Feraget: Any deprivation of liberty can have a negative effect on other rights

By Ifet Feraget, lawyer

In a situation where we are all, for completely justified reasons, hindered in our daily activities and freedom of movement, we must still take into account that certain categories of the population are particularly hard hit by these measures.

The Order of the Federal Civil Protection Staff No.: 12-40-6-148-34/20, dated 20.03.2020, which orders a complete ban on movement for persons under 18 years of age and those over 65 years of age in the Federation of BiH, although a completely justified measure taken to prevent the spread of infection and protect these vulnerable categories of the population, nevertheless, due to the drastic form and duration of these measures, it justifiably raises the question of its proportionality with the reasons for which these measures were adopted.

According to Article 1 of the European Convention on Human Rights and Fundamental Freedoms (Convention), the state of Bosnia and Herzegovina is obliged to respect the human rights and freedoms of all persons within its jurisdiction, in this specific situation, I mean the right to liberty and security under Article 5 of the Convention. According to Article 15 of the Convention, in exceptional circumstances, a state may take measures that deviate from its obligations under this Convention, but to the extent strictly required by the situation (as is being done in the current situation concerning the protection of our health and safety).

The freedom of an individual is one of the fundamental conditions that everyone should enjoy without exception. Any deprivation of liberty can have a negative effect on the enjoyment of some other rights, and in this context, the most important rights are the right to family and private life and the right to freedom of movement. In an extreme case, deprivation of liberty can have much more serious consequences in the form of exposing a person to inhuman treatment. Therefore, as justified as the reasons are for which the Federal Civil Protection Staff, which deserves all recognition for its work so far, adopted these measures, their mitigation for the aforementioned
categories of the population should still be reconsidered, of course, after obtaining the opinion of epidemiologists.

Namely, in relation to the part of this population consisting of minors over 14 years of age, as well as persons over 65 years of age, who are able to take care of themselves without any problems, it would probably be acceptable to ease the aforementioned measures by allowing limited movement for these categories, while for persons under 14 years of age, the possibility of their movement accompanied by a parent, guardian or other adult should be considered, of course, all this while respecting the minimum distance of 1.5-2 m from others, as well as other epidemiological measures that apply to all of us. The option that the Federal Civil Protection Staff is already considering, to allow these categories to move at a certain time (possibly at a certain time on certain days) when movement for others would be restricted, is also quite acceptable.