On 28 February 2020, a Lithuanian woman who has recently returned from Italy became the first person hospitalized with the novel COVID-19 virus. Since then, Lithuania has registered 233,631 positive cases and 3,760 deaths, the majority of which occurred during the second wave of the pandemic that hit the country in the autumn of 2020.
The coronavirus pandemic posed an unprecedented challenge for the Lithuanian society and the decision-makers. Lithuania’s response to the disease was overseen by two different governments – a populist centre-left government in spring 2020 and a liberal-centre-right coalition formed after the 2020 October parliamentary elections.
Since Lithuania’s approach to the first wave of the COVID-19 pandemic including its legal/constitutional framework has already been addressed, the present analysis will focus on the second quarantine as well as on some overarching issues concerning the rule of law, human rights and good governance.
Overview of Legal and Political Response and Adaptation to COVID-19
Acting under the existing emergency legislation the government decided to respond to the crisis by imposing two nationwide quarantines, not a constitutional state of emergency.
The Lithuanian legislation defines quarantine as a “regime of special measures applicable to the prevention and control of contagious diseases” that is introduced, among other things, during an outbreak of a dangerous contagious disease or an epidemic. The aim of quarantine is to limit the spread of contagion by introducing special conditions, restrictions and procedures for work, life, leisure, movement, economic and other activities.
The first quarantine lasted three months (16 March to 17 June 2020). The second quarantine was introduced on 7 November 2020 (Resolution No. 1226) and after several extensions currently remains in force. Before introducing the second nationwide quarantine, the government tried to implement a localized response by issuing different recommendations, including localized quarantines, for different municipalities.
Whereas the first restrictions were introduced amidst much uncertainty largely as a preventive measure (Lithuania had only a handful of confirmed cases at the time), the second quarantine was a response to a quickly deteriorating health situation, as the number of new COVID-19 cases spiked in mid-December, making Lithuania the worst affected country in the world. The strict measures aimed to slow down the spread of the virus and to alleviate pressure from the overwhelmed healthcare system. As the number of cases started to drop, in February 2021 the government decided to lift some restrictions, e.g. allowing some stores to open and not requiring face coverings outdoors.
The overall severity of enforceable measures adopted in Lithuania during the COVID-19 crisis can be described as significant. The examples of the quarantine measures include restaurant, shop and gym closures, ban on providing beauty services, transfer of all levels of education to online platforms (preschools were available for essential workers and for persons who were not able to work from home), mandatory mask wearing both indoors and outdoors, ban on visiting elderly care homes, patients in healthcare institutions and prisoners (later, short visits were permitted), severe restrictions on public assemblies (a total ban during the first quarantine and a maximum of five and later of two persons from different families during the second one), a ban on personal meetings (during the second quarantine contacts limited to two and later within one household or family), ban on movement between different municipalities (some exceptions provided), planned healthcare procedures suspended (first quarantine), a negative COVID-19 PCR test (from 10 March 2021 required when boarding) and mandatory home/hotel isolation (in some cases without the possibility to go outside) for all persons arriving to Lithuania, the possibility of compulsory isolation/hospitalization without a person’s consent etc.
Fines (up to 1,500 EUR for natural and from 1,500 EUR for legal persons) and even imprisonment was established for breaches of various quarantine rules. According to media reports, during one week in February 2021 the police issued around 1,500 fines and performed checks on more than 5,000 persons in isolation.
Along with the government’s resolutions, the crisis was managed through numerous decisions of the State-Level Chief Operating Officer for Extreme Situations, the post held by the Minister of Health. The legislation also established the responsibility of municipalities for the management of contagious diseases on the local level, such as organizing the isolation of persons coming from abroad.
The Executive and Use of Powers in Response to Emergency
The government responded to the pandemic by adopting executive measures based on the pre-existing legislative emergency frameworks. The parliament, however, had to amend the existing primary legislation in order to expand the executive powers. For example, on 31 March 2020, the Law on Contagious Diseases was amended to expand the competence of the government to establish special conditions for movement as well as the possibility to impose restrictions on business and other activities. This raises questions about the legality of the government’s measures prior to this date.
During the first wave of the pandemic, the restrictions were gradually lifted, but it was decided to maintain the status of “extreme situation” due to the threat of spread of COVID-19 with requirements for social distancing, personal hygiene in place. Despite considerable “quarantine fatigue” within the society, the government’s current approach remains cautious.
Human Rights and Civil Liberties Considerations
The two quarantines had significant ramifications for the enjoyment of human rights in Lithuania. The containment measures placed restrictions on such rights as the freedom of movement, the freedom of assembly, the right to private and family life, the right to property, the right to education and the right to health. The negative consequences were felt by various groups such as children, women, migrants, the elderly, prisoners and others.
The concern about people’s mental health and loneliness likely motivated the government’s decision to introduce so-called “social bubbles”, allowing persons in need to have contact with another household. This is welcome, as it allows, for example, single parents or the vulnerable elderly who live on their own, to receive support from their family, friends or local community.
A parliamentary election to the Seimas was held in October of 2020, and the right to vote was secured through the possibility of voting at home, extended early voting, voting by post (from abroad) etc. During the day of the election, various safety measures were used to prevent the spread of the virus.
During the second quarantine, the most severe restrictions were placed on the freedom of peaceful assembly (only meetings of a maximum of two persons from different families/households allowed, all organised public events banned), freedom of movement (prohibition on movement between municipalities) and the right to property (all non-essential services and stores closed).
The compatibility of such significant restrictions on the freedom of assembly with Lithuanian constitutional and international human rights law is questionable, especially the proportionality criteria. Despite the restrictions, some protests were organized, but they were poorly attended. In November 2020, a protest in front of the parliament against face masks was attended by approximately 40 people. While it was not organised in accordance with the Law on Public Gatherings, the police knew about it and were present. Media also reported about another gathering of around 20 persons requiring the involvement of the police. However, the police intervention was proportionate and aimed to detain those breaking the quarantine regulations.
The freedom of movement was restricted in order to slow the transmission of the virus. Although the government introduced a formal ban on leaving home without a valid reason, it provided numerous exceptions including the possibility to go for a walk. Unlike in some countries, this did not require a special permit or reporting to the authorities.
Necessity and proportionality concerns can be raised about the prohibition to move between municipalities that seemed justified during the busy Christmas period and was lifted only in the beginning of April 2021. Certain exceptions were provided, such as travelling for work, health reasons or to access property. At the same time, while external borders were kept open, persons arriving from abroad could travel across multiple municipalities to see their families, but those residing locally could not. Such regulation could be viewed as socially unjust (i.e., those on higher incomes could go abroad for holidays), is extremely costly and its effectiveness in preventing the spread of COVID-19, including the new variants, is questionable.
In addition, the recent requirement to have a negative COVID-19 test result upon arrival to Lithuania might be in violation of Article 32 of the Constitution establishing an absolute right of citizens to return to Lithuania. The rules do not provide what happens if a Lithuanian national does not have a negative PCR test, but according to the comments of various officials such persons will not be denied entry, but might be fined or required to quarantine.
The Lithuanian Constitution protects inter alia the right to property, the freedom of individual economic activity and initiative, the right to freely choose a job and to receive a fair pay. While the state’s financial assistance to Lithuanian businesses during the first quarantine was criticised for being too bureaucratic and difficult to obtain, the latest business support initiatives are seen more positively, with carefully targeted and broader funding provided twice as fast. Despite this, there are concerns about the pandemic’s economic impact, including high unemployment, poverty and social inequality.
So far, the first quarantine’s restrictions have undergone two types of domestic review. Firstly, in a legal case brought by a dental clinic which had to suspend its activities due to quarantine, an administrative court of first instance dismissed the complaint and found the quarantine measures to be lawful, necessary and proportional. The judges refused the applicant’s request to petition the Constitutional Court regarding the constitutionality of the measures. The decision has been appealed. More lawsuits relating to both the first and the second quarantine are likely to follow.
Secondly, the first wave’s measures were considered by the Seimas Ombudsmen’s Office, which is the only Lithuanian state institution responsible for general human rights issues (National Human Rights Institution), with Equal Opportunities Ombudsperson and Children’s Rights Ombudsman having specialised competences. The institution promotes and protects human rights by investigating public complaints, carrying out regular inspections of state bodies (the NPM function), meeting with various stakeholders, providing legal advice etc. The Ombudsman’s report on the first quarantine’s measures and Lithuania’s human rights obligations raised concerns about the enforced isolation of persons returning from abroad that was implemented for a short period in March 2020, compulsory hospitalisation for up to one month without a court decision and the decision to postpone all non-essential healthcare. On the basis of the findings, the Ombudsman issued a number of non-binding recommendations to the government.
The Effectiveness of Judicial and Legislative Scrutiny and Oversight
During the second quarantine, to our knowledge, there were no overarching issues with judicial independence in Lithuania, despite the ongoing anti-corruption investigations and delays in appointing new judges to top courts. The courts were largely operational, and legal action to review the first quarantine’s COVID-19 measures is ongoing.
According to the government’s Resolution No. 1226, public bodies and state institutions provide services remotely or party remotely, including the courts and the parliament.
Based on the recommendation of the Judicial Council, the work of courts is organized in a written form or remotely, except in cases requiring physical presence of the parties. During regular hearings, appropriate social distancing and safety measures are required. If remote or physical hearing is not possible, the hearing is postponed. There is also a possibility of a mixed hearing with some parties present and some participating remotely. According to some legal experts, the pandemic facilitated the digitalisation of court work that was already foreseen in some legal acts and noted in the European Commission’s 2020 Rule of Law report, in this way making the judicial process more efficient and less costly.
The parliamentary autumn session was extended into January 2021. The parliament is increasingly working remotely, although some sessions are still taking place face-to-face, with social distancing restrictions in place. The newly elected parliament appears to be more involved in scrutinising public governance of the COVID-19 measures in committees and commissions (e.g., the Economic Committee, the Anticorruption Commission, the Committee on Health Affairs, the Committee on National Security and Defence etc.), especially in relation to financial aspects and spending the EU’s COVID-19 funding. However, the key committees that normally scrutinise human rights aspects and constitutionality of the executive orders (the Committee on Legal Affairs, the Human Rights Committee) did not deliberate at all the questions related to the legality of quarantine measures, although such issues were highlighted as problematic by several human rights and constitutional law experts.
2021 Outlook: Recommendations for Governance, Democracy, Human Rights, and the Rule of Law
At the national level, the current emergency legislation grants the government broad powers, including to limit a wide range of human rights for an unspecified time period, and without the checks of other powers. This, in our view, is problematic. The expert and political disagreements about the appropriate legal regime for the pandemic (state of emergency or quarantine) suggests that the criteria for these legal frameworks should be more clearly defined, especially since the scope of some restrictions appears to be quite similar. While a narrowly construed constitutional state of emergency is regulated in detail and with appropriate safeguards, the regulation of quarantine has shortcomings. Thus a recent study by Lithuanian experts recommends that, in accordance with the constitutional principles of legal certainty and transparency, there should be a separate legislation, or a separate section in the Law on Contagious Diseases that would regulate situations similar to COVID-19 pandemic. The Lithuanian Lawyers’ Association supports this suggestion, adding that the future legislation should also prescribe time-limits for any quarantine-type regime.
Moreover, we agree with the opinion of other experts that the parliamentary control must be strengthened, by giving the Seimas a more prominent role in scrutinising and debating any changes to the legislation that grants powers to the executive (not only in the parliamentary committees, but also during parliamentary extraordinary sessions). In such debates, particular attention should be given to the legitimacy and proportionality of each measure that bans or limits rights. A greater involvement of the parliament in assessing various emergency measures would provide safeguards against the abuse of power by the executive and promote the rule of law.
In addition, in our view, the perceived legitimacy of various quarantine measures could be strengthened if the authorities provided better rationale for their adoption. This might increase the society’s willingness to follow the rules voluntarily, reducing the need to rely on law enforcement. With current fines for legal persons ranging from 1,500 to 6,000 EUR, the proportionality of such measures should be reconsidered.
Lastly, it is unclear to what extent the necessity and proportionality of various restrictions was assessed by legal and human rights experts. The rule of law dictates that decisions restricting human rights and freedoms should be adopted in consultation with human rights organisations, legal experts and wider civil society. This means that Lithuanian parliamentary control mechanism should become more inclusive, by, for example, inviting various stakeholders to participate in the legislative processes, in turn enhancing participatory deliberative democracy, transparency and the rule of law.
At the European level, we propose that a larger stakeholder base should be consulted when drafting the next edition of the European Rule of Law Mechanism report. While it is positive to see many Lithuanian government bodies, professional associations and civil society organisations involved in the 2020 data gathering, future reporting would benefit from additional input by academics, especially those researching the matter. Therefore, consulting national and international scholarly associations and experts associated with them, such as the Lithuanian Academy of Sciences, the Lithuanian Lawyers’ Association, the UACES, EUSA or CES, would be beneficial.
Additionally, we feel that the European Commission’s Annual Rule of Law Report 2021 should include reporting on the COVID-19 pandemic that posed additional challenges for the rule of law and human rights in Lithuania. This important aspect was missing in the 2020 report.
Finally, we suggest that the European Rule of Law Mechanism stakeholder consultation should last longer than one month, especially given the challenges on human resources and organisational capacity posed by the pandemic. Two months (as in 2020) or at least six weeks would be more appropriate.