Human rights and democracy in the covid-19 era
Sorina Pinzaru
January 18, 2021

In this short article, student guest contributor Sorina Pinzaru reflects on the declaration of a State of Emergency in the Republic of Moldova during the covid era, and the ramification same has had for human rights and freedoms of its people.

Being a state that has been cultivating democratic principles for relatively few years, the Republic of Moldova is still strongly influenced by the long soviet experience. Principles such as the rule of law, separation of power, fundamental rights and freedoms are weak and not always fully guaranteed. Especially during a state of emergency, the exceptional legal order may lead the way for systematic human rights violations and undermine democratic principles. On the grounds of this, states of emergency are critically important from a human rights perspective. In order to limit freedoms and fundamental rights, constitutional and international provisions must be respected during a state of emergency.

For the first time in its history, the Republic of Moldova declared a state of emergency to deal with the pandemic. Although the Moldovan Constitution allows for a state of emergency, it does not define in detail what constitutes an emergency or regulates questions related to competence, limits, or controls. Accordingly, an organic law regulates all such aspects.

On March 17, 2020, the  Moldovan Parliament adopted Law no.54 to amend Law no. 212/2004 on the regime of the state of emergency, siege and war.  Article 20 of the law on the regime of the State of Emergency, Siege and War, which provides for the measures applicable during the state of emergency was supplemented by a new letter k). It allowed the "application of other necessary measures".  A similar provision – exercise other necessary attributions-  was introduced in articles 22 (attributions of the Commission for Exceptional Situations of the Republic of Moldova), 24 (attributions of the Civil Protection Service and Exceptional Situations) and 25 (attributions of the Ministry of Interior). Furthermore, the part "adopt, amend or abrogate organic laws and electoral legislation" of article 4, para. 2, was cancelled.^[1] In other words, organic laws and electoral legislation could be adopted, amended or abrogated during a state of emergency.  The amending law entered into force only after its publication in the Official Gazette, on March 18, 2020. On the same day, March 17, a Parliament Decision no. 55 was issued, declaring the state of emergency with an immediate effect.^[2] When the amending law of the state of emergency regulation was modified, the state of emergency was already in force.

At point 12 of article 2 of the Decision regarding the power attributions of the Commission for Exceptional Situations, the expression "application of other necessary measures" was proposed again to prevent, mitigate and eliminate the consequences of the coronavirus pandemic (COVID-19).

A group of MPs addressed the Constitutional Court of the Republic of Moldova with a petition to check on the constitutionality of the amending provisions on the State of Emergency, Siege and War and point 12 of Decision no. 55.^[3] The petitioners claimed that adopting the contested provisions of Law no.54 and Decision no.55 on March 17, 2020, the Parliament of the Republic of Moldova defied the following fundamental constitutional principles and the expressed norms of the Supreme Law:

• Art. 23 of the Constitution – The right of every person to know his duties;
• Art. 54 of the Constitution – Restriction of the exercise of individual rights and freedoms.

The inclusion in Articles 20, 22, 24 and 25 of Law 212/2004 of expressions such as "application of other necessary measures or "exercise other necessary attributions defied the principle of predictability and accessibility of the Law provided in art. 23 of the Constitution. In order to meet the condition of predictability, the law must be sufficiently detailed so that a subject of law can reasonably understand the content of the law and be predictable in terms of its consequences.^[4] Not only laws must be made known to the public, but the subject of law should reasonably expect the rule may be changed. It is practically infeasible to analyse the predictability of the amending provisions- "application of other necessary measures" or "exercise other necessary attributions"- as they thereof do not provide the necessary clarity about how and which rights and freedoms may be restricted. The provisions offer imprecise and generic power to the authorities. These may trigger harsh side effects.

The lack of a precise legal rule to determine exactly what measures might be applied, and the spectrum of the powers of the authorities, open the possibility of potential abuses by the competent authorities. The regulatory framework in such a sensitive period should be carried out in a transparent, predictable, and unobtrusive manner, to remove, as far as possible, the eventuality of any arbitrary situation or the abuse of those called to apply the provisions. However, this is impossible, because the subject of law does know what to expect from the authorities, due to the imperfection related to accuracy, clarity, predictability and necessity.

The notion of a state of emergency established in Article 1 defines as a set of measures with a political, economic, social character. Once established, these measures should be expressly provided by law, precise and predictable. Only in these conditions will be observed art.54 of the Constitution, which expressly establishes that rights and freedoms can be restricted only in the cases provided by law. However, by adopting Law no. 54 and the Decision no. 55, the Parliament admitted a norm by which the fundamental human rights and freedoms may be restricted by measures that are not provided by law.

According to Article 5 of Law no. 212 on the regime of the State of Emergency, Siege and War, during a state of emergency, may be restricted the exercise of individual rights or freedoms of citizens under art. 54 of the Constitution. The restrictions provided for in paragraph (1) should be in accordance with the obligations arising from international treaties on fundamental human rights to which the Republic of Moldova is a party.

Restriction of human rights and freedoms is an exception regulated by the fundamental law, which gives the legislators leverage to act in certain critical situations, being able to impose limits, in situations expressly provided for by the law, on guaranteeing certain fundamental rights. Reference should be made to the Universal Declaration of Human Rights, namely Article 29 para. (2). In order to restrict individual rights, the provision shows the necessity of an expressed regulation, considering first of all the compliance with the principles of accessibility, clarity and predictability. The law within the meaning of this provision must provide exhaustive and precise perspectives on the rights and freedoms to be restricted.

The European Convention on Human Rights enshrines the possibility of the restriction of rights in several circumstances: in the case of the freedom of thought, conscience and religion. ECHR offers the same textual approach in the case of freedom of expression, the rights to respect for private and family life, as well as in the case of freedom of movement. It is emphasised the obligation of the state for providing the restriction of rights by law. In order to build a legislative framework designed to intervene promptly in the elucidation of exceptional situations, the legislative text should expressly provide for the rights and freedoms to be restricted.

The provisions of art. 4 paras. (1), art. 5 para. (2), art. 12 para. (3), arts. 18-19, art. 21, art. 22 para. (2) of the International Covenant on Civil and Political Rights, lays down the manner of restricting certain rights. In the sense of this international norm, it is imperative to regulate the restriction by law but also to have specific reasoning.

In the context of the petition submitted to the Constitutional Court, the expressions used by the legislators in the text of the amending law: "application of other necessary measures" or "exercise other required tasks" do not offer the subject of law an expressed guarantee on the respect of rights and freedoms. In a state governed by the rule of law, the legal norm must always be interpreted prioritising the freedom over authority. This way of interpretation is natural since the text is aimed at guaranteeing the fundamental rights and freedoms. Where a term broadening the authority's powers is used, the term must always be interpreted stricto sensu. In this context, expressed and specific provisions on the restriction of rights are necessary.

Law should guarantee the principles of predictability and accessibility. In the European Court of Human Rights' jurisdiction it is important to ensure these two principles and to establish the conditions for a sufficient precision to regulate the conduct and foresee the consequences.

The ECtHR recalls that a "law", within the meaning of Article 10, section 2 of the Convention, is a rule formulated with sufficient precision allowing citizens to decide their conduct and foreseeing, reasonably, depending on the circumstances of the case, the consequences that might result from a particular fact.^[5] On the contrary, the expressions introduced do not provide the possibility to anticipate certain events, requests or prohibitions from the authorities and does not offer the possibility to decide about the conduct not yet covered by the legal norms.

Also, the activation of article 15 could be interpreted as a protection measure in favour of the state for not being accused at the European Court of Human Rights, it is a premise for Human Rights violations.

Having examined the request, the Moldovan Constitutional Court claimed that the authors of the petition were limited to a simple statement which criticised the provisions that would be likely to cause serious harm to human rights and fundamental freedoms. The Court considered that the arguments must be brought regarding the intensity and possible damages. Moreover, arguments supporting the imminent and irreparable negative consequences of the risk were needed. The Court considered the risk being abstract and a solid motivation was necessary in order to suspend the notified prohibitions under the State of Emergency. The mere invocation of the risk did not represent a sufficient and convincing motivation.  And the Court did not take into consideration any international obligation to which the Republic of Moldova must conform in order to constitutionally restrict the fundamental rights. Therefore, the Constitutional Court rejected the request, retaining it unmotivated, and did not consider the international obligations that must be respected.

Starting with May 17, 2020, the state of emergency has been continuing only in public health. It was prolonged for several times with the maintenance of most of the bans approved during the state of emergency.^[6]

The organizational effort of the authorities was appreciable even if the efficiency in combating the spread of COVID-19 infection proved to be unsatisfactory. It suffered from the involvement of the political factor to the detriment of the professional one in the process of adopting and implementing measures to prevent and combat the spread of COVID-19 infection. The discussion and adoption of decisions on multiple platforms, with the participation of representatives of the country's top leadership, was followed by the formalization of those decisions by the competent institutions. This has considerably diminished the share of the voice of medical professionals in the process of making final decisions.

The Commission for Exceptional Situations and the Extraordinary National Commission of Public Health did not have a clear and transparent decision-making mechanism. Consequently, several adverse effects emerged with a negative impact on human rights including the reduction to 48 hours of the term for contesting the administrative sanctions, not being guaranteed the rights to defence; a restricted term up to 24 hours to contest the provisions of the CSE without any possibility of rescheduling.^[7] Moreover, the effectiveness of deterrents for those who violated the restrictions imposed by the authorities during emergencies was undermined by the lack of adequate legal provisions for the application of individualized punishments, which were initially exaggerated and used arbitrarily to later be declared unconstitutional.^[8] There has been an attempt to pass a law rapidly involving a loan agreement  with Russia which could have involved fraudulent schemes against citizens' interests. The law however was declared unconstitutional.^[9]

The Moldovan state has been challenged by the pandemic crisis: not only  because of the limited financial resources but especially because of the rule of law weakness which cannot guarantee the respect of human rights. Not having lived under a fully democratic regime for many decades is an important factor which explains the difficulty and the slowness that the country tries to overcome.



^[1] Article 4, para. 2 of the Law no. 212/2004 on regime of the state of emergency, siege and war not amended: "During the state of emergency, siege or war, established throughout the country, it is not allowed to amend the Constitution, adopt, amend or repeal organic laws and electoral legislation , as well as conduct elections of central and local public authorities and republican and local referendums" available at: https://www.legis.md/cautare/getResults?doc_id=27022&lang=ro#.

^[2] Parliament Decision no.55 available at: https://www.legis.md/cautare/getResults?doc_id=120817&lang=ro .

^[3] Also art.2, point 12 , of the Decision no.55 provided for "exercise other necessary measures".

^[4] Case of Rotaru v. Romania, Application no. 28341/95, ECtHR Judgment of 04.05.2000.

^[5] Case of Amihalachioaie v. Moldova, Application no. 60115/00 para. 25, ECtHR Judgment of 20.04.2004.

^[6] https://cancelaria.gov.md/sites/default/files/hotarirea_cnesp_nr.35_27.11.2020.pdf.

^[7] http://ombudsman.md/despre/stiri-covid-19/.

^[8] http://www.constcourt.md/libview.php?l=ro&idc=7&id=1884&t=/Media/Noutati/Cuantumul-minim-de-450-unitati-conventionale-al-amenzii-aplicate-persoanei-fizice-pentru-nerespectarea-masurilor-de-profilaxie-prevenire-sisau-combatere-a-bolilor-epidemice-daca-acest-fapt-a-pus-in-pericol-sanatatea-publica-neconstitutional-sesizarile-nr-61a2020-nr-62a2020-i-nr-67g20120.

^[9] http://www.constcourt.md/libview.php?l=ro&idc=7&id=1836&t=/Media/Noutati/Acordul-intre-Guvernul-Republicii-Moldova-i-Guvernul-Federatiei-Ruse-privind-acordarea-Guvernului-Republicii-Moldova-a-unui-imprumut-financiar-de-stat-neconstitutional.