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 Swiss constituent deliberately did not foresee provisions for a state of emergency, since the Federal Constitution of 1999 of the Swiss Confederation (Constitution - see here) was conceived on the assumption of a peace order. However, legal doctrine admits the possibility of declaring a state of emergency (see Q2) - in circumstances under which the existence of Switzerland as a state or the physical survival of the population appear to be threatened, such as a war or a heavy natural disaster.
2. Do organic/constitutional or ordinary laws regulating the state of emergency exist in your country?
As indicated in Q1, the Swiss Constitution does not contain any provisions regulating the state of emergency. According to legal doctrine a qualified extraordinary situation arises when certain protected objects are under concrete and immediate threat (such as the life and independence of the nation or the survival of the people) by exceptional events (such as wars or natural disasters). In order to cope with such situations, legal doctrine advocates the application of an unwritten rule, according to which the powers of the legislative power (Federal Assembly or Parliament) are transferred to the executive power (Federal Council). In the history of Switzerland, this has happened only twice: During the First World War (more specifically, on 3 August 1914), the Federal Assembly transferred unlimited authority to the Federal Council (so called “Vollmachtenbeschluss”), thus enabling the executive to take all measures necessary for the safeguarding of security, integrity and neutrality of Switzerland, for the protection of the credit and economic interests of the country. Another such transfer of powers or authority happened on 30 August 1939, at the beginning of the Second World War.
3. Do organic or ordinary laws on health risks or other public emergency exist in your country?
With the Federal Act on Combating Contagious Diseases of Human Beings of 28 September 2012 (Epidemics Act - for relevant extracts in French click here), the Swiss Confederation has been equipped with a law that intends to protect the population from the outbreak and spread of contagious diseases (Article 2 of the Epidemics Act). Due to the restrictions on fundamental rights and the shift of certain powers from the cantonal to the federal level the Act brings along, it was intensely discussed in par-liament and in the public sphere. The facultative referendum was taken against the Act, how-ever, in the popular vote, the majority of the voters was in favour of the Act.
4. Was a state of emergency declared in your country due to the Covid-19 pandemic? By what authority and for how long?
Switzerland did not declare the state of emergency in the sense of a qualified extraordinary situation.
5. Was the declaration subject and submitted to parliamentary approval (if it was taken by the executive)?
The state of emergency has not been declared in Switzerland.
6. Was the declaration subject and submitted to judicial review? Was it found justiciable?
The state of emergency has not been declared in Switzerland.
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?
As far as extraordinary situations (as described above, see Q1) are concerned, the Constitution remains the basis for decisions taken by the Federal Council. In the case of a state emergency (which was not declared in Switzerland, see Q4) the Federal Council and Federal Assembly would – according to legal doctrine – be allowed to derogate from the Constitution. This would include the competence to severely restrict constitutional rights, even without a formal legal basis. Ius cogens provisions, humanitarian law, Art. 15 al. 2 of the ECHR would remain untouched. According to Swiss legal doctrine, the core content of fundamental rights can never be infringed upon. No derogation has been made under Article 15 of the ECHR or under any other international instrument. Since the state of emergency is not regulated by the Constitution or by law, there are also no explicit requirements on the limits of derogations and restrictions of human rights. Re-strictions on fundamental rights during an extraordinary situation under Article 185 al. 3 of the Constitution and under Article 7 of the Epidemics Act must be subject to the conditions of public interest, proportionality and the prohibition of violation of the intangible core of all fundamental rights (Articles 5 and 36 al. 2-4 of the Constitution).
8. Which human rights have been limited/derogated from in your country, in the context of the Covid-19 pandemic?
The ordinances of the Federal Council have massively and simultaneously infringed a large part of the fundamental rights provided for in the fundamental right’s catalogue of the Constitution (Article 7-34 of the Constitution). The freedoms restricted during the crisis are, in particular,
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?
In Switzerland, there was no declaration of state of emergency, however, the Executive (the Federal Council) enjoyed additional powers under the ordinary legislation on health risks: On the one hand, regarding the restriction on fundamental rights, and on the other hand, regar-ing the separation of powers between the Federation and the cantons.
10. Are the possibilities for the Executive to derogate from the normal division of powers in emergency circumstances limited in duration, circumstance and scope?
In a qualified extraordinary situation, all the powers of Parliament would be transferred to the Federal Council (the federal governemtn) (see Q2).
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 Sunday 15 March 2020, the Offices of both chambers of the Swiss Federal Assembly decided that the third week of the parliament’s spring session would not be taking place. This decision also included the suspension of all commission meetings as well as the final votes. Four days later the Offices of both chambers decided that commissions having to discuss urgent affairs were still allowed to meet. As from 6 April 2020, all parliamentary commissions were allowed to resume their work, however only via videoconference. From 4 May to 6 May 2020, the Federal Parliament held an extraordinary session (“Corona-session”). In order to comply with the rules on hygiene and personal distancing, the session was not held in the Federal Palace, but at an exposition hall in the Swiss capital, where also the summer session (2-19 June 2020) is about to be held.
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?
As previously stated (see Q2), Switzerland does not have any legislation on the state of emergency (in the sense of a qualified extraordinary situation). The question is therefore not applicable in the Swiss context. The legislation governing extraordinary situa-tions (as opposed to emergency situations) has not been amended.
13. Was legislation on the state of emergency or on the emergency amended or adopted to deal with the Covid-19 pandemic?
Not applicable (see Q2). Contrary to the situation during the Second World War, the Parliament has not adopted any "empowerment act". So, the Government is using the power to issue ordinance under either the Epidemics Act or Article 185 of the Constitution.
14. Was this additional legislation subject to judicial review?
Not applicable (see Q2)
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?
Not applicable (see Q2)
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.)
So far, no measure by the federal authorities related to the Covid-19 crisis has been invalidated by a court.
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?
At federal level, no parliamentary or presidential elections were scheduled to take place during the Covid-19 crisis. However, a popular vote was scheduled for 17 May 2020, regarding a popular initiative for a partial amendment of the constitution and the change of certain laws. The Federal Council has decided to postpone the popular vote to 27 September 2020.
18. Same questions as under 17), mutatis mutandis, as regards local elections and referendums.
As far as can be seen, most votes that were scheduled actually did take place. For example, on 5 April 2020, the electorate of the city of Geneva was supposed to elect the members of the municipal executive of the city of Geneva. The vote was not postponed; as the polling stations were closed, however, voting by mail (a standard in Switzerland for many years) was free of charge.
Switzerland
In such situations it is accepted that the authorities may derogate, except for a few exceptions (see Q7), from the Constitution. This qualified extraordinary situation results in the the powers of Parliament be transferred to the Federal Council.
The Swiss constituent has set out provisions for extraordinary situations that do not reach the threshold of the threat to existence (see Q9). In such cases, the executive may render ordinances directly based on the Constitution.
Under Article 185 al. 3 of the Swiss Constitution ("External and Inner Security"), the Federal Government "may base itself directly on the present article to issue ordinances and orders to obviate existing or imminent great disturbances of the public order, the external or the inner security. Such ordinances shall be limited in time." Article 184 al. 3 gives the Federal Government the power to issue ordinances in foreign policy matters, for "safeguarding the interests of the country".
The effects of an ordinance based on Article 185 al. 3 shall expire if the Federal Council, within six months of the entry into force of the ordinance, does not submit to the Federal Assembly a draft for the formula-tion of a legal basis (Article 7d of the Government and Administration Organisation Act)
Art. 165 of the Constitution provides for the possibility to adopt urgent legislation by Parliament, which requires the majority of each Chamber and put into force immediately. It must be limited in time.
2 If a referendum is demanded against an urgent Federal Statute, it shall lapse one year after its adoption by the Federal Parliament, unless it is approved by the People within that period. The right to a referendum is temporarily suspended, and this legislation should not necessarily have a constitutional basis.
The Act differentiates three stages of situations, activating a different set of measures:
- The so-called normal situation refers to the epidemiological day-to-day business, i.e. pre-vention, surveillance and control of, for example, tuberculosis, meningitis, HIV/AIDS, etc. The Cantons are responsible for the enforcement of the law (Article 75 of the Epi-demics Act), while the Confederation exercises high supervision and, where necessary, coordinates enforcement (Article 77 of the Epidemics Act);
- A special situation (also: epidemiological emergency) occurs either when the proper enforcement bodies are no longer able to hinder and fight the outbreak of contagious diseases (Article 6 al. 1 lit. a of the Epidemics Act) or when the WHO states that there is a public health emergency (Article 6 al. 1 lit. b of the Epidemics Act). In such cases, Article 6 of the Epidemics Act empowers the Federal Council to take measures that limit individual freedoms, to oblige doctors and other health professionals to cooperate in the fight against the disease and to impose compulsory vaccination for particularly vulnerable population groups. Before ordering immediate measures, the Federal Council must consult the cantons;
- The declaration of an extraordinary situation requires a threat for the inner and outer secu-rity of the country. Article 7 of the Epidemics Act authorises the Federal Council to take the necessary measures (see answer to question 10), which means, the Federal Council is also legitimized to take measures which derogate from the law.
The situation was considered “extraordinary” in the sense of Article 185 al. 3 of the Constitution and of Article 7 of the Epidemics Act.
The powers conferred on the Federal Council by the Constitution in the case of extraordinary situations (see Q10), in particular by Article 185 al. 3 of the Constitution, and Article 7 of the Epidemics Act were considered sufficient to cope with the pandemic.
The state of extraordinary situation was proclaimed by the Federal Council on March 16, 2020, under Article 7 of the Epidemics Act
As pointed out above (see answer to Q4), the Federal Council has defined the Covid-19 crisis an “extraordinary situation” under Article 185 al. 3 of the Constitution and under Article 7 of the Epidemics Act. The Federal Council was authorised by the Constitution and by law to take this decision without the involvement of Parliament.
Article 7d of the Government and Administration Organization Act of 21 March 1997 stipulates that emergency ordinances of the government must be ratified by Parliament after six months at the latest
The compliance of an ordinance based on Article 185 al. 3 of the Constitution or on Article 7 of the Epidemics Act with the Constitution and with international law, namely in the case of an extraordinary situation, may be submitted to judicial review, provided that an individual and concrete decision based on the ordinance is issued (see also answer Q16).
- the freedom of movement (Article 10 al. 2 of the Constitution), even though no exit ban was imposed,
- the freedom of assembly (Article 22 of the Constitution),
- the freedom of religion and conscience (Article 15 of the Constitution),
- the economic freedom (Article 27 of the Constitution).
For one month, the activities of the courts were reduced to a minimum functioning (see Q12), thereby limiting the general procedural guarantees (in particular Article 29 of the Constitution). Some social rights, such as the right to basic education (Article 19 of the Constitution), have been limited as well. However, teaching at compulsory schools was not interrupted, although students were not taught in the classrooms. Not least, political rights have also been restricted to some extent (see answer to Q17). The use of a so-called “Tracing-App” may have an effect on the right to privacy. Although this technology is still in a testing phase, the right to privacy and data protection (Article 13 of the Constitution) will become an issue.
Article 185 al. 3 of the Constitution and Article 7 of the Epidemics Act confer on the Federal Council the competence to issue ordinances that may, without a specific legal basis, severely infringe upon fundamental rights. These provisions authorise the Federal Council to act in lieu of the legislator. However, the Federal Council is not authorised to act against the Constitu-tion or “contra legem”. Article 7 of the Epidemics Act leaves more room for manoeuvre, since it also legitimises derogations from the law, provided they comply with the aims pursued by the Epidemics Act (see answer to question 3). In this regard, there are “no exceptional re-strictions” in the sense of an unconstitutional limitation or restriction on human rights, and no such criticism has been raised so far.
The emergence of the Covid-19 pandemic also challenged the Swiss model of federalism, as under the Epidemics Act, the powers of the Federal Council are extended in the event of a special or extraordinary situation. In the event of an extraordinary situation under the Epi-demics Act, the Confederation can standardise pandemic plans at both federal and cantonal level and oblige the cantons to apply the rules laid down at federal level uniformly, even in areas that fall within the competence of the Cantons.
In the event of an extraordinary situation under Article 185 al. 3 of the Constitution or under Article 7 of the Epidemics Act, the powers of the Federal Council are limited in duration, circumstance and scope:
- According to Article 185 al. 3 of the Constitution, the Federal Council may, in cases of urgency and without a specific legal basis, issue ordinances to protect the public order and the internal and external security of the country. The effects of an ordinance based on Article 185 al. 3 shall expire if the Federal Council, within six months of the entry into force of the ordinance, does not submit to the Federal Assembly a draft for the formula-tion of a legal basis (Article 7d of the Government and Administration Organisation Act);
- According to Article 7 of the Epidemics Act, the Federal Council may order, if an ex-traordinary situation so requires, the necessary measures for the entire country or for parts of it. The notion “necessary measures” includes not only interventions to address health risks, but also measures to reduce the effects of contagious diseases on society and the individuals concerned (Article 2 al. 2 lit. f of the Epidemics Act). The Federal Council decides, without involving Parliament, whether such extraordinary situation exists. The law does not regulate the duration of the effects of an ordinance based on Article 7 of the Epidemic Act. The Federal Council may, however, include an expiry date in its ordinances. Should this not be the case, according to legal doctrine, the obligation to set a time limit is deduced from the constitutional principle of proportionality.
Both chambers had to temporarily modify their rules of procedure, in order to adapt them to meetings outside the Federal Palace. Apart from that, no specific rules on the functioning of parliament were adopted.
For example, it adopted Ordinance 2 on Measures to Combat the Coronavirus (COVID-19) (Verordnung 2 über Massnahmen zur Bekämpfung des Coronavirus (COVID-19)) which regulates the lockdown.