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 Ukraine provides for several special regimes - state of war (declared by Rada at the proposal of the President), martial law (introduced by the President), state of emergency and emergency situation (both regimes are declared by President and should be confirmed by Rada).
2. Do organic/constitutional or ordinary laws regulating the state of emergency exist in your country?
The emergency situations are regulated by ordinary laws: Law of Ukraine «On Legal Regime of the State of Emergency » of 16 April 2000, No. 1550-III (as amended) - click here. The State of Emergency is defined as "a special legal regime that may be temporarily imposed in Ukraine or in certain places in the event of emergencies of man-made or natural nature not lower than the national level, which have led or may lead to human and material losses, endanger life and health of citizens, or in an attempt to seize state power or change the constitutional order of Ukraine" (Article 1). Those powers include temporary limitations of certain rights and freedoms.
3. Do organic or ordinary laws on health risks or other public emergency exist in your country?
The powers of state authorities in relation to health risks are regulated by the Code of Civil Protection of Ukraine of October 2, 2012, № 5403-VI (as amended), Law of Ukraine "On protection of the population from infectious diseases", of April 6, 2000 № 1645-III (as amended), and the Law of Ukraine "On ensuring sanitary and Epidemic Welfare of the Population", of February 24, 1994, № 4004-XII (as amended).
4. Was a state of emergency declared in your country due to the Covid-19 pandemic? By what authority and for how long?
During the Covid-19 pandemic a state of emergency provided by the Constitution was not declared. However, an emergency situation in a number of oblasts (regions) was declared by orders of the national Government (Cabinet of Ministers), and the nationwide quarantene was imposed on the basis of the decision of the Cabinet of Minsiters № 211 of 11 March 2020 (with reference to Article 29 of the Law of Ukraine "On protection of the population from infectious diseases").
5. Was the declaration subject and submitted to parliamentary approval (if it was taken by the executive)?
The involvement of Parliament consisted of adopting amendments to the current legislation. However, the declaration of the state of emergency was not made by the President and, therefore, Parliament was not required to approve it.
6. Was the declaration subject and submitted to judicial review? Was it found justiciable?
The Government's orders declaring the state of emergency in specific regions were not challenged in court
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 64 of the Constitution provides that "under conditions of martial law or a state of emergency, specific restrictions on rights and freedoms may be established with the indication of the period of effectiveness of these restrictions. The rights and freedoms envisaged in Articles 24, 25, 2 7, 28, 29, 40, 47, 51, 52, 55, 56, 57, 58, 59, 60, 61, 62 and 63 of this Constitution shall not be restricted."
8. Which human rights have been limited/derogated from in your country, in the context of the Covid-19 pandemic?
A number of human rights were limited during the epidemy, on the basis of the special powers given by the executive by the legislation on civil protection and on infectious diseases. The decision of the Cabinet of Minsiters of March 2020 (amended on several occasions by further decisions) introduced limitations on the freedom of assembly and religion (big social gatherings banned), suspended activities of shops, restaurants, and similar businesses, imposed limitations on public transportation services etc. (see here
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 ordinary law governing the powers of the executive, and, more specifically, of sanitary authorities gives them additional competencies in the times of an epidemy.
10. Are the possibilities for the Executive to derogate from the normal division of powers in emergency circumstances limited in duration, circumstance and scope?
Article 24 of Law of Ukraine «On Legal Regime of Emergency State» on 16 April 2000, No. 1550-III (amended) provides that "Any attempt to use the imposition of a state of emergency to seize or abuse power entails liability under the law."
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 parliament were not suspended.
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 Constitutional Court and ordinary courts continued their normal functionning
13. Was legislation on the state of emergency or on the emergency amended or adopted to deal with the Covid-19 pandemic?
Several current laws of Ukraine were amended during the COVID crisis, to cope with it (for example, the law "On Principles of State Regulatory Policy in the Sphere of Economic Activity" September 11, 2003 № 1160-IV (amended), The Code of civil protection (No. 5403-VI of 2 October 2012) and the Law on protection of population against infectious diseases (No. 1645-III of 6 April 2000). On April 16th 2020 a law was enacted that permits authorized agencies to process personal data without the consent of the person for preventing the spread of COVID-19. The collected data may include information about health, place of hospitalization or observation, name, date of birth, residence, and work. The collection of personal data under that special procedure is limited by the period of the quarantine and is to be varnished at the end of the quarantine.
14. Was this additional legislation subject to judicial review?
For the case-law of the Constitutional Court of Ukraine on COVID-related measures and amendments to the legislation click here.
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?
The State of Emergency was not declared (and, consequently, not extended) - the executive authorities used powers given to them by the current legislation and by the amendments introduced by Parliament during the crisis
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 ordinary legal remedies remained in force
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?
According to the Resolution of the Central Electoral Commission No. 1983 of 13 December 2019 ("On the appointment of by-elections of the People's Deputy of Ukraine in the single-mandate constituency № 179 (Kharkiv oblast)", the by-elections of the People's Deputy of Ukraine in the single-mandate constituency № 179 (Kharkiv oblast) were scheduled for March 15, 2020.
18. Same questions as under 17), mutatis mutandis, as regards local elections and referendums.
Local elections or referendums were not hold at this period.
Ukraine
Under Article 106 (19), the President of Ukraine
"(19) puts forward to the Verkhovna Rada of Ukraine the submission on the declaration of a state of war,
(20) adopts a decision in accordance with the law on the general or partial mobilisation and the introduction of martial law in Ukraine or in its particular areas, in the event of a threat of aggression, danger to the state independence of Ukraine;
(21) adopts a decision, in the event of necessity, on the introduction of a state of emergency in Ukraine or in its particular areas, and also in the event of necessity, declares certain areas of Ukraine as zones of an ecological emergency situation - with subsequent confirmation of these decisions by the Verkhovna Rada of Ukraine." The president's decision to introduce a state of emergency should be counter-signed by the Prime Minister. Under the penultimate sentence of Article 106, President "issues decrees and directives that are mandatory for execution on the territory of Ukraine." Under Article 117 , the Cabinet of Ministers of Ukraine, "within the limits of its competence, issues resolutions and orders that are mandatory for execution."
Under Article 92, questions related to "human and citizens' rights and freedoms, the guarantees of these rights and freedoms; the main duties of the citizen;" may only be regulated "by the laws of Ukraine". The same concerns "(19) the legal regime of martial law and a state of emergency, zones of an ecological emergency situation;"
During the current crisis, the all measures taken by the Government were based on the ordinary legislation (see in particular Q2 and Q9)
Martial Law is regulated by the Law of Ukraine “On the Legal Regime of Martial Law” of May 12, 2015 № 389-VIII (as amended); it is applied in case of an armed aggression or threat of attack, danger of state independence of Ukraine, its territorial integrity and similar threats.
In addition, there are ordinary laws which regulate various aspects of health hazards and the powers and the organisation of the sanitary services: Code of Civil Protection of Ukraine of October 2, 2012 № 5403-VI (as amended - click here, Law of Ukraine "On protection of the population from infectious diseases", of April 6, 2000 № 1645-III (as amended), click here, Law of Ukraine "On ensuring sanitary and Epidemic Welfare of the Population", February 24, 1994 № 4004-XII (as amended) - click here.
The Code of Civil Protection defines the concept of an "emergency situation" - a catastrophe, accident, fire, natural disaster, epidemic, or other dangerous event in a particular geographical area or a business facility (Article 2).
As to the decisions of the Cabinet of Ministers to impose quarantene, they are not subject to parliamentary approval, according to the law.
No derogation under Article 15 ECHR or under any other international instrument was made.
Article 22 of Law of Ukraine «On Legal Regime of Emergency State» on 16 April 2000, No. 1550-III (amended)provides that "The restrictions on the constitutional rights and freedoms of citizens provided for by this Law, which may be applied in a state of emergency, are exhaustive and are not subject to extended interpretation."
Article 24 of this law provides that during a state of emergency certain rights cannot be limited, for example, there is a prohbition of torture, cruel or degrading treatment or punishment, as well as "any restriction of the right to life, freedom of thought, conscience or religion within the meaning of those rights and freedoms adopted in the International Covenant on Civil and Political Rights, and laws of Ukraine. Any attempt to use the imposition of a state of emergency to seize or abuse power entails liability under the law."
Measures limiting human rights during the crisis were adopted by the Cabinet of Ministers on the basis of, in particular, the Code of Civil Protection of Ukraine (art. 16) and Law “On the protection of the population from infectious diseases” (art. 3).
Thus, Law "On protection of the population from infectious diseases" of April 6, 2000 № 1645-III (as amended) in Article 30 provides that in the territories where quarantine is established, local executive bodies and local self-government bodies have the right to limit the entry to and the exit from the territory of quarantine of people and vehicles, and, if necessary, to carry out sanitary inspection of luggage, vehicles and cargo, to introduce stricter regulations on quality, conditions of production and sale of food, treatment and quality of drinking water; to establish a special procedure for carrying out preventive and anti-epidemic, including disinfection, and other measures; to create checkpoints etc.
The Law "On protection of the population from infectious diseases", of April 6, 2000 № 1645-III (as amended) provides for the possibility to impose a quarantine, by a decision of the the Cabinet of Ministers of Ukraine. Under Article 29, "The decision to establish quarantine shall specify the circumstances that led to it, determine the boundaries of the quarantine area, approve the necessary preventive, anti-epidemic and other measures, their executors and deadlines, set temporary restrictions on the rights of individuals and legal entities and additional responsibilities them, the grounds and procedure for mandatory self-isolation, a person's stay in the observatory (observation), hospitalization in temporary health care facilities (specialized hospitals)"
On the basis of this Law, the Cabinet of Ministers has adopted two Resolutions (No. 211 of 11 March 2020 and No. 392 of 20 May 2020) on introducing quarantine.
On the scheduled date, the elections took place. In order to prevent the spread of coronavirus infection COVID-19 during the organization and conduct of these elections, the Central Election Commission on March 12, 2020 adopted Resolution № 75 "On measures to prevent the spread of coronavirus infection COVID-19 of the People's Deputy of Ukraine on March 15, 2020 in the single-mandate constituency № 179 ".
On March 15, 2020, the turnout in the by-elections in the single-mandate constituency № 179 almost halved compared to the early elections of people's deputies of Ukraine in 2019 in the same constituency and amounted to only 27.31%.
Electoral legislation was not amended during this period.