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)?
The Constitution of the Republic of Serbia regulates the issue of the state of emergency in great detail. The article 200 of the Constitution provides that when "the survival of the state or its citizens is threatened by a public danger" the National Assembly proclaims the state of emergency for a period of 90 days maximum, extendable for another 90 days by the majority votes of the total number of deputies. The National Assembly may also take measures derogating from human and minority rights.
2. Do organic/constitutional or ordinary laws regulating the state of emergency exist in your country?
The Constitution of the Republic of Serbia regulates the issue of the state of emergency in great detail.
3. Do organic or ordinary laws on health risks or other public emergency exist in your country?
The Law on the protection of population from infectious diseases, which has been applied in the current situation of the COVID-19 pandemic - click here (in Serbian)
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 due to the COVID-19 crisis was declared on 15 March 202. As the National Assembly was not in a position to convene, the decision proclaiming the state of emergency was adopted by the President of the Republic together with the President of the National Assembly and the Prime Minister, as envisaged by the Constitution. The state of emergency had been declared in accordance with the joint opinion of senior medical professionals advising the state, the crisis response team and the Government itself. On 28 April the first session of the National Assembly was held. On 29 April the National Assembly confirmed the Decision on Declaring a State of Emergency, as well as all decrees with legal force that the Government of Serbia adopted with the co-signature of the President of Serbia and the Prime Minister, during the state of emergency.
5. Was the declaration subject and submitted to parliamentary approval (if it was taken by the executive)?
As soon as the first session of the Parliament was held, on 29 April the National Assembly of Serbia confirmed the Decision on Declaring a State of Emergency, as well as all decrees with legal force that the Government had adopted with the co-signature of the President of Serbia and the Prime Minister, during the state of emergency.
6. Was the declaration subject and submitted to judicial review? Was it found justiciable?
On 21 May 2020 the Constitutional Court refused to start the examination of the constitutionality and legality of the declaration of the State of Emergency. The Constitutional Court found that the outbreak of COVID-19 and danger of its uncontrolled spread on the territory of Serbia significantly endangered the health of the general population, and thus calls into question the normal course of life in the country, including the functioning of its institutions, public services, the economy and especially the health system. The Court concluded that the COVID-19 could be considered as "public danger that threatens the survival of the state or its citizens" in the sense of the paragraph 1 of the Article 200 of the Constitution.
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?
Article 200 of the Constitution explicitly envisages measures derogating from human and minority rights guaranteed by the Constitution may be taken during the state of emergency either by the the National Assembly, or, where it is not in a position to convene, by the Government, in a decree, with the President of the Republic as a co-signatory - for a maximum period of 90 days (with the possibility of extension).
8. Which human rights have been limited/derogated from in your country, in the context of the Covid-19 pandemic?
The measures implemented through the Govwernmental decrees affected freedom of movement(Article 39 of the Constitution provides for limiting this right for the goal of "prevention of spreading contagious diseases or defense of the Republic of Serbia"), freedom of assembly (Article 54 of the Constitution, which allows to restrict this right "if necessary to protect public health").
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 the state of emergency conferred on the executive powers to adopt decrees having the force of law - which were submitted to the National Assembly for approval (and approved) as soon as it was able to convene, as required by Article 200 of the Constitution
10. Are the possibilities for the Executive to derogate from the normal division of powers in emergency circumstances limited in duration, circumstance and scope?
Under Article 200 of the Constitution, "measures providing for derogation from human and minority rights prescribed by the National Assembly or Government shall be effective 90 days at the most, and upon expiry of that period may be extended under the same terms."
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 sessions of the Parliament were suspended from 15 March until 27 April 2020. According to Article 244 of the Rules of procedure of the National Assembly in the case of a state of war or a state of emergency the Speaker of the National Assembly notifies the President of the Republic and the Prime Minister that the National Assembly is not able to convene.
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 sessions of the Constitutional Court were suspended during the state of emergency, but otherwise the Court's registry continued to operate normally. On 22 March the Constitutional Court published in its website the Instructions on the work of the Office of the Constitutional Court for the direct receipt of submissions during a state of emergency.
13. Was legislation on the state of emergency or on the emergency amended or adopted to deal with the Covid-19 pandemic?
As such, the legislation on the state of emergency or on the emergency was not amended, but the National Assembly introduced changes to the Law on the protection of population from infectious diseases.
14. Was this additional legislation subject to judicial review?
Several decrees adopted during the state of emergency by the Government were challenged before the Constitutional Court; these cases are still pending, and no emergency measure was invalidated
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, the state of emergency was not prolonged beyond the 90-days' period
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.)
The state of emergency did not affect the existing legal remedies.
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?
Electoral rights are in principle derogable under the Constitution (cf. Article 52 and Article 202 p. 4). However, the Constitution specifies that national deputies and municipal councilors are elected every four years (Articles 102 (1) and 180 (3)).
18. Same questions as under 17), mutatis mutandis, as regards local elections and referendums.
See Q17
Serbia
The declaration of the stae of emergency made by the President is to be confirmed by the National Assembly within 48 hours, as soon as it is in a position to convene. Without such confirmation the declaration cease to be effective upon the end of the first session of the National Assembly held after the proclamation of the state of emergency.
During the state of emergency, the National Assembly shall convene without any special call for assembly and it may not be dissolved. If the National Assembly cannot be convened, the state of emergency is declared by the President of the Republic together with the President of the National Assembly and the Prime Minister, and the the Government may take "measures derogating from human and minority rights", by a decree, countersigned by the President of the Republic. These decrees are to be submitted for approval to the Assembly; once it is convened, these measures should be either confirmed or they cease to be effective 24 hours prior to the beginning of the first session of the National Assembly held after the proclamation of the state of emergency.
In addition, the Law on Defense in Article 4 point 6 defines the state of emergency, which may comes as a consequence of military or non-military D60 threats to security. Under Articles 87 and 88 the National Assembly declares the state of war or state of emergency based on the joint proposal of the President and Prime Minister, who in turn act on adive of the Defense Minister.
In addition, there is the Law on Disaster Risk Reduction and Emergency Management from 2018 - click here (in Serbian)
On 6 May 2020, the Serbian National Assembly adopted a decision to end the state of emergency which was declared on 15 March 2020. In addition, the National Assembly also adopted the Law on the Validity of Decrees Adopted by the Government with the Co-Signature of the President of the Republic during the State of Emergency and Confirmed by the National Assembly (“the Official Gazette of the RS” No- 65/2020 – “Law”). The law abolished eleven decrees that were in force during the state of emergency.
Article 202 of the Constitution (“Derogation from human and minority rights in the state of emergency and war”) established that “upon proclamation of the state of emergency or war, derogations from human and minority rights guaranteed by the Constitution shall be permitted only to the extent deemed necessary."
Measures providing for derogation shall not bring about differences based on race, sex, language, religion, national affiliation or social origin.
Measures providing for derogation from human and minority rights shall cease to be effective upon ending of the state of emergency or war.
Measures providing for derogation "shall by no means be permitted in terms of the rights guaranteed pursuant to Articles 23, 24, 25, 26, 28, 32, 34, 37, 38, 43, 45, 47, 49, 62, 63, 64 and 78 of the Constitution" (i.e. with respect to such rights as dignity and free development of individuals; right to life; inviolability of physical and mental integrity; prohibition of slavery, servitude and forced labour; minimal rules on the treatment of persons deprived of liberty; right to a fair trial; legal certainty in criminal law, etc).
In addition, on 15 March 2020 the Minister of Health enacted the Order banning assembly in the Republic of Serbia in public places and indoors with the aim to prevent the spread of the COVID-19 which prohibited the gatherings of over 50 people (while the National Assembly consists of 250 deputies).
Regarding the work of the ordinary courts, on March 17 the Ministry of Justice issued Recommendations on the work of courts and public prosecutor’s offices during the state of emergency. As to civil cases, a recommendation was given to postpone the hearings, save for certain urgent categories of cases. Regarding these exceptions, the court will grant the party’s request to postpone the hearing for sanitary reasong, for example if one of the participant of the trial is over 60 years old. The hearings in criminal cases re detention, domestic violence, breach of the health regulations during epidemics , cases involving minors, etc., are to be held.
The court’s and public prosecutor office’s staff was recommended to work from home, if possible.
Acting on the Ministry of Justice Recommendations, the High Judicial Council adopted a prioroty policy guidlines. Also, on 20 March 2020, the Government issued a decree on deadlines in court proceedings during the state of emergency.
At the same time with the termination of the state of emergency, the National Assembly adopted the Law on the Validity of Decrees Adopted by the Government with the Co-Signature of the President of the Republic during the State of Emergency and Confirmed by the National Assembly (“the Official Gazette of the RS” No- 65/2020 – “Law”).
Several Decrees, Orders and Decisions were adopted by the Government with the Co-Signature of the President of the Republic during the State of Emergency and then confirmed by the National Assembly.
In addition, on 20 March 2020, the Government issed a Decree on deadlines in court proceedings during the state of emergency, which extended the deadlines for filing of claims in civil proceedings, filing a private lawsuit in criminal proceedings, etc. For the case-law of the Constitutional Court on the COVID-19-related measures see here.
The parliamentary and local elections were supposed to be held in April but were postponed to 21 June 2020 due to the pandemic. There was no need to amend the electoral legislation. The constitutional basis for postponement of the elections was the proclamation of the state of emergency. Decree on special measures during the state of emergency from 15 March adopted by the Government with the co-signature of the President of the Republic and confirmed by the National Assembly in the article 5 prescribed that "all election activities in the conduct of elections for deputies, deputies of the Assembly of the Autonomous Province of Vojvodina and councilors of assemblies of municipalities and cities, which are scheduled for April 26, 2020, will be interrupted. The competent election commissions are instructed to provide and keep the existing election documentation until the continuation of the conduct of election activities and elections. The conduct of election activities will continue from the day of the cessation of the state of emergency.”
On 16 March the Republic Electoral Commission (RIK) adopted a decision to terminate all electoral activities. The Decision states that new deadlines will be determined from the day of the end of the state of emergency, and that all electoral activities undertaken so far remain in force.