The lawyer who had the State convicted explains what will change for citizens

“1) The government can no longer restrict your rights on the basis of the laws in force”

“The Liga voor Mensenrechten considers that the federal government has been overstepping its rights since the beginning of the crisis. ‘We do nevertheless think that the health measures are extremely important – we obviously want to put an end to this pandemic as soon as possible – but if citizens’ rights are restricted so significantly, it has to be done properly,’ Kati Verstrepen begins. ‘At present, the measures are built on legal quicksand,’ she insists.”

“In other words, the measures currently in force lack a sufficient legal basis. The laws on which the government is currently relying are in fact intended to respond to one-off emergencies and not to a crisis that has lasted for more than a year, the court ruled.”

“‘Imagine that a chemical plant explodes tomorrow in Belgium or that a bomb attack takes place: a minister can decide to confine the population for safety reasons or to bring the emergency under control. However, these must always be very temporary measures. Today, these same laws are being used to restrict citizens’ fundamental rights for an entire year. That is unacceptable because it leads to legal uncertainty. The court agreed with us on this point,’ explains Ms Verstrepen. The federal government must therefore get back to work to draw up a new pandemic law – and above all, a solid one.”

“2) Masks may not come off, but corona fines will be easier to contest”

“The court’s decision removes the legal basis for the measures, but does not abolish the rules themselves. ‘Today, all these measures therefore remain in place,’ Kati Verstrepen points out. ‘You still have to keep your distance and wear a mask, and the hospitality sector is still not allowed to open.’ Yet something has changed considerably since yesterday/Wednesday: the government has suddenly become more vulnerable to citizens who want to contest their corona fine.”

“Suppose you take part in a ‘lockdown party’ and the police fine you 250 euros. You can of course contest this fine in court. Just as a hairdresser who broke the rules by opening their salon anyway can also contest any police report. This has always been possible, but now the partygoer or the ‘illegal’ hairdresser has a more solid legal basis.”

“‘The probability that a person will be exempted from paying their fine if they go to court has increased,’ confirms Kati Verstrepen. ‘Other judges could rely on this judgment to declare the fine illegal. But it is not a certainty. The judge may also hand down a different decision and simply uphold the fine. Moreover, the government has decided to appeal. If it wins on appeal, we will be back to square one.’”

“3) No more curfew, and the government will have to discuss measures openly and publicly”

“The Brussels court’s order gives the federal government thirty days to introduce a genuine pandemic law to remedy this illegal situation. ‘This is what we and many constitutional experts have been calling for for months,’ sighs Kati Verstrepen. ‘We did so through open letters and opinion pieces, but they always put it off and did not want to listen to us.’ Now the government is obliged to work on it. And quickly.”
“One might think that drawing up such a law is a formality, but that is far from being the case. ‘It will change the lives of all the citizens of this country during the health crisis,’ Kati Verstrepen continues. ‘A solid law to manage the pandemic will have to address two important points. Firstly, the government will be obliged to discuss the measures openly and publicly in Parliament before introducing them. Take the example of the famous window rule on trains to the Coast. The government will have to explain to Parliament why such a rule is necessary.’”

“This means that Prime Minister Alexander De Croo will no longer be able to simply come and present the measures at a press conference. ‘They will first have to be debated. And it is only when a majority in Parliament sees the usefulness of the measure that it will be accepted after a vote. But if the debate shows that the proposed measure makes no sense, it will not get enough votes and will therefore not be adopted,’ explains Kati Verstrepen.”

“The second element that will change, according to the lawyer, concerns the curfew. It can no longer be introduced. ‘Such a pandemic law will always have to specify that it cannot suspend our fundamental rights, only limit them,’ explains Ms Verstrepen. ‘That is a very big difference. The curfew is an example of a suspension of our rights: the government forbids us to go out between certain hours. That is a suspension of fundamental rights and is therefore not possible. On the other hand, the government will still be able to restrict our rights by means of a ban on gatherings. For example, you can go out, but only in groups of four and wearing a mask in very busy places. That is a restriction of freedoms and it is possible, provided the restrictions are necessary and balanced.’”

“The question is whether the government will actually apply the new pandemic law as demanded by the Ligue des droits humains and the Liga voor mensenrechten. Because the bill currently on the table is inadequate. ‘And the government knows it,’ stresses Kati Verstrepen. It will have to get down to drawing up a law that is 100% legally valid. If it does not do so within thirty days, it will have to pay a penalty of 5,000 euros for each day of delay, with a ceiling of 200,000 euros. ‘If that were to be the case, we would donate this money to a good cause,’ says Ms Verstrepen. ‘But we hope it will not come to that.’ If the government were ready in time but the soundness of its new law left something to be desired, the Liga voor mensenrechten is already promising to challenge it. ‘We are ready, but we hope the government has learned its lesson,’ concludes its president.”

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