Supreme Court Judge: Coronavirus restrictions come at constitutional price

Supreme Court Judge Ivo Pilving.
Supreme Court Judge Ivo Pilving. Source: Lauri Kulpsoo

A Supreme Court judge has said that while it is up to political decision-makers to decide how long restrictions on freedoms enjoyed in normal situations can continue, there is a trade-off between the government's coronavirus emergency situation measures, and the constitution.

Justice Ivo Pilving made his remarks in an article in daily Eesti Päevaleht (link in Estonian), and placed the four lives which coronavirus has so far claimed in Estonia against the deprivations of freedom of movement others have experienced, the many who have lost their jobs, and the government's warning of heightened restrictions if the public did not follow the current ones.

"Against this background, the fact that the Ministry of Foreign Affairs has activated Article 15 of the European Convention on Human Rights (ECHR), which temporarily suspends some of the convention's provisions in Estonia, was certainly not encouraging," Pilving said.

Pilving emphasizes that an open-ended emergency situation is not in line with the constitution, which does not allow for greater harm to arise from reactions to a disaster than the disaster itself brings.

Pilving said that, unlike war or a state of emergency, the current virus does not directly threaten the state's existence, its free and democratic rule, or the survival of its people.

"However, all of these benefits would be jeopardized by restrictions on freedom of movement and business, if they last too long. It's a political decision, not a health decision, on how much they are willing to pay. These estimates are harsh, but it is clear that this is the price of the constitutional ceiling," Pilving went on.

The government had sent its notification that it was to trigger Article 15 of the ECHR to the Council of Europe – the continent's leading human rights organization, entirely separate from the EU – on March 20, though this was not reported in the media until over a week later.

Article 15 of the ECHR states that, in a time of war or other public emergency threatening the life of the nation, any contracting party to the convention may take measures derogating from its obligations under the convention to the extent strictly required by the exigencies of the situation. However, this can happen only provided measures are not inconsistent with the state's other obligations under international law.

More recently, Reinsalu said the foreign ministry was also considering a similar notification to the Organization for Security and Co-operation in Europe (OSCE), a major security-oriented intergovernmental organization.

According to some media reports, monitoring adherence to quarantine restrictions can include police surveillance of phone calls; restrictions of movement in general are currently most strict on Saaremaa and Muhu, the most severely-impacted region of the country in the coronavirus pandemic so far.

The Estonian government declared an emergency situation (Estonian: Eriolukord) late on March 12 in response to the coronavirus pandemic. This is not the same thing as a state of emergency (Estonian: "erakorraline seisukord"), which is only declared in case of a threat to the constitutional order of Estonia where it is not possible to eliminate said threat without the implementation of the measures provided for in the State of Emergency Act.

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Editor: Andrew Whyte

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