LEGAL ORDER IN THE TIME OF THE PANDEMIC
By Teodora Luca, Senior Associate, Mihai Luca Law Off
We live in times that cannot be compared to anything that until recently was defined as “normal.” It seems increasingly credible that our generation will be the one to report its existence between before and after the COVID crisis.
If the health danger appears to be indisputable and the protection measures must be adequate to the risk that SARS-COV2 represents for public health, we consider that it is of interest to analyze, from the legal perspective, if the normative acts restricting the exercise of certain rights are compatible with constitutional provisions.
Through this analysis, we do not intend to challenge the appropriateness of the measures adopted by the authorities to combat the SARS-COV2 epidemic, all the more so as a deepening of the health crisis in the near future is foreseen, for the removal of which our joint effort is needed. However, we consider that it is necessary to pay more attention to central and local authorities in issuing normative acts during this period, especially as they affect the rights and freedoms of citizens.
The situation of restriction of certain rights is provided by the provisions of art. 53 of the Constitution:
Art. 53: Restriction of the exercise of certain rights or freedoms
(1) The exercise of certain rights or freedoms may be restricted only by law and only if required, as the case may be, for: the defense of national security, order, public health or morals, the rights and freedoms of citizens; conducting criminal investigation; prevention of the consequences of a natural calamity, of a disaster or of a particularly serious disaster.
(2) Restriction can only be ordered if it is necessary in a democratic society. The measure must be proportionate to the situation which gave rise to it, be applied in a non-discriminatory manner and without prejudice to the existence of a right or freedom.
In the jurisprudence of the Constitutional Court, it was constantly held that “the legal institution of restricting the exercise of fundamental rights and freedoms, provided by art. 53 of the Constitution, with the legal institution of the state of emergency or the state of siege, which has its basis in art. 93 of the Constitution, “Exceptional measures”, because, even if the establishment of the state of emergency or the state of siege may have as a consequence the restriction of the exercise of certain rights or freedoms, the scope of application of art. 53 is not limited only to the situations provided by art. 93 of the Constitution.”
In other words, the restriction on the exercise of fundamental rights and freedoms is not conditioned by the establishment of a state of siege or a state of emergency.
However, in the same Decision of the Constitutional Court (no. 872/2010), it was noted that “in order for the said restriction to be justified, the requirements expressly provided by art. 53 of the Constitution, namely:
– to be provided by law;
– to impose its restriction;
– the restriction should be limited to the reasons expressly provided by the constitutional text, namely for: the defense of national security, order, health or public morality, the rights and freedoms of citizens; conducting criminal investigation; preventing the consequences of a natural disaster, a disaster or a particularly serious disaster;
– be necessary in a democratic society;
– be proportionate to the situation which determined it;
– be applied in a non-discriminatory manner;
– not prejudice the existence of a right or freedom.”
According to the provisions of art. 1 para. 2 of Law 55/2020 on some measures to prevent and combat the effects of the COVID-19 pandemic, the restrictive measures of rights as well as, as the case may be, those of renunciation or relaxation are ordered in compliance with the principle of equal legal treatment for identical situations or comparable.
Law 55/2020 defines alertness as the response to an emergency situation of particular magnitude and intensity, determined by one or more types of risk, consisting of a set of temporary measures, proportional to the level of severity manifested or forecasted and necessary to prevent and eliminate imminent threats to life, human health, the environment, important material and cultural values or property.
According to art. 6 of Law 55/2020, the decisions by which the state of alert is declared or extended, as well as those by which the application of certain measures during the state of alert is established include:
a) the legal basis;
b) the period of the alert state;
c) measures to increase the response capacity, ensure the resilience of the communities and reduce the impact of the type of risk necessary to be applied, the concrete conditions of application and the recipients of these measures;
d) public institutions and authorities that implement or follow the observance of the application of the measures, as the case may be.
Relevant is the Art. 6 letter d) of the law, according to which in the decision by which the state of alert is established or extended must be provided the local authorities that implement or monitor the application of the measures, without the text of the law allowing them to restrict the exercise of certain rights; freedoms.
However, in Annex 3 Measures to mitigate the impact of the type of risk.
Government Decision no. 782/2020 (art. 9) expressly provides the ability of county committees for emergency situations to establish restrictions on the exercise of economic activities:
2. the activity with the public of the economic operators licensed in the field of gambling is allowed in the counties / municipality of Bucharest where the cumulative incidence of the cases in the last 14 days is less than or equal to 1.5 / 1,000 inhabitants;
3. county committees for emergency situations in counties where the cumulative incidence of cases in the last 14 days is less than or equal to 1.5 / 1,000 inhabitants may decide to restrict or close in a locality in the area of competence the activity of licensed economic operators in the field gambling, if the cumulative incidence of cases in this locality, during the mentioned period, exceeds the threshold of 1.5 / 1,000 inhabitants;
4. county committees for emergency situations in counties where the cumulative incidence of cases in the last 14 days is higher than 1.5 / 1,000 inhabitants may decide to resume the activity of licensed economic operators in the field of gambling, from a locality located in the area of competence, if the cumulative incidence of cases in this locality, in the mentioned period, is less than or equal to 1.5 / 1,000 inhabitants;
But is it legal to delegate to local authorities the powers of the Government to restrict the exercise of certain rights and freedoms, such as to carry out economic activity?
The provisions of art. 9 point 3 of Annex 3 to the Government Decision no. 782/2020, which allow local authorities to determine in a discretionary manner whether economic activities can be resumed or not, even if the situation that led to the application of the measure no longer exists, respectively the cumulative incidence of cases in this locality, during that period, is less than or equal to 1.5 / 1,000 inhabitants?
In our opinion, the answer is obviously no. As long as the provisions of art. 6 of Law 55/2020 unequivocally establish that the measures for increasing the response capacity, ensuring the resilience of communities and reducing the impact of the type of risk, the concrete conditions of application and the recipients of these measures are established in the decisions establishing or prolonging the alert, there is no doubt that the only competent authority to order these measures is the Government and not the local authorities or health institutions, whose role is limited to implementing or monitoring compliance with these measures.
In the same sense, of the illegality of the acts issued by the local authorities (county committees for emergency situations or the Bucharest municipal committee for emergency situations), it should be noted that it cannot establish the proportionality of the measure with the situation that determined it. All their judgments do not include references to the factual reasons that led to the application of the restrictions (sometimes imposed despite the condition that the cumulative incidence of cases of illness be greater than 1.5 / 1000 inhabitants) nor their duration.
Given that, in order to avoid a major health crisis, the central public authorities constantly call for discipline and compliance with the rules, which are undoubtedly needed, predictable and, of course, with strict observance of competences and constitutional and legal limits.
Errors committed by central or local authorities in issuing normative acts that include measures applicable during the alert state create real difficulties in their application by the recipients; these errors, corroborated with the risk of the abolition of normative acts by the courts will contribute to the erosion of trust in public authorities, with immediate effects of deepening the health crisis caused by SARS-VOC2.
However, we hope that with the foreseeable extension of the state of alert by a new decision, the Romanian Government will correct these errors and properly regulate the restrictions applicable in the economic field, including, but not limited to gambling activities.
LEGAL ORDER IN THE TIME OF THE PANDEMIC
By Teodora Luca, Senior Associate, Mihai Luca Law Off