Published on 23 January 2023

FOURTH SECTION

Application no. 48973/20 Vesna PEŠIĆ against Serbia and 2 other applications (see list appended) communicated on 5 January 2023

SUBJECT MATTER OF THE CASE

The applications concern the measures adopted by the Serbian authorities in the context of the first lockdown of 2020 on account of the Covid-19 pandemic.

In particular, in the wake of the COVID-19 pandemic, the Serbian authorities declared a state of emergency, between 15 March and 6 May 2020, and introduced a set of extraordinary measures in order to prevent the spreading of the SARS-CoV-2 coronavirus. In this respect, the Secretary General of the Council of Europe received a notice of derogation from the human rights and freedoms enshrined in the Convention, as stipulated under Article 15 of the Convention.

In this context, the Serbin authorities introduced, by successive bylaws, a set of extraordinary measures including temporary restrictions on the freedom of movement of the population. In respect of a particular category of elderly persons over 65 and 70 years, in the urban and rural arears, respectively, the bylaws were amended on several occasions. An initial 24 hours ban on movement lasted four days. As of 21 March 2020 over the following 30 days, elderly people were allowed to leave their homes for 60 minutes once a week, on a specific day (Saturday and subsequently Friday), in the early morning hours (from 3 to 8 am and subsequently from 4 to 7 am), only to buy groceries. Afterwards, they were allowed to leave their homes for 30 minutes, between 6 pm and 1 am, three times a week, on particular days, for a walk within a radius of 600 m from their domicile. As of 25 April, they could spend an hour outdoors every day within the same radius. Persons noncomplying with the regulations could be held liable for a criminal offence or misdemeanours and sentenced up to three years’ imprisonment and/or fines up to 150,000 Serbian dinars (approximately 1270 euros). In the meantime, the rest of the population was under lockdown in the nights, on weekends and/or during holidays, save in exceptional circumstances and with the authorisation provided by the competent authorities.

The applicants belong to the category of elderly citizens to which the above-mentioned measures have been imposed. The first applicant is a well-known former politician and a member of the Serbian Parliament in office between 2007 and 2012.

On 17 September 2020, the Constitutional Court refused a large number of initiatives of individuals and several NGOs to open the proceedings for a review of constitutionality and legality of, inter alia , the aforementioned measures, finding that they were not in contravention of the Constitution. The applicants’ constitutional appeals, which had been considered by the Constitutional Court as such initiatives, were equally rejected.

Furthermore, by 3 February 2022, the action in discrimination introduced by the applicant in application no. 48973/20 was dismissed by the competent civil courts, stating that the contested measures had been necessary and proportionate, with reference, inter alia , to the findings of the Constitutional Court.

The applicant in application no. 48973/20 complains under Article 2 of Protocol 4, alone and in conjunction with Article 14 of the Convention, that the contested measures were in contravention with her right to liberty of movement and were imposed on the basis of discriminatory criteria, unjustifiably distinguishing between the overall population and elderly over 65 or 70 years old.

Relying on Enhorn v. Sweden (no. 56529/00, ECHR 2005 ‑ I), all applicants further allege, under Article 5 §§ 1, 2, 4 and 5, read alone and in conjunction with Article 14 of the Convention, that these allegedly discriminatory measures, in view of their degree of intensity and form, were tantamount to house arrest and further constituted an unlawful, unnecessary and discriminatory deprivation of liberty. They also complain that they were not informed of the reasons for their alleged deprivation of liberty, they could neither challenge the lawfulness of their confinement nor claim any compensation for the alleged violation of their rights.

Lastly, the applicants in applications nos. 54565/20 and 54676/20 complain under Article 13 of the Convention about the lack of an effective domestic remedy in respect of the above complaints.

QUESTIONS TO THE PARTIES

1. Did the Government’s derogation from the rights and freedoms enshrined in the Convention comply with the requirements of Article 15 §§ 1 and 3 of the Convention? Did the Government’s derogation under Article 15 of the Convention apply in the present case and were the measures taken strictly required by the exigencies of the situation?

2. In any event, in view of all the circumstances, including - but not limited to - the nature of the contested measures and the Constitutional Court’s jurisprudence on the measures introduced in the context of prevention of the spreading of the SARS-CoV-2 virus (see e.g. the Constitutional Court’s decision IUo – 45/2020), have the applicants exhausted the domestic remedies which were effective and accessible to them?

3. Assuming that domestic remedies have been exhausted, has there been a violation of the applicants’ right to liberty of movement, contrary to Article 2 of Protocol No. 4? In particular, was the restriction of that right in the present case in accordance with the law and necessary, within the meaning of Article 2 §§ 3 and 4 of Protocol No. 4, in view of the wake of the COVID-19 pandemic and of the need to protect the population’s health? What is the scope of the State’s margin of appreciation in this context? Have the authorities envisaged or considered any less severe measures in the present case to achieve the aim pursued?

4. Have the applicants suffered discrimination in the enjoyment of their right to liberty of movement, contrary to Article 14 of the Convention, read in conjunction with Article 2 of Protocol No. 4 to the Convention?

5. Did the applicants have an effective domestic remedy at their disposal, as required by Article 13 of the Convention, for their complaints under Article 14 of the Convention and Article 2 of Protocol No. 4 (see also the question no. 2)?

The Government are further invited submit copies of the relevant legislation and practice concerning (a) the imposed measures, (b) the procedure for seeking authorisation to leave domicile despite the imposed measures, and (c) how the exceptional and justifiable reasons for which authorisation could be granted have been interpreted by the competent authorities. The Government are also invited to inform the Court of any social, health-related or other kind of protection or assistance envisaged or provided for by the competent authorities, in respect of the category of elderly persons over 65 and 70 years and concerning the essentials for daily life during the relevant period of time.

Lastly, the Government are requested to provide a copy of the decisions of the Constitutional Court IUo – 42/2020 and IUo – 45/2020, together with dissenting and/or concurring opinions, in Serbian, as well as a copy of those decisions translated into English.

APPENDIX

List of applications:

No.

Application no.

Case name

Lodged on

Applicant Year of Birth Place of Residence Nationality

Represented by

1.

48973/20

Pešić v. Serbia

27/10/2020

Vesna PEŠIĆ 1940 Belgrade Serbian

Vladica ILIĆ

2.

54565/20

Đorđević v. Serbia

02/12/2020

Dragica ĐORĐEVIĆ 1954 Leskovac Serbian

3.

54676/20

Ilić v. Serbia

02/12/2020

Dragiša ILIĆ 1954 Leskovac Serbian