Law professor on crown measures – – Clear interference in human rights

When the pandemic hit Norway, various intervention measures were introduced to control the pressure of the infection. The booth ban, the maximum number of people in private homes and quarantined hotels are some examples that the Norwegian population had to follow.

Hans Petter Graver, a professor at the University of Oslo (UiO), believes that these measures interfere with human rights.

– The booth ban interferes with property rights and the right of movement. It can also be imagined that it interferes with the right to family life, he tells Dagbladet.

– The requirement that a maximum of five people can intervene in the right to family life, preventing families from being together. The quarantine hotel can also interfere with the right to family life and freedom of movement, he explains.

Two requirements

The professor emphasizes that it is difficult to establish these measures Break human rights, because then two requirements must be met:

• The measures must be necessary, which means that there are no less intrusive measures that achieve the same result.
• The benefit you get must be greater than the damage.

– It is not only the number of deaths that is important. The measures also try not to overburden the health care system and prevent many in socially critical jobs from falling ill, Graver says.

– The problem in this context is that the Norwegian authorities have published to a small extent what considerations have been made before the measures are taken. They also don’t show what other alternatives have been considered and why the measures they have landed on are better than the alternatives, he adds.

– Definitely an intervention

Graver, who is one of Norway’s most renowned law professors, is supported by Anna Nylund, a professor at the University of Tromsø (UiT).

– The bans on cabins, hotels in quarantine and the rule that limits the number of people you can invite home, are clearly violations of human rights that we all have according to the constitution and international conventions on human rights, he tells Dagbladet.

That said, human rights are not absolute, but can be restricted if imperative considerations require it.

Nylund explains that the corona pandemic may provide a basis for such interventions, but that it presupposes that the intervention is proportionate, adequate to limit the spread of infection, and non-discriminatory. In addition, international human rights conventions require a clear legal basis for intervention, that the intervention be predictable and that the affected person has an effective right to file a complaint.

– The March-April measures should probably be viewed in a different light than the measures being implemented now, because the situation was confusing, he adds.

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– Discriminatory

To escape the quarantined hotel, one of the requirements was to own a home. Renting an apartment until December 9 was not enough. Nylund believes this was discriminatory.

– It is discriminatory to send people who rent an apartment in quarantine, when a person who owns a house, cabin or similar bedroom can be quarantined at home.

The UiT professor points out that Norwegian citizens have the unconditional right to travel to Norway according to the constitution.

– You can ask if you have that right if you have to pay 5,000 crowns for quarantined hotels. I don’t think so, especially if you have a proper quarantine site. Alternatively, you can consider eliminating or reducing the deductible for citizens.

– Problematic

Nylund believes that both quarantined hotels and restrictions on the number of guests or people in the home are particularly problematic with regard to children’s rights.

– Both the Constitution and the Convention on the Rights of the Child grant children the right to special protection and the right, among other things, to play, development and health. Therefore, having to stay in a hotel room for 10 days or not being able to invite friends over is problematic.

In November, Bergen was one of several municipalities that introduced the requirement of a maximum of five people together in private gatherings, with the exception of families older than five. On December 7, this measure was moderated to ten people.

– The rule that limits the number of people in the home is a usurpation of privacy, and it can be especially difficult for families with children, since in practice it becomes that they cannot invite anyone home, says Nylund.

Get support for death rates

– You must evaluate the measures continuously.

Thomas Berge, Senior Advisor to the Norwegian Institution for Human Rights (NIM), notes that the state has a fundamental obligation to protect human rights life and health, including preventing the spread of serious infectious diseases.

– On the other hand, some of the measures are quite intrusive, such as the ban on gathering more than five people in private homes in Bergen, he says.

– Overall, it is unlikely that the actions of the authorities will generally disproportionately interfere with human rights.

To ensure compliance with human rights, Berge believes that authorities must continually assess whether measures comply with the principle of minimal intervention and are in reasonable proportion to infection control considerations. This means that measures must also be relaxed when the situation calls for it.

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– You can refuse to pay

Graver believes the measures may have legal consequences in the future. For example, foreigners who have faced quarantined hotels, even if they believe they have their own place of residence, can claim compensation related to loss of income and the right to family life.

Recently, more people have been fined for having too many participants than in private meetings.

– When you receive a fine, you can refuse to pay it. Then the case will go to court and in this case it can be argued, for example, that the fine violates the right to privacy. Whether or not this will be successful is difficult to answer, says Graver.

– Difficult transactions

Lars Jacob Hiim, Secretary of State to the Minister of Justice and Emergency Preparedness, responds that the intervention has been absolutely necessary to control the infection.

– The first priority of the government is to take care of the life and health of citizens. This is part of our human rights obligations. At the same time, the measures that are introduced should not be more intrusive than necessary. This involves significant, but often difficult tradeoffs.

Hiim says that the quarantine hotels obligation was based on the recommendation of health authorities to limit the increase in import infections.

– We have continuously evaluated the scheme, based on the experience with it and the infection situation at all times.

Last week, governments changed the quarantine rules and opened that there is no longer a requirement that one must own the home. Documented leases are also approved.

– The most powerful decision

In early November, Bergen introduced the rule of a maximum of five people in private meetings. The municipalities of Askøy and Øygarden were among several municipalities around Bergen that also followed the order. Bergen City Councilor Roger Valhammer explains that the rule was seen as the most powerful measure to stop the spread growth of the infection.

– In addition to protecting the life and health of the people of Bergen, the city council emphasized the protection of children and young people. So we made sure that kindergarten and elementary school children could be with their established cohort also at home, everyone could meet outdoors, and leisure activities for children and youth were maintained, he says.

– After two weeks, when infection rates had started to decline, we added an additional exception that meant that everyone could have two visiting guests regardless of family size, adds the town hall leader.

Valhammer notes that time is an important factor in stopping outbreaks and preventing the infection from spreading to vulnerable groups. At the same time, it expresses a strong understanding that the need for information is great when strict local measures are introduced.

Therefore, the City Council, both by extending the local regulations on November 23 and by introducing a new regulation from December 7 inclusive, to a greater extent than before in writing, whose assessments and considerations form the basis of the City Council’s decisions, including assessments. of human rights and the provisions of the Constitution.

– It was considered proportionate

In the same period as Bergen, the Øygarden municipality also had a limit of a maximum of five people meeting in private contexts. On December 7, they approved the national guidelines.

– The municipality evaluated the regulations against the rules of the human rights convention. Because the regulations were short-lived, we found that the measures were within the government’s leeway according to human rights conventions, municipal attorney Dag Heine-Bjørndal writes to Dagbladet.

– The measures were based on the law and were considered proportionate. Children and young people were also taken into account, so it is considered that the regulations are in line with their special need for human rights.

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