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)?
Article 187 of the Belgian Constitution states: "The Constitution may not be suspended in whole or in part". This is the reason why the Constitution does not contain any provisions relating to the state of emergency, dealing with emergency situations allowing public authorities to derogate from the Constitution.
2. Do organic/constitutional or ordinary laws regulating the state of emergency exist in your country?
In Belgium, there is no special legislative act regulating the state of emergency in general. During the First World War the decree-law of October 11, 1916 "relating to the state of war and the state of siege" was issued. This decree will be in force again in the event of a possible new war.
3. Do organic or ordinary laws on health risks or other public emergency exist in your country?
Several ordinary laws relate to health risks or other emergency situations.
4. Was a state of emergency declared in your country due to the Covid-19 pandemic? By what authority and for how long?
A state of emergency has not been declared. The Constitution does not provide for the possibility of doing so. The situation was however considered to be sufficiently serious to justify the granting of special powers to the King (federal government), on the basis of article 105 of the Constitution, and to several governments of the federated entities, on the basis of the article 78 of the special law (see Q2)
5. Was the declaration subject and submitted to parliamentary approval (if it was taken by the executive)?
6. Was the declaration subject and submitted to judicial review? Was it found justiciable?
Not applicable, no declaration having been made.
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?
The Belgian Constitution does not provide for the possibility of derogating from the rights and freedoms guaranteed by its Title II, in emergency situations, on the contrary it explicitly prohibits it in its article 187. (see Q1)
8. Which human rights have been limited/derogated from in your country, in the context of the Covid-19 pandemic?
The ministerial decrees mentioned in the answer to question 3 contain limitations on the following rights and freedoms:
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?
The laws of March 27, 2020 temporarily assigned special powers to the King (in practice to the federal government) in order to take measures to combat the spread of the Covid-19 (see Q2). However, measures involving restrictions on fundamental rights and freedoms were not based on those laws but rather on article 181 of the law of May 15, 2007 on civil security (see Q3). On the basis of this provision, ministerial decrees imposed the exceptional restrictions described in the answer to question 8.
10. Are the possibilities for the Executive to derogate from the normal division of powers in emergency circumstances limited in duration, circumstance and scope?
The laws of March 27, 2020 granted special powers to the King for a period of three months. The legislator did not extend this period.
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?
Sessions of Parliament have not been suspended.
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?
The judicial sessions of the various jurisdictions have not been suspended.
13. Was legislation on the state of emergency or on the emergency amended or adopted to deal with the Covid-19 pandemic?
Not applicable (but the Belgian federal Parliament has adopted two laws of so-called “special powers” empowering the King (i.e. in fact the federal government) to take all necessary measures to combat the spread of the coronavirus COVID-19 without following the usual legislative procedure).
14. Was this additional legislation subject to judicial review?
Not applicable
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
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.)
Bills / decrees / ordinances conferring special powers on governments (see Q2) were submitted for preventive control by the Council of State, legislation section, which confirmed that they were in principle in accordance with the Constitution. The law, decrees and ordinances conferring special powers on governments could have been subject to constitutional review by the Constitutional Court, but no appeal was brought.
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?
Not applicable. No elections scheduled during this period.
18. Same questions as under 17), mutatis mutandis, as regards local elections and referendums.
Not applicable. No elections scheduled during this period.
Belgium
Therefore, the Constitution is not suspended, neither during the war, nor during any other public emergency threatening the life of the Nation. From the experience of the two world wars, however, it turns out that constitutional provisions are suspended "in fact" when circumstances of force majeure no longer allow them to be applied. (eg in case of impossibility of convening parliament) In addition, "the independence of the country" is supposed to be a supraconstitutional value which justifies derogations from the constitutional provisions the application of which would jeopardize this independence. (see the decree-law, October 11, 1916, relating to the state of war and the state of siege).
In addition, Article 105 of the Constitution allows the legislator to confer powers on the King (i.e, in practice, the federal government). It provides that “the King has no other powers than those formally assigned to him by the Constitution and the particular laws made by virtue of the Constitution itself." On the basis of this article, in the event of" exceptional circumstances or circumstances of crisis "which justify a rapid decision-making - a serious economic or financial crisis eg" - the federal legislator can attribute special powers to the King, allowing him to "repeal, supplement, modify or replace legislative provisions", by regulatory means, on condition that the royal decrees that the King takes on the basis of these powers are subsequently confirmed by a legislative norm. However, the technique of “special powers” does not allow the King to derogate from constitutional provisions, such as the provisions of the title of the Belgian Constitution, guaranteeing fundamental rights and freedoms.
This same technique known as “special powers” also exists at the level of federated entities. (see e.a. art. 78 Special law on institutional reforms of August 8, 1980).
On the basis of article 105 of the Constitution (see Q1), Parliament adopted laws of March 27, 2020 empowering the King to take measures to combat the spread of the Coronavirus Covid-19 (I) and (II), have conferred powers specials to the King for a period of three months, with the aim of enabling him to quickly take the necessary measures in the context of the coronavirus epidemic or pandemic and to manage the consequences (Mon. B. 2nd ed., March 30, 2020),
To take measures to combat the spread of the Covid, involving restrictions on freedom of movement and other fundamental freedoms (see Q8), the federal government did not rely on the law of March 27, 2020 assigning special powers to the King (see Q2), but on article 4 of the law of 31 December 1963 on civil protection (Mon .b. 16 January 1964), articles 11 of the law of 5 August 1992 on the function of police (Mon. b. December 22, 1992), and especially on article 181 of the law of May 15, 2007 relating to civil security (Mon. B. July 31, 2007), which provides: “The minister or his deputy may, in the event of dangerous circumstances, in order to ensure the protection of the population, force the latter to move away from places or regions particularly exposed, threatened or damaged, and assign a temporary place of stay to the persons targeted by this measure ; it can, for the same reason, prohibit any displacement or movement of the population. The same power is recognized in the burgomaster. "
On the basis of these provisions, the Minister of the Interior issued the ministerial decree of March 23, 2020 on emergency measures to limit the spread of the Covid-19 coronavirus (Mon. b. 2nd ed., March 23, 2020) which was repealed and replaced by the ministerial decree of June 30, 2020 on emergency measures to limit the spread of the Covid-19 coronavirus (Mon. b. June 30, 2020) which in turn was repealed and replaced by the Ministerial decree of October 18, 2020 on emergency measures to limit the spread of the COVID-19 coronavirus (Mon. B. October 18, 2020)
These ministerial decrees were prepared within the National Security Council, chaired by the Federal Prime Minister, in which the ministers-presidents of the governments of the federated entities participated, among others. Since the new Belgian government took office in October 2020, the ministerial decree has been prepared by the Concertation Committee, which is made up of six federal ministers and six ministers from the governments of the federated entities.
In this context, it is important to stress that "preventive medicine", with the exception of national prophylactic measures, falls within the competence of the Communities. (art. 5, § 1, 8 of thed Special law of August 8, 1980 on institutional reforms) The Flemish Community, the Walloon Region, which has taken over this competence from the French Community, the German-speaking Community and in Brussels, the Common Community Commission and the French Community Commission, have therefore adopted decrees / ordinances to combat the spread of communicable diseases, such as Corona disease.
In Belgium, there is no provision in the Constitution or the laws allowing a state of emergency to be declared. So, the Belgian federal Parliament has not been consulted by the Government on introducing special measures, such as quarantine rules, social distancing measures, the closure of schools, shops and businesses, the application of teleworking, etc. On the other hand, the Parliament granted “special powers” to the King (see Q2), empowering him (i.e. in fact the federal government) to take all necessary measures to combat the spread of the coronavirus COVID-19.
Several provisions of the Constitution, on the other hand, allow the exercise of the rights and freedoms they include to be limited, but not to suspend them. The two main conditions for limitation are the principle of legality (limitations must be provided for by or under a law) and the prohibition of preventive measures. By combining the reading of Title II with similar provisions of human rights conventions, the Constitutional Court guarantees, as far as possible, a current and evolving interpretation of Title II of the Constitution, which incorporates into the Constitution the protection that these conventions offer, in particular by confirming the requirement that the limitations must be proportionate to the legitimate aim which they pursue.
Belgium has not made a declaration under Article 15 of the ECHR.
- freedom of movement (prohibition of movement, imposition of driving hours, limitation of so-called "essential" trips; curfew; restrictions on travel to / from Belgium)
- freedom of assembly (ban on gathering several people and sporting and cultural activities, both public and private, and / or limitation of the number of participants)
-the freedom of religion (prohibition of religious services and / or limitation of the number of participants)
-the freedom to exercise an economic activity (closure of various "non-essential" businesses, in particular the horeca and commerce sector)
-the right to property (prohibition to go to his second residence; closure of businesses)
-the right to education ((partial) suspension of school activities with physical presence, temporary closure of schools, universities and kindergartens)
-the right to respect for private and family life (the obligation to wear a face mask in certain circumstances, in particular in public transport and in shops and commercial streets, containment measures, quarantine measures, limitation of visits to family members at home or in nursing homes, hospitals and prisons, limitation of the number of social contacts)
-the right to health care (postponement of certain non-urgent medical operations)
The measures enumerated in Q8 above were taken on the basis of article 181 of the law of May 15, 2007. This article does not contain any explicit limits as to the duration of the minister's power to “prohibit every displacement or movement of the population ”, but links this power to the notion of“ dangerous circumstances ”, and to the aim of “ensuring the protection of the population" (See Q3).
The Rules of the House of Representatives have been adapted to the situation in which a serious and exceptional situation which threatens public health prevents its members from being physically present in plenary session.
A specific procedure has been developed. It implies that the Conference of Presidents may, in the event of a serious and exceptional situation which threatens public health and which prevents members of the Chamber from being physically present, decide, for the urgent resolutions it designates, that members will be able to communicate their ballot electronically. Members unable to attend will be assimilated to members physically present for the calculation of the quorum.
These provisions have a similar application in committee.
With respect to discussion, the rules already allowed for a meeting to be held by teleconference or videoconference. (Parl. Doc., 2019-2020, 1100/001)
The parliaments of the federated entities have taken similar measures
Throughout the COVID-19 crisis, the College of Courts and Tribunals ensured that the measures decreed by the National Security Council were implemented.
Classified among the crucial or essential services, justice has sought, in its organization, a fair balance between fundamental respect for the health security of its actors (magistrates, staff members, lawyers, litigants and other stakeholders) and the necessary continuity of service of justice. From then on, many cases could still be dealt with and numerous hearings maintained:
- emergency procedures have been dealt with (for example, summary proceedings);
- Family and civil hearings were maintained as far as possible;
- in civil cases the written procedure has been applied to a large extent, so that many cases have been taken under advisement.
- urgent criminal cases have been dealt with, the parties being represented by their lawyer. In this way, the physical presence in the courtrooms could be limited, as well as the transfer of detainees, which drastically reduced the risks of contamination in the prisons;
- Access to the registries and their functioning were ensured, solutions geared towards lawyers and litigants being sought. Electronic filing of petitions, letters, submissions and documents via eDeposit or electronic mail has been encouraged and facilitated;
- Videoconferencing has been used in different types of hearings, allowing cases to be taken under advisement.
For safety's sake, the college encouraged postponement of the introductory civil case hearings, as this meant large groups of people had to be present in confined spaces. All this was carried out in consultation with the bars and the bailiffs, who were also forced to reorganize their activities.
The civil proceedings had to be suspended. The backlog which has thus inevitably been created will be cleared as soon as possible by the courts and the courts to which the College has asked to hold additional hearings, depending on the needs and availability of staff, also during the months of July and August.
The draft ministerial decrees based on the law of 15 May 2007 on civil security were not submitted to the preventive control of the Council of State, legislation section, the government considering that, given the urgency, it was impossible to wait for the Council's opinion. Several provisions of these decrees, implying restrictions on fundamental rights and freedoms, were subsequently submitted to legal control, on the one hand by the Council of State, the administrative litigation section which has the power to annul and suspend them, and on the other hand, judicial jurisdictions which have the power to refuse to apply them in the event of non-compliance with higher standards.
Several measures were contested before the Council of State, administrative litigation section, in an "urgent" summary procedure. The Council of State rejected almost all these appeals, on the one hand because the conditions for ordering the suspension in the context of an urgent summary procedure were not met, on the other hand because the Council considered that, sometimes taking into account the margin of appreciation available to the authorities in the matter, the measures taken were not without reasonable justification, nor disproportionate.
The legal basis of these ministerial orders has also been contested. Case law is uncertain. Certain jurisdictions (eg Trib. Pol. Charleroi, September 21, 2020, Mélotte), supported by constitutionalists, claim that the law of May 15, 2007 did not grant such broad powers to the Minister of the Interior and that the constitutional principle of legality (see 7) implies that it is up to the legislator to determine a stricter legal framework on the basis of which the King - not a single minister - can take the necessary measures limiting the exercise of fundamental rights and freedoms. The General Assembly of the Council of State, administrative litigation section, on the other hand ruled that the law of May 15, 2007 did indeed provide a sufficient legal basis and in accordance with the principle of legality, with the disputed ministerial decrees. (Council of State, administrative litigation section, nr. 238.818, October 30, 2020, NV Unami v. Belgian State; nr. 238.819, October 30, Verhelst and others v. Belgian State). Other jurisdictions have ruled in the same direction. (Trib. Pol. Louvain, August 20, 2020; Corr. Bruges, June 25, 2020)