STA, 27 July - The Human Rights Ombudsman has assessed that the failure to comply with the government decree on the mandatory use of face masks in enclosed public spaces cannot be penalised.
The ombudsman's opinion, issued on Monday, is based on an appeal by a citizen who does not agree with the mandatory use of face masks in closed public spaces being reintroduced on 25 June.
The citizen claims that there is no basis for the measure, because the state of emergency or epidemic has not been declared (again). She assesses the measure as a disproportionate encroachment upon the constitutionally guaranteed rights and freedoms.
The ombudsman's office said that while individuals had the right to have doubts about the effectiveness of face masks, these evaluations were in the domain of the epidemiologic profession.
This is why the decree also says that the government re-assesses every two weeks whether a specific anti-epidemic measure is still justified.
But the office noted that the decree on the mandatory use of face masks in enclosed public spaces had been adopted based on an article of the infectious diseases act which is only a general provision.
Fines for violations are meanwhile envisaged only for the failure to respect the measures adopted on the basis of a separate chapter of the infectious diseases act, it added.
It is because of this that, in the ombudsman's opinion, an individual who does not wear a face mask in an enclosed public space cannot be fined for committing an offence.
"Although the measure is worded as an obligation, it is an example of the so-called incomplete legal norm, for violations of which no penalties are envisaged," it said, noting that this was supported by a relevant decision of the Constitutional Court.
The office assessed that the government had opted to introduce mandatory wearing of masks without the possibility of penalty because it wanted to point to the duty of individuals to protect their own health and the health of others.
Considering this, the government is apparently aware that forced implementation of such an order would be ineffective or impossible, as the measure relates to all citizens and all enclosed public spaces.
"Possible sporadic penalising of only some of the violators would project an image of arbitrariness," the office concluded.