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 Swedish constitution consists of four fundamental laws with the central provisions in Regeringsformen (the Instrument of Government) from 1974. Situations of war and danger of war, and also if exceptional conditions prevail as result from war or the danger of war to which the Realm has been exposed are dealt with in Chapter 15.
2. Do organic/constitutional or ordinary laws regulating the state of emergency exist in your country?
Other states of emergency (besides war) are governed by ordinary laws, but only within the framework of the provisions in Chapter 15 of the Constitution (Instrument of Government). The Constitution does not provide for the possibility to declare a state of emergency due to civil crises in peacetime. Nor does it provide a framework for a general emergency act in ordinary legislation. See also Q1.
3. Do organic or ordinary laws on health risks or other public emergency exist in your country?
There are specific provisions in certain ordinary laws applicable in certain civil crises, such as pandemics, disasters, major forest fires and if a need for rationing arises, giving the government a mandate to issue ordinances covering matters that otherwise would need to be provided for by Parliament in a law and to decide to provide public authorities with specific extraordinary competences.
4. Was a state of emergency declared in your country due to the Covid-19 pandemic? By what authority and for how long?
No, the Constitution does not provide for the possibility to declare a state of emergency due to crises in peacetime. See Q1.
5. Was the declaration subject and submitted to parliamentary approval (if it was taken by the executive)?
Not applicable - the constitution does not provide for any state of emergency except in a situation of war
6. Was the declaration subject and submitted to judicial review? Was it found justiciable?
Not applicable - the constitution does not provide for any state of emergency except in a situation of war
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?
The Constitution does not provide for derogations to human rights in war time (Chapter 15 Art. 7) nor in other emergency situations. However (see Q1), where the Parliament or the War Delegation (a small war-time Parliament) are blocked from meetings in wartime, the government may, without any derogations to human rights, issue ordinances with the force of law. In a peacetime crisis or emergency such derogations are not possible under national ordinary law. This does not prevent, however, the Government to limit certain rights due to the emergency, by using its power to issue ordinances given by the ordinary legislation (see Q8 for the examples).
8. Which human rights have been limited/derogated from in your country, in the context of the Covid-19 pandemic?
The freedom of assembly and the freedom to demonstrate have been restricted by a governmental ordinance (issued under a pre-existing delegation under the Public Order Act, which in turn has been issued in accordance with the constitutional provisions on human rights in Chapter 2 Art. 1, 20 and 24 Instrument of Government). This limited public gatherings to 500 people, later amended to 50 people. This restriction also applies to religious gatherings, though, in accordance with the scope of the right of freedom of religion (Instrument of Government, Chapter 2, section 1, p. 6) this is not seen as a restriction on freedom of religion. However, it could be seen as such a restriction under Article 9 of the European Convention on Human Rights, which applies as law in Sweden. See also Q3.
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?
Additional powers are vested with the Government by ordinary legislation (see Q3). Following the declaration of a public health state of emergency by the governemnt on 31 January, the governement started issuing decree laws which introduced specific restrictive measures. These decree laws were confirmed by Parliament. Subsequently the decree laws were supplemented by the ministerial orders and acts taken at the regional level.
10. Are the possibilities for the Executive to derogate from the normal division of powers in emergency circumstances limited in duration, circumstance and scope?
For wartime-situations (see Chapter 15 Art. 5 and 6 - click here the Government may assume powers if Parliament or the War Delegation cannot meet. The duration is in the hands of Parliament when it can convene again after the war.
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 were not suspended. However, the functioning of Parliament has been changed in practice through an informal agreement among the group-leaders of all political parties represented in Parliament. According to the agreement only 55 members of Parliament (representing their parties in proportion) will take part in plenary sessions. This solution has a certain similarity with the War Delegation. Some special arrangements have also been agreed upon for the meetings of the standing committees. The standing Constitutional Committe of Parliament has in May initiated changes in the Riksdag Act to formalize certain arrangements of the standing committees (permitting distance participation) with a proposed entry into force by 17th June.
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 Supreme Court and the Supreme Administrative Court have not been suspended and no specific rules have been adopted. The procedural provisions for the sessions and how to make legal decisions have not been changed. However, these courts have informally decided to make certain practical changes in the daily work of the panels and justices with widened possibilities for the justices to work from home by means of video/audio facilities.
13. Was legislation on the state of emergency or on the emergency amended or adopted to deal with the Covid-19 pandemic?
The ordinary pre-existing legislation dealing with a large number of different areas (trade and industry, the labour market, social security, education etc.) has been amended by Parliament as a result of the Covid-19 pandemic.
14. Was this additional legislation subject to judicial review?
The bill was submitted, as is the usual practice, for judicial prereview by the Council of Legislation. This is non-binding, but the recommendations of the Council are usually followed. See Q16.
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 - the constitutiona does not provide for any emergency regime outside of the war situation
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.)
Ordinary legal remedies are applied for measures during the health crisis. If a concrete dispute arises regarding ordinances issued under statutes providing for exceptional peacetime powers (e.g. regarding the compliance of such an ordinance with hierarchically superior norms, the statute itself and the Constitution) this can be subject to judicial review before the courts. In addition, as noted above, p. 13, the new formulation of para. 6c of the Act on Protection against Contagious Diseases, provides explicitly for an appeal against administrative measures involving a restriction of a civil right (within the meaning of Article 6 ECHR). So far, no emergency measures have been invalidated.
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
Sweden
If both the Parliament (the Riksdag) and the War Delegation (a mini-parliament for wartime with the Speaker and 50 other in peacetime elected members of Parliament) are unable to carry out their duties in time of war, the Government is empowered to assume the powers and responsibilities, including the legislative powers, of the Riksdag to protect the country. Only the fundamental laws (including the Chapter 2 Fundamental rights and freedoms in the Instrument of Government), the Riksdag Act and the Election Act are excluded from its decision-making competence. (Chapter 15 Art. 5-6) Tasks which are normally the responsibility of the Government may, to a great extent, be delegated to subordinate authorities. (Chapter 15 Art. 8)
After a declaration of war or otherwise decided in a situation of war or danger of war the so-called “preparedness acts” (fullmaktslagarna) are automatically implemented. They are – with very few exceptions – not applicable in peacetime. These laws deal with appropriation, rationing, the work force, war tasks and also procedural provisions for courts and local government etc.
No other public emergencies threatening the life of the nation or other civil crises in peacetime are dealt with in the Constitution. Instead ordinary legislation applies. For such situations, however, a few ordinary laws may contain special provisions for preparedness for such peacetime emergencies and crises.
Even if the Constitution does not provide for a general concept of emergency power in peacetime there have been a few examples in practice in the 1970’s where the existence of a Supra-Legal State of Emergency (nödvärnsrätt) has been accepted in the aftermath of an extraordinary situation (like acts of terrorism and hijacking) by the standing Constitutional Committee of Parliament.
Two of the main areas where there are existing delegations in the ordinary legislation are public order and as regards measures to prevent the spread of infections. Under the Public Order Act the government may prescribe that organized public gatherings and public events may not be held within a specific area, if the prohibition is necessary inter alia to prevent epidemics. This includes authority to prescribe limits on participants. Under the Act on Protection Against Contagious Diseases, the chief “prevention of contagion” doctor in each health region has powers to order inter alia isolation of infected people. The Act further provides that the government, or the administrative agency specified by the government, may issue the additional regulations required for an effective protection against contagion and for the protection of individuals. The government has subdelegated this authority by ordinance to the central administrative agency, the Public Health Authority. In a “peacetime crisis that has a significant impact on the possibilities of maintaining effective infection protection” the government may according to this law also issue “other measures” if “there is a need for coordinated national measures or from a national perspective of other measures in the field of infection protection”.
On exceptional restrictions on human rights, see Q8.
Article 35 of decree law no. 9/2020 declared void emergency measures taken by mayors at the local level which conflicted with measures taken nationwide.
In peacetime situations Parliament can always initiate a legislation to limit provisions decided by the government (the Executive). The method to require a submission to Parliament is used in the Act on rationing and the Act on Protection Against Contagious Diseases. Submission to Parliament as a possible limiting measure is generally provided for in Chapter 8 Art. 6 Instrument of Government.
To obtain additional power the government in the beginning of April proposed Parliament a draft law amending the Act on Protection Against Contagious Diseases and providing for broader delegated powers to the government to impose restrictions on businesses, and to impose requirements on local and regional authorities to (re)distribute equipment and resources. The reasons given were that it was unclear whether the existing delegations in the actual pieces of legislation would be sufficient legal basis for the sort of measures that may prove necessary in the future. The draft delegation was widely formulated. However, the travaux préparatoires make it clear that the powers could not be used to introduce detention or restrictions in freedom of movement. The Council of Legislation, to which the draft was referred, proposed that the delegation should be framed in more specific terms. The standing Constitutional Committee of Parliament proposed that the power to issue government ordinances only be exercised where there was a clear need for speed in each particular case. The Committe also emphasized the importance of the Government making a proportionality assessment when issuing ordinances. Parliament adopted the law with these proposals. The law, which is temporary, expires June 30th, 2020. The first new provision (6a) in the Act provides that the government may issue “1. temporary restrictions on public gatherings; 2. temporary closure of shopping centers and other shopping venues; 3. temporary closure of social and cultural meeting places; closure or other restrictions on transport or use of infrastructure, such as ports, airports or bus or railway stations; 5. temporary enabling of the mutual trade or redistribution of drugs or protective materials and other medical equipment for private healthcare providers and other private operators; or 6. temporary measures of a similar nature.” Under the new 6b “the government may issue special regulations on cooperation and mutual trade or redistribution of drugs and medical equipment in regions and local authorities, if it is necessary to maintain effective infection control to deal with the spread of the virus that causes covid-19”. The new 6c provides that regulations involving restrictions in civil rights (Article 6 ECHR) can be appealed against to the administrative courts. Finally, a requirement is made to submit regulations that have been issued on the basis of §6a or 6b immediately for approval of Parliament.