June 1, 2020
I believe that no one has the moral right to say that there is no need to fight epidemics, pandemics and that every saved life is irrelevant to the state, although we must question whether the state has taken reasonable and adequate measures to prevent spread the disease while having all the legal instruments in its hands and while managing financial resources with the right intentions.
Before discussing whether the taken measures are adequate we need to look at the official statistics – average worldwide morbidity is 57 cases per 100 thousand population (fatality rate – 6,77 per cent); Spain – 488 (fatality rate – 11,9 per cent from diagnosed persons); USA – 444; United Kingdom – 356; Belarus – 294; France – 211; Germany – 210; Russia – 180; Turkey – 176; Lithuania – 54 (fatality rate – 3,54 per cent); Poland – 47; Kazakhstan – 30 (fatality rate – 0,59 per cent); Georgia – 18.
There are only few situations when the state can legally restrict the individual rights and freedoms, i.e. by introducing martial law, by introducing a state of emergency and, as has now happened in Lithuania, the introducing a quarantine. Martial law – is a special legal situation established by the Constitution of the Republic of Lithuania and the Law on Military Situation of the Republic of Lithuania, which is introduced to protect the Homeland in case of armed attack or threat, when the sovereignty of the State of Lithuania or the integrity of its territory is threatened, or, if necessary, to fulfil the international obligations of the State of Lithuania in order to ensure the defence of the State and other vital functions of the State during the war. A state of emergency is a special legal regime in a state or a part thereof, which allows to apply temporary restrictions which are established in the Constitution of the Republic of Lithuania and the Law on State of Emergency on the exercise of the rights and freedoms of natural persons and temporary restrictions on the activities of legal persons. Quarantine, on the other hand, is a special regime for the prevention and control of contagious diseases introduced to individual establishments or infected areas when the prevalence of contagious pathogens of unknown origin or cases, outbreaks or epidemics of particularly serious contagious diseases are recorded. The purpose of quarantine is to establish special conditions for work, life, rest, travel, economic and other activities of persons and thereby limit the spread of contagious diseases (the Law on the Prevention and Control of Contagious Diseases of the Republic of Lithuania). If the first two situations clearly give the State the legislative power to restrict human rights and freedoms, then the legal and factual purpose of Quarantine is quite different, during which special conditions for work, life, rest, travel, economic and other activities of persons must be established. Nevertheless, after the introduction of the Quarantine Regime in Lithuania, it can be seen that some actions, decisions and prohibitions did not create special conditions, but simply limited, restricted, complicated parts of the natural human rights enshrined in the Constitution of the Republic of Lithuania (inviolability of the private life of a human; inviolability of the property; inviolability of the home of a human being; prohibition of limitation of judicial protection; prohibition of free movement, free departure from Lithuania; prohibiting or obstructing citizens to choose unarmed to peaceful meetings; opportunities for free choice of work and business, the right to decent, safe and healthy working conditions, fair pay for work and social security; the right to rest and leisure; the right to strike; the right to receive medical aid and services, and etc).
What is worrying?
Firstly, the Quarantine is not equal to a state of emergency or martial law, but the restrictions of Quarantine are greater than those of a state of emergency or war.
Secondly, all decisions on restrictions on human rights and freedoms have been transferred from the level of the Legislators to the level of the Government and even further below to the level of the Minister, although these decisions should be adopted and allowed only by the Parliament of the Republic of Lithuania.
Thirdly, decisions on restrictions are taken as a matter of urgency, without a mechanism for urgently defending violated rights, without an impact assessment, without a debate with the public, without a strategy disclosed to the public in advance, chaotically.
Fourthly, people’s dependence on power is increasing. In the absence of a revealed strategic plan for the application of restrictions, it is impossible to plan, predict, prepare for the actions of the Government, especially prohibitions, constraints, restrictions.
Fifthly, disproportionate prohibitions were applied or attempted to be enacted – it was aimed to legalize the control of data traffic on mobile devices as detailed in the Law on Regulation of Communications, attempted to restrict the constitutional right of medical staff to freely choose workplaces, involuntary treatment was introduced, the movement of the non-sick (healthy people) was limited by the property they own.
Sixthly, there is no prediction of legal certainty, clarity and action in today’s politics. It must be borne in mind that any restriction can be both a medicine and a poison with irreversible consequences.
What needs to change?
It is necessary to start with clear strategic plans on how to deal with the epidemic, when, what, how and under what conditions restrictive measures will be applied and how and when they will be lifted. Restrictions must be adequate, proportionate, timely and professionally justified.
The Lithuanian Bar Association has taken active steps to provide criticism and our own expert assessment of possible human rights violations in the legislation.
Representatives of the State did not assess the threat of the virus before its arrival, but the people have underestimated the increase in States‘ power at the expense of human rights. Government must serve the people, not the other way around. The minimum thing we need to do immediately is to return our free thoughts to the thoughts of the former free man and to defend the fundamental principles of human rights.
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