Constitutional Court to Evaluate the Constitutionality of Measures Introduced in the Fight Against COVID19

Regarding the recent order of the Ministry of Health, which implies further restrictions on the freedom of movement of citizens, including the prohibition of assembly in private apartments, and the dilemmas regarding the legal basis for such measures in a situation where no state of emergency is declared, NGOs Action for Human Rights (HRA) and Institute Alternative (IA) urge the Constitutional Court to get involved in monitoring the implementation of constitutionality and legality in Montenegro, and call Minister of Health to ensure that his measures are more precise and better explained.

On 30.03.2020. Minister of Health issued an order restricting the movement of citizens by introducing a measure prohibiting citizens to leave their homes (on weekdays from 19pm to 5am, and from Saturday starting at 1pm to Monday at 5am), which is colloquially called ”curfew”. In addition to this measure, the prohibition of the gathering of persons who are not members of the joint family household in the same housing facilities is also introduced.

The first measure raises dilemmas as whether such restriction on freedom of movement in the entire territory of the state requires a prior state of emergency, while the second measure, besides the same concern, raises questions of its interpretation and application.

Is it forbidden for people living together to stay in the apartment, although they are not members of the family household registered at that location? What about people who rented an apartment, who moved out, and who have been living together since recently? What if there is an urgent need to care for the elderly who are not living in the same household? How will this order be enforced, is the police now allowed to enter private apartments without court permission? The order does not answer any of these questions. The HRA and IA consider this measure to be neither precise nor sufficiently reasoned, thus creating space for divergent interpretations and arbitrary application, which does not provide legal certainty at all.

All measures are based on Article 55 of the Law on the Protection of the Population from Infectious Diseases, which also allows restrictions of movement. To be precise, in item 4, this Law prescribes “prohibition of gathering of the population indoors and outdoors”, but not in the private apartments. It is also true that item 9 of this Law allows the Minister, at the suggestion of the Institute of Public Health, to order “other measures on the basis of epidemiological indications”. The question is to what extent the Minister of Health can order such measures without declaring a state of emergency and we expect the Constitutional Court to answer that question. We call the Constitutional Court to actively apply its jurisdiction under Article 149, paragraph 3 of the Constitution and to monitor the implementation of constitutionality and legality in this situation, and to inform not only the Parliament but also all interested public about their conclusions.

There are also concerns on what basis the National Coordinating Body for Infectious Diseases acts, which initiates and supervises the adoption and implementation of temporary measures. It is true that all the temporary measures were adopted by the Ministry of Health at the proposal of the Institute of Public Health, which is in accordance with the Law on the Protection of the Population from Infectious Diseases. However, it raises the question of the legal basis of establishing the National Coordination Body for Infectious Diseases, as it does not correspond to the description of the coordinating body in the Law on Protection of Populations from Infectious Diseases or the Law on Protection and Rescue. That is why today we have requested the Government of Montenegro to announce the decision on the establishment of the National Coordination Body.

Lastly, the HRA and IA warn that declaring a state of emergency must be the last measure used as the state of emergency provides additional restrictions on many human rights, such as the right to freedom of expression, the right to quiet enjoyment of property, the right to personal liberty, the right to privacy and family life, while the measures prescribed by Infectious Diseases Protection Law only refer to measures of restriction of freedom of movement and assembly.

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