Publication details
Proporcionalita krizových opatření omezujících svobodu pohybu
| Title in English | Proportionality of Crisis Measures Restricting Freedom of Movement |
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| Authors | |
| Year of publication | 2021 |
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| Description | This research report aimed to map trends in containment measures following the management of the SARS-CoV-2 coronavirus crisis in the G20 permanent members from 1 January 2020 to 30 June 2021. The key method was the comparison of narrative case studies. Following these narrative case studies, we identified general trends and highlighted their constitutional and human rights limitations. The main conclusion is that, although the countries studied differed in many respects, restrictions on freedom of movement occurred in comparable situations and according to similar patterns. The extent of the restrictions was linked to the phases (periods) in which the country was within the pandemic. In the first period, the main concern was to prevent or delay the importation of the disease, thus restricting entry into the country. In the second period, the import of the disease into the country had already occurred. The main objective was to contain the disease within the country or minimise or delay its spread. Thus, regional measures closing areas with high infection levels were used. By the third period, the spread of the disease was no longer localised. At this point, individual countries resorted to blanket containment measures in the form of closures of shops or services, curfews or closure of educational facilities. The last period can be described as one in which States gradually lift the restrictions and return to ordinary functioning. These phases are also crucial for assessing restrictive measures' constitutional and human rights implications. Restrictive measures must be linked to legitimate objectives and have a rational relationship to those objectives. They must then pass a necessity test and a balancing test (proportionality test in the narrower sense). As can be seen from the above periods, the assessment does not take place in a static but in a highly dynamic environment. Moreover, it is burdened with empirical uncertainty - initially about the properties of the spreading coronavirus and, later, about the properties of its new mutations. Constitutional review can tolerate a relatively high degree of empirical uncertainty, so there is no need to seek to choose 'perfect' limiting measures. However, the restrictive measures must be based (cumulatively) on rational considerations and available data. |
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