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)?
There are no such specific provisions in the Constitution, and “State of Emergency” is not an official term in Danish law. However, it is in theory and practice generally assumed that there may be situations where deviations from the constitutional order is permitted. In practice, this was last seen during the German occupation in World War II where, in the absence of a functioning Parliament, the administration enacted “executive orders”. The Constitution provides for no such orders.
2. Do organic/constitutional or ordinary laws regulating the state of emergency exist in your country?
There are no general organic, constitutional or ordinary laws regulating the state of emergency, since the constitutional provisions on the special emergency regimes are absent. Instead, there are, within various sectors of society, legislation allowing for emergency measures. This applies for example to legislation on epidemics and pandemics.
3. Do organic or ordinary laws on health risks or other public emergency exist in your country?
There is general health legislation providing for measures during e.g. epidemics and pandemics. The general law is “Law on measures against contagious or other transferable diseases” (“Lov om foranstaltninger mod smitsomme og andre overførbare sygdomme” - see in Danish here). This law provides for a number of administrative measures during e.g. epidemics and pandemics. It was amended twice in March 2020 following the outbreak of Covid-19 (the amendments in Danish are here). The amendments had a sunset clause (March 2021).
4. Was a state of emergency declared in your country due to the Covid-19 pandemic? By what authority and for how long?
No state of emergency was declared, since the Danish legal order does not provide for a special constitutional regime of an emergency situation. Instead, a number of initiatives were announced such as partial lockdown of the public sector, complete lockdown of restaurants and cafes etc., prohibition against the assembling of a certain number of persons in one place etc. These initiatives were announced by the government (the Prime Minister and the Minister of Health). Some initiatives were already provided for in legislation while others had to be implemented by legislation adopted in a very speedy procedure, in particular the amendments to the "Law on measures against contagious or other transferable diseases". A number of bills were processed and adopted within a single day.
5. Was the declaration subject and submitted to parliamentary approval (if it was taken by the executive)?
The Danish constitutional order does not provide for a special regime of an emergency situation, so no declaration was made; however, Parliament amended the "Law on measures against contagious or other transferable diseases" which regulates the powers of the executive in the case of an epidemy.
6. Was the declaration subject and submitted to judicial review? Was it found justiciable?
The announcement of initiatives by the Government, before they were enacted as laws, could not in itself have been challenged under judicial review since it had, in itself, no legal consequences. However, the individual acts of administration or legislation stemming from it could all be challenged. So far, no known requests for judicial review have been submitted.
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 ECHR, including article 15, has been incorporated into Danish law in 1992. Otherwise, no formal provisions on derogations to human rights exist. It was the opinion of the Government that none of the emergency legislation enacted during the crisis was in contravention of the Constitution or the ECHR. So, no derogation under ECHR article 15 was necessary and was not made.
8. Which human rights have been limited/derogated from in your country, in the context of the Covid-19 pandemic?
There have been limitations in rights concerning personal freedom and right to assemble, introduced by the executive orders on the basis of the pre-existing legislation, or amendments introduced in March 2020. Gatherings of more than 10 were forbidden, schools, public institutions and universities were closed, tand a number of business (hairdressers, dentists, restaurants, bars) were closed as well. The Government also ordered the closure of Danish borders. Since then some of those limitations have already been lifted.
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 Executive enjoyed additional powers under the legislation ordinary legsilation on health hazards, as amended in March 2020 (see answer to Q3). The restrictions imposed, however, cannot be said to be exceptional; for example, restrictions on public gatherings did not affect the right to assemble for political or religious purposes.
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 more important powers conferred on the Executive specifically for the purpose of Covid-19 measures were limited in time in the sense that the relevant legislation will expire automatically on 1 March 2021 (unless repealed before). Additionally, all legislation underlines the principle of proportionality.
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 were not as such suspended. But it was agreed to alter the priorities as to which bills should be promoted, in order to fast-forward Covid-19 related bills. Specific practical procedures for voting etc. were agreed in order to protect against MPs against 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?
Courts, as many other public institutions, were partially closed, but exceptions were made for the examination of the most urgent cases. The judicial sessions of all courts were partly suspended for approximately 2 months. The decision to do so was not made by Parliament or the Executive, but by the independent Board of the Judiciary. The decision was based on the general advice of the government health agencies, but it was stressed that this was the Board´s own decision.
13. Was legislation on the state of emergency or on the emergency amended or adopted to deal with the Covid-19 pandemic?
The Law on measures against contagious or other transferable diseases (see in Danish here) was amended twice in March 2020 following the outbreak of Covid-19 (the amendments in Danish are here). The amendments had a sunset clause (March 2021).
14. Was this additional legislation subject to judicial review?
No requests for judicial review have been submitted.
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 Danish constitutional order does not provide for any special regime, so no declaration was made in relation to the COVID-19 crisis. The Government used powers it had under the ordinary law on infectious diseases, as amended in March 2020.
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.)
No changes in legal remedies have been made in respect of Covid-19 measures. This means that all general legal remedies (administrative recourse, judicial review etc.) have been available. No requests for judicial review have been submitted.
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 such elections were scheduled to take place during the said time.
18. Same questions as under 17), mutatis mutandis, as regards local elections and referendums.
No such elections were scheduled to take place during the said time.
Denmark
Under the Constitution, the King has a limited power to take measures when Parliament cannot meet, see section 23: the King may "issue provisional laws, provided that they shall not be at variance with the Constitutional Act, and that they shall always, immediately on the assembling of the Folketing, be submitted to it for approval or rejection." See here.
Measures under the law include:
• Authorities for the health agencies to prescribe that anyone suffering from, or assumed to be suffering from, generally dangerous diseases should be hospitalized or isolated etc.
• Prohibitions on the assembling of several people in one place at the same time.
• Prohibitions against any person being at a certain place (e.g. parks where many people usually assemble).
These measures cannot be taken with respect to religious or political assemblies.
The competency to decide on those measures, before the March 2020 amendments, belonged to regional Epidemic Commissions, composed of representatives from police; emergency management authorities; health authorities; and three local politicians. After the 2020 amendments some of the powers of the regional Epidemic Commissions were transferred to the Minister of Health and the Elderly. The Minister obtaned the power to order persons who are suspected of being infected to be isolated, the power to ban larger gatherings, events, limit access means of transport. The amendments also introduced the information obligation to detect the spread of the virus,and amended some other legislation in the health sector (limiting, for example, the right to free choice of hospital).
The competency to decide measures related to the containment of epidemis (quarantine, closure of public institutions, etc), before the March 2020 amendments, belonged to regional Epidemic Commissions. After the 2020 amendments some of the powers of the regional Epidemic Commissions were transferred to the Minister of Health and the Elderly. The Minister obtaned some additional powers and obligations for the citizens.