Tue | 12.05.2020
Romania is about to take the next step in the fight against the coronavirus disease (Covid-19). The state of emergency declared on March 16 is most likely to be replaced on May 15 by a state of alert, which shall result in gradually easing the strict confinement measures undertaken by the authorities.
Legally speaking, the state of emergency and the state of alert are two different instruments based upon which authorities are allowed to exceptionally make certain measures limiting the rights and liberties in order to fight more effectively a natural catastrophe, a crisis, a sanitary crisis included.
As compared to the state of emergency, (legally grounded on the GEO no. 1/1999 and article 93 of the Constitution), the legal basis of the state of alert emerges from the GEO no. 21/2004, and it is an instrument with a more limited coercive force, thus still allowing the authorities to take restrictive measures in the context of the Covid-19 epidemic.
State of Emergency vs State of Alert:
From a legal point of view, it is important to note that unlike the state of emergency, the state of alert is not provided for in the Constitution. Therefore, all measures undertaken by the authorities in the current circumstances, aimed at restricting the rights and liberties laid out by the Constitution must normally be enacted in a law previously approved by the Parliament.
There is another important distinction to be made at the level of the bodies vested with the power to order the state of emergency and, respectively, the state of alert. If the state of emergency is declared via a Decree of the President approved by the Parliament, the state of alert at national level is declared by the National Committee for Emergency Situations and is subject to approval by the Prime Minister.
The mandatory provisions of the declaration of the state of alert are: (1) the time period (the law makes no mention of a legal delay as for the state of emergency; conditional upon the development of the epidemic, the duration or the geographical area may be extended or restrained, as the case may be) (2) the measures undertaken by the authorities; (3) the obligations of the citizens and of the economic operators with respect to a potential involvement in activities beneficial for the local community.
Furthermore, once the state of emergency ceases, all derogations from the fundamental rights and liberties provided for the European Convention of the Human Rights cease as well. All derogation maintained after the termination of the exceptional circumstances entailing it is deemed violation of the Convention and it is likely to constitute grounds for liability on the part of the Romanian State.
According to the legal provisions, during the state of alert to come, the Ministry of Internal Affairs no longer can issue military ordinances as such practice is restricted to the state of emergency only. In practice, this means that, for example, no declaration on the sole responsibility is to be required for leaving the domicile / home.
Finally, the state of alert is usually called upon in case of natural disasters such as floods, fires, earthquakes, etc. and is limited to the affected area. The last time a state of alert was declared in Romania was in 2014, for meteorological conditions, in certain counties affected by severe snowing.
Measures that may be Undertaken during the State of Alert:
Pursuant to article 4 of the GEO no. 21/2004, the authorities may:
The measures undertaken by the authorities must be proportionate to the situations considered and their application must abide by the terms and limits provided for by the law. Otherwise, such measures may be banned by the Constitutional Court, if such constitutional authority is referred to.
When it comes to deeds, authorities may decree restrictions and limitations on the fundamental rights and liberties of the citizens (such as the right to free movement, the right to private life, to economic freedom, etc.) but only by adopting a law (that is therefore to be voted by the elected representatives of the people gathered in the Parliament).
This being said, it is likely that the National Committee for Emergency Situations issues a program of measures and actions necessary to control the epidemiologic risk of spread of the COVID-19. Such program is likely to impose the limitation of certain fundamental rights and freedoms, but solely under a law approved by the Parliament.
The GEO no 21/2004 provides for fines for inobservance of the provisions of the Emergency Ordinance, but such fines can only be enforced against authorities and institutions with duties during the state of alert.
As for the sanctions (fines, warnings, etc.), that can be applied to natural and legal persons, they are to be set up by the Government by an Ordinance of by a Law adopted by the Parliament.
At the same time, it should be noted that all sanctions set by the authorities shall be proportionate to the situation triggered and that, even if there is no legal impediment in maintaining the level of the fines laid down during the state of emergency, there is a possibility that the judicial jurisdictions censure such sanctions within an potential challenge claim.
Finally yet importantly, it should be noted that the People’s Advocate, Renate WEBER, referred to the Constitutional Court on May 6, with respect to an exception of unconstitutionality of the provisions of the GEO no. 21/2004, allowing the state of alert being declared. Notwithstanding, as long as the exception of unconstitutionality has not been accepted, the provisions of the GEO remain in force.