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The former Constitutional Court judge, professor at the Mykolas Romeris University Institute of Public Law (MRU) Toma Birmontienė told Delfi that the current situation was supposed to be real life.
The coronavirus outbreak was declared a pandemic by the World Health Organization (WHO). “This circumstance has not been reflected in any law so far, civil or otherwise. When we speak of force majeure, emergencies that occur on a global scale and the legal regulation of the consequences that have already taken place, we will shape the responsibility of the past. This has already happened – a fact “, – T. Birmontienė concluded.
There are many gaps in the legal framework.
The Government announced the quarantine under the Law of Civil Protection and Prevention and Control of Communicable Diseases of Humans. “If you have already taken this path, you must take it seriously, there are many gaps.” Such a legal regime, which is guided only by government decisions, is not normal, here is the biggest problem, “the lawyer is convinced.
According to lawyer Albert Šekštelas, who works at the Motieka law firm, Audzevičius and Partners, these laws gave the government broad powers. The fact that the Law on the Prevention and Control of Communicable Diseases of Human Beings was revised as a matter of urgency even after the introduction of quarantine shows that the state has urgently improved the legal framework to justify the restrictions introduced.
“Historical examples show that in times of crisis, people sacrifice their rights and freedoms in an unreasonably easy way to protect the common good. Therefore, there must be clear legal criteria and influence for such restrictions on people’s fundamental freedoms and rights. Otherwise, Lithuania could receive even more cases in Strasbourg, where the European Court of Human Rights is located, “he said.
According to T. Birmontienė, the Seimas has been on the sidelines for far too long. “The Seimas, like a sleeping beauty, has not yet awakened. Even looking at the same quarantine article, the duration of the territories quarantine cannot exceed 3 months. This regime has never been adapted to be published at the level national, other legal mechanisms should emerge, “he emphasized.
Restrictions on human rights must be established by law. So far, according to the interlocutor, there have been shocking decisions that have angered the public. Based on quarantine, work order, and many other things have been regulated. “The quarantine regime and all other similar laws are intended for additional cases, only short-term restrictions are possible. The law is not appropriate for such a situation.” The impression is that the promise to continue living in an “extreme” continues but it is not a long-term basis for the life of the state, “he said.
A. Šekštelas also recognized that the legal framework in Lithuania is not adequately prepared for emergencies.
“The Seimas, like a sleeping beauty, has not yet woken up. Even looking at the same quarantine article, the duration of the territories quarantine cannot exceed 3 months. This regime has never been adapted for publication at all the country, other legal mechanisms should emerge. ”
Quarantine base is perforated
The current Constitution is in force, it contains a complete block of provisions that define human rights, economic activity. From the point of view of T. Birmontienė, it is not possible to erase everything that is there by a law and the quarantine regime.
“It is as if the provisions of the Quarantine Law and the Civil Protection Law were followed. But in a better analysis, none of them confers such powers. “if they based their orders on laws that would be established by the Seimas when joining the process.
In general, the principle of a democratic society states: each of us has the right to question government decisions and we have the right to defend our rights. “One of the remedies is to go to court. The quarantine situation was not favorable for business, graduates and everyone else, conditions changed dramatically. So, in the future, many can start fighting for their rights. This it should be seen as normal, it should not be condemned, “summarized T. Birmontienė.
We are still waiting for the economic crisis, but, according to A. Šekštelas, it is already obvious that small companies have suffered the quarantine in Lithuania the most, as well as the areas that have been banned: cultural and leisure events, sports, tourism, games of random. Therefore, in the future, he believes, we will receive even more severe criticism of the state’s actions and claims for damages.
“There is greater uncertainty about quarantine measures and the state’s strategy to follow in the event of a second wave of pandemics.”
Claims in Lithuania for compensation for damages caused by state actions are heard by specialized administrative courts, which, according to the lawyer, are still conservative in their approach to compensation for damages. Therefore, companies and individuals may seek help out of state by initiating investment disputes or human rights violation cases against Lithuania.
State financial aid has so far stagnated, from the late application to the European Commission for state aid to the actual receipt of state aid through various bureaucratic restrictions. “There is also greater uncertainty about the lack of quarantine measures and the strategy on how the state will react if a second wave of pandemics occurs,” said the interlocutor.
Lawyers agree: the quarantine measures were disproportionate and gaps were exposed in the Lithuanian health system. “It is possible that the damage caused by the quarantine itself is greater than the damage caused by less severe measures.” For example, can anyone show statistics on how many people died in Lithuania during quarantine, not because of COVID-19, but because they did not receive adequate and timely medical care due to quarantine restrictions? The lawyer asked rhetorically.
Global practice shows that pandemics can be recognized as an irresistible force. In this case, the key question is to assess whether the state aid measures for companies and individuals were effective or proportionate. Otherwise, the responsibility of the state and its institutions may arise. “I dare say that neither the state’s legal framework nor the government’s actions showed that the state was ready for such a crisis,” said the lawyer.
Force Majeure Circumstances: For some time you promised to live “extremely” “data-caption =” Is quarantine valid? Force Majeure circumstances: promise to live “extreme” for some time “>
© DELFI / Andrius Ufartas
Issued Force Majeure certificates
The Ministry of Economy and Innovation reports that certificates of confirmation of circumstances of force majeure are issued in accordance with the procedure established by the Lithuanian Chamber of Commerce, Industry and Crafts: Vilnius, Kaunas, Klaipėda, Panevėžys and Šiauliai. Certificates can be used as proof of compliance with contractual obligations. Companies experiencing difficulties due to coronavirus-induced quarantine can apply to territorial chambers of commerce, industry and crafts, which will issue force majeure certificates in accordance with established procedure.
The court must examine the person’s application and issue a certificate or refuse to issue it with a reason within 20 business days. In view of the tense situation due to the difficulties posed by the coronavirus, the Court has issued commercial applications Force Majeure certificates will be examined in the shortest possible time.
Delfi, representative of the Vilnius Chamber of Commerce, Industry and Crafts (VPPAR), emphasized that the automatic announcement of a quarantine or other regime does not mean that force majeure circumstances are established for all contracts. Because many companies have been able to continue to operate, execute contracts, each contract must be examined individually to determine if quarantine has resulted in Force Majeure occurrence of a specific transaction, contract.
The conditions of force majeure provided for in Article 6.212 of the Civil Code will be determined on a case-by-case basis, and Force Majeure the party relying on the circumstance must prove that the force majeure condition exists precisely for this reason.
As attorney A. Šekštelas explained, when applying Article 2,212 of the CC, the following four conditions must be proven for the existence of force majeure: there were no quarantine circumstances at the time of concluding the contract and its occurrence could not be reasonably foreseen; the contract cannot be performed objectively due to quarantine circumstances; the party that did not fulfill the contract could not control or prevent the circumstances of the pandemic; The country has not assumed the risk of the circumstances of the pandemic or its consequences.
However, according to the interlocutor, without Force MajeureThere are other remedies, such as demanding a change in the contract, claiming immunity from fines for state action.
“The current situation with the coronavirus forces the Court to help business. Therefore, we have simplified the processes, the time to process the application has been reduced, some certificates have been issued within two or three days. Only the Allotted time for examining particularly complex contracts (two, three cases) was close to the deadline, ”Almantas Danilevičius, VPPAR Director General, told Delfi.
According to him, certificates can be used by the parties to the contract as evidence when one of the parties to the contract is unable to fulfill its obligations and documents it. Force majeure will be recognized and a party will be exempt from liability for breach of the contract if he shows that this was due to circumstances beyond his control and foreseeable at the time of the conclusion of the contract, he could not avoid these circumstances or their consequences.
The defaulting party will be exempt from damages, penalties and other contractual penalties (in addition to the obligation to pay interest) as long as there are reasons for the withdrawal.
“In the first place, what a company or entrepreneur must do is inform the other counterparty about the occurrence of such circumstance and its impact on the performance of the contract. If the other party does not receive said notification within a reasonable time after the defaulting party realized the circumstance, the latter will be responsible for the loss suffered as a result of the lack of notification.However, these provisions of the Article of the Civil Code do not deprive the other party of the right to terminate the contract, suspend compliance or require payment of interest, “said Jūratė Radzevičienė, a lawyer for the House.
Persons engaged in commercial activities should pay attention to whether the law of the Republic of Lithuania applies to the contract and what Force Majeure the circumstances are set out in the contract itself, and there is a specific time frame and a way to notify the occurrence of the circumstances.
However, as Attorney A. Šekštelas points out, the Court’s statement on Force Majeure There is no heavenly mana. Obtaining these certificates does not exempt the injured party from proving the circumstances of force majeure later in court if a friendly agreement cannot be reached with the other party. “Until now, the courts are very strict on the circumstances of force majeure, we will see if the practice will calm down after the quarantine crisis,” added the lawyer.
VPPAR Force Majeure Statistics:
74 applications were examined, of which: 54 certificates were issued and 20 motivated refusals to issue a certificate, 2 applications were examined.
Most of the applications submitted refer to the legal relationship of the lease.
In the first half of March through April, the Court provided up to 400 consultations per week at no charge per week.
