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)?
There are no specific provisions in the Constitution of the Slovak Republic regarding emergency situations. Art. 51 par. 2 of the Constitution , introduced by way of constitutional law no. 90/2001, which amended the Constitution, gives the National Council of the Slovak Republic (the Slovak unicameral parliament) a mandate to pass a constitutional law regulating the conditions for and scope of restrictions to fundamental rights and the scope of duties which may be imposed during war, a state of war, a state of alarm and a state of emergency. Constitutional laws are a type of law under the Slovak legal system with the same normative rank as the Constitution itself (in fact, the Constitution is a type of constitutional law). They may amend the Constitution or contain separate regulation on matters of the greatest importance. The Constitution even explicitly requires certain matters to be regulated in a constitutional law instead of an ordinary law. They are passed by the parliament only and a three-fifths majority of all its members is required.
2. Do organic/constitutional or ordinary laws regulating the state of emergency exist in your country?
Organic laws do not exist in the Slovak legal system. Constitutional laws (see Q1) have the same legal force as the constitution itself. The state of emergency is regulated in Art. 5 of Constitutional Law no. 227/2002 on the national security during war, state of war, state of alarm and state of emergency, which reads:
3. Do organic or ordinary laws on health risks or other public emergency exist in your country?
There are two ordinary laws which contain further regulation on health risks and other public emergencies.
4. Was a state of emergency declared in your country due to the Covid-19 pandemic? By what authority and for how long?
The Government has the exclusive power to declare state of emergency (Art. 5 of Constitutional Law no. 227/2002). The first declaration of state of emergency was made by Resolution no. 114 of 15 March 2020. It concerned the most affected districts and imposed certain professional duties on health care professionals. Resolution no. 115 of 18 March 2020 expanded the state of emergency to the entire Slovakia. Resolution no. 169 of 27 March 2020 expanded the state of emergency and imposed certain professional duties on social services professionals. Resolution no. 207 of 6 April 2020 expanded the state of emergency and imposed a curfew from 8 April 2020 to 13 April 2020 (the Easter holidays), with certain exceptions akin to those applicable in other countries (commute to work or school, grocery and other necessary shopping, walks in nature within the same district, etc.). Resolution no. 233 of 16 April 2020 expanded the state of emergency and imposed certain professional duties on further groups of health care professionals. Resolution no. 366 of 10 June 2020 ended the state of emergency as of 13 June 2020.
5. Was the declaration subject and submitted to parliamentary approval (if it was taken by the executive)?
No, the declaration of state of emergency is in the hands of the Government solely.
6. Was the declaration subject and submitted to judicial review? Was it found justiciable?
The Constitutional Court has the explicit power to review the constitutionality of any resolution of the Government declaring or amending state of emergency and of any other decisions based on those resolutions (Art. 129 par. 6 of the Constitution), i.e. there is a separate procedure for that. The motion may be filed by one fifth of members of parliament, the President of the Republic or the Prosecutor General (§ 189 of the Law on the Constitutional Court). However, no such motions have been filed during the first state of emergency. Two motions were filed on 5 October 2020, contesting the newly declared state of emergency. The cases are pending.
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?
There are two regimes for restricting fundamental rights during a pandemic – the ordinary constitutional regime, which is defined in the general limitation clause found in Art. 13 of the Constitution and in the specific limitation clauses for specific fundamental rights, and the extraordinary regime during a state of emergency, as it is defined in Art. 5 of Constitutional Law no. 227/2002.
8. Which human rights have been limited/derogated from in your country, in the context of the Covid-19 pandemic?
There was a restriction on the freedom of movement when the curfew was ordered during the Easter holidays in 2020. The main objective was to enforce social distancing, since it is a tradition in Slovakia that family members visit each other during those holidays. This restriction was based on the state of emergency (Art. 5 par. 3 letter g)).
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?
A declaration of state of emergency was made. The Executive (mainly the Public Health Authority), did take a number of additional measures under the ordinary legislation on health risks (see Q3), which did not fall under the special regime of state of emergency. The parliament also restricted certain fundamental rights by passing ordinary legislation (see Q13 and Q14 for more details).
10. Are the possibilities for the Executive to derogate from the normal division of powers in emergency circumstances limited in duration, circumstance and scope?
A state of emergency may only be declared to the necessary extent, for the necessary time and for no longer than 90 days. A state of emergency may only be declared in the affected or imminently threatened area. If a state of emergency is declared, fundamental rights and freedoms may be restricted and duties imposed only to the necessary extent and for the necessary time in relation to the severity of the threat and only in the affected or imminently threatened area.
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 not suspended. The parliament adopted certain sanitary safety measures such as the obligation for the MPs to wear facemasks and apply disinfectant gel upon entering the premises. The measures were adopted in March and are still in force.
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 not suspended. The Head of the Chancellery of the Court decided that most employees would work from home from 16 March 2020 to 10 May 2020, roughly corresponding to the first wave of the pandemic in Slovakia.
13. Was legislation on the state of emergency or on the emergency amended or adopted to deal with the Covid-19 pandemic?
Constitutional Law no. 227/2002, which regulates the state of emergency, was not amended during the pandemic. However, most measures taken during the pandemic were not directly based on the state of emergency, the state of emergency largely applied to health care professionals. The only notable exception is the curfew imposed during the Easter holidays.
14. Was this additional legislation subject to judicial review?
The provisions introduced by Law no. 62/2020 (see Q13) were contested before the Constitutional Court. The Court suspended them in its ruling of 13 May 2020 (ref. no. PL. ÚS 13/2020).
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 declared in March 2020 was not prolonged. A new one was declared on 30 September 2020, after the pandemic situation got worse. As stated above, any prolongation, expansion or declaration of the state of emergency may be subject to judicial review by the Constitutional Court.
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.)
Any prolongation, expansion or declaration of the state of emergency may be subject to judicial review by the Constitutional Court, as well as any decision based on the state of emergency, pursuant to Art. 129 par. 6 of the Constitution.
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 scheduled during the Covid-19 emergency. The next elections will be local and regional and will take place in 2022.
18. Same questions as under 17), mutatis mutandis, as regards local elections and referendums.
No elections were scheduled during the Covid-19 emergency. The next elections will be local and regional and will take place in 2022.
Slovakia
So, the state of emergency is regulated by Constitutional Law no. 227/2002 on the national security during war, state of war, state of alarm and state of emergency, which is described in Q2. It establishes three legal regimes (state of emergency, state of alarm and state of war).
In addition, there are special regimes provided by ordinary legislation on health risks (see Q3).
Article 5 - State of emergency
(1) The Government may declare a state of emergency only if there is a threat or imminent danger of threat to life and health of people due to a pandemic, to the environment, or considerable threat to property as a result of a natural disaster, industrial or other operational accident, or a traffic accident; a state of emergency may only be declared in the affected or imminently threatened area.
(2) A state of emergency may only be declared to the necessary extent, for the necessary time and for no longer than 90 days.
(3) If a state of emergency is declared, fundamental rights and freedoms may be restricted and duties imposed to the necessary extent and for the necessary time in relation to the severity of the threat and in the affected or imminently threatened area, at most to this extent:
a) restricting the inviolability of the person and their privacy by evacuating them to a designated area,
b) imposing work obligations to ensure provisioning, maintenance of roads and railways, the implementation of transport, the operation of water supply and sewerage, the production and distribution of electricity, gas and heat, the performance of health care, the maintenance of public order or the elimination of incurred damage,
c) restricting ownership rights to real estate property for the purposes of deploying members of the armed and police forces, medical facilities, provisioning facilities, rescue and release services and other technical facilities,
d) restricting ownership rights to movable property by prohibiting the entry of motor vehicles or restricting their use for private and business purposes,
e) restricting the inviolability of residence for the purposes of accommodating evacuated people,
f) restricting the delivery of mail,
g) restricting the freedom of movement and residence by imposing a curfew for the specified time and denying access to the affected or imminently threatened areas,
h) restricting or prohibiting the exercise of the freedom of assembly or subjecting the assembly in public to permission,
i) restricting the freedom to distribute information regardless of state borders and the freedom of speech in public,
j) ensuring the assignment of television and radio broadcast time for the purposes of notifying and informing the public,
k) prohibiting the exercise of the right to strike,
l) implementing measures to address crude oil shortages.
(4) If a state of emergency is declared, the President of the Republic may, on the proposal of the Government,
a) order the performance of extraordinary service by professional soldiers, reserve soldiers called up for regular training or for carrying out armed service activity, and volunteer soldiers in military training,
b) call reserve soldiers into extraordinary service.
The constitutional law also regulates the state of alarm (Art. 4), which may be declared by the President of the Republic and is primarily aimed at addressing riots, large-scale street crime, terrorist attacks if threatening public order and the life of nation, and the state of war (Art. 3), which is declared by the President of the Republic on the proposal by the Government if a declaration of war or invasion of the Slovak Republic by foreign armed forces is imminent. The state of emergency is, on the other hand, primarily aimed at addressing natural and other non-violent disasters, including pandemics.
Law no. 42/1994 on the Civil Protection of Population authorises the Government to declare an extraordinary situation if there is a threat to life, health or property due to natural disasters, accidents, public health emergencies or terrorist attacks. This declaration confers certain extraordinary powers on public authorities and imposes various duties on citizens for preventing or managing the consequences of the crisis (§§ 2, 3, 8). The measures taken may include rescue operations, evacuation, emergency provisioning and emergency housing. The law has a subsidiary role in relation to the declaration of state of emergency and it is not applied if a state of emergency has been declared (§ 3b). The extraordinary situation was declared on 11 March 2020, i.e. only a few days before the state of emergency, but continued after the first state of emergency ended.
Law no. 355/2007 on Protecting, Supporting and Developing Public Health Care (hereinafter “Law on Public Health Care”) confers certain powers on the Public Health Authority of the Slovak Republic. The Public Health Authority may take measures aimed at disease prevention and at addressing public health crises (§ 5 par. 4 letter k)). The measures pursuant to § 48 par. 4 may include:
• prohibit the production, treatment, storage, transport, import, sale and other handling of products and animals which may cause the spread of a disease within the population, or an order for their non-hazardous elimination;
• impose a prohibition or restriction on the contact of some groups of persons with the rest of the population following the detection of serious health reasons;
• impose a prohibition or restriction on collective events;
• impose a prohibition or restriction on the operation of facilities where the assemblage of persons takes place;
• impose a prohibition on the use of water, foodstuffs and meals, items suspected of contamination and animal feeds and regulation of the consumption of certain kinds of foodstuffs and water;
• issue an order for the reservation of beds for the provision of hospital treatment of an increased number of sick persons and, in the case of serious infections, for ensuring the isolation of persons suspected of harbouring a disease or suspected of contamination throughout the maximum incubation period of the disease;
• issue an order for the special handling of deceased persons, the reservation of sites and determination of the method of interment of an increased number of deceased persons.
As a reaction to the worsening of the pandemic situation at the beginning of autumn, Resolution no. 587 of 30 September 2020 again declared a state of emergency for 45 days beginning from 1 October 2020.
For the text in the Slovak language see here.
Pursuant to Art. 12 par. 1 of the Constitution, fundamental rights and freedoms are inalienable, untransferable, imprescriptible and indefeasible. However, they may be restricted by a law and strictly within the boundaries set up by the Constitution (Art. 13 par. 2 of the Constitution). When restricting fundamental rights and freedoms, attention must be paid to their essence and purpose. These restrictions must serve a legitimate purpose (Art. 13 par. 4 of the Constitution). This is the basic limitation clause in relation to constitutional rights.
It follows from Art. 5 of Constitutional Law no. 227/2002 that a state of emergency may only be declared to the necessary extent, for the necessary time and for no longer than 90 days. A state of emergency may only be declared in the affected or imminently threatened area. If a state of emergency is declared, fundamental rights and freedoms may be restricted and duties imposed only to the necessary extent and for the necessary time in relation to the severity of the threat and only in the affected or imminently threatened area.
The state of emergency allows for more severe restrictions of fundamental rights, as they are explicitly listed in Art. 5 par. 3 of Constitutional Law no. 227/2002. Any restrictions not listed therein must follow the ordinary constitutional regime (this was also the case of the restrictions to the right to privacy and personal data protection described in question no. 14).
No derogation under Article 15 ECHR or under any other international instrument was made.
There was a restriction on the right to privacy and protection of personal data (identification and location phone data), which is describe in detail in Q14. This was not directly based on the state of emergency but on regular legislation passed at the time, although it was limited in time to the state of emergency or extraordinary situation.
The Public Health Authority has been issuing and updating various measures restricting various fundamental rights. These measures interfered mainly with the freedom of movement (obligatory quarantine in a state-owned facility for people returning from abroad, obligatory home quarantine for people returning from abroad with the duty to use mobile phone app for tracking movement), freedom of enterprise (closing or limiting opening hours of various businesses, imposing safety and hygiene measures, prohibition of mass events), freedom of religion (prohibition of masses and religious ceremonies).
Law no. 62/2020 of 25 March 2020 suspended certain procedural time limits (§§ 1, 2) and obliged the ordinary courts to conduct public hearings during the state of emergency or extraordinary situation only if necessary (§3 par. 1 letter a)). It allowed the courts to exclude the public form a hearing for the purposes of protecting public health and instead make a recording of the hearing (§3 par. 1 letter b) and par. 2).
There were several amendments to the Law on Public Health Care. The most important amendment was carried out by Law no. 119/2020 of 15 May 2020, which introduced for people who had been imposed a home quarantine the obligation to use a mobile phone app for tracking their movement and thus verifying whether they adhere to the quarantine. Law no. 351/2011 was also amended several times.
Law no. 62/2020 of 25 March 2020 introduced the obligation for mobile phone service providers to collect and process identification and location data of effectively their every client and allowed the Public Health Authority subsequent access to those data. This was contested before the Constitutional Court and subsequently suspended (see tQ14). Law no. 119/2020 amended the suspended provisions introduced by the suspended Law no. 62/2020 and implemented some of the objections made by the Constitutional Court in that case. The amendment was passed and took effect before the Court’s decision on suspension was published and thus the Court stayed its proceedings. This new law was not contested before the Court - see Q14.
For the text in Slovak see here.
The contested legislation amended the Law on Electronic Communications (“LEC”), allowing the Public Health Authority (“PHA”) to gather and use certain personal data for the purposes of Covid-19 tracking.
The amended provisions first obliged telecom providers to retain certain telecom identification and location data of effectively everyone for the duration of an extraordinary situation or state of emergency declared in the healthcare system due to the occurrence of a pandemic or the spread of dangerous infectious human disease.
The amended provisions specified three reasons for this retention obligation, namely (1) processing in anonymised form for statistical purposes, (2) identification of people who need to be notified by message of special measures adopted by the PHA, and (3) identification of users for the purposes of life and health. The first reason was not contested as the processing was to be carried out in an anonymised form and thus did not violate anyone’s right to privacy.
Subsequently the data were to be provided to the PHA on the basis of a reasoned written request and the latter was allowed to process and retain the obtained data for the duration of the extraordinary situation or state of emergency in healthcare, but no longer than until 31 December 2020.
The Court noted at the outset that the contested provisions oblige telecom providers to conduct blanket data collection about everyone who has mobile phone services registered with them. Only their subsequent provision to the PHA may be considered differentiated according to some criteria specified in the law. Thus, the blanket collection and subsequent provision of identification and location phone data interfere with the right to privacy and personal data protection. Such interference may be justified by public interest consisting in the need to protect life and health of others during a pandemic. However, any such restriction to fundamental rights must be sufficiently clear, proportionate to the circumstances and strong guarantees against misuse of the data must be present.
Since the Court’s task at this stage of proceedings was to decide on admissibility and the petitioners’ request to suspend the contested provisions, it limited the scope of its review to only those aspects which might cause irreparable harm. Thus, the Court refrained for the time being from conducting a full-scale proportionality test and rather focused on the evaluation of legal guarantees against data misuse and the general clarity and unambiguity of the contested provisions. Even if the latter later turned out to be unconstitutional, sufficient legal guarantees and clarity would prevent unwanted misuse of the data and thus any immediate harm.
The Court received statements by the Ministry of Justice, the PHA and other stakeholders from which it followed that public authorities envisaged three different solutions: (A) tracking by means of a phone interview with the use of the interviewed person’s phone movement map, subject to that person’s consent; (B) launch of an application with an informational and self-monitoring function; (C) PHA requesting identification and partial location data of persons who recently returned from high-risk countries.
The Court recalled its previous case-law and the case-law of the CJEU, according to which blanket identification and location data collection constitutes an especially serious interference with the relevant rights and therefore the strictest criteria must be applied in assessing the law’s clarity and the legal guarantees. It concluded that the formulation “identification of users for the purposes of life and health” was overly vague and its application unpredictable and for that reason unacceptable in a democratic society. It therefore suspended the said provision together with the provisions allowing the PHA’s access to that data, since the legislation failed to provide sufficient legal guarantees. The required guarantees include subsidiarity of the use of the obtained data, clear definition of the purpose for which the data are to be used, quality supervision by a court or other independent authority, ensuring data protection and security, the obligation to erase the data after a certain time and informing the persons concerned.
The Court did not find unconstitutionality in the provision obliging telecom providers to collect data necessary to identify people who need to be notified by message of special measures adopted by the PHA. It did, however, suspend those provisions which allowed the PHA to have access to those data upon request, as such notification could be carried out by the telecom providers themselves and thus there was no need to give the PHA access to them. The Court also pointed out the absence of the same legal guarantees as mentioned above.
For more details see here.
The new declaration of state of emergency was challenged before the Court on 5 October 2010 by both deputy Prosecutor General and group of MPs in two separate petitions. The case is pending.
Administrative decisions taken by public authorities are susceptible to judicial review by administrative courts in administrative complaint proceedings. Numerous constitutional complaints have been filed against the obligatory quarantine in a state-owned facility imposed for people returning from abroad in a measure issued by the Public Health Authority on 17 April 2020. The Constitutional Court has so far dismissed 19 of them for non-exhaustion of legal remedies, stating that those measures were susceptible to judicial review by administrative courts and that the complainants should seek redress of their rights first in administrative complaint proceedings. The written versions of the decisions are not yet ready.
Some of the legislation adopted during the state of emergency has been successfully challenged before the Constitutional Court - see Q14. For the case-law of the Constitutional Court on the COVID-19-related measures see here.