Covid-19 Pandemic and Restrictions on Fundamental Rights

Õiguskantsler Ülle Madise ettekanne 5. Balti Lastearstide Kongressil 3.06.2022


Dear medical doctors, researchers, ladies and gentlemen,


Thank you for the exceptionally valuable work you do every day, especially for your caring and unwavering willpower during the COVID-19 pandemic.


Thank you for inviting me to speak. It is a great honour for me to be part of this event.


In my speech, I would like to explain why it is important that the courts, ombudspeople, chancellor of justices and other independent institutions analyse the constitutionality of the restrictions, which at the first sight seem to serve only medical purposes. Protection of human rights and constitutional duties is one of the main tasks of these institutions. The constitution obliges us to guarantee that all enforced restrictions are based on scientific analyses, logically justified and necessary to ensure the resilience of human health and the health system. So, that is our job to balance contradicting values and rights.


The fundamental rights and freedoms may be restricted only in accordance with the Constitution, also in times of crisis.


All emergency measures which have an impact on people’s fundamental rights should only be introduced where these are necessary, proportionate, non-discriminatory and time-limited.


All emergency measures should be subject to review on an ongoing basis with the priority being to avoid or minimise any negative impact on fundamental rights. Every restriction on fundamental rights has to be justified – it should be based on facts and scientific evidence.


Unfortunately, many scientists, independent institutions and politicians over the world were afraid to follow their ethics and remained silent as bad ideas turned into official policy. Everyone who dared to criticize illegal or ungrounded restrictions was savaged on social media.


Jonathan Haidt argues in his recent article in The Atlantic, I quote:


“Tragically, we see stupefaction playing out on both sides in the COVID wars. The right has been so committed to minimizing the risks of COVID that it has turned the disease into one that preferentially kills Republicans. The progressive left is so committed to maximizing the dangers of COVID that it often embraces an equally maximalist, one-size-fits-all strategy for vaccines, masks, and social distancing — even as they pertain to children. Such policies are not as deadly as spreading fears and lies about vaccines, but many of them have been devastating for the mental health and education of children, who desperately need to play with one another and go to school; we have little clear evidence that school closures and masks for young children reduce deaths from COVID.“[1]


Jonathan Haidt is a social psychologist at New York University. In 2019 he was inducted into the American Academy of Arts and Sciences. Since 2018 he has been studying the contributions of social media to the decline of teen mental health and the rise of political dysfunction.


When imposing restrictions during the COVID-19 pandemic governments claimed that the right to health is the most important fundamental right, more important than the right to education, and definitely more important than a free economy in all situations. When talking about the right to health, physical health clearly dominated over mental health during the pandemic. This means that the impact of restrictions on people`s mental health was not at the centre of attention. It is impossible to agree with this kind of black-and-white approach to fundamental rights.


Imagine that there is a child who has the right to education and really loves going to school. The child comes from a socially disadvantaged family and the pandemic has already increased existing tensions in the family. Spending time in a supportive and stimulating school environment and meeting friends would really benefit the child. But all children are prohibited from going to school because some elderly persons who live in the same municipality have decided not to vaccinate against the disease. All this despite the fact that safe vaccines are available for everyone, free of charge and the state has even offered to vaccinate people in their homes if they wish so.


In this situation, is it possible to automatically say that it is justified to protect the 80-year-old from catching a disease by restricting children`s right to go to school?


The state cannot guarantee us health. It would be mission impossible. We all jeopardize our own health with our lifestyles, some more, some less. Personal responsibility always remains. In addition, we have to admit that even the wealthiest countries in the world are unable to provide all thinkable high-quality healthcare services and medications for every person residing in the country. Simply put, there is not enough money for that. So, we are constantly searching for the right balance between different fundamental rights and also public interests.


It is the task of lawyers.


There is no universal solution for all situations, and when circumstances change or we have more knowledge, we will have to re-think whether the restrictions we have put in place correspond to the new circumstances and still create a fair balance between different rights.


For example, at the beginning of the crisis, men were not allowed to be present in the hospital to see their child’s birth and support the mother. Risks of the unknown disease were too high at that time. After the PCR test and vaccines became available for all, the situation changed and reviewing the restrictions was inevitable.


Or another example. We did not have sufficient ventilation systems in schools at first. However, after the necessary investments into such systems, the situation changed and it should have been reflected in the assessment of the circumstances as well.


We should always adapt our actions according to new scientific evidence. If we have only one testing method available, namely inserting a swab deep into the nose, then we should use it. However, when there is also a reliable saliva test available, we should allow small children to spit in a cup to avoid traumatising them with the swab test.


As constitutional lawyers we also demand flexibility.


We got a letter from a teacher who suffered from severe side effects after administering the first dose of Astra Zeneca. We tried to help her and asked “would administering another vaccine, e.g. Pfizer, lead to an acceptable outcome”. It took a while after the Estonian Expert Committee decided to allow such a combination in specific circumstances and even more time to spread the information among medical personnel. After some months, she got her second dose of the vaccine. 


Ladies and gentlemen, as you know the best, children are different and have different needs.


Online learning may be acceptable for university students and secondary school pupils, but it is not a suitable method for kindergarten or elementary school children or intellectually challenged pupils. Therefore, when restricting access to learning in school buildings, we need to make reasonable exceptions for those who are unable to make use of e-learning. The same applies to situations where the state delivers vaccines to its residents: when there are not enough vaccines available for all, we have to make distinctions between those who need them first and those who can wait.


Vulnerable groups, including children, were most affected by the pandemic and the restrictions. Current research and our experience show that the COVID-19 pandemic with its associated problems (e.g. restrictions, social isolation, loneliness, lack of physical exercise, parenting and family stress) has negatively impacted the well-being and mental health of children and adolescents all around the world. Children and adolescents show increased rates of emotional problems (e.g. anxiety and depression).


It is argued that most of the unwanted implications on children`s health and well-being are mostly caused by emergency measures and not necessarily by the pandemic itself.


It would have been possible to avoid or alleviate these unwanted negative implications if a proper child rights impact assessment would have been carried out prior to imposing restrictions on children`s rights. Unfortunately, this was not the case.


According to the Convention on the Rights of the Child a Child Rights Impact Assessment should be applied to all policy, legislation and emergency measures to determine whether they will have any negative impact on children, and in particular, on any group of children who are already in situations of vulnerability or disadvantage. In all actions concerning children (e.g. closing schools, distance learning), whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.


Now we know that most children do not develop symptoms when infected with the SARS-CoV-2 virus or if they do they develop rather a mild form of COVID-19. Therefore, children cannot be considered the core essence of the public health crisis due to COVID-19. Measures taken to contain SARS-CoV-2 virus transmission in the community are not inevitably necessary to protect children´s health or lives and therefore shall also not excessively affect children´s wellbeing.


Transmission of SARS-CoV-2 among children and in school settings appears to be affected by how widespread the virus is in the broader community.


Since schools are an essential part of society and children’s lives, widespread school closures should be seen as a last resort and only considered after other measures have been put in place to contain the spread of the disease. School closures as an easy solution or to do public claim and political credit is unacceptable. The long-term negative physical, mental and educational impacts of continuous and frequent school closures on children, as well as the economic impact on society more broadly, would very likely outweigh the benefits.


Compensating failures and shortcomings to control the spread of the virus among or mitigating its impact on risk groups (for instance inability to achieve high vaccination coverage) at the expense of children's well-being is unacceptable. If implementing preventive measures in school settings, the need to provide children with an optimal learning and social environment, while also reducing transmission risks, should be considered.


Every child has the right to education, and to social and mental protection, and has to be treated equally. No child should be left out of a class trip, museum or zoo visit simply because they have not been vaccinated due to the decision of his or her parents, or have not been so far diagnosed with COVID-19. No child should be given a mental burden that he or she is dangerous to someone, and could cause someone serious disease, hospitalisation or death.


I share the concerns of Mr George Nikolaidis, Greek Psychiatrist, and former Chair of CoE’s Lanzarote Committee, that he expressed at the Annual Meeting of The European Network of Ombudspersons for Children in 2021 in Athens about the consequences of the messages that were given to millions of children during the last few years. „The key message was that ‘the other person is a potential lethal threat and you yourself are also a potential lethal threat to your beloved ones.’ It’s totally reasonable to believe that having educated a whole generation of children with these two key messages, this might pay back at some point in time. Because the other person, when you’re a child is also a source of creativity, of play, of friendship, of relationship. The restrictions and messages given to children have attacked this attachment capacity of children and might have long-term consequences as they will grow up.“


As we now know of the grave negative implications of the restrictions on children`s mental health, it is important that all specialists working with children know the signs of mental health problems (especially depression and anxiety) and refers to mental health professionals when indicated. Health care professionals have a crucial role in screening for patients’ mental health needs.


Restrictions can be based on facts and scientific evidence, not on beliefs or polls. If we base our decisions solely on beliefs, we will divide people into two categories: right and wrong. That will polarise society and makes it questionable to ask for understanding or solidarity in other situations.