COVID-19 ribojimai - Konstitucinių asmens teisių institutas

Expert opinions on COVID-19 restrictions

On the legality of limiting the right to work

The Lithuanian Constitutional Rights' Institute, as a non-governmental organization for the protection of human rights, in response to the Government's resolutions limiting the labor rights of individuals, states that:

Articles 48 and 52 of the Constitution provide that every person can freely choose work and business, and in case of unemployment, the state guarantees the right of citizens to receive social support. Meanwhile, Article 53 of the Constitution also stipulates that the state takes care of people's health and guarantees medical aid and services when a person falls ill. The above-mentioned articles of the Constitution do not provide any special grounds for restrictions on human rights, and according to Article 144 of the Constitution, these rights cannot be further restricted even during a state of emergency.

2. Based on these provisions of the Constitution, the Law on Infectious Diseases and the Labor Code established the obligation for employees to have their health checked prophylactically at a health care facility, but did not foresee the obligation for them to take antigen or other tests and provide their results to the employer. In addition, the aforementioned laws do not provide (and according to the Constitution could not provide) the possibility for the employer to suspend the employee from work or otherwise limit the employee's rights due to the failure to perform antigen tests or antibody tests.

3. According to Article 7 of the Law on Infectious Diseases and 1999 May 7 Government resolution no. 544, family doctors and specialists of personal health care institutions determine the clinical signs of infectious diseases, prescribe tests that confirm or refute the diagnosis, and diagnose infectious diseases according to their competence. For this reason, the "suspicion that a person has an infectious disease" named in this law and whether he has the grades provided for by the law, can only be established by a doctor or a specialist of a health care institution, and not presumed by an employer or another person, based on the results of some test. In other words, the a priori consideration of all state residents as "suspects" of having an infectious disease ("presumption of morbidity") does not comply not only with the laws, but, above all, with the constitutional principles of legal clarity, reasonableness and proportionality. a priori laikymas „įtariamais“, kad serga užkreičiamąja liga („sergamumo prezumpcija“), neatitinka ne tik įstatymų, bet, visų pirma, konstitucinių teisinio aiškumo, protingumo ir proporcingumo principų.

4. At the same time, it should be stated that the concept of a Covid-19 "disease case" (currently regulated by the decision of the Head of Operations), which is not provided for in the Communicable Diseases Act, should not be equated with the Covid-19 disease itself and should not be used as a basis for the human right to work and restrictions on other human rights.

5. For this reason, it can be stated that in 2021 July 14 Government Resolution No. 559, the scope according to which workers in certain areas must be tested weekly for infectious diseases, regardless of whether they have symptoms of that disease, contradicts Article 39 of the Constitution of the Republic of Lithuania. 2, Article 48 1, Art. 53 1 d. and the provisions of the aforementioned laws and the constitutional principles of legal clarity, reasonableness and proportionality.

Dėl ekstremaliosios situacijos metu taikomų konstitucinių teisių ir laisvių ribojimo teisėtumo

A state of emergency has been declared in Lithuania for almost a year and a half. It was published by the Government in 2020. February 26 by resolution no. 152 "On declaring a state-level emergency". nutarimu Nr. 152 „Dėl valstybės lygio ekstremaliosios situacijos paskelbimo”.

During this period, the Government in the territory of Lithuania restricted, and in certain periods completely prohibited the following human rights and freedoms directly enshrined in the Constitution of the Republic of Lithuania:

1) the right to health, when the treatment of some diseases is restricted for an unspecified time, the availability of health care services is reduced (Article 53 of the Constitution),

2) the right to work and business, limiting economic activity or introducing the obligation to be tested or vaccinated (Article 48 of the Constitution),

3) the right to education, science, non-formal education, limiting opportunities to participate in education and training activities (Article 41 of the Constitution),

4) freedom of movement within the country or when going abroad (Article 32 of the Constitution),

5) freedom of assembly, organizing meetings, events, protests (Article 36 of the Constitution).

Since the announcement of the state of emergency, the Government has changed the scope of constitutional restrictions on human rights and freedoms 18 times, but has not provided a maximum term for how long such restrictions can be continued.

The experience of managing the COVID-19 epidemic, which continues for the second year, shows that the biggest challenge for the Lithuanian legal system remains the application of special measures introduced on the basis of an emergency or quarantine, which are related to restrictions on human rights, despite the fact that the majority of the population and public information tools accept the restrictions introduced in principle supported and did not question their legitimacy and extent. This is related not only to the question of whether constitutional human rights can be restricted solely by the decisions of the executive without the approval of the Seimas, but also to the extent and intensity of these restrictions.

The Constitution provides for only one special legal regime - the state of emergency, which allows limiting constitutional human rights and freedoms (Article 144 of the Constitution). A state of emergency can only be introduced by the Seimas or the President (with the approval of the Prime Minister), not the Government.

Restrictions on human rights applied during a state of emergency are the strictest human rights restriction regime provided for in the Constitution, which cannot be exceeded during an emergency or quarantine. We note that no state of emergency has been introduced in Lithuania since the adoption of the Constitution.

However, from 2020 the continuing intensity of restrictions on constitutional human rights in February (sometimes escalating to a total ban) is equivalent to restrictions that are possible only after the introduction of a state of emergency.

The Constitution does not provide for the possibility of the state of emergency lasting longer than six months, however, Article 5 of the Law on the State of Emergency. 2 d. it is envisaged that "the state of emergency may be introduced more than once", i.e. i.e. in order to extend this deadline, the Seimas (or the President of the Republic) must formally adopt a new decision on the introduction of a state of emergency. Nepaprastosios padėties įstatymo 5 str. 2 d. numatoma, kad „nepaprastoji padėtis gali būti įvesta ne vieną kartą“, t. y. norint pratęsti šį terminą, formaliai Seimas (ar Respublikos Prezidentas) turi priimti naują sprendimą dėl nepaprastosios padėties įvedimo.

According to Article 21 of the current Law on the Prevention and Control of Human Infectious Diseases. 3, the Government (at the recommendation of the Minister of Health) may provide for a quarantine duration of no longer than three months, allowing it to be extended for no more than one month. Consequently, the quarantine cannot last longer than four months. Therefore, as in the case of a state of emergency, if it is necessary to continue the quarantine for a longer period, the Government should make a decision on its introduction again after four months. Žmogaus užkrečiamųjų ligų profilaktikos ir kontrolės įstatymo According to Article 21 of the current Law on the Prevention and Control of Human Infectious Diseases. 3, the Government (at the recommendation of the Minister of Health) may provide for a quarantine duration of no longer than three months, allowing it to be extended for no more than one month. Consequently, the quarantine cannot last longer than four months. Therefore, as in the case of a state of emergency, if it is necessary to continue the quarantine for a longer period, the Government should make a decision on its introduction again after four months.

Government in 2020 February 26 declared a state-level state of emergency citing one specific basis - "due to the threat of the spread of the new coronavirus (COVID-19)" although the Law on Civil Protection does not provide for such a legal basis for declaring an emergency. The Law on Civil Protection provides that an emergency situation can only be introduced due to a natural, technical, ecological and social event, and not to control an epidemic of a contagious disease.

Therefore, the Government's resolution announcing the emergency situation, which has been ongoing for almost a year and a half due to the threat of the spread of the COVID-19 disease, is illegal, because it was adopted without indicating a proper legal basis.

At the same time, we draw your attention to the fact that the valid Civil Protection Law does not provide for the duration of the emergency situation, and it has been introduced in Lithuania for almost a year and a half. Civilinės saugos įstatymas nenumato ekstremaliosios situacijos įvedimo trukmės termino, o ji Lietuvoje įvesta jau beveik pusantrų metų.

It is obvious that the Law on Civil Protection, to the extent that it allows a wide-ranging limitation of constitutional human rights, without providing for their time duration, contradicts the Constitution.

We understand the Government's duty to apply certain measures in order to control epidemics of infectious diseases, but we note that in the rule of law, when applying the aforementioned measures, it is necessary to provide for their temporary nature in the laws, and when applying restrictions on constitutional human rights, they must be applied legally and proportionately.

The Constitution allows for the temporary restriction of some constitutional human rights in a state of emergency or other special cases, but it does not allow a complete ban on their realization even during a state of emergency, so it is necessary to abandon the practice of completely prohibiting the above-mentioned constitutional human rights and freedoms

For this reason, it is claimed that such an order would not contradict the Constitution if the laws provided that temporary restrictions on constitutional human rights applied during emergency situations and quarantine should be sanctioned by the Seimas, and between Seimas sessions by the President of the Republic, i.e. comply with the procedure provided for in Article 144 of the Constitution.

In addition, it is necessary to note that during the two years of the management of the COVID-19 epidemic in Lithuania, a number of constitutional restrictions on human rights or their complete prohibition were applied (e.g. the right to private life, the right to assembly and association, the right to strike), which are not provided for in any in a legal act adopted by the legislative or executive authorities, and some of them are established not in laws, but in by-laws, which does not correspond to the rule of law and other constitutional principles.