By IDC Serbia (Initiative for Development and Cooperation)
Belgrade, May 4, 2020
Author: Milena Šošić
The pandemic COVID-19 triggered the massive public health crisis with the numerous deaths around the globe, and represents one of the most significant challenges since WWII with potential to create a devastating social, economic and political crisis worldwide. In order to provide timely response to the prevention of pandemic, the countries have introduced various measures, aiming at the protection of public health. These measures vary from country to country depending on the influences of various factors such as health and socio-economic situation. Nevertheless, international human rights law obliges the states to govern these measures following human dignity and international human rights standards. This paper aims at analysing and providing a brief overview of the primary measures that have been introduced in the Republic of Serbia, and it is legality from the human rights perspective.
The Republic of Serbia is one of the democratic countries that adopted the most rigorous measures in the fight against COVID – 19, which led to radical limitations to human rights. The specificity of the situation in Serbia is that the National Assembly has not proclaimed the state of emergency and the process of introducing the various measures of human rights limitation appears to be unconstitutional. Serbian authorities have never informed the Secretary-General of the UN on derogation of the rights, while the Secretary-General of Council of Europe has not been informed in due time. Serbia is the only state that has not indicated the duration of derogation before ECHR. Furthermore, the European Court of Human Right released an interim measure against Serbia due to the lack of support for the most vulnerable population in the fight against COVID-19. Serbia is the only country that officially requested from its citizens to stay abroad, and not to return to their own country, thus violating the right of everyone to enter his/her own country. Nevertheless, organised transportations for Serbian citizens have been provided free of charge, and according to the official data of the Ministry of foreign affairs, around 10.000 citizens have been returned until the middle of April. It is worth mentioning that Government has attempted to limit the freedom of media by concentrating the access of public information on COVID – 19. The Conclusion on Information about COVID – 19 has stipulated that all information regarding the public pandemic shall be made public by Serbian Prime Minister or a person authorised by the Crisis Staff. The resilient reaction of independent media and recommendation of the international organisation such as OSCE caused that this Conclusion has been revoked. However, the mainstream media has been centralised, while the objective and investigative journalism are often subjected to the degrading and unjustified accusations. An evident example of a violation of the freedom of media during the state of emergency represents an arrest and detention of journalist Ana Lalic for writing and informing the public on the conditions in the Vojvodina Clinical Centre. According to the official statistics in Serbia, the overall number of infected persons was 9557, the number of deaths 197 persons, number of hospitalised 2023 patients, number of those who recovered was 1574 persons on May 4, 2020.
I International and Constitutional framework
The Republic of Serbia has ratified various international human right treaties such as International Covenant on Civil and Political Rights (ICCPR), International Convention UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, International Convention on the Elimination of all Forms of Racial Discrimination, European Convention on Human Rights and others; thus, international human right law became an integral part of national legislation. Moreover, the Constitution of the Republic of Serbia stipulates the direct applicability of international law and ratified international treaties within article 16 para 2. International human rights law recognises the specific situation such as time of armed conflict, public emergency and other situation in which the life of the nation is threatened, and the state may declare a state of emergency. Furthermore, during the time of emergency, the state may take measures derogating certain rights following due process and applicable legal framework. Nevertheless, it should be acknowledged that certain rights are non – derogable rights even in the case of state emergency. According to the Constitution of the Republic of Serbia non – derogable rights as follows: human dignity, the prohibition of discrimination, right to life, inviolability of physical and mental integrity, the prohibition of slavery, servitude and forced labour, the prohibition of torture, right to a fair trial, legal certainty in criminal law, right to the legal personality, right to citizenship, freedom of thought, conscience and religion, conscientious objection, freedom of expressing national affiliation, the prohibition of inciting racial, ethnic and religious hatred, right to marriage, freedom to procreate, right of the child, prohibition of forced assimilation. In regards to the other rights that are guaranteed by international human rights law, any derogation in the case of the state of emergency imposes an obligation to the state to inform the competent international bodies in due time on measures which will derogate or limit certain rights, by submitting a formal written note. For instance, European Convention on Human right within article 15 stipulates that state may take measures derogating from its obligations under this Convention to the extent strictly required by the demands of the situation, provided that such measures are not inconsistent with its other obligations under international law. However, the state availing itself of this right of derogation shall keep the Secretary-General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary-General of the Council of Europe when such measures have ceased to operate.
The same obligation is proscribed by article 4 para.3 of ICCPR, while the General Comments 29 to the ICCPR underlines that measures derogating from the provisions of the Covenant must be of an exceptional and temporary nature. Before a State moves to invoke article 4, two fundamental conditions must be met: the situation must amount to a public emergency which threatens the life of the nation, and the State party must have officially proclaimed a state of emergency. The latter requirement is essential for the maintenance of the principles of legality and the rule of law at times when they are most needed.
From the point of view of national law, the Constitution of the Republic of Serbia allows the proclamation of the state of emergency when a public danger threatens the survival of the state or its citizens. The National Assembly is a competent body to proclaim the state of emergency. If it is not the case, the National Assembly shall verify Decision within 48 hours from its passing by President of the Republic together with the President of National Assembly and the Prime Minister, or as soon as possible to convene. The duration of the state of emergency shall be prescribed within the decision, with valid 90 days at the most. Nevertheless, it can be prolonged for another 90 days by the majority of votes of the total number of deputies.
II State of emergency or emergency situation? The legality of the state of emergency
In Serbia, the state of emergency has been proclaimed on March 15, 2020, by President of the Republic together with President of National Assembly and Prime Minister. This decision does not contain the duration of the state of emergency, nor the reasons why the National Assembly could not proclaim this Decision. Additionally, it has not been elaborated on the reasons for proclaiming a state of emergency instead of an emergency situation. It is worth mentioning that the National Assembly did not confirm this Decision within 48 hours of its passing. National Assembly has been completely derogated from its competencies for one month and a half, which represents a violation of the main principles of separation of powers and the rule of law in a democratic society. The National Assembly has been convened on April 28, 2020. Consequently, it can be concluded that the process of the proclamation of the state of emergency has not been in accordance with the constitutional and international democratic standards.
As it is mentioned above the state authorities never elaborated to the citizens why the introduction of the state of emergency and derogation measures was justified, necessary and legitimate under ICCPR. The legal framework indicates that current situation fulfils all factual and legal characteristics for the proclamation of the emergency situation. According to the Law on Disaster Risk Reduction and Emergency Management the pandemic of contagious disease is defined as an elementary disaster, but not as a public danger that threatened the survival of the state or its citizens. Therefore, the severity of the situation in Serbia and the appropriate response will not be questioned, but less strict and invasive measures for limitation of citizens’ rights could be introduced. An emergency situation is absolutely merit and appropriate measure, while the limitation of human rights that appears to be a corollary to the state of emergency, the processes and measures implemented during its lifetime are unconstitutional and undated.
III Measures of limitation of human rights
In order to prevent COVID-19 and to protect the health system from collapsing the state authorities introduced the various measures that represent the limitation of citizens’ freedoms and rights. It should be underlined that all of these measures have been introduced in non-transparent ways without a clear explanation of why these measures are more effective than others. The lack of predictability is evident since it has not been clarified for how long the measures will stay in place, lack of access to effective legal remedies, following the lack of a comprehensive plan for ending of a particular measure, and how the citizens will be prepared to go back to normal functioning. Furthermore, it could be claimed that all the measures have been changing rapidly, so, very often citizens are confused and do not know how to behave, particularly the marginalised and vulnerable population that does not have access to the online and other media. Consequently, the fundamental democratic principle of legal certainty has been violated, because the citizens to whom the Directives and Orders are directed are not sure of the certainty and clarity, what behaviour is required of them, as well as the lack of predictability of the actions of state authorities.
On the other hand, the margin of appreciation doctrine that has been established within the case-law of the European Court of Human rights requires fulfilment of proportionality principle, which demands a reasonable relationship between the seriousness of the interference with the enjoyment of a fundamental right on the one hand, and legitimate aim of the interference on the other hand. This description of the proportionality test reveals its intrinsic relation with “balancing” of the respective interests concerned. The Serbian authorities never conducted the proportionality test and never explained to the citizens why the limitation of particular rights is necessary in order to achieve protection of legitimate aim. Although, the state is obliged to adopt the less severe measure if the same results could be achieved with this measure. The nature of adopted measures is evidently “ad hoc” rather than well examined and supported with a detailed analysis of the risk, mitigation of the risks, appropriate measures and monitoring and the evaluation of the effectiveness of measures. The citizens are daily informed only about the statistical data, but they have not been given an analysis of the effectiveness of specific measures or explanations on whether the same result could have been achieved with different measures.
- Limitation of freedom of movement and discrimination
Articles 2 and 3 of the Decree on State Emergency Measures and the Order Restricting and Prohibiting Movement of Individuals in the Territory of the Republic of Serbia laying down the specific measures derogating from human and minority rights in the Decree, the Serbian Government authorised the Ministry of Interior to adopt a decision thereof, with the consent of the Health Ministry. Serbian Government’s power to prescribe measures derogating from human and minority rights in the event the National Assembly cannot convene (with the Serbian President co-signing the decree enacting them), cannot be delegated to the ministries by any Government or official enactment. Thus, it is unconstitutional.
The measures restricting the freedom of movement set out in the Order (most notably the measure prohibiting people over 65 and 70 from leaving their homes 24 hours a day) amount to a deprivation of liberty under international human rights standards. Although ICCPR does not stipulate the age discrimination, it could be claimed that this measure represents a discriminatory act under the General comment no.18 to ICCPR. This restriction cannot be considered as a protective measure, due to the fact that it is generally introduced to the elderly population, lacking the individual approach in specific cases and particular needs of the elderly. On the other hand, it has never been elaborated could less severe measure achieved the same results. The similar and more invasive measures have been taken towards refugees and asylum seekers, who have been accommodated in asylum/reception/transit centres by restricting the freedom of movement and guarded by the military. This measure indicates a discriminatory act, and it can be understood as a deprivation of liberty. Citizens have been gradually restricted from the freedom of movement by introducing hours in which the movement is not allowed. The restrictions have been more and more invasive and included a period of the weekend (the ban is valid every Friday from 6 pm, until the Monday 5 am, during the Easter holidays the ban was valid from April 17 2020 (5 pm) until April 21 2020 ( 5 am).
The Decree on Offense for Violation of the Order of the Minister of the Interior on Restriction and Prohibition of Movement of Persons on the Territory of the Republic of Serbia stipulates that the perpetrator may be punished for the same act in two proceedings misdemeanour and criminal proceedings. It derogates from the ne bis in idem principle, which is directly contrary to Art. 202 paragraph 4 of the Constitution, which provides that this principle cannot be derogated from in any case. Apart from this, the Government adopted Directive on the manner of participation of the accused in the main trial in a criminal proceeding during a state of emergency, which introduce the possibility of online (Skype) trial in the first instance, completely violating the main principles of the right to a fair trial. Firstly, the main principle of equality of arms, which represents an inherent feature of a fair trial is violated. Equality of arms requires a fair balance between the parties and applies to criminal proceedings that should be protected even in the case of a state of emergency. It requires that each party be given a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-à-vis his opponent. Secondly, it requires an adversarial hearing that provides the opportunity for the parties to have knowledge of and comment on all evidence adduced or observations filed to influence the court’s decision. Refusal to hear any witnesses or examine the evidence for the defence but examining the witnesses and evidence for the prosecution may raise an issue from the perspective of equality of arms. Thus, it can be concluded that the main principles of equality of arms and the right of accused have not been protected under Skype trial in the first instance. It is worth recoiling that in certain cases the presumption of innocence as a procedural guarantee has been breached in a public statement of the officials of Misdemeanour Court. Besides, the Directive has been adopted by Executive authority, which created an interference of Executive authority into the work of Judicial authority. Thus, the basic guarantees of criminal proceeding are not fulfilled, and the main principle of judicial independence has been violated.
IV Position of a vulnerable population – Roma population and homeless persons
The most vulnerable population in Serbia are Roma IDPs that live in an informal settlement without necessary living conditions such as water, electricity and organised garbage disposal. European Court of Human Rights has imposed an interim measure on the Republic of Serbia due to the danger of violation of the right to life and prohibition of inhuman and degrading treatment of Roma living in the informal settlement of Cukarica Forest in Belgrade based on submitted request.
Homeless persons who are working or living on the street represent a population with the most fragile health, and yet they are exposed to the most unsanitary conditions. Therefore, this population is particularly at risk of being exposed to COVID-19. On the other hand, homeless people are a category with multiple issues of vulnerabilities, challenged to re-integrate into society.
The state authorities did not take any measures to support and to inform the citizens from marginalised groups, although, these categories lack the necessary information on the COVID-19. Marginalised groups often lack accessibility and affordability of the online and TV media, including the primary conditions that are necessary in order to prevent COVID-19 infection.
The purpose of this brief analysis has been to examine how the state of emergency affects the enjoyment of human rights in the Republic of Serbia. In this regard, it has been shown that COVID crises and state of emergency has provoked the fall of main democratic principles in Serbia, following the radical limitation of human rights. The Executive authority completely undermined the competencies of the National Assembly and its constitutional role in the state of emergency. Furthermore, the State neglected its international obligation concerning human rights standards. The Executive authority directly has interfered in the work of Judicial authority, while the Ministry of Interior with the consent of the Health Ministry unconstitutionally adopted the measures on the restriction of certain rights. Serbian authorities never conducted the proportionality test and never explained to the citizens why the limitation of particular rights by specific measure is necessary in order to achieve protection of legitimate aim.
Further, state authorities neglected its’ obligation to examine if the same result could be achieved with a less severe measure. It is undoubtedly clear that the marginalised population has been the most vulnerable and the most neglected by the Serbian authority in providing adequate responses to COVID – 19. The lack of legal certainty and predictability, including lack of information on the duration of the state of emergency and derogation of rights, construct a confusion within citizens, particularly the marginalised and vulnerable population due to the lack of information.
Therefore, the main question in focus here that remains open is how the citizens of the Republic of Serbia will be prepared to go back to normal functioning, without a predictable, accessible, thoughtful and comprehensive plan? It remains to be seen the opinion of the Constitutional Court about unconstitutional measures that have been adopted during the state of emergency and how the access to the effective legal remedies in individual cases will be guaranteed. Further, it is an open issue if the values of the main democratic principles will be recalled and preserved.
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