Serbian Government Decree - Unlawful Restriction of Rights

Serbian Government decree on informing the population about the condition and consequences of infectious disease COVID-19 - banning anyone but the Crisis Staff from releasing information about the coronavirus pandemic, was reasonably interpreted as an expression of the intention to control the flow of information between health care institutions and the general public. Whether the Government really intended to introduce censorship or it was an ill-conceived attempt to suppress the dissemination of misinformation, the fact is that issues relating to the Constitution and the law cannot be regulated by a government's decree, even in a state of emergency. Therefore, even if someone had violated this decree, which would be withdrawn after only two days, could not have borne the harmful consequences..

Transparency Serbia points out that, under the Law on the Protection of Population from Infectious Diseases, "public health bodies and institutes" are obliged to "inform the population and health professionals", and this obligation cannot be abolished by a governmentdecree.[1] Basically, the problem is that the decree prevents citizens from being precisely informed by those who, by default have such information and can verify the accuracy of information(i.e. executives and other employees of health institutions.)

For example, there is no reason to assume that the Crisis Staff could have more accurate data than director of any hospital on how many infected people were already admitted toa hospital, how many tests were performed, etc. On the other hand, it is very plausible that only the Crisis Staff can provide information related to the current health situation in the whole country and that whoever looks for such consolidateddata will ask the Crisis Staff for them.

During a state of emergency, the Government can issue decrees that regulate matters of a legal nature and even can restrict certain constitutional rights (e.g.freedom of movement). However, even then the Government is not authorized to regulate legal relations in any way other than officially regulated.

All decisions that the Government has been taking in the current state of emergency are legally in dispute. Namely, the Government is currently drawing on its powers from the decision to declare a state of emergency, jointly adopted by the President of Serbia, Prime Minister and the National Assembly. However, their constitutional authority to declare a state of emergency in this way actually depends on whether the National Assembly can meet.

Evidently[2], the President of the National Parliament did not even attempt to gather her fellow MPs before the state of emergency was declared, neither the gathering of the majority of the deputies took place within the subsequent constitutional deadline of 48 hours neither. There are numerous examples that Serbian MPs were not actually prevented to fulfill their constitutional obligations but the vast majority of them rather consciously surrendered their power to the President and the Government. As a consequence, some important decisionswere adopted along with the COVID19 infection protection measures.

Although the Government probably wanted, with this decree, to prevent local authorities and local health care institutions from providing information to the media through statements and press releases, these measures would also undermine the implementation of the Law on Free Access to Information.

Since the right of access to information can only be restricted by law, in a situation when an access to information was requested by a citizen from the Clinical Centre of Niš or from the Mayor of Valjevo, for example, they would not be able to legally withhold such information finding an excuse in this Government decree. According to the law, persons authorized by local authorities and institutionsto give information should not suffer negative consequences due to their actions (if they provide such information).

Not only can the right of access to information not be restricted by the Government decree, but in these extraordinary circumstances citizens have the right to exercise it faster than usual. More precisely, ”if the request regards information, which is presumed to be of relevance to the protection of a person's life or freedom, i.e. to the protection of public health and the environment, the public authority must inform the applicant it holds such information, allow insight in the document containing the requested information i.e. issue a copy of the document to the applicant within 48 hours upon receipt of the request.”[3]

In practice, these obligations are violated. For example, on March 13, 2020, Transparency Serbia requested from the Government of Serbia, access to information of public interest regarding the alleged confidentiality of data aboutnumber of respirators (ventilators) on disposal. In this request, Transparency Serbia alsohighlighted that in order to establish trust between citizens and public, authorities should published such data within 48 hours. The response from the Government did not arrive even 20 days upon receipt of the request.

[1]SG RS 15/2016., https://www.paragraf.rs/propisi/zakon_o_zastiti_stanovnistva_od_zaraznih_bolesti.html

[2][2]https://www.transparentnost.org.rs/index.php/sr/aktivnosti-2/pod-lupom/11213-procedura-proglasenja-vanrednog-stanja-zasto-je-vazno

[3]Law on Free Access to Information, Article 16