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)?
Yes, there are such provisions. Article 137 of Peru’s 1993 Constitution regulates the Exception
2. Do organic/constitutional or ordinary laws regulating the state of emergency exist in your country?
The state of emergency is regulated by the constitutional norm, Article 137. It is one of the two possible exception regimes provided in the Constitution, next to the state of siege. There are not ordinary laws regulating the state of emergency.
3. Do organic or ordinary laws on health risks or other public emergency exist in your country?
Yes. Act Nº 26842, General Act of Health, of July 20th, 1997, includes provisions for declaring quarantine, among other security measures, in its Articles 130 to 132. The most important of these norms is the last one, which establishes the principles of proportionality this measure should comply with:
4. Was a state of emergency declared in your country due to the Covid-19 pandemic? By what authority and for how long?
On March 16th, a state of emergency was declared by President of the Republic Martin Vizcarra, by Supreme Decree Nº 044-2020-PCM, “Decreto Supremo que declara Estado de Emergencia Nacional por las graves circunstancias que afectan la vida de la Nación a consecuencia del brote del COVID-19”. This initial declaration was for two weeks. However, the state of emergency —including quarantine— has been extended five times. According to its last extension, declared by Supreme Decree Nº 094-2020-PCM, of May 23th, it will end next June 30th. So, it will last a total of fifteen weeks and two days.
5. Was the declaration subject and submitted to parliamentary approval (if it was taken by the executive)?
The Presidential declaration has not been submitted to the parliamentary approval. The President of the Republic is only required to inform Congress.
6. Was the declaration subject and submitted to judicial review? Was it found justiciable?
At the Constitutional Court level, there has not been any process yet, as of June 2020. However, there could be complaints asking for the judicial review of the state of emergency and quarantine at the lower instances of Peru’s constitutional justice system —i.e., constitutional judges and constitutional chambers of superior courts. There is not publicly available information about it.
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?
Under the Constitutional (see Q1) the state of emergency implies the temporary suspension of four constitutional rights: 1. Inviolability of the home. 2. Freedom of movement on the national territory. 3. Freedom of peaceful assembly, and 4. Liberty and security —i.e., not to be detained except by written and motivated order of a judge or by the police authorities in the event of a flagrant crime.
8. Which human rights have been limited/derogated from in your country, in the context of the Covid-19 pandemic?
Article 3 and following of Supreme Decree Nº 044-2020-PCM specified the measures limiting human rights during the state of emergency. In particular, pursuant to Article 4 during state of emergency nation-wide quarantine was imposed, allowing circulation only for the provision and access to the following essential services and goods (acquisition, production and supply of food, pharmaceutical and essential products, hospital visits, return to the place of habitual residence, care for older adults and children etc. Article 7 provided for the suspension of access to the public to premises and establishments, with the exception of retail food business establishments, pharmaceutical, medical products, hygiene products, fuel etc. Article 8 provided for temporary closure of borders. For the text in Spanish click here.
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 additional powers were given to the executive by virtue of the Presidential declaration proclaiming the state of emergency (see Q1)
10. Are the possibilities for the Executive to derogate from the normal division of powers in emergency circumstances limited in duration, circumstance and scope?
See Q1: the scope of the state of emergency
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?
On January 26th, Peru had extraordinary parliamentary elections, after President of the Republic Martin Vizcarra disolved Congress on September 30th, 2019. The new Congress —
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?
Peru’s Constitutional Court did not convene in the first three weeks of the state of emergency, but continued studying cases and formulating draft decisions at the magistrates’ offices level. It restarted its Plenary sessions and hearings on April 7th, using on-line tools. The Court itself decided these working arrangements.
13. Was legislation on the state of emergency or on the emergency amended or adopted to deal with the Covid-19 pandemic?
There has been no new legislation amended during the state of emergency
14. Was this additional legislation subject to judicial review?
Not applicable - see Q13
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?
As of June 2020, the state of emergency has been extended five times. So, in total there has been six decrees on the state of emergency (March 16th, March 27th, April 10th, April 25th, May 10th, and May 23th).
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 Article 200 of the Constitution, the exercise of the writ of habeas corpus and the writ of Amparo (which operates in case of an act or omission by any authority, official, or person, which violates or threatens the other rights recognized by the Constitution) is not suspended during the enforcement of the states of exception referred to in Article 137 of the Constitution. When petitions concerning these constitutional rights are filed with regard to restricted or suspended rights, the corresponding jurisdictional body examines the reasonability and proportionality of the restrictive act. The judge is not entitled to challenge the declaration of the state of emergency or siege. The possible legal remedies include “acción popular” and “inconstitucionalidad” against the content of norms.
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
Peru
Regime in the following terms:
The President of the Republic, with the advice and consent of the Cabinet, may decree for a determined time period in all or part of the national territory, and report to Congress or Permanent Assembly the state of exception as provided for in this article:
1. State of emergency in case of disturbances of the peace or the domestic order, disasters, or serious circumstances affecting the life of the Nation. In this case, the exercise of constitutional right relating to personal freedom and security, the inviolability of the home, and freedom of assembly and movement in the territory as set forth in paragraphs 9, 11 and 12 of Article 2 and in paragraphs 24, subparagraph f in the same Article, may be restricted or suspended. Under no circumstances no one shall be exiled.
The state of emergency period shall not exceed 60 days. Its extension requires a new decree. Under a state of emergency, the Armed Forces may assume control over domestic order if the President of the Republic decides it.
2. State of siege, in case of invasion, foreign or civil war, or imminent danger that such events might occur, with mention to those fundamental rights whose exercise is not restricted or suspended. The applicable period shall not exceed 45 days. When the state of siege is declared, Congress convenes by law. Its extension requires Congress approval.
All safety measures taken by the Health Authority under this law are subject to the following principles:
(a) They must be proportionate to the aims pursued;
(b) Their duration should not exceed what is required by the imminent and serious situation of danger that justified them; and
c) Measures should be preferred that are effective for the achieving the aim pursued but cause minimal harm to free movement of persons and goods, freedom of enterprise
and any other rights affected.
Article XII of the Preliminary Title of the aforementioned Law has provided that the exercise of right to property, to the inviolability of the home, to the free movement of people, to freedom of work, business, commerce and industry, as well as the exercise of the right of assembly, are subject to the limitations established by law in protection of public health.
The same constitutional norm establishes the circumstances that can motivate the declaration of a state of emergency: 1. Disturbance of peace or internal order. 2. Catastrophe. and, 3. Serious circumstances that affect the life of the Nation. Finally, the very same constitutional norm establishes that nobody can be exiled under any circumstance.
Additionally, the aforementioned legal norm —Article 132 of Act Nº 26842, General Act of Health— establishes that all security measures, including quarantine, adopted by the Health Authority, should comply with the principle of proportionality, should not exceed the time required to address the danger and that measure should be effective for for the purpose but least intrusive for the free movement of people and goods, freedom of enterprise, and any other rights affected.
As of April 7, 2020, 52,000 people had been arrested for not complying with the daytime restrictions on movement.
does not affect the principle of separation of powers or the structure of the State, but gives additional powers to the executive to limit four constitutional rights, mentioned in Article 137
which will complete the five-years term of Peru’s elected powers on July 28th, 2021— was installed on March 16th. After having a few meetings in presence of the MPs, it started to function virtually, both in its Plenary sessions and its committees. On May 28th, the new Congress debated and approved a vote of confidence asked by the cabinet of ministers. Certainly, this request was made late, outside the 30-day period established by the Constitution.