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Commentary: Rule of law concerns amid COVID-19 emergency measures and new criminal offences

FairTrialsAdmin - May 6, 2020 - COVID-19 Updates, Commentary, Rule of Law, Extended police powers, New criminal offences

 By Isabel C. Roby - Fair Trials Americas

The COVID-19 pandemic has compelled states to grapple with a new reality, and it has also forced citizens to come to terms with severe limitations of movement and the suspension of normal living and working conditions. Governments around the world have declared states of emergency, and have also suspended certain rights and freedoms to face the pandemic with emergency policies and plans.

Emergency declarations make sense in a pandemic: they change the legal landscape and trigger a surge of resources that allow for an effective and faster governmental response. For example, in countries with a federal government, such as the United States, they allow for cities and states to easily access federal aid[1]. Emergency declarations also permit states to sidestep certain federal laws. In most cases, emergency declarations authorize the executive branch to legislate by decree on matters related to the emergency[2] and to take measures such as travel restrictions, borders shutdowns, forcible confinement, and even the delay of elections into their own hands[3].

However, the structure of these extraordinary powers rests on the basic assumption that the executive, and particularly, the president, will always act in the country’s best interest. It goes without saying that emergency declarations are much needed during certain times of crisis, such as COVID-19. But if misused and abused, they can also threaten the very concepts of limited presidential powers and democratic rule. In other words, there are few things that authoritarian regimes crave more than national crises, since they offer an opportunity to set aside many of the legal limits to their authority, and to also further concentrate power in the executive.[4] Hungary is a clear example, on March 30, the Parliament voted by a two-thirds majority, to allow the government of Prime Minister Viktor Orbán to rule by decree without a set time limit (after having declared a State of Emergency on the second week of March). While the new legislation remains in place, no by-elections can be held and Orbán's government will be able to suspend the enforcement of certain laws. Plus, individuals who publicize what are viewed as untrue or distorted facts now face several years in jail. In moments like these, when the power of government is amplified, and democratic oversight and accountability are loosened for the sake of effectiveness, it is imperative to stay vigilant, especially of those governments seeking to retain extraordinary powers in the long term.

In recent years, Argentina serves as an example of a more guarded attitude towards emergency declarations or “Estados de Sitio” (State of Siege). The last time a State of Siege was declared in the country, was in December 2001. Before then, there were two more declarations, during the military dictatorship, and the democratic government of Alfonsin that followed. The provision was much abused during the successive dictatorships in Argentina, with long-lasting states of siege giving the government a free hand to suppress opposition, and for this reason, it is now applied with caution and only as a last resort. As of today, Argentina has not declared a state of emergency with regard to the COVID-19 crisis, even though it has applied restrictive measures such as borders shutdowns, quarantines, and criminal charges to enforce the orders.[5]

Another favoured tool by governments during times of crisis is criminal law, which is usually used to exercise control and ensure enforcement of the emergency policies and plans. Once emergency executive orders are put into place, they are followed by enforcement plans that invariably include criminal charges. According to the New York Times, in the US, at least 42 states, the District of Columbia, and Puerto Rico have issued stay-at-home orders as of April 15, 2020[6]. Many of the stay-at-home orders include language specifying that noncompliance will be enforced through civil or criminal penalties. For instance, Wisconsin’s emergency order specifies that a violation or obstruction of the order is punishable by up to 30 days imprisonment, or up to $250 fine, or both[7]. Other jurisdictions, like the District of Columbia states that any individual who violates the order, may be guilty of a misdemeanour and, upon conviction, subject to a fine not exceeding $5,000, imprisonment for not more than 90 days, or both. Other notable examples of such stay-at-home orders include New York State, New Jersey, and Connecticut[8].

While most jurisdictions have the legal authority to enforce stay-at-home orders, some have taken a more measured approach. However, concerns around enforcement are particularly relevant for communities of colour and other marginalized groups that have experienced overcriminalization in the past.[9]

In Latin America, executive decrees emanating from emergency declarations, have stipulated criminal measures to enforce the orders. In El Salvador, for example, on the first day of the country’s quarantine, 269 people were arrested for violating the terms of the decree[10]. In Argentina, although a State of Siege has not yet been declared, the stay-at-home order in effect, establishes imprisonment of six months to two years for violating the governmental measures adopted to prevent the introduction and spread of the pandemic. As of April 2nd, there were over 21,600 arrests for violating the order[11]. In Colombia, the government appointed a special prosecutor to enforce the country’s stay-at-home order, and as of April 19, there were at least, 118 open investigations and 45 arrests[12]. In Peru, citizens who are diagnosed with COVID-19, who ignore the restrictive measures imposed by the government, and who abandon social isolation and infect others, are given penalties of up to 20 years in prison if the contagion produces serious injuries or the death of third parties[13]. Those who have not been diagnosed with the virus, but violate the order, can also face up to three years in prison. As of March 30th, there were over 16,000 detainees in the country’s prisons[14].

In Europe, several countries have extended police powers and passed legislation regarding COVID-19-related crimes. For example, in The Netherlands, the Public Prosecutor's Office is prosecuting any person who intentionally spits or coughs on other people while claiming to have COVID-19 for (attempted) aggravated assault. In April, they passed the COVID-19 Emergency Act which gives the police powers to take a mouth swab of saliva from any person who intentionally spits or coughs at or on a police officer, with the purpose of testing this person for COVID-19.[15] In Romania, Legislation has been passed to increase sentences and create new criminal offences.[16] 

In the United Kingdom, the Coronavirus Act 2020, grants the government emergency powers to handle the pandemic, including discretionary power to limit or suspend public gatherings, and to detain individuals suspected to be infected by COVID-19. In April, The Sentencing Council published interim guidance stating that common assault offences relating to transmission of COVID-19 should treat this feature as an aggravating factor.[17]

In short, the COVID-19 crisis is an unprecedented challenge, and jurisdictions around the world are working hard to respond. But facing the pandemic from a criminal and extraordinary powers perspective seems to be a current global trend that should concern most experts. While we might think that citizens are only surrendering their rights provisionally in such situations, history has shown otherwise, how few of the “exceptional” measures taken during times of emergency have only ever been temporary and extraordinary in practice (we need only look to the fight against terrorism and mass surveillance as a recent cautionary example). Ultimately, as analysts and advocates of democracy and human rights, we must stay vigilant. And now more than ever is the time to ask difficult questions about the overreach of governments and the rule of law.

 

[1] Stafford Act

[2] For example in Colombia: https://colombia.as.com/colombia/2020/03/20/tikitakas/1584721615_170714.html

[3] Comparative overview of measures taken in some Latin American countries: http://www.lexis.com.ec/noticias/legislacion-en-tiempos-de-covid-19/

[4] https://www.politico.eu/article/hungary-viktor-orban-rule-by-decree/ see also, https://www.fairtrials.org/news/short-update-covid-19-emergency-law-hungary-gives-indefinite-ruling-power-government-and

[5] Estado de Sitio Argentina: https://www.pagina12.com.ar/254634-alberto-fernandez-el-estado-de-sitio-no-es-algo-posible-ni-c

[6] New York Times Interactive Map

[7] https://www.wpr.org/sites/default/files/health_order_12_safer_at_home.pdf

[8] Stay at home order D.C., New York State, Connecticut

[9]https://www.americanprogress.org/issues/criminal-justice/news/2020/04/02/482558/enforcement-covid-19-stay-home-orders/see

https://www.vera.org/publications/for-the-record-unjust-burden

[10] https://www.laprensa.com.ni/2020/03/22/internacionales/2654280-el-salvador-mas-de-200-personas-arrestadas-por-violar-primer-dia-de-cuarentena

[11] https://www.clarin.com/politica/coronavirus-argentina-21-600-detenidos-demorados-notificados-violar-cuarentena-pais_0_1mbiw_LHI.html

[12] https://www.elespectador.com/coronavirus/sanciones-y-castigos-alrededor-de-covid-19-una-tendencia-mundial-articulo-912912

[13] https://larepublica.pe/sociedad/2020/04/01/coronavirus-en-peru-20-anos-de-prision-y-multa-por-incumplir-cuarentena/

[14] https://www.clarin.com/mundo/coronavirus-peru-16-000-detenidos-violar-aislamiento-obligatorio_0_qPIjEN11_.html

[15] The Dutch Public Prosecution Service announced on 25 March that it intends to aggressively prosecute any corona-related crimes.   https://www.fairtrials.org/news/short-update-prosecutors-netherlands-using-super-expedited-proceedings-prosecute-coronavirus  https://www.fairtrials.org/news/short-update-police-netherlands-given-power-take-saliva-samples-corona-related-crimes

[16] https://www.fairtrials.org/news/short-update-longer-sentences-and-new-criminal-offences-created-romania

[17] https://www.fairtrials.org/news/short-update-sentencing-council-states-new-guidance-transmission-covid-19-should-be-treated

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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