No. 43




Rule of Law During the Pandemic

09 June 2021


RiTo No. 43, 2021

  • Ülle Madise

    Ülle Madise

    Chancellor of Justice of the Republic of Estonia

  • Olari Koppel

    Olari Koppel

    Eesti Vabariigi õiguskantsleri asetäitja-nõunik, õiguskantsleri kantselei direktor

Even during the crises, including epi­demics, restricting of fundamental rights has to be justified, instead of justifying not restricting, or allowing the rights or freedoms that are granted by the Constitution.

Only unavoidable restrictions that correspond to the principle of proportionality enshrined in the Constitution are legal. Imposing of restrictions should be based on an analysis that makes a distinction between activities with low, average and high risk of infection and takes into account the possibilities for risk reduction. Setting different activities against each other is not proper – what is important for some may be meaningless to others.

In a state based on rule of law, the principle applies that the damage caused by restrictions should never exceed the profit expected and received from that measure. All restrictions that have little impact on the spread of infection, and strict restrictions that have alternatives with milder impact should be illegal and thus prohibited.

The impact of each restriction should be assessed both separately and as a part of a set. Prohibitions and orders should have a cause-and-effect relationship with the reduction of infections taking into account their real predicted impact. If the government does not ensure following the restrictions that are already imposed, new restrictions cannot be considered justified either. In order to prevent violations, those who violate restrictions should be called to order, instead of imposing even stricter restrictions to all. Making a healthcare event a police event is not reasonable and may bring along unwanted side effects, from concealing of infection to knowledgeable risk behaviour.

In the case of a new, unknown and potentially large threat, restrictions may at first be imposed by precautionary principle. But when the danger is no longer unknown, if the character of its spreading, its impact and the measures necessary for managing it are known, transition to restrictions with proven effect is necessary.

It should be possible to contest restrictions effectively and rapidly if necessary. The barriers set to restriction of fundamental rights should be sufficiently high and strong to ensure that this extreme measure is implemented only in a really extreme situation and purposefully. The question of whether it is constitutional to impose restrictions with great economic and social impact by a general order should be resolved as soon as possible. The legal form used for imposing restrictions precludes effective monitoring of legality and protection against excessive restrictions.

Without losing time, it is necessary to start striving for objective truth and analysing the real impacts of all restrictions without looking for culprits. As most probably this pandemic will not be the last, it would be good to make use of the fruits of such a peaceful investigation in the future.