CYIL vol. 11 (2020)

BIRUTĖ PRANEVIČIENĖ – VIOLETA VASILIAUSKIENĖ CYIL 11 (2020) Specific restrictions that may be applied to specific rights are also regulated by the states’ constitutions. The Constitution of the Republic of Lithuania, for example, Article 32, establishes the right of a person to move and choose their place of residence in Lithuania freely and may leave Lithuania freely, and it states that “[t]hese rights may not be restricted otherwise than by law when this is necessary for the protection of the security of the State or the health of people, or for the administration of justice.” 18 International Commission of Jurists has also elaborated on the limitations of human rights in the context of COVID-19. It stated that both for ordinary scope for limitations of rights and for the derogations in times of emergency, “international human rights law requires that such protection measures satisfy requirements of legality, non-discrimination, necessity, and proportionality (and time-limitedness, particularly for derogations).” 19 It was further noted that the criterion of proportionality is difficult to distinguish as it is not certain how the disease is transmitted, how fast does it spread and what measures are most effective to combat the disease and to avoid the most severe consequences. 20 In this situation it is proposed to review periodically the restricting measures, “including by assessing their impact on an ongoing basis; as circumstances and knowledge about the new coronavirus develop, any measures that become unnecessary or disproportionate must be adapted or removed.” 21 The process of testing proportionality in a particular situation consists of two stages. The question at the first stage of analysis is whether a particular limitation infringes upon one of the rights protected by the constitution of a particular state or international human rights instrument. The examination of the situation in the second stage involves four components: 1) whether the restriction is designed for a proper purpose; 2) “the measures undertaken to effectuate such a limitation are rationally connected to the fulfilment of that purpose;” 22 3) the restriction is necessary for the fulfilment of the purpose and there are no alternative measures with less limiting effect, and 4) “there needs to be a proper relation (“proportionality strictu sensu” or “balancing”) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right” 23 or internationally recognized right. 3. Limitations on human rights in the context of international practice All the regimes of human rights protection foresee the need to limit the rights in certain circumstances. Any restrictive measures taken in the context as the one facing us at present, according to the UN bodies and practice “should be: in accordance with the law; pursue a legitimate aim; proportionate; and not arbitrary or discriminatory. Furthermore, human rights require that countries should demonstrate that any such restrictive measures are necessary to curb the spread of infectious diseases in order to ultimately promote the health, rights and freedoms of individuals. If the original rationale for imposing a restriction 18 Lietuvos Respublikos konstitucija [The Constitution of the Republic of Lithuania] Lietuvos Aidas, 1992, Nr. 220 (1992-11-10). 19 International Commission of Jurists ‘The Courts and COVID-19’ (5 May 2020) accessed 31 May 2020.

20 Ibid. 21 Ibid. 22 Barak (n 14). 23 Ibid.

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