Democracy and Human Rights in a State of Emergency Related to the Coronavirus Pandemic

Democracy and Human Rights in a State of Emergency Related to the Coronavirus Pandemic

April 2020

Bulgarians Organising for Liberal Democracy (BOLD) extends its condolences to the families of COVID-19 victims and expresses its gratitude to all medics, workers and volunteers fighting the disease.

BOLD is monitoring the state of emergency in Bulgaria from the perspective of safeguarding democracy and human rights. We accept certain lawful, necessary, proportional and temporary restrictions of our liberties. We recognise as legitimate the current normative and policy measures to the extent they strike a balance between the protection of public health, the prevention of economic collapse and the fulfilment of human rights.

At the same time, we recall that periods of great ordeal – wars, terrorism, natural disasters or epidemics – have usually seen a surge of authoritarian, antidemocratic developments in many areas of public life. The current global crisis caused by the coronavirus pandemic is not an exception. Observers have expressed concern about starkly antidemocratic measures in a number of countries across the globe, including:

  • Extreme centralisation of power and undermining the separation of powers (Cambodia, Hungary, Philippines);
  • Excessive limitations of fundamental rights and freedoms, in particular freedom of expression under the pretext of fighting disinformation (China, Egypt, Jordan, Thailand);
  • Far-reaching electronic surveillance by the state while failing to observe the difficult balance between IT-enabled processing of personal data in the public interest and the protection of privacy (India, Israel, Russia, Singapore);
  • Prohibition of all forms of protest (Algeria, Turkmenistan – in the latter, even the use of the word ‘coronavirus’ was reportedly declared a crime).

As citizens concerned about the health of democratic institutions, BOLD members urge vigilance and categorically reject the defeatist attitude according to which rulers can do whatever they see fit in the name of overcoming the crisis. We believe democratic institutions and civil society are the best guarantee for redressing the consequences of this pandemic and ensuring a better preparedness for future ones.

Threats to Democracy and Human Rights

The state of emergency introduced with a special law on 13 March 2020 by the Bulgarian National Assembly (parliament) provides for temporary measures as well as temporary restrictions of certain fundamental rights, e.g. the right to liberty and security of person, the right to privacy, and freedom of movement. But to be legitimate, restrictions must be directly relevant to the purpose of the state of emergency. Furthermore, every measure must be strictly necessary, which means that its intended objective cannot be achieved by less restrictive means. Finally, every measure must be proportional, meaning that in weighing its expected benefits against harms it would cause on human rights and other public goods, it must be clear that benefits outweigh harms.

BOLD notes that rights which can be restricted during a state of emergency are subject to legitimate limitations in order to protect public health also in the absence of a declared state of emergency. However, in a state of emergency, rights can be limited to a greater extent compared to legitimate limitations that apply generally.

BOLD expresses concern in respect to the following policies and practices during the state of emergency creating risks for democracy and human rights in Bulgaria:

  1. Blockades of entire Roma neighbourhoods and police check points in all roads leading in and out of them may constitute direct discrimination on the basis of ethnic origin which is strictly prohibited in all cases, including states of emergency, as highlighted by, inter alia, General Comment No. 29 of the UN Human Rights Committee (para 8). Authorities should assess the situation on a case by case basis, taking into account the specific circumstances in each neighbourhood, rather than imposing blanket blockades. In cases where restrictive measures fail the legitimacy tests of purpose, necessity and proportionality, prosecuting bodies should act to identify and sanction offenders.
  2. We condemn the practice of making important executive decisions, during the state of emergency, on matters that have been the subject of significant prior public protest. An example of a decision of this kind is the signing, by the minister of health, of a procurement contract for building a children’s hospital in Sofia. To push through with such decisions in a time when citizens’ voice is diminished by the temporary restriction of their right to assembly is abuse of power.
  3. Some of the measures, particularly among those introduced by regional and municipal authorities, exceeded the limits of necessary and proportional restrictions of human rights. An example is the imposition of a night curfew on the whole territory of Stara Zagora region; it is unclear how being outdoors for urgent and justifiable reasons at night is different from being outdoors for the same reasons during daytime. Such measures are evidence of antidemocratic, authoritarian attitudes. Another example is the unexplained extension, on 7 April, of the state of emergency by over a month, until 13 May. Authorities could have extended it by two weeks initially, with a subsequent review and if necessary, a new extension based on it. This approach would have been closer to a non-authoritarian style of governance.
  4. We note a disciplinary and punitive approach in policies introduced by both national and local authorities: rule by fear, criminal prosecution for most offences carrying extreme penalties such as lengthy terms of imprisonment and disproportionately high fines: BGN5000, equalling appr. €2500, even for first-time offenders walking in a park, before the fines were amended downwards on 6 April. This approach can easily degrade into a police state mindset. It is also counterproductive as it meets with resistance on behalf of some individuals, thereby complicating the work of law enforcement.
  5. In a secular state such as Bulgaria, privileging the right to exercise one’s religion in respect to other fundamental rights and freedoms is problematic. While coercively shutting down secular public spaces such as all types of cafés and restaurants, cinema and theatre halls, city gardens and parks, including parks of the size of large mountains, the government limited itself to merely addressing requests at the Bulgarian Orthodox Church and other religious confessions to discourage crowding and observe individual protection measures during religious service. Yet ever since the start of the state of emergency, and to date, eucharist is reportedly given to churchgoers with a common spoon. Conversations between the government and the Holy Synod (the ruling body of the Christian Orthodox Church) on 30 March and 9 April led to an agreement on how to conduct Passion Week and Easter service (13-19 May) but the agreement was not sufficiently restrictive so as to effectively prevent the spread of the coronavirus.
  6. Despite solidarity slogans and messages to the effect that “we are in this together” and that “together we will win”, the government has not taken adequate and timely measures to protect from infection particularly vulnerable groups of persons, such as those living in neighbourhoods lacking running water and sanitation. We deplore the outrageous failure to supply health mediators in Roma neighbourhoods with personal protection such as masks or disinfectants. We are concerned about people who are confined in common premises, including in crisis centres for the homeless, different types of centres for placement of children or adults, refugee camps, prisons and other closed institutions. All these people are at a greater risk of infection. It matters whether a person spends the time of social isolation in a spacey house with a private garden, or in an overcrowded Roma slum. The government has not been providing satisfactory information about how social services work in the poorest communities; whether and how social patronage (home visits by support workers) operates there at present; whether most vulnerable families are supplied with food or other essential goods; whether people from these communities have access to healthcare. With this lack of care for the most vulnerable, the government’s message that coronavirus does not discriminate and that we are all equally exposed rings hollow.
  7. BOLD is concerned about the increased risk of domestic violence including gender-based violence. There has been some evidence of such an increase from countries with more reliable data on domestic violence (e.g. France). Bulgaria never had a proper system of protection against domestic violence, and we are concerned that the shortcomings of the current system will only get worse during the state of emergency.
  8. BOLD is concerned about the economic consequences of the pandemic and the state of emergency. It is particularly worrying that the government has failed to put in place adequate measures to mitigate the level of unemployment resulting from the state of emergency. The policy known as “the 60/40 scheme” aimed at keeping jobs in the private sector is inefficient and insufficient. (It provides state contributions to 60% of salaries to certain companies under so many conditions that most businesses see it as useless and decline to apply.) Furthermore, most categories of employees in small companies, start-ups and non-profit organisations, as well as the self-employed, are left with no protection at all.
  9. Labour rights are at a high risk of abuse. Workers are in fact unprotected from employers’ pressure to use up their paid and unpaid leaves. There is no meaningful support for employed parents who are prevented from working and forced to stay home to look after their children, as all kindergartens and schools are closed. The statement of the health minister that parents cannot claim sick days or other type of paid leave and that if they are due at work their children should be left with grandparents is irresponsible. A measure adopted in the second week of April consisting in a one-off allowance of BGN375 (approximately €190) for such parents is entirely inadequate, due to the numerous exclusions and low amount.
  10. The state of emergency will lead to considerable impoverishment of large segments of the population. Poverty in its turn will result in poorer health: it is well established that the social determinants of health (early child development, education, employment and conditions of work, income, etc.) are clustering around poverty, and that in every society poverty corelates with poorer health. But rather than striving to propose a package of serious measures to offset the rise of poverty, the government introduced, and parliament adopted, unfavourable amendments of the State of Emergency Act; namely, as of 9 April, the scope of its Article 6 which covered all contractual financial obligations of private parties was limited to credit contracts. With this amendment, delay in any payments except credit would incur interest and penalties for the delay, and contracts can now be cancelled on the ground of delayed payment.
  11. BOLD is particularly concerned that government policies have put at the highest risk of impoverishment exactly those people who have been most vulnerable before the crisis, including low income workers, people with no regular work contracts, people with chronic disease. This means increased socioeconomic inequality in a country which is already among the most unequal compared to other developed or middle-income countries.
  12. BOLD is concerned that people’s health rights are seriously threatened in regard to health issues unrelated to COVID-19. All consultations for pregnant women and young children, all vaccinations and all planned surgeries have been cancelled during the state of emergency. It is highly unlikely for this restrictive policy to pass muster under the proportionality test: the benefits it brings are unlikely to outweigh the probable harm to patients.
  13. BOLD notes with concern the insufficiently good targeting and local differentiation as well as the lack of proportionality in a number of policies and practices during the state of emergency. Thus, in certain respects, measures are extreme or even absurd, particularly in locations with no infection, while in other respects measures are insufficiently restrictive or ineffective. For example, the government has imposed a blanket ban on visiting or even passing through all parks and gardens, irrespective of any factors such as the type of park or its location on the territory of Bulgaria, be it inside or outside settled areas. It is equally prohibited to visit, for example, a popular city park in the centre of Sofia (the capital city has the highest number of infected people) and in towns in which not a single coronavirus case has been identified. In our view, this policy reveals unacceptable indolence on behalf of law enforcement and a red-tape approach to regulating citizens’ conduct. We believe that restrictions must be differentiated and strictly corresponding to local conditions. The government’s blanket bans do not meet the standards of government conduct during a state of emergency, in particular principles 51, 52 and 54 of the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights.
  14. BOLD is deeply concerned about people’s mental health which can deteriorate in conditions of lengthy social isolation. The most efficient way to manage the crisis is also most favourable to public mental health – namely, knowledge which is broadly shared and timely. Knowledge increases the probability that people voluntarily observe reasonable restrictive measures at the same time as it decreases the negative impact of isolation. We note that mental health, as well as physical health, is particularly undermined by the total ban on visiting parks and gardens, including for parents with babies and toddlers – while walking dogs in these places has been tolerated.
  15. We are concerned that the initial response from European Union member states and the European Commission threatened to further weaken the EU as a guarantor of democracy and human rights. At the start of the pandemic, the nationalist approach of certain member states, the lack of vocal support for cross-border solidarity from the EU public and the belated steps toward international cooperation put at a risk the realisation of the European project as a viable community of common values. This said, the dynamic activity of key EU institutions in the last few weeks and the impressive measures the EU has now adopted for overcoming the crisis are encouraging developments. One of the lessons from the last two months is that civil society within the EU member states should proactively put itself forward as a stakeholder and energetic participant in forthcoming European efforts to rebuild European economy and society.

Along with the series of negative repercussions of the state of emergency listed above BOLD is of the view that this new situation, both at the global and national level, contains a potential for positive changes in social life.

Opportunities for Positive Change

The pandemic and the state of emergency have revealed several sets of opportunities that may have a positive impact on post-crisis societies:

  1. In respect to the environment – Our society is capable to adapt to a reduction of industries that have been the main culprits in global climate change, such as air and automobile transport, as well as a reduced extraction of fossil fuel. With the advance of the epidemic, smog over cities is disappearing, sea and river water is getting cleaner, carbon emissions have dropped. On the other hand, however, global economic recession may slow down or stop the transition to clean energy. The key question now is not whether the coronavirus is “good” or “bad” for the environment, but whether after the pandemic is over, humans would transform the economy and put it in the service of humanity whilst not allowing further harm to life on earth, including human life. The coronavirus should not be an excuse for postponing solutions to that other huge though slower crisis – climate change – which is an equally severe threat to public health.
  2. In respect to civil society – The pandemic appears to have engendered feelings of solidarity among people and we have seen a marked growth of volunteering as a personal behavioural choice. We also note emerging challenges in interpreting solidarity. As responsible citizens, we should not expect governments to be the primary driving force in developing a new culture of charity for the benefit of the most vulnerable among us. Citizens’ participation will be of key importance to ensure the adequacy, efficiency and effectiveness of all future steps that would be taken at both national and supranational levels towards overcoming the consequences of the crisis.
  3. Regarding the digital society – There is an opportunity for speeding up a holistic and inclusive introduction of information and communication technologies in public institutions and all other spheres of social life. This would be a very welcome progressive development, on condition that personal data protection is ensured. Accordingly, universal access to digital communications is now high on the agenda, as is computer literacy for all. The crisis is an opportunity for advancing e-governance at the national and local level in a number of sectors, including administrative services and healthcare. Democratic election can also be enhanced through online voting, provided equal opportunity to vote is ensured for those who are unable to exercise their voting rights online.
  4. In the world of work – The crisis has demonstrated that many of the jobs performed in offices during fixed work hours can be transformed into more flexible patterns of work performed in part or entirely from home. It will be an achievement for our country if, in the aftermath of the state of emergency, employers review work modalities in their organisations and introduce new forms of work that would contribute to reducing stress levels and improving work-life balance.
  5. In schools and tertiary education – The use of digital technologies can become more pervasive and more effective. However, children and young people who have no devices for accessing the Internet should be supported urgently, so that they can exercise their right to equal access to quality education.
  6. Regarding healthcare – A raised awareness of manifest deficiencies in the national health system may lead to a better preparedness for future health emergencies. The increased public recognition of the work of medical personnel is welcome and it is hoped that it can trigger improvement in their conditions of work in Bulgaria as well as a decrease of their economic emigration.
  7. In respect to innovation – After this pandemic, many of the old instruments for making policy and running businesses will no longer be seen as relevant or efficient. There will be a need for new ideas, approaches and measures to overcome the after-effects of the crisis, encourage socioeconomic development and normalise life in the community. The emerging awareness of the literal interconnectedness of every individual and every society with all others will bring a new understanding of empathy and solidarity not just as abstract moral principles but as instruments to be applied innovatively in making public policy.

In view of the above threats and opportunities faced by democracy in Bulgaria, BOLD extends several demands to the government.

Demands Addressed to the Bulgarian Government

The Bulgarian government should:

  1. Not allow under any circumstances the closure of parliament and the courts even if their operations must be limited and changed in format in order to accommodate measures such as social distancing. If parliament and the courts are discontinued, there will be no check on executive power.
  2. Develop and publicise an emergency plan for humanitarian action, in particular ensuring food, water and sanitation for the most vulnerable families and their children.
  3. Require that municipal authorities provide current information about the functioning of social services in towns and neighbourhoods under blockade or quarantine, including in respect to social patronage, access to food, medicines and essential goods, and the provision of healthcare.
  4. Propose a significantly more substantial package of economic measures covering more economic actors and featuring adequate support for the most vulnerable.
  5. Prohibit the attendance of laymen in religious service for all confessions for as long as secular gatherings are prohibited under the state of emergency. If persons visit churches and other religious buildings individually outside service, they must be required to observe the general restrictions applying to non-religious places at the time being (wearing masks, social distancing, entrance control, etc.).
  6. Discontinue launches of controversial infrastructure projects such as the publicly condemned project to install a children’s hospital in a totally unsuitable building in Sofia; in a framework of broad public consultation, prepare and adopt a comprehensive list of questionable infrastructure projects that should be frozen or rejected as a part of the necessary re-prioritisation of the social and economic agenda.
  7. Develop and publicise a clear exit strategy aimed at a gradual relaxation of measures introduced under the state of emergency. It is no longer acceptable to be told daily that no one can predict the course of the pandemic or the duration and scope of the emergency measures. This is not true, nor are we expecting primitive one-dimensional planning. There could be planning for different scenarios that would be triggered by certain defined and publicised criteria.
  8. Begin immediately to elaborate a road map for recovery from the crisis in relevant spheres of social life, complete with a risk analysis and proposed packages of short-, mid- and long-term measures addressing as a matter of priority the most affected sectors of the economy and the most vulnerable groups in society. In this process, a number of essential policies that have been more or less abandoned but that are necessary to build a more inclusive society should be implemented, for example, educational desegregation of Roma children and their inclusion in a multicultural educational environment.
  9. Ensure mechanisms for effective citizen participation in developing and implementing policies for overcoming the crisis in all relevant areas. This is conditioned on full and transparent access to information as well as flexible consulting mechanisms and specialised platforms for online discussion of policy.
  10. In the aftermath of the state of emergency, reorient the economy to bring it into sync with the country’s international obligations under the UN Framework Convention on Climate Change, including its Paris Agreement, and the UN Sustainable Development Goals. Steps towards economic, environmental and social justice will make our society better prepared to address any future crisis.

In conclusion, BOLD is concerned that among the victims of coronavirus and the state of emergency can be democracy in Bulgaria. Today, it is not surprising to see increased public toleration of non-democratic governance. However, enhanced by fear, such toleration creates a favourable setting for the dismantling of democratic institutions and for unjustifiable infringement of human rights. The antidote against these threats is not isolationism but cooperation and a shared responsibility to safeguard democracy. In this regard, BOLD stands by its duty to maintain a critical perspective on current events and persist in advocating the values of liberal democracy.