30 Mar Derogations from human rights during the state of emergency are not in accordance with the Constitution, the International Covenant on Civil and Political Rights and the European Convention on Human Rights
Belgrade, March 30, 2020, A 11 – Initiative for Economic and Social Rights, acting through its Solidarity Program, has produced an Analysis of Derogations from Human Rights during the State of Emergency Caused by the Epidemic of Infectious Disease COVID-19.
Taking into account the Constitution of the Republic of Serbia, as well as the International Covenant on Civil and Political Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms, which are an integral part of the legal order in Serbia, it can be concluded that there was no need to introduce a state of emergency in Serbia, nor the derogatory measures that followed concerning the right to liberty and security of person, the right to freedom of movement and the principle of ne bis in idem (prohibition of the second trial for the same offense). The risks posed by the epidemic of infectious disease COVID-19 could have been treated in almost identical way by the Law on the Protection of the Population from Infectious Diseases and the accompanying by-laws that could be enacted during an emergency situation.
The Decree on Measures during the State of Emergency and the Order on Restriction and Prohibition of Movement of Persons on the Territory of the Republic of Serbia did not clearly indicate from which constitutionally guaranteed human rights are derogations from, or whether there is a possibility of judicial protection in respect of the said derogations and potential violations. These two new regulations:
- fail to provide an adequate answer to the question whether and why the introduction of the state of emergency and derogation measures was justified, necessary and legitimate;[i]
- do not explicitly predict which human and minority rights guaranteed by the Constitution are derogated;[ii]
- do not define in a sufficiently precise manner which derogation measures have been introduced, their nature and content;[iii]
- fail to provide a detailed explanation why any of the measures have been introduced concerning certain categories of population, vulnerable groups, particular geographical area or certain legal institutes, which raises the question of the use of discriminatory criteria;[iv]
- do not provide the possibility for individuals to bring an effective and efficient remedy to the competent judicial authority against the derogation measures that personally affect them;[v]
- do not explicitly stipulate that the right to an effective and efficient remedy has been abolished in relation to the derogation measures affecting each individual individually.[vi]
Despite the dominant discourse that the only derogation was from the right to freedom of movement, the introduction of the state of emergency and the accompanying regulations, served for derogations from both the right to freedom of movement and the right to liberty and security of person in a way that creates a state of legal uncertainty and unpredictability. According to the case-law of the European Court of Human Rights and the Human Rights Committee, all persons forbidden to leave home for 24 hours are deprived of their liberty within the meaning of Article 27 of the Constitution, Article 5 of the European Convention on Human Rights and Article 9 of the International Covenant on Civil and Political Rights. Therefore, the term “restriction or prohibition of movement” is misleading because it refers to the right to freedom of movement, while the effects of certain derogation measures are equivalent to deprivation of liberty.
On the other hand, 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 both offense and criminal proceedings. This also 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.
Lastly, it is particularly important to note that Serbia has not even notified the depositors of international treaties it has signed on derogations from human rights during the state of emergency, which further opens up room for legal uncertainty and potentially additional human rights restrictions that citizens have not yet been informed about.
With a full understanding of the complexity of the situation caused by the infectious disease COVID-19 epidemic, we urge the Government of the Republic of Serbia to urgently proceed with amendments to the current legal framework by setting up mechanisms for the protection of human rights that were derogated from, to repeal 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 that violates the ne bis in idem principle and, without any delay, inform depositors of international human rights treaties of derogations from human rights during the state of emergency.
[i] ECtHR, Mehmet Hasan Altan v. Turkey, application no. 13237/17, par. 94.
[ii] Human Rights Committee, General Comment no. 29: State of Emergency (Article 4), 31 August 2001, CCPR / C / 21 / Rev.1 / Add.11, par. 10.
[iv] EctHR, A. and Others v. The United Kingdom, application no. 3455/05, par. 190.
[v] EctHR, Aksoy v. Turkey, application no. 21987/93, par. 76 and par. 78; Brannigan and McBride v. The United Kingdom, par. 59.