Corona must not affect the rule of law

The corona crisis forced the government to announce far-reaching mandatory and urgent measures in the context of our safety, health and well-being. No problem, is our first impression, as these measures will hopefully help to fight and overcome the coronavirus. However, some of these measures curtail our fundamental freedoms and even impair them in a blatant and inadmissible way. The critical thinker's sense of justice begins to gnaw and rebel. Are we going to blindly comply with and undergo all measures, or do we still dare to question their proportionality and the motives behind them?

Drones flying by that check for gatherings, the police that raid houses without the necessary mandate with or without a battering ram to check that a lockdown party is not going on, drones with heat sensors and 'click lines' to pick up second residences on the coast and in holiday parks traces,… These are just a few examples of practices that have taken place in recent days and that have been verbally supported by the Minister of the Interior and the West Flemish provincial governor.

In our view, the dividing line between correct and efficient control to protect the population and a police state that violates fundamental rights is blurring dangerously.

Let's go back to Article 17 of the BUPO Treaty, Article 8 of the ECHR and Article 22 of the Constitution regarding the right to privacy and respect for family and private life, and the inviolability of our home. This right can only be restricted if certain – legally specified – conditions are observed:

“No interference by any public authority is permitted with regard to the exercise of this right except as provided by law (legal principle) and is necessary in a democratic society (principle of proportionality) in the interest of the country's security, public safety, or the economic well-being of the country, the protection of public order and the prevention of criminal offences, the protection of health or morals, or for the protection of rights and freedoms of others (principle of finality)”, according to Article 8 ECHR.

Interference with the right to privacy for the sake of health protection is therefore possible, insofar as it is provided for by law, in a law that is accessible, sufficiently precise and foreseeable, and such interference is proportionate.

In Belgium, a search (without permission) is in principle only possible if a search warrant issued by the investigating judge has been carefully considered and motivated. It must be an exceptional measure.

A house search by the police is possible earlier in the case of a crime discovered in the act. The 'click lines' that spot a lockdown party in a home could in this way initiate such a search by the police, but the intervention of the Public Prosecutor or an officer of the judicial police is always necessary in that case.

Since August 31, 2018, our legislation includes another ground for exception (Article 27 of the Police Service Act) on the basis of which the police could enter a residence autonomously (and without a mandate from an investigating judge or the consent of a Public Prosecutor) without permission from the person who really enjoys it. In this way the police can in an emergency “In the event of a serious and imminent danger of disaster, disaster or damage or when the life or physical integrity of persons is seriously threatened, search buildings both during the night and during the day, when the danger reported to them at that location is extremely serious and imminent (read: threatening) has a character that threatens the life or physical integrity of persons and cannot be averted in any other way”.

That the Board of Prosecutors General (which determines the prosecution policy in Belgium) reported that the aforementioned ground for exception “With some creativity, it may be possible to apply to the corona measures as the virus is a serious threat to public health”, arouses suspicion that this ground for exception could today be very frequently and unjustly invoked and even abused. The law must be strict and predictable. Creativity or reasoning by analogy is not allowed.

The legal subject benefits from legal certainty and not from arbitrariness. The complaints received in this regard by the Standing Police Supervision Committee (Committee P) are a barometer of the unrest regarding the current unclear enforcement policy: what can/should not and what is not.

After all, a ground for exception must be interpreted restrictively. An interpretation that is too broad could encourage safe conduct for less pressing and non-legislative situations (think of the abuse of the Patriot Act by the United States after 9/11). Vigilance and alertness to protect our privacy is required. And certainly the legal basis for an invasion of privacy and for sanctions must always be clear and unambiguous.

Fear of the coronavirus should not affect our critical thinking.

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