The Courts and effective judicial protection during the Covid-19 pandemic. A comparative analysis

What role have the courts played during the pandemic? How different has this role been across the globe? Can lessons for a better response to health crises and emergencies be learned from litigation? Starting from these questions, the authors present the main findings of an international project on Covid-19 litigation aimed at collecting and comparing caselaw, within an openly accessible database, from more than 80 countries on all continents, concerning the impact of public health measures upon fundamental rights and freedoms of citizens during the pandemic. This comparative analysis, based on a set of around 2000 decisions from 2020-2022, shows that, although courts have faced very similar challenges, distinct legal traditions have led judges to use different balancing techniques with different outcomes in terms of the control of public powers and available remedies. Actions and omissions have been differently addressed and the evolution of science has significantly impacted judicial review. Areas of litigation have changed overtime, mirroring the evolution of the pandemic and the modifications of governmental strategies. More recently, liability claims are emerging and will probably grow in the near future, offering courts from all over the world a further opportunity to learn from each other. Based on the experience of governments, revisited through the lenses of Covid-19 litigation, scholars, scientists, and policy makers have the opportunity to build on this heritage with the objective of building a better response to future health emergencies that fully respect fundamental rights and the rule of law © 2023, BioLaw Journal.All Rights Reserved.

Uncertainty, Administrative Decision-Making and Judicial Review: The Courts' Perspectives

The role of courts has been rather significant in the COVID-19 pandemic, weakening the theory that the judiciary is not equipped to contribute to governing crisis management. Although differences exist across countries, depending on institutional varieties and political contexts, the analysis shows that, even in times of emergency, courts can provide the necessary balance to the power shift towards the executives. Both action and inaction affecting fundamental rights have been scrutinised, taking into account fundamental freedoms and the rule of law. Deference to political decision-making has varied across jurisdictions and across the multiple phases of the health crisis. Differences in the balancing have emerged compared to during ordinary times. Uncertainty has played a major role, calling for new strategies in regulatory, administrative and judicial decision-making and new balances between precaution and evidence-based approaches. The role of scientific evidence has been at the core of judicial review to ensure transparency and procedural accountability. Proportionality and reasonableness with multiple conceptual variants across countries have been used to scrutinise the legality of measures. Courts are likely to continue playing a significant but different role in the years to come, when liability issues and recovery measures will likely become the core of litigation. © The Author(s), 2021. Published by Cambridge University Press.