The international lawyer Giovanni Caporaso Gottlieb briefly analyzes the measures taken by many countries that limit fundamental rights.
The emergency that the world is living due to the Coronavirus or COVID-19 brings us to the necessity of making a careful legal analysis of the urgency decrees that governments are putting into action. First, the term Pandemic used by the O.M.S. is excessive, but the limits on freedoms laid down and guaranteed by the Constitution of every country are even more excessive.
The restrictive measures applied regarding closing commercial businesses and offices, besides the restrictions imposed on people’s free circulation, with the criminal and administrative punishment, violate the right to free circulation of citizens in the national territory and encroach on personal rights that are undoubtedly the most important fundamental rights of man. Not to mention the right to work. In my opinion, these rights are imperative unless there are restrictive provisions by legal authorities. The restrictions imposed by the anti-Coronavirus norms also limit social relations, which is a prerogative of human as a “social animal”.
It’s clear that these restrictive measures represent a sensitive vulnus to the imperative primary right to free self-determination.
Let’s remember that in the majority of countries, the right to health is laid down, but not the obligation to health; therefore, if a person doesn’t have the disease, he is not a danger to others and must have the right to decide whether he can go out or not, if he can work or not and so forth.
Most of these decrees are subject to appeal before ordinary judges and this is why some governments have also suspended Courts operations. Therefore, we recommend that those who have been subjected to fines to consult an attorney in their country to analyze a possible appeal of the provision.
The first sentence against the restrictions was issued by the Regional Administrative Court of Campania, Italy.
The Judge annulled an administrative order issued against an Italian citizen by law enforcement.
The citizen decided, despite the enforced quarantine, to go to work and to go buy some cigarettes.
The Campanian Court said he was right, annulling the administrative provision that had ordered him to remain at home.
This is the motivation for the judiciary provision: “… having discovered at the state of the acts the plausibility of what has been deduced in the result of the essentiality of the path followed from his own home to the cigarette vending machine and maintaining that the extreme seriousness and urgency should be appreciated even in the adequate consideration of the justifying ends and measures. The appeal was received with the exclusive referral to the cease and desist and to being put in quarantine in relation to said professional obligations, in the limits to how much they are necessarily connected and in the respect of all other measures, conditions and precautions known to the plaintiff.”
On the other hand, if the Coronavirus isn’t killed, we will soon die of either boredom or hunger because there’s no use keeping supermarkets open if we don’t earn money to buy food with. I’ll let each person draw their own conclusions, and I recommend carefully reading the Constitution of each one’s country, because constitutional freedoms can’t be annulled with a swipe of a sponge and be called a clean slate.
