Perspectives | COVID-19

Constitutional Court decision shows State of Emergency is not required

And why it’s more important than ever to ensure the legal protection of human rights.

By - 01.04.2020

The political debate during the COVID-19 pandemic has brought human rights issues to the fore, not only in Kosovo, but almost all over the world. On Tuesday (March 31), the Constitutional Court of Kosovo announced its decision to declare governmental preventive measures restricting the freedom of movement and the freedom of assembly as unconstitutional.

Since the decision is not yet public, it is not possible to analyze the exact reasoning behind the Court’s decision. However, the announcement contains the main findings, which are sufficient to address a crucial question: Should Kosovo declare a State of Emergency and derogate from several human rights in order to impose preventative measures against the COVID-19 outbreak?

President Hashim Thaçi petitioned the Constitutional Court arguing that a declaration of a State of Emergency is imperative to limiting human rights in Kosovo. Thus, he argued that the (now acting) government’s decision to temporarily limit the freedom of assembly and the freedom of movement of citizens and private vehicles was unconstitutional and violated human rights.

In its announcement, the Constitutional Court clarified the distinction between “limitation” of human rights and “derogation” from human rights, siding with the arguments presented by the acting government. According to the Court, human rights can be “limited” without declaring a State of Emergency, provided that the limitation is foreseen by law and to the extent that is necessary to fulfill its purpose in an open and democratic society. 

The Assembly could pass a new law that would set forth preventative measures against COVID-19 without declaring a State of Emergency.

The Court held that “limitations” to human rights present a lighter intrusion to human rights, while “derogations” from human rights are a heavier intrusion to human rights, only permissible after declaring a State of Emergency. 

However, according to the Court, the limitations imposed by the government’s decision to restrict the freedom of assembly, the freedom of movement and the right to a private and family life, were not “foreseen by law” and were therefore inconsistent with Article 55 of the Constitution, which relates to conditions for limiting human rights. 

Nevertheless, the Constitutional Court took the unusual step of announcing that its decision will only enter into force on April 13, 2020, having in mind the circumstances of the COVID-19 pandemic, the recommendations of state health institutions and the potential damaging consequences to public health that would result from the immediate annulment of the acting government’s decision. 

Without a published decision, the reasons behind the court’s narrow legal interpretation of the criteria “limitation has to be foreseen by law” — in this case, the Law for Prevention and Fighting Against Infectious Diseases — remain uncertain. 

However, with its decision the Court made a clear statement: The Assembly could pass a new law that would set forth preventative measures against COVID-19 and would limit certain human rights, without declaring a State of Emergency. 

The other possibility provided by our Constitution, is for the Assembly to approve a decree by the president, declaring a State of Emergency and derogating from certain human rights. 

Derogation or limitation of human rights?

Kosovo has not yet signed the European Convention of Human Rights (ECHR), but applies it directly in its national legislation, along with a number of other international conventions which prevail in case of conflict with national laws, including the International Covenant on Civil and Political Rights (ICCPR). 

A number of states signatory to the ECHR, such as Albania, Georgia and Romania*, have declared a state of emergency and invoked their right to derogate from human rights. Whereas other states, such as Germany, Italy and Slovenia, have decided to restrict certain human rights, without derogating from them and without declaring a state of emergency. 

As mentioned, Kosovo’s Constitutional Court pointed out that a limitation of human rights is a lighter intrusion on human rights compared to derogation from human rights. As such, Kosovo should prioritize and examine all possibilities of imposing measures that limit human rights, before examining the option of declaring a State of Emergency and derogating from human rights.

“Normal measures or restrictions permitted by the Convention ... must be plainly inadequate before derogatory, emergency measures are permissible.”

Rik Daems, Council of Europe (March 24, 2020)

To put this in a wider context, last week, the President of the Parliamentary Assembly of the Council of Europe, Rik Daems, issued a statement urging states to abide by the ECHR when responding to the COVID-19 crisis. 

Daems underlined the Council’s Resolution 2209 (2018), on state of emergency proportionality issues concerning derogations from the ECHR. This states: “Normal measures or restrictions permitted by the Convention for the maintenance of public safety, health and order must be plainly inadequate before derogatory, emergency measures are permissible. 

Also, he called on states to constantly review the necessity of maintaining any state of emergency and any measures taken under it, and apply, at the expiration of every period, a presumption against extending the state of emergency.

In a General Comment on Article 4 of ICCPR, the UN Committee for Civil and Political Rights (CCPR) shares a very similar view when it comes to derogating from the rights enshrined in the ICCPR during a state of emergency. 

According to the Committee, in order for a derogation to be in compliance with ICCPR, states must not only justify that a situation constitutes a threat to the life of the nation, but they must also justify that all their measures derogating from the Covenant are strictly required by the emergency of the situation.

“In the opinion of the Committee, the possibility of restricting certain Covenant rights under the terms of, for instance, freedom of movement (art. 12) or freedom of assembly (art. 21) is generally sufficient during such situations and no derogation from the provisions in question would be justified by the exigencies of the situation.” 

Would declaring a State of Emergency better address the COVID-19 outbreak?

In Kosovo, the Constitution determines that a State of Emergency can be imposed when “there is a need for emergency defense measures” in cases of a “danger to public safety” — such as the COVID-19 emergency. 

During a State of Emergency, the Security Council of Kosovo exercises executive functions related to the State of Emergency. Under this state, the Council is chaired by the president of Kosovo (rather than the prime minister, who normally chairs it) and consists of: the prime minister; deputy prime minister(s); minister for the Kosovo Security Force; minister of foreign affairs; minister of internal affairs; minister of justice; minister of economy and finance; and the minister of returns and communities. 

In order for a State of Emergency to be put in place, the president issues a decree, which has to be approved by the Assembly, setting forth the nature of the threat and the limitations on rights and freedoms. These limitations are limited “to the extent necessary” under the relevant circumstances provided in the decree. 

The Court held that while the measures did not pass the test of “being foreseen by law,” they were otherwise proportionate and necessary.

The Office of the President has not yet published a draft of the decree for the declaration of the State of Emergency, and it is unclear what extraordinary measures it is proposing to impose for addressing the current public health emergency. Nonetheless, it is debatable what measures, other from the ones currently in force, would be better suited to address the situation. 

Despite declaring the government’s decision as unconstitutional, the Constitutional Court made a very clear statement in regard to the suitability of the measures during the current public health emergency when it decided to postpone the date of the entry into force of its decision. In other words, the Court held that while the measures did not pass the test of “being foreseen by law,” they were otherwise proportionate and necessary to deal with the COVID-19 crisis. 

Also, the measures were not contested per se by President Thaçi in his request to the Court. In fact, in his request for constitutional review of the Government’s decisions, Thaçi stated that the measures were “welcome” but unconstitutional. 

So, what other measures are explicitly available during a State of Emergency?

In contrast to the normal state, during a State of Emergency, the Kosovo Security Force can be mobilized to assist by the president, after consulting with the government and the Assembly. However, the Kosovo Security Force can be mobilized at times of peace as well, by order of the Commander of the Kosovo Security Force. 

In fact, the Kosovo Security Force has already provided support to the Ministry of Infrastructure and Environment, to safely transport Kosovo citizens arriving from abroad to the quarantine center, during the current public health emergency. 

The Security Force can be mobilized to provide further services without declaring a State of Emergency.

Apart from who orders the mobilization, the other difference between army mobilization in times of peace and during a State of Emergency is that during a State of Emergency the Kosovo Security Force has the authority to use state and private assets for the fulfillment of its constitutional and legal duties. 

However, it is questionable whether granting such authority is necessary in the current situation. At the time of publishing, Kosovo has had 1 death and 112 confirmed COVID-19 cases. In comparison to countries in the region, Kosovo has the lowest reported number of cases and has shown a relatively low rise in numbers of new cases. 

If the number of cases rises dramatically in Kosovo and hospital staff become overburdened, additional support to the health system from the Kosovo Security Force could include for instance: patient care, patient oversight, medical transport and helping with hospital logistics such as bed disinfection, kitchen work, laundry and cleaning. In Switzerland for example these services are being provided by the army. 

In Kosovo’s case, the Security Force can be mobilized to provide further services without declaring a State of Emergency. Consequently, there is no convincing argument to mobilize the Kosovo Security Force beyond the scope mentioned here. 

Human rights and the COVID-19 outbreak

The impact of state responses to the COVID-19 outbreak on human rights have already started to show. 

In their recent publications, Amnesty International  and Human Rights Watch have urged governments to ensure that international human rights law and standards are put at the center of all COVID-19 responses. AI and HRW stressed that governments should be particularly attentive of impacted rights such as: the right to health care and preventative care, the right to freedom of expression and access to information, the right to non-discrimination and the right to human dignity. 

Amnesty International has urged states to account for the impact of health system responses to people requiring care for non-COVID-19 conditions. It says that COVID-19 cases can put increased pressure on health systems, in turn adversely impacting people who need regular access to health care.

Kosovo has already witnessed an example of this disproportionate impact. Kosovo Police confirmed the death of a 19-year-old woman on March 28, allegedly due to not receiving medical treatment for her illness, after testing negative for coronavirus. 

Essential social services to domestic violence shelters have been diminished during the lockdown.

Also, AI and HRW reports assert that the COVID-19 outbreak has a gendered impact and affects women’s rights disproportionately. The overload of health systems and shortages of medical supply has a negative effect on reproductive health access such as access to pre- and post-natal care. 

HRW also emphasizes that there will likely be an increase in cases of domestic violence due to the lockdowns imposed. Recent media reports in Kosovo have revealed that essential social services to domestic violence shelters have been diminished during the lockdown.

Additionally, worldwide over 70% of health care workers are women and they are heavily exposed to COVID-19 through their work. 

These are only a few of the human rights issues that should be taken into account by Kosovo’s state institutions while preparing measures to address the current public health emergency. 

Declaring a State of Emergency does not present a better way of dealing with the COVID-19 outbreak in Kosovo. Instead, Kosovo state institutions should do their utmost to impose measures that pose a lighter intrusion to human rights and carefully consider the impacts of their response to COVID-19 on other human rights that they are obliged to fulfil and protect.

Feature image: Majlinda Hoxha / K2.0.

* Editor’s note: The originally published version of this article included France as a state that has declared a state of emergency and derogated from human rights. For clarity, France took these measures earlier, as a response to terrorist attacks. Even though France has imposed strict limitations on human rights during the COVID-19 emergency, it has not in fact derogated from the ECHR at this time.