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Usvojena apelacija: Odlukom o obaveznim maskama u zatvorenom prekršeno pravo na “privatni život

Odluka Ustavnog suda BiH

Ustavni sud BiH djelimično je usvojio apelaciju Mire Ćajić sa Sokoca. Prema ovoj apelaciji odluka Republičkog štaba za vanredne situacije RS o obaveznom nošenju zaštitne maske u zatvorenom prostoru predstavlja kršenje prava na „privatni život“.

A kao neosnovana odbija se apelacija u dijelu zahtjeva da se ukine Zaključak o sprovođenju mjera za reagovanje na pojavu bolesti izazvane novim virusom korona (COVID-19) u Republici Srpskoj od 9. aprila 2021. godine.

Ustavni sud je zaključio da miješanje u osnovna ljudska prava i slobode garantovane Ustavom Bosne i Hercegovine i Evropskom konvencijom, u konkretnom slučaju prava na „privatni život“ iz člana II/3.f) Ustava Bosne i Hercegovine i člana 8. Evropske konvencije, koje je izvršeno osporenim Zaključkom Republičkog štaba za vanredne situacije, kao uskog segmenta izvršne vlasti, o obaveznom nošenju zaštitne maske u zatvorenom prostoru, predstavlja kršenje prava na „privatni život“ kada je u slučaju donošenja i preispitivanja naređene mjere izostalo aktivno učešće najviših organa zakonodavne i izvršne vlasti Republike Srpske. S druge strane, Ustavni sud zaključuje da je neosnovan dio apelacije u kojem se zahtijeva ukidanje osporenog Zaključka, zbog postojanja nesumnjivog javnog interesa za uvođenje neophodnih mjera zaštite stanovništva od pandemije i nastupanja negativnih posljedica, prije nego što zakonodavna i najviša izvršna vlast preduzmu mjere u okviru svojih ovlaštenja i obaveza.

“Nalaže se Narodnoj skupštini Republike Srpske i Vladi Republike Srpske da odmah, a najkasnije u roku od 30 dana od dana prijema ove Odluke, preduzmu aktivnosti i usklade svoje djelovanje sa standardima Ustava Bosne i Hercegovine i člana  8. Evropske konvencije za zaštitu ljudskih prava i osnovnih sloboda, kako su navedeni u ovoj Odluci”, stoji u odluci Suda BiH.

“Nalaže se Narodnoj skupštini Republike Srpske i Vladi Republike Srpske da odmah, a najkasnije u roku od 30 dana od dana prijema ove Odluke, preduzmu aktivnosti i usklade svoje djelovanje sa standardima Ustava Bosne i Hercegovine i člana  8. Evropske konvencije za zaštitu ljudskih prava i osnovnih sloboda, kako su navedeni u ovoj Odluci”, stoji u odluci Suda BiH.

Dodaje se da apelantica prvenstveno ukazuje da se predmetna apelacija podnosi u smislu člana 18. stav (2) Pravila Ustavnog  suda, a da je osporeni Zaključak prekoračio  odredbe „zakona, Ustava Republike Srpske i Ustava Bosne i Hercegovine“, zbog kojeg ona trpi nenadoknadivu svakodnevnu štetu.

“Dalje se problematizira sama priroda osporenog Zaključka kao pravnog akta, odnosno da se ne radi o zakonu već o opštem aktu kojim se krše navedena ljudska prava. U svjetlu navedenog, apelantica ističe da zakoni koji su navedeni u preambuli spornog Zaključka  Zakona o  zaštiti i spašavanju stanovništva u vanrednim situacijama i  Zakona o zaštiti stanovništva   od  zaraznih bolesti) nemaju određen i definisa pojam izraza „zaštitna  maska“, odnosno da zakon ne prepoznaje pojam   „zaštitna maska“. Također se navodi i da su mjere iz osporenog Zaključka u suprotnosti sa označenim odredbama Zakona o  zaštiti potrošača Bosne i Hercegovine i Zakona o zaštiti potrošača Republike Srpske, kojima je trgovcu zabranjena diskriminacija bilo kojeg potrošača, budući da se mjerama iz spornog Zaključka građane prisiljava i ucjenjuje sa nošenjem maske, odnosno ukoliko to ne žele bivaju uskraćeni za pružanje usluge od strane prodavaca koji su registrovani za pružanje usluga. Stoga apelantica smatra da mjere iz spornog Zaključka nisu propisane zakonom”, stoji u apelaciji koju možete pročitati na OVOM linku.

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