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)?
The Seventh chapter of the Constitution of North Macedonia regulates the states of war and emergency. Article 124 of the Constitution regulates that a state of war “exists when direct danger of military attack on the Republic is impending, or when the Republic is attacked, or war is declared on it.”
2. Do organic/constitutional or ordinary laws regulating the state of emergency exist in your country?
No, no law regulating the state of emergency exists in North Macedonia.
3. Do organic or ordinary laws on health risks or other public emergency exist in your country?
The following ordinary laws exist:
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 declared in North Macedonia by the President of the Republic due to the Covid-19 pandemic.
5. Was the declaration subject and submitted to parliamentary approval (if it was taken by the executive)?
The first state of emergency declaration was made by the President of the Republic, and was not submitted to parliamentary approval because parliament had been dissolved at that time.
6. Was the declaration subject and submitted to judicial review? Was it found justiciable?
The first two decisions of the President were subject of review by the Constitutional Court. The initiative for review of the constitutionality of the first declaration was rejected because the declaration was not in force anymore. The Constitutional Court decided on the constitutionality of the declaration on 6th of May 2020, while the declaration was in force till 16th of April 2020 (Resolution U. No. 41/2020). The second decision for declaration of a state of emergency was also subject to review by the Constitutional Court. The applicant claimed that the Constitution limits the period of a state of emergency that can be declared by the President of the Republic to a total of 30 days, which is the maximum terms.
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?
Articles 21 and 54 of the Constitution refer to the state of emergency or war in the human rights context. Article 21 limits the right to peacefully assembly during a state of emergency or war.
8. Which human rights have been limited/derogated from in your country, in the context of the Covid-19 pandemic?
Position of the Constitutional Court on permissible limiations
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?
A state of emergency was declared. If it was not declared it would be possible for the Government to act on the basis of the Law on Crisis Management, but the problem was that there was not active Parliament. So, the need of legislating certain measures could not be satisfied with declaration of crisis, because in such situation the Government does not have right to adopt decrees with the force of law.
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 only the right to adopt decrees with the force of law i.e. to regulate issues if the Parliament cannot convene.
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 Parliament was dissolved on 16.02.2020 and a pre-term election was called. In North Macedonia after its dissolution, the Parliament is not in session.
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 Constitutional Court were not suspended. The Court worked with a higher intensity and had meetings two to three days per week, while in normal times it has meetings once a week. All decrees with the force of law were challenged before the Constitutional Court and were reviewed (in North Macedonia every person can initiate procedure for judicial review of constitutionality).
13. Was legislation on the state of emergency or on the emergency amended or adopted to deal with the Covid-19 pandemic?
There is no law on the state of emergency in Macedonia, and Parliament was not sitting during the crisis. However, the Government's decrees having the force of law have been adopted during this period
14. Was this additional legislation subject to judicial review?
The Government's decrees having the force of law have been challenged and some of them have been annuled by the Constitutional Court (see Q8)
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 declared several times and will last from the 18th of March till the 13th of June 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.)
Every person can initiate a procedure of review of constitutionality of the decisions with general measures, decrees with thel force of law. Also, individual measure may be contested before ordinary courts.
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?
North Macedonia was in the middle of the electoral process for the parliamentary elections, which were scheduled for the 12th of April 2020. The Assembly was dissolved on the 16th of February 2020. On the 18th of March 2020, the President of the Republic declared a state of emergency. The leaders of relevant political parties conducted a meeting called by the President, where they agreed to postpone the elections, but the legal mechanism to do so was not decided on.
18. Same questions as under 17), mutatis mutandis, as regards local elections and referendums.
No local elections or referendums were scheduled during this period.
North Macedonia
Differently to this, Article 125 regulates that a state of emergency can be declared on the territory of the North Macedonia or on part of it. As reason for declaring a state of emergency, the Constitution regulates that “a state of emergency exists when major natural disasters or epidemics take place.”
The Constitution regulates the same procedure for declaration of state of war or emergency. A state of war or emergency is declared by the Assembly by a two-thirds majority vote of the total number of Representatives of the Assembly, on the proposal of the President of the Republic, the Government or at least 30 Representatives. If the Assembly cannot meet, the decision on the declaration of a state of war is made by the President of the Republic who submits it to the Assembly for confirmation as soon as it can meet.
The difference between two special regimes (state of war and state of emergency) that the Constitution limits the duration of the period in which the decision of the Parliament to declare emergency situation can remain in force (maximum of 30 days), while there is not such limitation for the state of war.
During the state of emergency (and the state of war) the Government may legislate through the decrees having the force of law (see also Q9)
- Law on Crisis Management (Official Gazette of the Republic of Macedonia, No. 29/2005, 36/11, 41/14, 104/15, 39/16 and 83/18).
- Law on Protection of the Population from Contagious Diseases (Official Gazette of the Republic of Macedonia, No. 66/04, 139/08, 99/09, 149/14, 150/15 and 37/16.)
- Law on Public Health (Official Gazette of the Republic of Macedonia, No. 22/10, 136/11, 144/14, 149/15 and 37/16.)
On 18th of March 2020, the Government proposed to the Assembly to declare a state of emergency . The President of the Assembly forwarded the proposal to the President of the Republic the same day, informing him that because the Assembly was dissolved on the 16th of February 2020, he would not be able to call a session of the Parliament on which the proposal of the Government will be discussed and decided. On the basis on the proposal of the Government and the letter of the President of the Parliament, the President of the Republic declared a state of emergency on the 18th of March for a period of 30 days.
The first and second decisions declaring a state of emergency were adopted with the goal of protecting and dealing with the consequences of the spreading of COVID-19.
The third declaration of a state of emergency was mainly aimed at giving a possibility to the Government to adopt economic measures assisting those who suffered economically as a consequence of the epidemic.
The Constitutional Court rejected this argument and decided that the prolongation of state of emergency for additional 30 days is constitutional. The Constitutional Court stated in particular that “if the conditions for a state of emergency are still valid, which is a constitutional ground and condition, a new decision for state of emergency should be adopted. That is a guarantee that the state of emergency cannot be prolonged automatically, but there is a need of new evaluation whether the conditions and need for a state of emergency are fulfilled [...]” (Resolution U. No. 55/2020)
Article 54 provides that "the freedoms and rights of the individual and citizen can be restricted during states of war or emergency, in accordance with the provisions of the Constitution." It also enumerates (in para. 4) rights which cannot be restricted (apparently even during the state of war or state of emergency): prohibition of discrimination, the right to life, the interdiction of torture, inhuman and humiliating conduct and punishment, the legal determination of punishable offences and sentences, freedom of religion and belief.
North Macedonia made a derogation declaration under Article 15 of the ECHR from articles 8 and 11 of the Convention (the right to respect for private and family life and the freedom to assembly and association), as well as from Article 2 of the Protocol no. 1 (the right to education) and Article 2 of the Protocol no. 4 (the freedom of movement).
The Constitutional Court of N. Macedonia addressed the question of limitations on human rights in the times of emergency in two decisions. In Decision No. 49/2020 the Court quoted only the first three paragraphs of Article 54 and did not mention paragraph 4 thereof. The Court concluded that the Constitution allowed to limit human rights only in a limited number of cases determined by the Constitution. The Court pointed to three articles of the Constitution, which determine a limitation of certain human rights, as are the Article 21 (right to peaceful assembly), Article 27 (right to movement) and Article 38 (right to strike). From this the Court derived the conclusion that rights other than these three cannot be limited even in the emergency situation.
By this decisions the Cosntitutional Court nullifyied the Decree with the force of law on the limitation of the payment of public sector employees’ benefits and compensations for the period of emergency situation, on the basis that the limitation of the labor rights does not have a constitutional basis.
One of the judges of the Constitutional Court wrote a dissenting opinion stating that, in his opinion, any freedom and right determined in the Constitution, except the so-called absolute rights, be subject to limitation, as transpires from paragraph 4 of Article 54.
This dissenting opinion is consonant with the majority opinion in Resolution 42/2020 in which the Constitutional Court stated that “in emergency situation, the right to life, the interdiction of torture, inhuman and humiliating conduct and punishment, the legal determination of punishable offences and sentences, as well as to the freedom of personal conviction, conscience, thought and religious confession, cannot be restricted”.
Limitations on specific rights
The right to movement was restricted, both internally and cross-border. The police curfew was introduced and a stay-home requirement was ordered by the Decision for prohibition and special regime for movement on the territory of the Republic of North Macedonia. This decision was amended 16 times, introducing different types of curfews. A different regime was adopted for some of the weekends.
The longest curfew was during the Easter Holidays when the country was under the 85 hour long lock-down. There were different curfews for minors under the age of 18 and for persons above the age of 67, which were designed to avoid that these groups do not go outside simultaneously. This distinction was challenged before the Constitutional Court, which issued a temporary measure suspending its implementation as potentially discriminatory on the basis of age.
One of the towns (Debar) with many infections was fully quarantined, so the residents were not allowed to leave the city. Borders were closed and the entry of the foreigners was restricted. The special permission from the Crisis Headquarters for the entry of foreigners was needed. Citizens and foreigners who entered the country were sent to the State-organized quarantine establishments or (if there was a justification on health, family or other grounds) - allowed to remain at home under condition of self-isolation. From 23 May 2020 the obligatory state-quarantine after entrance in the country was abolished if the person has PCR test made not earlier than 72 hours before entrance in the country.
Those who had contact with virus-positive were obliged to be tested. At several occasions people refused to be tested, so the testing was done with police assistance.
The restrictions of movement, the stay-at-home requirement also affected the respect of private and family life, especially to the children, which are under shared custody of parents who do not live together.
The right to education was affected: during the crisis all schools, universities and kindergartens were closed. Education was going through forms of online communications, distance learning and home study. Certain children from socioeconomically disadvantaged families faced challenges in accessing and participating distance learning. The state made efforts to tackle inequalities in education by providing internet connections and tablets to children from disadvantaged families.
Mass gatherings were forbidden. Also, the rules of physical distancing were introduced, as well as rules that limited the number of people that can group on public spaces, which affected many aspects of the people’s lives, including organization of group sport activities, celebrations, weddings etc.
The crisis had effect on the right to health care (some non-urgent medical operations postponed), labor rights (unemployement), right to property and enterpreneural activity (closer of malls, restaurnants etc), the right to strike. Access to justice was restricted: the Government adopted the Decree with the force of law that ordered interruption of judicial terms and gave competence to the Judicial Council to decide which types of cases will be considered as urgent and will be held during the emergency. The Judicial Council on 17.03.2020, adopted the Decision which listed several types of cases as urgent (custody, criminal cases related to the breach of sanitary rules, etc.). The pandemic affected also detainees and prisoners’ rights because there was a restriction on visits and external activities of prisoners.
During a state of war or emergency, the Government, in accordance with the Constitution and law, issues decrees with the force of law. The authorization of the Government to issue decrees with the force of law lasts until the termination of the state of war or emergency, on which the Assembly decides.
This interpretation of those constitutional provisions was a matter of some controversy; the confusion came from the formulation that “the Government, in accordance with the… law issues decrees with the force of law.” There is no special law on state of war or emergency, so it is not entirely clear what laws the decrees should be based on.
The decrees with the force of law are mentioned in two articles of the Law on Government of the Republic of Macedonia. Article 35 of the Law on Government enumerates the acts that are adopted by the Government, stating that: “For the purpose of implementing the laws, the Government shall adopt decrees with the force of law, decrees, decisions of general applicability, instructions, programs, decisions of individual applicability and conclusions.”
Article 36 regulates that: “By a decree with the force of law, the Government shall regulate issues within the area of competence of the Assembly in the case of martial law or state of emergency, if there is no possibility of convening the Assembly.”
The confusion was exacerbated by the fact that Article 35 enumerates the decree with the force of law among the acts adopted by the Government, for the purpose of implementing the laws (as opposed to changing them).
The Constitutional court gave two interpretations to the concept of a "decree with the force of law". In some of its decisions, the Constitutional court took the stand that “the decrees with the force of law can be adopted only for operationalization of the constitutional and statutory provisions, and not to regulate originally certain situation which is not foreseen in the constitution or in the statute” (Decision No. 49/2020). However, in other decisions the Constitutional Court took a different position, namely that “the decrees with the force of law are specific legal regulations which are adopted in the state of emergency, when there is a need of taking fast and efficient measures, of fast regulation of certain questions which are not regulated at all by statute or are regulated in a manner which does not allow for an efficient taking of measures which are imposed by the emergency situation, with aim to face and overcome the reasons which leaded to emergency situation, as well as its consequences and return into normal constitutional legal system.” (No. 56/2020 and 42/2020).
Under Article 127 of the Constitution “during the state of war, if the Assembly cannot meet, the President of the Republic may appoint and discharge the Government, as well as appoint or dismiss officials whose election is within the sphere of competence of the Assembly.” Also, the Constitution regulates that mandate of certain positions will be extended during the state of war or emergency (Article 128).
Article 63 (4) provide for the extention of the mandate of the Assembly during states of war or emergency.
These decisions will be subject to parliamentary control after the parliamentary elections, when the new Parliament convenes.
The first two decisions were subject to the review of the Constitutional Court. The initiative on constitutionality of the first declaration of a state of emergency was rejected on procedural ground.
The Constitutional Court confirmed the second decision for the declaration of the state of emergency as constitutional. The applicant claimed that the Constitution limits the period of a state of emergency that can be declared by the President of the Republic to a total of 30 days. This claims was rejected by the Constitutional Court which decided that renewals of this period are possible under the Constitution.
The declarations of the State of emergency were challenged before the Constitutional Court (see Q15). The Government's decisions (decrees with the force of law) were challenged and some of them annuled by the Constitutional Court (see Q8)
The Decision for prohibition and special regime for movement on the territory of the Republic of North Macedonia was challenged before the Constitutional Court, which imposed interim measures.
So far, the Constitutional Court nullified three decrees with the force of law and one of the provisions from another decree with the force of law.
The Decree with the force of law for determining the limit of the salary of elected and appointed officials in the public sector for the time of an emergency situation was nullified on several grounds. With this decree the salaries of all holders of public offices, which were appointed or elected, were reduced for two months (April and May) to the amount of the minimal salary guaranteed in the country. Only appointed officials in health sector were excluded from this restriction of the salaries. This decree with legal force affected 2060 holders of public offices (Members of the Parliament, of the Government, of the Constitutional court, judges, prosecutors, managers etc.). The Constitutional court stated that the limitation of the salaries was not constitutionally based, as such contrary to the Constitution it restricts the right to salary and the right to property and that this measure is not proportionate to the aim, neither is necessary in the moment, nor is a crisis measure. Also the Court found that such measure was discriminatory (Decision U. No. 44/2020 and U. No. 50/2020).
The Decree with the force of law on limitation of payment of public sector employees’ benefits and compensations for the period of emergency situation, was nullified because the Constitutional Court determined that the limitation of the labor rights does not have a constitutional basis: in the Constitution there are no provisions on the basis of which these rights can be limited in the time of a state of war or emergency (Decision U. No. 49/2020).
The Decree with the force of law for public prosecutors’ servants, investigators and other employees in the Special Prosecution Office (the SPO) was also nullified. This decree was related to the effects of the destitution of the Special Public Prosecutor, which resulted in the dismissal of the staff of the Special Prosecutor's Office. The Decree with a force of law gave competence to the Prosecutor General to decide on the issues connected with the labor rights of the former SPO staff members. The Constitutional court found that “the matters that fall in the scope of the challenged decree are not connected to the reason for existence of the state of emergency determined in the Decision of the President of the Republic”, and that it transcends the reason for declaration of the state of emergency. (Decision U. 45/2020).
Article 3 of the Decree with legal force for terms of judicial proceedings in state of emergency and work of the courts and public prosecutions was nullified. That article regulated that the term of the office of the lay judges, whose mandate expires during the state of emergency, will be prolonged until the proceedings are completed. The Constitutional Court ruled that such a provision interfered with the principle of separation of powers, because the Government took over the competence of the Judicial Council to decide on the mandate of lay-judges (Resolution, U. No. 56/2020).
The President of the Parliament refused to call the Parliament, stating that it was not according to the Constitution. The Constitution is silent on the issue, whether the Parliament, which is dissolved, should be called if the emergency situation is declared.
The only provision is Article 63 paragraph 4, which stipulates that “the term of office of the Representatives to the Assembly can be extended only during states of war or emergency.”
In 2016 the Constitutional Court (see decision No. 104/2016-1) stated that “the mandate of the Representatives of the Assembly cannot be prolonged in the case of dissolution of the Assembly, outside of the conditions determined in the Article 63 Paragraph 4 of the Constitution.” This stand of the Constitutional Court could have been used as a base to call the Parliament, but the President of the Parliament had a different opinion, stating that the dissolved Parliament cannot be reconvened even in an emergency situation.
Because Parliament was not reconvened, the Government adopted the Decree with the force of law on electoral maters (No. 72/2020). The Decree regulates that all electoral activities for parliamentary elections scheduled for the 12th of April 2020 will be stopped. The State Electoral Commission should keep the electoral documentation until the electoral campaign can be resumed. The State Electoral Commission is obliged on the next day of termination of the state of emergency to publish on its web page a revised timetable for the continuation of electoral campaign. The decree prolongs the term of office of the State Electoral Commission for 6 months after the parliamentary elections. The Decree suspends application of the provisions of the Electoral Code during a state of emergency, especially the provisions that prohibit certain activities of the Government during the electoral campaign.
The interruption of the electoral campaign was based on Article 63 Paragraph 3 of the Constitution and Article 128 thereof, which provide prolongation of the terms of office of the public offices elected in direct elections during the state of emergency. It is considered that the Constitution tacitly accepts that elections cannot be held during emergency situations. On the other hand, the Constitution regulates that parliamentary elections should be held in 60 days from the day of dissolution of the Parliament (Art. 63 Para. 3 of the Constitution).
The Constitutional Court decided on the constitutionality of the Decree with the force of law on election matter and found it constitutional.