Legal basis of self-isolation regime: expert comments
Self-isolation or emergency: who will pay the bills?
The regime of general self-isolation with all the resulting prohibitions, introduced in Moscow and a number of regions of Russia, does not fully comply with the law. At the same time, the measures taken in Tatarstan and Bashkiria have a legal basis, according to political scientist Karina Gorbacheva. The situation has contributed to the rapid adoption of a number of bills in the State Duma. In the column written specially for Realnoe Vremya, Gorbacheva discusses why the state benefits from self-isolation and why the country is not introducing a state of emergency.
Self-isolation and legislation
On March 30 and 31, the regions in Russia introduced a self-isolation regime. Moscow and Moscow Oblast became the engine that first introduced a high-alert regime, and later it was tightened by restrictions that covered all its residents.
Let us remind that on March 26 in Moscow, only elderly people aged 65 and older were not allowed to leave their homes. Already on March 29, changes were introduced to the decree of Sergey Sobyanin, which obliges all citizens not to leave their place of residence and distance themselves in places where citizens stay together in connection with their activities.
On Monday, Prime Minister Mikhail Mishustin called on all governors to follow the example of Moscow and Moscow Oblast, and by Tuesday almost half of the regions had introduced similar measures. Along the way, all regions are developing a system of permits for employees of enterprises who continue to go to work, and a system for monitoring the movement of citizens.
However, such a rapid development did not prevent lawyers and analysts from noticing that the legal basis for these measures is rather uncertain.
On March 26 in Moscow, only elderly people aged 65 and older were not allowed to leave their homes. Already on March 29, changes were introduced to the decree of Sergey Sobyanin, which obliges all citizens not to leave their place of residence and distance themselves in places where citizens stay together in connection with their activities
Self-isolation and high-alert regime
Decree of the mayor of Moscow as of March 5, 2020 N 12-UM 'On the introduction of a high-alert regime', adopted in connection with the threat of spreading coronavirus infection, became the basis for similar decrees of regional heads in the rest of Russia. However, at the time of its signing and numerous revisions, it was by no means undisputed from a legal point of view.
On the one hand, it is based on part 6 of article 4 of the Federal Law 'On the protection of the population and territories from natural and man-made emergencies' and in accordance with it establishes a high-alert regime. At the same time, the paragraph A of the part 10 of the article 4 of this law allows for the introduction of such regime to restrict access of people and vehicles to the territory where there is a threat of an emergency. In this regard, measures to restrict movement on the territory introduced by Sobyanin's decree, as well as normative legal acts, for example, in Bashkortostan and Tatarstan, have a legal basis. Let us note that these measures differ — for example, public transport continues to operate in Moscow, whereas in Tatarstan, inter-municipal transportation has been stopped, and Bashkortostan has banned the entry of private vehicles not registered in the municipal areas and city districts.
On the other hand, the Federal law 'On the protection of the population and territories from natural and man-made emergencies' also provides for an emergency regime in the event of an emergency. However, the Decree of the mayor of Moscow, as well as the decrees of regional heads and resolutions of regional governments, introduce a high-alert regime. Although many citizens considered the measures taken by the authorities to be permissible under the emergency regime and speak out about the misnomer of the introduced regime, the Federal law 'On protection of the population and territories from natural and man-made emergencies' is the legal basis only for the implementation of measures resulting from the development of an emergency situation that do not restrict human and civil rights and freedoms.
Thus, the law referred to by the Decree adopted in Moscow, which has become a model for signing similar documents in the regions, does not contain grounds for introducing a full range of measures to restrict people's rights (for example, in terms of suspending economic and other activities). Although the introduction of these restrictions is considered justified, it is necessary to understand what normative legal acts can actually become the legal basis for them.
Self-isolation, Constitution and the state of emergency
The Article 55 Part 3 of the Constitution of the Russian Federation establishes that human and civil rights and freedoms may be restricted, and the Article 56 Part 1 specifies that these restrictions may be established in a state of emergency. The concept of “state of emergency” is disclosed in the Federal Constitutional Law FKZ-3 “On state of emergency”, which establishes that it is a special legal regime of activities, allowing specific restrictions on rights and freedoms of citizens, as well as the laying of additional duties. The introduction of a state of emergency is a temporary measure used to ensure the security of citizens and protect the constitutional order of the Russian Federation.
For example, environmental emergencies, including epidemics, are indicated as circumstances under which a state of emergency may be imposed.
The peculiarity of the emergency regime is that it is introduced by the president of the Russian Federation and then approved by the Federation Council. However, this regime has some other important features. One of the most important features of this regime is that in accordance with Part 2 of Article 29.2, the victims in the result of the circumstances that gave rise to the imposition of emergency, or in connection with the application of measures for elimination of such circumstances or the liquidation of their consequences, living premises are provided, material damage is compensated, they are assisted in employment and provided the necessary assistance on the conditions and in the procedure established by the government of the Russian Federation.
The current decrees of the heads of regions suspend the economic activities of a huge number of economic entities, while small and medium-sized businesses have not been exempted from the obligation to pay salaries and taxes
This particular feature of the state of emergency, namely the state's obligation to compensate for material damage caused by the circumstances of the introduction of this regime, is cited as the reason why there is confusion with the legal basis for the restrictions imposed on the rights of citizens. Given that the current decrees of the heads of regions suspend the economic activities of a huge number of economic entities, while small and medium-sized businesses have not been exempted from the obligation to pay salaries and taxes, we can imagine what burden will fall on the state budget in the event of a state of emergency. At the same time, the already introduced high-alert regime, or simply “self-isolation regime”, does not guarantee compensation for material damage due to the introduction of measures to prevent an emergency.
Amendments to the legislation
It is worth noting that in parallel with the development of the situation with the COVID-19 coronavirus, the State Duma is adopting amendments to laws. In particular, the amendments to Federal law No. 68 'On the protection of the population and territories from natural and man-made emergencies' clarify that an emergency is also “the spread of a disease that is dangerous to others” (previously, the most appropriate concept in Article 1 of this law was the phrase “other disasters”). Besides, the amendments give the government the authority to directly impose high-alert or emergency regimes at the federal level. The government also has the right, in the event of an emergency or when there is a threat of a disease that is dangerous to others, to impose restrictions (but not for more than 90 days) on the wholesale and retail trade of medical products. Thus, these changes eliminate the absence of grounds for restricting economic activity, which have already been introduced in the country, in the current version of the law.
While society is trying to understand what is happening and hopes for the introduction of a state of emergency, which, in its opinion, will legalize the restrictions adopted and give some compensation to the population, the state is working on legislation, creating legal opportunities for itself to justify the measures introduced. The measures that are innovations in the legal reality of the country, in all its regions.