Derogation of human rights

Thus far we have seen that there are certain differences between the states of necessity. However, in terms of substantive limits to deroga-tion of human rights, the rules for both states are identical. It should be noted that the previous constitution had practically no provisions in this regard, and that this is a signifi cant improvement. The Constitution of Serbia poses very strict limitations to the restriction of rights:

1. Derogation is allowed “only to the extent necessary”;

2. The derogation of rights may not lead to discrimination based on race, gender, language, religion, nationality or social origin;

3. All measures that derogate human rights cease to be in force upon conclusion of the states of necessity;

4. Certain rights can never be derogated.²⁴

These rules are mostly derived from the International Covenant on Civil and Political Rights²⁵ and are somewhat different from the general provisions regarding human rights limitations. In principle, human and minority rights may be restricted by law only if expressly permitted by

24 See: Ibidem, art. 202.

25 Articles of the International Covenant on Civil and Political Rights are quoted from: http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx (dostęp: 17.05.2014).

177 the Constitution (in the same articles that proclaim them), solely for the purposes defi ned by the Constitution, to the extent necessary to achieve those purposes, and “without infringing upon the essence of the right itself”.²⁶ Also, even when the rights are limited, discrimination in any form is forbidden.²⁷ Since these constitutional provisions are directly applied, and the derogatory measures may only be in the form of law, the National Assembly is, in effect, the only body authorized to enact these restrictions.

The principal result of the states of necessity in this regard is the extension of the derogatory authority of the Assembly to the rights it cannot otherwise restrict. Because of this, the temporal limitation (“for the duration of the states”) and the inviolability of certain rights were instituted. The latter limitation, however, is excessively restrictive, as the list of inviolable rights is quite extensive. It contains 17 rights (out of a total of 52 that are proclaimed by the Constitution), several of which are basic human freedoms – the right to life, human dignity, freedom from torture and slavery, etc.²⁸ However, this list also includes rights that need not be declared inviolable,²⁹ and that for three reasons.

First of all – because restricting them within constitutional bounds may be necessary (e.g. due process of law). Second – because the Consti-tution expressly allows some of them to be derogated by law outside the states of necessity (e.g. the freedom of religion).³⁰ Third – because some of them are far less important than the fundamental rights (e.g. the freedom to marry and the equality of spouses). Declaring all of them to be inviolable during the states of necessity either contradicts the general rules, or serves no apparent purpose, or can have a detrimental effect on the capacity of the State to safeguard itself or its citizens. In these cases, the other rules limiting derogation during the states of necessity are more than suffi cient to prevent a complete abrogation of rights.

The rights most often derogated during the states of necessity are related to custody and arrest (rights of habeas corpus in Anglo-Amer-ican law), as well as the freedom of assembly and public expression.

26 Constitution of 2006, art. 20.

27 Ibidem, art. 21.

28 Ibidem, art. 202 par. 4.

29 Compare: International Covenant on Civil and Political Rights, art. 4.

30 Constitution of 2006, art. 43 par. 4.

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In the Constitution of Serbia, the majority of these may be restricted beyond the states of necessity (freedom of assembly, public expression, custody).³¹ The only differences are that during the states, the restricting measures are only temporary and may be slightly wider in scope – in normal circumstances, derogation of rights may not lead to discrimina-tion in any form, while during the states this is limited to race, gender, language, religion, nationality or social origin.³² It seems that, again, the states of necessity make little practical difference to the functioning of the State. This is further emphasized by the fact that even those rights that can only be derogated during the states are not closely related to war or public danger, nor are they likely to be severely restricted by a government in any eventuality.

5. Conclusion

The states of necessity in the Constitution of Serbia are fraught with problems. On the one hand, the requirements and procedures of their declaration and cessation are insuffi ciently and imprecisely regulated.

On the other hand, the institutional consequences are few and pose more restrictions and safeguards than actual benefi ts to the branches of government. A preferable state of affairs would be the opposite – that the initiation and termination of the states are strictly regulated, while the emergency powers are of wider scope. In our opinion, necessary changes to the Constitution should be to allow the government to enact decrees with the force of law as well as to authorize it to derogate hu-man rights even when the Assembly is able to convene. This would, at least, allow the State to act more freely and more swiftly. Nevertheless, taking into account all their faults, the states of necessity in the Consti-tution of 2006 are a vast improvement over the sparse and vague pro-visions that were to be found in the Constitution of 1990, and they are effective in preventing the abuse of legal form for political purposes.

31 Ibidem, art. 30; 31; 46; 54.

32 Ibidem, art. 21 par. 3; art. 202 par. 2.

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Bibliography

Agamben G., State of Exception, Chicago 2005.

Marković R., Republic of Serbia Constitution of 2006 – A Critical Review,

“Annals of the Faculty of Law in Belgrade” 2007.