Abstract
The article analyses if restrictions on business during the quarantines were proportionate and legitimate. The authors of this article argue that the forced closure of businesses during quarantine in its essence resembles the institute of taking private property ownership rights for public needs rather than restricting the freedom of economic activity because activities have been suspended entirely instead of merely being subject to certain operational restrictions. Such restrictions may be imposed only in exceptional cases and in the form of a law. It would be in line to consider proportionate compensations for businesses’ losses due to forcible closure from the State.
Highlights
The Constitutional Court holds that when regulating economic activity, the State must observe the principle of coordination of personal and public interests, ensure the interests of both a private person and the public are respected, and no claim should be given automatic primacy against another (e.g., Rulings of the Constitutional Court of the Republic of Lithuania of April 9 2002, January 26 2004)
It is crucial to note that the Government’s quarantine violates and restricts the rights and freedoms enshrined in the Constitution of the Republic of Lithuania and, more importantly, the fundamental right of private property protection under the ECHR
The provisions that allow the Government to regulate the declaration of a state of emergency, the introduction of quarantine, and the imposition of measures should be assessed as unconstitutional in that they do not establish the competence of the Seimas to assess the imposition of a state of emergency and the determination of the measures to be taken under these special legal regimes
Summary
“Success is not final; failure is not fatal: it is the courage to continue that counts.” – Winston Churchill. The following methods are applied when conducting the research: comparative analysis helped to understand different positions on quarantine and restrictions; legal document analysis was applied to get insight on the grounds of restrictions and compensations for the restrictions and their content, the method was involved in analysing laws of both national and international law; Systemic analysis was applied when evaluating the case law of the European Court of Human Rights (hereinafter – ECtHR), the Constitutional Court of the Republic of Lithuania (hereinafter referred to as the Lithuanian Constitutional Court or Constitutional Court) and the Constitutional Court of the Republic of Austria, content of the provisions of international instruments, and their importance and relation in the context of deviations from obligations; empirical analysis of case-law was applied in order to better comprehend the concept of and the grounds of restricting the protection of private property, the freedom of economic activity under the case law of the Lithuanian Constitutional Court and the ECtHR; the linguistic method was applied in order to evaluate the relevant terms applicable to the research, to systematically interpret them; the expert method was used by conducting a structured expert interview (Annex 1) with Mr Mark Adam Harold who is the chairman of the Vilnius Night Alliance that unites the city’s leading clubs, pubs and night clubs who were directly subject to quarantine restrictions. The Vilnius Night Alliance’s structured interview provides significant insight regarding the proportionality and legitimacy of the measures applied
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