The preventive measures Icelandic citizens experienced during the COVID 19 pandemic undoubtedly significantly curtailed their constitutionally protected rights. When the virus first appeared over two years ago, it was apparent that it was perilous and, in some cases, deadly. To limit its spread and protect people vulnerable to severe illness, it was a matter of course for authorities to respond efficiently. Accordingly, the authorities took targeted disease control measures, which included extensive restrictions on the citizens‘ human rights, including the freedom to work. These limitations may have been justifiable on the grounds of the State‘s constitutional obligation to protect the life and health of the people against the threat imposed by the virus. Under these circumstances, authorities must thread the golden mean when deciding on the necessary preventive measures.
The Act on Infectious Disease states that preventive measures shall not be taken unless there is an urgent need to protect human life and health. The Act also states that in the application of measures and their repeal, proportionality and non-discrimination shall be observed and interests protected by the Constitution and human rights treaties to which Iceland is a party, taken especially into account.
Freedom to work is a constitutional right
The freedom to work is protected by Article 75 of the Icelandic Constitution. This protection means that every citizen is free to practice the line of work they choose, and it cannot be curtailed except by law, except as the public interest so requires. Distinct requirements are made for public interests to be present for such curtailment to be considered lawful. A guideline states that the more burdensome restriction of rights, the more significant the public interests must be for it to be justified. The result could be that even though particular public interests are present, they are not of such nature that they justify the restriction of rights that they engender.
In the past two years, authorities have been admitted an extensive scope to assess measures and interferences deemed necessary to address the unpredictable COVID-19 pandemic. At the beginning of the year, an interesting verdict was handed down in Reykjavik District Court in case no. E-903/2021, 14 January 2022. The conclusion was, among other things, that the obligations of authorities to protect the lives and health of the citizens could not be dismissed, and the court admitted a certain margin of assessment left to the authorities. The authorities have thus been admitted, by a judicial court, with ample room for evaluation on which measures are considered necessary to limit the pandemic‘s spread.
A radically changed pandemic
With the advent of the Omicron variant and vaccination against COVID-19 for most Icelandic citizens, the status of the pandemic has changed radically. The logical question is thus whether the premises for the authorities’ broad assessment of the need for epidemic measures are still present, with the associated curtailment of constitutional rights. Furthermore, it is inevitable to assess whether real public interests that justify the extensive restrictions of constitutionally protected rights, with the subsequent damage, were in fact present during the last six months in force.
Icelandic authorities are obliged by law to provide health care, cf. Article 1 of Act no. 40/2007 on Health Services, which states that the Act‘s objective is to ensure that all citizens have access to the most advanced health services feasible at all times for the protection of mental, physical and social health as defined by law. In this context, it is befitting to mention that the recommendations of the Chief Epidemiologist have been reasoned by, among other factors, the fact that the spread of the COVID 19 pandemic must be tempered to maintain the working capacity of the healthcare system, especially Landspítalinn. Considering the clear condition set out in the freedom-to-work provision of the Constitution, that solely public interests can justify curtailment of the freedom to work, it is reasonable to ask whether such measures can be justified only by a reference to the working capacity of Landspítalinn. An argument can be made that such actions are not in accordance with the unequivocal demand of public interests set out by Article 75 of the Constitution.
The status of Landspítalinn is hardly a justification
The healthcare system must adapt to social needs, not the other way around, i.e., society must not adapt to the healthcare system‘s needs. In this context, it is logical to question the legitimacy of referring to the possible burden on the health care system as a valid reason for the curtailment of constitutionally protected rights. In other words, whether authorities can use their negligence of statutory obligations (to provide health care) to justify interfering with constitutionally protected rights.
There is no dispute that the COVID-19 pandemic was a significant threat to public health in Iceland and abroad. However, it is necessary to assess whether the last six months of the measures in force at the time, following the advent of the Omicron variant and extensive vaccinations, were justified by the pandemic, which restricted freedom to work substantially. In particular, it must be assessed whether the measures went beyond the principle of proportionality.
If the results are that public interests which justify such extensive preventive measures were not present, it is inevitably a violation of constitutionally protected rights, which leads to State liability.