Human Rights Action (HRA) and Institute Alternative (IA) filed today an initiative to the Constitutional Court challenging the constitutionality of the order of the Minister of Health to ban political gatherings and restriction of religious assembly from 26 June 2020, and proposed suspension of those measures.
By the order for taking temporary measures to prevent and suppress the transmission of the coronavirus on 26.06.2020. Minister of health banned political gatherings in open public space, while religious assemblies were limited to open spaces within religious facilities.
HRA and IA believe that the order introduces excessive, disproportionate restrictions on Freedom of Assembly for the protection of health and that they are discriminatory. We believe that the goal of public health care could be achieved with a milder measure, such as assemblies with the obligatory use of masks and maintaining physical distance. We pointed out that the fact that indoor gatherings, which carry a higher risk of infection, are not banned, as well as the fact that non-political assemblies, celebrations, weddings and other events are not banned, indicates the discriminatory character of the order.
The initiative also pointed out that the Constitution of Montenegro in Article 52 allows only a temporary restriction, and not the abolition of rights to peaceful assembly, as introduced in in relation to political gatherings. During a state of war or emergency, right to freedom of assembly may, according to Article 25, be restricted “to the extent necessary”, but such a state has not been declared.
Prohibition did not achieve the necessary balance between the protection of public health and the right to freedom of assembly, which is the foundation of democracy. We pointed out that, for example, Constitutional Court of Germany concluded on 15 April 2020, that the right to freedom of assembly and peaceful protests, must be secured during pandemic with the application of restrictions such as masks and maintaining physical distance. On that occasion, the court pointed out that the authorities’ concern regarding the protection of health could not serve as a justification to completely limit the right to peaceful assembly.
By that order, in a discriminatory way was restricted right to freedom of assembly, considering the fact that indoor gatherings, public transportation, non-political assemblies which carry a higher risk of infection are not banned.
Having in mind previous practice of the Constitutional Court in examining the constitutionality of provisions during COVID-19 pandemic, which was either too slow or did not exist, we don’t expect the Constitutional Court to act in a timely manner this time as well. However, we believe that it is our obligation to endure in encouraging institutions to act as they should in a democratic state, in order to protect human rights from the arbitrariness of the authorities, in accordance with its responsibilities.
HRA and IA jointly implement the project ‘’Voice Your Rights! – Expanding Space for Free Assemblies’’, supported by European Union through the Instrument for Democracy and Human Rights, Program for Montenegro 2018. Content of this initiative is sole responsibility of IA and HRA and in no way reflect the views of European Union.
