PANDEMIC

 

PANDEMIC

Communication

Part I

 

Lecturer Madalina VIZITEU

at the Faculty of Legal Sciences and Administrative Sciences Bucharest – USH

conf. univ. Dr. Radu STANCU

at the Faculty of Legal Sciences and Administrative Sciences Bucharest – USH

associate scientific researcher at the “Andrei Rădulescu” Institute of Legal Research

of the Romanian Academy

 

 

This paper was developed and presented at the scientific communications session of the Faculty of Legal Sciences and Administrative Sciences Bucharest of the “Spiru Haret” University with the theme “E-Governance and E-Justice in the Spaceof Freedom, Security and Justice of the European Union” .

Our communication is dedicated to a field of special scientific, theoretical and practical interest, respectively the exceptional situation that humanity is currently facing.

The considerations of the present, as we announced during the session, do not have as object of analysis, strictly medical measures, type of medication, virus existence, therapeutic measures used and organization of the medical system, instead, we will analyze their legal competences.

We will focus on the legal aspects related to strict necessity, legality, legitimacy, observance of the general principles of law, enshrined in international treaties, conventionality, constitutionality, observance of the principles of proportionality, subsidiarity and formal law, in enacting and applying legal norms related to this exceptional situation. both at European and, why not, international level, enshrined in the pandemic term COVID 19.

We will have to legally analyze what the pandemic is, the conditions of its declaration and its existence.

Then there are the medical measures ordered by the bodies of the European executive (the Commission) and the central national administration as well as in a decentralized and decentralized plan (ministries, specialized directorates and specially created bodies).

In the second part of our approach, we will rule on the compliance of the regulations of the state of emergency and alert in constitutional terms and the law and legality of the application of the provisions of international treaties, laws, ordinances by decisions of the Government and other competent institutions. in the field.

Our study will continue in another communication, the second part, in addition, both for the situation so far, but also to analyze the evolutions of special regulations.

Regarding the notion of “pandemic”, it should be noted that, in the common sense, according to the explanatory dictionaries, it designates an epidemic that extends over a very large territory, comprising several countries, continents [9DEX’09 (2009)]. In another dictionary is added the condition that the disease affects almost the entire population of a country, a region and finally, another explanatory dictionary states that the disease must include, in a relatively short time, the entire population of a region, country.

In the medical dictionary, the explanations for the pandemic show that it is an epidemic that extends over large areas and that in the last 250 years there have been 10 large epidemics or “pandemics” and another 20 smaller ones.

The term “pan” means “everything”, and the term “half” means population, inhabitants. So the compound word pandemic means the entire population of the affected area. Such a state must be somehow enshrined on the basis of scientific, exhaustive and certain data and then be recognized by a normative act, with the whole trichotomous structure of the legal norms enacted by the competent authorities.

On March 11, 2020, the World Health Organization announced that the coronavirus pandemic is officially a “pandemic” with at least 114 countries affected and that it has killed more than 4,000 people. One year ago, the World Health Organization announced that, according to statistics, there were over 118 million contaminations and more than 2.6 million deaths.

In Romania, President Klaus Iohannis, on March 16, signed the decree on the establishment of the state of emergency, for 30 days, an extended state for another 30 days, starting with April 14, 2020.

On May 15, 2021, the Law on establishing the state of alert on the territory of Romania was promulgated, for 30 days.

On February 25, 2020, a series of measures were taken within the National Emergency Committee to combat and spread the disease.

Regarding the legitimacy, legality and legality of the normative and practical response to the existing situation, some considerations are required, which must not be strictly limited to the regularity of the enacted norms, their conventionality and constitutionality and the observance of general principles of law.

In our national law, there is a constitutional status, procedure and powers of legislation. We appreciate that, up to a certain level down, these specific requirements of the rule of law have been complied with, in the specific sense of Continental law.

Carré de Malberg considers that the rule of law is situated between the police state, in which the administrative authority can apply any decision at its discretion.[1] than after the law, the reducing function is leading to the execution of the law.

In the doctrine, a distinction was made, regarding the rule of law, between four models:

  1. liberal;
  2. material;
  3. formal;
  4. [2]

According to the Constitution, Romania is, declaratively, “a rule of law, democratic and social, in which human dignity, citizens’ rights and freedoms, free development of human personality, justice and political pluralism are supreme values, in the spirit of democratic traditions and ideals of the Romanian people. Revolution of December 1989, and are guaranteed.

(4) The state is organized according to the principle of separation and balance of powers – legislative, executive and judicial – within the constitutional democracy.

(5) In Romania, the observance of the Constitution, of its supremacy and of the laws is obligatory. ”

Also according to the Constitution (art. 61), the Parliament is the only legislative authority. That is why art. 53 of the Constitution enshrines the condition that the exercise of certain rights or freedoms can be restricted only by law.

So the only legitimate body in this regard is the Parliament and of course the delegated legislator. Only in this way can we speak of the legitimacy of the restriction of rights. Article 73 para. 3 lit. g of the Constitution stipulates that the state of emergency is regulated by organic law, but it is not established constitutionally what exactly regarding the state of emergency, the situations in which the limits of competence are established and the level of impairment of fundamental freedoms. It is a blank regulation and does not correspond to the general principles of law. The same applies to the constitutional provision according to which the President of Romania establishes the state of emergency in the entire country or in some administrative-territorial units. It is not specified in what situations, conditions and limits, thus removing those acts of establishment from the authority of constitutional review. In what situation does it establish, within what limits and for what period. The Constitution does not provide that it establishes such a state under the law. It remains for the President to arbitrate if it is governed by any law. It has an unlimited constitutional competence and can invoke at any time the unconstitutionality of a law that limits it.

Also, the limits of the application in time of exceptional and alert states have not been established constitutionally. Legalism does not replace legitimacy. It is an aspect that can be appreciated as related to legalism, respectively to the appearance of a regulation under the law, but it is not so, in question being concerned with the fundamental rights of human life, left to the arbitrary freedom of the power elements of the state.

Emergency Ordinance no. 1/1999 Regarding the state of siege and the state of emergency, white rules also abound, although fundamental human rights are concerned. Art. 32 amended by Law no. 453/2004 (Official Gazette no. 1052 / 12.11.2004) provides that during the state of siege and emergency are prohibited:

  1. a) limitation of the right to life, except in cases where the death is the result of lawful acts of war;
  2. b) torture and inhuman or degrading treatment or punishment;
  3. c) conviction for unforeseen offenses as such, in accordance with national or international law;
  4. d) restricting free access to justice.

On the contrary, all other fundamental rights may be affected. There is no constitutional basis for such a serious violation of human rights. Moreover, at art. 4 of the same ordinance expressly provides that the exercise of fundamental rights and freedoms may be restricted, except for those from art. 32, cited above, ie the right to life, the prohibition of torture and inhuman or degrading treatment or punishment, the conviction for crimes not provided for by national or international law and the restriction of free access to justice.

The provision on conviction for unforeseen offenses as such is totally unclear. The legitimate question is whether any court would legally do such a thing or could issue such a court decision.

Then, also the norm in white is the provision from article 7 par. 1 of the Emergency Ordinance no. 1/1999 on the state of siege and the state of emergency, as amended, according to which at the establishment of the state of siege or emergency, some responsibilities of the specialized central public administration and local public administration fall within the competence of military and other public authorities , provided for in the decree establishing the state of siege or emergency. The law does not expressly establish which duties and bodies. Generic leaves the competence of the founding decree. What should we understand from the list of competent authorities, which seems imperative and not exemplary? That primarily the competence belongs to the military authorities. from here, again, naturally, other problems are born to be clarified. It is well known that the police forces are demilitarized in Romania. Can they simply be considered military authorities? What is the status of the police? Does it attract the jurisdiction of military courts? Commander, civilian is military authority?

There are a lot of aspects that need to be analyzed, but the economics of this scientific approach do not allow a comprehensive treatment, and it cannot even be an exhaustive one.

However, we cannot but dwell on one of the established prohibitions that could not be established, but which was violated, you have an aspect established by the Constitutional Court of Romania, namely access to justice.

The Constitutional Court ruled that the provisions of art. 72 para. 2 of Law 55/2020 on some measures to prevent and combat the effects of the COVID-19 pandemic with reference to art. 42 para. (3) of the Government Emergency Ordinance no. 21/2004 regarding the National Emergency Situations Management System, as well as the legislative solution from art. 72 para. (1) of Law no. 55/2020, according to which the provisions of this law are supplemented with the common law regulations applicable in the matter regarding the settlement of actions filed against Government decisions establishing, prolonging or terminating the state of alert, as well as orders and instructions establishing the application of measures during the state of alert, are unconstitutional.[3]

The author of the exception of unconstitutionality, lawyer, claims that “the provisions of Law no. 55/2020 contravene the constitutional provisions of art. 21, 52, 53 and art. 115 para. (6). In this sense, it shows that the administrative acts issued under the criticized law, with a limited applicability of 30 days, cannot be challenged in court in a short time, which would ensure the effectiveness of the control. He recalls that “the judicial authority has theoretically the right to carry out a control of legality and opportunity of a typical normative act, but this control must be carried out effectively and efficiently, not only formally, at the level of possibility. To the extent that there are no effective and transparent legal means of controlling such a decision, the article of the law is unconstitutional ”.

The author of the exception also claims that the law is unconstitutional by introducing and using the notion of “prolongation” of the state of alert. Thus, it shows that, by its nature, the state of alert is necessarily something temporary, exceptional, which cannot be transformed into something general, given that the restriction of fundamental human rights cannot be perpetuated. Consequently, maintaining the state of alert as long as the virus exists in the community is clearly unconstitutional, as it can lead to an unlimited extension, by sine die, of the exercise of certain rights and freedoms, which undermines their very essence and existence.

Regarding the amendments and completions that the Government Emergency Ordinance no. 192/2020 brought them to Law no. 55/2020, the author of the exception claims that they cannot affect fundamental rights and freedoms. In support of this critique, he points out that “mankind has lived since antiquity with various viruses, which appear or disappear. There has never been a time in human history without certain viruses that could cause various diseases. Therefore, for this reason, humanity should live in a permanent state of alert, in which fundamental rights are always restricted, under the false pretext of personal protection, health “.

In motivating the admission of the exception of unconstitutionality, the party that was admitted, with the Constitutional found that the provisions of art. 72 of Law 55/2020 does not ensure effective access to justice because the persons interested in contesting a Government decision in the administrative contentious court in case of declaration or extension of the alert state do not really have the possibility to obtain a court decision within applicability of this judgment in order to effectively remove the illegal effects and their consequences on their rights.[4]

We note here that the provisions challenged in the constitutional dispute have been removed on the grounds of lack of effectiveness and efficiency. To this criticism we subscribe and formulate a concurrent, doctrinal opinion, in the sense that here is a classic case of legalism, apparently there is the proclaimed law, being issued the normative act and conditions of validity and legitimacy but being only an appearance of law. The norm is in force, it is issued by the legislature, so it is valid and legitimate but it is ineffective.

Although the Constitutional Court rejected the exception of unconstitutionality of the provisions of art. 3 para. 2 and of art. 4 para. 1 of Law no. 55/2020, in fact invalidated them, because it ruled that they can be circumscribed to the provisions of art. 72 of Law no. 55/2020, insofar as they do not ensure effective access to justice.[5]

The author of the exception also formulated criticisms regarding the provisions of Law no. 55/2020, which regulates the competence of the Government to issue decisions, ordering the extension of the alert state, in the criticism formulated claiming that through these extensions it is possible to perpetuate the restriction of the exercise of some fundamental rights.

With regard to these criticisms, the Constitutional Court has an ambiguous position. On the one hand, it states that the provisions of art. 3 para. 2 and of art. 4 para. 1 of Law no. 55/2020[6]they do not allow a permanent state of alert but only provide for its maintenance as long as the objective conditions are maintained that justify the establishment of restrictive measures of fundamental rights and freedoms in compliance with the constitutional provisions of art. 53[7], and on the other hand, makes them dependent on the provisions found unconstitutional of art. 72 of Law no. 55/2020 regarding which it states that it does not ensure full access to justice. The Constitutional Court also points out that these findings only emphasize the extended effects with multiple implications of the vice of unconstitutionality that affects the provisions of 72 of Law no. 55/2020 and the need for prompt legislative intervention to effectively and efficiently ensure the right of access to justice.

The author of the exception, lawyer Kapcza Mikolt Krisztina and his colleague lawyer Marin Gabriel, in a request to the Cluj Court of Appeal, admitted in part, in contradiction with the Romanian Government, regarding the provisions of Government Decision no. 531 of May 10, 2021 on the extension of the alert status on the Romanian territory starting with May 13, 2021, as well as the establishment of the measures applied during it to prevent and combat the effects of the COVID-19 pandemic, raises another very interesting issue regarding the extension the effects of a temporary normative act out of force. The authors of the request showed that art. 5 para. 2 of the Government Decision no. 531/2021 extends the state of emergency established by Government Decision no. 394 of May 2020, decision issued for a limited period of time. The authors appreciate that coming out of force,

The action in question also contains extensive criticisms of:

  • failure to meet the conditions for prolonging the alert status;
  • there is no predictability, stability and certainty regarding the restriction of certain rights, as it is obvious that the population is never and will not be protected from the danger of any disease and that under this pretext a state of permanent alert cannot be maintained;
  • the state of alert cannot be based on an existing state 10-11 months ago, but it must be related to the concrete situation at the moment of its disposition, otherwise it constitutes an excess of power;
  • in the management of the Covid – 19 pandemic, neither urgency, nor exceptionality, nor uncontrolled evolution can be invoked, and maintaining this state is equivalent to distorting its purpose;
  • the extension of the state of emergency, based on the same reason, blatantly contravenes art. 53 of the Constitution, is an excess of power because it is neither necessary nor proportionate in relation to the concrete situation at the moment and it was not even established. The maintenance of the alert state through extensions is done through monthly extensions without any study, a seriously documented report related to the concrete situation from the moment of the extension and arguments from a year ago are always taken over;
  • there is no evidence regarding the usefulness, necessity and proportionality of these restrictions which neither in Romania nor worldwide have produced any effect.

These claims, somewhere, are in line with those invoked in this study in the first part regarding the necessity, proportionality, legitimacy, effectiveness, efficiency, validity.

The Cluj Court of Appeal admitted in the action, partially annulling GD no. 531/2021 only regarding the conditioning of participation in public and private events by the existence of vaccination certificates or the existence of a negative Covid test.

An interesting decision was also handed down by the Spanish Supreme Court, which upheld the decision of the Superior Court of Andalusia to ban vaccination passports in the region of Andalusia, arguing that the measure is disproportionate to the epidemiological situation.

Regarding the substantiation of the measures to combat the pandemic, I would point out the statements of prof. Univ. Dr. Valentin Iftenie, forensic physician at the National Institute of Forensic Medicine who argues that the decision of the World Health Organization not to perform an autopsy on the deaths of Covid is inappropriate, even absurd because the autopsy is inappropriate, even absurd because autopsies are those that could make a vital contribution to understanding how the disease manifests itself and to finding more effective treatment solutions. At the same time, Prof. Iftenie appreciates that under this cover the statistics were distorted, because many people who died of cancer, diabetes, myocardial infarction or stroke were killed by Covid.[8]Our legal point of view is that the decision of the World Health Organization could not directly produce legal effects in our national legal order and that the disposition of such a measure by national normative acts could not be done without solid documentation based on the conclusions of forensic doctors. has Law no. 24/2000.

Decision of the Constitutional Court no. 458/2020 by which the provisions of art. 2 para. 2 of Law no. 9/2006 on health care reform and art. 8 of GEO no. 11/2020 stated that “the quarantine measure ordered in Romania in the context of the epidemic caused by COVID-19 infection could be qualified, in certain situations, as a real deprivation of liberty, as well as as an implicit restriction of the exercise of fundamental rights provided of art. 25 and art. 26 of the Constitution. ”

Such measures to limit fundamental human rights have not been taken so far through the normative framework, in peacetime.

It is also necessary to take into account that fundamental rights have been affected by emergency ordinances, art. 115 para. 6 of the Constitution prohibiting emergency ordinances having as object the rights, freedoms and duties provided by the Constitution.

Also regarding the conditions mentioned in the beginning of this approach regarding the principles and conditions of legislation, respectively legitimacy, effectiveness, efficiency, proportionality, we show that a series of decisions of the National Committee for Emergency Situations were issued, in violation of them. (20 decisions in the first three months of 2021). Related to this aspect, the People’s Advocate addressed to this committee a request to communicate the reasons of law and fact for which the condition of publication in the Official Gazette was not respected. The People’s Advocate also asked to be communicated the reasons why two of them, no. 13/2021 and no. 14/2021 were not published on the websites gov.ro and stirioficiel.ro either.

Here a complex problem arose, notified with a request in the administrative contentious procedure, the Bucharest Court of Appeal, had to rule on the normative-legal nature of the decisions of the National Council for Emergency Situations as well as on the nullity or non-existence these unpublished decisions.[9]

Regarding the legal nature of the decisions of the National Council for Emergency Situations, the problem was to frame these acts in the sources of law and to establish their legal regime. The National Council for Emergency Situations is an unlisted body among normative issuers, being a sui generis body.

The problem to be decided was whether the issuer of the decisions of the National Council for Emergency Situations no. 13/2021 and 14/2021, which were not published in the Official Gazette of Romania, is part of the specialized public administration, as the central body of the specialized public administration.

We appreciate that the solution given by this decision is a Solomonic compromise. In order to be able to rule on the subject-matter of the application, the Court ruled that, given its nature, it was a body composed of representatives of several ministries and institutions, consisting of ministers or secretaries of state appointed by them and heads of central public institutions or persons. with the right to decide. This normative issuer (National Council for Emergency Situations) is not expressly mentioned in any of the general categories of public authorities in Title III of the Constitution.

This is where our reservation on the legal nature of the National Council for Emergency Situations comes from. To admit that in this way a body of the central public administration was born, opens a dangerous, uncensored and unlimited possibility of illegitimate establishment of public authorities, being violated the principles of legitimacy and legality, being put in front of a situation of pure legalism with the perspective of future erosion of the rule of law and usurpation in law.

We dare to address an issue that has not been the subject of analysis so far. Respectively, if the acts of the central or local public administration can also be normative administrative acts or only individual administrative acts. It is true that Law no. 24/2000 regarding the norms of legislative technique for the elaboration of normative acts, at art. 4 para. 1 stipulates that the normative acts are elaborated according to their hierarchy, their category and the public authority competent to adopt them, and at art. 4 para. 3 that the normative acts given in the execution of the laws, ordinances or decisions of the Government are issued within the limits and according to the norms ordering them, but the Constitution does not provide as administrative normative acts only the decisions of the Government and those to be issued in organizing the execution of laws. We believe that the Constitution is being violated,

The second issue that the administrative court had to answer was to decide whether the non-publication of the two decisions of the National Council for Emergency Situations causes them to be annulled or must be declared non-existent.

We share the solution given by the High Court of Cassation and Justice[10] in the sense that they are non-existent, but with the reservation expressed above that they cannot even be considered normative administrative acts.

They are non-existent because they are not published in the Official Gazette of Romania, the Constitution linking the moment of production of normative acts to their publication (art. 108 paragraph 4 of the Romanian Constitution).

We stop here, the economy of the scientific approach that we undertake having limits, following in the second part and possibly other parts to continue the analysis, the legal framework being very complex and unique, an example being the military ordinances as normative acts issued during peace.

 

 

Bibliography

 

  1. Sofia Popescu, General Theory of Law, Lumina Lex Publishing House, 2000, page 341
  2. DECISION no. 392 of June 8, 2021 regarding the exception of unconstitutionality of the provisions of art. 3 para. (2), of art. 4 para. (1) the second sentence and of art. 72 para. (1) of Law no. 55/2020 on some measures to prevent and combat the effects of the COVID-19 pandemic, of art. 72 para. (2) of the same law, with reference to art. 42 para. (3) of the Government Emergency Ordinance no. 21/2004 on the National Emergency Management System, as well as the provisions of the Government Emergency Ordinance no. 192/2020 for the amendment and completion of Law no. 55/2020 on some measures to prevent and combat the effects of the COVID-19 pandemic, as well as to amend letter a) in art. 7 of Law no. 81/2018 on the regulation of telework activity, M.Of. no. 688 of July 12, 2021
  3. 3 para. 2 Law no. 55/2020 “The alert status may be extended whenever the analysis of risk factors indicates the need to maintain the amplified response for an additional period of time, which may not exceed 30 days.”
  4. 53 The Constitution of Romania „(1) The exercise of certain rights or freedoms may be restricted only by law and only if required, as the case may be, for: the defense of national security, order, health or public morality, rights and of citizens’ freedoms; conducting criminal investigation; prevention of the consequences of a natural calamity, of a disaster or of a particularly serious disaster.

(2) Restriction may be ordered only if it is necessary in a democratic society. The measure must be proportionate to the situation which gave rise to it, be applied in a non-discriminatory manner and without prejudice to the existence of a right or freedom. ”

  1. românia-unită.ro / 2021/04/01
  2. Civil sentence no. 1076 of July 1, 2021, pronounced in file no. 4331/2021
  3. Decision of the High Court of Cassation and Justice no. 3883/20 July 2021, in file no. 4331/2/2021

[1] Sofia Popescu, General Theory of Law, Lumina Lex Publishing House, 2000, page 341

[2] Sofia Popescu, op.cit., Page 342

[3]DECISION no. 392 of June 8, 2021 regarding the exception of unconstitutionality of the provisions of art. 3 para. (2), of art. 4 para. (1) the second sentence and of art. 72 para. (1) of Law no. 55/2020 on some measures to prevent and combat the effects of the COVID-19 pandemic, of art. 72 para. (2) of the same law, with reference to art. 42 para. (3) of the Government Emergency Ordinance no. 21/2004 on the National Emergency Management System, as well as the provisions of the Government Emergency Ordinance no. 192/2020 for the amendment and completion of Law no. 55/2020 on some measures to prevent and combat the effects of the COVID-19 pandemic, as well as to amend letter a) in art. 7 of Law no. 81/2018 on the regulation of telework activity, M.Of. no. 688 of July 12, 2021

[4]DECISION no. 392 of June 8, 2021, M.Of. no. 688 of July 12, 2021, par. 56 and 57

[5]DECISION no. 392 of June 8, 2021, M.Of. no. 688 of July 12, 2021, par. 58

[6]art. 3 para. 2 Law no. 55/2020 “The alert status may be extended whenever the analysis of risk factors indicates the need to maintain the amplified response for an additional period of time, which may not exceed 30 days.”

art. 4 para. 1 of Law no. 55/2020 „The state of alert is established by the Government by decision, at the proposal of the Minister of Internal Affairs, and cannot exceed 30 days. The state of alert may be extended, for good reasons, for a maximum of 30 days, by a decision of the Government, at the proposal of the Minister of Internal Affairs. ”

[7]Art. 53 The Constitution of Romania „(1) The exercise of certain rights or freedoms may be restricted only by law and only if required, as the case may be, for: the defense of national security, order, health or public morality, rights and of citizens’ freedoms; conducting criminal investigation; prevention of the consequences of a natural calamity, of a disaster or of a particularly serious disaster.

(2) Restriction may be ordered only if it is necessary in a democratic society. The measure must be proportionate to the situation which gave rise to it, be applied in a non-discriminatory manner and without prejudice to the existence of a right or freedom. ”

[8] românia-unită.ro / 2021/04/01

[9]Civil sentence no. 1076 of July 1, 2021, pronounced in file no. 4331/2021

[10]Decision of the High Court of Cassation and Justice no. 3883/20 July 2021, in file no. 4331/2/2021

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