CYIL vol. 11 (2020)
CYIL 11 (2020) STATE RESPONSE TO COVID-19 LIMITING HUMAN RIGHTS … Requirements for the measures taken. In general, the measures derogating from human rights in both cases have to be proportional to the aims sought. It is the main requirement of any derogation from the human rights enshrined in the international documents. In the case of public health exception, the measures have to be proportionate to the protection of the health of people. In Article 15 cases, the measures taken have to be “the extent strictly required by the exigencies of the situation”. As Council of Europe toolkit notes, “Given the rapid and unpredictable development of the crisis, relatively broad legislative delegations may be needed, but should be formulated as narrowly as possible in the circumstances, in order to reduce any potential for abuse.” 59 In this case, as mentioned, the measures need to be proportionate to the aim of containing the virus and protecting the public from it. Powers of state institutions and control over decision making. In the case of public health exception, the distribution of powers and regular decision making does not change, it is just that those decisions are broader in scope once the legal acts on quarantine and exceptional situations are activated. Usually it is the executive branch of the government that adopts the restrictive measures in question. In national emergency situations, simpler decision-making procedures might be adopted, as the executive authorities should be able to act quickly and efficiently. “This may also involve, to the extent permitted by the constitution, bypassing the standard division of competences between local, regional and central authorities with reference to certain specific, limited fields, to ensure a more co-ordinated response to the crisis and on the understanding that full rights of local and regional authorities shall be re-established as soon as the situation allows it. Parliaments, however, must keep the power to control executive action.” 60 The act of declaring national emergency, on the contrary to the situation mentioned above, rests upon the Parliament, and as mentioned, the oversight is also carried out by this body. Maybe this would speak to the advantage of this solution, as the wide-ranging restrictive measures are initiated by the highest law-making body of the particular state. In the case of public health exception, the courts function as normally, they are just impeded by the quarantine requirements. For example, in Lithuania, some of the hearings have been postponed, some carried out via virtual means, and only those strictly necessary were carried out in person. On the other hand, in the case of national emergency, “Adjournments, “fast- tracking” or group treatment of certain categories of cases may be permitted, and preliminary judicial authorisation in some instances may be replaced with ex post judicial review.” 61 Thus, one could say that the impact on judicial processes in case of national emergency is more far- reaching than in case of public health exception. Duration. Even though sometimes the derogations from human rights are labelled as temporary (Article 15) and permanent (derogations foreseen in other articles enumerating human rights), it should be stated that the legal ground of the measures should be in place in a particular state in both cases, and in both cases the far-reaching measures need to be strictly limited in time – they should last only until the moment that they are needed, in this case, until the epidemic situation in the state necessitates it. As the Council of Europe Toolkit explains, “The main purpose of the state of emergency regime (or alike) is to contain the development
59 Council of Europe guidance (n 32). 60 Council of Europe guidance (n 32), p. 4. 61 Ibid.
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