Proportionality of the COVID-19 Measures

Abstract This chapter examines how the European Court of Human Rights (ECtHR) should apply proportionality analysis when dealing with COVID-19-related applications. It assesses the ECtHR’s use of the proportionality test and discusses how the margin of appreciation affects the intensity of the proportionality review in public health cases. This contribution comments on the role of scientific considerations in establishing the margin of appreciation concerning home birth regulations and mandatory vaccination programs. The standard of judicial scrutiny that the Court applies and transfers from its case law would depend on whether the case is analyzed through the lens of the requirements of Article 15 of the European Convention on Human Rights (ECHR) or the limitation clauses built into the relevant Convention articles—namely, ECHR Articles 8–11 and Article 1 of Protocol No. 1. The chapter argues for a more rigorous approach by the Court in its proportionality review of COVID-19 cases.