Pandemic measures further complicate problems with human rights in the Western Balkans

State of emergency has been introduced in all Western Balkan countries except Montenegro in order to fight the epidemic. In Serbia, its leaders are accused of authoritarian tendencies and attacks on media freedom. Montenegro published the identity (names and addresses) of citizens who are in mandatory self-isolation, with similar attempt in Bosnia and Herzegovina, thus violating the right to privacy. The Albanian Parliament has approved the government’s proposal to make changes to the Criminal Code by introducing harsh prison sentences for violators of the COVID-19 measures that go up to 15 years. Therefore, it is necessary to determine whether the governments in the Western Balkan countries are respecting human rights while introducing measures to tackle the pandemic.

Counsellor for the Western Balkans of the Austrian Federal Ministry of Justice Georg Stawa says that following the big picture and circumstances, the Western Balkans governments are respecting human rights, but looking at some frightening details, they are not.

“Let’s be frank – pandemic is an emergency. To save lives, “extraordinary dangers may require special measures”. By definition, effective measures to fight a pandemic are interfering and limiting individual rights. But they always must be proportionally, adequate, limited on time and have to respect the constitutional guarantees and individual rights as much as possible. In the Western Balkans we saw especially the publication of personal data of patients, the use of pandemic instruments for a “political momentum”, the possible tracking of individuals without legal means or the implementation of measures not according to the constitution. It will be interesting to learn, how these issues will be addressed by the courts”, explains Stawa while pointing out that political accountability may follow.

For Goran Miletić, Director for Europe at Civil Rights Defenders, it seems that many Western Balkans leaders have gone too far in the measures they have introduced or intend to introduce.

“This does not apply to measures that are truly intended to prevent the spread of COVID-19 and which are justified and proportionate, such as social distance or restricting freedom of assembly. It is about measures such as in Albania and Montenegro, or the attempt to hold press conferences without journalists in Serbia where journalists are brought in for writing about the problems the country is facing. It is very easy to identify where the authorities in the region have gone too far in limiting human rights”, says Miletić explaining that in addition, even when measures are proportionate and justified in a democratic society (Council of Europe standard), implementation does not seem to be adequate, and in particular penalties for violating some of the measures.

Previously, the Council of Europe has issued a toolkit for all 47 member states, i.e. Information Documents on respecting democracy, rule of law and human rights in the framework of the COVID-19 sanitary crisis, in which it is stated that any derogation must have a clear basis in domestic law in order to protect against arbitrariness and must be strictly necessary to fighting against the public emergency. States must bear in mind that any measures taken should seek to protect the democratic order from the threats to it, and every effort should be made to safeguard the values of a democratic society, such as pluralism, tolerance and broadmindedness.

Miletić highlights that it is well known that the three most endangered human rights in the Western Balkans are freedom of expression (freedom of the media), the right to a fair trial and freedom from discrimination.

“Nothing seems to have changed during the pandemic, but the measures introduced have only further complicated the situation in all three areas. The WB6 countries have problems in these areas that are well recognized by the EU and have been pointing to them for years, along with the solutions they are proposing. Advancement in these areas is now almost impossible, although more than necessary”, says Miletić.

What will be the consequences?

Times like this will leave a mark after the crisis is over. Since the state of emergency gives the right to authorities to limit certain human rights, the question is at what pace the reduced standard of human rights will be restored back to normal. However, in countries like WB6 where rule of law, separation of powers and media freedom are being questioned, can we expect to see consequences regarding human rights after the pandemic is over?

For Miletić, it doesn’t seem like much will change at first glance.

“The measures now in force will simply be abolished. However, it seems that there will certainly be consequence in the short and medium term, since there are many citizens who had they human rights violated in some manner. I suspect that there will be plenty of redress procedures in some situations and that the democratic transition in some countries will be slowed down. As for the long-term consequences, it depends on each country’s strategic determination”, says Miletić adding that unfortunately, it seems that the pandemic in the region has really strengthened authoritarian forces and ideas.

Stawa gives an example that all over Europe, applied measures may, will and should be challenged in front of the Constitutional Courts (alone in Vienna two weeks ago already 20 claims were pending) or European Court of Human Rights.

“That is the normal way to balance powers of state by independent judiciary and to prevent misuse by legislation or executive powers. The (mis-)use of power may always be tempting, but the voters and courts will teach about the political and legal limits”, says Stawa.

He explains that political power always has to be administered in dignity and respect of the people and the constitution.

“A state of emergency concentrates more power to the Executives, enabling them to react quickly and accordingly. The more it is necessary to rebalance it by democratic debate, free media and control by judiciary. But my biggest concern is not, if a certain politician is misusing her/his position during the crises by posting to many favorable pictures on Instagram. This is a matter of political liability, to be answered by the democratic voters.
My concern is, if and when the crisis and emergency measures may end: If the last patient is healthy? In one country? In Europe? Worldwide, because someone could bring back the virus? “No, the second (third, fourth,…) wave may still come, we have to prepare and protect ourselves” or “the effects of crises are still to fight” are more dangerous sentences than any details about curfews or delivered respirators” says Stawa.

He concludes that beyond that, people themselves may “abandon their freedom to politically almighty tracking-apps, exchanging deliberately the rights we fought for the last 300 years: for the allowance to go out for ice-cream or traveling the seaside ‘healthy and safely’, people may agree to lots of dangerous system-changes, otherwise unthinkable. And these changes may stay in our society”.