Vesna PESIC and 3 others. against Serbia

The European Court of Human Rights (hereinafter: the Court) is19. made in May 2026, and on June 11 of the same year announced the decision in the case Pešić and others. against Serbia, no. 48973/20, 51319/20, 54565/20 and 54676/20.

It's a decisionbroughtthree-member Board.

THE CIRCUMSTANCES CASES

The applicants, Ms. Vesna Pešić (hereinafter: the first applicant), Ms. Ljubica Mandić (hereinafter: the second applicant), Ms. Dragica Đorđević (hereinafter: the third applicant) and Dragiša Ilić (hereinafter: the fourth applicant) at the time of the declaration of the state of emergency due to the outbreak of the virus pandemicCOVID 19 and the introduction of restrictive measures to prevent the spread of the disease, were more than 65 or 70 years old, thus falling into the group of persons whose freedom of movement is restricted.

On March 10, 2020, the Government of the Republic of Serbia adopted the Decision on the declaration of the diseaseCOVID 19an infectious disease whose prevention and control is of interest to the Republic of Serbia. This decision came into force on the same day.

In accordance with the aforementioned decision, on March 15, 2020, the President of the Republic, the President of the National Assembly and the Prime Minister passed the Decision on declaring a state of emergency on the territory of the Republic of Serbia, which entered into force on the same day. On that day, the Government of the Republic of Serbia also adopted the Decree on measures during a state of emergency ("Official Gazette of the RS", number 31/20), which, among other things, provided that the Ministry of Internal Affairs, with the consent of the Ministry of Health, has the ability to temporarily restrict or prohibit the movement of persons in public places, and all gatherings, indoors or outdoors, were prohibited.

On the basis of Article 2 of the aforementioned Regulation, on March 18, 2020, the Minister of Internal Affairs, with the consent of the Minister of Health, issued an Order on the prohibition and restriction of the movement of persons on the territory of the Republic of Serbia ("Official Gazette of the RS", number 34/20), which provided for a ban on the movement of persons aged 65 and over - in populated areas with more than 5,000 inhabitants, as well as persons aged 70 and over - in populated areas up to 5,000 inhabitants, in order to suppress and prevent the spread of infectious diseasesCOVID - 19and protection of the population from that disease. Movement was prohibited in public places, i.e. outside apartments, rooms and residential facilities in residential buildings and outside the household (household).

The regulation on measures during the state of emergency of March 15, 2020 was changed a total of 12 times, due to the need to constantly review the prescribed measures in accordance with the course of the epidemic. The amended regulations were published in the "Official Gazette of RS", no. 36/20, 38/20, 39/20, 43/20, 47/20, 49/20, 53/20, 56/20, 57/20, 58/20 and 60/20.

Regarding the aforementioned age category of the population, the 24-hour curfew that was initially prescribed on March 18, 2020, lasted for 4 days. From March 21, 2020, and for the next 30 days, senior citizens were allowed to leave their homes for 60 minutes once a week, on certain days (first on Saturdays and then on Fridays), early in the morning (first between 03:00 and 08:00, and then between 04:00 and 07:00 in the morning), exclusively for the purpose of purchasing groceries. After this period, they are allowed to leave their homes for 30 minutes, between 6:00 p.m. and 1:00 a.m., 3 times a week, on certain days, for a walk within a radius of 600 meters from their place of residence. From April 25, 2020, senior citizens had the right to spend an hour outside, every day, within the same radius of movement.

Parallel criminal and misdemeanor liability was foreseen for the violation of the described movement bans. Namely, point 5 of the Order of March 18, 2020, for violating the prohibitions from point. 1. and 2, punishment was foreseen in accordance with the Criminal Code and the possibility of imposing a fine, but also a prison sentence of 3 years, was prescribed.

Parallel misdemeanor liability for violation of the Order of March 18, 2020 was introduced on March 21, 2020, by the Government, by the Regulation on Misdemeanor ("Official Gazette of RS", No. 39 of March 21, 2020). According to this Regulation, a fine in the amount of 50,000 to 150,000 dinars was prescribed for misdemeanor liability. Article 2 of the mentioned Regulation expressly provided that "for the misdemeanor from Article 1 of this Regulation, misdemeanor proceedings may be initiated and completed, and in the event that proceedings for a criminal offense that includes features of that misdemeanor have been initiated or are ongoing against the perpetrator, regardless of the prohibition from Article 8 of the Law on Misdemeanors ("Official Gazette of the RS", 65/13, 13/16 and 98/16-US).

At the first session of the National Assembly of the Republic of Serbia, held since the onset of the pandemic, on April 29, 2020, the Law on the Confirmation of Decrees passed by the Government, with the co-signature of the President of the Republic, during the state of emergency was adopted. This law entered into force on the same day and confirmed the Decree on measures during the state of emergency with all previous amendments. The law was published in the "Official Gazette of RS", number 62/20.

The regulation ceased to be valid on May 6, 2020. At the session of the National Assembly held that day, the Law on Validity of Decrees passed by the Government with the co-signature of the President of the Republic during the state of emergency, and confirmed by the National Assembly ("Official Gazette of RS", number 65/20) was adopted. In this Law, among other things, the Decrees enacted during the state of emergency, and they ceased to be valid after its termination, are listed in detail.

The second applicant, by the judgment of the Misdemeanor Court in Zrenjanin Pr. 1100/20 of April 6, 2020, declared liable for the misdemeanor from Article 1, paragraph 1 of the Regulation on misdemeanors for violating the Order of the Minister of Internal Affairs on the restriction and prohibition of the movement of persons in the territory of the Republic of Serbia in connection with point 2) of the Order on the restriction and prohibition of the movement of persons in the territory of the Republic of Serbia and was sentenced to a fine in the amount of RSD 50,000.00. In the explanation of the verdict, it was stated that the applicant was met by a police patrol on April 6, 2020 at 1:30 p.m. when she was returning from the store. At that stage of the pandemicCOVID-19persons older than 65 years of age in populated areas with more than 5,000 inhabitants were allowed to move exclusively on Saturdays in the period from 03:00 to 08:00.

According to the verdict of the Misdemeanor Court in Zrenjanin Pr. 1100/20 of April 6, 2020, the applicant filed an appeal which the Criminal Appellate Court - Novi Sad Division rejected as unfounded by the judgment Prž. no. 8472/20 of June 30, 2020.

After that, the applicant filed a constitutional appeal and an initiative for the assessment of constitutionality and legality with the Constitutional Court, considering that the aforementioned verdicts were passed on the basis of unconstitutional and illegal acts of the executive power, and that these measures violated her basic constitutional principles and rights guaranteed by Art. 21 and 43 of the Constitution.

The Constitutional Court rejected her constitutional appeal by decision Už-7746/20 of December 22, 2021, while a little earlier, on September 17, 2020, on the occasion of several initiatives, it made a decisionIUo-45/2020.

The first applicant did not submit a constitutional appeal, while the third applicant and the fourth applicant submitted constitutional appeals to the Constitutional Court, which the Constitutional Court treated as initiatives for the assessment of constitutionality and legality and made a decisionIUo-45/2020 of September 17, 2020.

By decisionIUo-45/2020 of September 17, 2020, the Constitutional Court assessed that the provisions of the Decree on Measures during a State of Emergency and the Order of the Minister of Internal Affairs on the Restriction and Prohibition of the Movement of Persons in the Territory of the Republic of Serbia, which in their essence represented a violation of the principle "ne bis in idem", were not in accordance with the Constitution and confirmed international agreements. Movement restriction measures for citizens over 65 or 70 years of age prescribed by the Decree were judged by the Constitutional Court to be necessary for the protection of the constitutionally protected right to life and health protection of the population in the Republic of Serbia.

With regard to allegations of discrimination, the Constitutional Court pointed out that the special regime of prohibition of discrimination provided for in Article 202, paragraph 2 of the Constitution, and not in Article 21 of the Constitution, applies to deviation measures. The Constitutional Court found that the measures deviating from the freedom of movement guaranteed by the Constitution in relation to persons over 65 years of age, which were necessary in order to suppress and prevent the spread of an infectious diseaseCOVID - 19 and protection of the population from that disease during the state of emergency do not constitute deprivation of liberty of the mentioned persons either in form or content.

COMPLAINTS APPLICANTS AND THE PROCEDURE BEFORE THE COURT

The petitioners submitted their petitions to the Court on October 27, November 13, and December 2, 2020.

The first and third applicants, as well as the fourth applicant, complained in their petitions about the violation of the right to freedom and security from Article 5 of the Convention, claiming that measures restricting movement for persons over 65 and 70 years of age constitute a deprivation of liberty that is contrary to the provisions of that article.

Alternatively, the first applicant complained of a violation of Article 2 of Protocol 4 to the Convention, in the event that, according to the Court's opinion, the restriction of movement does not constitute deprivation of liberty.

The second applicant complained about the violation of the principle of punishment based on the law from Article 7 of the Convention, claiming that the Decree on measures during a state of emergency was adopted in an unconstitutional procedure and does not have the character of law provided for in Article 7 of the Convention. The applicant claimed that the deviation of the Republic of Serbia from the rights provided for in the Convention was not in accordance with Article 15 of the Convention.

The third applicant and the fourth applicant complained about the violation of the right to an effective legal remedy from Article 13 of the Convention, because in their opinion, they did not have an effective legal remedy available for the said violations.

All the applicants complained about the violation of the prohibition of discrimination from Article 14 of the Convention, claiming that the Order of the Minister of Internal Affairs on restriction of movement discriminated against persons over 65 years of age.

THE DECISION THE COURT

The court noted that the second applicant died on June 13, 2022, while the proceedings on her petition were ongoing. Her successor, Mr. Jovan Mandić, expressed his desire to continue the proceedings according to the petition. The court assessed that he has a legal interest in acting on her behalf.

• Article 2 of Protocol No. 4 to the Convention

The court, first of all, assessed that the measures in question represented a restriction of freedom of movement and that Article 2 of Protocol No. 4 to the Convention is applicable.

Furthermore, the Court noted that there was a special context regarding the measures complained of by the applicants. Those measures were introduced during the state of emergency in the Republic of Serbia, which was declared on March 15, 2020, for reasons of public health, and were imposed on everyone, not just the elderly.

Also, the Court stated that the measures that were adopted at the relevant time were aimed at suppressing the spread of the pandemic and protecting the most vulnerable groups and were adopted based on the assessments of the competent authorities, which were based on scientific data and recommendations of the World Health Organization, which indicated that the population to which the applicants belong is exposed to an increased risk of infection with the viruscovid -19,as well as from the fatal outcome.

Although the restrictions imposed on persons over the age of 65 were stricter than those for other persons, the Court noted that they were limited for the duration of the state of emergency, that they were regularly reviewed, that they were adjusted to the risk of disease and that they were relaxed as the epidemiological situation improved.

Therefore, the Court assessed that the state's interference was proportionate to the legitimate goal - to protect the health of a sensitive category of the population, and that the reasons given by the domestic authorities were "legitimate and sufficient", and rejected all the applicants' complaints under Article 2 of Protocol No. 4 to the Convention as clearly unfounded in accordance withthe provisions of Article 35, para. 3. (a) and 4. of the Convention.

• Article 14 in connection with Article 2 of Protocol No. 4 to the Convention

The court stated that the disputed measures made an explicit distinction between persons over 65 years of age and the rest of the population. However, according to the Court, those measures were aimed at protecting a vulnerable group of the population from the risk of infection fromCOVID - 19, a to which the applicants belonged.

Taking into account the wide field of discretion given to states in public health policies, this measure must, in the opinion of the Court, be considered objectively and reasonably justified.

In this connection, the Court also rejected this complaint as obviously unfounded, in accordance with the provisions of Article 35, paragraph. 3. (a) and 4. of the Convention.

• Art. 13 and 15 of the Convention

The court found that the complaints of the third applicant and the fourth applicant in relation to Article 13 of the Convention do not reveal any signs of violation of the rights established by the Convention and its protocols, and rejected them as clearly unfounded in accordance with the provisions of Article 35, para. 3 and 4 of the Convention.

Finally, the Court stated that the Republic of Serbia did not explicitly state the articles of the Convention that are the subject of such action in its intention to deviate from its obligations under the Convention. Taking into account the decisions on other complaints, the Court took the position that it is not necessary to consider the validity of the notice of deviation submitted by the Republic of Serbia to the Council of Europe.