The introduction of lockdown restrictions that led to imposing limits on the right to move freely is certainly a once-in-a-lifetime occurrence for states in peacetime; that is why they present a peculiar circumstance with regards to constitutional rights of the people or otherwise put, towards the basic right of freedom. The clash between policies aiming at protecting the people amidst a global pandemic and the right to personal freedom poses a significant dilemma: how far can restrictions go in the name of health and safety before breaching the fundamental human right to freedom?
Personal freedom, which includes the right to move freely and the right to move beyond borders is established firmly in Arts. 5 & 6 of the Greek Constitution. The right to free movement has some limited qualifications. Specifically, Art. 5(4) prohibits convicted persons (who are not permitted to hold passports) to exit the country under an executive decree. The Greek Constitution has been interpreted to afford the executive the power to impose measures restricting personal freedom on the basis of ensuring public health and safety. To date, restrictions of this type have been allowed in cases where there is ‘suspicion’ that a person or a group of people are carriers of an infectious disease that poses a threat to the health and safety of the pubic.
According to the European Court of Human Rights (ECtHR) in Enhorn v. Sweden, and in the case of Greece, Arts. 5(1)(e) and 6 of the Greek Constitution, restrictions to personal freedom for health and safety reasons are only equitable when three criteria are met: first, the affected person or group must be able to seek judicial recourse that will be able to deliver on the legality of the restriction; second, the disease affecting the person or group must be infectious and endangering public health and safety; last, the restriction of personal freedom should be the ultimate measure to stop the infection of the public, meaning that lesser measures must have been put in place first and been proven as insufficient or inappropriate.
When it comes to restricting the personal freedom on a collective level, the legal nature of the issue becomes complicated, since Art. 5 does not explicitly refer to collective measures on the matter. Accordingly, Art. 5 is silent on whether measures collectively restricting personal freedom can be enforced within its scope in an attempt to uphold another constitutional right, such as the right to public health and safety, which is duly established in Arts 5(5), 18(3), 22(4). The answer to this challenging question cannot be other than in the affirmative. The executive's decision to restrict personal freedom gains legitimacy because of the need to protect public health and safety and by the obligation on citizens to take all precautionary measures to protect others in the context of social solidarity (Constitution, Art 25(4)).
International law follows the above interpretation, which establishes firmly the duty of care to prevent and treat cases that endanger public health and safety. The duty of care is established in a series of human rights, and in particular the right to life, established under Art. 2 of the European Convention on Human Rights and the list of positive duties to protect human life; the right to health found under Art. 12 of the International Covenant on Civil and Political Rights and the International Health Regulations, which place obligations on the executive to deal effectively with any incident that endangers public and international health.
Accordingly, the state is not only empowered to place restrictions on personal freedom(s) to deal with a pandemic, but in such case, it is under an obligation to do so. This means that in exceptional circumstances i.e. when dealing with a pandemic it is in the government’s discretion to not only impose lockdowns, but to also take additional restrictive measures. Unavoidably, this raises questions about the need for restrictions on the right to personal freedom in general.
Covid-19 quickly transitioned from a localised epidemic to a global pandemic and found many – if not most, state and local governments unprepared to deal with the situation and its ramifications. The pandemic presented a particularly tricky situation to the Greek government, which responded relatively early with a strict, nationwide lockdown. It seems that the executive was aware that no matter how fast the cases were identified, and the contacts traced, that the rapid spread of the virus could not be limited without a nationwide lockdown, enforced zealously and social distancing measures, on an individual and collective level.
The measures that were adopted with the introduction and implementation of legislation No 4682/2020 (aiming at the regulation of the behaviour of individuals) certainly constitute a limit to personal freedom. Moreover, these measures can be legally justified under Art 5 of the Greek Constitution, because they have a certain time limit and are compliant with the proportionality principle. Perhaps problems occur regarding the specific measure of house confinement, which leads to the direct deprivation of personal freedom. However, as mentioned, the measure remains lawful since one has the right to pursue a legal remedy by presenting counterarguments in court.
The measures that were adopted at a collective level with the legislation No 20036, imposed restrictions on personal freedom nationwide. Certain exceptions were made available in order to cover vital needs e.g. for basic personal needs, work, etc. A fine of €150 or €300 (depending on the distance) was imposed in those cases, where individuals would move outside the local area of their permanent residence, and in those cases where individuals would leave their local area by car, the measures even ruled the possibility of the removal of the car’s licence plates as a fine. Undoubtedly, such measures constitute a substantive restriction to the right to move freely within the Greek territory.
The Covid-19 measures, as has already been argued, are firmly legally founded both in the constitution and international law. However, to properly assess the constitutionality of the measures, it is necessary to examine whether the measures were in line with the principle of proportionality and importantly, whether they are appropriate and fit for the purpose for which they were taken. It is evident from the analysis so far that the measures do not essentially invalidate the core of the right, as the basic elements of the right (the way, time, place, exercise of the right) are complied with.
Perhaps an issue of constitutionality may arise with regards to measures such as the ability to only exit one's home once per day or a ban of moving for an extended period such as overnight, or the obligation to disclose the exact duration and purpose of travel, measures that were occasionally enforced during the lockdowns in Greece. To answer questions of proportionality and effectiveness, it is necessary to observe the following; in cases that can quickly escalate to uncontrollable proportions, such as this case and take the lives of an incalculable number of people, the competence of constitutional evaluation lies first with the Parliament and then with judicial review, where it will be judged whether measures have been inappropriate. The judiciary, in such cases, must give the lead to the legislator, the Parliament, and to the government that imposes the measures and which is accountable to the people.
In light of the above, physical restrictions on the general population seem constitutionally tolerable, because they are taken to address an emergency, while according to experts they can be defined as the most appropriate means of limiting the spread, especially since there is no alternative way of managing the situation. This view is reinforced by the very fact that the competent executive bodies, have taken additional measures to limit mass gatherings, such as the suspension of schools, public services and even catering and entertainment venues, measures imposed earlier, as alternatives.
It has been argued by various actors that the strengthening of the National Health System, to a level that it can accommodate large numbers of patients, could be an alternative and more appropriate measure to the physical restriction of the general population. However, this argument is not convincing. The obligation to strengthen the public system does not negate the duty of care and obligation to take preventive measures for the protection of public health. This position is further reinforced by the expert view that physical distancing is the only means for the health system to cope.
Any measure imposed must be based on scientific evidence demonstrating an urgent need for physical distancing measures, have a specific justification, and be continually re-evaluated. However, the situation and the specific living conditions shaped by the respective measures must be revised on an ad hoc basis, to avoid the measures becoming arbitrary or unnecessary. Accordingly, enforcing e.g. a ban for traveling to an island to provide assistance to a helpless parent could be considered as infringing the right to privacy and an undue restriction. The risk of police malpractice is also high in the absence of clear instructions from the competent authorities, especially in those cases of going out to exercise, which, however, must be short and close to the place of residence. These are restrictions that have no legal basis and in case of a fine, enforcement will suffer from a legal defect, while under certain conditions it can raise civil liability on the part of the state.
Accordingly, it is clear that in order to be able to provide solutions, and not to remain "distant" from social needs, the Constitution must adapt to the current circumstances. In this case, observing social reality means that the Constitution ‘stretches’ enough to allow for restrictions to personal freedom, but perhaps not for nuanced executive measures, such as disclosure of one’s whereabouts and reason for exiting one’s home, and non-compliance while being threatened with fines.
Enhorn v Sweden ECtHR Decision of 25.01.2005, 56529/00
P. Dachtoglou, Personal Rights Part A, (2005, Ant. Sakkoula)
K. Chrysogonos, Personal and Social Rights, ( 2017, Law Library)