CYIL vol. 12 (2021)

CYIL 12 (2021) COVID-19 RESTRICTIONS OF FREEDOM OF MOVEMENT IN THE CR AND LITHUANIAs … is authorized to order specific limitations only for the period and for the extend unavoidably required. 4.2 Executive measures. The legislative acts are important in setting the conditions for the restrictions of human rights in pandemic situations, but what greatly influenced the situation of the population of the country are the measures of the government setting out particular restrictions on human rights in different fields. Under the jurisprudence of the ECtHR, the restriction on human rights is permissible, if it aims to achieve one of the aims set out in ECHR, is “in accordance with the law” or “prescribed by law”, 42 and thirdly, it must be “necessary in a democratic society”. Most relevant to such situation of pandemic is the third requirement, and the answer is not simple whether the restrictions discussed were “necessary in democratic society”. It is necessary for the government enacting restrictive measures to assess the proportionality of the intensity of the measure with the goal being pursued. In this regard, the ECtHR emphasizes: “It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired”. 43 Even after this proclamation the application of the requirements is not very clear-cut, and the EctHR also takes into account “the extent to which both the public authorities and the individual acted in good faith, the foreseeability of the state action and the legitimacy of the individual’s expectations.” 44 On the other hand, the issue of legality seems to be of relevance to our study, as the cases up to date were concerned with the legality of the measures and did not explore the issues of proportionality after the illegality of the measures was found. The measures of the first and second wave were somewhat similar, despite the situation being much different. The first wave measures on the right of movement were enacted and were wide-ranging, even though the levels of the actual instances of the disease were quite low. The states facing an unknown pathogen, not knowing its “modus-operandi”, methods of spreading, deadliness opted for strict measures on the right to movement. During the second wave and second quarantine the states had much more information about the virus and its features, and about the effectiveness of measures and thus were better placed to make motivated decisions. In Lithuania, the measures during the COVID-19 wave in December 2020 through March 2021 were more stringent, with the restriction of movement between different municipalities, but the paradox in this time-period was that during this period it was easier to travel abroad than to travel to another municipality. Such broad restriction of movement raises questions about its proportionality and suitability to achieve the aim to contain the pandemic, as the travel itself, if a person travels to another municipality (for example, to visit a forest, sightseeing place etc.), does not directly raise the threat of spreading coronavirus. It seems to be an additional measure to ensure that persons 42 Trykhlib, K. The Principle of Proportionality in the Jurisprudence of the European Court of Human Rights , EU and Comparative Law Issues and Challenges Series (ECLIC) – ISSUE 4, https://hrcak.srce.hr/ojs/index.php/ eclic/article/view/11899/5875, 2020; European Convention on Human Rights, Articles 8–11. 43 Case of Prince Hans-Adam II of Liechtenstein V. Germany (2001), Application no. 42527/98, par. 44. 44 Popelier, P., Van De Heyning, C. Procedural rationality: giving teeth to the proportionality analysis, Eu-ropean Constitutional Law Review , No. 9 (2), 2013, pp. 230–262, cited in Trykhlib, K. The Principle of Proportionality in the Jurisprudence of the European Court of Human Rights , EU and Comparative Law Issues and Challenges Series (ECLIC) – ISSUE 4, https://hrcak.srce.hr/ojs/index.php/eclic/article/view/11899/5875, 2020.

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