Issue: № 3, 2023
Doi: https://doi.org/10.37634/efp.2023.3.2
Acute respiratory disease COVID-19 has caused unprecedented restrictions on human rights since the end of World War II. Restrictive measures to prevent the spread of coronavirus disease have been introduced almost worldwide. However, like any restriction of human rights, such measures must comply with the principle of proportionality. One of the main requirements is that the restriction must be prescribed by law and comply with the legal certainty. This requirement stipulates that any restrictions on human rights, including restrictive measures aimed at preventing the spread of coronavirus disease must be prescribed by law, adopted in the form and manner prescribed by current legislation and international human rights standards, promulgated in the manner prescribed by law, understood by ordinary citizens, predictable and obviously enforced. In this paper, the question of compliance with the legal certainty criteria of restrictions, implemented measures to prevent the spread of coronavirus disease in Ukraine and some other countries are considered. The question whether the measures aimed at preventing the spread of coronavirus were prescribed by law, adopted in the form and manner prescribed by applicable law and international human rights standards, were promulgated in the manner prescribed by law, were clear to ordinary citizens, predictable and obviously enforced is analyzed. However, the analysis of restrictive measures aimed at preventing the spread of coronavirus disease introduced in Ukraine raises several questions about the form of such restrictions. Firstly, no special law has been passed on this issue. Secondly, all restrictions were introduced by resolutions of the Cabinet of Ministers of Ukraine bylaws with an obvious excess of authority. Moreover, the official publication of the introduction of restrictive measures aimed at preventing the spread of coronavirus disease took place the day before, on the day, or even the day after the introduction of restrictive measures aimed at preventing the spread of coronavirus disease.
Keywords : principle of proportionality, certainty principle, COVID-19, healthcare, restrictive measures
References:
1. Habrelian A.Y. Analysis of the current state of the services market in the world and in Ukraine. Trajectory of science. 2020. No. 6 (10). рр. 2001-2013. (in Ukrainian).
2. Habrelian A.Y. The object of the offense provided for in Art. 181-1 of the Code of Administrative Offenses of Ukraine. Journal «ScienceRise: Juridical Science». 2020. No. 3 (13). pp. 27-33.
3. Constitution of Ukraine dated June 28, 1996. No. 254k/96-VR. Information of the Verkhovna Rada of Ukraine. 1996. No. 30. Art. 141. (in Ukrainian).
4. Separate opinion of the judge of the Constitutional Court of Ukraine Lemak V.V. regarding the Decision of the Constitutional Court of Ukraine dated August 28, 2020 No. 10-r/2020. URL: http://www.ccu.gov.ua/sites/default/files/docs/10_p_2020_1_0.pdf (in Ukrainian).
5. On preventing the spread of the COVID-19 coronavirus on the territory of Ukraine: Resolution of the Cabinet of Ministers of Ukraine dated March 11, 2020. No. 211. URL: https://zakon.rada.gov.ua/laws/show/211-2020-п#Text (in Ukrainian).
6. On amendments to the Resolution of the Cabinet of Ministers of Ukraine dated March 11, 2020. No. 211: Resolution of the Cabinet of Ministers of Ukraine dated March 16, 2020. No. 215. URL: https://zakon.rada.gov.ua/laws/card/215-2020-п (in Ukrainian).
7. On the protection of the population from infectious diseases: Law of Ukraine dated April 6, 2020 No. 1645-III. Bulletin of the Verkhovna Rada of Ukraine, 2000. No. 29. Art. 228 (in Ukrainian).
8. Decision of the Constitutional Court of Ukraine dated August 28, 2020 No. 10-r/2020. URL: https://ips.ligazakon.net/document/KS20031?an=1&ed=2020_08_28 (in Ukrainian).
9. Kharytonov E., Kharytonova O., Bieliakov K. Rights of a private person in the conditions of the COVID-19 pandemic: problems of implementation and protection: monograph. Odesa, 2020. 404 p. (in Ukrainian).
10. Borrowdale v. Director-general of health. URL:https://disasterlaw.ifrc.org/media/3302
11. Case of Kruslin v. France (Application no. 11801/85). URL: https://www.zmogausteisiugidas.lt/en/case-law/kruslin-v-france
12. Decision v 363/2020-25: Constitutional Court of Austria. URL: https://www.vfgh.gv.at/downloads/V_363-2020_EN_Version_Homepage.pdf
13. R v. Hansen. High Court of New Zealand. URL: https://www.courtsofnz.govt.nz/cases/paul-rodney-hansen-v-the-queen/at_download/fileDecision