SOS – State of Alert in Romania, during COVID 19 Pandemic

By Bianca Cernitoiu

Overview.

In Romania, as in the jurisdictions of other states, there is the possibility that, in exceptional circumstances, the authorities may establish State of Emergency, State of Siege or State of Alert.

Depending on the type of state established, the constitutional guarantees are suspended and emergency powers of government are granted to certain bodies of the state power. For example, during the State of Emergency, the coordination of the application of the measures ordered by the President of Romania through a decree is the responsibility of the Ministry of Internal Affairs. As regarding the State of Alert, it is established by the Government, at the proposal of the Ministry of Internal Affairs, approved by the Parliament if the state of alert is enforced in more than 50% of the Romanian territory and the main attributions belong to the National Committee for Emergency Situations and the competent Ministries.

As the law provides, State of Alert is the response to an emergency situation of particular intensity, determined by one or more types of risk, consisting of a set of temporary measures, proportional to the level of severity manifested or predicted and necessary for prevention and elimination of imminent threats to, for example, life or human health.

It seems that in theory (and the practice shows us the same) the State of Alert is a type of emergency state, but a less constraining one. Notwithstanding, during the State of Alert may be taken any measures which are necessary and proportionally with the threat against which a response is sought. In other words, if the situation imposes it, there may be taken measures which restrict rights or freedoms as they were restricted during the State of Emergency.

History of the normative acts.

Since the Romanian authorities have taken the decision to not extend the State of Emergency and to replace it with the State of Alert, there have been amended and enacted a couple of normative acts.

First of all, it was amended the Emergency Ordinance no. 21/2004 on the National Emergency Management System. The main novelties consist in inserting the possibility that in case of emergency the State of Alert to be established, as well as in special provisions that define and detail the conditions and procedures of implementing the State of Alert at a local or a national scale.

Secondly, there is a framework law, namely Law no. 55/2020, which sets out general provisions and restrictions of rights that may be taken by certain authorities during the State of Alert. The Law entered into force in 3 days after the end of the State of Emergency and so, in order to ensure that the society will not benefit from the lack of a legal provision to completely violate the movement restrictions imposed, the authorities enacted the Decision no. 24/2020 of the National Emergency Committee. Decision no. 24 had in fact a temporary character, being repealed, as you will see in the following, after 3 days, when the Framework Law entered into force. There are many voices which say, in a justly manner, that the National Emergency Committee decision provided some limitation of the fundamental rights without a legal basis support it.

This is one of the reasons why, the authorities did not hesitate and in the morning of the day when the Framework Law has entered into force, they adopted a new normative act, namely Government Decision no. 394/2020, repealing the Decision of the National Emergency Committee. The other reason is represented by the fact that the Framework Law, by itself, does not impose certain measures and so it must be implemented by a separate normative act.

In addition to these normative acts, based on the provisions of the Government Decision, competent authorities – as a rule, the Ministry of Health together with the competent Minister, on a case-by-case basis – have adopted a couple of orders containing restrictive measures to regulate specific activities (for example, the Order of the Ministry of Transport and Communications issued together with the Ministry of Health which provides specific measures that must be taken in carrying out the activity of transporting persons or goods, on land, air, water or railway). Thus, if you operate in a specific field, pay attention to the normative acts issued by the relevant Ministry – it is competent to regulate what measures must be imposed by the economic operators in its area of practice.

In a nutshell, there are 3 main normative acts and a lot of secondary normative acts adopted by competent ministries.

A framework law.

The answer on the question why a framework law was needed in order to enact the State of Alert regards actually the matter of the fundamental rights and freedoms. Speaking about the fundamental rights, their limitation is of exceptional nature, being acknowledged in the Constitution. They may only be limited under the law and only proportionally to the namely situation. In particular, within the current legislative framework, the measures limiting the exercise of fundamental rights can only be implemented by laws passed by the Parliament. Precisely in view of this fact, before the establishment of the State of Alert in Romania, the Law no. 55/2020 was enacted. So, in regard of the subject, the authorities may now legally impose the limitation of some fundamental rights, but only if such measures are proportional.

The matter of proportionality is a questionable one since no clear boundaries are in place, meaning that it requires an analysis conducted on a case-by-case basis. Because of the subjectivism (at a large scale – of the authorities as a collegiate body) which can not be in total avoided, the analysis on the proportionality may lead to different outcomes – take the Swedish example.

Some of the measures imposed.

Restriction of the movement of freedom has been relaxed. People can move without declaration on honour (ro. declarație pe proprie răspundere) within the localities where they live, without forming groups larger than 3 people (if they are not from the same family). Leaving the locality is allowed based on a declaration, for certain reasons expressly provided by law (but sufficiently numerous). Wearing sanitary masks has become mandatory indoors and some events are still banned. Some shopping centers were allowed to open, but most flight suspensions were maintained.

Conclusion.

The State of Alert is not much different from the State of Emergency. Nevertheless, there are no more Military Ordinances and the restrictive measures have been relaxed. Also, at least psychologically, a step has been taken towards total freedom, a normal reality long lost among the pandemic stories.