CYIL vol. 11 (2020)
BIRUTĖ PRANEVIČIENĖ – VIOLETA VASILIAUSKIENĖ CYIL 11 (2020) the questions of legal capacity and rights of persons with limited or restricted legal capacity (3 cases); The cases relating to surrogacy and legal recognition of children born out of it (2 cases);
The rights of homosexual persons (2 cases); Legal regulation of IVF procedures (2 cases); The need to ensure the possibility to exercise a doping test (1 case); Other cases (8 cases).
In most of the cases the threat to public health stemmed from the applicants’ behaviour or certain actions, be it danger to children caused by inappropriate action of their parents, or the unauthorised action of building homes in unauthorised places, thus creating a danger to the public health, to others; the danger posed by individuals having committed crimes and thus deported to the country of their citizenship, etc. In the present case of fight against COVID-19, the threat stems not from the actions themselves of the persons, but from the disease, from a virus, from outside threat, and only consequently the actions of persons, for example, visiting public places, having close social contact etc. pose danger to the public health of the society as a whole. Thus, the original source of danger to the right to life and health of other people is an external threat, the disease. Nonetheless, the actions taken by the authorities limiting people’s private and family lives have to comply with the regular criteria established by the ECtHR: they have to be prescribed by law, necessary in democratic society to protect certain values (in this case, necessary to protect public health), and proportionate to the aims sought. The question arises whether the first criterion is infringed or not if the laws are changed when the need for quarantine arose 33 , not substantially, but still adding some additional measures that can be taken by the authorities facing such a crisis. As it was discussed above, the criteria of proportionality and necessity pose challenge to the governments in this time as it is not totally clear and obvious what needs to be done to effectively counter the threat. Some countries have opted for less social restraint, but more intrusion into privacy of persons, that is, monitoring the movement of persons via their mobile phones, establishing their contacts etc. Others have limited the movement and private gatherings to a bare minimum – it is possible to go out of the home of a person only to go to work and to shop for food. Which is more effective we will find out most likely later, when the scientists will study the data from various countries. For the present moment, the states have to seek professional advice as far as possible and make as little restrictions as possible, lift them when the danger of the virus passes. Furthermore, the present situation covers not particular persons, but the whole population of the countries concerned. 2) Further, if we take Article 11 of ECHR “The right to freedom of peaceful assembly and to freedom of association”, it is stated in the Convention that this right may be restricted if “prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.” 33 For example, in Lithuania, the Law on Contagious Diseases was changed three times during the pandemic: first amendment indicated the social benefits for workers working at the forefront of fighting the disease; the second indicated the possibility for mandatory hospitalisation of persons who do not comply with lawful requirements of the state officials; and the third amendment indicates the additional payments for health care workers working with the disease.
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