Venice Commission - Observatory on emergency situations

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

San Marino

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 Constitution of San Marino is enshrined in the Declaration on the Citizens’ Rights and Fundamental Principles of San Marino Constitutional Order (hereafter the Declaration), firstly adopted with Law n. 59 of 8th July 1974 and further amended by subsequent legislative acts. The Declaration in and for itself does not foresee specific provisions concerning public emergency or other situations that threaten the life of the nation. There exists, however, a provision attributing emergency powers to the Captains Regent (“Capitani
Reggenti”), who jointly hold the Office of Head of State (Article 3, paragraph 1, of the Declaration). In fact, Article 3 paragraph 3, of the Declaration provides that “[i]n case of urgency and after having heard the opinion of the Congress of State [the executive body], [the Captains Regent] may issue Regency Decrees which, under penalty of nullity, shall be ratified by the Great and General Council within three months.”

The possibility to restrict the exercise of certain human rights is also envisaged under the Declaration, although such restrictions do not specifically concern emergency situations. Under Article 6 paragraph 1, the Declaration provides that “[e]verybody shall enjoy civil and political freedoms in the Republic. [...]. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary for the protection of public order and general welfare”.

The power of the Executive (the Congress of State) to issue emergency regulations is regulated by Constitutional Law n. 183/2005 and Qualified Law n. 184/2005.

2. Do organic/constitutional or ordinary laws regulating the state of emergency exist in your country?

The state of emergency is not specifically regulated under national law. However, according to Article 2, paragraph 2, letter b) of Constitutional Law n. 183/2005 on the Congress of
State (“Congresso di Stato”), in situations of emergency, the Congress of State is entitled to adopt decrees
with force of law, which, under penalty of nullity, must be ratified by the Great and General Council
(“Consiglio Grande e Generale” - the parliament) within three months from their adoption. Such emergency
decrees are presented to the Captains Regent, who are responsible of their promulgation as “Law-Decrees”.
They shall indicate in the preamble the reasons of necessity and urgency that justified their adoption as well
as the deliberations of the Congress of State through which the respective Law-Decrees have been adopted
(see Article 12, Qualified Law n. 184/2005).

3. Do organic or ordinary laws on health risks or other public emergency exist in your country?

Under organic or ordinary law, no specific provisions exist on health risks or other public emergency besides
those specifically adopted to tackle the COVID-19 pandemic.

4. Was a state of emergency declared in your country due to the Covid-19 pandemic? By what authority and for how long?

Article 1, paragraph 1, of Law-Decree 28 February 2020 n. 35 entrusted the Secretary of State for Health and
Social Security with the power to convening the Congress of State with the view to declaring the state of
emergency, following consultations with the Group of Coordination of Health Emergencies (established
pursuant to Article 2 of the same Law-Decree). Article 1, paragraph 2, of Law-Decree n. 35 further allows the
Secretary of State for Health and Social Security to declare the state of emergency with no prior convocation
of the Congress of State if such a convocation is not possible due to the situation of emergency. However,
the ordinance declaring the state of emergency so adopted, must be presented to the Congress of State at
its first possible meeting. Article 1, paragraph 4, of Law-Decree 28 February 2020 n. 35 also provides that the
validity of the ordinance declaring the state of emergency may be extended if the reasons which justified its
adoption still exist.

Accordingly, in San Marino, the state of emergency was declared on the 22nd of February 2020 by the
Secretary of State for Health and Social Security with Ordinance n. 1/2020, issued following the Congress of
State’s approval through Deliberation 22 February 2020 n. 1. In accordance with Article 1, paragraph 3, of
Law-Decree 28 February 2020 n. 35, Ordinance n. 1/2020 provides that its provisions shall be valid for 90
days from its date of issuance (Article 4, Ordinance n. 1/2020).
On the 23rd of February 2020, according to Article 1, paragraph 4, of Law-Decree 28 February 2020 n. 35, and
following the approval of the Congress of State (Congress of State Deliberation n. 1 of the 23rd of February
2020), the Secretary of State for Health and Social Security issued a second ordinance adopting additional
measures to contain the spread of the COVID-19 epidemic (Ordinance n. 2/2020). The ordinance established
that its provisions were valid from its date of issuance until the 1st March 2020 (as per Article 3). Further
measures were adopted by the Secretary of State for Health and Social Security on the 1st of March 2020 with
Ordinance n. 3/2020, which abrogated Ordinance n. 1/2020 and provided that the newly adopted provisions
should be valid from its date of issuance until the 8th of March 2020.

5. Was the declaration subject and submitted to parliamentary approval (if it was taken by the executive)?

Ordinance n. 1/2020 through which the State Secretary for Health and Social Security declared the state of emergency, and the following Ordinances (Ordinance n. 2 and 3/2020), were not per se submitted to the approval of the Great and General Council.
However, Decree-Law 28 February 2020 n. 35, which attributed the power to declare the state of emergency to the Secretary of State for Health and Social Security, was adopted by the Congress of State as an urgency decree in accordance with Article 2, paragraph 2, letter b) of Constitutional Law n.183/2005. Accordingly, it was then submitted to the Great and General Council for its approval as per Article 9, paragraph 5 of Qualified Law n. 186/2005 and Article 3, paragraph 2, letter b) of Qualified Law n. 2/2010. The Great and General Council ratified Law-Decree n. 35 during its meeting on the 27th of April 2020.

6. Was the declaration subject and submitted to judicial review? Was it found justiciable?

The ordinance declaring the state of emergency was not 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?

Under San Marino’s legal framework, the only provision that explicitly provides for restrictions to the exercise of certain human rights is Article 6, paragraph 1, of San Marino Constitution (the Declaration), stating that “[e]verybody shall enjoy civil and political freedoms in the Republic. In particular, personal freedoms, freedom of residence, establishment and expatriation, freedom of assembly and association, freedom of
thought, conscience and religion shall be guaranteed. The privacy of any form of communication shall be protected. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary for the protection of public order and general welfare.” Therefore, such human rights restrictions rest on the principle of legality, necessity and proportionality.

In addition, according to Article 1, paragraph 4, of the Declaration San Marino’s “constitutional order recognises, guarantees and enforces the rights and fundamental freedoms set forth by the European Convention for the Protection of Human Rights and Fundamental Freedoms”, which – like other treaties on the protection of human rights and freedoms – after ratification and implementation has acquired the constitutional status. Consequently, San Marino conforms to the provisions on human rights’ derogations enshrined under Article 4 of the International Covenant on Civil and Political Rights (ICCPR) and Article 15 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).

Accordingly, derogations to human rights are possible in emergency situations to the extent they are strictly required by the exigency of the situation and to the extent that derogating measures are not inconsistent with other obligations binding on San Marino under international law. In addition, derogations should not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. Pursuant to Article 4, paragraph 2, of the ICCPR and Article 15, paragraph 2, of the ECHR, in exercising its derogation prerogatives San Marino conforms to the prohibition to derogate to the right to life, the right to be free from torture or cruel, inhuman or degrading treatments or punishments, the right to be free from slavery or servitude, the right not to be imprisoned merely for the inability to fulfil a contractual obligation, the right not to be punished without law, the right to be recognised as a person before the law and the right to freedom of thought, conscience and religion.

In accordance with the principle of necessity, Ordinance n. 1/2020 of the Secretary of State for Health and Social Security, as well as subsequent Ordinances, recalled in its preamble the reasons of urgency that justified the derogating measures adopted thereby. Ordinance n. 1/2020, in its preamble, also affirmed its conformity with the principle of proportionality and precaution. Subsequent Law-Decrees adopted by the
Congress of State and providing for "Urgent measures to reduce the spread of COVID- 19 (Coronavirus)" also
mentioned in the preamble the reasons of urgency that justified their adoption.