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 78 of the 1948 Italian Constitution, “Parliament has the authority to declare a state of war and vest the necessary powers into the Government.” No other public emergency is regulated by the Constitution.
2. Do organic/constitutional or ordinary laws regulating the state of emergency exist in your country?
A law On the Civil Protection enacted in 1992, now restated in legislative decree of 2 January 2018, n. 1 with amendments (for the text in Italian click here , enables government to declare the state of emergency under certain conditions. During such state, the administrative authorities may adopt orders derogating ordinary laws, but not constitutional laws.
3. Do organic or ordinary laws on health risks or other public emergency exist in your country?
In addition to the legislation on civil protection (see Q2) Law n. 833/1978, establishing the National Health Service, enables the Ministry of Health to adopt urgent orders aimed at regulating an health emergency arising at the national level, as well as the Presidents of the 19 Regions and 2 Autonomous Provinces to adopt urgent orders aimed at regulating an health emergency arising at the regional level.
4. Was a state of emergency declared in your country due to the Covid-19 pandemic? By what authority and for how long?
It was declared on 31 January 2020 by the executive, and was intended to endure for six months (until 31 July 2020) - click here
5. Was the declaration subject and submitted to parliamentary approval (if it was taken by the executive)?
The Government used legislative decrees to cope with the pandemic. The declaration made by the executive under the law of 1992 was not submitted to parliament, because the law of 1992 does not provide such submission. It is worth adding that, with the effective rise of the Covid-19 pandemic (end of February), the government decided to complement the declaration, first, with urgent orders of the Ministry of Health (and of the Presidents of the Regions for their respective territories), adopted under Law n. 833/1978 provisions (see Q3), and then with decree-laws (under Article 77 of the Constitution), that were submitted to parliamentary approval (and obtained it).
6. Was the declaration subject and submitted to judicial review? Was it found justiciable?
The declaration by the executive (provided by the 1992 law, the constitution does not provide for a declaration in such circumstances) as such is not subject as such to judicial review.
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 Constitution does not regulate the state of emergency, with the exception of war. Nothing similar to Article 15 ECHR mechanism is provided by the Italian Constitution, nor is the proportionality principle explicitly established. However, such principle is observed in the Constitutional Court’s case-law, where it is also affirmed that derogations to human rights, or more precisely suspensions of constitutional provisions regarding (also) human rights, are admissible provided that their duration is strictly limited and that the inherent restriction pursues certain constitutional aims (see decision n. 15/1982).
8. Which human rights have been limited/derogated from in your country, in the context of the Covid-19 pandemic?
The most important limitations have regarded freedom of movement (Article 16), of religion (Article 19), of assembly (Article 17), and of economic initiative (Article 41). The question is also open on whether the people who have been subject to the “quarantine” have had their personal freedom limited (art. 13).
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?
An answer to the question should take into account Italy’s specific legal framework of the state of emergency (see Q5), where the declaration of the state of emergency does not have a constitutional basis, but only a legislative one.
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 Government has powers provided by Law n. 833/1978, establishing the National Health Service, as well as constitutional power to issue decree laws which should be approved by Parliament within sixty days (see Q7 and Q9).
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?
The sessions of parliament were not formally suspended, although substantially limited in duration and, in the practice, parliament was convened just for the approval of the decree laws. On the other hand the pandemic forced both Chambers to adopt temporary rules aimed at limiting the number of MPs standing at the bench throughout a certain proceeding.
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 both of the Constitutional Court and of the other courts were not suspended during the Covid-19 pandemic, although the public hearings did not take place. The Constitutional Court has never stopped its activities and has taken deliberations “in chambers”. In a second phase it has decided to have public hearings via internet if the parties asked for oral discussion. Otherwise the decisions were taken only on the basis of the written arguments. Whereas the Constitutional court was completely independent in adopting the related decisions, the ordinary and the administrative courts’ activity was decided by decree-laws. (n. 11 and 18 of 2020). These pieces of legislation envisage different rules for different type of process: administrative, civil and penal.
13. Was legislation on the state of emergency or on the emergency amended or adopted to deal with the Covid-19 pandemic?
Not an ordinary legislation (except for the decree laws by the Government, as approved by Parliament - see Q1)
14. Was this additional legislation subject to judicial review?
No, since ordinary legislation was not amended during the COVID-19 crisis (only decree laws were adopted and approved by Parliament)
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?
For the moment it has not been prolonged
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.)
There are no special remedies for the measures adopted during the emergency. Ordinary methods for access to justice apply. A distinction between legal remedies should be made depending whether they concern objective legality, including respect for the competences of the State, the Regions and the municipalities as provided in the Constitution and in ordinary legislation, or infringement of human rights. The national government started court proceedings against certain Regions (Calabria). The national government alleged that those regions' emergency measures encroached upon the State’s competences. In that case the administrative tribunal invalidated the Region’s measure. As regards lawsuits based on the human rights claims, their outcome is not yet known.
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 parliamentary election was provided during the Covid-19 emergency. Before the emergency, a constitutional referendum was provided in the Spring of 2020 regarding the reduction of MPs, as well as elections concerning renewal of important regional Councils. These consultations were postponed by the national government to the end of the emergency, and are now likely to take place next September.
18. Same questions as under 17), mutatis mutandis, as regards local elections and referendums.
Not applicable
Italy
In addition, according to Article 77, paras. 2 and 3, “When the Government, in extraordinary cases of necessity and urgency, adopts under its own responsibility a temporary measure, it shall introduce such measure to Parliament for transposition into law. During dissolution, Parliament shall be convened within five days of such introduction. Such a measure shall lose effect from the beginning if it is not transposed into law by Parliament within sixty days of its publication. Parliament may regulate the legal relations arisen from the rejected measure.”
The effective meaning of the words “extraordinary cases of necessity and urgency” has significantly varied from time to time. While in the first decade of the constitutional practice such cases designed public emergencies such as earthquakes or financial crisis, governments adopted later decree laws (namely the “temporary measures” as provided in Article 77) as ordinary means of legislation, with the effect of transforming the exception (or the emergency) into the rule.
During the COVID crisis the emergency measures were taken by the Government on the basis of the mandate given by the ordinary legislation (see Q2 and Q3); in addition, the Government legislated by decree laws under Article 77 of the Constitution
The declaration of the state of emergency was based on legislative decree 2 January 2018, n. 1. (see Q2). Later the Government started inacting decree laws on the basis of Article 77 of the Constitution (which do not need a declaration of the state of emergency to be adopted).
In parallel, the Ministry of Health was issuing urgent orders by virtue of the mandate given to it by the law on the National Health Service
Furthermore, these decree laws enabled the Prime Minister to adopt (governmental) decrees for coping with the emergency in the short term. These did not need Parliament’s approval, and for this reason the government was criticized by the media and by some constitutional scholars. Later the government decided that the Prime Minister would inform Parliament about these decrees’ implementation every two weeks.
Therefore the declaration of the state of emergency afforded a very weak ground for the restrictions of human rights. Moreover in the text of the constitution all limitations of fundamental rights are to be provided by a legislative act (riserva di legge). These are the reasons why the government resorted to law decrees in order to involve Parliament in the decision-making process.
Decree law no. 6/2020 (click here mandated "competent authorities" to enact containment and management measures , including the prohibition to leave or enter certain areas; suspension of work, meetings, events and schooling; closing of some categories of offices and shops, limitations to public transport; quarantine etc. It contained an open-ended residual clause which mandated the head of the governement to adopt “any containment and management measures adequate and proportionate to the evolution of the epidemiological situation”.
Measures based on this general mandate were taken by the head of the national governement as well as some regional authorities. Furthermore, the head of the government (President of the Cabinet of Ministers) issued his own decrees on the basis of the decree law no. 6 (for an example click here
Decree law no. 6/2020 was converted into law no. 13/2020, and more decrees (nos. 9, 11, 14/2020 and no. 18 of 17 March 2020, the most comprehensive) have been adopted with additional measures. The decree law of 25 March 2020 was aimed at harmonising measures taken at different levels (national, regional, local).