Lithuania’s Response to COVID-19: Quarantine Through the Prism of Human Rights and the Rule of Law

1. Introduction

Like elsewhere, the COVID-19 pandemic has disrupted public life and state affairs in Lithuania. The outbreak constitutes an unprecedented challenge in the history of independent Lithuania, which in its 1992 Constitution embedded a broad list of human rights and freedoms. Even before the first case of the disease had been registered, on 26 February 2020, the Lithuanian Government declared the state of ‘extreme situation’ upon a proposal from the Commission on Extreme Situations. On 27 February, the Prime Minister appointed the Minister of Health to the position of State-Level Chief Operating Officer for Extreme Situations (‘the Chief Officer’). Once COVID-19 cases started to emerge, on 14 March the Government adopted Resolution No 207 introducing quarantine in the territory of Lithuania (‘the Quarantine Resolution’), which placed restrictions on various constitutional rights. In the words of the Prime Minister: ‘The decisions taken are not simple and require drastic, important measures, which are necessary to control the spread of the virus.’ The Quarantine Resolution is a secondary legislation issued on the basis of the Law on Civil Protection and the Law on the Prevention and Control of Contagious Diseases. The initial duration of quarantine was set for 16-30 March, but it has been extended until 31 May.

2. Pre-existing emergency powers

Under Lithuanian law, different legal regimes might be applied to emergency situations: state of emergency (‘nepaprastoji padėtis’, Article 2.1. of the Law on State of Emergency and Articles 144, 145, 147, 67(20) and 84(17) of the Constitution), extreme situation (‘ekstremalioji situacija’, Article 2.6. of the Law on Civil Protection) and quarantine (‘karantinas’, Articles 2.21, 21.1 and 21.3 of the Law of Contagious Diseases). The Quarantine Resolution introduced a mixed legal regime, by combining extreme situation and quarantine.

According to the Constitution, a state of emergency can only be introduced by the Parliament (the Seimas) when the constitutional order or social peace are under threat. If the Seimas happens not to be in session, the President can also make the decision, which the Seimas can reject. The question whether COVID-19 circumstances may have required a declaration of a state of emergency instead of quarantine has been discussed by various legal experts. The opposition leader sought the opinion from the Seimas’ Legal Department arguing that the Government had possibly acted ultra vires. The Head of the Department responded that the chosen legal basis was the appropriate one. However, given that Lithuania follows the model of parliamentary democracy, greater parliamentary scrutiny on the matter would have been welcome. The question of which legal regime should apply is not just a theoretical one, but could have implications for future litigation against the State arising from the restrictions imposed (Article 6.127.3 of the Civil Code).

3. New powers in the context of COVID-19

Regarding the institutional setup, besides the Government, the emergency powers are also exercised by the Chief Officer, who decides upon quarantine measures. The Resolution allocates duties and competences – for COVID-19 population data reporting and distribution of personal protection equipment – to municipalities, public health bodies, and other relevant state authorities (Articles 4.2, 4.3). One example of combined action of the Quarantine Resolution and the Chief Officer’s Decision was sealing off the town of Nemenčinė, near Vilnius, due to the dangerous spread of COVID-19. While the Resolution specified the length of the lockdown (16-23 April) and how free movement should be limited, the Chief Officer’s Decision focused on testing the population and compulsory isolation or hospitalisation for those who refuse to undergo testing in accordance with the Law on Contagious Diseases.

To ensure the enforcement of quarantine rules, the police were given powers to impose administrative fines for violations of mandatory isolation of certain defined persons and other social distancing requirements. On 31 March, the Code of Administrative Offences was amended accordingly,imposing fines from 500 to 1,500 Euros for individuals (for the first violation the fine can be reduced to 250 Euros) and from 1,500 to 6,000 Euros for those in charge of legal persons, and for smaller fines for breaches of municipal decisions.

It is important to note that during the quarantine period the activities of courts were restricted. Although some work was organised remotely (e.g. preparing for proceedings by written procedure and taking procedural decisions), most public oral hearings were postponed, except in certain urgent cases (e.g. detention matters, or removing a child from an unsafe environment) or when the judge was open to holding a virtual hearing. The COVID-19 situation might also impact the functioning of the Constitutional Court, where three out of nine judges finished their term on 19 March, but the Seimas delayed the vote on the candidates until the end of April, then rejecting all of them.

4. Separation of powers and the rule of law

As mentioned, all legal updates on quarantine conditions are executed by amending the Quarantine Resolution, with the latest amendments passed on 29 April. However, the manner in which the Resolution was introduced was problematic in terms of the rule of law and separation of powers. Given that the Resolution is a secondary legislation, it should have been adopted on express provisions in the primary legislation. However, the Government acted in a manner of urgency, adopting the quarantine measures that were not prescribed by the Law on Contagious Diseases. Therefore, the Seimas had to amend the Law retroactively on 31 March, giving legitimacy to the Quarantine Resolution adopted on 14 March. These amendments also allowed for the Resolution to be revised by the Government in the future, in effect passing down emergency powers in law from the legislator to the executive. Using such powers and by relying on Article 21 of the Law on Contagious Diseases, during the Easter weekend the Government introduced the limitation on internal movement, enforced by the police.

Regarding the institutional set-up, the activities of the Government and the Minister of Health are the most visible of all institutions in Lithuania. The activities of the Seimas have been limited: it holds only one weekly ordinary sitting and urgent hearings to discuss the Government’s draft legislation related to COVID-19. Such urgent law-making does not always allow for meaningful parliamentary scrutiny, sometimes resulting in approval of almost all proposals submitted by the Government, as for example, a bill on price regulation that was vetoed by the President. Thus it appears that the Seimas is not functioning as effectively as it should, raising concerns about the imbalance in the separation of powers required by the Constitution. Nevertheless, although the MPs do not meet as often in corpore, the parliamentary committees, especially those scrutinising the activities of the Government during the pandemic, such as the Committee on Legal Affairs, the Human Rights Committee, the Committee on National Defence and Security or the Committee on Health Matters, continue to function, but it is not clear to what extent they have focused on assessing the quarantine measures. Additionally, it is not evident what parliamentary or other scrutiny is taking place to provide for checks-and-balances of the decisions made by the Chief Officer.

As mentioned earlier, the amendments to the Code of Administrative Offences were introduced imposing fines for persons who do not observe quarantine. The Government assured the public that these powers will be used as the last resort, with the priority for the police first to warn those acting against the law. However, some media reports indicate that this was not necessarily the case. Since acquiring the right to draw up administrative misdemeanor protocols for violations of quarantine rules, the police have fined more than 1,300 people, with one-sixth (231) fined during the Easter weekend. These include a medic being fined 250 euros for not wearing a face mask in Nemenčinė and a woman on the way to work who removed her mask temporarily due to windy weather in the absence of other people around. If such reports are correct, they are indications of a rather formalistic approach to police powers that do not follow the ‘advise first, penalise later’ stance of the Government and might be questionable from the rule of law perspective.

There is also criminal liability prescribed in Article 277 of the Criminal Code for natural and legal persons who breach their duties on disease control, leading to spread of disease, a start of a pandemic, or risk for another person to get infected. The penalties under this Article include a fine, detention, or imprisonment of up to three years. It is worth mentioning that in March the Government proposed stricter criminal penalties, approved by Seimas and currently pending the President’s approval. The provision was applied to open investigations into the activities of a private social care home, a hospital in Klaipėda city and against individuals who left the hospital in spite of suspected COVID-19.

5. Human rights

The introduction of quarantine has negatively impacted the enjoyment of various human rightsin Lithuania. Whereas a state of emergency permits the Seimas or the President to impose extensive temporary restrictions on such rights as the right to privacy, the right to home or the freedom of expression (on the basis of strict necessity and in line with Lithuania’s international obligations) (Article 145 of the Constitution), quarantine requires that the limitations are provided by law, comply with principles of necessity and proportionality, and pursue a legitimate aim, which varies depending on the right in question.

Some examples of the restrictions int