The President of the Republic announced today the decision to declare a state of emergency, due to the danger of the coronavirus spreading. Along with the decision, he announced certain measures which would be introduced within the state of emergency. These measures entail closing of schools, kindergartens, faculites, as well as sports activities. A sentence of up to 3 years of prison was also announced for those who violate the decision on isolation, as well as the mandatory quarantine for Serbian citizens coming from abroad. We will know more details on these measures once the Decree of the Government of the Republic of Serbia, prescribing them, is published. The last time Serbia was in a state of emergency was in 2003 when Prime Minister Zoran Djindjic was assassinated.
What is a state of emergency?
The state of emergency is regulated by the Constitution as a special circumstance in which “the survival of the state or its citizens is threatened by a public danger”. The Law on Defence which regulates in more detail what this danger signifies, states:
State of emergency is the state of public danger in which the survival of the country and its citizens is endangered, and comes as a consequence of military or non-military challenges, risks and threats to security. It should be borne in mind that non-military challenges, risks and threats to security are manifested in the form of: terrorism, organized crime, corruption, natural disasters, technical-technological accidents and other accidents and threats. The Law on Disaster Risk Reduction and Emergency Management explicitly stipulates that a pandemic is considered to be a natural disaster.
What does the introduction of state of emergency mean?
The Constitution of Serbia allows that, when the state of emergency is declared, goverment can adopt measure that limit certain human and minority rights. Which rights would be restricted we can not know in advance, since everything will depend on the circumstances of the situation that caused the state of emergency to be declared. What we do know is that there are rights for which restriction are not possible in times of State of Emergency.
Rights that cannot be restricted are:
- Dignity and free development of individuals
- Right to life
- Inviolability of physical and mental integrity
- Prohibition of slavery, servitude and forced labour
- Treatment of persons deprived of liberty
- Right to a fair trial
- Legal certainty in criminal law
- Right to legal person
- Right to citizenship
- Freedom of thought, conscience and religion
- Conscientious objection
- Freedom of expressing national affiliation
- Prohibition of inciting racial, ethnic and religious hatred
- Right to enter into marriage and equality of spouses
- Freedom to procreate
- Rights of the child
- Prohibition of forced assimilation
All other rights may be restricted during the state of emergency. These include: Right to freedom and security, Special Rights in Case of Arrest and Detention without Decision of the Court, Detention, Duration of detention, Right to equal protection of rights and legal remedy, Freedom of movement, Inviolability of home, Confidentiality of letters and other means of communication, Protection of personal data, Freedom of thought and expression, Freedom of the media, Right to information, Freedom of assembly, Freedom of association and other rights guaranteed by the Constitution of Serbia, which are not explicitly excluded from the possibility of restriction.
Who can declare a State of Emergency?
The State of Emergency may be declared by the National Assembly of the Republic of Serbia. When the National Assembly is unable to convene, the decision to declare a State of Emergency is taken jointly by the President of the Republic, the President of the National Assembly and the Prime Minister. When the National Assembly is unable to convene, measures which limit human and minority rights can be prescribed by a decree of the Government, with the co-signature of the President of the Republic.
The National Assembly, if it has not adopted the decision on the introduction of the state of emergency, must confirm this decision within 48 hours of its adoption or whenever it is able to convene. The same applies to measures limiting individual human rights.
How long can a state of emergency last?
A state of emergency can last up to 90 days, and can be extended for another 90 days by a decision of the majority of the total number of MPs (absolute majority). The Constitution does not offer an answer to the question of what happens if, within 90 days, the National Assembly was unable to convene and wheter the state of emergency can be extended for another 90 days by a decision of other state bodies.
What is the difference between the state of emergency and and emergency situation?
The state of emergency is a constitutional category, while the emergency situation is regulated by law, not by the Constitution. Emergency situation is “a state declared by the competent authorities when the risks and threats or consequences for the population, environmen or cultural heritage are of such extent and intensity that their occurrence or consequences could not be prevented or eliminated through regular actions of the competent bodies and services, due to which it is necessary to use special measures, forces and means with enhanced mode of operation to mitigate or eliminate them.“
The Law on Disaster Risk Reduction and Emergency Management explicitly prescribes the principle of respect of equality and human rights.
As we can see, although quite similar, the two institutes have significantly different consequences.
The institute of state of emergency has an explicit constitutional license to restrict human and minority rights, and the institute of emergency situation prescribes measures that can be taken under special circumstances (dangers), such as a ban on gatherings of larger number of people and public manifestations in areas of immediate risk. This also represents a constitutionally prescribed restriction on human rights, but to a much lesser extent than the restriction contained in the institute of state of emergency.
The Constitution itself prescribes what rights can be restricted (without declaring the the state of emergency) when public health is threatened:
- Freedom of entrepreneurship
- Freedom of thought, conscience and religion
- Freedom of thought and expression
- Freedom of assembly
These restrictions are allowed if necessary and proportionate with the measures taken, or if the protection of the population could not be achieved trough other, less repressive means.
Do we need a state of emergency?
Restrictions of human rights are allowed under the Constitution of Serbia, if such restrictions are explicitly permitted by the Constitution and for the purpose allowed by the Constitution, to the extent necessary to meet the constitutional purpose of restriction in a democratic society and without encroaching upon the substance of guaranteed rights.
Basic human rights principles command that restrictions should not be resorted to if the result can be achieved by less restrictive measures. This also means that it is always better to choose a lesser limitation than a greater one, if it can achieve the same goal. In the case of Serbia’s fight against the Coronavirus, lighter measures, such as the introduction of an emergency situation, have not even been attempted, so the answer to this question remains open. We remain hopefull that the state has learned something from previous experience with a state of emergency when, upon completion of a state of emergency, multimillion-dollar sums were paid for unjustified deprivation of liberty and human rights abuses, since human rights, though temporarily restricted, cannot be completely abolished.