The Constitutionality of Legal Measures During the Spread of COVID-19 / Конституционность правовых режимов в период распространения коронавирусной инфекции COVID-19

Демченко Максим Сергеевич ORCID: 0000-0001-7720-515X аспирант, кафедра теоретических и публично-правовых дисциплин, ФГАОУ ВО «Тюменский государственный университет» 625003, Россия, Тюменская область область, г. Тюмень, ул. Володарского, 6 Demchenko Maksim Sergeevich Graduate student, Department of Theoretical and Public Law Disciplines, University of Tyumen 6 Volodarsky str., Tyumen, Tyumen region, 625003, Russia max-de.demchenko@ya.ru Другие публикации этого автора

Introduction

On March 11, 2020, the World Health Organization (WHO) described the spread of COVID-19 as a pandemic.

Recognizing the new coronavirus infection as a global existential threat required the adoption of special response measures from the governments of every country. As a rule, such measures were associated with restricting the right to free movement both outside and inside the country, the prohibition of mass events, including rallies and meetings, restricting the activities of enterprises, the infected were isolated, and their location was monitored. These and other measures, directly and indirectly, affected the scope of each individual’s constitutional rights.

Constitutional and legal framework for combating epidemics:

Article 56 of the Constitution of the Russian Federation establishes that in a state of emergency, it is possible to restrict rights and freedoms with an indication of the limits and duration of their validity.

At the time of the spread of the pandemic in the Russian Federation, the legal regulation of such emergencies was regulated exclusively within the framework of the Federal Constitutional Law "On the State of Emergency" of May 30, 2001, No. 3-FKZ (hereinafter, the FKZ on the state of emergency). According to this act, a state of emergency is introduced in the presence of circumstances of an immediate threat to the life and security of citizens or the constitutional order. Such events can be conditionally divided into two groups. The first group includes circumstances related to violent actions. The second group includes circumstances of a peaceful nature, such as natural, man-made disasters, including epidemics (Article 3 of the Federal Law on the State of Emergency).

In accordance with Article 88 of the Constitution of the Russian Federation, the President of the Russian Federation is authorized to introduce a state of emergency with immediate notification of the upper and lower houses of Parliament. In turn, the Federation Council is vested with the authority to approve a presidential decree (paragraphs "b," "c" of Part 1 of Article 102), for which it is given 72 hours, which should be expressed in the adoption of an appropriate resolution. After the specified time expires, the unapproved decree becomes invalid, which the population is immediately notified of, as when it was introduced. The duration of the state of emergency in the territory of the Russian Federation may not exceed 30 days, and in its individual localities, 60, with the possibility of its extension or cancellation by presidential decree. The judicial system's role and its functioning as a whole do not imply any significant changes. The role of the Constitutional Court is to verify the constitutionality of the presidential decree upon the introduction of a state of emergency, and cases of violations of the state of emergency are considered by courts of general jurisdiction.

Despite the presence of circumstances stipulated by the Federal Law during the state of emergency, in our opinion, they include the recognition by the global community of the spread of the new coronavirus infection as an international threat ^[1], a high probability of infection, complicated symptoms ^{[2, p. 9]}, a high percentage of mortality among certain age categories of citizens ^[3], and the unavailability of the healthcare system ^{[4, p. 84]}. A state of emergency has not been declared in the territory of the Russian Federation or any part of it.

Covid rule-making in the Russian Federation:

An alternative to the above-described mechanism of legislative regulation was a spontaneous change in the current legislation and the decentralized introduction of a high–alert regime by the supreme executive authorities provided for by the Federal Law "On the Protection of the Population and Territories from Natural and Man-made Emergencies" dated December 21, 1994 No. 68-FZ (hereinafter the Federal Law on Emergency Situations).

The introduction of a special legal regime was accompanied by the provision of a set of measures that included both restrictions and prohibitions ("self-isolation," "masks," "social distancing") and measures of state support for citizens and businesses (simplification of procedures for obtaining social assistance, lump-sum payments to certain categories of citizens, additional payments to employees involved in the fight against COVID-19, tax holidays, a moratorium on control and supervisory measures, and much more).

It should be noted that the Federal Law in Emergency Situations provides for three response modes. The first is the daily activity mode, in which there is no threat of an emergency. The second is called a high-alert mode (hereinafter RPG) and should be used in case of a threat of an emergency. And the third is emergency mode itself (hereinafter referred to as the emergency situation) when the threat has come, and measures are required to eliminate it.

Previously, we considered the issue of the legitimacy of the RPG ^{[5, p. 224]}. However, we will repeat the main theses. Firstly, before the changes in April 2019, the Federal Law on Emergency Situations only regulated relations that developed as a result of natural and man-made emergencies, and the RPG did not provide for the volume of restrictions that were established for emergency situations. Secondly, the RPG allows the state to independently determine the range of obligations it is ready to assume—that is, there is a threat of insufficiency of such obligations depending on the will of the actor.

Features of the organizational activity of public authorities in the context of a pandemic

Executive power: Preventive measures related to the spread of the new coronavirus infection were taken by the Government of the Russian Federation back in December 2019 ^[6]. Despite the existing Government Commission for Combating Emergency Situations ^[7], which performs the functions of a coordinating body in cooperation between executive authorities and organizations, regardless of their organizational and legal form, on January 29, 2020, an operational headquarters was established in the Russian Federation on behalf of the Prime Minister (dated 01/27/2020) to prevent the import and spread of new coronavirus infections ^[8], coordinating the work of executive authorities, and giving recommendations and carrying out other activities within its competence. Later, operational headquarters were established in each subject of the Federation ^[9]. On March 14, 2020, under the Government of the Russian Federation, the coordinating council was established to combat the new coronavirus infection in the territory of the Russian Federation ^[10] headed by the Chairman of the Government of the Russian Federation, whose tasks, as in the previous two bodies, included addressing problems related to COVID-19, finding ways to solve them and organizing interaction between all levels of government.

In general, it should be said that the shift in focus in the Government of the Russian Federation’s work aimed to minimize and eliminate the consequences associated with the spread of coronavirus infection, resolving issues of repatriating Russian citizens from abroad, developing measures to economically support affected entities, improving the efficiency of the healthcare system, etc. Moving government events to an online format was actively involved.

Legislative power. From the very beginning of the pandemic, the legislative branch’s activities were also affected. For example, working hours changed, mass events were canceled, plenary sessions decreased, etc. The spring session in 2020 was limited to 42 plenary meetings, compared to 57 meetings a year earlier. However, paying attention to the statistical data ^[11], we note that the pandemic did not significantly affect the Parliament's consideration and adoption of bills. During the spring session, 621 draft laws were considered, and 312 laws were adopted. Compared with the previous spring session, the deputies considered 581 drafts and adopted 325 laws. The Federation Council has not rejected any law passed by deputies. There is also an increase in the share of so-called "permissive" laws associated with activities carried out to support the population and businesses during the pandemic.

Judicial power. Changes in work also affected the country’s judicial system. On March 18, 2020, the Presidium of the Supreme Court and the Council of Judges adopted a joint resolution ^[12] due to the threat of the spread of COVID-19 that provided for the suspension of personal reception of citizens, restriction of access to persons who are not participants in trials, remote filing of documents, consideration of only urgent cases, and the expansion of the use of online meetings. Then another resolution was adopted ^[13], allowing the courts to consider some cases without the parties' participation. From May 12, 2020, there was talk about restoring the courts, taking into account the established restrictions and recommendations ^[14]. The Supreme Court published two "coronavirus" reviews ^[15,16,17] concerning the application of both procedural and substantive norms in a pandemic.

Thus, we see a proportionate organizational response to the challenges dictated by the spread of the new coronavirus infection by all branches of government. However, it should also be noted that the need for the further development of measures that increase the efficiency of the authorities' work was not limited to what has already been created.

The role and place of human rights in the context of the spread of COVID-19

Due to the spread of COVID-19 in the territories of the vast majority of subjects, an RPG was introduced, which, as the coronavirus infection spread, was supplemented with measures restricting human rights.

In order to give legal force to the restrictions imposed by the supreme executive authorities, the Government of the Russian Federation approved rules of conduct that required the population and enterprises to comply with the measures imposed. Even though the Federal Law on Emergency Situations only allows the restriction of rights in terms of movement in the zone of an emergency or the threat of its occurrence, as well as the suspension of the activities of organizations that find themselves in the zone of an emergency, and only if there is a threat to the life of employees and other citizens, in fact, on the part of the executive authorities of the subjects, we see them going beyond the powers established by law, when the restrictions imposed, among other things, affected political, economic, social and other rights. For example, bans and restrictions were imposed on holding mass events ^[18], offline retail trade, and the provision of services to the population ^[19]. Restrictions also affected the movement of citizens in the territory of the Russian Federation. As S. S. Zenin correctly notes, the state authorities de facto failed to determine the limits of their competence in the current legal regime ^{[20, p. 78]}.

The analysis allows us to conclude that the legislative regulation of emergencies related to the spread of infectious diseases during the COVID-19 pandemic has changed. Therefore, the question arises: can an emergency situation for the spread of a novel coronavirus infection, being an existential threat on a global scale, exist outside the framework of a special state of emergency and without its official declaration on the territory of the country, if the Russian Constitution expressly provides for this?

Argumentation of the need to introduce a state of emergency

As you know, the restriction of human and civil rights and freedoms is possible on the basis of and in accordance with Articles 55 and 56 of the Constitution of the Russian Federation. A. A. Podmarev proposes to divide the constitutional norms regulating the restriction of rights and freedoms into three groups.

The first category includes restrictions on all rights and freedoms (Part 3 of Article 55, Part 1 and Part 3 of Article 17, Part 2 of Article 19, part 4 of Article 15). The second group includes the restriction of individual rights of the individual (Part 5 of Article 13, Part 2 of Article 20, part 2 of Article 23, Article 25, part 2 and 4 of Article 29, part 3 of Article 32, part 2 of Article 34, etc.). The third group concerns the norm allowing the restriction of rights and freedoms in extraordinary situations (state of emergency, article 56) ^{[21, p. 589]}.

Of course, there are many examples that are beyond doubt when rights are subject to restriction in conditions of normal life. For example, restriction of rights is allowed by the Civil Procedure Code (securing a claim) and criminal and criminal procedure codes (detention, preventive measures, deprivation of liberty, deprivation of the right to engage in certain activities). But, as a rule, such restrictions are associated with the participant in the process and their direct actions or inactions.

At the same time, restrictions under articles 55 and 56 may apply to an indefinite number of persons. At the same time, if Article 56 of the Constitution of the Russian Federation clearly defines the motive to introduce restrictions (a state of emergency), then Article 55 contains a list of reasons for the potential restriction of rights and freedoms. In particular, such restrictions are allowed to protect constitutional order, morality, health, rights, and legitimate interests of other persons, to ensure the defense of the country and the security of the state. Thus, Article 55 of the Constitution of the Russian Federation does not contain a direct indication of the conditions for the introduction of restrictions, and the list of grounds allows both the introduction of restrictions in everyday life and in emergency situations, which, in fact, leads to competition between Articles 55 and 56 in the event of an emergency.

The COVID-19 pandemic has revived the discussion regarding the application of the two above-mentioned norms ^[22]. Despite the support of the Constitutional Court of the Russian Federation, the approach chosen by the state received an impressive portion of criticism not only from constitutional scholars but also from other researchers. Thus, A. M. Konovalov notes that the introduction of RPG before the amendments to the Federal Law on Emergency Situations should be considered illegal (the amendments were put into effect on 04/01/2020), as the spread of infectious diseases did not relate to emergency situations regulated by this law and the persons who introduced these acts did not have the authority to do so ^[23]. I. A. Alabastrova emphasizes that the restrictions applied by the state are adequate only to the state of emergency but not to the high-alert regime ^[24]. G. B. Romanovsky also pointed out various legislative errors, including the absence of declared duties of citizens in high-alert mode, which may become a threat to the revision of the full range of state obligations in the field of human rights ^[25]. M. V. Agaltsova and T. V. Kyzy Imanova believe that: "The Law on Emergency Situations does not require either proportionality of measures or their periodic review—unlike, for example, the Constitutional Law on Emergency Situations" ^[26]. The chosen course of state regulation, which includes emergency rulemaking, and the adoption of unpopular decisions, became, as T. L. Kuksa writes, a burden for the entire system of support for the collective good and hindered the coordination and transactional effect of formal rules and institutions ^{[27, p. 185]}.

However, there are also fundamentally different points of view in the literature. For example, R. M. Dzidzoev, criticizing the supporters of the introduction of the state of emergency (hereinafter the PPP), argues in favor of the legality and validity of the "anti-covid" mechanism for the introduction of restrictive measures ^{[28, p. 35]}. In substantiation of his position, the author points out a slight difference between Articles 55 and 56 of the Russian Constitution, arguing that Article 56 of the Constitution of the Russian Federation is essentially a detail of Part 3 of Article 55, with the only difference being that it mentions a federal constitutional law instead of a federal law, which does not change the essence. Additionally, the author notes the legislative possibility of introducing "restrictive measures" in this regime and suggests not to identify restrictive measures, calling them security measures, with the restriction of rights and freedoms.

The author's conceptual delusion appears to us in the identification of Articles 55 and 56 of the Constitution of the Russian Federation. The systematic and interrelated interpretation of these articles leads us to the need to apply the doctrine known as the theory of law on the division of legal norms into general and special. According to this concept, general norms are designed to regulate social relations, and special norms regulate a subspecies or a certain part of these relations. As M. I. Baytin correctly notes, special norms are designed to specify the general ones as much as possible, adjust the temporal and spatial conditions of their implementation and ways of legal influence on the behavior of legal subjects, thereby ensuring uninterrupted and consistent implementation of general norms of law ^{[29, p. 208]}. For the persuasiveness of our arguments, we will use I. N. Senyakin’s "test," which identifies four distinctive features of special norms: derivation from general prescriptions; the purpose of their adoption is to achieve maximum effectiveness of the general rule of law; functioning in interaction with general rules of law; regulation of specific species relations ^[30]. So, as we have already noted, if Article 55 allows the restriction of rights by federal law for various purposes (security and defense of the country, constitutional order, public health) and conditions (normal life, emergencies), then Article 56 regulates public relations exclusively in the presence of a state of emergency (emergency nature of the situation). It has two strictly defined main goals: the safety of citizens and the protection of the constitutional order. Thus, it becomes clear that we are facing general (Article 55) and special (Article 56) norms, therefore it would be reasonable to apply the principle of lex specialis derogate legi generali, the essence of which is that in the competition of general (generalis) rules and special (specialis) priority in interpretation and application should be given to special rules.

In addition, it should be noted that the Russian Federation has ratified international treaties such as the International Covenant on Civil and Political Rights ^[31] (hereinafter IPPR) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (Russia has ceased to be a High Contracting Party to the Convention since September 16, 2022) ^[32] (hereinafter the ECHR), which impose certain obligations on the participating states (Article 4 of the IPPR, Article 15 of the ECHR) in the field of ensuring individual rights in emergency situations. To this extent, firstly, in the Federal Law on the State of Emergency, unlike the Federal Law on Emergency Situations, such duties are declared (a list of possible restrictions on rights, notification of the Secretary General of the Council of Europe, time frame) ^[33]. Secondly, the norms of international law require that the restrictions imposed be proportionate, specific, and contained in the relevant legislation ^[34]. However, it is difficult to imagine a situation where, within the framework of a high-alert regime, it is proportionate to introduce the number of restrictive measures that the Russian Federation has used to combat COVID-19. Thirdly, the Syracuse Principles on the Interpretation of Restrictions and Derogations from the Provisions of the IPPR of 1984 state that such restrictions and derogations of a state party may be applied "only when there are sufficient guarantees and effective remedies against abuse." Thus, the application of the Federal Law on Emergency Situations in the current situation clearly does not comply with the provisions of international law and, in the absence of clear legal regulation, actually provides the federal and regional executive authorities with carte blanche in decision-making, which can become a dangerous precedent for the development of similar situations in the future.

Regarding the possibility of introducing restrictions in high-alert mode, it should be said that such a mechanism in a real emergency situation does not comply with the principle of legal certainty and predictability. At the same time, we should not forget that some citizens' rights are declared only in an emergency situation, for example, compensation for damage (paragraph 1 of Article 18 of the Federal Law "On Emergencies).

The author's position on the non-identity of "restrictive measures" and the restriction of rights cannot be called successful either. In our opinion, if any measure, no matter what it is called, directly or indirectly restricts human rights, then by definition, it should be considered a restriction of rights, regardless of the function performed. It is not for nothing that both in the doctrine of law and in law enforcement practice, the restriction of rights is considered not only in a narrow but also in a broader sense, which makes it possible to define the abstract formulations of the legislator not as something foreign (restrictive measures, security measures, additional duties, etc.), but as a true restriction of rights and freedoms, as any legitimate encroachment on rights is nothing else than its restriction. For example, the suspension of the activities of enterprises from various spheres mentioned earlier ^[19] is nothing but a restriction of economic rights (Article 34 of the Constitution of the Russian Federation). The ban on mass events leads to a restriction of the individual's political rights (Article 31 of the Constitution of the Russian Federation), etc. Moreover, despite the abolition of all restrictions by Rospotrebnadzor, which were introduced due to the coronavirus pandemic, holding rallies, and pickets still remain unavailable with reference to the action of the RPG ^[35]. Under such circumstances, it seems obvious that, given the nature of the pandemic, introducing a state of emergency in the country's territory, or at least in certain localities, is a more understandable and reasonable response tool.

In the history of modern Russia, this is not the first case when abuse of authority has occurred on the part of state bodies, expressed in the non-application of appropriate exceptional regimes. Such actions were noted both during the period of the first Chechen military company, which applied the "regime for restoring the foundations of the constitutional system, constitutional legality and law and order in the territory of the subjects of the Russian Federation," which was not provided for by law, and in the second phase of the Chechen company, which received the official name of the counter-terrorist operation in the North Caucasus, with the introduction of the corresponding regime ^[36]. In the first case, the Constitutional Court ^[37] noted the partial inconsistency of the Presidential Decree ^[38] with the norms of the Constitution. Secondly, several researchers argue about the compliance of the counter-terrorism operation regime with actual events ^[39,40]. All this leads to a systemic violation of human rights ^{[41, p. 98]}.

The fact that in the Federal Law on Emergency Situations and the acts of the supreme executive authorities of the subjects, there is no reservation about the duration of the high alert regime is also of concern. Even if we consider that the duration of the restrictions themselves is determined, the regime's operation allows authorized entities to use restrictions as a legitimate tool at any opportunity. Such an approach seems unreasonable and, without censure, can lead to a situation where illegality will be justified and normalized.

Conclusion

Thus, we come to the conclusion that the provisions enshrined in Part 3 of Article 55 of the Constitution of the Russian Federation, in comparison with Article 56, contain general conditions for the institution of restriction of human and civil rights and freedoms. In contrast, Article 56 of the Constitution of the Russian Federation establishes special grounds for restricting individual rights.

That is why we believe it is reliably justified to apply a special norm of the Constitution of the Russian Federation in the event of an emergency. The elimination of ambiguous interpretation in the future, we see in the adoption, taking into account the positive experience of legal regulations of other special regimes and accumulated experience in dealing with various emergency situations, of a single Federal Constitutional law "On Special Legal Regimes," which will combine all types of emergency situations and systematize their legal regulation.