This week the European Court of Human Rights deemed inadmissible the first case that came before it relating to the rights-compliance of COVID-19 responses. In Le Mailloux v. France (application no. 18108/20) (press release) the Court held that the applicant, Le Mailloux, was not a ‘victim’ under Article 34 of the Convention and therefore was not entitled to bring an individual complaint to the court.
Le Mailloux had intervened in an application to the Conseil d’État seeking to enjoin France to provide appropriate PPE to health workers, patients, and the general population, and to introduce mass screening for all. They also sought to have the state authorise medical professionals to prescribe and administer certain drug combinations to high-risk patients and to have medical laboratories undertake screening. At domestic level, that application was deemed inadmissible and was dismissed.
Le Mailloux then lodged an individual complaint with the European Court of Human Rights, claiming that France had failed to fulfil its positive obligations to protect the lives and physical integrity of those within its jurisdiction in violation a violation of Articles 2, 3, 8 and 10. In particular, his claim related to restrictions on access to particular diagnostic tests, preventive measures, and specific types of treatment, and to the claim of Article 8 violations in respect of persons dying from COVID-19 alone.
The Court, however, concluded that Le Mailloux had not been directly affected by the measures complained of and therefore did not fulfil the admissibility criterion of being ‘a victim’ of an alleged violation. As a result, the case was inadmissible and the merits were not reached.
The Increasingly Clear importance of Rights-Related Parliamentary Review
In truth, this case tells us very little substantively about the relationship between states’ positive obligations under the ECHR and their responses to COVID-19. By deeming the complaint inadmissible the Court avoided addressing this issue, at least for now (further applications are likely to bring the matter to them again). However, what Le Mailloux v. France does underline is the role for parliamentary review mechanisms in respect of responses to COVID-19 as well as the importance of such review mechanisms engaging effectively with questions of human rights.
Parliamentary review can respond to rapidly changing COVID-19 responses in ‘real-time’, unlike review carried out by the courts which is necessarily delayed. In addition, even where parliamentary review is retrospective, it does not run up against questions of mootness in the same way as judicial proceedings might. We have already seen in Dolan that the pace of a judicial review proceeding often lags behind the pace of legislative or regulatory change in respect of COVID-19 so that by the time a case is heard the rules complained of may no longer be in effect and thus the case might be deemed moot. Indeed, Kirsty Brimelow QC raised precisely this issue when she gave evidence to the House of Lords Constitution Committee in late November.
Parliamentary review suffers from no such limitation. Instead, parliamentary committees can look at broad questions in a systematic manner and, in doing so, they can and should address questions of rights compliance and fulfilment in ways that complement the role of the courts, particularly by considering those rights-related matters that admissibility or standing rules may make difficult to raise in judicial proceedings, whether domestic or international.
The Public Accounts Committee is currently conducting an inquiry into Government procurement and contracts for PPE(evidence deadline: 7 December 2020). While this inquiry is not expressly framed in human rights terms, it offers an opportunity to reflect on the relationship between procurement, provision, quality, and distribution of PPE and the state’s positive obligations under the ECHR and other international instruments in ways that may never be considered in a judicial proceeding. This is certainly something the CVRO will be pressing in our submission to the inquiry.