General Framework:
Yesterday (March 15, 2020), a state of emergency was declared in our republic.
However, this state of emergency was declared in an “extraordinary” manner.
Article 200 of the Constitution states that the decision to declare a state of emergency is made by the National Assembly of the Republic of Serbia. This is the regular process. However, the Constitution provides for an exceptional (emergency) possibility: if the National Assembly cannot convene, the decision to declare a state of emergency is made jointly by the President of the Republic, the Prime Minister, and the Speaker of the National Assembly.
The public has not been informed why the National Assembly could not meet to make this decision. Indirectly, citizens have learned not only that the assembly did not convene but also that it will not convene for some time, as it was announced that the government would issue a decree specifying measures that would limit human and minority rights. Like the declaration of a state of emergency, the authority to prescribe such measures rests with the assembly. Only in exceptional cases, when the assembly cannot convene, can the government issue such decrees with the co-signature of the President.
The announcement that the government will issue a decree signals that the assembly will not convene to decide on this matter, although the Constitution stipulates that the assembly should meet immediately after the declaration of a state of emergency (or no later than 48 hours after such a declaration).
A state of emergency is declared when public danger threatens the survival of the state or its citizens. By its nature, declaring a state of emergency implies the implementation of certain urgent and intense measures that affect the daily functioning of the state, individual institutions, and us as citizens and individuals. It also implies the enactment of specific emergency measures.
However, aside from the announcement that the military will guard borders and certain facilities (such as hospitals treating COVID-19 patients), the authorities have not yet prescribed any other extraordinary measures. In fact, all other measures announced last night are prescribed by laws that allow them to be enacted without the need for declaring a state of emergency.
Two key laws should be noted here: the Law on Protection from Infectious Diseases and the Law on Risk Reduction and Emergency Management (some measures are also based on other laws: the Law on Trade – freezing prices of certain products; the Law on Foreign Trade – banning the export of certain products; the Law on Border Control – closing certain border crossings, etc.). Most of the decisions and orders announced yesterday are based on the Law on Protection from Infectious Diseases (such as the ban on gatherings of more than 50 people indoors, etc.), which will be discussed further below.
What are the current consequences of the state of emergency for citizens?
Given that the government has not yet issued a decree restricting individual human rights, and since all measures have been introduced based on existing laws designed to establish a legal framework for actions in this and similar situations, there are currently no practical legal consequences for citizens from the declaration of the state of emergency.
The essence of the state of emergency largely lies in the possibility of prescribing derogations from human rights during the emergency. In this sense, what should concern us most as citizens, who value (or at least should value) our rights and freedoms, is how the state of emergency will affect those rights and freedoms.
LAW OFFICE TODOROVIĆ
Two things should be noted:
The “measure” that citizens over the age of 65 should not leave their homes is not yet a formal measure; it is currently only a recommendation. Therefore, citizens who do not follow this advice cannot be held accountable for any offense or crime. It is simply a request. However, this should not be taken lightly. From a human rights perspective, it is desirable for state authorities to first make recommendations to citizens, reserving mandatory measures for when it becomes clear that public health cannot be protected otherwise. Therefore, citizens should not force the state to resort to coercion; the recommendation should be followed as if it were mandatory.
Freedom of movement is not an absolute right. Both the Constitution and the European Convention on Human Rights allow for the restriction of movement in accordance with the law when necessary to protect public health. Therefore, the competent authorities could (and still can) significantly limit movement through the implementation of measures based on the Law on Protection from Infectious Diseases, without the need to declare a state of emergency.
What are the potential consequences of the state of emergency for citizens?
The most critical question is what the possible consequences of the state of emergency will be. Unfortunately, this is the only question for which we have no answer at present. The answer will depend on the government’s decree or the assembly’s decision if human rights are restricted.
The state of emergency also opens the door for the application of provisions from the Defense Law (Articles 50-57), which include the possibility of imposing labor and material obligations on citizens, as well as special obligations on legal entities.
If state authorities decide to restrict one or more human rights, they must do so in a way that ensures the highest possible respect for the principle of proportionality in limiting those rights.
At the same time, international agreements guaranteeing human rights oblige our state to inform specific international organizations about any restrictions on human rights, which then begin monitoring the situation concerning the limitation of rights.
However, the international community is less of a problem. A more significant issue is the reluctance and lack of willingness among citizens to comply with requests, instructions, and measures, and the inefficiency of judicial institutions in this case.
On March 13, 2020, the Serbian Bar Association addressed the Ministry of Justice and the Supreme Court of Cassation, asking them to minimize court proceedings to prevent the spread of the infection. A joint session was held today, but no decision was made, postponing their stance until Tuesday, March 17, 2020.
This approach highlights the unwillingness of the highest authorities to recognize the purpose and importance of the state of emergency. The primary goal of these measures is to prevent the spread of infection by limiting contact between people and thereby slowing the transmission of the virus.
Emergency measures should have postponed all scheduled hearings except for detention cases and those where delays could cause irreparable harm. Holding hearings, with the attendance of court staff, parties, and witnesses, undermines the very purpose of the state of emergency measures.