Venice Commission - Observatory on emergency situations
www.venice.coe.int
Disclaimer: this information was gathered by the Secretariat of the Venice Commission on the basis of contributions by the members of the Venice Commission, and complemented with information available from various open sources (academic articles, legal blogs, official information web-sites etc.).
Every effort was made to provide accurate and up-to-date information. For further details please visit our page on COVID-19 and emergency measures taken by the member States: https://www.venice.coe.int/WebForms/pages/?p=02_EmergencyPowersObservatory&lang=EN
1. Are there specific provisions in the constitution of your country applicable to emergency situations (war and/or other public emergency threatening the life of the nation)?
The Constitution of the Republic of Albania, in its articles 170-176, regulates the measures taken in emergency situations. More specifically, in its article 170, the Constitution provides for the types of extraordinary measures that can be imposed due to: the state of war, the state of emergency or the state of natural disaster, measures which last as long as these conditions continue.
2. Do organic/constitutional or ordinary laws regulating the state of emergency exist in your country?
The two ordinary laws - "On Civil Protection" and "On the prevention and control of infections ..." (see Q3) regulate ordinary powers of the competent State authorities, not falling within the emergency regime
3. Do organic or ordinary laws on health risks or other public emergency exist in your country?
Law no. 45/2019 "On Civil Protection" is an ordinary law which aims to reduce the risk of disasters and the implementation of civil protection to guarantee the protection of human life, property, cultural heritage etc. This law regulates the functioning of the civil protection system, defining the responsibilities of the institutions and structures of this system, international cooperation, the rights and obligations of citizens and private entities, education, training and inspection.
4. Was a state of emergency declared in your country due to the Covid-19 pandemic? By what authority and for how long?
Pursuant to Article 174 of the Constitution, in order to prevent or eliminate the consequences of a natural disaster or technological accident, the Council of Ministers may decide, for a period not exceeding 30 days, the state of natural disaster in a part or in the entire territory of the state. The extension (but not the original declartion) of the state of natural disaster can only be done with the consent of the Assembly (Albanian Parliament).
5. Was the declaration subject and submitted to parliamentary approval (if it was taken by the executive)?
The declaration of the state of natural disaster by the Council of Ministers for a period of not more than 30 days does not require approval by the Albanian Parliament. Therefore the declaration of the state of natural disaster was not subject to approval in Parliament. Only the extension of this situation until 23.06.2020 was approved by the Parliament.
6. Was the declaration subject and submitted to judicial review? Was it found justiciable?
No. Since the state of natural disaster has been declared by a Decision of the Council of Ministers (i.e. by a normative sub-legal act), based on article 131, point 1, “c” of the Constitution, the competent body to review the compliance of this act with the Constitution and / or international agreements (such as the European Convention on Human Rights) is the Constitutional Court. The latter, due to the vetting process is still not fully operational and finds it impossible to make decisions.
7. Are derogations to human rights possible in emergency situations under national law? What are the circumstances and criteria required in order to trigger an exception? Was a derogation under Article 15 ECHR or under any other international instrument made? Does national law prohibit derogation from certain rights even in emergency situations? Is there an explicit requirement that derogations should be proportionate, that is limited to the extent strictly required by the exigencies of the situation, in duration, circumstance and scope?
Under Article 174 of the Constitution, the Council of Ministers may decide to declare a state of natural disaster to prevent or eliminate the consequences of a natural disaster or technological accident. With the promulgation of this condition, based on Article 175 of the Constitution, the rights and freedoms may be limited provided for in Articles: 37 , 38 , 41 paragraph 4 , 49 , 51 of the Constitution and the act that declares the state of natural disaster must qualify the rights and freedoms that are limited according to paragraphs 1 and 2 of this article. But also, the limitation of constitutional freedoms and rights has to be based on Article 17 of the Constitution, respecting these criteria: the limitation should be done only by law, for a public interest or for the protection of the rights of others, the limitation must be in proportion to the situation that has dictated it, the limitation must not violate the essence of freedoms and rights and in no case exceed the limitations provided for in the ECHR.
8. Which human rights have been limited/derogated from in your country, in the context of the Covid-19 pandemic?
The Council of Ministers and the Health Ministry imposed restrictions on the freedom of movement and assembly (prohibition of free movement, imposition of circulation hours, imposition of administrative sanctions), freedom to exercise economic activity and the right to property (closure of various businesses by entities that sell food items, pharmacies, avoidance of procurement procedures, providing for direct contracting), implication to the right of access to courts (due process, reasonable time) (prohibition of conducting trials, except for those of an urgent nature, such as: security measures), implication to the right to education (prohibition of conducting the teaching/educational process in the premises of schools, kindergartens, nurseries, conducting of online teaching which, for a number of reasons, has not been accessible to all).
9. If a declaration of state of emergency was not made, did the Executive enjoy additional powers under the ordinary legislation on health risks or another public emergency? Did it decide to impose exceptional restrictions on human rights based on these laws?
From the moment of the first case in Albania on 9.03.2020 and until the declaration of the state of natural disaster by the Decision of the Council of Ministers no. 243, dated 24.3.2020 "On the declaration of the state of natural disaster", the basis of actions was law no. 15/2016 “On the prevention and control of infections and infectious diseases”, as amended.
10. Are the possibilities for the Executive to derogate from the normal division of powers in emergency circumstances limited in duration, circumstance and scope?
Pursuant to Article 101 of the Constitution, the Council of Ministers, in case of need and urgency, under its responsibility, may issue normative acts that have the force of law, to take temporary measures. These normative acts are immediately sent to the Assembly, which convenes within 5 days if it is not convened. These acts lose their force from the beginning, if they are not approved by the Assembly within 45 days.
11. Were the sessions of parliament suspended during the Covid-19 pandemic? If so, for how long? Were specific rules on the functioning of parliament during the emergency adopted? By parliament or by the executive?
From 9.03.2020 to 16.04.2020 the activity of the Assembly (the Parliament) was suspended, except for the online activity of the Parliamentary Committees. The Parliament approved the amendments no. 12/20120 of the Rules of Procedure of the Assembly in order to adapt the parliamentary activity to the situation created by Covid-19.
12. Were the judicial sessions of the Constitutional Court or court with equivalent jurisdiction and/or other courts be suspended during the Covid-19 pandemic? If so, for how long? Were specific rules on the functioning of these courts during the emergency adopted? By parliament or by the executive?
Until 1.06.2020 the judicial activity was suspended through normative acts having the force of law (see, in Albanian, and decisions of the High Judicial Council, except for the trial of urgent cases such as security measures. After this date, the courts have started to conduct their activity online, as well as to try cases only with the presence of the parties, which are considered urgent by the judges themselves, and only with the presence of the parties, if the latter have given their approval.
13. Was legislation on the state of emergency or on the emergency amended or adopted to deal with the Covid-19 pandemic?
Law no.45/2019 “On civil protection”, was not amended, whereas law no.15/2016 "On the prevention and combat against infections and infectious diseases" was amended through the normative act with the force of law no. 2, dated 11.3.2020.
14. Was this additional legislation subject to judicial review?
No
15. Was the state of emergency prolonged? For how long? Was the prolongation subject and submitted to parliamentary control? Was it subject and submitted to judicial review?
The Council of Ministers announced the state of natural disaster in the entire territory of the Republic of Albania with Decision no. 243, dated 24.3.2020 "On the declaration of the state of natural disaster", for a period of 30 days from the moment of entry into force. On 23.4.2020, the Assembly of the Republic of Albania through decision no. 18/2020 "On granting consent for the extension of the state of natural disaster", decided to extend until 23.06.2020 the state of natural disaster.
16. What are the legal remedies available against general measures and/or individual taken under the state of emergency? What are the legal remedies for measures taken in application of ordinary legislation on health crisis? Has any change to the available legal remedies been decided on account or brought about by the state of emergency? Were any emergency measures invalidated and for what reasons (competence, procedure, lack of proportionality etc.)
Constitutionality of the restrictions imposed by bylaws can be reviewed only by the Constitutional Court, while their legality by the Administrative Court of Appeal. Laws can be challenged before the Constitutional Court for claims of their incompatibility with the Constitution and international agreements. With regard to individual measures (such as fines for persons who may have violated the rules of quarantine), they may be challenged first administratively to the Police Directorate and then to Administrative Courts of First Instance that have the territorial jurisdiction to review them.
17. If parliamentary and/or, where applicable, presidential elections were scheduled to take place during the Covid-19 emergency: were they held? Were special arrangements made, and if so, which arrangements? Was it necessary to amend the electoral legislation? What was the turnout? How was it compared to the previous elections? If they were postponed, what was the constitutional or legal basis for doing so? Who took the decision? For how long were they postponed? Was this decision subject and submitted to parliamentary control or judicial review?
No
18. Same questions as under 17), mutatis mutandis, as regards local elections and referendums.
No
Albania
Articles 171 and 172 of the Constitution provide for a state of war, which is declared in case of an armed aggression against the Republic of Albania, in case of external threats or when the obligation for joint defense arises from an international agreement. Article 173 of the Constitution regulates the declaration of a state of emergency, in case of danger to the constitutional order and public safety. Article 174 of the Constitution regulates the declaration of the state of natural disaster for the prevention or elimination of the consequences of a natural disaster or technological accident. The first is declared by the Assembly, and can be prolonged to up for 90 days by the assembly itself. The second is declared by the Council of Ministers, and can be extended (without limitation) upon agreement by the Assembly. The type of the regime (emergency/natural disaster) defines which rights can/cannot be limited.
In addition, under Article 101 of the Constitution the Council of Ministers, in cases of necessity and emergency, may issue, under its responsibility, normative acts having the force of law for taking temporary measures. These normative acts are immediately submitted to the Assembly, which is convened within 5 days if it is not in session. These acts lose force retroactively if they are not approved by the Assembly within 45 days. The Government issued several normative acts having the force of law during the period of the COVID-19 crisis.
For the constitutional provisions click here
Article 17 § (b) of Law no. 45/2019, “On Civil Protection” provides that the Assembly shall exercise parliamentary control over the issues related to civil protection.
Law no. 15/2016 "On the prevention and control of infections and infectious diseases", as amended, is an ordinary law and aims to protect the population from infections and infectious diseases, defining the rules and activities for timely detection, identification, prevention and their control. This law defines the responsibilities and role of health services, public health services, as well as other actors of all levels, public and non-public, in taking measures to prevent, control, treat, monitor, provide funding and share responsibilities for infectious diseases and events of public health importance.
Based on this provision, the Council of Ministers announced the state of natural disaster in the entire territory of the Republic of Albania with Decision no. 243, dated 24.3.2020 "On the declaration of the state of natural disaster", for a period of 30 days from the moment of entry into force. On 23.4.2020, the Albanian Parliament through decision no. 18/2020 "On granting consent for the extension of the state of natural disaster", granted the consent for the extension of the state of natural disaster until 23.07.2020
During this period the Government issued normative acts having the force of law under Article 101 of the Constitution, which were submitted to Parliament and approved thereby on 16.04.2020
Admittedly, there is also a possibility of review of the above declaration by administrative courts. Regarding the legality of the Decision of the Council of Ministers on declaring a state of natural disaster, based on Article 10, paragraph 2, letter "b" of the law "On administrative courts and adjudication of administrative disputes", as amended, the Administrative Court of Appeal is the competent court. Also, based on the decision no. 264, dated 17.12.2019 of the Administrative Court of Appeal, a criterion has been established for the difference between the constitutional and administrative jurisdiction for the review of normative bylaws. The normative act for declaring a state of natural disaster has not been challenged in this court either, so this remains a theoretical discussion at present.
Republic of Albania has submitted to the Council of Europe on April 1, 2020 a Note Verbale, regarding the derogation of the Republic of Albania from Article 15 of the ECHR taking into account the state of emergency. According to this verbal note, the implementation of the measures taken by the Government during this state of emergency due to the pandemic, gives reasons to avoid certain obligations of the Republic of Albania, based on Articles 8 and 11 of the ECHR, Articles 1 and 2 of the Protocol to ECHR and Article 2 of Protocol No. 4 to the ECHR.
Examples: Normative act of the Council of Ministers no. 3, dated 15.3.2020 "On taking special administrative measures during the duration of the COVID-19 infection period"; Order of the Minister of Health and Social Protection no. 134, dated 8.3.2020 "For self-isolation of persons entering the territory of Albania from the isolated area in Italy", Order of the Minister of Health and Social Protection no. 135, dated 9.3.2020 "On the closure of educational institutions to prevent the spread of COVID-19".
Limitations on fundamental rights and freedoms, mentioned above, throughout this period have been made based on the Orders of the Minister of Health and Social Protection.
It appears that the Government in parallel used the possibility of adopting normative acts with the force of law, provided by Article 101 of the Constitution (see Q1). On 16 April 2020, within the 45 days deadline provided for by Article 101, these normative acts were approved by Parliament to continue to have legal force.
Even in the case of issuing these acts, the limitation of the fundamental rights and freedoms of the individual must be done by respecting Article 17 of the Constitution, respecting these criteria: the limitation should be done only by law, for a public interest or for the protection of the rights of others, the limitation must be proportionate to the situation that has dictated it, the limitation must not violate the essence of freedoms and rights and in no case exceed the limitations provided for in the European Convention on Human Rights.
See, in particular, Normative Act No. 9, dated 25.03.2020 of the Council of Ministers of the Republic of Albania "On specific measures to be taken for judicial activity, during the epidemic state caused by Covid-19 ("Normative Act No. 9/2020"). An English summary of Normative Act No. 9 can be found here ;
Normative Act no. 13, dated 2.4.2020 of Council of Ministers of the Republic of Albania “On specific measures to be taken for the enforcement, mediation and bankruptcy activities during of the epidemic state caused by Covid-19” ("Normative Act No. 13/2020");
Normative Act no. 21, dated 27.05.2020 of Council of Minister of the Republic of Albania “On some amendments on the Normative Act no. 9, dated 25.03.2020 of Council of Minister “On specific measures to be taken for judicial activity, during of the epidemic state caused by Covid-19” ("Normative Act No. 21/2020");
Normative Act no. 22, dated 27.05.2020 of the Council of Ministers of the Republic of Albania “For abrogation of Normative Act no. 21, dated 27.05.2020 of Council of Minister “On taking specific measures for judicial activity, during of the epidemic situation caused by Covid-19” ("Normative Act No. 22/2020").
On 16.04.2020 the Parliament approved the amendments to the Criminal Code of the Republic of Albania, which provide for two new criminal offenses, more specifically: "failure of implementation of measures of the state authorities during the state of emergency or during the state of epidemics", as well as “the spread of infectious diseases”. Regarding the first, it provides that the non-implementation or performance of actions contrary to the legal or sub-legal acts issued by the state bodies, in function of the state of the epidemic or the implementation of extraordinary measures, by the person against whom an administrative measure has been given before, constitutes a criminal offense and is punishable by a fine or imprisonment of up to six months. The same act, when committed during the exercise of commercial activity, endangering the health of people, is punishable by a fine or imprisonment of up to two years. Failure to comply with the order given by the competent authorities for quarantine or isolation, or violation of the rules of quarantine or isolation by the person carrying or not the infectious disease, to whom this obligation has been notified by the relevant state authorities, is punishable by imprisonment from two to three years. Regarding the criminal offense "spread of infectious diseases", it is provided that the intentional spread of infectious disease with a high risk to health, through the performance of actions or omissions by the person diagnosed as a carrier of the disease or by the person who intends to spread it, is punishable by two to five years in prison. When this offense is committed through negligence, it is punishable by a fine or up to two years in prison. This same act, when it has caused serious consequences for the health or life of people, is punishable by three to eight years in prison.
On 17.04.2020 the Council of Ministers approved the normative act no. 16 “On the remission of administrative measures of a punitive nature established during the period of infection caused by Covid-19”, which provided for the remission of all administrative measures of a punitive nature, imposed by the relevant state authorities, for violation of rules or legal and sub-legal acts issued within the measures taken to prevent and combat infection caused by Covid-19, starting from the moment of ascertainment of this disease in the territory of the Republic of Albania until 17.4.2020.