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 in the version of 2015 addresses the procedure of declaration of State of Emergency (art. 120) by the Government in the event of an imminent danger posed to the constitutional order. In case of declaration of a state of emergency, a special sitting of the National Assembly shall be immediately convened. Following the declaration of the state of emergency the Government may take measures dictated by the situation. The National Assembly may lift the state of emergency or cancel the implementation of measures provided for under the legal regime of state of emergency, by majority of votes of the total number of Deputies.
2. Do organic/constitutional or ordinary laws regulating the state of emergency exist in your country?
According to Art 120, part 4 of the Constitution the legal regime of state of emergency shall be prescribed by a law adopted by majority of votes of the total number of Deputies.
3. Do organic or ordinary laws on health risks or other public emergency exist in your country?
There are a number of ordinary laws on health risks or other public emergency, in particular Law on protection of the population during the situation of emergency, Law on protection of the population during the situation of emergency, Law on Medical Care and Service of the Population, Law on the rescue service, Law on seismic protection, Law on fire safety, Law on Civil Defense.
4. Was a state of emergency declared in your country due to the Covid-19 pandemic? By what authority and for how long?
Yes, the State of Emergency was declared by the Decree of the Government on 16 March 2020 first for the duration of 30 days, and was subsequently prolonged until July 15 (Decree of the Government of Armenia N 298-Ն, see for the Armenian version here)
5. Was the declaration subject and submitted to parliamentary approval (if it was taken by the executive)?
The decision was taken by the Government. According to Article 120 part 2 of the Constitution in case of declaration of a state of emergency, a special sitting of the National Assembly shall be immediately convened by virtue of law. The National Assembly may lift the state of emergency or cancel the implementation of measures provided for under the legal regime of state of emergency, by majority of votes of the total number of Deputies (part 3).
6. Was the declaration subject and submitted to judicial review? Was it found justiciable?
No, though the Decree of the Government may be subjected to constitutional review (art 168 point 1 of the Constitution) by the 1/5th majority of the Deputies of the National Assembly or the President of the Republic (art 169 part 1 points 2 and 5), the Decree was not challenged before the Constitutional Court.
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?
Yes, Art 76 of the Constitution provides for the possibility of restrictions on basic rights and freedoms during the state of emergency or martial law. It stipulates that “During state of emergency or martial law, basic rights and freedoms of the human being and the citizen — with the exception of those referred to in Articles 23-26, 28-30, 35-37, part 1 of Article 38, part 1 of Article 41, part 1, first sentence of part 5 and part 8 of Article 47, Article 52, part 2 of Article 55, Article 56, Article 61, Articles 63-72 of the Constitution — may be temporarily suspended or subjected to additional restrictions under the procedure prescribed by law, only to the extent required by the existing situation within the framework of international commitments undertaken with respect to derogations from obligations during state of emergency or martial law.”
8. Which human rights have been limited/derogated from in your country, in the context of the Covid-19 pandemic?
The following derogations form basic rights were in particular made by the Decree of the Government on the Declaration of the State of Emergency:
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?
Declaration of state of emergency was made; powers of the Government are based on the pre-existing legisltion and the law on the legal regime of the state of emergency (see Q1), which describes in detail what sort of measures the Government may take once the state of emergency is declared. However, measures taken by the Government cannot impede the normal activity of the National Assembly of the Republic of Armenia, the Constitutional Court of the Republic of Armenia, the courts of the Republic of Armenia and the Human Rights Defender of the Republic of Armenia.
10. Are the possibilities for the Executive to derogate from the normal division of powers in emergency circumstances limited in duration, circumstance and scope?
Article 5 of the Law on Legal Regime of State of Emergency states that the emergency situation is declared maximum for 30 days and maximum 60 days. If the factors underlying the emergency situation are still present after the expiration of the term the latter is subject to prolongation.
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?
No, the sessions of parliament continue as planned.
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?
Sessions of the Constitutional Court continued in their normal order.
13. Was legislation on the state of emergency or on the emergency amended or adopted to deal with the Covid-19 pandemic?
Yes, certain amendments to the Law on Legal Regime of State of Emergency have been adopted, in particular:
14. Was this additional legislation subject to judicial review?
No, the amended legislation was not subject to the judicial review.
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 state of emergency was prolonged for three times2 each time for 30 days. See also the answers to Q4 and Q5.
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.)
Acts restricting the right to personal liberty may be challenged administratively or in courts in accordance with the Law on Fundamentals of Administration and Administrative Proceedings and the Code of Administrative Procedure of the Republic of Armenia.
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?
Referendum on Amendment of Article 213 of the Constitution has been suspended by virtue of art 208 of the Constitution. The Law on Referendum provides that “5. A referendum scheduled but not held for the reasons of martial law or situation of emergency shall be held not earlier than 50 and not later than 65 days after the end of the military or state of emergency. The President of the Republic appoints the referendum within three days after the end of the military or state of emergency.”
18. Same questions as under 17), mutatis mutandis, as regards local elections and referendums.
Not applicable
Armenia
A similar mechanism is provided for the declaration of the martial law (Art. 119), although the Constitution does not provide for the power of the Government to take appropriate measures.
The Constitution also provides for the possibility of restrictions on basic rights and freedoms during the state of emergency or martial law (art 76).
The Constitution provides also for special regulations with respect to elections of the Nation Assembly (art. 90-91) or non-Confidence against the Prime Minister (art. 115 and issue of the confidence in the Government (art. 157) or holding a referendum (art. 208) during the state of emergency.
Separate provision of the Constitution (art 119) addresses the declaration of Martial Law by the Government in the event of an armed attack against the Republic of Armenia or imminent danger thereof or declaration of war.
Law on Legal regime of state of emergency has been adopted by the National Assembly on 21.03.2012 (for the text in Armenian click here)
It is an ordinary law, not an organic/constitutional one.
The law on the legal regime of the state of emergency describes the powers the Government may excercise following the declaration of the state of emergency.
The Constitutional Law of the Republic of Armenia on Rules of Procedure of the National Assembly (adopted by the National Assembly on 16.12.2016) addresses the procedure for convening and holding a special sitting in case of a declaration of a state of emergency (Article 48), the procedure for submission and debate of a draft resolution of the national assembly on the termination of state of emergency or cancellation of the implementation of measures introduced during state of emergency (Article 107) (for the English translation click here)
The Decree and its subsequent amendments have been respectively submitted to the National Assembly.
In comparison to Article 15 of the ECHR, Armenian Constitution provides for a more limited range of rights which maybe subject to restriction in case of the state of emergency, in particular the following rights may not be restricted - human dignity, physical and mental integrity, general equality before the law, freedom of marriage, parental rights and responsibilities, rights of the child, right to education, freedom of thought, conscience and religion, right to citizenship, prohibition of deportation or extradition, national and ethnic identity rights.
Article 78 of the Constitution provides for the principle of proportionality which says that "the means chosen for restricting basic rights and freedoms must be suitable and necessary for achievement of the objective prescribed by the Constitution. The means chosen for restriction must be commensurate to the significance of the basic right or freedom being restricted”.
Respectively, Article 10 of the Law on Legal Regime of State of Emergency states that “Restrictions on the rights and freedoms enshrined in this law shall be applied exclusively to the purposes for which they were intended, and shall be proportionate to the purposes set forth therein”.
- the limitation of the freedom of movement (Paras 1-9.1, 27-54 of the Decree on declaring the state of emergency),
- the right of property (paras. 10-10.4),
- freedom of assembly (16-17.2),
- conduct of economic activities and
- the freedom of the press (the later was later repealed), as well as
- the rights of persons in the penitentiary institutions.
Special rules for ordinary courts have been adopted by the decision of the Supreme Judicial Council, in particular:
- Remote/online court hearings, if the consent of the trial participants is available.
- The work of the courts should be provided with the minimum possible number of employees.
- Shifts in court offices to minimize the number of employees on duty.
- Ensure the right to access the materials of cases in court proceedings through the use of all available electronic applications.
- Judges are encouraged to accept electronic documents on the condition that they be backed up as needed.
- Judges and trial participants were proposed, by prior arrangement, to adjourn all court hearings, except for cases to be heard immediately.
- Article 9.1 provided for restrictions on the right to personal data, private and family life, privacy of communication. The operators of the public electronic communication network shall be obliged in accordance with the procedure established by the decision of the Government of the Republic of Armenia, to provide to the state bodies and legal entities established by that decision 1) customer location data; 2) the telephone numbers directly or indirectly connected with the customer's telephone number, the date of starting the telephone conversation, the necessary data to find out the beginning, and in case of forwarding or transferring the telephone call, data on the telephone number to which the call was transferred (for the text in Armenian see here)
The functions of the special responsible governmental official in the situation of the state of emergency were laid upon the only the Prime Minister or the Deputy Prime Minister who are now allowed to resolve other urgent issues conditioned by the state of emergency (previously the government should nominate relevant person). For the exercise of the powers during the state of emergency Prime Minister or Deputy Prime Minister may adopt sub-legislative acts. Previously by the decision of the Government of the Republic of Armenia on declaring a state of emergency a collegial body might be established, which was reformed into a consultative body attached to the Prime Minister
or Deputy Prime Minister, respectively (Armenian version of the amendment available via the following link https://www.arlis.am/DocumentView.aspx?docid=142124)
No measure was invalidated, but some measure were dropped off at a later date under strong public criticism (e.g. limitation of freedom of publications on the COVID cases in the country which may spread panic).
Amendment to the Law on Referendum has been adopted by the National Assembly on 03.06.2020 allowing the Parliament to call back a referendum which was not held as a result of martial law or situation of emergency (still not signed by the President of the Republic).