Article originally published in Romanian on APADOR-CH, 11 July 2020 – accessible here
The law of quarantine and isolation for everyone to understand, even politicians; What does deprivation of liberty mean and what rights do you have without being arrested or convicted;
“The country is burning and grandma is combing her hair!” someone commented on the press article presenting APADOR-CH’s suggestions for improving the draft law on quarantine and isolation, [a law that] the Government had inadvertently adopted and hastily sent to Parliament for approval. What do we need so many rights for, if we get sick of Covid, and in general to save us ‘from APADOR’s similar philosophies that leave us without protection against the virus. “APADOR is obsessed with the virus, is it against Romanians?”, Asked another commentator.
This is not the first time we have encountered such reactions when we demand respect for certain rights. But until now we have been accused of fighting only for the rights of criminals, and not caring about the rest of honest people. Look, now we are being blamed and we care about the rights of the sick. Who would have thought?
People are generally tempted to see things from a personal angle, losing sight of the diversity of cases that can be problematic and lead to abuse, even when the measures taken are based on best intentions. That is why a set of clear rules / laws is needed, covering as many scenarios as possible.
We all agree that a contagious patient must be isolated in order not to spread the disease, but the way in which this isolation or quarantine is put into practice makes the difference between an abusive and a democratic regime, based on respect for the rights of all, not just some.
Romania, like other countries, was caught unprepared from a legislative point of view in this pandemic. With “bad laws, poorly tailored”, to quote the president. But the way in which the Government legislated during this period was not the best, therefore it was sanctioned by the Constitutional Court (CC). Even the international press told us, through some surprisingly superficial articles, that the CC would be to blame for the release of some patients from hospitals, and not the “bad, poorly tailored” legislation, according to the government’s possibilities. If the Government had been different, and the CC had said the same thing, would we have been just as upset at the Constitutional Court?
The state of emergency does not justify amateur legislation, on the contrary. No matter how drastically and quickly we want to impose certain measures to protect the population against diseases, we are not allowed to forget or violate the Constitution and the other international commitments we have made, as a country. Respectively guaranteeing citizens’ rights and freedoms regardless of the situation in which those citizens end up. And this is what the CC has said in each of the decisions given in recent months: that whatever action the government takes, it must be clear and not violate the Constitution.
The fact that we want firm guarantees in the law, regarding the observance of human rights in case of deprivation of liberty, does not mean that we deny the existence of the virus, nor that we stick with it and not with the Romanians. It means that we want those Romanians who will at some point become suspicious of Covid or any other contagious disease (the law discussed now is general, it does not only target Covid 19) to be sure that they will not suffer abuses from the state.
- That they will be treated as the law says, clearly, predictably,
- That they will not be taken off the street for sneezing, but will be quarantined, isolated or hospitalized on the basis of clear, scientific evidence of disease;
- That they will be isolated or hospitalized for as long as necessary, not for an indefinite period;
- That they will not hang on the hand and signature of a temporary official and will even be able to challenge the decision to hospitalize a judge;
- That if they have children, they will not belong to anyone when their parents are taken to the hospital.
Guarantees regarding the rights of the patient or suspect of a contagious disease must be treated as seriously as those offered by law to an arrested or convicted person, because quarantine and solitary confinement are also deprivations of liberty, even if the sick are apparently not behind bars.
The definition of deprivation of liberty is very clear: “means any form of detention or imprisonment or placement of a person in a public or private place of detention which he cannot leave at will, by order of any judicial, administrative or other authority.” Therefore, including forced hospitalization, quarantine and isolation fall within the definition of deprivation of liberty given by OPCAT (Optional Protocol for preventing and combating torture and cruel, inhuman or degrading treatment, ratified by Romania by Law 109/2009).
If we all agree that the forced isolation of the sick or suspects is a form of deprivation of liberty, we must also be aware that these people do not lose their rights once they become ill. That is, even when their liberty is restricted, this must be done in compliance with all legal guarantees granted in such cases.
The patient must be told who is the institution that decides to isolate / quarantine him, for what period, on what scientific evidence that measure is based, to have the right to challenge the measure to a judge, to be heard by the judge and in general all these decisions regarding the sick or suspected person to be clearly defined in law, and not left to the discretion of a minister or a committee with an unknown composition.
These are also the proposals for improving the law discussed in the Parliament, made by APADOR-CH at the debate on Wednesday from the Legal Commission of the Chamber of Deputies and subsequently sent to the Senate. They represent neither the denial of the existence of the virus, nor the existence of any world conspiracy against the Romanian people, but they are basic elements that must not be missing from a democratic law that seriously affects human rights.
It is true that the hardest thing is to put yourself in someone else’s shoes when you judge a situation. That’s why it’s usually hard for us to imagine what it would be like to be in custody, because, isn’t it, we’ll never do anything illegal… But let’s still imagine that we could get sick (of Covid or something else) as if it weren’t that hard. Would we not like to know that everything that is going to happen to us is clearly provided for in a law, from the time we are locked up in a hospital or in our own home, until we are healed and released?
In fact, all we have to do is keep it simple: wash our hands, wear a mask, stay away, and encourage politicians to make clear laws.