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 specific constitutional provisions.
2. Do organic/constitutional or ordinary laws regulating the state of emergency exist in your country?
There are no specific provisions of this nature. However, Law 1.430 of 13 July 2016, covering various measures relating to the preservation of national security, states that "1. The purpose of the administrative police is to detect, identify, prevent and stop any threat that could harm public order, the safety of persons and property, and the fundamental interests of the Principality." These powers belong to the Minister of State.
3. Do organic or ordinary laws on health risks or other public emergency exist in your country?
There is a Civil Security Organization Act 1-283 of 7 June 2004 that provides for the implementation of several categories of contingency plans, including an "Ormose" plan to address major risks.
4. Was a state of emergency declared in your country due to the Covid-19 pandemic? By what authority and for how long?
There is no specific legislation in Monaco relating to the state of health emergency related to the pandemic. Nevertheless, a number of departmental decisions have been taken in the context of a health emergency.
5. Was the declaration subject and submitted to parliamentary approval (if it was taken by the executive)?
The administrative police measures were taken by the executive in accordance with the division of powers resulting from the Monegasque Constitution. There was no declaration of urgency in that sense.
6. Was the declaration subject and submitted to judicial review? Was it found justiciable?
In the absence of an emergency declaration, ministerial decisions could have been appealed to the Supreme Court under Article 90 of the Constitution. So far, such remedies have not been used.
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?
There has been no general limitation on rights and freedoms. Ad hoc restrictions can generally be in the context of reconciling public interest requirements with individual rights and freedoms as stipulated in the Constitution and the ECHR. The situation did not justify the implementation of the provisions of Article 15 of the ECHR. It is a mechanism similar to that resulting from administrative jurisprudence on exceptional circumstances.
8. Which human rights have been limited/derogated from in your country, in the context of the Covid-19 pandemic?
Limitations were inotriduced in respect of the following freedoms: freedom of enterprise, freedom of assembly, freedom to come and go. Restrictions related to the conditions of practice have also affected freedom of religion and freedom of education.
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 declaration of emergency has not been made, since the Constitution does not provide it; necessary measures were taken by the executive on the basis of ordinary legislation on police powers.
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 of Monaco does not provide for a state of emergency; the Minister of State may use (and used, in the context of the COVID epidemy) police powers which it has under the ordinary legislation. There was no derogation from the distribution of normative powers in this case. The measures taken are likely to be subject to judicial review
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?
Not only was the functioning of parliament not interrupted, but the Sovereign Ordinance No. 8.018 of 26 March 2020 created a joint COVID monitoring committee, composed of representatives of the government and of the National Council. Committee members are not only recipients of government information but also have the power of proposal.
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 session of the Supreme Court in April was cancelled, but litigants retained the opportunity to refer the matter to the President of the Supreme Court in an emergency. By the Sovereign Ordinance no. 8.019 of 26 March 2020, the deadlines for appeals to the Supreme Court have been suspended, with the exception of those involved in the exercise of the emergency procedure.
13. Was legislation on the state of emergency or on the emergency amended or adopted to deal with the Covid-19 pandemic?
No, the existing legislation on the police powers of the Minister of the State was generally sufficient to order measures aimed at dealing with the crisis. Law 1.486 of 9 April 2020 relating to the justice system suspended for two months most procedural and hearing deadlines, with the possibility of extension.
14. Was this additional legislation subject to judicial review?
No new legislation has been adopted/amended, so there was no judicial review thereof
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 declaration is not provided by the constitution and was not, therefore, introduced. However, certain ministerial measures have been temporarily extended.
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.)
Recourse against ministerial decisions before the Supreme Court is possible (see above), but, so far, there has been no such cases.
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
18. Same questions as under 17), mutatis mutandis, as regards local elections and referendums.
Not applicable
Monaco
It should be noted that the measures taken in Monaco in the context of this health crisis were mainly in reference to the WHO International Health Regulation, made enforceable in Monaco and implemented by Sovereign Ordinances 3.153 of 24 February 2011 and 6.387 of 9 May 2007.
It should also be noted that the general provisions applicable in times of health crisis do not fall under a specific legislative system.
The normative framework is therefore:
-WHO health regulations to combat epidemics;
-the Civil Security Act of 1-238 of 2004;
-the 2016 National Security Preservation Act 1.430, which assigns jurisdiction to the Minister of State in the event of threats that could affect, in particular, the safety of persons.
-the Sovereign Ordinance of 6.387 of 9 May 2017 which, under the aforementioned WHO regulations and in the event of a threat of epidemic, gives the Minister of State the powers to take measures to deal with these threats.
This is the case:
-the Ministerial Decision of 13 March 2020 on the closure of some childcare facilities;
- the Ministerial Decision of 17 March 2020 on the closure of certain schools;
- the Ministerial Decision of 17 March 2020 on temporary travel regulation from 18 to 31 March 2020;
-the Decision of 19 March 2020 on temporary regulation of public access to Monaco's sea and sea waters;
-the Decision of 19 March 2020 on temporary regulation of public access to outdoor public facilities and spaces;
-the Ministerial Decision of 22 March 2020 temporarily restricting night travel and prohibiting all travel from 22 March to 31 March 2020 between 10 p.m. and 5 a.m.;
-the Ministerial Decision of 27 March 2020 amending decisions on temporary travel regulation and access to certain places or facilities;
-the Ministerial Decision of 31 March 2020 on the preventive measures to be followed by any person;
-the Ministerial Decision of 10 April 2020 extending the aforementioned Decision from 17 March to 15 April 2020;
-the Ministerial Decision of 10 April extending the aforementioned provisions until 3 May 2020;
-the Ministerial Decision of 16 April 2020 extending the closure of certain public institutions;
-the Ministerial Decision of 22 April 2020 on the closure of certain premises and establishments;
-the Ministerial Decision of 28 April 2020 providing for the gradual resumption of activities from 4 April 2020;
-the Ministerial Decision of 14 May 2020 amending the decision of 28 April 2020, on the gradual resumption of activity.
It will be noted, in a different order, that Act 1.485 of 9 April 2020 suspended administrative deadlines.
Finally, it should be noted that these provisions were taken for short periods of time and renewed in the interests of strict proportionality between the necessity to which they respond and the restrictions they impose. Moreover, this principle of proportionality is recalled in the explanatory statement of the aforementioned ministerial decisions.
Specifically, these decisions refer precisely to the stated objectives of public health, to the circumstances of time and place in which they are enacted.
On the other hand, some measures taken by the administrative authority have led to the limitations of certain rights and freedoms.
Court hearings were cancelled from 16 March to 4 May 2020, but all urgent procedures were dealt with (detention matters, hearings of flagrante delicto, placement of minors or statutory placement of adults in distress, protection orders, etc.).
Law 1.486 of 9 April 2020 relating to the justice system suspended for two months most procedural and hearing deadlines, with the possibility of extension.