The Principle of Proportionality Toward Risk Prevention — Based on the Judgment Logic of European COVID-19 Derogation Measures

• 作者: FAN Jizeng WANG Yuhong JIANG Yu
• 来源期刊: 人权（英文版）
• 年，卷（期）: 2021,（4）
• 所属期刊栏目: SPECIAL TOPIC Ⅱ: APPLICATION OF THE PRINCIPLE OF PROPORTIONALITY UNDER EMERGENCY STATE
• 页码范围: 598-619
• 页数: 22页
• 语种: 英文

摘要

The COVID-19 pandemic has brought legal challenges to the containment measures adopted by European countries. During the outbreak and containment phase of the pandemic, most European countries adopted measures such as lockdowns and mandatory home quarantines based on the principle of risk prevention. However, Article 15 of the European Convention on Human Rights and judgments by the European Court of Human Rights require such measures to comply with the principle of proportionality. In view of this, this article examines the European Court of Justice's loose judgments on the derogation measures during the pandemic, and the European Court of Human Rights' situational judgments in this regard. Based on the analysis of the legitimacy of the principle of risk prevention and the principle of proportionality in responding to public health emergencies, this article prudently examines and predicts the trend of applying the principle of proportionality of risk prevention for the European COVID-19 derogation measures from three perspectives of legitimacy, necessity, and feasibility.