Upon the outbreak of coronavirus or COVID-19, countries throughout the world, that is, their executive authorities, have exhibited different responses. All of them (or at least most of them) with an identical alleged objective – protection of human lives. Since we are firstly striving to comment on the situation in our country and only subsequently those in other countries, in this text I am going to provide a review of the response of the Republic of Croatia to the actual pandemic. Nevertheless, I am going to do it in a slightly different way compared with what we are used to at Liberal portal – not from an economic aspect, but primarily from the legal aspect, albeit certainly from the layman’s stance to the greatest extent possible.

We are currently witnessing the situation in which the state interferes with our fundamental rights and freedoms (that have been guaranteed by the Constitution, the law, bylaws and declarations, to name a few), under the guise of some type of protection provided by the state and care for the health of its citizens. I have to admit that I have not come across a legal act that is legally binding for the state in terms of taking care about the health of “its citizen”. When you fell off your bike as a young child, was it the state that offered you help or did you rely on your parents, grandparents…? Even at the time you still needed guaranteed healthcare. Nevertheless, I somehow have my doubts that it was provided to you by the state rather than by the members of your immediate family. Concerning serious injuries and diseases, help has been provided by physicians and other medical workers paid for the provision of their medical services.

Is it legal and legitimately possible from the legal aspect that in 2020 in the Republic of Croatia, during the period in which free market, democracy, economic, cultural and other rights and freedoms that have been guaranteed by the Constitution (at least on paper…), we have experienced something that used to be experienced in authoritarian, dictatorial states, such as bans on business operations, free movement, social gatherings and we even came up with the idea to track the citizens’ movements via their mobile devices? Where does it end? Is it possible that even the saying “Qui suo iure utitur, neminem laedit“ no longer applies or, in other words “He who exercises his legal rights harms no one”? Such as for example the right to work that has been guaranteed by the Constitution?

The answer is short and clear – it is possible. Let me explain how.
In fact, under the famous guise of human health protection, upon coronavirus outbreak the Government of the Republic of Croatia, as the executive authority, decided to pass an Amendment to the Law on Civil Protection System. An amendment is an additional text amending a specific law, which in this particular case is the Law on Civil Protection System. The government has neither declared a natural disaster, nor a disaster situation, but it decided to pass an amendment to the Law on Civil Protection System by introducing a new situation “occurrence of special circumstances that imply an event or a specific situation that could neither have been foreseen nor influenced upon, which threatens both the lives and the health of the citizens, high value assets, considerably adversely affects the environment and economic activities or causes significant economic damage“.

The question arises as to the reasons behind this amendment to the law that adds a new definition of the situation we are currently facing, since it could have been interpreted through Article 17 of the Constitution of the Republic of Croatia, which reads as follows:

“Individual constitutionally guaranteed freedoms and rights may be restricted during a state of war or any clear and present danger to the independence and unity of the Republic of Croatia or in the event of any natural disaster. Such restriction shall be decided upon by the Croatian Parliament by a two-thirds majority of all the Members of Parliament or, if the Croatian Parliament is unable to convene, at the proposal of the Government and with the countersignature of the Prime Minister, by the President of the Republic.”

Unless we address the issue of conspiracy theories, the virus is still a natural disaster.

The answer is very simple. In order to avoid a two-thirds majority of all the Members of Parliament required to declare a natural disaster as described in Article 17 of the Constitution, it was necessary to define a new situation by a law and restrict freedoms and rights by a law, pursuant to Article 16 of the Constitution of the Republic of Croatia, which reads as follows:

“Freedoms and rights may only be restricted by law in order to protect the freedoms and rights of others, the legal order and public morals and health“.

In fact, the words “only by law” do not imply a two-thirds majority in the Croatian Parliament but a simple majority, which the governing majority has. In other words, the measures of the Civil Protection Headquarters have thus become not only legitimate, but also that which is potentially the most dangerous, compatible with the Constitution of the Republic of Croatia.

In order to present a clearer picture of what has actually happened, I am hereinafter providing a graphic depiction, as shown below.

A simplified graphic depiction of legal restrictions of freedoms and rights of the citizens in the Republic of Croatia

The result is obvious. In order to avoid the risk of a two-thirds majority of all the representatives in the legislative body (the Parliament) and in order to accelerate the process of enactment of controversial measures of the Civil Protection Headquarters, the executive authorities have used the loophole in Article 16 of the Constitution, and a simple majority prescribed by the Constitution, opening the Pandora’s box of the power of dictatorship, in compliance with the laws in force, which currently enables the governing majority to restrict freedoms and rights to the extremes. Doing it all, of course, for protection and benefit of us all.

In my opinion, freedoms and rights are still not eligible for ATP rankings, to use tennis terms, that would clearly show which right (or freedom) ranks above another, i.e. which is “more valuable in the market”, primarily for the fact that they are all equal and none ranks above any other. The right to work (Article 55), the right to earn a living through which one can ensure a free life for oneself and for one’s family (Article 56), the right of free movement (Article 32), as well as other economic, social and cultural rights are equal to the right to healthcare and it is all intended for equitable free society. Nothing is absolute and that particularly applies to law. All the previously mentioned rights (with the exception of that which is currently absolute, the right to healthcare) are currently restricted. Consequently, the question arises as to how citizens can exercise, for example, the right to earn a living, as the state does not enable them to do it due to a higher-ranking absolute right – the right to protect the health of the citizens.  Do not forget, the higher-ranking right, the greater the injustice. And, if you like, when the issue of which right is the highest-ranking is considered in some conflicts of rights, it certainly is not the power of executive authorities (which in Croatia refers to the Government), but it is the judicial powers, hence the powers of the courts.

 

Imagine the following scenario of enactment of almost identical measures, yet in the occasion of “protection of citizens” of a different type. In that imaginary occasion, the imaginary Government of the Republic of Croatia would enact measures of restriction of rights and freedoms in order to “protect public morals“. Yes, it is in accordance with Article 16 of the Constitution to restrict freedoms and rights by law for protection also of “public morals“, not only of health. Does anyone know the legal definition of public morals? No one does. Except, of course, those in power (the former ones, the actual and the forthcoming ones). In this imaginary case, the Government of the Republic of Croatia could ban work on Sundays for “protection of public morals”, irrespective of the fact that the “right to work” is a constitutionally protected right.

In simple terms, if the authorities assess that the right x is contrary to “public morals” (irrespective of what they are, I personally do not know the definition of morals, let alone public morals), they enact “measures” and restrict it or “suspend” it. I do not know about you, but this is a very, very troubling fact. Do not be surprised if our previously mentioned hypothetical case becomes real. The very fact of this feasibility is highly concerning.

I am not an expert in constitutional law. Nevertheless, as a lawyer I would say that constitutional crises can be expected throughout the world, even where there is tripartite government, where we are currently witnessing a situation in which these branches of government do not adhere to their authorities, but they certainly overlap and interfere one with another.

Even in the United States of America the National Rifle Association (NRA) sued New York Governor Cuomo over closure of gun stores. In its lawsuit the latter association invokes the fact that citizens have been suspended the right guaranteed by the second amendment, which enables them to own weapons. Hence, it is obvious that also in the US the laws have become more powerful than the Constitution.

Rights and freedoms have become dead letter overnight, democracies have become de facto dictatorships, legal force among legal acts has been fully mixed up, while the Law itself has been brought to the limits of the scope of its existence. In dictatorships the Law only has the right to remain silent.

The European Union is not immune to the potential legal chaos either. The Court of Justice of the European Union in co-operation with the courts of the member states, ensures enforcement and equal interpretation of the European Union law. The situation in Hungary is well-known, the Czech court has ruled that the measures implemented by their government are discriminatory, while in Croatia everything is compliant with the laws in force … Not to mention how many legal cases will end up at the European Court of Human Rights whose specific objective is, in simple terms, to ensure that the states respect the rights and guarantees provided by the European Convention on Human Rights.

It remains to be seen who will answer for it, when and if at all. The only thing we know is that the mistakes made by those in power are almost always paid primarily by the citizens who they are actually “caring for”.

Finally, I am going to quote an expert in the previously addressed issue, Judge of the Constitutional Court Andrej Abramović:

“The crisis needs to be considered in advance, cool-headedly, so that upon its outbreak one can believe oneself and one’s sober assessment. The community is not looked after in the best way by those looking for shortcuts, but by those maintaining the roads. All the experts agree that we will be saved upon achieving “herd immunity”. Nevertheless, in order to achieve that goal, we must not become the herd in the meantime”.

Stjepan Matić