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Home / Legal Blog / Deprivation of liberty in an Era od Epidemics

Deprivation of liberty in an Era od Epidemics

Authors:
Anamarija Spasevska,
Nebojsa Milosavljevic,
Emilija Spasovska.

 1. Introduction  

Human rights must be at the center of all efforts to prevent, prepare for, and treat COVID-19 in order to best protect the public health and to support groups and individuals who are the most at risk. However, many of the measures relating to the protection and prevention of COVID-19 appear to have been proposed and implemented without fully considering the potential consequences for the enjoyment of human rights by all, regardless whether they are infected persons, exposed to risk or are part of the wider population. Full compliance to the human rights is essential in all stages of the crisis and should not be considered a luxury that can be allowed only after the threat to the public health has been minimized. [1]  

Following the current state of the world and the global pandemic of the COVID-19 disease, as well as the measures that each country is taking for prevention, it is inevitable to discuss the actions taken by any government that interferes with fundamental rights and freedoms, including the right to freedom and its restriction or deprivation of liberty in case of emergency. Before we proceed to the explanation of the legal grounds on which the right to liberty is restricted and which give legitimacy to the competent authorities to act in accordance with the legal provisions, we need to clarify what a state of emergency is, what are its components and the basic principles that must be followed. 

2. State of emergency and its elements 

A state of emergency is a situation in which there exists a threat to the national security from armed conflicts, civil disorder, financial or economic crisis, i.e. in this case specifically caused by a major natural disaster or threat of an epidemic. Under exceptional circumstances with regard to the public health emergencies, States may exercise their powers of urgency. If the situation poses a threat to the existence of the nation, then the state has the authority to declare a state of emergency in accordance with the Constitution, domestic law and international law and standards. [2] 

The Constitution of the Republic of North Macedonia, specifically in Article 125 referring to state of emergencies caused by major natural disasters or epidemics, provides the manner in which a state of emergency is proclaimed, i.e. how it is established. In the highest legal act of the state, it is determined that the Assembly is the body that determines it upon proposal of the President of the Republic, the Government or at least 30 MPs, and it is proclaimed on part of, or on the entire territory of the Republic. The decision determining the existence of a state of emergency is voted by a two-thirds majority of the total number of MPs and its validity lasts for 30 days. If the Assembly cannot meet, the decision on the state of emergency is made by the President of the country and it will be submitted to the Assembly for confirmation as soon as it is able to meet. In our case, it was declared by the President of the country, who referred to his constitutional competencies arising from this article provided in the Constitution, with which legally began the implementation of the measures, restrictions and prohibitions in the daily functioning of citizens. 

The declaration of a state of emergency may suspend certain government functions, may warn citizens to change their usual behavior, or may authorize government agencies to carry out emergency preparedness plans, as well as to restrict or abolish civil liberties and human rights, which allows stricter control and severe bans on citizens. Article 126 of the Constitution of the Republic of North Macedonia gives the Government the opportunity to issue decrees with legal force in accordance with the Constitution and the laws in case of emergency. The same authorization lasts until the end of the state of emergency, which is decided by the Assembly. 

Characteristic is the fact that the procedure for declaring a state of emergency and its competencies is provided only in the Constitution in Articles 125 and 126, i.e. there is no special law for declaring a state of emergency, which as a legal shortcoming can lead to several precedents for the rule of law, the competencies of the authorities and the management of the situation, as well as the increased violation of the human rights and its freedoms. 

The key components that must be considered in a state of emergency are its legal framework – the constitutional and legislative framework for declaring a state of emergency, as well as the operational framework that includes the organizational structure and strategic plans for dealing with the state of emergency. Significant international agreements such as the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR) define several principles which the states should respect and be guided by when implementing the state of emergency such asthe temporality of the state of emergency, the exceptional threat to the community from the crisis, its formal publication, the notification of the international bodies and authorities for the taken measuresthe proportionality and legality of measures taken, as well as the inviolability of fundamental rights such as the right to life and the prohibition of slavery and torture which must not be derogated even in times of danger. State of emergencies must be limited and appropriate to the urgency of the situation, in terms of duration, geographical coverage, and the material scope of all derogatory measures taken in the event of an emergency. [3] 

3. The right to liberty and security and the possibility of limiting it 

The rights and freedoms as a pillar of a modern democratic society are guaranteed in several international documents that guarantee their inviolability, and respecting them is a key part of the law of any modern state based on the fact that they are legally binding. 

Freedom and security are enshrined in a number of documents, including the Universal Declaration of Human Rights, in which Article 3 guarantees the right to life, liberty and security of person, Article 9 which stipulates that no one shall be subjected to arbitrary arrest, detention or exile, and Article 13 which guarantees the right to freedom of movement. The ICCPR also guarantees the freedom and security under Article 9, which prohibits arbitrary arrest and detention, requires any deprivation of liberty to be in accordance with the law, and obliges parties to allow persons deprived of their liberty to challenge their imprisonment through the courts. Also, the ECHR, as well as other international documents, guarantees freedom and security in Article 5, to which we will pay more attention to the further part of this research.  

In a state of emergency, there are legal frameworks where states are allowed to derogate certain freedoms and rights under certain circumstances and conditions. Article 4 of the ICCPR stipulates that the signatory States may, in cases where there is a danger to the State from the state of emergency declared by official means, to take measures to an extent strictly determined by the requirements of the situation which will abolish the obligations provided in the same article. At the same time, paragraph 2 of the mentioned article limits the scope of derogation of rights, guaranteeing them as rights from which there must be no deviation – the right to life, the prohibition of torture, and slavery among others.  

The Siracusa Principles on the Limitation and Derogation of Provisions in the ICCPR (“Siracusa Principles”) provide additional guidance on when and how restrictions on human rights may apply. [4] , and in the context of restrictions on public health rights, they reiterate that these “measures must be specifically aimed at preventing disease or injury or providing care for the sick and injured.” [5] 

Article 15 of the ECHR explains the grounds for derogation and abolition in the event of a state of emergency, which stipulates that in the event of war or general danger that threatens the life of the nation, any High Party (signatory State) may take measures that deviate from the obligations provided in this Convention, in strict accordance with the requirements of the situation and provided that such measures are not contrary to other obligations arising from international law. The signatory states are obliged to fully inform the Secretary General of the Council of Europe of the measures taken and the reasons which led to it. They are also obliged to notify the Secretary General of the Council of Europe of the date on which the validity of such measures ceases and the full application of the provisions of the Convention shall resume. 

Deprivation of liberty defined in the “Body of Principles for the Protection of All Persons from Any Form of Detention or Imprisonment” adopted by the General Assembly Resolution 43/173 of 9 December 1988 implies the act of imprisonment of a person suspected of committing an offense or exercise of authority, while in our legislation it is defined as a term reserved for the exceptions of detention with a court order that are necessary for the arrest of persons if the conditions are met according to the Law on Criminal Procedure or there is an announcement in accordance with the law. [6] 

On the other hand, quarantines (the separation of people who have been exposed to or show symptoms of an infectious disease) are most commonly used in response to controlling the spread of infectious diseases, included in the state’s responses to COVID-19. Quarantines affect the freedom of movement of individuals and, depending on the manner of their implementation, may mean arbitrary deprivation of liberty, and in accordance with international human rights law, quarantines are allowed only in special circumstances. According to the ICCPR, freedom of movement may be restricted, if the restrictions are provided by law, are necessary to protect certain legitimate purposes (including public health), and are in line with other rights recognized by this international treaty. [7]  

Article 5 of the ECHR in paragraph 1 (d) justifies the deprivation of liberty at the time of epidemics, i.e. it is based on law if it is a matter of deprivation of liberty to prevent the spread of an infectious disease. The basic criteria that must be considered when assessing the legality of depriving a person of liberty due to the prevention of the spread of infectious disease are whether the spread of the contagious disease is dangerous to public health or safety and whether arresting the person is the last necessary means to prevent the spread of the contagious disease because all the other milder measures taken into account were not sufficient to protect the public interest. In Enhorn v. Sweden, the ECHR states that when these criteria are no longer met, the grounds for deprivation of liberty cease to exist. 

Deviation from the obligation to protect human rights must not exceed what is strictly required by the needs in the situation. This means that the relevant measures must be in proportion to their territorial application, material content and duration.  

The Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (SPT) has issued detailed advice on a number of activities that governments and independent oversight bodies need to take to protect persons deprived of their liberty during the COVID-19 pandemic. 

The measures encourage governments to consider reducing the prison population by implementing schemes for early or temporary release of low-risk perpetrators, review all cases of detention, using lighter security measures as bail, except for the most serious offenses, and review and reduce the use of detention for immigrants and closed refugee camps. The subcommittee also emphasizes that all detainees, persons in quarantine and closed medical facilities, their families and all staff, should receive reliable, accurate and up-to-date information on all measures taken. [8] 

In Guzzardi v. Italy, the ECHR ruled that the distinction between deprivation of liberty and restriction of liberty was “in degree and intensity, not in nature or matter.” Hence, restriction of liberty may constitute deprivation of liberty if a specific threshold for the violation of the right is exceeded. Assessing whether this threshold has been crossed, the ECtHR further stated in Engel v. The Netherlands that a whole range of criteria must be taken into account, such as the type, duration, effects and manner of implementation of the measure. 

Any deprivation of liberty must fall into the categories listed in Article 5.1 (a) – (f) so that it can be compatible with the ECHR. The basis for granting the greatest powers to States to take enhanced detention measures is set out in Article 5.1 (e) which allows “the legal detention of persons for the prevention of the spread of infectious diseases, persons with disabilities, alcoholics or drug addicts or beggars.” As this is the first pandemic the ECHR has had to deal with, court practice is rare. The clearest test we have of legal detention under Article 5.1 (e) is in Einhorn v. Sweden where the ECtHR considered that the criteria for determining the legality of detention under Article 5 (1) (e) in relation to infectious diseases is, above all, ” whether the spread of a contagious disease is dangerous to public health or safety, ”and second, whether the apprehension of an infected person is the last resort to prevent the spread of the disease because less strict measures are considered insufficient to protect the public interest. 

However, even Enhorn vs. Sweden offers minimal assistance in terms of how restrictive movement measures are appropriate for dealing with the pandemic, given that it is known that Enhorn is HIV positive. It is unclear whether Article 5.1 (e) allows the deprivation of liberty of healthy people to prevent the spread of infectious diseases. If Article 5.1 (e) allows the detention of healthy people to prevent the spread of an infectious disease, this will be the only type of deprivation of liberty authorized by Article 5, which is not based on a specific category of persons or their previous conduct. Even under Article 5.1 (e), there are specific classifications of persons – mentally ill persons, alcoholics, drug addicts or beggars – beyond that “to prevent the spread of infectious diseases”. This is not just a technical consideration; it is a fundamental dispute over the scope of state power permitted under Article 5.1 (e): restrictive, narrow understanding of Article 5.1 (e) limited to infected persons or persons who may be infected (with the necessary protective measures related to the burden of proof required to fall under this category); or the infinitely widespread understanding of Article 5.1 (e) which authorizes the deprivation of liberty of all persons under the jurisdiction of a State and without any burden of proof. [9] 

4. Comparative experiences 

Countries around the world have imposed severe restrictions on their population in an effort to stop the spread of the coronavirus. Most countries have effectively closed their borders to everyone except their own citizens, introduced strict internal travel controls and ordered people to stay in their homes. They also imposed severe penalties on all those who fail to comply with the measures imposed by the authorities regarding the restriction of movement.  

The country where the outbreak of the virus began – China, was the first nation to introduce aggressive measures to control the spread of COVID-19, imposed lockdown of cities and quarantined tens of millions of people. 

Italy, severely affected by the epidemic, imposed a curfew on March 12. Restrictions have been imposed across the country and residents are allowed to leave their homes only if they have to buy food or medicine. Those who do not follow these rules can face fines between 400 and 3,000 euros or three months in prison. [10] More than 40,000 people have already been fined, while an Italian man is facing up to 12 years in prison after he hid his coronavirus symptoms in order to get a rhinoplasty, infecting multiple doctors and nurses. [11] 

After ordering the lockdown of Spain, the Spanish authorities have also imposed penalties for violating isolation rules. The fines start from €100 euros for lighter penalties, such as removing a police seal,  while serious offenses are punishable with fines ranging from €600 to €30,000. Also, those who disobey the authority measures with regard to the restriction of movement in the national state of emergency can face prison sentences of three months to one year. [12] 

Norwegian authorities have confirmed that a fine of 20,000 Norwegian kroner ($2,000) or a 15-day jail sentence will be handed out to anyone caught breaking home quarantine or home isolation rules. Anyone caught staying in a country cabin outside of their home municipality risks a fine of 15,000 Norwegian kroner ($1,500) or 10 days in prison, while anyone organising a cultural or sports event will also face a hefty fine. [13] 

Our country has also introduced measures to restrict the movement of citizens. Shortly after the declaration of the state of emergency, a curfew was introduced as a protective mechanism for the prevention and protection from the COVID-19 disease, which significantly restricted the movement of citizens throughout the country. Also, whosoever that does not act according to the measures of the government shall be fined or sentenced to imprisonment of up to one year, and if the crime is committed by a legal entity, it can be fined with up to 30 million denars. [14] 

We have a similar situation in our neighboring countries, where curfews have also been introduced and penalties for violating them have been prescribed. 

In other parts of the world, governments are trying to respond to the sudden and rapid spread of the virus by taking unprecedented measures that are completely contradictory to legal protection of human rights. Although most countries focus on overcoming the crisis by restricting basic human rights and freedom of movement as little as possible, certain governments around the world are using this crisis to expand their power, strengthen their totalitarian regimes, and thus put in question human rights. 

The Philippine president issued an order to the police and the army to shoot anyone who defied the coronavirus lockdown and the established curfew. The president also addressed his citizens, threatening them with “Don’t challenge the government, because you will lose.” In addition, there have been reports in the country of police detaining people in dog cages for breaching the curfew. [15] 

 

A lot of countries have introduced tracking and surveillance mechanisms to try and stop the spread of COVID-19, but the Russian plan goes beyond the limits of freedom of movement and privacy. The combined surveillance system pulls in data from location tracking applications, CCTV cameras, QR codes, cell phone data and credit card records. The opposition party has already labeled the measures as “cyber-gulag” (in the modern sense, a way to control and punish the population using IT devices), warning that restrictions will remain in place even after the end of the pandemic. [16] 

Cambodia has passed a draft law governing the state of emergency, which contains provisions that will allow the government to censor all media and social media, monitor all telephone communications, and there’s even a catch-all provision to bring in any new law they can think of. [17]  

The Prime Minister of Hungary did not only introduced legislation allowing him to rule by decree, but also “forgot” to put a sunset clause, which means only he can decide when his new powers will cease to exist. [18] 

India has been strongly criticized for the way it treated its tens of millions of migrant workers during the coronavirus lockdown, but more worrying is the explosion of new applications designed to collect biometric data on citizens without any legal framework or oversight in place. One application forces people in home quarantine to send selfies every 30 minutes to ensure hey are complying with self-isolation rules. [19] 

In response to such serious violations of human rights and freedom of movement, UN human rights experts called on states to be moderate and not to exceed their powers when introducing security measures in response to the outbreak of coronavirus and reminded that the powers for emergencies must be proportionate, necessary and non-discriminatory and should not be used for their own purposes. Measures should not be used as a basis for targeting certain groups, minorities or individuals and should not serve as a cover for repressive action under the guise of health protection. 

5. Conclusion 

Due to all the abovementioned, it is necessary even in a state of emergency, the rule of law to prevail and all taken actions to be in accordance with the law. The law in this context includes not only acts of the assembly, but also decrees of the executive authorities, provided that they have a constitutional basis, given the fact that most constitutions provide for a special legal regime that increases the powers of the executive authorities in case of war or state of emergency. Any new legislation of this kind should be in accordance with the constitution and international standards and, where appropriate, be subject to review by the Constitutional Court. 

The main social, political and legal challenge that the countries around the world are facing is their ability to respond effectively to this crisis and at the same time provide measures that do not undermine the long-term interest in preserving the fundamental values ​​of democracy. From the very beginning of the current crisis, there is no denying that the governments of the countries are facing serious challenges in trying to protect their population from the threat of COVID-19. It is also clear that the normal functioning of society cannot be maintained, especially considering the main safeguard needed to fight the virus – the restriction. Thus, it is generally accepted that the measures taken will inevitably violate the rights and freedoms that are an integral and needed part of a democratic society governed by the rule of law. However, it is necessary to ensure that all measures taken are proportionate to the threat of the spread of the virus and will be time-limited. 

The measures outlined in this research represent the first wave of government efforts to address the public health crisis caused by the COVID-19 pandemic. As the situation develops rapidly, further action is likely to address the ongoing and new challenges. It is important to keep in mind that at no time in history has too much justice and respect for individual rights and freedoms been detrimental to national and international peace, security and prosperity. 

In times of crisis, the concerted effort of all actors in society, including judges, prosecutors and lawyers, to maintain the highest possible standards of human rights protection is more important than ever, in order to contribute to the restoration of constitutional order in which human rights and fundamental freedoms can again be fully enjoyed by all.

[1] https://www.amnestyusa.org/wp-content/uploads/2020/03/COVID-19-Background-HR-paper-FINAL.pdf
[2] Article 4, ICCPR; Article 27, American Convention on Human Rights; Article 15, ECHR. See also OHCHR, General Comment no. 29 State of Emergency (Article 4), UN Doc. CCPR / C / 21 / Rev.1 / Add.11 (2001).
[3] OHCHR, General Comment no. 29 State of Emergency (Article 4), UN Doc. CCPR / C / 21 / Rev.1 / Add.11 (2001), paragraph 4.
[4] Siracusa Principles on the Limitation and Derogation of Provisions in the ICCPR, UN Doc. E / CN.4 / 1984/4 (1984) (hereinafter: Siracusa Principles).
[5] Ibid., Paragraph 25.
[6] Law on Police, consolidated text, available at: http://www.mvr.gov.mk/Upload/Documents/Zakon%20za%20policija,%20precisten%20tekst%2015.04.2015%20.pdf
[7] Article 12 (3), ICCPR
[8] https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25756&LangID=E
[9] https://strasbourgobservers.com/2020/04/01/states-should-declare-a-state-of-emergency-using-article-15-echr-to-confront-the-coronavirus-pandemic/
[10] https://www.thelocal.it/20200324/italy-announces-fines-of-up-to-3000-for-breaking-quarantine-rules
[11] https://www.newsweek.com/italian-man-coronavirus-who-hid-symptoms-get-rhinoplasty-facing-12-years-prison-1492823
[12] https://www.theolivepress.es/spain-news/2020/03/16/fines-of-up-to-e600000-for-disobeying-coronavirus-lockdown-in-spain/
[13] https://www.forbes.com/sites/davidnikel/2020/03/17/norway-hands-out-2000-fines-or-jail-for-ignoring-coronavirus-quarantine/#5c3390744f42
[14] Art. 206 of the Criminal Code, https://netpress.com.mk/ogromni-kazni-za-nepochituva-e-na-policiski-chas-gra-anin-mozhe-v-zatvor-za-firma-kazna-do-30 -milioni-denari /
[15] https://www.cbsnews.com/news/rodrigo-duterte-philippines-president-coronavirus-lockdown-shoot-people-dead/
[16] https://edition.cnn.com/2020/04/14/world/moscow-cyber-tracking-qr-code-intl/index.html
[17] https://www.vice.com/en_us/article/dygbxk/these-30-regimes-are-using-coronavirus-to-repress-their-citizens?utm_campaign=sharebutton&fbclid=IwAR27_FfSgerpJBwoDwEnKLw_l–9WELdp9eV8te_2y62N8NDgJGthIHiX4w
[18] https://www.theguardian.com/world/2020/mar/30/hungary-jail-for-coronavirus-misinformation-viktor-orban
[19] https://www.npr.org/sections/goatsandsoda/2020/04/12/828843214/an-indian-state-tells-quarantined-folks-a-selfie-an-hour-will-keep-the-police-aw  

Used abbreviations: 

ECHR – European Convention on Human Rights 
ICCPR – International Covenant on Civil and Political Rights 
ECtHR – European Court of Human Rights 
SPT – The Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 

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