Пенитенциарная наука (Jun 2021)
Restriction of the Freedom of Movement under a High-Alert Regime
Abstract
Introduction: the article considers the high-alert regime and the associated restrictive measures related to the freedom of movement and introduced in connection with the threat of the spread of COVID-19. Aim: with the help of theoretical and legal analysis, we investigate the nature of the high-alert regime and the set of anti-epidemic measures implemented to prevent the spread of the COVID-19 pandemic; we also analyze the constitutionality and validity of restrictions on the right of an individual to freedom of movement and the proportionality of the restrictive measures imposed (quarantine, complete lockdown) in relation to the elderly, a particularly vulnerable population group. Methods: dialectical method, theoretical methods of formal and dialectical logic, comparative legal method, system-structural method, method of interpretation of legal norms, and others. Results: the research allows us to say that the set of terms related to the high-alert regime is not clearly defined from the legal perspective; moreover, there is no legally bounding limit to its operation (the period of its being in effect) and a mechanism for its direct implementation. We argue that the restriction of the freedom of movement for persons aged 65 and older is disproportionate in the context of their health protection interests. The article defines the following guarantees of restricting the exercise of the individual’s right to freedom of movement: the legality and validity of temporary administrative and legal measures, the balance between private interests (preserving the protection of the legal status) and public interests (preventing the spread of the infection), specifics of the epidemiological situation, a set of timely measures aimed at providing particularly vulnerable categories of citizens with everything vital. Conclusions: we propose to interpret the restriction of the exercise of an individual’s rights under a high-alert regime as a legally justified state intervention (through the adoption of proportionate restrictive measures) in the sphere of an individual’s private autonomy in order to protect national security, public order, human life and health. We consider it necessary that legislation should specify the provisions defining the range of circumstances when a high-alert regime is to be introduced, the limits, boundaries and scope of additional powers of special actors, and the scope of possible discretion; the means to ensure this administrative and legal regime; the list of rights and freedoms subject to restriction when it is established, as well as the mechanism for their protection.
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