Published on 15 May 2023

FOURTH SECTION

Application no. 51319/20 Ljubica MANDIĆ against Serbia lodged on 13 November 2020 communicated on 27 April 2023

SUBJECT MATTER OF THE CASE

The application concerns a measure of temporary restriction on the freedom of movement, targeting in particular elderly persons, which was adopted by the Serbian authorities in the context of the first lockdown of 2020 on account of the Covid-19 pandemic. Serbia has made derogations pursuant to Article 15 of the Convention on 7 April and 13 October 2020.

In 2020 the Misdemeanour Court in Zrenjanin found the applicant, at the time 74 years old, guilty of violating the above-mentioned restriction and fined her with approximately EUR 420. Her subsequent appeals were dismissed as unfounded. The final domestic decision was given by the Constitutional Court on 22 December 2021.

Relying on Article 14 of the Convention the applicant complains that the contested measure and her conviction violated her right to freedom of movement and were imposed on the basis of discriminatory criteria, unjustifiably distinguishing between the general population and persons over 65 years of age. This complaint also falls to be examined under Article 2 of Protocol No. 4 to the Convention.

Furthermore, referring to Article 15 of the Convention, the applicant claims that the restriction of freedom of movement was not strictly required by the exigencies of the situation.

QUESTIONS TO THE PARTIES

1. Did the Government’s derogations 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. Has there been a violation of the applicant’s right to freedom of movement, contrary to Article 2 of Protocol No. 4 to the Convention? 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 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?

3. Has the applicant suffered discrimination in the enjoyment of her right to freedom of movement in relation to persons younger than 65, contrary to Article 14 of the Convention, read in conjunction with Article 2 of Protocol No. 4 to the Convention?

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 one’s 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 persons over 65 years of age and concerning the essentials for daily life during the relevant period.