Analysis – Restriction of Movement and the Trials during the State of Emergency

The pandemic of virus COVID-19 is one of the biggest global pandemics in the modern times, and based on the data of the World Health Organization, until July 1, 2020, there were 10,321,689 infected individuals, and 507,435 persons were deceased.
There are almost no countries that were ready to meet such a threat for the public health of their citizens. There are numerous and different measures undertaken by the countries in order to protect their population from the spread of this highly infectious disease. Human rights, despite being categorized as fundamental rights of the citizens with the exception of the absolute rights, are not unlimited. One of the reasons for the limitation of human rights recognized by all contemporary constitutions is precisely the protection of public health. Due to the significance of human rights in the lives of both the individuals and the community, it is necessary to put a special focus on the limitation of human rights caused by the need to protect public health during the special measures against the pandemic. On one hand, there are human rights and freedoms, and on the other hand, there is a need for sustainable community, to prevent collapse of the healthcare system and to bring the damages to the lowest possible level. It is not easy to balance this interest. Since the countries have a tendency to limit human rights to greater extent than needed and use more restrictive measures towards the citizens, believing that they justifiably defend more important interests, the role of national and constitutional courts is very significant in these situations. They are protectors of citizens from the state and its unfounded and excessive intervention in the basic human rights.
This report presents the findings of the series of the activities recognized as necessary by the Lawyers’ Committee for Human Rights in the response to the crisis caused by the epidemic of virus COVID – 19.
  • Provision of free legal support to the citizens was our most significant activity throughout the state of emergency in Serbia (from March 15 to May 6, 2020), as well as after its termination. Frequent changes of the regulations, lack of information, overburdening of the competent state bodies, sudden economic crisis, restriction of the right to movement that caused social and family crisis, created the need for the citizens to receive correct information about their legal positions. During the state of emergency, we were addressed by 226 citizens, with the questions that referred directly to application of the measure of protection from epidemic in different legal fields. Along with provision of information, this was also an opportunity to identify systemic violations of human rights and practical problems, and to respond adequately in accordance with our goals and competences.
  • We followed daily all the changes of the regulations, as well as reporting of the media on the epidemiological situation. We thought that it was 8 Restriction of Movement and the Trials during the State of Emergency necessary to open criminal procedure to the public in the proceedings for violation of safety measures, and we initially addressed the Supreme Court of Cassation, and then individual courts with the request for approval to observe the trials via video link;
  • We addressed state bodies and the Government of Serbia, that is Crisis Team, as well as the Protector of Citizens of Serbia in order to observe whether some problems within their competence reoccurred and provided solutions and proposals.
  • We followed comparative practice and the events in other countries in the region, as well as the entire Europe. Since even the European Court of Human Rights, which has a comprehensive practice of decisions on restrictions of the right to freedom of movement, did not have the practice that referred directly to the situations of the epidemic, we had to apply broader observation of the problem. The fact is that there are no cases in comparative law of such massive interventions of the state in fundamental human rights due to public health. We are witnessing a completely new creation and writing of the law that should be a foundation for such situations in the future. For that reason, we paid close attention to the restriction of the right to freedom of movement. By restricting the right to freedom of movement, the state interfered in everyday life of the citizens in extremely rigorous way, which was affected many other rights of the citizens, such as the right to work, right to personal and family life, the rights of the child, including the right to a fair trial, since in many cases violation of imposed measures resulted in initiation of criminal proceedings.

Due to all above stated, this analysis has two focuses. The first one is on the attempt to respond to the question whether restriction of the right to the freedom of movement during the state of emergency was in accordance with the Constitution of Serbia and international treaties ratified by Serbia because of its impact on other rights of the citizens of Serbia. In the second part of the analysis, we have presented our observations from the hearings we observed during the state of emergency for the criminal offence Failure to Act Pursuant to Health Regulations during Epidemic. The right to a fair trial, as one of the absolute rights, which cannot be restricted even during the state of emergency must be guaranteed even during the crisis such as this one. Enabling public access to the hearings, as the integral element of the right to a fair trial must be consistently implemented even when the measures and the new method of questioning of the defendants through use of technical means are introduced. When a new legal concept is introduced during the state of emergency or the existing one is changed, the role of the civil society is to monitor these changes and report its finding to the professional community and public.

Publication “Restriction of movement and the trials during the state of emergency” was prepared by YUCOM within the project “Towards a Stronger Judiciary through Citizens’ Monitoring: phase 2”, implemented with the support of the Royal Norwegian Embassy and the Balkan Trust for Democracy (BTD). The views and findings in this report are sole responsibility of YUCOM and do not necessarily reflect the views of the Royal Norwegian Embassy and the Balkan Trust for Democracy (BTD).

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