An infectious disease pandemic can cause an emergency that “threatens the life of the nation”.
Pandemics not only threaten the life and health of a potentially large number of the people living in a country, but can also put a strain on medical services and other services essential for the normal functioning of society. Therefore, states can respond to pandemics by putting certain restrictions in place that derogate from human rights to limit the spread of the disease.
Derogation and emergency measures
A government may attempt to limit the spread of a disease in many ways. During the COVID-19 pandemic, states adopted a number of measures that restricted the right to private and family life, freedom of assembly, freedom of movement, the right to liberty, the right to education and other rights. Among the measures were lockdowns, curfews, bans on large and small gatherings, the suspension of visiting rights at prisons, hospitals, retirement homes, an obligation to wear masks or other protective equipment, the suspension of in-class learning at schools and universities, full or partial closures of restaurants, shops, cinemas and other public places and other measures.
example Per Parliament Decision No. 55 from 17 March 2020, a state of emergency was declared in the Republic of Moldova due to the epidemiological situation caused by the COVID-19 infection. The measures entailed restrictions to fundamental rights and liberties, including, by way of establishing a special regime of entry and exit from the country, of movement on its territory, suspending the activity of educational establishments, introducing the quarantine regime, prohibiting meetings, public demonstrations and other mass gatherings, and therefore, triggering the necessity for the Republic of Moldova to derogate, in accordance with Article 15 of the European Convention on Human Rights from the application of certain provisions of the Convention and its Protocols, in particular, Article 11 of the Convention, Article 2 of the First Protocol and Article 2 of the Protocol No. 4.
Necessity and proportionality
During pandemics, especially if a disease is new and its effects and spread patterns are unknown, states generally have considerable freedom to decide the types of measures that need to be taken to tackle the crisis. However, as it is with all measures derogating from human rights, they need to be strictly required by the exigencies of the emergency. This means that they must comply with all the legal requirements for a derogation to be valid, including necessity and proportionality.
example In Moldova, the Constitutional Court found that the law should allow the courts to assess not only the lawfulness, but also the proportionality of the emergency measures imposed by the executive authorities responsible for managing the state of emergency.
Decisions on adopting new measures need to be carefully assessed, considering all the information available to the government, including whether the proposed measures will be effective and whether there are less restrictive alternatives for achieving the same result. In adopting restrictive measures, the government must also assess whether the measures are discriminatory or constitute unjustifiable unequal treatment.
In order to maintain a balance between rights and obligations, along with the imposition of restrictions, the State should grant certain support measures, necessary in emergency situations.
example In Moldova, the Government granted allowances for successors of personnel of public medical and sanitary institutions, who died in the fight against COVID-19.
Read more about legal requirements.
Common restrictions
In response to pandemics, states may commonly restrict the right to a private life and aspects of fundamental freedoms that involve large gatherings, such as freedom of assembly. States may also restrict the movement of people to limit the spread of disease across states or regions.
In Moldova, during the state of emergency, the Parliament granted the Emergency Situations Commission the right to take the following measures:
- establishment of a special regime for entry and exit from the country
- the establishment of a special circulation regime on the territory of the country
- introducing the quarantine regime and taking other mandatory sanitary-anti-epidemic measures
- the prohibition of gatherings and public demonstrations
- carrying out other necessary actions in order to prevent, reduce and liquidate the consequences of the coronavirus pandemic (COVID-19).
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