Human Rights in the Times of Emergency
by Kálmán Petőcz, independent political and human rights analyst.
In the last decade, the Slovakian human rights discourse has almost entirely been dominated by themes of so-called culture or value wars. “Human rights? That’s something about ‘gender ideology,’ unjustified LGBTI claims, abortion, sexual education, preferential treatment of Roma and migrants.” This might be the typical reaction of a Slovakian politician, a media personality, or the “average” voter.
Recent events illustrate the problem. In February 2018, the brutal murder of the young investigative journalist Ján Kuciak and his fiancée caused outrage in the public. Public anger intensified when the investigations revealed, despite attempts at obstruction by influential circles, evidence of organized corruption at the top levels of the state.
By the second half of 2019, Slovakian society was tired of the futile efforts to get rid of a discredited political elite. However, a renewed wave of anti-corruption sentiments eventually brought Igor Matovič, leader of the “Ordinary People” political movement, to power in the 2020 elections. Many believed that Mr. Matovič was capable of removing Robert Fico’s ruling SMER party from power.
Few voters, however, considered fighting organized corruption or repairing the rule of law to be human rights issues. They were unable to perceive how these matters were closely related to the enforcement of fundamental civic and political rights, which are cornerstones of liberal democracy. On the contrary, as a leading Slovakian security think-tank, GLOBSEC, pointed out in its analysis, during the election campaign, liberalism, liberal democracy and NGOs, especially human rights activists and defenders, were severely attacked not only by “anti-system” forces in social media but also by some “mainstream” politicians.
The question of human rights has become central again with the coronavirus pandemic. As the elections occurred just before the pandemic erupted in Central Europe, both the outgoing and incoming governments have had to deal with a difficult situation. Slovakia was not well prepared to handle a major crisis, however, thanks to some objective factors—Slovakia is not at the crossroads of the main traffic hubs in Europe—and thanks to the early response of both the old and new governments, Slovakia has been able to manage the pandemic.
Of course, the regulations of the Government aimed at curbing the spread of the disease interfere severely with many fundamental rights. Slovakian society has not had to confront such a large set of restrictions on fundamental rights and freedoms in many years, and now realizes how much power the state has to deal with such emergencies.
The Slovakian Constitution does enable the state to restrict some human rights in the public interest by law or on the basis of a law. This possibility is also included in the European Convention on Human Rights. The state’s power to put restrictions on human rights in times of emergency is further elaborated in the Constitutional Law on the Security of the State.
The problematic aspect of all the adopted measures lies in the question whether and to what extent they can withstand the test of the fundamental principles of the rule of law– that is, whether the adopted measures are legal, fully justified, proportionate, necessary and non-discriminative. Measures confronting the crisis have been adopted mainly by three authorities: the Parliament, the Government (Administration) and the Public Health Authority (Chief Hygienist Office).
Most measures influencing people’s everyday life are based on orders issued by the Chief Hygienist. It is, however, disputed whether the Public Health Authority, which is just an agency of the Ministry of Health, is legally authorized to adopt measures restricting human rights. According to the Constitution, human rights can be restricted or limited only by law or on the basis of law. The authorities argue that the formula “on the basis of law” in this case refers to the Law on Public Health and the Civil Protection Law, on the basis of which the Chief Hygienist is authorized to issue orders. However, those laws do not explicitly presume that the Chief Hygienist is authorized to restrict and limit human rights.
A similar problem was addressed at the Prague Municipal Court on 23 April 2020. The Court annulled four measures of the Czech Ministry of Health, which prohibited free movement of people within the state and banned retail sales and services in the country. The Court maintained that the measures were not legal because they were not adopted according to the Crisis Management Law, which would suppose collective action of the Government.
Back in Slovakia, the practice of isolating Slovakian citizens returning from abroad in mandatory quarantine, at guarded faraway places, had no proper legal basis, nor did the practice of turning back travelers entering at the borders. It turned out that, in the first weeks of the emergency, these measures were executed by the Police Corps not upon a formal governmental decree, but rather on the basis of an informal agreement of the members of the Central Crisis Management Staff. However, under the “Law on Managing the State in Emergency Situations,” this body bears no executive power, it has only coordination tasks and its role consists in preparing decisions for the Government.
These deficiencies might be explained by the hectic situation of the power change and ongoing public health crisis. However, many measures seem to be disproportionate or discriminative in their effects, or even contrary to their declared aim of protecting peoples’ lives and health. Citizens returning from abroad have been placed in state quarantine sharing common rooms and hygienic facilities with up to four or more people, prior to testing for the presence of the virus. There have been cases of secondary infections in the quarantine facilities. The same happened in Roma communities put under curfew.
According to another order issued by the Public Health Authority, senior persons over 65 years of age were banned from entering shops and retail places, except for two hours in the morning during workdays. This was subsequently rectified upon an interpellation of the Ombudsperson. Commuting has been allowed in the frontier area with Hungary and Austria, but it was restricted to a distance of 30 km from the next open official border crossing. In the case of crossing to and from Hungary, this seems quite discriminative because, owing to the Danube river, there aren’t many border crossings. Moreover, the measure only allows for labor commuting and not visiting family or relatives. Still, nobody explained why the limit of 30 km was chosen, since there is no legal basis for that. Slovakia defines the “border area” in two laws which set the area to be 40 km and 50 km from the border respectively.
Furthermore, schools are now closed. Online education was recommended by the Ministry of Education, as in many other European countries. However, this puts additional burden on families with no access to modern technologies, and effectively denies the right to quality education.
Most measures have been adopted on the recommendations of the Prime Minister’s advisory group of experts. This group of experts, complemented by some administrators, has been labelled the “Permanent Crisis Management Staff.” However, the statutes of this organ were adopted by the Government only after it had been in operation for more than a month. The Prime Minister very often emphasizes that the experts of this “Permanent Staff” are the ones who decide on issues. This claim, of course, does not hold from a legal point of view. Only the government has the authority and the responsibility to issue legal orders.
Epidemiologists are in majority in the expert panel, which may have been one of the reasons why the measures seemed to restrict the freedom of enterprise. Although all available evidence shows that the spread of the virus via retail facilities is very marginal, or almost non-existent under strict hygiene conditions, and the country has kept the spread of the disease in check with no exponential growth of positive cases within the country, the speed of easing restrictions has been much slower. In this light, the crisis management structures and bodies should also consult with economists, lawyers and psychologists.
While the cases discussed represent serious interference with a number of fundamental rights, they do not constitute a straight violation. However, there are cases where the crisis is being used to bolster ideological agendas. For example, many health facilities have refused to carry out abortions claiming that the procedure is unnecessary during the corona emergency; abortions in Slovakia are legal up to the end of the first trimester of the pregnancy, and cannot objectively be postponed. It turns out that this happened with the approval of the Minister of Health.
It would be really very unfortunate if, after the crisis, Slovakian society sinks back into a public discourse which views human rights through the lens of “culture wars.” On the whole, the new Slovakian government is dealing with the corona crisis satisfactorily. Nevertheless, the government, especially Prime Minister Matovič, should realize that right goals ought to be pursued by right means. Strict legality, legal certainty and respect of fundamental rights should be observed under all circumstances. Otherwise the democratic rule of law will further deteriorate.
Kálmán Petőcz is an independent political and human rights analyst, runs civic education and human rights projects for the youth. Former Ambassador of Slovakia at the UN in Geneva. Earlier held various high level civil service positions in the reformist Slovak governments. In the 90s active in the liberal Hungarian Civic Party. Worked also with the Forum Minority Research Institute. Formerly external lecturer at Comenius University, Nitra University and Bratislava International School of Liberal Arts. Vice-Chairman of the Council on Human Rights, a permanent advisory body to the Government.
This piece was a contribution to the Democracy & the Pandemic Mini-Conference of the Democracy Seminar held on May 20-21, 2020.