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)?
No general provision on emergency situations or derogation exists in the Constitution. However, there is one specific clause concerning the parliament in case of war and infectious diseases, allowing parliament to relocate to a safe city. Article 68 of the Norwegian Constitution: “The Storting shall as a rule assemble on the first weekday in October every year in the capital of the realm, unless the King, by reason of extraordinary circumstances, such as hostile invasion or infectious disease, designates another town in the realm for the purpose. Such a decision must be publicly announced in good time.”
2. Do organic/constitutional or ordinary laws regulating the state of emergency exist in your country?
No, in absence of a constitutional entrenchment of the special emergency regime, no organic law regulating it exists. That being said, there is special legeislation on "ordinary" emergencies - see Q3.
3. Do organic or ordinary laws on health risks or other public emergency exist in your country?
Norwegian law contains both specific laws on public emergencies, including war, health crisis, and infectious diseases, as well as emergency provisions in other statutes.
4. Was a state of emergency declared in your country due to the Covid-19 pandemic? By what authority and for how long?
No, the concept “state of emergency” does not exist in Norwegian constitutional law (but see Q1 for the unwritten rule of necessity). These matters are regulated by ordinary legislation. This legislation, however, gives extensive powers to the Government - for example, under the 1994 Act relating to control of communicable diseases, the government is allowed adopt legislative measures supplementing the act.
5. Was the declaration subject and submitted to parliamentary approval (if it was taken by the executive)?
Not applicable, since the concept “state of emergency” does not exist in Norwegian constitutional law (but see Q1 for the unwritten rule of necessity). These matters are regulated by ordinary legislation.
6. Was the declaration subject and submitted to judicial review? Was it found justiciable?
The concept “state of emergency” does not exist in Norwegian constitutional law (but see Q1 for the unwritten rule of necessity). These matters are regulated by ordinary legislation - so, there was no declaration to be submitted 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 Norwegian Constitution contains no derogation clause. A few years ago, the Norwegian parliament rejected a proposal for constitutional amendment that would have introduced a general derogation clause.
8. Which human rights have been limited/derogated from in your country, in the context of the Covid-19 pandemic?
The Norwegian constitution does not provide for a formal derogation, but there have been restrictions to human rights as a result of containment measures taken by the government:
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?
Emergency measures in Norway has been made according to both pre-existing general emergency legislation and according to special Covid-19 legislation adopted to deal with the crisis.
10. Are the possibilities for the Executive to derogate from the normal division of powers in emergency circumstances limited in duration, circumstance and scope?
Yes, the Government may assume power according to the unwritten rule of constitutional necessity, see Q1 and Q7. However, this rule has not been applied since 1940, and the threshold is very high.
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 was no suspension, but sanitary measures were introduced which required changes to working methods and voting procedures.
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?
Sessions of courts were partly suspended by court presidents in lower courts. In addition, there was a general slowing down of the proceedings due to the application of new sanitary measures. General measures were adopted by the government according to delegated powers in the Corona Law. Yet, all measures were approved by the parliament and were subject to short hearings by the affected parties.
13. Was legislation on the state of emergency or on the emergency amended or adopted to deal with the Covid-19 pandemic?
parliament also adopted the so-called Corona Act, delegating more general legislative powers to the government (expanding powers provided by the relevant legislation on health hazards), which allows derogation and amendments to 62 laws listed in the Corona Act, by way of delegated legislation. The Corona Act specifically requires all delegated legislation to be in accordance with human rights guaranteed by Norwegian law. The Corona Act was finally repealed on May 27. All legislation adopted by the government pursuant to the Corona Act has to be adopted as law by parliament within one month after the date of expiry of the Corona Act, or they will be abolished.
14. Was this additional legislation subject to judicial review?
All Norwegian legislation and administrative acts are subject to judicial review. The Corona Act specifically states that all measures taken by the government in accordance with the act, are subject to judicial review.
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?
No state of emergency was declared (since this mechanism is not provided in the Constitution), but the duration of the Corona Act (see Q13) was prolonged for one additional month.
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 state of emergency is provided by the Constitution. Judicial review of legislative and administrative acts is not limited by the emergency laws and provisions mentioned in Q3, and the Corona Act specifically states that all measures taken by the government in accordance with the act, are subject to judicial review. For the case-law of the Supreme Court related to the COVID-19 measures see here.
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 elections were held. If there would have been parliamentary elections, there is no legal basis to suspend or prolong them. This is possible for local elections. On 27 May, a government appointed expert commission proposed a new draft election law, which includes a general emergency clause for elections, allowing the parliament, and in exceptional cases the government, to prolong or suspend elections.
18. Same questions as under 17), mutatis mutandis, as regards local elections and referendums.
No local elections or referenda were held
Norway
That being said, there is an unwritten but long-established rule that derogations can be made according to an unwritten rule of constitutional necessity. The prime and latest example of the application of this rule is the transfer of the parliament’s power to the government in exile in face of German occupation in 1940. To trigger derogations according to the unwritten rule of constitutional necessity, there must be a serious emergency that necessitates a derogation, thus a necessity requirement. Furthermore, all derogations must be proportional to the aim pursued, thus a proportionality requirement. The exact scope and limits of this unwritten rule is not clear.
a. Infectious diseases, regulating movement, isolation and other measures: 1994 Act relating to control of communicable diseases (smittevernloven)
b. Health emergencies, regulating health personnel, medical supplies and resources etc.: 2000 Act on health and social preparedness (helseberedskapsloven)
c. Emergencies affecting the supply chain of goods and services: 2011 Act on business and industry preparedness (næringsberedskapsloven)
d. War: 1950 Act relating to special measures in time of war, threat of war and similar circumstances
e. War, threaths to the nation and peacetime emergencies, allowing for mandatory public service and the requisition of property: 2010 Act on municipal preparedness, civilian protective measures and the Civil Defence
f. Examples of emergency provisions in other general statutes:
i. Article 16 of the 2000 Act on radiation protection and use of radiation
ii. Articles 9-1 to 9-7 in the 2009 Energy Act
a. However, it is long-established that derogations can be made according to an unwritten rule of constitutional necessity. The prime and latest example of the application of this rule, is the transfer of the parliament’s power to the government in exile in face of German occupation in 1940. To trigger derogations according to the unwritten rule of constitutional necessity, there must be a serious emergency that necessitates a derogation, thus a necessity requirement. Furthermore, all derogations must be proportional to the aim pursued, thus a proportionality requirement. The exact scope and limits of this unwritten rule is not clear.
b. National law does not formally prohibit derogation from certain rights in emergency situations, but such prohibitions, for example of the right to life and prohibition of torture, would likely follow from the proportionality requirement in the unwritten derogation rule mentioned above.
c. Norway has not triggered a derogation from the ECHR according to Article 15.
a. Freedom of movement: Mandatory quarantine and isolation for persons infected, possibly infected or returning from abroad or areas with high infection rates, subject to criminal penalties.
b. Protection of property: Restrictions on services and industries, for example bars.
According to the 1994 Act relating to control of communicable diseases, the government is allowed to derogate from the requirements in the act and to adopt legislative measures supplementing the act.
Similarly, the government is also provided limited legislative powers according to the 2000 Act on health and social preparedness. The government has adopted a number of restrictive infection containment measures according to both these acts.
More controversial in Norway, leading to an intense public debate, parliament also adopted the so-called Corona Act, delegating more general legislative powers to the government, and which allows derogation and amendments to 62 laws listed in the Corona Act. The rationale for the Corona Act was to make changes to existing general legislation due to the societal impact of the containment measures, i.a. changes to tax law, economic stimulus measures, employment aid, exceptions from deadlines and meeting requirements for courts, associations etc. All legislative powers delegated to the government are subject to the constitutional protection of human rights as well as the ECHR. The Corona Act specifically requires all delegated legislation to be in accordance with human rights guaranteed by Norwegian law. It also allows a minority of 1/3 of the members of parliament to veto any legislative act adopted by the government in accordance with the Corona Act. Moreover, the Corona Act limits the government’s legislative powers to situations where the parliament is unable to adopt the required legislation within the required time-frame. The duration of the act and all acts adopted by the government in accordance with the Corona Act, were also limited to one month. The Corona Act was finally repealed on May 27. All legislation adopted by the government pursuant to the Corona Act has to be adopted as law by parliament within one month after the date of expiry of the Corona Act, or they will be abolished.
Otherwise the Government has a limited mandate within the framework of delegated legislation (like the 1994 Act on communicable diseases, for example - see Q9).