09 April, 2020
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Not all human rights can be suspended during the state of emergency – obsolete*

Freedom of movement – the ever-tightening noose

Since March 15 when the state of emergency was declared in the Republic of Serbia (“RS“), i.e. since March 18 when the Ministry of Internal Affairs issued the Order Restricting and Prohibiting the Movement of Persons on the Territory of the RS  (“Order“), the measures have been revised multiple several times in a bid to find the most effective way to tackle the coronavirus spread.  April 3 saw the latest amendment to the Order.  Given the abundance of public discourse, it is practically common knowledge what the measures are and who the restrictions, aka the curfew, apply to.  However, many still choose to ignore the restrictions.  So what restrictions are in place?  Namely, the Order:

  • prohibits movement in public places, i.e. outside flats, premises and dwellings in residential buildings and outside the household (yards), for persons:
  • who are 65 years of age and older – in populated areas with over 5000 inhabitants;
  • who are 70 years of age and older – in populated areas with up to 5000 inhabitants;

except on Saturdays from 4 am to 7 am.

  • prohibits all persons from leaving flats, premises, and dwellings in residential buildings and from being outside the household (yards), from of 5 pm to 5 am on workdays, and from 1 pm on Saturdays to 5 am on Mondays;

Exceptionally, pets may be taken out from 11 pm to 1 am of the following day, and on Sundays from 8 am to 10 am, for 20 minutes, within a radius of 200 m of their owner’s residence, starting from April 4, 2020.

  • movement in all parks and public areas intended for recreation and sports, starting from March 21, 2020 at 8 pm.

Оutside curfew hours, movement is restricted to groups of max. two persons in outdoor public areas. However, this restriction does not apply to parents with minor children. In addition, funerals are limited to 10 people and attendees must maintain a distance of at least 2 m between each other.  In addition to these restrictions on movement, all persons returning or returned from abroad and those who were in contact with infected persons must self-isolate.

 

The price of flouting the restrictions

The restrictions, although clear and precise, are not understood properly by all despite the seriousness of the situation. The numbers flouting the restrictions led to courts being reopened in order to hand down fines.  Under the Order, infringements are a fineable offence under the Criminal Code of the RS (“CC“), and classed as a misdemeanor under the Decree governing the misdemeanor of violating the Order Restricting and Prohibiting the Movement of Persons on the Territory of the RS (“Decree“).

 

  1. Criminal offences

The Order does not specify what criminal offences offenders can be charged with but it is safe to say that they are probably related to public health regulations.  The most common criminal offence is the failure to adhere to public health regulations during an epidemic. Under Art. 248 of the CC, failure to adhere to regulations, decisions or orders setting down measures for the prevention or control of a dangerous infectious disease carries a fine or term of imprisonment of up to three years.  Another offence could possibly face is that of transmission of infectious disease and carries a term of imprisonment of up to three years (Art. 249 of the CC). Serious crimes against public health carry significantly harsher penalties (Art. 259 of the CC).

 

  1. Misdemeanor

The Decree prescribes a misdemeanor fine ranging from RSD 50,000 to RSD 150,000 for persons who do not comply with the movement restrictions.  Also, from the process aspect, Article 2 of the Decree allows for the initiation and completion of the misdemeanor procedure in the event of a criminal proceeding was initiated or is pending against a perpetrator for a criminal offence which includes the features of that misdemeanor, regardless of the prohibition under Article 8(3) of the Misdemeanor Act.  This provision may be disputable in light of ne bis in idem principle.  Namely, a person found guilty in criminal proceedings of an offence that includes the features of a misdemeanor, proceedings may not be against him/her for that that misdemeanor, or where proceeding has already been brought or are pending, they cannot be continued and completed.

 

Principle ne bis in idem

It raises the question of whether the state of emergency recognizes the principle of no bis in idem – literally “not twice in the same matter”.  At first glance, unjustified and not in the line with the Constitution of RS and the European Convention for the Protection of Human Rights and Fundamental Freedoms (“European Convention“)  would be a double trial, and therefore the possibility for double punishment for both the criminal offence and the misdemeanor.  This is precisely what said provision of this Decree enables.  Namely, the Constitution of RS (Art. 34) and Protocol 7 of the European Convention (Art. 4) guarantee the principle of ne bis in idem i.e. the right for anyone to not be convicted or punished twice in the same matter. However, a state of emergency is an extraordinary situation that is declared when public danger threatens the survival of the county or the citizens. Despite the possibility of suspending and restricting certain human and minority rights during the state of emergency, the principle ne bis in idem cannot be suspended, i.e. it cannot be repealed even in a state of emergency which is explicitly provided by the Constitution of the RS in Article 202(4) and by the Protocol 7 in article 4(3).  The foregoing suggest that there is a constitutionality issue surrounding the disputable provision, and its compliance with a ratified international treaty which is an integral part of the legal system of the RS and is applied directly.

 

 

Courts operating at full steam

In the meantime, pandemic or no pandemic it’s business as usual at misdemeanor and criminal courts across Serbia, and paradoxically, their workload has increased due to the number and frequency of infringements of the very restrictions put in place to combat it.  Accordingly, the Ministry of Justice has sent a letter in the form of a recommendation to the courts processing those who breach self-isolation measures to organize those trials via video links, in order to safeguard all parties to the proceedings.  The Ministry has informed the courts that IT staff should make the necessary arrangements to facilitate video link trials for breaches of self-isolation orders.  This includes ensuring that the courts have computers equipped with built-in or standalone  cameras and microphones and Skype installed.  A special decree was subsequently issued for hearings in criminal procedure.

 

Hearing defendants in criminal proceedings

The Government of the RS, with the co-signature of the President, adopted on April 1 the Decree governing participation of accused persons in main hearings in criminal proceedings held during the state of emergency declared on the March 15, 2020. Pursuant to this decree, during the state of emergency, in criminal proceedings being heard before the first instance court, when the president of the chamber or the sole judge finds that ensuring the presence of the detained defendant in the main hearing is complicated due to the danger of spreading the infectious disease, he/she may decide to allow the defendant to participate in the main hearing through the use of sound and image technology, if technical infrastructure allows.

 

Right to a fair trial

The right to a fair trial is guaranteed by the Constitution of RS (Art. 32) and the European Convention (Art. 6) and cannot be suspended during a state of emergency.  The question that arises is whether the defendant’s participation in criminal proceedings via the use of sound and image technology during the state of emergency harms his/her right to a fair trial.  A consultation of the rich corpus of European Court of Human Rights (“ECHR“) case law should help us to interpret the autonomous concept of “fairness” considering that it relates to the whole procedure and therefore hearings in the proceedings.

 

The concept of “fairness“

“Fairness”, in terms of Art. 6 of the European Convention, essentially depends on whether the defendant is provided with sufficient powers to present his/her case and question evidence he/she considers false. A teleological interpretation of Art. 6, “fairness”, inter alia, suggest that it includes the equality and the presence of parties in the procedure.

 

The equality of parties implies “equality of arms” and principally relates to the equality of the parties before the court.  It is just as important, if not more, in criminal proceedings where the individual for the adversary in the proceedings has the state itself.  “Equality of arms” requires each party to be provided a reasonable opportunity to present its case under conditions that do not put it at a substantially disadvantage relative to the other party[1].

 

Although the right to “public debate” stems from the formulation of Art. 6, the cases from that category are usually considered under the more general concept of “fairness”.   Therefore, “public debate” as element of “fairness” consists of, among others, right to an oral hearing i.e. the right of the accused to be personally present before the court[2] and the right to take effective participation[3]. Although at first glance the right to an oral hearing automatically implies physical presence, a video conference (e.g. the link to the detention facility) can adequately ensure that right[4].  However, the physical presence of parties is needed to:

  1. collect evidence from parties if they are witnesses to the event which is important for the subject;[5]
  2. allow the judge to draw conclusions about the parties – their personality, abilities, etc.[6]

When we are talking about the right to effective participation, the accused can participate in the discussion even through the video-conference, but it should be justified by very convincing reasons (e.g. the security reasons).  The system should also function properly and provide confidentiality of communication between the defendants and their lawyers[7].

 

To conclude, although it remains unclear how exactly hearings via sound and image technology will be heard, caution should be taken in light of ECHR standards, and the rights of those who are to participate in proceedings in this manner must be respected.

 

For more information you can contact us at covid19@geciclaw.com.

[1] Brandstetter v. Austria, paragraphs 41-69

[2] Ekbatani v. Sweden, Ap. No.  paragraphs 24–33

[3] T. and V. v. the United Kingdom, paragraphs 83–89

[4] Vladimir Vasilyev v. Russia, paragraphs 81–90

[5] Kovalev v. Russia, paragraphs 30−38

[6] Shtukaturov v. Russia, paragraphs 69–76

[7] Marcello Viola v. Italy, paragraphs 63–77