

of the ECHR, and it has adopted

several judgments as regards the

use of videoconferencing. It should

be noted that, when establishing

videoconferencing in courts,

due attention should be paid to

the preservation of the right of

defence.”

The Consultative Council of European

Judges (CCEJ) of the Council of Europe

(2020),

Statement of the President of

the CCEJ on the role of judges during

and in the aftermath of the COVID-19

To mitigate the effects of the pandemic and ensure the continuity of justice

as much as possible, digital and videoconference tools were used. However,

challenges emerged with respect to the judicial system’s ability to work

remotely using electronic devices for communication, to access files through

databases, and to conduct proceedings by videoconference. This affected in

particular those Member States with less developed information technology

(IT) systems in their judiciaries.

Overall, the pandemic accelerated the digitalisation of justice. In this process

it is crucial to ensure the respect of the minimum standards developed under

Articles 47 and 48 of the Charter and Article 6 of the ECHR, regarding effective

participation in proceedings, particularly criminal ones, including one’s right

to be present, and the principle of publicity. Ensuring appropriate training for

the judiciary is also important. For more on access to justice, see Chapter 9

in the

Fundamental Rights Report 2021.

Guidance on

online court

proceedings

On 15 April 2020,

Finland’s

National

Courts Administration published

a guide on online court proceedings

for legal practitioners to follow

during the emergency. The guide

includes practical information on

various communication tools as well

as general recommendations on how

to organise court proceedings online.

Finland, National Courts

Administration (2020),

‘A guide

for courts to use remote access in

proceedings’,

15 April 2020.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

3.6. TRAVELLING WITHIN AND INTO THE EU

In March 2020, EU Member States restricted travel by introducing controls

at the internal borders between them and limiting the movements of those

entering and leaving their territory.

In a number of cases, the restrictions partially or almost completely closed

borders, through banning flights, closing airports or reducing the number

of border-crossing points. More often they meant requirements to undergo

health checks, present a negative COVID-19 test and/or self-isolate after

entry for a certain period, which could be up to 14 days. There were also

exemptions – for example for healthcare, cross-border or seasonal workers.

These practices interfered with the freedom of movement and residence

enshrined in Articles 21 and 45 of the Treaty on the Functioning of the EU,

and Article 45 of the Charter. This is a fundamental component of Union

citizenship. Details about its exercise are set in Directive 2004/38/EC on the

right of citizens of the Union and their family members to move and reside

freely within the territory of the Member States.

The restrictions and controls were based on Article 28 of the Schengen Borders

Code (Regulation (EU) 2016/399), which allows this possibility under strict

conditions and for a limited period.

Articles 27 and 29 of Directive 2004/38/

EC also justify measures restricting the freedom of movement in cases of

“diseases with epidemic potential”, such as COVID-19, provided they comply

with the principle of proportionality.

In this context, when implementing public health measures, the European

Commission noted that these must not discriminate between Member States’

own nationals and resident EU citizens.

It also underlined that a Member

State must not deny entry to EU citizens or third-country nationals residing on

its territory and must facilitate the transit of other EU citizens and residents

who are returning home.

In May 2020, the European Commission proposed a return to the unrestricted

free movement of persons in the EU and the Schengen area, as the health

situation was improving.

By July, all EU Member States eased their travel

restrictions regarding internal borders.

However, the increase in infections in the autumn resulted in new border

controls and travel restrictions. This time the restrictions were less severe,

in line with the Council Recommendation on a coordinated approach to the

restriction of free movement in response to the COVID-19 pandemic, adopted

in October.

“Without the return to a fully

functional Schengen Area, we

are still missing an essential

stepping-stone on our way to

recovery. A complete return to

free movement, no discrimination,

mutual trust and solidarity are of

utmost importance and core values

of the EU.”

Juan Fernando López Aguilar, Chair of

the European Parliament Committee on

Civil Liberties, Justice and Home Affairs,

Press release,

19 June 2020

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

‘Re-open EU’

platform

guides

travellers

On 15 June, the Commission launched

the web platform ‘Re-open EU’.

Available in all EU languages, it

provides real-time information on

borders, available transport, travel

restrictions, health and safety

measures and other practical

information for travellers. National

governments also publish up-to-

date online information on travel

restrictions.

European Commission (2020), web

platform ‘Re-open

EU’.

The ECDC started publishing a weekly map of

EU Member States and regions, marking areas

in ‘traffic light’ colours (red, orange and green),

depending on the COVID-19 infection rates, to

facilitate the EU’s coordinated approach.

Border

controls, mandatory health tests, self-isolation

rules and lists of ‘safe’ countries and regions

were applied, depending on the epidemiological

developments, but Member States avoided

closing down their internal borders in the rest

of the reporting period. In this way they served

better the requirements of the freedom of

movement, as enshrined in EU law.

At the onset of the pandemic, Member States

restricted travel to and from third countries,

with special measures and exemptions for

certain categories. To promote a coordinated

approach to border controls, on 16 March 2020,

the European Commission recommended the

temporary restriction of non-essential travel to the EU to prevent the further

spread of COVID-19.

These restrictions – initially for 30 days – were extended until 30 June, when the

Council of the EU adopted a recommendation providing for coordinated gradual

lifting of travelling restrictions from third countries.

This recommendation is

regularly reviewed and amended on the basis of health data and containment

measures in each country. Its last amendment in 2020 was in December and

included a list of third countries whose residents could be allowed to enter

the EU for non-essential travel.

In October, the Commission published guidance on persons exempted from the

temporary restriction on non-essential travel to the EU.

This is necessary to

ensure the respect of the right of certain third-country nationals (e.g. family

members of Union citizens, third country nationals holding a valid residence

permit, cross-border workers) to enter the EU. That is linked to the exercise

of other rights, for example to private and family life or to engage in work.

Other exemptions served the needs of Member States for workers, for

instance seasonal workers in agriculture or healthcare workers.

3.7. PRIVACY AND PERSONAL DATA PROTECTION – USE

OF TECHNOLOGY TO FIGHT THE PANDEMIC

Following advice from international and EU health institutions, most Member

States used digital tracking and monitoring tools to limit the spread of the

pandemic, particularly tracing apps.

Some countries also allowed health and

police authorities to access traffic and geolocation data from telecommunication

providers to track individuals subject to quarantine measures.

Other technological tools were employed, as well. These included, for example,

drones to monitor compliance with physical distancing measures in public

spaces; online forms or text messages before leaving the house or for

travelling across the EU; thermal cameras to measure people’s temperatures;

and collecting and sharing of lists of patients with COVID-19.

FRA’s Bulletin 2 focused on these tools and their fundamental rights

implications.

It highlighted that tools that interfere with the right to privacy

and personal data protection need to be grounded in law, and must be

necessary and proportionate, as the General Data Protection Regulation

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

(GDPR)

and ultimately the EU Charter (Articles 7 and 8) require. It also noted

that Article 23 of the GDPR provides the possibility for legislative measures to

restrict data subjects’ rights, including where required for public health reasons.

As regards COVID-19-tracing apps, the EU’s eHealth

network,

the European Commission

and the European

Data Protection Board

adopted guidance on how to

uphold data protection standards in the development

and use of tracing apps.

At the CoE level, two joint statements by the Chair of the

Consultative Committee of Convention 108 (the Council of

Europe Convention on the protection of individuals with

regard to automatic processing of personal data) and the

Data Protection Commissioner recalled the principles to

be upheld to help fight the pandemic while respecting

individuals’ right to privacy and data protection, and

warned against unwanted effects.

The Council of Europe

report

Digital solutions to fight COVID-19,

published in

October, examined key legal and policy developments

from a data protection perspective, focusing in more depth

on the use of tracing apps and other monitoring tools.

In April, the OECD also published recommendations for preserving privacy

when using apps and biometric data in the fight against COVID-19.

A set of common recommendations emerged from these documents aiming

to safeguard privacy and data protection. They all emphasised the need to

ensure that only minimal, accurate and secure data are collected, and that

they are processed in a transparent way and with appropriate technological

methods. For tracing apps this implies, for instance, using Bluetooth proximity

data, decentralised storage methods and open source codes. They also noted

that any data collection and processing to address the pandemic must be

limited in time and linked to the health crisis. Finally, they emphasised that

using such digital tools should be voluntary.

At national level, in most cases data protection authorities (DPAs) provided

extensive guidance on how to employ tracing apps in line with international

rules and guidance, and monitored their use, as far as possible.

Member

States developed and used tracing apps that overall complied with this

guidance. Notably, all use of tracing apps was voluntary.

For more on privacy and data protection, see Chapter 7 in the

Fundamental

Rights Report 2021.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

IMPACT OF PANDEMIC ON RIGHTS OF

PARTICULAR GROUPS

The pandemic affects everyone, but its impact has not been even across

society. The pandemic and the measures to contain it hit vulnerable groups

harder, FRA evidence and other data suggest.

Overall, the pandemic

accentuated the fundamental rights challenges that certain groups already

faced. Thus it further entrenched existing inequalities and discrimination,

and exacerbated social exclusion and marginalisation.

4.1. OLDER PERSONS

Older people have been severely

affected by the pandemic – especially

those living in institutional settings or

with underlying health conditions.

100

The death toll was much higher than

in other age groups. Infection and

mortality rates for those in institutions

were worrying.

101

In addition, the

measures to contain the pandemic

affected older people’s right to a life of

dignity, independence and participation,

as enshrined in Article 25 of the EU

Charter of Fundamental Rights, and

their right to non-discrimination based

on age (Article 21).

For example, older persons faced

more restrictions relating to physical

distancing (e.g. bans on visiting those

living in institutions, and stay-at-

home rules or recommendations) and

accessing goods and services.

102

Council of Europe

bodies highlight

pandemic’s

effects

The Steering Committee on Anti-

discrimination, Inclusion and Diversity

(CDADI) of the Committee of Ministers of

the CoE published a study on the anti-

discrimination, diversity and inclusion

dimensions of the pandemic�½*

The Parliamentary Assembly of the

CoE adopted, on 13 October 2020,

Resolution 2340 on the humanitarian

consequences of the Covid-19 pandemic for

migrants and refugees�½**

* CoE, Committee of Ministers, CDADI

(2020), Study,

COVID-19: an analysis of the

anti-discrimination, diversity and inclusion

dimensions in Council of Europe member

states,

November 2020.

** CoE, Parliamentary Assembly (2020),

Resolution 2340 on humanitarian

consequences of the Covid-19 pandemic for

migrants and refugees,

13 October 2020.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

There is also evidence of problems in access to medical treatment for reasons

other than COVID-19; medical triage practices based on age as a deciding

factor when selecting whom to treat in hospitals faced with large numbers

of patients and limited resources; an adverse impact on their psychological

well-being and mental health; and discriminatory public discourse or practices,

particularly about their participation in the labour market.

FRA dedicated the focus section of Bulletin 3 to the pandemic’s impact on the

fundamental rights of older persons. For more on the rights of older persons,

see Chapter 3 in the

Fundamental Rights Report 2021.

4.2. PERSONS WITH DISABILITIES

The consequences were also grave for many people with disabilities.

103

Pre-existing health conditions increased the risks to their health and lives

from a possible COVID-19 infection. The risks proved to be higher for those

in institutional care settings, who also faced bans on visits, isolation and

psychological stress.

104

A major issue was the disruption of and decrease in essential services for

persons with disabilities. They include education, schools and other learning

support for children with disabilities, healthcare, community-based and at-

home support, and facilitated transport.

105

Transition to digital and remote

learning and working arrangements did not help much either. It revealed

a risk of an increased digital divide between persons with disabilities and

the rest of the population.

Member States took a number of measures to address these challenges, in

line with their obligations under the Convention on the Rights of Persons

with Disabilities (CRPD).

106

The CRPD is also binding on the EU. Moreover,

Article 26 of the Charter provides for “the right of persons with disabilities

to benefit from measures designed to ensure their independence, social

and occupational integration and participation in the life of the community”.

The measures included, for example, additional funding for services to persons

with disabilities, targeted financial assistance, financial support for maintaining

persons with disabilities in employment, special leave for persons with

disabilities and those facing pre-existing health conditions, special leave for

parents of children with disabilities following school or day-centre closure,

home assistance for students or special arrangements for schools with

children with disabilities, and targeted hotlines for psychological support

and assistance.

107

Despite these efforts, the situation worsened for persons with disabilities

because of the pandemic, and further action is needed, FRA’s evidence

suggests. For more on this topic, see Chapter 10 in the

Fundamental Rights

Report 2021.

4.3. VICTIMS OF DOMESTIC VIOLENCE

Based on previous experiences, already at the outset of the pandemic WHO

warned of a likely increase in intimate partner violence against women.

108

In 2020, domestic violence incidents increased, evidence collected by FRA

confirmed.

109

For example,

Czechia

and

Germany

indicated that calls to their

national domestic violence hotlines rose by 50 % and 20 %, respectively,

between March and June.

110

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

Italy,

calls to the national helpline between 1 March and 16 April increased

by 73 %, and the number of victims asking for help increased by 59 %,

compared with the same period in 2019, according to a report published by

the National Institute for Statistics in June.

111

The data also show that 45 %

of the victims reported being afraid for their safety and life, 73 % decided

not to report the violence to the police, 93 % of the incidents occurred at

home, and 64 % involved children witnessing violence.

In June, the Technical University of Munich in

Germany

published the findings

of a representative online survey on women and children’s experiences of

domestic violence during the pandemic.

112

It asked around 3,800 women

aged 18 to 65 about their experiences during the lockdown period between

22 April and 8 May. About 3 % of women respondents became victims of

physical violence at home. In 6.5 % of all households, children were subjected

to corporal punishment.

Member States took steps to address rising levels of domestic violence, as FRA

reported.

113

Measures included, for example, awareness raising; provision of

information in a safe environment; keeping hotlines active; opening shelters

for victims; and continuing to issue protection orders and handle court cases

of domestic violence during the lockdown. In 2020, the European Institute for

Gender Equality (EIGE) assessed more systematically the measures taken by

Member States to protect women against intimate partner violence.

114

The

relevant report is expected in 2021.

Member States are obliged to address domestic violence effectively to deliver

on their duties to protect women and children. Domestic violence is a severe

violation of their fundamental rights, which the Istanbul Convention of the

Council of Europe enshrines.

115

EU law also binds Member States to provide

support services to victims based on individual assessments of their specific

protection needs, according to the Victims’ Rights Directive.

116

On violence against women and children, including the increased risk of

children being exposed to sexual abuse, see also Chapter 8 and Chapter 9

in the

Fundamental Rights Report 2021.

4.4. ROMA AND TRAVELLERS

Roma and Travellers often live in marginalised settings, in substandard and

overcrowded housing conditions. Not only did they face an increased risk

of contracting COVID-19, but containment measures also disproportionately

affected them. Evidence points to the heightened risk of disrespect and

violation of Roma and Travellers’ fundamental rights, as enshrined in the

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

EU Charter.

117

This concerns in particular their right to non-discrimination and

equal treatment with the non-Roma population, including in healthcare, work,

education, social security and assistance, and housing.

In September 2020, FRA’s Bulletin 5 examined the situation of Roma and

Travellers during the first wave of the pandemic. In a number of countries,

entire Roma neighbourhoods were put in strict quarantine. Lockdowns left

many Roma unemployed if they had been engaged in precarious work,

and many could not work as street vendors and travelling traders. Working

informally, and sometimes having no formal registration of residence, made

it difficult for them to claim support and benefits available to workers in

the formal labour market. This resulted in increased poverty and risk of

malnutrition.

Housing deprivation or poor housing conditions, and limited access to water,

electricity and sanitation, created serious health concerns. Barriers to accessing

health services exacerbated them. The younger generation faced yet another

hurdle: without internet access and appropriate IT equipment, they run the

risk of falling even further behind at school or even dropping out.

Amid these difficult realities, the persistent scourge of antigypsyism remained

ever present. Media and social networks especially portrayed Roma as a public

health hazard and responsible for spreading the virus. For more on this topic,

see Chapter 5 in the

Fundamental Rights Report 2021.

4.5. LGBTI PEOPLE

The pandemic compounded challenges for lesbian, gay, bisexual, trans and

intersex (LGBTI) persons, who are protected against discrimination under

Article 21 of the EU Charter. In April, the OHCHR drew attention to COVID-19’s

impact on LGBTI people and their rights. It underlined issues such as limited

access to health services; stigmatisation, discrimination and hate speech, and

even being blamed for the pandemic; increased risk of violence; and difficulties

in accessing the labour market and social assistance services and benefits.

118

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

Mitigating the

pandemic’s

impact on LGBTIQ

people

The European Commission

issued its first-ever EU lesbian,

gay, bisexual, trans, non-binary,

intersex and queer (LGBTIQ)

equality strategy in 2020�½ It

noted that it will encourage

Member States to make full

use of the NextGenerationEU

financial instrument to mitigate

the disproportionate impact

of the COVID-19 pandemic on

LGBTIQ people and to advance

LGBTIQ equality�½

European Commission (2020),

Union of Equality: LGBTIQ

Equality Strategy 2020–2025,

COM(2020) 698 final, Brussels,

12 November 2020.

Also in April, ILGA-Europe sent an open letter

to the President of the European Commission,

urging the Commission to keep equality for

all at the core of EU policies.

119

It warned,

for example, that young LGBTI people were

particularly at risk, finding themselves trapped

in hostile, locked-down family situations.

In June, ILGA-Europe published a rapid

assessment report presenting evidence of

the impact of COVID-19 on LGBTI people,

organisations and communities in Europe and

Central Asia.

120

Intersex people face a highly increased risk

of being unable to access healthcare because

of their medical history, even when infected

with COVID-19, the Organisation Intersex

International Europe (OII Europe) found in an

online survey. Most respondents (62 %) said

that their mental health had deteriorated and

21 % that they had experienced a relapse into a previous mental health

condition as a result of the pandemic.

121

For more information on the rights of LGBTI persons, see Chapter 3 in the

Fundamental Rights Report 2021.

4.6. REFUGEES AND MIGRANTS

Asylum seekers, refugees and migrants have also been disproportionally

affected. These include children, and in particular unaccompanied minors. FRA’s

COVID-19 bulletins,

122

and its quarterly bulletins on migration,

123

repeatedly

reported on their situation during the pandemic. The measures taken to

contain it had an impact on their rights, as enshrined in EU law, including

the EU Reception Conditions Directive for those recently arrived in the EU.

124

Overcrowded accommodation, poor hygiene conditions and limited access

to health services increased the risk of infection among all different migrant

groups, evidence shows.

125

Research in a number of countries found that

infection rates were much higher among them, in particular for those who

were at risk of poverty and social exclusion and were living in overcrowded

housing and poor hygienic conditions, than in the general population.

126

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

Evidence from some Member States suggests that the pandemic resulted

in job losses, especially among those in precarious and unofficial jobs, and

rising poverty levels among asylum seekers, refugees and migrants.

127

The situation was particularly challenging in reception and detention facilities,

as the ECDC also highlighted.

128

Member States introduced physical distancing

or quarantine measures, banned residents from leaving accommodation

facilities, and restricted or did not allow visits, including by providers of

social services.

129

Evidence collected by FRA indicated concerns that such measures in severely

overcrowded camps could deepen human suffering, increase existing tensions

and exacerbate the risk of violence. Moreover, restrictive measures affected

the right of asylum seekers to look for protection in the territory of the EU, as

well as their right and that of migrants to access relevant procedures, their

residence status and permits, and the enjoyment of other rights, including

to access health services and education.

In March 2020, FRA, in cooperation with the Special Representative of the CoE

on Migration and Refugees, published an analysis on fundamental rights at

the external borders of the EU, including during a pandemic.

130

It underlines

that “[p]rotection needs cannot be set aside while implementing measures

to address public health considerations at the borders” and therefore “[r]

efusing entry of all asylum applicants, or of those of a particular nationality,

does not comply with the right to seek asylum and could lead to a risk of

violating the principle of

non-refoulement”.

For more information on asylum and migration, see Chapter 6 in the

Fundamental Rights Report 2021.

On issues relating to children, see Chapter 8

of the report.

4.7. HOMELESS PEOPLE

Homeless people live constantly in conditions that

jeopardise their right to life and health and often violate

human dignity. Worryingly, homelessness increased

during the pandemic.

131

This reflected job dismissals

and loss of income, which may lead to failure to pay

rent or a mortgage, and hence may result in eviction.

At the outset of the pandemic, the European Federation

of National Organisations Working with the Homeless

(FEANTSA) warned that COVID-19 put homeless

people’s health at greater risk because of poor living

conditions combined with the fact that many of them

have underlying medical conditions.

132

Difficulties in and barriers to accessing healthcare,

including testing and protective equipment, and

lack of information on hygiene measures increased

demand for places in shelters. That led to overcrowding

because shelters needed to reduce their capacity to

comply with physical distancing measures. Together

with disruption in other support services, including

the provision of food, it heightened health risks and

further worsened the living conditions of homeless

people.

133

Containment measures, in particular stay-

at-home, curfew and physical distancing measures,

added further hardship.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

Focus on

adequate

housing

In March, the UN Special Rapporteur

on the right to adequate housing

urged states to:

— cease all evictions;

— provide emergency housing

with services for those who are

affected by the virus and must

isolate;

— ensure that enforcing

containment measures (e.g.

curfews and stay-at-home

measures) does not lead to the

punishment of homeless people;

— provide equal access to testing

and healthcare;

— provide adequate housing.

UN Special Rapporteur on the

right to adequate housing (2020),

‘“Housing, the front line defence

against the COVID-19 outbreak,”

says UN expert’.

FEANTSA noted that staying at home is not

an option for homeless people. Nevertheless,

FEANTSA reported sanctions against homeless

people who infringed lockdown rules.

134

National, regional and local authorities adopted

measures to alleviate the difficulties homeless

people or people at risk of homelessness face.

135

For example,

France,

the

Netherlands

and

Spain

introduced moratoria on evictions and/or rent

increases. In

Belgium

and

France,

the number

of available accommodation places, including

in hotels, increased.

Municipal authorities (e.g. Barcelona, Budapest,

Lisbon and Madrid) also took action. Authorities

Belgium, France

and the

Netherlands

set up

special accommodation facilities for homeless

people who become infected.

French

authorities

distributed vouchers enabling homeless people

to buy food and hygiene products. In

Finland,

service centres for homeless people took their

services to the streets, offering meals and

guidance.

Nevertheless, the authorities need to devote

systematic attention and action to their

obligation to protect the human dignity and

the rights to life and health of people deprived

of their right to housing and experiencing homelessness.

4.8. DETAINEES

The structure and internal organisation of prisons, particularly when

overcrowded, make it difficult to observe hygiene and physical distancing

rules. This exposes both detainees and staff to severe risks to their life and

health. To avoid the spread of COVID-19 in prisons, authorities in Member

States adopted restrictive measures.

136

These measures concerned visits to detainees, time granted outside their

cells, sports and other external activities, and prison transfers. Sometimes

they included total bans on visits, including from their lawyers. That could

undermine their right to access to justice. People infected had to quarantine.

Preventive quarantine applied in many cases to those newly entering a facility.

The restrictions affected the rights of detainees and put a severe psychological

strain on them, affecting their mental health. In some cases they increased

tension. For instance, in

Italy,

they led to revolts in detention facilities,

during which some prisoners died, and several others and prison officers

were injured.

137

These challenges prompted many international organisations,

138

national

human rights and monitoring bodies

139

and CSOs

140

to call on authorities to

drastically reduce prison populations through measures such as temporary

or early releases and minimising pre-trial detention. For example, the UN

High Commissioner for Human Rights encouraged authorities to “examine

ways to release those particularly vulnerable to COVID-19 as well as low-

risk offenders”.

141

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

For its part, the European Committee for the Prevention of Torture and Inhuman

or Degrading Treatment or Punishment (CPT) of the CoE issued a statement

of principles in March 2020 relating to the treatment of persons deprived of

their liberty during the pandemic.

142

In a follow-up statement in July, the CPT

welcomed that most states had increased the use of non-custodial measures as

alternatives to detention, such as suspending or deferring sentences, bringing

forward conditional release, temporary release, commuting imprisonment

into house arrest or extended use of electronic monitoring.

143

After the first phase of the pandemic, restrictive measures were eased, FRA

evidence shows. Alternative arrangements (e.g. using protective screens

during visits) ensured access to lawyers and communication with family

members.

144

Most importantly, a significant number of EU Member States adopted measures

to reduce their prison population. For example, between mid-March and

mid-May,

France

reduced its prison population by 13,082.

145

Germany,

several

Länder

released prisoners in the last stages of their prison sentences

for minor criminal offences.

146

A new law adopted in

Portugal

on 9 April provided for an amnesty for

prison sentences and remaining prison terms of up to two years, as well

as for special measures for vulnerable inmates aged 65 or more, with the

exception of those convicted for serious crimes.

147

Portugal also established

an extraordinary leave regime.

In October,

Italy

allowed the extension of ‘special leaves’ from prison and

permitted detainees with sentences of up to 18 months to serve them in

home custody until 31 December 2020, monitored using electronic bracelets.

148

Exceptions applied for those serving sentences for serious offences.

Measures to reduce prison populations were also adopted in

Cyprus,

following

an intervention by the Ombuds body.

149

4.9. ETHNIC MINORITIES

The COVID-19 pandemic triggered an increase in racist and xenophobic

incidents, including verbal insults, harassment, physical aggression and online

hate speech, according to evidence that FRA and other sources collected.

150

This increase undermines and violates Article 21 of the Charter, EU criminal

provisions combating racism and xenophobia,

151

and the Racial Equality

Directive.

152

Initially, racist incidents targeted people of

perceived Chinese or other Asian origin. For

example, according to the

French

Public Defender

of Rights (Ombuds institution and equality body),

anti-Asian racism took on a new dimension with

insults and assaults in public places and harassment

of children at school.

153

By 19 June, the

German

Federal Anti-discrimination Office had received

some 300 requests for counselling about COVID-

19-related incidents,

154

mostly targeting people

of Asian origin.

Other minority groups were also blamed and

attacked, particularly on social media. This also

concerned religious groups, as the UN Special

Rapporteur on freedom of religion or belief

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

Highlighting

the pandemic’s

effect on diverse

communities

The European Network against Racism

released in May 2020 the EU-wide

interactive map of COVID-19’s impact on

racialised communities�½ It also documents

hate speech and hate crime incidents linked

to COVID-19�½

European Network against Racism

(2020), ‘COVID-19

impact on racialised

communities: Interactive EU-wide map’,

12 May 2020.

highlighted in a statement in April 2020.

155

Conspiracy theories driven by antisemitism

emerged.

156

This particularly affected Roma and people with

an immigrant background. Some politicians,

other public figures and media outlets stirred

racist perceptions, while others countered

hatred and promoted non-discrimination

and tolerance. Persons of Chinese or other

Asian origin, and other minority groups, also

encountered discrimination in accessing

goods, including access to health services

and education.

157

Reports pointed to the strict enforcement of containment measures against

minority groups. A June report by Amnesty International covered incidents in 11

EU Member States. It focused on the disproportionate impact of enforcement

measures on people of North African and sub-Saharan origin, and other

minority ethnic groups living in working-class districts, including cases of

disproportionate use of force.

158

For more information on developments pertaining to racism, see Chapter 4

in the

Fundamental Rights Report 2021.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

FRA opinions

FRA OPINION

1.1

EU Member States should assess and

balance the requirements of different

fundamental and human rights when

adopting restrictive measures in an

emergency, such as the one presented

by the COVID-19 pandemic�½ To achieve

this balance, they should take into

consideration international human

and fundamental rights standards,

including relevant case law and

guidance by international human

rights bodies�½ They should also involve

national statutory human rights bodies

when designing, implementing, and

monitoring restrictive measures�½

These measures should be necessary,

temporary and strictly proportionate�½

EU Member States should ensure

that restrictive measures are based

on law and that courts, parliaments,

statutory human rights bodies and

other stakeholders, including civil

society, can scrutinise them�½

EU institutions should continue to

monitor emergency measures in the

light of the EU’s founding values as laid

down in Article 2 of the TEU, including

fundamental rights, rule of law and

democracy�½ Policy documents, such as

the new annual European Rule of Law

Mechanism report, should reflect the

outcome of monitoring the emergency

measures, where relevant�½

The pandemic and the measures adopted to contain it

have seriously affected all aspects of our personal and

collective life, including the functioning of our democratic

institutions, as the evidence shows. The pandemic has

revealed new challenges to upholding the fundamental

values of the functioning of our states and the European

Union. It has implications for our fundamental rights.

Restrictions have an impact on our personal and social

interaction, and on the protection of our sensitive

personal data. At the same time, the social and economic

consequences of the pandemic will be lasting and will

significantly exacerbate already existing inequalities.

It is essential, as many have stressed at international,

EU and national levels, that emergency and restrictive

measures fully respect international human rights and rule

of law standards, as international instruments enshrine

them and relevant case law shapes them. A large number

of documents from authoritative sources have identified

these standards, which provide guidance to duty-bearers

on how to better protect the rights of people to life and

health without negating all their other rights.

As the European Parliament underlined, “even in a state

of public emergency, the fundamental principles of the

rule of law, democracy and respect for fundamental

rights must prevail”. In this respect, the EU Charter of

Fundamental Rights is of major importance when it comes

to EU actions, and actions of Member States that fall

within the scope of EU law. FRA’s bulletins throughout

2020 highlighted with evidence the implications on

fundamental rights in the EU context.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

At national level, restrictive measures have been under

scrutiny by courts, parliaments, human rights bodies,

civil society and other stakeholders. Although they

recognised the need for emergency measures to contain

the pandemic, they objected to those that were not based

on law, lasted for a long time and were disproportionate.

They also stressed the importance of fighting COVID-19-

related discrimination, hate speech and racism.

Modern science responded to this challenge in record

time, making vaccines available as early as the end of

2020. Still, the pandemic exposed gaps and limitations

in the capacity and preparedness of our healthcare,

education, employment and social protection systems

to deal with such a crisis, and deliver on the obligation

to fulfil the rights of all to health, education, work and

social security and assistance. It also revealed gaps in our

capacity to protect the rights of those more vulnerable.

The pandemic is a litmus test of our readiness to respect

the promise of the global Agenda 2030 to “leave no

one behind” in achieving a socially just transition to

sustainable development.

Despite the shortcomings, however, the EU and its

Member States made considerable efforts to support their

healthcare, education and social protection systems, and

to assist individuals and businesses against the economic

downturn and the risk of unemployment.

FRA OPINION

1.2

EU Member States should improve

the resilience of their healthcare,

social welfare and social assistance

systems to ensure that they provide

equitable services to everyone even

during a crisis�½ To achieve this in

a coordinated way across the EU,

the European Commission’s proposal

for a strong European Health Union

should be adopted without delay�½ The

proposal aims to seriously improve the

protection of health, but also social and

economic life across the EU�½

FRA OPINION

1.3

EU Member States should enhance

their efforts to ensure the continuity

of education for all children under any

circumstances, particularly in times of

crisis such as the one presented by the

COVID-19 pandemic�½ In this respect,

they should prioritise establishing

a digital infrastructure across all levels

of education, and ensure appropriate

training to familiarise teachers with

working in a digital environment�½ In

this regard attention should be given

to the Digital Education Action Plan

(2021–2027), which suggests this, and

calls for stronger cooperation at EU

level to make education and training

systems fit for the digital age�½

EU Member States should also

ensure that this digital infrastructure

is inclusive�½ This means catering to

the needs of those who are socially

excluded and vulnerable, such as

children with disabilities, children of

Roma and Travellers, and children of

migrants and refugees�½

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

FRA OPINION

1.4

The EU and its Member States

should continue to fight COVID-19-

related discrimination, hate speech

and racism against ethnic minority

groups, migrants and refugees, or

people with a migrant background�½

This includes strengthening measures

against disinformation that spreads

hate speech, and discriminatory and

racist perceptions, particularly online�½

The EU’s added value was once again of critical

importance. It put in place various instruments to help

Member States finance their actions. Looking forward,

the EU institutions reached agreement on a recovery

package of € 1.8 trillion. It combines the EU budget for

2021–2027 and NextGenerationEU, a temporary recovery

instrument allowing the European Commission to raise

funds on the capital market to address the immediate

economic and social damage caused by the pandemic.

These EU financial measures, together with policy

instruments promoting human and fundamental rights,

such as the European Pillar of Social Rights, form

a comprehensive framework to support national efforts.

FRA OPINION

1.5

EU Member States should focus on

the needs of vulnerable groups that

are most at risk of infection and/or

severe disease�½ These groups include

older people, people in care homes,

persons with pre-existing health

conditions, and those living in limited

and overcrowded spaces or poor living

and housing conditions�½ This last group

includes many Roma and Travellers,

and people in reception or detention

facilities for migrants and refugees,

prisons, and shelters for homeless�½

This also requires prioritising these

groups for vaccination and ensuring

they enjoy equitable access to health

and social services as necessary�½

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

Endnotes

Charter of Fundamental Rights of the European Union,

OJ 2012 C 326.

Council of Europe (CoE),

Convention for the Protection of Human Rights and Fundamental Freedoms,

4 November 1950.

CoE,

European Social Charter and Additional Protocols,

18 October 1961; CoE,

European Social Charter (revised),

3 May 1996.

United Nations (UN),

International Covenant on Civil and Political Rights,

16 December 1966; UN,

International Covenant on Economic, Social and

Cultural Rights,

16 December 1966.

Treaty on European Union,

Art. 2, Art. 6(3).

UN, Department of Economic and Social Affairs, Division for Sustainable Development Goals,

The 17 Goals website.

FRA (2019), Focus,

Implementing the Sustainable Development Goals in the EU: a matter of human and fundamental rights.

UN, General Assembly (2015),

Transforming our world: The 2030 Agenda for Sustainable Development,

A/RES/70/1, 25 September 2015; FRA (2019),

Implementing the Sustainable Development Goals in the EU: a matter of human and fundamental rights.

FRA (2020),

Bulletin #6 – Coronavirus pandemic in the EU – Fundamental rights implications: Focus on social rights,

pp. 15–17; Verfassungsblog

(2020), ‘COVID

19 and states of emergency’;

Democracy Reporting International (2020), ‘The

rule of law stress test – EU Member States’ responses

to Covid-19’.

Venice Commission (2020),

Interim report on the measures taken in the EU Member States as a result of the COVID-19 crisis and their impact on

democracy, the rule of law and fundamental rights,

Strasbourg, 8 October 2020, pp.8-14,

FRA (2020),

Bulletin #6 – Coronavirus pandemic in the EU – Fundamental rights implications: Focus on social rights,

pp. 15–17.

CoE Treaty Office, ’Notifications

under Article 15 of the Convention in the context of the COVID-19 pandemic’,

last update 4 January 2021.

Ibid.

Venice Commission (2020),

Interim report on the measures taken in the EU Member States as a result of the COVID-19 crisis and their impact on

democracy, the rule of law and fundamental rights,

Strasbourg, 8 October 2020, pp.8-14; FRA (2020),

Bulletin #6 – Coronavirus pandemic in the

EU – Fundamental rights implications: Focus on social rights,

pp. 15-17. ‘State of emergency’ here refers to a formally declared general state of

emergency and does not include other sectoral regimes, such as for instance the Public Health Emergency Order declared in Malta on 7 March 2020

(LN 115 of 2020), issued under the Public Health Act (CAP. 465) with effect until 30 June (LN 243 of 2020, Second Repealing Regulations, 2020).

CoE, Venice Commission (2020), ’Respect

for democracy, human rights and the rule of law during states of emergency – Reflections’,

Strasbourg,

26 May 2020; CoE, Venice Commission (2020), ‘Interim

report on the measures taken in the EU Member States as a result of the COVID-19 crisis and

their impact on democracy, the rule of law and fundamental rights’,

Strasbourg, 8 October 2020.

European Parliament (2020),

Resolution on the impact of COVID-19 measures on democracy, the rule of law and fundamental rights,

P9_

TA(2020)0307, Brussels, 13 November 2020.

CoE, Venice Commission (2020), ‘Interim

report on the measures taken in the EU Member States as a result of the COVID-19 crisis and their impact

on democracy, the rule of law and fundamental rights’,

Strasbourg, 8 October 2020, p.8.

European Commission (2020),

2020 Rule of Law Report: The rule of law situation in the European Union,

COM(2020) 580 final, Brussels,

30 September 2020.

OHCHR (2020), ‘Emergency

measures and COVID-19: Guidance’,

27 April 2020; Council of Europe (2020),

Respecting democracy, rule of law and

human rights in the framework of COVID-19 sanitary crisis: A toolkit for member States,

SG/Inf(2020)11, 7 April 2020.

European Court of Human Rights (2020),

‘Guide on Article 15 of the European Convention on Human Rights: Derogation in time of emergency’,

31 August 2020; UN Human Rights Committee (2001),

General Comment No. 29 – States of emergency (Article 4),

CCPR/C/21/Rev.1/Add.11, 31 August

2001.

European Parliament (2020),

Resolution on the impact of COVID-19 measures on democracy, the rule of law and fundamental rights,

P9_

TA(2020)0307, Brussels, 13 November 2020.

CoE (2020),

Respecting democracy, rule of law and human rights in the framework of COVID-19 sanitary crisis: A toolkit for member States,

SG/

Inf(2020)11, 7 April 2020, p.4

FRA (2020),

Bulletin #4 – Coronavirus pandemic in the EU – Fundamental right implications,

p. 17.

Greece, Council of State (2020),

Decisions N262/2020 and N263/2020,

18 November 2020.

France, Council of State (2020),

Decision 440846, 440856, 441015,

13 June 2020.

France, Council of State (2020),

Decision 445430,

23 October 2020.

Germany, Constitutional Court (2020),

Decision 1 BvQ 828/20,

15 April 2020.

Germany, Constitutional Court (2020),

Decision 1 BvQ 44/20,

29 April 2020.

Germany, Constitutional Court (2020),

Decision 1 BvQ 31/20,

10 April 2020.

Bulletin #2 – Coronavirus pandemic in the EU – Fundamental rights implications: With a focus on contact-tracing apps, p. 17.

Slovenia, Constitutional Court (2020),

Decision U-I-83/20,

27 August 2020.

FRA (2020),

Bulletin #1 – Coronavirus pandemic in the EU – Fundamental rights implications,

pp. 16–17; FRA (2020),

Bulletin #2 – Coronavirus

pandemic in the EU – Fundamental rights implications: With a focus on contact-tracing apps,

pp. 19-21.

FRA (2020),

Bulletin #3 – Coronavirus pandemic in the EU – Fundamental rights implications: With a focus on older people,

pp. 19–20; FRA (2020),

Bulletin #4 – Coronavirus pandemic in the EU – Fundamental rights implications,

pp. 19-20.

FRA (2020),

Bulletin #6 – Coronavirus pandemic in the EU – Fundamental rights implications: Focus on social rights,

pp. 17-20.

France, Council of State (2020),

Decision 440442, 440445,

18 May 2020.

Poland, Polish Ombudsbody (2020), ‘Letter

to Minister of the Interior and Administration’,

28 May 2020.

Slovenia, Ombudsbody (2020),

Ombudsman says failure to wear mask in enclosed spaces cannot be penalised,

27 July 2020.

FRA (2020),

Bulletin #1 – Coronavirus pandemic in the EU – Fundamental rights implications,

p. 26; FRA (2020),

Bulletin #3 – Coronavirus pandemic

in the EU – Fundamental rights implications: With a focus on older people,

pp. 38-39; FRA (2020),

Bulletin #6 – Coronavirus pandemic in the EU –

Fundamental rights implications: Focus on social rights,

pp. 27-28.

FRA (2020),

Bulletin #1 – Coronavirus pandemic in the EU – Fundamental rights implications,

p. 26; FRA (2020),

Bulletin #3 – Coronavirus pandemic

in the EU – Fundamental rights implications: With a focus on older people,

pp. 38-39; FRA (2020),

Bulletin #6 – Coronavirus pandemic in the EU –

Fundamental rights implications: Focus on social rights,

pp. 27-28.

FRA (2020),

Bulletin #1 – Coronavirus pandemic in the EU – Fundamental rights implications,

p. 26; FRA (2020),

Bulletin #3 – Coronavirus pandemic

in the EU – Fundamental rights implications: With a focus on older people,

p. 41; FRA (2020),

Bulletin #6 – Coronavirus pandemic in the EU –

Fundamental rights implications: Focus on social rights,

pp. 21-22.

FRA (2020),

Bulletin #6 – Coronavirus pandemic in the EU – Fundamental rights implications: Focus on social rights,

pp. 21-22.

Ibid.

For example, regarding Roma and Travellers, see FRA (2020),

Bulletin #5 – Coronavirus pandemic in the EU – Impact on Roma and Travellers,

pp. 19-20.

See for example FRA (2020),

Bulletin #1 – Coronavirus pandemic in the EU – Fundamental rights implications,

pp. 34-35.

ERD, Alm.del - 2020-21 - Bilag 18: EU Fundamental Rights Agency - Report 2021/ Opinions

German Interdisciplinary Association for Intensive and Emergency Medicine (2020), ‘COVID-19:

Clinical-ethical recommendations’,

26 March 2020.

World Health Organization (WHO) (2020), ‘Protecting the health workers who protect us all’, 17 September 2020.

FRA (2020),

Bulletin #6 – Coronavirus pandemic in the EU – Fundamental rights implications: Focus on social rights,

p. 22.

Ibid.

FRA (2020),

Bulletin #1 – Coronavirus pandemic in the EU – Fundamental rights implications,

p. 18;

Bulletin #2 – Coronavirus pandemic in the EU –

Fundamental rights implications: With a focus on contact-tracing apps,

pp. 22-23;

Bulletin #3 – Coronavirus pandemic in the EU – Fundamental

rights implications: With a focus on older people,

pp. 20-21;

Bulletin #4 – Coronavirus pandemic in the EU – Fundamental rights implications,

pp. 20-

21.

FRA (2020),

Bulletin #6 – Coronavirus pandemic in the EU – Fundamental rights implications: Focus on social rights,

pp. 22-24.

OECD (2019),

TALIS 2018 results,

OECD Publishing, Paris. The main survey (International Standard Classification of Education level 2) was conducted

in 31 OECD countries, including 22 EU Member States (Austria, Belgium, Bulgaria, Croatia, Cyprus, Czechia, Denmark, Estonia, Finland, France, Hungary,

Italy, Latvia, Lithuania, Malta, the Netherlands, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden).

European Commission (2020), ‘Digital

education action plan 2021–2027’.

FRA (2020),

Bulletin #3 – Coronavirus pandemic in the EU – Fundamental rights implications: With a focus on older people,

pp. 20–21;

Bulletin #5 –

Coronavirus pandemic in the EU – Impact on Roma and Travellers,

pp. 13–15;

Bulletin #6 – Coronavirus pandemic in the EU – Fundamental rights

implications: Focus on social rights,

pp. 22–24; European Commission, Joint Research Centre (2020), ‘Educational

inequalities in Europe and physical

school closures during COVID-19’,

Fairness policy brief series:04/2020; UN (2020),

Policy brief: Education during COVID-19 and beyond,

August 2020.

Bulgaria, Bulgarian Ombudsbody (2020),

Recommendation to the Minister for Education,

9 September 2020.

Romania, Save the Children (2020),

Study on the starting conditions of the school year 2020-2021 under COVID-19 pandemic in Romania.

Spain, Fundación Secretariado Gitano (2020),

Impact of the COVID-19 crisis on the Roma population,

April 2020.

CoE, Consultative Committee of the convention for the protection of individuals with regard to automatic processing of personal data –

Convention 108 (2020),

Children’s data protection in an education setting: Guidelines,

20 November 2020.