The Constitutionality of Legal Measures During the Spread of COVID-19

Демченко М.С.

doi:10.7256/2454-0706.2022.11.39085

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Law and Politics

Reference:

Demchenko, M.S. (2022). The Constitutionality of Legal Measures During the Spread of COVID-19. Law and Politics, 11, 44–58. https://doi.org/10.7256/2454-0706.2022.11.39085

The Constitutionality of Legal Measures During the Spread of COVID-19

Demchenko Maksim Sergeevich

ORCID: 0000-0001-7720-515X

Graduate student, Department of Theoretical and Public Law Disciplines, University of Tyumen

6 Volodarsky str., Tyumen, Tyumen region, 625003, Russia

max-de.demchenko@ya.ru

Other publications by this author

DOI:

10.7256/2454-0706.2022.11.39085

EDN:

WJVIIW

Received:

01-11-2022

Published:

23-12-2022

Abstract: The emergence of a novel coronavirus infection posed a major challenge to the global community and necessitated urgent and extraordinary measures to minimize the consequences of the pandemic. In the history of modern Russia, this was the first time a national emergency had occurred. Under such circumstances, the State needed an emergency response that also involved a regulatory mechanism. Of course, the regime of legal regulation in emergency situations has significant differences from everyday legal regulation. The author examines in detail the issue of constitutional and legal regulation of emergencies of this kind and analyzes and correlates it with actual legal regulation. Peculiarities of public authorities' organizational activity in pandemic conditions are investigated. Particular attention is paid to human rights during the spread of COVID-19. The author concludes that rather than applying the existing and well-defined regulations outlined in the Federal Constitutional Law "About the State of Emergency" from May 30, 2001 (¹ 3-FKZ), which stipulates the implementation of a state of emergency throughout the country or in specific areas, the ruling authorities have opted for an alternative legal approach. This decision has resulted in a swift modification of the emergency legislation, with its own set of consequences. The main problem, in the author's opinion, lies in the misapplication of the provisions of the Constitution of the Russian Federation, since from the systematic and interrelated interpretation of Articles 55 and 56 of the Constitution of the Russian Federation follows that they regulate the same social relations. However, article 56, unlike article 55, has special grounds for the application, so the principle of lex specialis derogate legi generali should be applied to them—that is, preference should be given to a special norm. In addition, the author proposes the adoption of a single legal act that would unify the different types of emergency situations and provide systematic and orderly legal regulation.

Keywords:

Constitutionalism, COVID-19, emergency situation, restriction of rights, state of emergency, high alert, pandemic, human rights, crisis situation, emergency laws
This article written in Russian. You can find original text of the article here .

References

1. Chronology of the WHO response to COVID-19 in the WHO European Region: an up-to-date document (version 3.0, 31 December 2019 to 31 December 2021). World Health Organization. https://www.who.int/europe/publications/i/item/WHO-EURO-2022-1772-41523-63024 (accessed 25.08.2022).
2. Zhmerenetsky, K. V., Sazonova, E. N. & Voronina, N. V., et al. (2020). COVID-19: only scientific facts. Far Eastern Medical Journal, 1, pp. 5–22.
3. Abbott, B. (2020). How dangerous is Covid-19? Researchers are getting closer to the answer. Wall Street Journal. https://www.wsj.com/articles/how-deadly-is-covid-19-researchers-are-getting-closer-to-an-answer-11595323801?mod=hp_lead_pos5 (accessed 25.08.2022).
4. Timerbulatov, V. M. (2020). Health care during and after the Covid-19 pandemic. Bulletin of the Academy of Sciences of the Republic of Bashkortostan, 35(2), pp. 77–87. http://doi.org/10.24411/1728-5283-2020-10209.
5. Demchenko, M. S. (2021). Actual problems of legal regulation in the field of population and territories' protection in extreme situations. Bulletin of Tyumen State University: Socio-Economic and Legal Research, 7(28), pp. 220–234. http://doi.org/10.21684/2411-7897-2021-7-4-220-234
6. Meeting on measures to combat the spread of coronavirus in Russia. (2020). Presidential Administration of Russia. http://kremlin.ru/events/president/news/62691 (accessed 29.09.2022).
7. On the Government Commission for the Prevention and Elimination of Emergency Situations and Ensuring Fire Safety (together with the Statute on the Government Commission for the Prevention and Elimination of Emergency Situations and Ensuring Fire Safety): Decree of the Government of the Russian Federation of 14.01.2003 No. 11 (ed. of 16.06.2022). (2003). Sobranie zakonodatel'stva RF, 3, art. 228.
8. Operational Headquarters set up to prevent entry and spread of new coronavirus infection in the Russian Federation. (2020). Government of Russian Federation. http://government.ru/info/39357 (accessed 29.09.2022).
9. On the establishment of departmental operational headquarters to prevent the spread of new coronavirus infection and to take necessary organizational and administrative measures: Instructions of the Chairman of the Government of the Russian Federation dated 18.03.2020 No. MM-P12-1950. URL: https://docs.cntd.ru/document/564602173?section=text.
10. On the Coordination Council under the Government of the Russian Federation to Combat the Spread of New Coronavirus Infection in the Russian Federation (together with the Regulation on the Coordination Council under the Government of the Russian Federation to Combat the Spread of New Coronavirus Infection in the Russian Federation): Decree of the Government of the Russian Federation of 14.03.2020 No 285. (2020). Sobranie zakonodatelstva RF, 12, art. 1781.
11. Kosenok, A. (2020). How and what the deputies of the State Duma worked on-in eight charts and tables. Kommersant. https://www.kommersant.ru/doc/4426337 (date of access: 25.08.2022).
12. On suspension of personal reception of citizens in courts: Resolution of the Presidium of the Supreme Court of the Russian Federation, Presidium of the Council of Judges of 18.03.2020 № 808. https://www.consultant.ru/document/cons_doc_LAW_347974.
13. On Suspension of Personal Reception of Citizens in Courts: Resolution of the Presidium of the Supreme Court of the Russian Federation, Presidium of the Council of Judges of the Russian Federation of 18.04.2020 No. 821. https://www.consultant.ru/document/cons_doc_LAW_ 349751.
14. On the activities of courts and bodies of the Judicial Department in full since 12 May 2020: Letter of the Judicial Department at the Supreme Court of the Russian Federation of 07.05.2020 № SD-AG/667. https://www.consultant.ru/document/cons_doc_LAW_352096.
15. Review on Certain Issues of Judicial Practice Related to the Application of Legislation and Measures to Counter the Spread of New Coronavirus Infection (COVID-19) on the Territory of the Russian Federation No. 1: Presidium of the Supreme Court of the Russian Federation of 21.04.2020. (2020). Bulletin of the Supreme Court of the Russian Federation, 5.
16. Review of Selected Issues of Court Practice Related to the Application of Legislation and Measures to Counteract the Spread of New Coronavirus Infection in the Russian Federation (COVID-19) No. 2: Presidium of the Supreme Court of the Russian Federation of 30.04.2020. (2020). Bulletin of the Supreme Court of the Russian Federation, 6.
17. Review of Selected Issues of Court Practice Related to the Application of Legislation and Measures to Counteract the Spread of New Coronavirus Infection in the Russian Federation (COVID-19) No. 3: Presidium of the Supreme Court of the Russian Federation of 17.02.2021. Bulletin of the Supreme Court of the Russian Federation, 4.
18. On introduction in Moscow Region of the regime of increased readiness for management bodies and forces of the Moscow Region emergency prevention and elimination system and some measures to prevent the spread of new coronavirus infection (COVID-2019) in the territory of Moscow Region: Decree of the Governor of Moscow Region dated 12 March 2020 No. 108-PG. https://mosreg.ru/ (date accessed: 12.08.2020).
19. On the introduction of a high alert mode: Decree of the Government of Tyumen Oblast No. 120. (2020). https://docs.cntd.ru/document/570710904?section=status.
20. Zenin, S. S. (2021). Normative-legal provision of public authorities' activity in conditions of the new coronavirus infection pandemic (COVID-19). Lex Russica (Russian Law), 74(7), pp. 73–84. http://doi.org/10.17803/1729-5920.2021.176.7.073-084.
21. Podmarev, A. A. (2018). The institute of limitation of individual rights in the Constitution of the Russian Federation of 1993. Juridicheskaya Tekhnika, 12, pp. 589–590.
22. Doroshenko, E. N. (2020). Constitutional and legal bases of human rights restriction in connection with the pandemic of new coronavirus infection. Actual Problems of Russian Law, 12, pp. 48–56.
23. Konovalov, A. M. Is the introduction of a regime of heightened readiness and the ensuing restrictions of rights and freedoms on the territories of the subjects of the Russian Federation legal? State Power and Local Self-Government, 7, pp. 32–34. http://doi.org/10.18572/1813-1247-2020-7-32-34.
24. Alebastrova, I. A. (2020). Constitution has original sin and our authorities decided to sin some more. Law, 5, pp. 14–18.
25. Romanovsky, G. B. (2020). 2019-nCoV as a hybrid threat to the system of human rights. Constitutional and Municipal Law, 7, pp. 34–38. http://doi.org/10.18572/1812-3767-2020-7-34-38.
26. Agaltsova, M. V. & Imanova, T. V. (2020). Self-isolation: analysis of the constitutionality of anti-virus measures. Law, 5, pp. 60–70.
27. Kuksa, T. L. (2020). Extraordinary State Regulation of COVID-19 Proliferation in Russia: Bureaucratic Decision-Making Logic and Medicalization of Everyday Life at the Beginning of a Pandemic. Journal of Sociology and Social Anthropology, 23(4), pp. 183–203. http://10.31119/jssa.2020.23.4.7.
28. Dzidzoev, R. M. (2021). Human rights and the coronavirus pandemic in Russia. Constitutional and Municipal Law, 9, pp. 33–36. http://doi.org/10.18572/1812-3767-2021-9-33-36.
29. Baitin, M. I. (2005). The essence of law (modern normative legal understanding on the verge of two centuries). Moscow: Law and State. p. 554.
30. Seniakin, I. N. (1987). Special norms of Soviet law. Publishing house of Saratov State University, p. 97.
31. International Pact on Civil and Political Rights (Adopted 16.12.1966 by Resolution 2200) at 1496th Plenary Session of the UN General Assembly). (1994). Newsletter of Supreme Court of Russian Federation, 12.
32. Convention for the Protection of Human Rights and Fundamental Freedoms" (concluded in Rome 04.11.1950) (with amendments from 24.06.2013) (together with Protocol № 1 (signed in Paris 20.03. 1952), Protocol No. 4 securing certain rights and freedoms other than those already included in the Convention and the first Protocol to it (Signed in Strasburg on September 16, 1963), Protocol No. 7 (Signed in Strasburg on November 22, 1984). (2001). Collection of Laws of the Russian Federation, 2, art. 163.
33. On the state of emergency: Federal Constitutional Law from 30.05.2001 № 3-FKZ (ed. from 03.07.2016). (2001). Sobranie zakonodatelstva RF, 23, art. 2277.
34. Siracusa Principles on the Limitation and Derogation Provisions in the International Act on Civil and Political Rights (Adopted at the UN Conference held in 1984 in Siracusa). (1992). Bulletin of Moscow State University, Law 11, 4.
35. Rospotrebnadzor refused to lift the ban on rallies in St Petersburg. (2022). Fontanka. https://www.fontanka.ru/2022/04/08/71242130/ (accessed 25.08.2022).
36. The decision of the Constitutional Court of Russian Federation of 31.07.1995 № 10-P. (1995). Collection of Laws of Russian Federation, 33, article 3424.
37. On measures to enhance the effectiveness of counter-terrorist operations on the territory of the North Caucasus region of the Russian Federation: Presidential Decree of 23.09.1999 № 1255c (ed. of 29.07.2017). (2002). Sobranie zakonodatelstva RF, 13, art. 1203.
38. On measures to suppress the activities of illegal armed formations on the territory of the Chechen Republic and in the zone of the Ossetian-Ingush conflict: Presidential Decree, 9 December 1994, No. 2166. (1994). Collection of Russian Federation Laws, 33, art. 3422.
39. Norov, D. K. (2011). Correlation of the contents of the legal regimes of the state of emergency and counter-terrorist operation in the Russian Federation and the Republic of Tajikistan. International Public and Private Law, 1, pp. 37–39.
40. Nardina, O. V. (2011). Is the regime of counter-terrorism operation exclusive? Differences in constitutional and legal regulation depending on the answer to the question. Bulletin of Volgograd State University. Series 5: Jurisprudence, 1(14), pp. 61–66.
41. Komyagina, A. С. (2007). The problem of violation of international humanitarian law and human rights in Chechen conflict in 1994–2006. In A. S. Komjagina (Ed.). Global and regional problems of modernity: sources and prospects: materials of scientific conference of young scientists (pp. 97–99). Yekaterinburg: Ural. Univ. Publishing House.

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REVIEW of an article on the topic "Constitutionality of legal regimes during the spread of coronavirus infection COVID-19". The subject of the study. The article proposed for review is devoted to topical issues of regulating relations in the Russian Federation in connection with the prevention of the spread of coronavirus infection. The author considers various legal regimes from the point of view of the operation of the Constitution of the Russian Federation. The subject of the study was the norms of domestic legislation, the opinions of scientists, and practice materials. Research methodology. The purpose of the study is not stated directly in the article. At the same time, it can be clearly understood from the title and content of the work. The goal can be designated as the consideration and resolution of certain problematic aspects of the issue of the constitutionality of legal regimes during the spread of coronavirus infection COVID-19. Based on the set goals and objectives, the author has chosen the methodological basis of the study. In particular, the author uses a set of general scientific methods of cognition: analysis, synthesis, analogy, deduction, induction, and others. In particular, the methods of analysis and synthesis made it possible to summarize and share the conclusions of various scientific approaches to the proposed topic, as well as draw specific conclusions from the materials of practice. The most important role was played by special legal methods. In particular, the author actively applied the formal legal method, which made it possible to analyze and interpret the norms of current legislation (norms of the legislation of the Russian Federation). For example, the following conclusion of the author: "Article 56 of the Constitution of the Russian Federation establishes that in a state of emergency, it is possible to restrict rights and freedoms, indicating the limits and duration of their validity. At the time of the spread of the pandemic in the territory of the Russian Federation, the legal regulation of such emergencies was regulated exclusively within the framework of the Federal Constitutional Law "On the State of Emergency" dated May 30, 2001 No. 3-FKZ (hereinafter – FKZ on the state of emergency). According to this act, a state of emergency is imposed if there are circumstances of an immediate threat to the life and security of citizens or the constitutional order. Such circumstances can be conditionally divided into two groups. The first group includes circumstances related to violent acts. The second group should include circumstances of a peaceful nature, such as natural and man-made disasters, including epidemics (Article 3 of the Federal Law on the State of Emergency)." Thus, the methodology chosen by the author is fully adequate to the purpose of the study, allows you to study all aspects of the topic in its entirety. Relevance. The relevance of the stated issues is beyond doubt. There are both theoretical and practical aspects of the significance of the proposed topic. From the point of view of theory, the topic of considering legal regimes operating during the spread of coronavirus infection is complex and ambiguous. The question of the constitutionality of legal regimes, as well as the provisions of individual legal acts, has repeatedly surfaced in the literature and in the framework of individual discussions. In this regard, a deep understanding of these issues and bringing scientifically sound conclusions is an important task of science. The author is right to highlight this aspect of relevance. On the practical side, it should be recognized that there are unresolved issues that should be addressed and for which it is possible to improve the current legal regulation. The practical examples given by the author in the article clearly demonstrate this issue. Thus, scientific research in the proposed field should only be welcomed. Scientific novelty. The scientific novelty of the proposed article is beyond doubt. Firstly, it is expressed in the author's specific conclusions. Among them, for example, is the following conclusion: "we come to the conclusion that the provisions enshrined in Part 3 of Article 55 of the Constitution of the Russian Federation, in comparison with Article 56, contain general conditions for the institution of restriction of human and civil rights and freedoms, while Article 56 of the Constitution of the Russian Federation establishes special grounds for restricting individual rights. That is why, we believe, it is reliably justified to apply a special provision of the Constitution of the Russian Federation in the event of an emergency. The elimination of ambiguous interpretation in the future, we see in the adoption, taking into account the positive experience of legal regulation of other special regimes and accumulated experience in dealing with various emergency situations, of a single Federal Constitutional law "On special legal Regimes", which will combine all types of emergency situations and systematize their legal regulation." These and other theoretical conclusions can be used in further scientific research. Secondly, the author suggests ideas for improving the current legislation. In particular, "despite the cancellation by Rospotrebnadzor of all restrictions that were imposed due to the coronavirus pandemic, holding rallies and pickets still remains unavailable with reference to the action of the RPG [35]. Under such circumstances, it seems obvious that, given the nature of the pandemic, the introduction of a state of emergency on the territory of the country or at least in certain areas is a more understandable and reasonable response tool." The above conclusion may be relevant and useful for law-making activities. Thus, the materials of the article may be of particular interest to the scientific community in terms of contributing to the development of science. Style, structure, content. The subject of the article corresponds to the specialization of the journal "Law and Politics", as it is devoted to legal problems related to the constitutionality of certain provisions of legislation introduced in connection with the spread of coronavirus infection. The content of the article fully corresponds to the title, as the author considered the stated problems and achieved the research goal. The quality of the presentation of the study and its results should be recognized as fully positive. The subject, objectives, methodology and main results of the study follow directly from the text of the article. The design of the work generally meets the requirements for this kind of work. No significant violations of these requirements were found. Bibliography. The quality of the literature used should be highly appreciated. The author actively uses the literature presented by authors from Russia (Abbott B., Timerbulatov V.M., Podmarev A.A., Doroshenko E.N., Konovalov A.M., Alabastrova I.A. and others). Many of the cited scholars are recognized scholars in the field of constitutional law. I would like to note the author's use of a large number of practice materials, which made it possible to give the study a law enforcement orientation. Thus, the works of the above authors correspond to the research topic, have a sign of sufficiency, and contribute to the disclosure of various aspects of the topic. Appeal to opponents. The author conducted a serious analysis of the current state of the problem under study. All quotes from scientists are accompanied by author's comments. That is, the author shows different points of view on the problem and tries to argue for a more correct one in his opinion. Conclusions, the interest of the readership. The conclusions are fully logical, as they are obtained using a generally accepted methodology. The article may be of interest to the readership in terms of the systematic positions of the author in relation to the consideration of the legal regimes introduced in connection with the coronavirus pandemic from the point of view of the provisions of the Constitution of the Russian Federation. Based on the above, summing up all the positive and negative sides of the article, "I recommend publishing"

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