The decision to declare a state of emergency for the territory of the Republic of Srpska, was adopted at today’s session of the RS National Assembly and it is the next step in the fight against the spread of diseases caused by the new coronavirus – COVID 19. This decision was preceded by the Decision on emergency situation adopted by the RS Government on March 16, 2020. Although apparently two similar terms, the state of emergency is significantly different from the emergency situation, primarily with regard to the legal consequences it produces, the authority and competencies of the highest republican authorities, as well as the exercise of human rights and freedoms in the territory of the Republic.
I. Legal consequences of the state of emergency in the Republic of Srpska – authority and competencies of the republican authorities
The Constitution of the Republic of Srpska stipulates that the Republic shall, inter alia, regulate and ensure measures within its authority in the event of war and emergency situation declared by the institutions of Bosnia and Herzegovina, as well as measures to be taken in the event of a state
of emergency declared by the institutions of the Republic of Srpska.
The Law on the Government of the Republic of Srpska stipulates that when security in the territory of the Republic or part of the Republic is endangered due to natural disasters (floods, earthquakes, fires, etc.), catastrophic events, epidemics, violations of human rights and freedoms, and the normal functioning of the constitutional bodies of the Republic is unpossible, the Government proposes the National Assembly to declare a state of emergency and proposes measures to be taken in such circumstances. Article 70 (3) of the RS Constitution provides that the Republic of Srpska National Assembly is competent to declare a state of emergency for the Republic or part of the Republic, for any of the aforementioned reasons.
At the session held on March 26, 2020, the RS Government submitted a request to the RS National Assembly to schedule an extraordinary session to decide on a declaration of a state of emergenc in the Republic of Srpska. A day later, the Collegium of the RS National Assembly decided that the 12th special session of the RS National Assembly would be held on Saturday, March 28, 2020, at Banski dvor in Banja Luka. The Collegium adopted the draft agenda for the 12th extraordinary session with only one item: Proposal of Decision on Declaring a State of Emergency for the territory of the Republic of Srpska. At today’s session of the RS National Assembly, the Decision on Declaring a State of Emergency for the territory of the Republic of Srpska was adopted. It should be noted that the Decision on Declaring a State of Emergency for the territory of the Republic o Srpska shall enter into force a day after its publication in the Official Gazette of the Republic of
Srpska.
The most significant legitimate consequence of a declaration of a state of emergency in the territory of the Republic of Srpska is reflected in the considerably broader powers of the President of the Republic. Namely, after declaring a state of emergency, the President of the Republic possesses regulatory powers, which includes that the President can issue decrees regulating issues within the competence of the RS National Assembly and suspend certain provisions of the RS Constitution.
Article 81 of the RS Constitution provides that the President of the Republic during a state of war or a state of emergency, declared by the institutions of Bosnia and Herzegovina, if the National Assembly is unable to convene, at the proposal of the Government or on the President’s own initiative and after hearing the opinion of the President of the National Assembly, may pass decrees with legal force on matters within the competence of the National Assembly, appoint or dismisse officials, who are elected, i.e. respectively appointed and dismissed by the National Assembly. Therefore, it is an exceptional situation where in the constitutional system of the Republic of Srpska the President of the Republic exercises regulatory authority, and the content of the decrees passed by the President are related to issues within the competence of the most superior legislative body of the Republic – the National Assembly.
Another significant legitimate consequence of the declaration of a state of emergency represents the possibility of suspension of certain provisions of the RS Constitution. The RS Constitution stipulates that the acts of the National Assembly or the acts of the President of the Republic, if the National Assembly cannot convene, during the state of war declared by the institutions of Bosnia and Herzegovina and emergency, may, exceptionally, during this state of emergency, suspend ertain provisions of the Constitution relating to:
- the passing of laws, other regulations and general legal acts, the powers of republican bodies to
undertake certain measures, and - human rights and freedoms.
The state of emergency necessarily involves the abolition or restriction of civil rights and freedoms. Since the constitutional order of the Republic is based, inter alia, on the guarantee and protection of human rights and freedoms in accordance with international standards, and the rule
of law, as one of the fundamental principles of the rule of law, the RS Constitution norms exceptions regarding the possibility of suspending provisions relating to human rights and freedoms. Human rights and freedoms whose enjoyment cannot be suspended regardless of the
declaration of a state of emergency are provided for in the following provisions of the RS
Constitution:
Article 10
“Citizens of the Republic shall be guaranteed equal freedoms, rights and duties; they shall be equal before the law and enjoy equal legal protection regardless of their race, sex, language, ethnic origin, religion, social background, birth, education, financial standing, political and other beliefs, social status and other personal attributes.”
Article 11
“The personal freedom and safety of man shall be inviolable.”
Article 13
“Human dignity, physical and spiritual integrity, personal privacy, personal and family life shall be inviolable.”
Article 14
“No one may be subjected to torture, cruel, inhuman or degrading treatment or punishment.
Any extortion of confessions and statements is prohibited and punishable.
It shall be prohibited to conduct medical and other scientific experiments upon any person without his/ her consent.”
Article 15
“Unlawful deprivation of liberty shall be punishable.
Deprivation of liberty may only last if there are legal conditions for it.
A person reasonably suspected of having committed an offence may be arrested and detained only when it is necessary for the purpose of the conduct of criminal proceedings or for reasons of public safety.
Detention shall be based on a court warrant, and only under certain conditions stipulated by law may be based on a decision of another body authorised by law, in which case the detention may last up to three days only. Upon detention, the person detained must be handed a written court warrant with a statement of reasons.
The private person has the right to appeal against the warrant of detention.”
Article 17
“Everyone shall be entitled to compensation for damage caused through unlawful or irregular actions by an official or a state body, i.e. organization performing public authority.
Any person unjustly convicted or unlawfully or without grounds deprived of liberty shall have the right to rehabilitation, compensation for damage, public apology and other rights as provided by law.”
Article 18
“A person accused with a criminal offence shall be guaranteed a fair court trial.
A person accused with a criminal offence must be informed of the reasons for the charges brought against him or her without undue delay, within a time limit as provided by law.
Court proceedings shall not be conducted in the absence of the accused person. If the person accused is inaccessible to the court, the court hearing may be conducted in his or her absence only in exceptional cases as provided by law.”
Article 19
“The right to legal defence shall be guaranteed.
The right to choose a legal defence representative and to freely communicate with the same shall be guaranteed. The legal defence representative may not be held responsible for actions undertaken in the
defence proceedings.”
Article 20
“No one may be punished for an act that did not constitute a criminal offence or for which punishment was prescribed under law at the time when it was committed.
No one shall be presumed guilty for a criminal offence until found guilty in a final court judgment.”
Article 24
“Dwellings shall be inviolable.
A lar w may prescribe that, based on a court warrant, an official may enter dwellings oother premises of another person against their will and conduct a search. Such a search may only be conducted in the presence of two witnesses.
Subject to conditions provided by law, an official may enter the dwelling or other premises of another person without a court warrant and conduct a search where this is necessary for the apprehension of a criminal offender or to save people and property.”
Article 25
“Freedom of thoughts, commitment, conscience and belief, as well as public expression of opinion, shall be guaranteed.”
Therefore, these are mostly human rights and freedoms, which according to modern classifications are classified as personal rights and freedoms, which by their nature are fundamental and inviolable in all legal systems, and whose non-application or suspension could not be tolerated even in the conditions of a state of emergency. Thus, e.g. under no circumstances
would not be tolerated violations of the right to life, human dignity, physical and psychological integrity, etc. These are rights and freedoms that occupy the most significant place in all international sources, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and which is under Article II/2 of the BIH Constitution directly applied in Bosnia and Herzegovina and takes precedence over all other laws.
In addition, during a state of emergency, the President of the Republic is authorized to make changes to the organization and powers of the executive, administrative and judicial bodies and their personnel, as well as to change the territorial organization in the Republic. The precondition
for such action by the President of the Republic is that the National Assembly cannot convene during a state of emergency.
Decisions with legal force on matters within the competence of the RS National Assembly, as well as decisions on appointment and dismissal, shall be submitted by the President of the Republic for confirmation to the National Assembly as soon as it is able to convene. This is an ex-post control
exercised by the National Assembly as a constitutional body, which would decide on an ordinary course of matters on issues decided by the President of the Republic during a state of emergency.
In this way, after the end of the state of emergency, the normative hierarchy of the lawful order and the principle of separation of powers, i.e. the disturbed balance of powers between the legislative and executive authorities are restored.
On the other hand, the RS Government, during a state of war or a state of emergency, may decide:
a) on the termination or discontinuity of the operation of public enterprises or parts of enterprises, public institutions and financial organizations of general interest to the Republic,
b) on the merger or acquisition of the afore-mentioned entities,
c) on the manner, in which the newly formed entities are organized, and
d) on the transfer of funds disposed by the entities whose operation has been terminated to new entities.
Such a solution is understandable considering that the RS Government, among other issues, is competent to set up public companies, institutions and other organizations to perform activities of interest for the exercise of the rights and duties of the Republic, so in the case of a state of emergency it may decide to terminate or discontinue their work, or even pass decision on their organizational or financial changes.
II. Emergency Situation– the role of the RS Government
At its session held on March 16, 2020, the RS Government adopted a Decision declaring an emergency situation in the Republic of Srpska due to the epidemiological situation related to the emergence and spread of the new coronavirus. The Decision came into force on the day of its
adoption.
An emergency situation in which the risks and threats or consequences of disasters, emergencies and other hazards to the population, environment and material goods are of such magnitude and intensity that their occurrence or consequences cannot be prevented or eliminated by the
ordinary action of the competent authorities and services, so for the mitigation and elimination of the same it is necessary to use other measures, powers and resources with an enhanced activity regime. It shall be proclaimed as soon as it becomes aware of an imminent emergency and may be declared immediately after it has occurred, if the imminent danger could not have been foreseen or if due to other circumstances, it could not have been declared immediately after the imminence of the imminent danger.
In declaring an emergency situation, the RS Law on Protection and Rescue in Emergency Situations is of considerable importance, and the same regulates in detail the system of protection and rescue in emergency situations, forces and subjects of protection and rescue, rights and
obligations of republican administrative bodies and other bodies, bodies and units of local self- government, companies and other legal entities, rights and duties of citizens, as well as other issues of importance during the emergency situation.
With the passing of the Decision on declaring an emergency situation, the forces for protection and rescue referred to in Article 8 of the Law on Protection and Rescue in Emergency Situations, with the exception of the competent organizational units of the RS Ministry of Internal Affairs,
were placed under the command of the Republic Headquarters for Emergency Situations.
In general, the RS Government performs the most significant role in terms of measures and activities related to declaring an emergency situation. In addition to declaring an emergency situation in the event of a natural and other disaster, it establishes the Republic Headquarters for Emergency Situations, performs tasks related to the organization of a system of protection and rescue from the elementary disasters and other disasters, monitoring and directing preparations for the execution of protection and rescue measures and tasks, assisting in the restoration and recovery from natural disasters and other disasters, as well as other protection and rescue tasks.
For coordination and management in the course of protection and rescue in emergency situations as operational-expert bodies, the following Headquarters shall be established:
a) for the territory of the Republic – Republic Headquarters for Emergency Situations,
b) for the city area – City Headquarters for Emergency Situations, and
c) for the municipality – Municipal Headquarters for Emergency Situations.
Entities/subjects that participate in the implementation of measures during the emergency situation, i.e. the system of protection and rescue, the Law stipulates the following:
a) Republic Civil Protection Administration,
b) Other republican administrative bodies and bodies of local self-government units,
c) Companies, other legal entities, entrepreneurs and
g) Citizens, associations, professional and other organizations.
On the other hand, the protection and rescue forces include, among others, the Republic Headquarters for Emergency Situations established by the RS Government, as well as the emergency headquarters established by local self-government bodies, as well as the competent organizational units of the RS Ministry of Interior, professional and emergency services, other
organizations, and ultimately the citizens themselves. An important role in the civil protection system is played by the Republic Civil Protection
Administration, which performs administrative and other professional tasks related to monitoring, harmonization and implementation of the established policy and guidelines and ensuring enforcement of laws and other regulations in the field of emergency protection and rescue, coordination of activities of entities of importance for protection and rescue in case of natural and other disasters in the Republic, as well as other tasks in the field of civil protection in the system of protection and rescue.
The entities in the system of protection and rescue prepare and implement preventive measures, measures of protection in case of imminent danger of natural and other disasters, measures of protection when natural disasters and other disasters occur, as well as measures of mitigation and elimination of the immediate consequences of natural disasters and other disasters.
III. System of protection of the population from infectious diseases
The system of protection of the population against infectious diseases, compulsorily measures that have to be implemented in order to prevent, control and eliminate infectious diseases, as well as the rights and obligations of all members of the community in this regard, are regulated by the RS Law on Protection of Population against Infectious Diseases. The emergence and spread of the disease caused by the new coronavirus have caused this law to be implemented to the fullest extent possible today.
The RS Law on Health Care guarantees the right of the patient to decide freely on anything oncerning his/her health, except in cases where this directly threatens the life and health of others. The disease caused by the new coronavirus is precisely the case when a patient is not entitled to decide freely about his/her health, since every citizen of the Republic is obliged to be treated for an infectious disease that may endanger the health of others.
Therefore, a person with an infectious disease has the right and obligation to be medically treated as well as to take measures to protect other persons from an infectious disease.
An infectious disease is defined as a disease caused by a specific causal agent resulting from the transfer of the agent or its toxic products from an infected person or other source of infection to a susceptible host, directly from person to person or indirectly through contaminated food, water,
generaly used items, transient host, vectors or inanimate nature, and by the exchange of a fluid contaminated with the pathogen.
In the Republic of Srpska, due to the spread of the disease caused by the new coronavirus, a considerable number of persons are under medical supervision, which essentially refers to medical examinations and epidemiological testing of persons who have been in contact with a person with an infectious disease or who have been in the focus of an infectious disease.
In addition, isolation or quarantine measures have been imposed on a considerable number of persons. Isolation represent an anti-epidemic measure of the spatial isolation of a person into a place and under conditions that prevents or restricts the direct or indirect transmission of
infectious disease agents, while quarantine is a measure of restricting the movement of healthy persons who have been in contact with infectious diseases during the maximum incubation period for that disease. The quarantine measure shall be implemented in the event of the occurrence of
an exceptionally dangerous infectious disease or other infectious disease found to pose a danger to the health of the population, in facilities eligible for the implementation of this measure. The competent Health Inspector shall serve the quarantine measure to the person to whom the same
has been determined.
The law prescribes the duty of the republican bodies, bodies of the local self-government unit, legal entities, entrepreneurs and individuals to provide the conditions for maintaining personal and general hygiene in public and workplaces, and every citizen is obliged to maintain personal
and general hygiene.
The provision of Article 43 of the RS Law on the Protection of the Population from Infectious Diseases regulates extraordinary measures for the prevention and control of infectious diseases, implemented in a situation in which the safety and health of humans is endangered by the
existence of an imminent danger for the mass transmission of infectious diseases. Extraordinary measures include, among others, restricting movement in the infected and endangered area and placing under the medical supervision of the person who was in contact with the infected person, termination of work of educational institutions and prohibition of gathering in public places, isolation of the sick at home or other adapted facility, establishing quarantine and quarantining of persons who were in contact with a person suffering from a particularly dangerous contagious
disease, as well as informing the public of the current epidemiological situation. In order to prevent the spread and infection of a more considerable population with the new coronavirus, most of these measures are already in force in the Republic of Srpska.
Undoubtedly the most important roles in the process of implementation of measures and implementation of mechanisms for protection of the population against infectious diseases in the Republic of Srpska are played by the Minister of Health and Social Welfare, Public Health Institutions, Institute of Public Health, competent health centers and hospitals, bearing in mind that they perform activities of general interest to the community and that all these entities are required to comply with the regulations during the epidemic of an infectious disease caused by the
new coronavirus.
Due to the special interest of the society in defending itself from acting contrary to the regulations or orders of the competent authority during the epidemic of infectious disease, the Criminal Code of the Republic of Srpska provides for the criminal offenses of transmitting infectious disease
(Article 194), failure to comply with health regulations during the epidemic (Article 195). and non- implementation of contagious disease protection measures (Article 196) with adequate fines as
well as imprisonment.
