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)?
Under Article 111 of the Constitution, in the event of an actual occupation of part of the territory of the Republic of Azerbaijan, a declaration of war against it by a foreign country or countries, a real danger of an armed attack against the Republic of Azerbaijan, a blockade of its territory, or in the event of a real threat of such a blockade, the President of the Republic of Azerbaijan shall declare martial law throughout the territory of the Republic of Azerbaijan, or within its separate regions, and shall, within 24 hours, submit the appropriate decree to the Milli Majlis of the Republic of Azerbaijan for approval.
2. Do organic/constitutional or ordinary laws regulating the state of emergency exist in your country?
The Law on state of emergency was adopted in 2004 (No. 681-IIG) - click here
3. Do organic or ordinary laws on health risks or other public emergency exist in your country?
The Law on sanitary and epidemiological safety was adopted in 1992 (No. 371) - for the text in Azeri click here
4. Was a state of emergency declared in your country due to the Covid-19 pandemic? By what authority and for how long?
No, a state of emergency was not declared in Azerbaijan due to the Covid-19 pandemic.
5. Was the declaration subject and submitted to parliamentary approval (if it was taken by the executive)?
Not applicable, since no declaration of emergency on account of the pandemic
6. Was the declaration subject and submitted to judicial review? Was it found justiciable?
Not applicable, since no declaration of emergency on account of the pandemic
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, derogations to human rights are possible in emergency situations under Azerbaijani law. According to Article 71 (III) of the Constitution rights and freedoms of man and citizen may be partially and temporarily derogated in time of war, martial law and state of emergency, as well as mobilization, subject to the international obligations of the Republic of Azerbaijan. The population shall be notified in advance about restrictions as regards their rights and liberties.
8. Which human rights have been limited/derogated from in your country, in the context of the Covid-19 pandemic?
On March 23, 2020, in order to prevent the spread of the COVID-19 virus a special quarantine regime was declared by the Government for the period from March 24 to April 20.
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?
Under Article 4 of the Law on sanitary and epidemiological safety the state bodies may introduce and abolish special condictions regulating education, movement, transportation and labour, in order to prevent and eliminate the spread of infectious and non-infectious mass diseases and poisonings among the population in the territory of the Republic of Azerbaijan.
10. Are the possibilities for the Executive to derogate from the normal division of powers in emergency circumstances limited in duration, circumstance and scope?
Under Article 11 of the Law on state of emergency, in order to ensure the state of emergency, the forces and resources of appropriate bodies of executive authority are used. However, Article 12 of the Law provides that in exceptional cases Ministry of Defense may in addition to the forces and resources stipulated under Article 11 of the Law engage the forces and resources of other appropriate bodies of executive authority with the approval of the Milli Majlis of the Republic of Azerbaijan.
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?
Spring session of the parliament (Milli Majlis) which started its work in March was not suspended. In April Milli Majlis adopted specific rules on the functioning of the parliament during the quarantine regime, sanitary-epidemiological and other similar measures. They regulate possibility of holding the plenary and committee meetings of the parliament via videoconferencing. These rules have been applied with regard to committee meetings
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?
Judicial sessions of the Constitutional Court were not suspended. However, taking into account that special quarantine regime to prevent the spread of COVID-19 was announced on March 23, 2020, the Court temporarily shifted to written judicial procedures (sessions of Plenum are held in written). Reception of citizens in the Court’s building have been temporarily suspended (however, the Court receive and examine all letters and complaints both sent by post or by e-mail) and the work of judges and staff partially changed to teleworking. In April-May the Plenum of the Constitutional Court adopted 5 judgements and 2 decisions.
13. Was legislation on the state of emergency or on the emergency amended or adopted to deal with the Covid-19 pandemic?
Legislation on the state of emergency to deal with the Covid-19 pandemic was neither amended nor adopted.
14. Was this additional legislation subject to judicial review?
No, this legislation was not subject to 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?
Not applicable (no delcaration of the state of emergency)
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.)
All legal remedies provided by the legislation continued to be effective during the COVID crisis.
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?
Neither parliamentary nor presidential elections were scheduled to take place during Covid-19 pandemic.
18. Same questions as under 17), mutatis mutandis, as regards local elections and referendums.
Neither local elections nor referendums were scheduled to take place during Covid-19 pandemic.
Azerbaijan
According to Article 112 of the Constitution, in the event of natural disasters or epidemic, epizootic, severe ecological and other disasters; the commission of acts directed at violating the territorial integrity of the Republic of Azerbaijan, insurrections or coups d’état; mass disorders accompanied by violence; other conflicts threatening the lives and security of citizens, or the normal activities of state bodies, the President of the Republic of Azerbaijan shall declare a state of emergency in separate regions of the Republic of Azerbaijan and shall, within 24 hours, submit the appropriate decree to the Milli Majlis of the Republic of Azerbaijan for approval.
These provisions, however, were not used in the context of the COVID0-19 epidemy; the Government used powers provided by the ordinary legislation.
Wile under the Constitution the prareogative to declare the state of emergency belongs to the President, under the 2004 law the state of emergency should be delcared by "appropriate body of the executive".
Under Article 2 of the Constitutional Law on regulating of implementation of human rights and liberties in the Republic of Azerbaijan rights provided for by Article 27 (except the cases of death as a result of war conducted in accordance with the law), part I of Article 28, part III of Article 46, Article 63, Article 64 and part VIII of Article 71 of the Constitution of the Republic of Azerbaijan are non-derogable rights and no reservations are applicable to them.
Article 21.1 of the Law on state of emergency stipulates that activities involving limitation of the rights and legal interests of all legal entities regardless of their form of ownership, rights and freedoms of citizens, foreigners and stateless persons, and measures taken in the conditions of the state of emergency are implemented within the limits arising from the acuteness of a situation and in line with the procedure established by the Constitution of the Republic of Azerbaijan, legislative acts of the Republic of Azerbaijan and international agreements recognized by the Republic of Azerbaijan.
The special quarantine regime envisages the following measures. Those above the age of 65 are banned from leaving home. Lonely persons of this age will receive social services in accordance with the law. Entry and exit to/from Baku, Sumgayit and Absheron region is restricted. This restriction doesn’t apply to special-purpose vehicles, including ambulances, emergency and rescue vehicles, as well as cargo transportation vehicles. Passenger transportation between districts and cities is suspended. The relevant departments were instructed to ensure the return of Azerbaijani citizens from abroad by charter flights with the condition of their placement in compulsory quarantine for a period of 14-21 days within a certain schedule. In this case, preference should be given to families with young children, the elderly, persons in need of medical care, and women. The Baku Transport Agency should provide a special line for express buses that will run along the route between metro stations from 06:00 to 22:00. Passengers are advised to minimize the use of the metro and give preference to ground modes of transport. Gathering in groups of more than 10 people in public places, including on the streets, boulevards, parks, etc. is banned. Citizens are advised to keep a distance of two meters. A new regime is introduced in catering enterprises. The operation of all shopping centers is suspended (with the exception of supermarkets, grocery stores and pharmacies located there). The relevant departments were instructed to ensure the operation of grocery stores.
On March 27, 2020 the special quarantine regime, effective as of 29 March 2020 was strengthened. The inter-regional and inter-city movement of transport facilities were fully suspended for the period of the special quarantine regime except for special purpose vehicles including the vehicles for emergency medical aid, lifesaving and survival, rescue, agricultural and social service purposes, as well as cargo carrying trucks. The transport facilities were able to freely move within the boundaries of Baku and Sumgayit cities and Absheron region. Working hours of Baku metro were limited. Baku metro shall work only from 07:00 a.m. to 09:00 a.m. and 17:00 p.m. to 20:00 p.m. During the special quarantine regime, customers were serviced only in supermarkets, grocery stores and pharmacies. Delivery and online sales will remain without any restrictions. During the special quarantine regime, customer service at all catering establishments, including restaurants, cafes, and teahouses was suspended. To regulate the density of people flow, the government limited entrance of individuals to the boulevard, parks, and recreation areas.
By the Decision of the Cabinet of Ministers of the Republic of Azerbaijan dated April 2, 2020 a limited movement regime has been established in the territory of the country from April 5, 2020 to April 20, 2020. Under the Decision the following persons are allowed to move on the basis of service cards or a certificate of employment. All other persons are allowed to leave the place of residence in the following cases:
1. due to urgent medical necessity and to receive treatment on any schedule;
2. in connection with the need to purchase food and other daily necessities, as well as medicines, and to use banking and postal services;
3. in connection with attending the funeral of a close relative.
Individuals mentioned above were allowed to leave the premises once in a day for each reason specified above under sections 1 and 2 for 2 hours, and section 3. In order to obtain a permit to leave the place of the residence, individuals must send an SMS a specially designated number. The content of the SMS should show the number under which an individual need to leave and identification data (SMS message is free of charge). Identification data includes a number of an identity card or simiular ID document for foreigners. Upon getting positive feedback, an individual will be able to leave the place of residence.
In order to leave the place of residence in the event of a situation that poses a direct threat to life and health, sending an SMS is not required. In addition, when people are being summoned to court or law enforcement agencies, they leave their place of the residence without sending an SMS. In this case, they present by the request of the police officers a document proving the summons of the court or law enforcement agencies.
By the Decision of the Cabinet of Ministers of the Republic of Azerbaijan dated April 18, 2020 the special quarantine regime in the territory of the Republic of Azerbaijan was extended until May 04, 2020. The Decision of the Cabinet of Ministers of the Republic of Azerbaijan dated April 24, 2020, lifted some restrictions on the special quarantine regime in the country. Under the Decision, the certain restrictions were lifted starting from 27 April 2020 on the territory of the Republic of Azerbaijan. In subsequent months, the Cabinet of Ministers pursued with the softening of restrictions in regions and cities of Azerbaijan and the Nakhchivan Autonomous Republic, by gradual cancellation of some of the restrictions on leaving the house, restoring activities in certain sectors of the economy, lifting restrictions on access to parks and recreation areas, etc. However, certain restricions remained even in summer 2020 (suspension of access to the country by land and air, except for freight; suspension of the educational process in all educational institutions, suspension of inter-city travel of certain type, ban on weddings and some other mass events, closure of some cultural facilities, etc.
By a series of decisions of the Cabinte of Ministers the special quarantine regime in the country has been been extended, but some of the restrictions imposed earlier were either lifted, or lightened.
According to Article 25 ofthe Law on sanitary and epidemiological safety, if there is a threat of the occurrence or spread of infectious, parasitic, non-infectious mass diseases, the government of the Azerbaijan Republic, the main state sanitary doctors, within their competence, introduce special conditions and modalities in the sphere of labour, education, movement, transportation, and take necessary measures, aimed at preventing the occurrence and spread of these diseases and their elimination.
The Law on the state of emergency sets limits as gto the scope and duration of the restrictive measures taken during a state of emergency (Articles 21-29).
As to duration of a state of emergency it shall not exceed 60 days. After the expiration of this period of time, the state of emergency is considered to have expired. If the objectives pursued by the introduction of the state of emergency have not been met in the said period, the state of emergency may be extended by no more than 60 days provided that the constitutional and legislative requirements of introducing of a state of emergency are fully met (Article 6).
Article 7 of the Law also provides that elimination of the circumstances which led to the introduction of the state of emergency within the time period stipulated under Article 6 of the Law, requires that the appropriate body of executive authority cancel the state of emergency and the population of the concerned territory be immediately notified of the decision taken.
In March the Plenum of the Supreme Court adopted the Decision on measures taken in the courts to prevent the spread of coronavirus infection (COVID-19) in the Republic of Azerbaijan where, inter alia all courts were recommended to suspend hearing of all cases, except for those which require urgent consideration or do not require court hearing; consider administrative cases without oral hearing in accordance with Article 16 of the Administrative Procedure Code. As to civil and commercial cases it was recommended by taking into consideration provisions of the Civil Procedure Code to conduct relevant court proceedings via the "Electronic Court" information system.
Moreover, the Decision also states that the reception of persons in all courts should be suspended, and the reception should be carried out only by telephone and Internet. Individuals and legal entities should be advised to send their applications to the courts, including appeals and cassation complaints, by post or electronically.
The Decision was valid from March 20, 2020 to April 20, 2020. In April the Decision with similar provisions was adopted. It was valid until May 4, 2020.
In May the Supreme Court decided that in all courts except those located in Baku, Sumgayit, Ganja, Lankaran cities and Absheron region since 00:00 on May 4, 2020 consideration of cases to be fully restored. Judicial activity shall be conducted in accordance with the necessary social behaviour and sanitary-epidemiological rules, including social distance and mask wearing requirements.
On May 15 consideration of cases in all courts in Baku, Sumgayit, Ganja, Lankaran cities and Absheron region was renewed. It was also decided that reception of persons in all courts should be suspended, and the reception should be carried out only by telephone and Internet. Individuals and legal entities should be advised to send their applications to the courts, including appeals and cassation complaints, by post or electronically.
However, Milli Majlis introduced administrative or criminal liability for violation of anti-epidemic, sanitary-hygienic and quarantine regimes. According to the Law of the Republic of Azerbaijan “On Amendments to the Code of Administrative Offenses of the Republic of Azerbaijan”, dated 17 March 2020, new provisions were added to the Code of Administrative Offenses for violation of anti-epidemic, sanitary-hygienic and quarantine regimes. Thus, according to Article 211 of the Code of Administrative Offenses, for violation of the anti-epidemic regime, sanitary-hygienic and quarantine regimes individuals will be fined in the amount from one hundred up to two hundred manats, officials in the amount from one thousand five hundred up to two thousand manats, or depending on the circumstances of the case, taking into account the identity of the violator, administrative detention for up to one month may be applied, and legal entities will be fined in the amount from two thousand up to five thousand manats.
According to the Law of the Republic of Azerbaijan “On Amendments to the Criminal Code of the Republic of Azerbaijan” dated 17 March 2020, where the violation of anti-epidemic, sanitary-hygienic or quarantine regimes causes the spread of diseases or poses a real threat to the spread of diseases, such violation is punished by the penalty at the rate from two thousand five hundred up to five thousand manats or restriction of freedom for up to three years or imprisonment for up to three years.
Where the same actions cause death or other serious consequences due to negligence, such violation is punished by imprisonment for three years minimum and five years maximum.
In May Cabinet of Ministers adopted a decision that requires residents wear respiratory protection means and keep a social distancing in certain venues across the country. Under the decision, in order to curb the spread of COVID-19 in Azerbaijan, individual respiratory protection means (medical masks, tissue masks, respirator, etc.) should be used in the following cases with keeping the social distance (1.5-2 meters):
- in inter-city and intra-city passenger transport means (bus, taxi, subway, railway, etc.);
- in markets, in closed catering facilities, commercial facilities and service facilities (except for cases when, depending on the type of services provided in the facilities, it is necessary to remove personal protective means);
- in territories intended for reception and servicing of citizens in buildings of state bodies;
- in the territory of buildings owned by individuals and legal entities, where services are rendered to clients;
- in offices in the open space and in production facilities;
- in enclosed spaces that are considered to be monuments of history and culture, places of worship, scientific and medical institutions, social, cultural and other such enclosed spaces;
- in queues in front of terminals at public transport stops, ticket offices, ATMs and payment terminals, commercial and service facilities;
- in public places in the open air, where people meet and are in close contact, where social distance between them cannot be maintained.
The use of masks for respiratory protection is compulsory.
In June the Parliament (Milli Majlis) adopted the amendments to the Code of Administrative Offences, envisaging penalties for failure to use masks in the required places. According to the amendment, for violation of these requirements, individuals will be fined for 50AZN, officials – 100AZN, legal entities – 200AZN. For repeated committing by the person who received the administrative penalty, individuals will be fined 100AZN, officials 200AZN, legal entities 400AZN.
According to Article 130 (III) of the Constitution the Constitutional Court of the Republic of Azerbaijan, based on a request submitted by the President, the Milli Majlis, the Cabinet of Ministers, the Supreme Court, the Prosecutor’s Office of the Republic of Azerbaijan, and the Ali Majlis of the Autonomous Republic of Nakhchivan shall resolve the conformity of laws of the Republic of Azerbaijan, decrees and orders of the President, resolutions of the Milli Majlis, resolutions and orders of the Cabinet of Ministers, and normative legal acts of central executive bodies with the Constitution of the Republic of Azerbaijan.
Under Article 130 (V) of the Constitution everyone shall have the right to lodge, as prescribed by law, complaints with the Constitutional Court of the Republic of Azerbaijan against normative acts of the legislature and the executive, acts of municipalities, and judicial acts infringing upon his/her rights and freedoms, for resolving by the Constitutional Court of the Republic of Azerbaijan the issues referred to in Article 130 (III) of the Constitution, for the purpose of restoration of his/her violated rights and freedoms.
According to Article 5.3 of the Constıtutıonal Law on the Commıssıoner for Human Rıghts (Ombudsman) of the Republıc of Azerbaıjan, declaration of a state of emergency or martial law shall not cease or restrict the activities of the Commissioner.
Under Article 24.2 of the Law on state of emergency decision on the administrative detention may be appealed against with a higher body (public officer) or a court of law.
Article 36 the Law on sanitary and epidemiological safety provides that actions of the chief state sanitary doctors, other officials and specialists of the state sanitary-epidemiological service may be appealed to the state sanitary doctor of the higher level within one month. Decision on complaint shall be adopted within 30 days from the date of it receipt. In case of dissatisfaction with the decision, the actions of officials and specialists may be appealed in court in accordance with the legislation of the Republic of Azerbaijan.