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Legitimacy and justification of the human rights restrictions in extraordinary circumstances was the issue discussed yesterday by our panelists: Siniša Bjeković, the Ombudsman, Oana Kristina Popa, head of the Delegation of the European Union in Montenegro, Ivana Jelić, Judge of the European Court of Human Rights and Aleksandra Dubak, CA coordinator of the Human Rights and Justice Program.
The conference “Institutions for the Protection of Human Rights in Extraordinary Circumstances” was a closing activity within the program organized on the occasion of the Human Rights Day. The Ombudsman opened the event emphasizing the importance of establishing a balance between health protection and respect for individual human rights. He recalled that the period of the pandemic caused a partial stagnation of human rights in the economic and social sphere, and that the time behind us opened numerous dilemmas in relation to other dimensions of human rights, especially with regard to the so-called welfare rights.

Mr. Bjeković stated that “summarizing the experiences of the institution in the past period, we could conclude that human rights and freedoms were greatly tested, primarily due to political, social and, one might say, biological factors, which partly produced violations of human rights and freedoms, as also recorded in the practice of institutions when it comes to individual complaints in which such violations have been established”.

Ms. Oana Kristina Popa pointed out that today’s human rights protection system is being tested like never before due to a number of very serious and worrying circumstances. One of them is the war in Ukraine, but also the collapse of institutions and the overthrow of the rule of law in an alarmingly large number of countries. She also mentioned the current blockade of the Constitutional Court, which represents a serious obstacle for the citizens of Montenegro to exercise their rights.

She added that “the dysfunctionality of the Court could negatively affect the position of the European Court of Human Rights on the effectiveness of the constitutional appeal as a legal remedy at the national level.” This is very alarming. The EU has repeatedly called on all political parties to solve this blockade without further delay”.

Ms. Ivana Jelić, Montenegrin judge before the ECtHR, explained in more detail how the European Court of Human Rights responded to the challenges during the COVID-19 pandemic. She pointed to a large number of resolved cases, including requests for temporary measures, which are resolved in a prompt procedure. Even during the pandemic, the Court in Strasbourg held a permanent session regarding the applications, adapting to the restrictive measures that were fully complied with. She also pointed to the complete transparency and flexibility of the Court regarding the deadlines for submission of applications and for statements in connection with the communicated cases, which showed the Court’s compliance with the specific changed reality. Explaining the legal standards and referring to the specific practice of the Court during the pandemic, she highlighted the standard in deciding on applications that also applies to states of emergency and extraordinary circumstances. As she pointed out: “Some procedures must remain urgent, even in extraordinary circumstances”.

CA Coordinator of the Human Rights and Justice Program, Ms. Dubak, summarized the expressed views and gave conclusions and recommendations that Montenegro should adhere to in case of a new pandemic or extraordinary circumstances. She stated that it was necessary to seek a balance between respect for human rights and enabling necessary measures to be implemented during extraordinary circumstances. In situations where there is no violation, but a limitation of a certain right, the existence of a legal basis is particularly important. Even when measures are adopted in these circumstances, it is important that they be not applied on a larger scale, but to the extent that is actually necessary in order to more effectively overcome the newly created situation.

She recalled that the measures were ad hoc in nature and lacked a more comprehensive impact and legal justification analysis. According to Ms. Dubak: “If we had an action plan for the occurrence of extraordinary circumstances, we might have avoided many lawsuits from citizens, such as those for compensation for damages due to the publication of lists with the names of persons in self-isolation.”