Venice Commission - Observatory on emergency situations
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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 15 of the Constitution provides for the possibility of declaring a state of emergency. At the same time, a state of emergency is declared only if there are grounds provided for in the Constitutional Law «On the State of Emergency». The subjects authorized to declare a state of emergency are the President and the Parliament. But, as a rule, a state of emergency is declared by presidential decree with immediate notification to the Parliament. A state of emergency imposed by an act of the President is subject to approval or repeal by the Parliament. These provisions are contained both in the Constitution (article 64, part 9, paragraph 2; article 74, part 5, paragraph 1) and in the Constitutional Law «On the state of emergency».
2. Do organic/constitutional or ordinary laws regulating the state of emergency exist in your country?
Since article 15 of the Constitution of the Kyrgyz Republic explicitly specifies that a state of emergency may be declared only in cases provided by constitutional law, the Constitutional Law «On the state of emergency» adopted in 1998 with modifications and additions in subsequent years. The last amendments to the above-mentioned Constitutional Law were made on 14 July 2015.
3. Do organic or ordinary laws on health risks or other public emergency exist in your country?
: The Kyrgyz Republic has a number of laws regulating the health sector. Due to the Covid-19 pandemic, the most vulnerable group became the medical professionals who directly treated patients with coronavirus infection. Despite the presence of protective suits, respirators and masks, the number of medical personnel infected with Covid-19 was quite high. In this connection, the Parliament of the Kyrgyz Republic introduced amendments to the Law of the Kyrgyz Republic «On the Status of the Medical Worker» aimed at the social protection of medical workers.
4. Was a state of emergency declared in your country due to the Covid-19 pandemic? By what authority and for how long?
The state of emergency was introduced by presidential decrees No. 55, 56, 57 dated on 24 March 2020, and No. 72 dated on 14 April 2020, in separate territories. It was done with reference to a rapid increase in the number of cases of coronavirus infection, and in accordance with article 64, paragraph 9, paragraph 2, of the Constitution of the Kyrgyz Republic, articles 3, 4 and 7 of the Constitutional Law of the Kyrgyz Republic "On the state of emergency", in order to protect the life and health of citizens and their safety and public order, with a view to preventing the spread of coronavirus infection to other territories of the Kyrgyz Republic.
5. Was the declaration subject and submitted to parliamentary approval (if it was taken by the executive)?
All Acts of the President of the Kyrgyz Republic to declare a state of emergency in certain territories in accordance with the Constitution were immediately submitted to Parliament for approval. Presidential decrees on the declaration of a state of emergency after discussion were approved by Parliament. Acts of Parliament approving Presidential decrees declaring a state of emergency in certain territories are set out in Q4.
6. Was the declaration subject and submitted to judicial review? Was it found justiciable?
Under the Constitution of the Kyrgyz Republic, the court does not have the right to review presidential Acts declaring a state of emergency; but it is hypothetically possible to appeal the Presidential Decree and the Act of Parliament declaring a state of emergency to the constitutional review body, the Constitutional Chamber.
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 declaration of a state of emergency is accompanied by restrictions on certain human rights and freedoms guaranteed by the Constitution. The list and limits of emergency measures and an exhaustive list of temporary restrictions on the rights and freedoms of citizens and additional obligations are set out in the State of Emergency Act itself. The restrictions imposed must be proportionate, as required by Article 20 of the Constitution.
8. Which human rights have been limited/derogated from in your country, in the context of the Covid-19 pandemic?
The following restrictions have been imposed in the territories where the President of the Kyrgyz Republic decreed a state of emergency in connection with the Covid-19 epidemic:
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?
In accordance with the Constitution of the Kyrgyz Republic, the Government exercises the powers assigned to it by the Constitution and laws. However, the laws do not grant the Government the right to impose any restrictions on human rights. Human rights under article 20 of the Constitution may be restricted only by law. Thus, when a state of emergency is declared, only the set of restrictions provided for in the Constitutional Law «On the State of Emergency» are used. Accordingly, the President or Parliament may, in the event of a state of emergency, impose only the restrictions provided for in the above-mentioned Constitutional Act.
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 Constitution does not provide for derogations from the normal separation of powers, including in exceptional circumstances. Moreover, it should be borne in mind that it is the Government, through the line ministries, that is primarily responsible for the prevention and management of coronavirus infections.
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 work of Parliament was not officially suspended, but during the state of emergency the plenary sessions of Parliament, as provided for in the Rules of Parliament, were not held regularly, and most of the staff of Parliament were sent to work remotely. It should be noted, however, that when necessary, Parliament held plenary meetings following the santiary rules.
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 work of the Constitutional Chamber has not been officially suspended, but since the parties to the proceedings were unable, for objective reasons, to take part in the proceedings, the trials have been postponed as a result of the motions of the parties to the proceedings, and on the Constitutional Chamber’s own initiative.
13. Was legislation on the state of emergency or on the emergency amended or adopted to deal with the Covid-19 pandemic?
The Constitutional Law «On the State of Emergency» which was adopted in 1998 is in force in the Kyrgyz Republic. It was amended several times, most recently on 14 July 2015. This Constitutional Act applies to crisis situations, including epidemics, which cannot be resolved without emergency measures.
14. Was this additional legislation subject to judicial review?
In theory, the Constitutional Law «On the state of emergency» and the decrees of the President of the Kyrgyz Republic on the declaration of a state of emergency in specific regions may be subject to review by the Constitutional Chamber for conformity with the Constitution. In the present context, the proportionality of the restrictions imposed is likely to be considered.
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 imposed for certain regions by presidential decrees from 24 March to 15 April, and the state of emergency was extended until 30 April, and for certain localities until 10 May 2020. The President’s decrees both on the proclamation of a state of emergency and on the extension of a state of emergency are subject to parliamentary scrutiny. Consequently, all the Presidential Acts on the declaration of a state of emergency and its extension have been approved by the Parliament of the Kyrgyz Republic. None of the President’s decrees imposing a state of emergency has been subject to judicial review. This is because the Constitutional Chamber has not been requested to review those decrees, and the Constitutional Chamber does not have the power to review constitutionally the laws, acts of the President and the Parliament on its own initiative.
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.)
Under a state of emergency, citizens are not deprived of the right to judicial protection, as this right is included in the Constitution of the Kyrgyz Republic as absolute rights subject to no restriction whatsoever.
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?
According to Article 23 of the Constitutional Law «On State of Emergency» during a state of emergency, referendums and elections to State bodies are prohibited. Therefore, during a state of emergency, referendums, elections to the President, Members of Parliament and local authorities may not be held. Parliamentary and local elections did not coincide with the state of emergency, so there was no decision by the Central Electoral Commission to postpone the elections (they have taken place in fact in October 2020). However, in view of the fact that the situation regarding the proliferation of coronavirus has not been stabilized, the Central Electoral Commission introduced special rules (it is necessary to have a mask when visiting a polling station, observing social distance and other measures) for conducting parliamentary and local elections.
18. Same questions as under 17), mutatis mutandis, as regards local elections and referendums.
See answer to Q17.
Kyrgyzstan
In particular, health-care workers of State and municipal health-care organizations who perform their professional duties and are at high risk of harm to their health during a state of emergency or emergency situation, compensation is paid as determined by the Government of the Kyrgyz Republic.
Medical personnel of State and municipal health-care organizations performing their professional duties in the sanitary-quarantine zone are subject to the regime of heavy work and work with harmful and dangerous working conditions, and compensation is paid, as determined by the Government of the Kyrgyz Republic.
A number of other amendments were adopted. The above-mentioned amendments were adopted by the Parliament of the Kyrgyz Republic in May 2020.
The above-mentioned presidential decrees on the declaration of a state of emergency in certain territories were approved by Acts of Parliament No. 3652, 3652 and 3653 dated of 24 March 2020.
- a curfew has been imposed to restrict the movement of citizens at nighttime;
- a special regime for the entry and exit of citizens in places where a state of emergency has been declared;
- individuals may not leave their home (apartment) or the place where they are being observed or treated (hospitals) for a fixed period;
- conducting of spectacles, sports and other mass events, as well as strikes, meetings, rallies, street marches, demonstrations and etc. have been prohibited;
- transport restrictions and other restrictions to prevent the spread of coronavirus infection.
Nor have the courts of general jurisdiction been officially suspended, but many cases have been suspended for objective reasons related to the illness of the parties to the proceedings, the restrictions imposed on movement from the places where the state of emergency operated. Trials have been postponed, except in urgent cases.