23 December 2021
The state of emergency as a constitutional and legal topic has always been a demanding one for lawyers who study constitutional law. The recent COVID-19 pandemic (2020-21) rendered this topic extremely relevant.
All the states that have declared the coronavirus pandemic were facing changes in the functioning of their legal systems. In this state of emergency, governments attempt to combine the responsibility shown by the people with the public adherence to the required rules, something that signifies the constitutive role the state plays for the protection of society. The public respect to containment measures (closing schools, banning large public gatherings and team events, and so on) demonstrates the unconditional acceptance of the political as the supreme responsibility of the functioning of a society as a whole. On the other hand, the civil society (or the family) cannot act alone in this situation; it needs the state.
The extent of derogations varied across countries – in some, restrictions on human rights were soft, similarly to ordinary circumstances, while in others were harsh, all to the complete suspension of some human rights (freedom of movement in the complete lockdown). Of course, over time, all countries have been adapting the measures to the circumstances by revising them.
The modification of the legal system has opened a whole range of questions in need of answers. The first legal question from which all other questions derive is whether the state authorities and holders of public powers acted in this state of crisis constitutionally and legally.
The second set of questions are, first and foremost, ones of medical nature and primarily refer to assessing what human rights restriction measures should have been introduced, and to what extent (level), for their aim to be attained. In this case, the aim was to contain the pandemic and save human lives.
As an introduction, it can be noted that for Serbia, the modification of the legal system meant introducing highly restrictive measures of human rights limitation (amongst the strictest in Europe).
Finally, the third set of unconstitutionality refers to the misinterpretation of human rights and their “adaptation” to the given needs and circumstances. Thus, there were many instances of violation of human rights relating to trial (directness, etc.), prohibition of retroactivity, the principle of ne bis in idem, res iudicata, and others.
Regulation of the state of emergency due to the COVID-19 pandemic
In the Republic of Serbia, the state of emergency (Serbian: vanredno stanje) is a constitutional category. It means that the most relevant provisions that regulate it are enshrined in the Constitution. In addition to the state of emergency, the Constitution also regulates the state of war (Serbian: ratno stanje) as another form of the state of necessity in which the state may find itself. Aside from these two, it is also possible to declare the third form of crisis – emergency (Serbian: vanredna situacija), which is a legal category. The main difference between the state of emergency and the emergency is in the degree of danger, which is assessed in particular circumstances. Essentially, the emergency constitutes a lighter departure from the ordinary regime of the state functioning and can also be declared on the existence of other dangers, not only the risks and threats of disasters and emergencies.
The constitutional provisions on the parliamentary decision-making method mandate that the National Assembly, “shall declare and call off the state of emergency” “when the survival of the state or its citizens is threatened by a public danger”. The public danger must be of such high intensity that it threatens these values to be possible to declare a state of emergency – otherwise, the law commands declaring an emergency.
The theory explains that a state of emergency regulated by the supreme law must strike a balance between two values – one is the need to preserve in situations of crisis the society and state as urgently and effectively as possible, and the other is the necessity to prevent in those circumstances any power abuses and reduce to the minimum the sacrificing of the legality and inviolability of human rights.
The Republic of Serbia has no law in place governing the state of emergency; it is regulated by the Constitution.
Legally, it is possible to introduce more than one kind of state of emergency at the same time. In 2020, a state of emergency was declared countrywide due to the COVID-19 pandemic, with the emergency concurrently being declared in several units of local self-government (towns and municipalities).
For these instances, it can be said that clear criteria by which units of self-government introduced the emergency were lacking – they mainly adhered to the number of virus infections, assessing whether the figures were adequate to declare the emergency. The emergency was remaining in force despite the varying number of the infected.
The authority to declare the states of emergency and war rests with the National Assembly. The proposal is submitted jointly by the President of the Republic and the Government upon the receipt of the Defence Minister’s report on the assessment of risks and threats and information on the consequences that have
occurred or may occur. The President of the Republic and the Government may propose that the state of emergency be declared for the entire state territory or a part of it (the same is not possible for the state of war).
The emergency can be declared by: the Government (countrywide), Provincial Government (for Autonomous Province Vojvodina), and the municipal president or mayor, all on the proposal by a special body: “emergency management headquarters”.
If National Assembly is unable to convene, an alternative actor to declare the states of emergency and war are presidents of the Republic, National Assembly, and Government. Our law does not set out the criteria for assessing the possibilities for the National Assembly to convene – according to the Constitutional Court, however, views it as a factual rather than a legal question, considering, in that sense, as sufficient that the president of the parliament notifies of the Assembly’s inability (no. IUо- 42/2020).
The allowed exception to this rule refers to the enactment of measures in the state of emergency when the Assembly is unable to convene – it is then done by the Government, with the co-signature of the President of the Republic.
The Constitution makes no provisions for the creation of a separate body during the state of emergency; however, following the declaration of the COVID-19 pandemic, by the Government’s decision, the Crisis Response Team was established, albeit as an advisory body (the law provides for the existence of the Republic, provincial, and local emergency management headquarters).
The powers of the legislative and executive authorities in the states of emergency and war are several: to declare and revoke those states, to enact measures (acts) derogating from constitutionally guaranteed rights, to confirm and suspend those measures.
To prevent the state of emergency from becoming repressive and non-democratic, all under the guise of preservation of the mere existence of the state and its citizens, the Constitution sets out certain limits for the “disruption of powers” in favour of the executive power. Crucial guarantees are the constitutional limitations relating to the departure from the ordinary regime of human rights. The enumerated human rights (absolute rights) can by no means be limited, while all other rights are subject to the rule allowing their restriction only to the extent necessary or to the minimum extent possible.
In the course of the COVID-19 pandemic, the state of emergency was in effect (15.3-6.5.2020), in which the legal system was subject to changes and human rights to restrictions, not only by governmental decrees having the force of laws but also by bylaws enacted by ministers and other office holders. The Constitutional Court has received many initiatives for the review of constitutionality and legality of those acts (decisions, orders, rules), as well as the constitutionality of the very decision on the declaration of the state of emergency issued by the three presidents, namely: of the Republic, Assembly, and Government.
From the Constitutional Court’s Decision on the constitutionality of the declaration of a state of emergency (IUо-42/2020) derives that the three presidents declared the state of emergency in compliance with the Constitution. In another Decision (IUo-45/2020 of 28.10.2020), the Court established that some articles of the two Government’s decrees adopted in the state of emergency are inconsistent with the Constitution and the confirmed international treaty.
Professor Darko Simović enumerates some of the most essential legal doubts of a state of emergency during the COVID-19 pandemic:
- the emergency state was introduced before the proclamation of the epidemic in the territory of Serbia (the state of emergency was declared on 15 March, and the epidemic on 19 March 2020) and was suddenly given the mild measures of restriction of human rights already being in place;
- introducing the state of emergency due to the virus epidemic was criticised to the effect that the epidemic is not an issue the Constitution recognises as “threatening the survival of the state or its people”;
- another potential reason for the sudden introduction of the state of emergency is the parliamentary elections called for 26 April 2020, which, in the circumstances of the spread of a contagious disease,
could not be conducted, nor could they be postponed without the proclamation of the state of emergency;
- the proclamation of the state of emergency pointed to a poor legal solution by which the minister of defence rather than that of health proposes introducing of the emergency state even in the event of infectious disease spread;
National Assembly has not been convening to confirm the state of emergency, which meant that for a month and a half, the Government, along with the President of the Republic, has, without any supervision, been determining the human rights derogation measures, and what is more, of 250 deputies in total, only eight sought the convening of the Parliament session, on which basis we infer that “the Parliament agreed to the political strategy of own marginalisation”;
- one of the remarks is also that the decision to declare the state of emergency did not specify the period for which it is introduced – contrary to the constitutional authorities’ obligation to take measures in a way to terminate the state of emergency as soon as possible.
Concrete paradoxes during the state of emergency
For someone who does not practice law, it is almost impossible to find out what in the Republic of Serbia is allowed and what is forbidden. Legal certainty was low during the state of emergency and has not been at the desirable level after its lifting, either.
Thus, for example, in some local self-government units, the working hours of hospitality facilities have been limited, wearing masks in open public spaces mandated, etc. Some emergency management headquarters were even imposing fines (misdemeanours) for breaches of their orders, despite their not being authorised to do so. The orders they issued were not generally published anywhere, leading to the citizens being unaware of their existence, either. But some towns and municipalities did publish on their respective websites these orders by local emergency management headquarters, with there also being such local self-governments that published them in their official gazettes. Nevertheless, emergency management headquarters cannot instate such bans and restrictions in case of infectious disease epidemics because it is not within their competence.
Aside from the declared infectious disease epidemic in the Republic of Serbia, in some local self- governments, there had also been declared an emergency – for example, in Belgrade and Novi Sad. The reason for declaring the emergency was precisely the COVID-19 infectious disease. In this connection, some legal issues arose with special health regulations applicable in those local self-government units.
Failure to comply with “special health regulations” qualifies as a criminal offence or a misdemeanour, but that was not quite explicitly regulated, either. Namely, one and the very same act can qualify either as a criminal offence or a misdemeanour. Thus, for example, curfew violations were subject not only to criminal charges but also to misdemeanour charges.
As for restrictions and prohibitions of movement (curfew), it is worth noting that for elderly persons, special prohibition rules applied, which were undergoing constant changes during the state of emergency. Namely, persons aged over 65, or 70, depending on the population of a particular settlement, could leave their homes-houses only for a limited number of hours and for the sole purpose of purchasing food supplies. This treatment towards the eldest citizens had been justified in that they constituted the highest-risk category of the population and that the state thus tried to safeguard them from infectious disease. On the other hand, other questions arise – who took care of those persons in terms of provision of basic food staples, whether, and which psychological consequences did the imposed measure produce for those people, and a further one, of course, is whether those persons were subjects to discrimination?
Right to a fair trial
It can be stressed that during the state of emergency, courts were quite strict in imposing sanctions for violations of special health regulations; thus, the first judgment in Serbia brought a defendant who breached the self-isolation measure the maximum imprisonment sentence of three years.
In the state of emergency, the Ministry of Justice recommended to the public prosecutor’s offices to necessarily seek detention for all persons who violate the self-isolation measure. However, many of those persons did not commit a criminal offence because at the time the alleged crime was committed, it was not legally recognised as a crime.
Persons having violated the health regulations were being detained, contrary to positive regulations, in three special “detention units”.
It should further be noted that after lifting the state of emergency, the public prosecutor’s office abandoned criminal prosecution against some persons and that the court rendered the acquittal judgments, as it found that the defendants did not violate special health regulations. It is one of the indicators that the persons who concluded the plea bargain agreements (who were convicted) would likely have been freed from criminal liability if they had only “held on” up to the lifting of the state of emergency, to the creation of the right conditions making it possible to indicate that their criminal liability does not exist.
Additionally, during the emergency, it was also made possible that the defendant take part in the main hearing by way of not being physically present in the courtroom but by ensuring his/her presence using technical means for image and sound transmission (the so-called Skype trial). This solution was not in line with the Criminal Procedure Code.
Freedom of religion
There were also such orders (in a town or municipality) allowing the performance of worship services within religious facilities by priests, without the presence of believers. These bans and restrictions were prescribed by local emergency management headquarters, unauthorised to do so. Moreover, it is not difficult to establish that by those respective orders, they had violated the Constitution of the Republic of Serbia.
In the Republic of Serbia, many persons were subject to motions for instituting misdemeanour proceedings for violating special health regulations, on top of it being that misdemeanour warrants were also issued by public authorities and individuals unauthorised by law to do so. Specifically, it concerned the general rule that only sanitary inspectors have been legally competent to prosecute for misdemeanours offenders having violated epidemiological measures and issue misdemeanour warrants. However, Serbia was lacking sufficient sanitary inspectors, which made thus the communal police one among the first to have unlawfully prosecuted for misdemeanours persons having violated special health regulations and to have issued misdemeanour warrants for epidemiological measures violations.
An impact of measures
Some measures were affecting the entire population of Serbia, while there were also those impacting only the specific groups.
For instance, the measure that can be said to have most affected all citizens – “restriction and prohibition of movement of persons”, the so-called curfew, was imposed contrary to the Constitution of the Republic of Serbia. Namely, the so-called curfew was prescribed in the Order by the Minister of the Interior, who was not authorised to do so.
Furthermore, there were also other regulations, orders (and even unpublished quasi-legal acts) restricting the rights and freedoms of the specific persons – as was the case with persons within social care
institutions (the so-called homes for the elderly). The enacted Order was inconsistent with law. Persons within those institutions have been “deprived of their liberty” for over a year.
Particularly unacceptable in legal terms is that the emergency management headquarters in some local self-governments were ordaining various bans and limitations while lacking the authority for doing so. There was also a portion of the prohibition measures prescribed by green market directors, social welfare centres’ directors, persons employed in the field of enforcement of criminal sanctions, and others.
Changes on migrant issues
The Government (through a Decree co-signed by the President of the Republic) made it possible for the Ministry of the Interior to order the closing of all approaches to open spaces or facilities and prevent leaving those spaces or facilities without special permission, as well as to order a mandatory stay of specific persons or groups within specified spaces or facilities (migrant reception centres and alike).
On the other hand, the Minister of Health adopted the Order Restricting the Movement on Approaches to Open Spaces and Facilities of Migrant Reception Centres and Asylum Centres, banning access to open spaces or facilities of migrant reception centres and asylum centres, and their respective beneficiaries from leaving those centres. It undoubtedly limited the freedom of movement; however, in the same vein as the Interior Minister’s Order on the so-called curfew, this Order neither has been nor could have been confirmed by the National Assembly.
Changes on election issues
The introduced state of emergency and the epidemiological situation in RS also impacted the election for deputies in the National Assembly. Specifically, it is important to note that the Republic of Serbia had announced the elections for deputies to the National Assembly. On 4 March 2020, the President of the Republic adopted a Decision calling the elections for deputies to the National Assembly to be held on 21 June 2020.
Changes in media freedoms
Media freedom is guaranteed under the Constitution of RS. Despite this constitutional regulation, attempts have been made in the Republic of Serbia by the Government to restrict reporting on the situation and consequences of COVID-19 infectious disease. I mean that if any other party provides to the public the information of the taken health measures or other information concerning the treatment, such information cannot be viewed as accurate and that those parties will bear legal consequences for spreading misinformation.
A further fact to be emphasised is that the Crisis Response Team did not exist at that time in the formal and legal sense (giving thus rise to the question of how is it possible for a formally and legally non- existing crisis response team to have any power). The Government had only on 29 October 2020 adopted the Decision Setting Up the Crisis Response Team for the Containment of Infectious Disease COVID- 19, the Crisis Response Team has, almost since the very declaration of the infectious disease, continually been giving some recommendations, to its members daily issuing certain press releases for media, while it was not officially formed by the Government decision, as the only possible way to do so legally. From the state officials, one can learn that the Crisis Response Team was formed even before 29 October 2020, by a Government Conclusion, with that Conclusion, however, not having been published anywhere.
Fiscal and monetary measures during the COVID-19 pandemic
If we start from the position that the COVID-19 pandemic is destroying the global economy in an unprecedented manner, we will find that Serbia is yet another country that was not immune to the adverse economic impacts of the pandemic.
In the Republic of Serbia, with a view to mitigating the consequences of the COVID-19 infectious disease epidemic, citizens were granted financial support. In this respect, the Republic of Serbia has, so far, paid the one-off financial aid to the adult citizens of RS, with a residence in RS, in the amount of EUR 100 (one hundred), in dinar counter value. Also, a special law has been adopted recently, providing for each adult citizen to receive financial aid in two disbursements of EUR 30 each, in dinar counter value. Private sector businesses had the opportunity to exercise specific fiscal benefits and direct payments from the budget of the Republic of Serbia. Moreover, agricultural holdings have been facilitated access to loans. Let us also note that the state has provided a certain amount of grants to sporting organisations.
Like other states, the Republic of Serbia forbids discrimination. But, the Government of RS decided to use financial incentives to influence the citizens to get vaccinated a sum of 3,000 dinars on account of their contribution to preventing the spread of infectious disease, that is, to infectious disease prevention and containment.
The second instance concerns the employed persons. Namely, the right to salary compensation in the amount of 100% of the salary compensation base was granted to employees who, for the duration of the declared infectious disease epidemic and before being temporarily absent from work due to a confirmed COVID-19 infection, got vaccinated.
Certain economic support measures have also been prescribed in some local self-government. Thus, for example, the City Council of the City of Novi Sad adopted a Decision on granting financial assistance to the families of the citizens from the territory of the City of Novi Sad who died of COVID-19 infectious disease caused by the SARS-COV-2 virus and who were buried in the same territory, in the amount of 100,000 dinars per the deceased.
The National bank of Serbia, prescribed measures, such as:
- lessors were required to offer lessees a suspension of debt payments (moratorium).
- banks were required to offer their debtors (natural persons, farmers, entrepreneurs, and companies) a suspension of debt payments (moratorium).
However, in this way, the economic consequences are reduced for a limited time only.
Summary
Since the Republic of Serbia proclaimed the epidemic of COVID-19 infectious disease (which is still active), legal rules have significantly changed. In addition to having the state of emergency introduced, some local self-governments concurrently had an emergency declared. The Republic of Serbia had no legislation in place to act as the lex specialis for COVID-19, so along the way, regulations have been enacted, building up a separate new law on the rights and obligations in the time of the epidemic.
The Constitution of the Republic of Serbia provides for who, when, and in what procedure may introduce a state of emergency and which measures may be prescribed in that state of crisis. However, during the state of emergency, there were provisions for measures derogating from constitutionally guaranteed human rights to the effect of those human rights being violated. While it is difficult to single out the measures being the most rigorous for the population, we consider that to be the so-called curfew or the suspension of full enjoyment of the freedom of movement.
Although the state of emergency in the Republic of Serbia terminated, special rules applicable to the state of the epidemic are still in force. These rules refer to the application of the Act on the Protection of Population against Infectious Diseases and a variety of bylaws, as well as local decisions made not only by authorised but also by unauthorised bodies. The abundance of bylaws contributes to the impression that Serbia now has the rules of conduct governed only in small part by laws. A number of those special regulations the Constitutional Court has declared unconstitutional, while the rest are currently undergoing the constitutionality and legality review procedure.
In regard to the enacted special regulations, several major problems can be highlighted. First, these regulations were enacted by authorities lacking the power to do so (as was the case with the so-called curfew). Special regulations were applied from the date of their publication in the Official Gazette, leaving no time for the citizens to get familiar with new measures. Some of the special regulations were not even published, leaving the citizens unaware of their existence either. During the epidemic, most
citizens found it extremely difficult to find out which rules of conduct applied at any one time regarding the epidemic, given that state officials were reporting in the media the information also contradicting the enacted special regulations. It is legally problematic that in some local self-government, the emergency management headquarters enacted the regulations of their own, which not only were remaining unpublished but were also, illegally, prescribing misdemeanours.
The practice has shown that Serbia is lacking sufficient sanitary inspectors – the ones with exclusive competence to enforce laws and special regulations for containing the infectious disease – which led to the measures being imposed by incompetent authorities, primarily the police and communal police. Thus, for example, the communal police filed motions for initiating misdemeanour proceedings and issued misdemeanour warrants. The effect of this action by an incompetent authority is reflected in that the misdemeanour court should issue a decision suspending the misdemeanour proceeding, with the person against whom it was conducted being compensated for damages.
Not so small numbers of people were breaching special regulations, with a number of them being detained and the rest also convicted and punished in criminal or misdemeanour proceedings. We found that the courts were imposing strict penalties in the state of emergency, in the proceeding that was urgent and, in some instances, conducted unlawfully, with the defendants not physically attending the courtroom trial. Interestingly, neither the courts have at that time been questioning the unconstitutionality and illegality of special regulations, nor have, initially, any of the state authorities pointed to the negative consequences of applying those regulations.
With time, the awareness was growing of some of the enacted acts being unconstitutional and illegal and some implemented by unauthorised bodies. It is the likely reason why, very often, the new regulations or the ones amending the existing ones were enacted each time in a way to make them lawful. But those amendments did not rectify the already done because the new regulations applied prospectively.
