5

Le Monde argues about the recent Romanian Constitutional Court that basically states that freedom of movement must prevail even for Covid-19 positive persons (translated from French):

the Constitutional Court (CCR) guarantees all infected patients freedom of movement. A decision of the high court, published on July 2, considers that the quarantine ordered by the government to stem the effects of the coronavirus is "a real deprivation of liberty" and "a restriction of fundamental rights". In other words, all measures taken by the government to contain the pandemic are considered unconstitutional.

This led to numerous discussions as the government remained with few options of limiting the effects of SARS-COV2 epidemics, despite the numbers showing the greatest increase in cases in EU.

I am wondering if this is the first case when the government of a country is forbidden by law from forcing infected persons to quarantine or hospitalization.

Question: Is there a country where the government cannot force a COVID-19 positive person to enter quarantine / remain hospitalized?

4
  • Well, afaik in Germany it's normally not possible to force people to enter quarantine, but if they enact an national emergency (Notstand) they can. – miep Jul 10 '20 at 14:15
  • 1
    @miep So, this would be the exact same situation as in Romania where this problem occurred after the (national) emergency state was raised. Government had previously issued some sort of executive order to allow this, but it was rendered unconstitutional by the Constitutional Court. – Alexei Jul 10 '20 at 14:18
  • Not quite. It's been a while since I read about those laws, so I'm maybe not accurate. But in Germany this kind of law is part of the constitution, and the government has to protect the people from diseases and other things and is given the tools to enforce their safety to a certain amount. But I need to look that up again, then I can provide a better answer... – miep Jul 10 '20 at 14:26
  • Consider the difference between quarantine and isolation. Infected persons are isolated, while persons suspected (exposed but not yet confirmed to be infected are quarantined. – BobE Jul 10 '20 at 17:10
2

Many countries which grant freedom of movement and related rights to their citizens have laws which allow these rights to be suspended during extenuating circumstances such as a pandemic, war, or other disaster. Some governments, such as Romania's, have fallen foul of the courts by failing to implement such exceptions - in this case, a law is currently being debated in Parliament.

Another example of this came right at the beginning of the COVID pandemic in the UK, where the Government swiftly put in place a statutory instrument, The Health Protection (Coronavirus) Regulations 2020, Regulation 4 of which gives the Secretary of State for Health the power to detain individuals. Reporting at the time drew a link between this SI and one of the then eight confirmed people in the UK with the virus threatening to abscond from a quarantine centre the night before, at which time the Government had no power to stop them.

As far as I'm aware, the only real current example of a restriction on the ability of a government to force patients who have tested positive to remain either in a hospital or quarantine center is in South Africa, where the High Court in Pretoria granted an application made by AfriForum which declared the regulations on this invalid. This ruling was then made an order of court by consent of the Minister of Cooperative Governance and Traditional Affairs Nkosazana Dlamini-Zuma, according to AfriForum.

The ruling states:

It is ordered that:

  1. Regulations 6 and 7 published by the Respondent on 29 April 2020, in terms of section 27(2) of the Disaster Management Act are to be interpreted and applied as follows:
  • 1.1. A person who has been confirmed as a clinical case or as a laboratory confirmed case as having contracted Covid-19, or who is suspected of having contracted Covid-19, or who has been in contact with a person who is a carrier of Covid-19; is only required to be quarantined or isolated at a state facility, or other designated quarantine site; when that person is unable to self-quarantine or self-isolate, or refuses to do so, or violates the self-quarantine or self-isolation rules.
  • 1.2. To successfully self-quarantine or self-isolate, a person requires access to a separate room where the person should self-isolate (no-one else must sleep or spend time in the room). The person must also be able to contact and /or return to a health facility if their condition worsens.
  1. There shall be no order as to costs.

This means that the government can only force someone to remain in a hospital or state quarantine facility if they can prove that the person does not have access to a self-isolation room, refuses to self-isolate, or otherwise breaks the self-isolation rules.

3

This was the case in Germany until June 28th, 1968. Since then, the Notstandsgesetze (link in German) exists, which enables the government to suspend several constitutional rights, one of them the freedom of movement. But for this they would have to enact an emergency. An epidemic would be a sufficient reason if the threat is big enough. Right now, that's not yet the case, so the "Verfassungsgericht" (Constitutional Court) would most likely stop the emergency.

4
  • Did the constitution really bar public health quarantines in case of a epidemic? The US Constitution guarantees Freedom of Assembly, but the courts have repeatedly upheld the right of the government to impose quarantines for public health purposes – would the German Constitutional Court have really blocked such measures if there was a clear public health emergency? – divibisan Jul 10 '20 at 15:29
  • 1
    @divibisan Asking how the constitutional court would decide is a pretty speculative question. The sole purpose of constitutional courts is to decide tricky legal question with no clear consensus. And their decisions are often not an absolute yes or no. I could see them objecting to some restrictions of movement as unreasonable while attesting the legality of others. Because the right to health has to be balanced with the freedom of movement. Some basic rights are more important than others, but none is absolutely so. But again, just my speculation as a legal layman. – Philipp Jul 10 '20 at 15:59
  • 3
    @divibisan Here is one example, though: the German constitutional court rejected a preliminary injunction against the Bavarian COVID-19 social distancing decrees. Justification: "the dangers posed to life and limb outweigh the restrictions of personal freedom". But that was just a quick consideration of the application for a preliminary injunction. It does not necessarily say that they would decide the same way in a proper trial. – Philipp Jul 10 '20 at 16:16
  • @divibisan It very well may have, the German constitutional court is prone to abstract theoretical reasoning, ignoring all pragmatic reasons that might sway other courts, cf. e.g. the recent decision on the ECB QE programme. – Relaxed Jul 27 '20 at 20:33

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .