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Corona-restrictions – a necessity during crisis or an infringement of rights and liberties?

The global pandemic due to the coronavirus, as well as the insistence of the governments in just about every country to deal with the new situation and protect the citizens’ health has led to taking steps such as declaring a state of emergency, limiting citizen movement, enforcing bans on group gatherings, as well as fines for breaking any of these rules.

Skopje, 6 May 2020 (MIA) – The global pandemic due to the coronavirus, as well as the insistence of the governments in just about every country to deal with the new situation and protect the citizens’ health has led to taking steps such as declaring a state of emergency, limiting citizen movement, enforcing bans on group gatherings, as well as fines for breaking any of these rules.

The organizations which primarily focus on human rights appeal for these measures not to break basic human rights and for them to only be implemented if necessary, lasting only as long as the situation demands. Of course, this poses the question of where and how to stop limiting civil rights to protect their health.

Health workers and institutions deem the restrictive measures necessary to prevent the further spread of the infection, as they are the only way to protect the population while there are no medicines and vaccines available. Movement was limited through curfews and lockdown weekends, and allowing groups of citizens such as over-67 year-olds and under 18-year-olds to be out of their homes for two hours a day in allotted time-slots.

The authorities’ explanation was that this measure restricts the possibility for young people who can be asymptomatic carriers and suffer the least consequences to meet with the elderly who are the most vulnerable and may suffer severe consequences if they get infected.

For the May Day extended weekend, the government decided to lift some of the movement restrictions despite the Infectious Disease Committee’s recommendation to enforce a three-day lockdown weekend. The three-day curfew hours were from 2 pm until 5 am the following day. Under-18 year-olds were allowed to be outside from 12-2 pm, whereas over-67 year-olds were allowed to be outside from 5-11 am.

Alongside this easing, new measures have been enforced, making it obligatory to wear personal protective facial gear while moving through closed objects, and outdoors when it’s impossible to maintain a physical distance of 2 meters.

According to epidemiologists and infectious disease experts whose opinions lead to the creation of the measures, they’re meant to reduce and even eliminate the risks of setting up chains of infection. They believe that other forms of social distancing are needed apart from the curfew, such as banning group gatherings of more than two people, and if there are more than two, enforcing a 2 meter distance between them. They also believe that wearing face masks will further prevent the spread of the coronavirus, because many studies have shown that there are asymptomatic carriers of the virus.

These measures restrict human rights and liberties. UN Secretary-General António Guterres stated that the COVID-19 pandemic is an urgent health situation, as well as an economic, social, and humanity crisis, warning that it may become a human rights crisis very quickly.

The message I want to send, he has said, is that the citizens and their rights are the most important thing, and we should center all activities around them. “The best response is the one that gives proportionate responses to urgent threats while simultaneously protecting human rights and the rule of the law.”

“Governments now more than ever have to be responsible and transparent. The civil sector and freedom of speech are key. Civil organizations and the private sector have an extremely important role. Whatever we do, we mustn’t forget, the virus is the threat, not man,” Gutteres says, adding that the emergency measures, including the state of emergency, are within legal bounds, necessary and non-discriminatory, because they have a specific focus and deadline, and that the measures are being implemented in the least intrusive way in order to protect public health.

The European Union Agency for Fundamental Rights (FRA) believes that the measures implemented by the governments in the battle against COVID-19 have far-reaching consequences on everyone’s fundamental rights, including the right to life and the right to health.

“It’s clear that strong public health measures are needed during the pandemic to protect human lives. However, lives can be protected without breaching human rights,” the FRA’s last report says.

They believe that the strategies for the public health should guarantee that all human rights limitations should last as long as necessary to protect the vulnerable categories for which COVID-19 exposure could be the most dangerous. Social isolation should not be a consequence from social and physical distancing.

Civil organizations and experts in North Macedonia share the same opinion. The Helsinki Committee of North Macedonia believes that, although the government may take steps outside of what’s allowed in normal circumstances during a state of emergency, it should not deem this an excuse for the authorities to breach human rights. Human rights and liberties should be taken into account while measures are being taken for the duration of this condition.

“In a way, a state of emergency represents a transition from a rule to an exception. The urgency concept is based on the idea of a sudden and unexpected occurrence, such as the current COVID-19 situation, whose effects lead to the taking of unusual legal and political measures. Thus, the reaction should be effective, and the measures should be appropriately targeted in order to achieve the desired results.

During the state of emergency, the state mustn’t arbitrarily prevent human rights or limit human liberties because it is responsible for their security and protection. The measures should be taken strictly in accordance to the situation’s demands,” the Committee stresses.

In accordance with local and international standards, the Committee believes that limiting rights and liberties mustn’t in any way be discriminatory based on sex, race, skin color, language, religion, national or social origin, or social status.

The European Policy Institute reports that North Macedonia has derogated from the EU Human Rights Convention related to the state of emergency declared due to the COVID-19 spread. The Institute says this seems like a fully expected next step ever since the country declared a state of emergency.

“It’s important to keep in mind that the significance, judgment and consequences from the derogation will depend not only on the thoughtfulness and way in which the initial move was executed – submitting the derogation report, but also on any future steps taken by the country from this point until the derogation ends.

The European Human Rights Court will focus on these elements once it looks over the cases it gets related to the measures taken during the COVID-19 crisis by the governments,” their report says.

The report also says that this crisis will set new challenges for monitoring related to human rights for civil organizations, but also for domestic courts which will have to estimate the necessity and proportionality of the implemented measures in the cases related to these measures.

The Institute believe that the government should be mindful about securing the nondiscrimination principle through implementing an intersectional approach, necessary for minimizing the possibility for a disproportionate negative effect towards the most marginalized groups in society, as well as for planning, implementing, monitoring, evaluating and stopping of the measures.

This is of crucial significance both for persons who would be more affected by the measures than others, and because the proportionality of the measures will be one of the criteria for judgment of the derogation for potential future cases that would reach the EHRC.

The Institute believes that monitoring and reevaluation of the measures is necessary, as well as adjusting or ending them. Constant monitoring enables not only reaching conclusions about whether the measures are giving the expected results, but also if any adjustments or stopping is necessary. The EHRC will not justify enforcing measures for which there’s no need anymore.

As well as all of this, they believe that transparency is needed in all aspects, including their implementation and tracking. Clear and transparent reporting is necessary for the circumstances related to the derogation, which includes reporting the planned goals with individual measures, as well as the state’s estimate about their proportionality, necessity and legal grounds. Tracking transparency is needed in order to have an overview of the continued need for their existence.

Zoran Drangovski, president of the Macedonian Young Lawyers Association, talks about the implications of the state of emergency have on human rights, in terms of their limitation in our country.

“The state of emergency will be marked with the fact that most countries leave the responsibility of handling the pandemic in the hands of the authorities, which constantly get more jurisdiction. The authorities’ increased jurisdiction results in less room for human rights and liberties,” he says, adding:

“The EHRC can accept some justifications to exceptions from the Convention articles, but it cannot justify measures and actions that clash with the main demands of the Convention for legality and proportionality. From here, each deviation must have a clear basis in domestic law in order to prevent arbitrariness. The limitation must be strictly necessary for the fight against the virus in such a condition.”

He ends by saying, that the most important aspect of the debate that arose among legal experts in this issue is that the derogation of some rights does not allow a single signer-country of the Convention to limit human rights arbitrarily, even during a pandemic. During a crisis, the line between necessary measures and government abuse can be blurred and shifted. For a country such as our own, where the rule of the law has been difficult to set up for a long time, it’s necessary to be careful so as to avoid redrawing the line over and over again.

Slavica Stefanovska

Translator: Dragana Knežević

 

 

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