The ‘Question of the Issue’ section not only gives our readers the chance to read about relevant law-related issues but also to express their opinions regarding the most relevant topics of the moment. Given the exceptional context, we find ourselves in, we wanted to look at how governments have handled the Coronavirus pandemic. The unique nature of the crisis makes almost any measure taken to be the equivalent of a human rights restriction. In some countries, these measures represent the most severe infringements their citizens have seen in decades. We asked six contributors to describe the situation in seven countries. We would like to thank them once again for their insights and to invite our readers to find out and compare the approaches which are presented below.
Germany - Bernadett Koroknai, Master’s graduate at Babeș-Bolyai University, Romania
As is now customary with society’s reactions to the novel coronavirus, the German population questions whether the government went too far in limiting their fundamental rights and freedoms and if it is necessary to completely upend the life of millions of people for a virus that even the World Health Organisation considers to have a death rate of just 0.6%. The lockdown affected all 16 federal states, however, the Land of Bavaria was the one hit the most by the pandemic. Restrictions included the closing of schools, places of worship, restaurants and bars, and generally crowded public places. It was mandatory to wear a mask and to hold a distance of at least 1.5 meters between individuals. Some states closed off their borders to other neighbouring states essentially barring citizens owning a second house across the border from exercising their right to private property.
The split in opinions can be observed by looking at the recently filed lawsuits at both state and federal levels. Far-right activists also protested in July 2020 in Berlin against new restrictions meant to prevent a second wave of infections, stating that it is unconstitutional and infringes upon their fundamental liberties. For the first time since World War II, the German citizens have seen intrusions into their lives in a manner that was unfathomable at the end of 2019. However severe the response was to this extraordinary situation, the short term effect is the minimal death toll, if we bear in mind that this is a country with a population of 82 million. The long term effects on society, economy, and the legal discourse cannot be understated and they will surely usher in a new era of issues, but also solutions.
Italy - Giulia Pesarin, fourth-year law student at the University of Ferrara, Italy
In my opinion, the government did a good job. The intervention was moderate enough to prevent the infringement of our constitutional principles but strict enough to prevent a catastrophe. The measures taken by the Italian government were enforced progressively, starting out with a quarantine imposed in Northern Italy on the 22nd of February and the suspension of the activity of schools, religious ceremonies, sporting events, and some commercial activities. Citizens who did not obey risked fines and up to three months in jail. The quarantine was extended nationwide on the 9th of March and as the situation got worse, fines became higher and restrictions stricter, such as the halting of all non-essential production, industry, and businesses, closing of public playgrounds and parks and many more. Although contested by many, the great majority of Italians followed the rules and now we are finally able to go out and enjoy a drink with friends. It was a harsh period, which also had reverberations across the socio-economic plane, but I trust that we will stand back up on our feet in no time.
Hungary - Kriszta Portik, third-year law student at Babeș-Bolyai University, Romania
Hungary has gained quite a lot of attention internationally due to the accusations that its government acted in an authoritarian way by using newfound powers to suppress human rights and silence critical voices.
Namely, on March 30, 2020, the Hungarian Parliament passed the Law on Protection against the Coronavirus. Through the bill, the Government sought authorisation to extend the state of emergency that it had previously ordered by decree on March 11. The state of emergency was to be extended for an indefinite period, while the government would be able to legislate through decrees without the guarantee of the protection put forward by parliamentary oversight. Moreover, new crime definitions were introduced. For example, anyone who published ‘false’ facts or alarmed the public could be punished by up to five years in prison, similarly to those who interfered with the implementation of quarantine or refused to follow an isolation order. Arguably, the freedom of expression was disproportionately restricted.
Civil society organisations claim that Hungary’s human rights record has already been in a steady decline in recent years, so these measures could be considered just the cherry on top. The adoption of these emergency actions could represent a violation of the principles of the rule of law, democracy, and fundamental human rights, given the fact that derogations from these standards must be exceptional and for a limited period of time, unlike what the content of the bill imposed. Consequently, Hungary has received various criticism from the Council of Europe, the European Parliament, the International Press Institute, the Organization for Security and Cooperation in Europe, and numerous human rights defenders.
South Korea - Jisu Jang, fourth-year law student at Dongguk University, South Korea
South Korea is one of the countries which has been regarded as an example in the fight against the coronavirus and received the world's praise for its approach, which led to the introduction of the Korean drive-through tests method and the export of Korean Corona inspection kits in several other countries. The government did not prohibit Koreans from going out or force them to wear masks, but they chose to do so by themselves.
An interesting method is the one based on Article 34-2 (1) of the Infectious Diseases Prevention and Management Act. According to it, the local authorities must text the public the age and sex of the patient, which area he or she lives in, and the locations they have been to. This has certainly helped prevent the spread of the coronavirus, but there are also cases of human rights violations due to the exposure of private matters in such reports. An example is the LGBTQ+ community, whose members are at risk of having their sexual identity exposed because the text messages can include their attendance at LGBTQ+ venues. According to Article 4 of the same act, infected patients should have their dignity, values, and basic rights guaranteed. Ironically, they are not being protected because of the exact same law. The Central Anti-Disaster Headquarters' ambiguous position on the matter is that it is inevitable to disclose the places where an infected person has been in order to prevent further infections, but public interest and human rights need to be balanced, as the effects of the associated stigma and the exposure of privacy can cause significant problems.
New Zealand - Tamara Ciobanu, fourth-year law student at Babeș-Bolyai University, Romania
New Zealand amazes the whole world with sometimes less than two cases of SARS-CoV-2 infections a day. Meanwhile, other countries are still seeing hundreds, if not tens of thousands of cases every day. What is their secret?
At the beginning of February, New Zealand closed its borders to anyone coming from or via China, a decision which later included Iran, one of the hardest-hit countries at the time. As of March 16, anybody entering the country had to go into self-isolation upon arrival for fourteen days. Soon after, the borders were closed entirely to almost all travelers. As the pandemic progressed, New Zealand introduced a four-stage COVID-19 alert system that reached its peak (level 4) on the 25th of March, when a nationwide lockdown was declared. Since then the lockdown has been lifted and the country celebrated the absence of active cases for about 100 days.
Clearly, their secret was an early, structured, and systematic intervention and compliance with restrictions on behalf of the population. Moreover, contact tracing operations are thorough, with citizens having the possibility to use a contact tracing app, which contributes tremendously to the tracing effort through the data delivered to the government and the notifications it sends to the users.
Romania and Sweden - Cîmpian Patricia, fourth-year law student at Babeș-Bolyai University, Romania
The Romanian government had a swift reaction to the threat of the novel SARS-CoV-2 virus. By March 16, a state of emergency had been declared, less than 3 weeks after the first confirmed case in Romania on February 26. On March 11, the activity of schools and universities had been suspended. Restaurants, hotels, shops, private medical and dental practices, religious, cultural and sporting activities, gatherings, and many more were soon to follow. The freedom of movement outside the home had been severely restricted to a list of pre-approved reasons and emergencies. The citizens had to possess a document stating the reason they left their home, otherwise risking fines, whose quantum had been increased through an emergency ordinance. The majority of the population complied and consequently, the number of daily new infections peaked at only 523 cases during the nation-wide lockdown. Given the fact that the Romanian healthcare system is nowhere near being able to handle a crisis similar to what Italy and Spain had experienced, the celerity and intensity of the measures seemed to have spared Romania of a public health catastrophe.
However, as the pandemic advanced, the Romanian Constitutional Court (hereby "the RCC") analysed and came forward declaring a number of measures unconstitutional. The application of the aforementioned fines after the increase in quantum was illegal. Firstly, the Constitution explicitly prohibits the restrictions of human rights to be established through emergency ordinances, which invalidated the entire act, but secondly and more specifically, the article which imposed them did not meet the foreseeability condition which a human right infringement must meet. The provision was vague and gave the authorities discretionary power to decide which acts are worthy of a sanction, without giving the citizens the possibility to acknowledge which behaviour falls under the scope of the article. Another intervention by the RCC declared some of the mandatory quarantine and hospitalisation-related provisions unconstitutional due to the fact that they were incomplete and lacked clarity, while also highlighting the lack of material competence of the Ministry of Health to fill in the gaps where the legislator omitted to properly legislate.
Right now Romania is facing a second wave of infections after the relaxation of restrictions and the replacement of the state of emergency with a state of alert. The numbers are steadily growing every day and have almost tripled since what we considered to be the peak back in April (523 cases). Hopefully, the authorities will pay more attention to the way they implement restrictions, since the number of daily new cases (1000+) may warrant yet another state of emergency.
Regarding Sweden, their approach to the Coronavirus pandemic has made headlines and is still the topic of heated debates. Unlike the vast majority of countries, in Europe and across the world, Sweden has imposed no lockdown and their strategy is primarily based on individual responsibility and non-mandatory recommendations. They kept most of their society open and did not prevent cross-border movement. However, the Swedish government banned gatherings of over 50 people and imposed some limitations on public transport and domestic traveling.
The Swedish Constitution has a very strict approach regarding limitations on the freedom of movement. It actually prohibits the imposition of a state of emergency during peacetime, which makes it impossible for the government to impose a nation-wide quarantine, even if the government would seek that, which is still not the case. In April, a provisional amendment to the Communicable Diseases Act was passed, which extended the power of the government to take COVID-related measures only, such as closing schools and restaurants. Meanwhile, the Parliament reserves the power to revoke any measure taken pursuant to this amendment. They did in fact close schools, but not primary schools, to avoid healthcare workers being forced to stay home with their children, therefore avoiding the possible strain which that would have caused on the healthcare system.
What is extremely interesting regarding Sweden is the high level of compliance with the recommendations to avoid traveling and practice social distancing. Some popular tourist destinations reported a drop of over 90% of tourists during the holidays. However, Sweden's number of deaths is getting close to 6000, while Norway registered only around 200, making it one of the highest death rates in Europe, given the fact that this is a country of only 10 million people. But the daily number of infections and critical cases have been dropping these past few weeks. There are voices that argue that all this loss of life could have been avoided and I find it hard to disagree with them, given the minimal number of deaths the neighbouring countries have reported.
This material was published in Lawyr.it Vol. 6, September 2020, available only online.