March 31, 2020 — The Croatian government’s response to the coronavirus outbreak includes several violations of constitutional rights, according to Judge Andrej Abramović, who sits on the nation’s top court, according to Jutarnji List.
The judge claims the National Crisis Directorate did not have the legal right to limit citizens’ movement, forcing them to stay place in their legal residences. The Law on the Civil Protection System, as well as its amendment adopted by Parliament on March 18, did not give such authority to the National Directorate, he argues.
Abramović presented his arguments in “Constitutionality in the Age of Virus,” on iusinfo.hr.
Measures to combat the spread of coronaviruses are necessary but should deployed using existing procedures and laws in the Croatian constitution, the judge writes. An amendment to the Civil Protection System Act cannot delegate to the Civil Protection Directorate the powers of all government bodies because it means the suspension of democracy, the de facto dictatorship.
Abramović argues that the purpose of his text is not to polemicize the measures that are being taken but “to warn who is taking them,” arguing bypassing the constitution could cost “those values that are even more important than human lives in a democratic society.”
Abramovic, in the published text, also argues against the way the island of Muter was put into quarantine. The decision was made on March 25 by the Civil Protection Staff of Šibenik-Knin County.
“Physical barriers were put on the access roads. Like during the war,” the judge writes, warning that the decision is illegal on several levels.
According to the Law on the Protection of the People from Infectious Diseases, quarantine, according to the judge, can only be forcibly accommodated individuals, not entire areas. In addition, the quarantine can be determined only by the Minister of Health. Also, those forcibly placed in quarantine are due compensation, he adds.
“None of the above,” Abramović points out, “is the case here. If necessary, [the measures] must first be provided for by law and then introduced in the manner prescribed by law. This is how residents are at the mercy of activism of some kind of directorate.”
The Constitutional Court judge also discusses the way in which the authorities determine the measure of self-isolation defined by the Law on Infectious Diseases Treatment as “isolation and treatment in the apartment”.
It is quite questionable to the judge whether one’s constitutional rights can be restricted when it is beyond doubt that there is a test that confirms or denies infection.
“Detaining people in their own homes without testing puts them in a precarious position: neither healthy nor sick, they are stigmatized to the extent of being threatened by most.”
By problematizing the way in which the concrete measures were enacted, Abramović seeks to draw attention to the essential constitutional issues raised by the COVID-19 pandemic and the measures taken by the authorities to suppress it.
In his article, he raises doubts that the ruling majority in Parliament deliberately avoids applying constitutional and legal norms, in order to allow itself to manage the crisis by means of laws passed by a simple instead of a two-thirds majority.
He analyzes the maneuver that the governing have resorted to in order to avoid the automatic activation of Article 17 of the Constitution relating to emergency situations, whose activation of all decisions affecting constitutional human rights would have to be approved by the Parliament by a two-thirds majority, as long as that legislative body can meet.
Abramovic clarifies the amendments to the Civil Protection System Act that was passed by Parliament on March 18, introducing the concept of “occurrence of special circumstances” even though the description of “special circumstances” is identical in substance to the state of “catastrophe” that the law already contains. “Why did the government not declare the disaster foreseen by law?”
Abramovic suspects that by this maneuver, the government sought to avoid the obligation to seek a two-thirds endorsement of the parliament for measures that encroach on constitutional human rights.
Abramović also chastised his fellow constitutional judges. “The Constitutional Court systematically, using lack of an explicit constitutional norm, refuses to participate in interpreting the Constitution in the a time of crisis, insists on deciding post-festum, when the eventual determination of the disproportionality of the measures taken will no longer mean anything to anyone.”
The judge says that as a layman he does not know, nor does he dare to predict, what the consequences of such treatment will be to combat the pandemic. But the consequences will be bad in relation to guaranteed human rights – he is quite sure of that.
“There is no such necessity that justifies acting beyond the laws and the Constitution because both the Constitution and the laws regulate the state of emergency,” he wrote. “In the long run, the damage to democracy is greater than the damage caused by any virus. “
There is no doubt for this constitutional judge that Croatia is in a state of emergency as defined in Article 17 of the Constitution. “Where will you find a greater state of emergency than the global pandemic, the cessation of human and commodity circulation, quarantine and isolation of all kinds and every step of the way?”
Abramovic points out that it is frighteningly widespread that Parliament is no longer acting in the event of a state of emergency. “This is a wrong assumption,” he explains. Article 1 of the constitution states that it does not act only if it cannot meet. “Such a false perspective that the Parliament is not functioning in a state of emergency offers the wrong answer: if the legislature is no longer Parliament, then it will be someone else, possibly also a body that manages the crisis on behalf of the Government. And then it is a coup.”
