In these complicated days, the minds of the lawyers must be clear, because from them are expected answers to some fundamental questions about what will happen. More precisely, what does it mean to establish, announced for March 16, 2020, the state of emergency. In this context, the team Costaș, Negru & Asociaţii set out to provide some details about the state of emergency and the general context of the problem. We chose the simpler version, in the form of Q (uestions) & (A) nswers, as much as possible in a language accessible to all who read us.
Is there a legal basis for establishing a state of emergency?
The legal basis for establishing the state of emergency is the O.U.G. no. 1/1999 regarding the regime of the state of siege and the regime of the state of emergency (M. Of. No. 22 of 21.01.1999), with the subsequent modifications. This normative act was adopted in the context of a serious internal crisis, at the beginning of 1999, to provide then the necessary normative framework for declaring the state of emergency. Because the legislative basis has not been seriously re-examined in the last 20 years, the O.U.G. no. 1/1999 is an outdated normative act, which provides relatively few details about what could happen, concretely, during the declaration of the state of emergency.
What is the state of emergency?
The state of emergency is a special regime of legality which involves firstly the extension of the ordinary prerogatives of the civil authorities (especially the Government and the police forces), in order to maintain the public order or to prevent or reduce the consequences of a calamity (for broader explanations, if any). see I. Deleanu, Constitutional institutions and procedures – in Romanian and comparative law, CH Beck Publishing, Bucharest, 2006, p. 442). In other words, in the case of establishing the state of emergency, new legal rules, derogating from those we know, of a political, economic and public order nature, will apply. In fact, the state of emergency is the easiest hypothesis in which the mentioned prerogatives are extended, theoretically in case of internal crisis or of severe external tensions. It differs in both the state of siege (special legal regime whose establishment is possible to overcome the inherent difficulties resulting from a foreign threat or insurrection, under the same GEO no. 1/1999), as well as the state of war (the situation resulting, internally and in the field of international relations, from the fact that two or more states are in a state of war), significantly worse situations.
What is the urgency that justifies the establishment of the special emergency regime?
According to data provided by the World Health Organization, as of December 31, 2019, COVID-19 cases have been reported worldwide (the first case coming from Wuhan, China). From a medical perspective, coronaviruses are a family of viruses that can cause disease in humans and animals. As for humans, more coronaviruses cause respiratory infections ranging from the common cold to more serious diseases like Middle East Respiratory Syndrome (MERS) and Severe Acute Respiratory Syndrome (SARS). The most recently discovered coronavirus causes COVID-19 (or, more completely, SARS-CoV-2), an unknown infectious disease (as well as the new virus) until its emergence in China in December 2019. At the moment , The World Health Organization has partial data on how the virus spreads and its effects on human health (from what is known, the virus is transmitted from person to person through nose or mouth secretions, especially when these secretions enter into contact with the eyes, nose or mouth of another person; approximately 80% of infected persons recover without any treatment; as a rule, one in six people infected with coronavirus develops a severe form and difficulty in breathing; the elderly and those with diseases pre-existing ones such as high blood pressure, heart disease or diabetes are most at risk).
The most recent data available show that worldwide, as of March 15, 2020, a total of 152,428 persons were confirmed to be infected, in 141 states and territories, with a death toll of 5,720 persons. Although the new coronavirus was discovered in China (the country where most deaths were recorded), the epicenter of the pandemic is currently in Europe. According to the latest data available at the time of writing this material, Romania registered a number of 131 confirmed cases, without any death.
Therefore, the urgency to justify the adoption of special measures is represented by the possibility of uncontrolled spread of the new virus, with the consequence of increasing the number of infected persons and, finally, of increasing the number of people who could be significantly affected.
In a very broad sense, this hypothesis falls under art. 3 lit. b) from O.U.G. no. 1/1999, namely the imminence of the production or production of calamities that make it necessary to prevent, limit or remove, as the case may be, the consequences of disasters. Of course, as I mentioned before, this legislative text should be brought to the 21st century level, since it now seems to cover only the hypotheses of natural disasters or disasters, and not the hypotheses of health or other crisis (eg. Cyber attack) with influences on communication networks).
How and for how long is the state of emergency established?
O.U.G. no. 1/1999 provides for a special mechanism for establishing the state of emergency, which involves the President of Romania, the Prime Minister and the Parliament. In fact, if the President decrees and motivates the establishment of a state of emergency, Parliament is the one who is called to approve, within 5 days from the establishment, the measure adopted. The Parliament may reject the establishment of the state of emergency, in which case the President of Romania shall immediately revoke the decree establishing the state of emergency (art. 12-13 of the O.G. no. 1/1999). The state of emergency is established for a period of maximum 30 days and can be extended with periods of maximum 30 days.
What will be the measures to be taken, if the state of emergency is established?
O.U.G. no. 1/1999 provides, with a general and exemplary title, what measures could be instituted during the period in which, throughout the territory of Romania or in a certain area, the state of emergency is decreed. It should be noted, as a priority, the fact that the decree establishing the state of emergency will designate the military authorities and the public authorities that will receive special tasks, namely they will take over some of the duties of the central and local public authorities (art. 7 of GEO no. 1 / 1999). The same decree of the President of Romania will determine the concrete reasons for establishing the state of emergency, the period during which the state of emergency is established, the first emergency measures to be taken, the fundamental rights and freedoms whose exercise is restricted (art. 14 of GEO no. 1/1999). The management of the measures taken is the responsibility of the National Emergency Management System, under the direct management of the Minister of Administration and Interior and in the coordination of the Prime Minister. During this period, military authorities or public authorities acquiring special powers may issue military orders or mandatory orders.
As we mentioned before, the measures whose establishment will be allowed, according to art. 20 of the O.U.G. no. 1/1999, have different hypotheses imagined by the legislator, without complying with the imperatives of the present sanitary situation. Thus, for example, in art. 20 lit. k) from O.U.G. no. 1/1999 talks about the possibility that the authorities designated by the President of Romania “temporarily suspend the appearance or dissemination of some publications or broadcasts of radio or television stations”. This provision is obviously outdated, given that there are very few publications that appear in print format, and radio and television stations (like all mass media, including social networks) are essential partners. to make public any measures that will be implemented. Also, given the fact that we are not facing a military danger or any armed insurrection, it is unlikely to resort to the measures provided by art. 20 lit. b) from O.U.G. no. 1/1999, respectively the submission to the police bodies of weapons, ammunition and explosive materials on the population and the temporary closure of companies that sell weapons and ammunition, under guard.
Therefore, in relation to what we know today and especially to the urgent situation that will determine the establishment of the state of emergency, we consider that measures such as:
– limiting the movement of persons and / or vehicles, in certain areas, between certain areas or throughout the country, or between certain hours, in order to avoid the spread of the virus (with an extreme variant, that of closing the borders of the country for a limited period, in same purpose);
– further prohibition of public gatherings, demonstrations and marches;
– Prohibition, further, of the activities and didactic, cultural, sports, political and in general of any activities that involve direct contact between persons;
– the creation of health protection areas; – organization of medical facilities that allow the treatment of contagious persons without the risk of contamination of other persons;
– temporary closure of some public places (bars, cafes, restaurants);
– limitation of contact with public and central administration authorities;
– limiting access in certain public spaces (for example, within the shopping centers, by limiting the access program);
– restriction of the work program for public institutions and / or private operators, etc.
It should be specified that, although the state of emergency is not established, at present several measures of the type of those that could be taken are applicable, according to art. 20 of the O.U.G. no. 1/1999. For example, in the previous days concrete measures were taken that aimed at the prohibition of public gatherings or events (under 1,000 people or under 100 people), the prohibition of making flights to and from certain destinations, the ban on boarding to Romania of foreign citizens coming from Italy, China, South Korea or Iran, delaying the start of the work program for public institutions and private operators, restricting access to judicial institutions etc.
At the same time, some public authorities and institutions have already taken precautionary measures and limited their activity, and some private operators have adopted their own measures to combat the spread of the virus (including extreme measures such as temporary closure of bars or restaurants. or the temporary cessation of the provision of some services or the provision of these services only by means of distance communication).
Can we expect more radical measures?
In our opinion, more radical measures or measures aiming at significant restrictions on fundamental rights and freedoms are unlikely. Thus, in order to ensure a supply system in line with the requirements of today’s society, it is expected that the military and / or civilian authorities will not block the transport and / or movement of vehicles providing the supply of commercial networks. We believe that a restriction of access to public services such as electricity, water, natural gas, heat, telephony, Internet is not foreseeable, given that the imperatives of the health crisis require that individuals remain at home for as long as possible. to use each of the mentioned public services.
In the worst case, if the number of infected and / or isolated or quarantined persons increases significantly and this will make it impossible to treat / monitor all persons in medical units or quarantine facilities, it could be discussed about the creation of facilities additional (for example, in hotels or other accommodation) and about mobilizing additional resources to ensure the operation of these additional facilities.
What economic measures are being taken during the emergency?
As mentioned at the beginning of this presentation, the O.U.G. no. 1/1999 created the framework for taking urgent measures to ensure the functioning of the State and its authorities, in order to protect citizens and constitutional democracy. The mentioned normative act did not regulate itself and did not open, theoretically, the possibility of taking measures to support the economy or certain branches of the economy or some affected economic operators. However, there is no legislative provision that prohibits the Government and / or Parliament from proposing and adopting such measures, such as: tax reductions, taxes and contributions during the health crisis and the state of emergency; granting state aid, either to support the balance of payments or to pay current debts; interest subsidy for some credit lines; the global deferral of the payment of bank debts for the people who due to the health crisis or the state of emergency lost their jobs or suffered a significant decrease of the income etc. Moreover, international practice denotes precisely the adoption of such measures to support the economic sectors seriously affected by the health crisis (measures that are independent of the decree of a state of emergency).
Will the activity of the public justice system be affected?
The judicial activity is already affected, in the last two weeks it has been difficult, either as a result of scheduling hours, or with delaying the cases / changing the time limits. Currently, most of the courts have suspended their activity (judging only urgent cases, especially of a criminal nature), and the activity of public relations is blocked. It is expected that this situation will last at least as long as the state of emergency, with significant consequences on the possibility of the auxiliaries of justice to exercise their duties and with significant delays in the completion of cases. At least so far, no possibilities have been identified to continue the trial of cases by using modern means (for example, in the video-conference system) and no measure has been announced to extend the judicial time limits. Therefore, as long as the postal services are functional, and the courts submit requests for legal proceedings, summonses, expert reports, drafted judgments or remedies that have reached the court, lawyers and other legal professionals must comply with the procedural requirements and must draft / transmit the works of a legal nature within the legal terms, subject to the sanction of the lapse of the procedural rights.
