B&H Constitutional Court once again declares COVID-19 measures unconstitutional, although toothlessly

Introduction

On 22 December 2020, the Constitutional Court of Bosnia and Herzegovina (“the Court”) declared unconstitutional two measures imposed in the efforts to suppress the COVID-19 epidemic, namely the mandatory use of face masks in the Canton of Sarajevo and the general restriction of movement in the Federation of Bosnia and Herzegovina (“Federation”). The Court found that the contested measures violated the right to private life and the freedom of movement under the Constitution of Bosnia and Herzegovina, the European Convention on Human Rights (“Convention”), and Protocol No. 4 to the Convention. However, it stopped short of quashing the contested measures and it only ordered the Parliament and the Government of the Federation “to take activities and bring their conduct in compliance” with human rights standards and to report to the Court about the compliance with this order. The decision introduces important considerations in the context of COVID-19 measures, although its reasoning is controversial.

The development comes with the Decision on Admissibility and Merits rendered by the Grand Chamber of the Court (consisted of six judges) in the joint constitutional appeal case no. AP-3683/20. Eight appellants challenged the Order of the Crisis Committee of the Ministry of Health of the Canton of Sarajevo of 12 October 2020 (“Cantonal Order”) and the Order of the Crisis Committee of the Ministry of Health of the Federation of 9 November 2020 (“Federal Order”).

Arguments before the Court

The Cantonal Order was challenged regarding the imposition of the mandatory use of face masks in open and closed spaces. The measure was said not to satisfy the requirement of lawfulness (that it was vague and unpredictable, lacked a proper legal basis, was arbitrary and disproportionate) but also not to be scientifically justified. The Cantonal Order was also challenged for not being published in an official gazette but online and in media. The imposition of the measure, according to the appeal, violated the prohibition of torture and inhuman or degrading treatment, the right to respect for private and family life, and the right to freedom of expression.

The Federal Order was challenged regarding the restriction of movement on the entire territory of the Federation between 23 and 5 o’clock. The appeals advanced a variety of arguments, including that the measure lacked a proper legal basis, that it was arbitrary, disproportionate, and unjustified. According to the challenge, the measure violated the freedom of movement and the prohibition of discrimination. In addition, the restriction of movement was said to impair the conduct of the scheduled local elections, for which reason a provisional measure setting aside the Federal Order was sought.

In response, state organs argued, among other things, that the contested measures had proper legal bases and were necessary, proportionate, and justified. They also maintained that Article 15 of the Convention entitles states to take measures derogating from their obligations under that Convention in the event of public emergency. State organs did not see an issue in the fact that an order was not published officially but only online and in media.

In the admissibility stage, the Court requalified the appealed violations

The Court first addressed the admissibility of the appeals. It noted that the Cantonal Order regarding the mandatory use of face masks was challenged as an alleged violation of Articles 3, 8, and 10 of the Convention (the prohibition of torture and inhuman or degrading treatment, the right to respect for private and family life, and the right to freedom of expression). Relying on the principle of iura novit curia, the Court considered that it was not bound by the legal qualification made in the appeal and that the contested measure should be assessed only against the right to respect for private and family life. The Court cited the 2014 decision of the European Court of Human Rights in S.A.S. v. France (notably, an excerpt from the part concerning the merits) for the proposition that the choice of personal appearance in public and private spaces, including clothing, related to the expression of personality and private life, and therefore was protected by Article 8 of the Convention. The Court thus effectively dismissed two out of three alleged violations without explaining why the challenged measure did not violate the prohibition of torture and inhuman or degrading treatment and the right to freedom of expression.

The Court also considered that the appeals addressed serious violations of constitutional and conventional rights, which made them admissible regardless of the procedural question of the exhaustion of remedies.

On the merits, the Court focused on the maintenance of the democratic order

Turning to the merits, the Court first considered that the mandatory use of face masks constituted an interference with the right to private life and that the restriction of movement constituted an interference with the freedom of movement. It also noted that Bosnia and Herzegovina has not notified the Secretary General of the Council of Europe about derogations from its conventional obligations relying on Article 15 of the Convention.

The Court then turned to the lawfulness of the contested restrictions. It noted that in emergency situations state organs had a wider margin of appreciation in the application of the law as the basis of restrictive measures. The Court failed to identify any specific legal basis relied upon by the authorities. It merely satisfied itself that the contested measures “were not without complete foundation in ‘law’”, acknowledging that such foundation was in very general legal provisions on the combat against infectious diseases. The invocation of the margin of appreciation doctrine in the context of assessing formal lawfulness is equally curious. Even if one accepts that the doctrine of margin of appreciation can be applied in this context, which is debatable, it cannot absolve the Court from the obligation to scrutinize the lawfulness of the challenged measures.

The Court fully deferred to the medical expertise regarding the scientific justification of the measures. However, it stressed that in any event the measures had to respect the principle of proportionality (meaning that a measure was resorted to after a thorough analysis, that no less restrictive measure capable of serving the same legitimate aim was available, and that the introduced measure must be put under constant review) and be appropriate in a democratic society.

The Court ultimately declared the measures unconstitutional because they contradicted the principles of the democratic order. It noted that in the event of mass restrictions of human rights by governmental bodies, the parliamentary oversight of the executive conduct is of utmost importance to prevent any possible abuse. According to the Court, the legal framework regarding the operation of crisis committees (bodies that passed the contested measures) was set too broadly and did not provide adequate control mechanisms involving the legislative and superior executive parts of the government. Consequently, the contested measures lacked important elements in order to comply with human rights guarantees. The Court concluded that the “(in)activity of the public government, and primarily of the Parliament [of the Federation]” did not respect the guarantees of the right to private life and the freedom of movement, because the interference with these rights did not satisfy the “democratic necessity test”. The Court therefore found that the measures violate the right to private life and the freedom of movement.

The reference to “democratic necessity test” appears only in the concluding sentence of this part of the decision. It can only be speculated that the Court assumed that the requirement of “democratic necessity” is per se unachievable in the absence of a continuous parliamentary review of the executive imposition of the measures. Although it previously found that the measures “were not without complete foundation in ‘law”, it found them unconstitutional because the Parliament failed to “clearly and timely establish a framework for the activity of the executive in its entirety” and “actively participate in the enactment and review of the compulsory measures”. The exact relationship of these considerations to the standards of lawfulness and democratic necessity is not entirely clear in the reasoning.

Even though it found the measures unconstitutional, the Court dismissed the request to set them aside, invoking the public health situation, the public interest in the protective measures, and possible negative consequences that setting aside might cause. It merely requested the legislative and executive branches of the government to take measures towards complying with human rights standards.

The decision sheds a different light on COVID-19 measures

This is another occasion in the Western Balkans in which a constitutional court has found a clash between COVID-19 related measures and human rights guarantees. Previously, in April 2020, the Constitutional Court of Bosnia and Herzegovina held that an age-specific restriction of movement violated the freedom of movement because it did not satisfy the proportionality requirement, but also refrained from quashing the measure. In July 2020, the Constitutional Court of Montenegro declared unconstitutional the publication of personal information of persons in self-isolation, as a disproportionate measure violating the right to respect for private and family life. In April 2020, the Constitutional Court of Kosovo declared the measures imposed by the government unconstitutional in relation to the freedoms of movement and assembly as well as the rights to privacy and private and family life, due to the lack of a legal basis. The latest decision of the Constitutional Court of Bosnia and Herzegovina is controversial for several reasons addressed above, but it also brings a significant novel value to the debate about the constitutionality of COVID-19-related human rights restrictions. It stresses the significance of a democratic process and thus sheds a different light on the imposition of otherwise legitimate measures. It remains to be seen to what extent governments will abide by this warning.

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