[COVID-19] Limitation Of Fundamental Rights & Freedoms To Be Done "Only By Law": Kosovo Constitutional Court Holds Govt. Decision Restricting Movement Of Citizens Unconstitutional

The Constitutional Court of Kosovo has declared that the decision of the Government restricting freedom of movement unconstitutional as it has no backing of law.

The Court unanimously held that the limitation of fundamental rights and freedoms may be done "only by law" of the Assembly of the Republic of Kosovo and that the Government cannot restrict any fundamental right and freedom through decisions.

Therefore, it has held that this Judgment will come into force on 13 April, 2020 till such time the Assembly can take appropriate measures to ensure that the necessary limitations on fundamental rights and freedoms in order to safeguard public health have been made.

Kosovo is a country in Southeast Europe.

President Hashim Thaci had filed a reference before the Court against the decisions taken by the Government as part of measures to prevent the spread of corona virus. According to the President, the decision is not in compliance with Articles: 21 [General Principles], 22 [Direct Applicability of International Agreements and Instruments], 35 [Freedom of Movement], 43 [Freedom of Gathering], 55 [Limitations on Fundamental Rights and Freedoms] and 56 [Fundamental Rights and Freedoms During a State of Emergency] of the Constitution of the Republic of Kosovo, and Article 2 [Freedom of movement] of Protocol No. 4 of the European Convention on Human Rights, Article 13 of the Universal Declaration of Human Rights, as well as Article 12 of the International Covenant on Civil and Political Rights.

The Court held that Article 56 [Fundamental Rights and Freedoms During a State of Emergency] of the Constitution, is applicable only following the declaration of a State of Emergency. The Court observed thus:

The "limitation" of human rights and freedoms can be made "only by law" of the Assembly, but this does not mean that the "limitation" of rights can only be made through and after the declaration of a State of Emergency. The term "limitation" used in Article 55 of the Constitution implies the fact that the Assembly has the right to limit the fundamental rights and freedoms, through law, but only insofar and to the extent necessary in order that in an open and democratic society, fulfills the purpose for which the limitation is allowed. In other words, "limitation" implies a lighter degree of interference and this can be done even without declaration of a State of Emergency; whereas "derogation" implies a more severe degree of interference since it can never be done without a declaration of a State of Emergency.

Finding that the decision has no backing of law, the Court said that Decision: (i) regarding the freedom of movement and gathering established in Articles 35 and 43 of the Constitution, exceed the limitations permitted by the abovementioned law adopted by the Assembly ; and (ii) related to "gatherings in all settings – private and public, open or closed" which incorporate aspects of the rights guaranteed by Article 36 of the Constitution, are not based on any of the authorizations in the law of the Assembly. 

However, taking note of i) the circumstances created by the declaration of the COVID-19 pandemic at the world level; (ii) relevant recommendations of the health institutions at the state and world level; (iii) the potentially harmful effects on public health as a result of the immediate repeal of the restrictions provided by the Decision of the Government; and (iv) the protection of public health and interest until the enforcement of this Judgment by the relevant institutions of the Republic of Kosovo, the Court set the date of entry into force of its Judgment as 13 April, 2020. It added:

"During this period of time and within the meaning of Article 55 of the Constitution regarding the "limitation" of fundamental rights and freedoms, the relevant institutions of the Republic of Kosovo, and, in the first place, the Assembly, should take appropriate measures to ensure that the necessary limitations on fundamental rights and freedoms in order to safeguard public health have been made, in accordance with the Constitution and this Judgment.Finally, the Court also notes that the Ministry of Health, namely the Government, continues to be authorized to render decisions with an aim of preventing and combating the pandemic, insofar as it is authorized by Law No. 02/L-109 for Prevention and Fighting against Infectious Diseases and Law No. 04/L-125 on Health."

Click here to Read Judgment Summary.