Venice Commission - Observatory on emergency situations

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)?

Albania

The Constitution of the Republic of Albania, in its articles 170-176, regulates the measures taken in emergency situations. More specifically, in its article 170, the Constitution provides for the types of extraordinary measures that can be imposed due to: the state of war, the state of emergency or the state of natural disaster, measures which last as long as these conditions continue.

Articles 171 and 172 of the Constitution provide for a state of war, which is declared in case of an armed aggression against the Republic of Albania, in case of external threats or when the obligation for joint defense arises from an international agreement. Article 173 of the Constitution regulates the declaration of a state of emergency, in case of danger to the constitutional order and public safety. Article 174 of the Constitution regulates the declaration of the state of natural disaster for the prevention or elimination of the consequences of a natural disaster or technological accident. The first is declared by the Assembly, and can be prolonged to up for 90 days by the assembly itself. The second is declared by the Council of Ministers, and can be extended (without limitation) upon agreement by the Assembly. The type of the regime (emergency/natural disaster) defines which rights can/cannot be limited.

In addition, under Article 101 of the Constitution the Council of Ministers, in cases of necessity and emergency, may issue, under its responsibility, normative acts having the force of law for taking temporary measures. These normative acts are immediately submitted to the Assembly, which is convened within 5 days if it is not in session. These acts lose force retroactively if they are not approved by the Assembly within 45 days. The Government issued several normative acts having the force of law during the period of the COVID-19 crisis.

For the constitutional provisions click here

Armenia

The Constitution in the version of 2015 addresses the procedure of declaration of State of Emergency (art. 120) by the Government in the event of an imminent danger posed to the constitutional order. In case of declaration of a state of emergency, a special sitting of the National Assembly shall be immediately convened. Following the declaration of the state of emergency the Government may take measures dictated by the situation. The National Assembly may lift the state of emergency or cancel the implementation of measures provided for under the legal regime of state of emergency, by majority of votes of the total number of Deputies.

A similar mechanism is provided for the declaration of the martial law (Art. 119), although the Constitution does not provide for the power of the Government to take appropriate measures.

The Constitution also provides for the possibility of restrictions on basic rights and freedoms during the state of emergency or martial law (art 76).

The Constitution provides also for special regulations with respect to elections of the Nation Assembly (art. 90-91) or non-Confidence against the Prime Minister (art. 115 and issue of the confidence in the Government (art. 157) or holding a referendum (art. 208) during the state of emergency.

Separate provision of the Constitution (art 119) addresses the declaration of Martial Law by the Government in the event of an armed attack against the Republic of Armenia or imminent danger thereof or declaration of war.

Austria

Only very few provisions of the Federal Constitution of Austria (Bundes-Verfassungsgesetz) deal with the situations of crisis. Most of them do not concern situations where the life of the nation is threatened but where Parliament is not available or functional for some reason.

In particular, Article 18 paragraphs 3-5 regulate a transfer of legislative power if the immediate issue of measures is necessary to prevent obvious and irreparable damage to the community and if the Parliament is not assembled, cannot meet in time, or is impeded from action by circumstances beyond its control (so-called Notverordnungsrecht). Then, the Federal President may, at the recommendation of the Federal Government and on his and the Government’s responsibility, take these measures by way of provisional law-amending regulations. The Government must present its recommendation with the consent of the standing sub-committee to be appointed by the Main Committee of the National Council. Such a regulation requires the countersignature of the Federal Government and must be submitted to the National Council without delay.

Within four weeks of submission, the National Council must either adopt a corresponding Federal Law in place of the regulation or pass a resolution demanding that the regulation be invalidated immediately. The regulations may not contain amendments to the federal constitutional law and, in particular, may not place a permanent financial burden on the Federation, the provinces or municipalities.

At the provincial level, Article 97 paragraphs 3 and 4 sets forth the conditions for provisional law-amending regulations of a Land Government. Furthermore, Article 102 paragraph 5 provides that if in a province the immediate enactment of measures in matters pertaining to the direct federal administration becomes necessary to avert manifest, irreparable harm to the community as a whole in circumstances where the highest authorities of the federal administration are impeded by events beyond their control, the Governor must take the measures on their behalf.

Article 79 paragraph 5 sets forth the conditions under which the Federal Army may intervene on its own initiative for the purposes of the country’s military defence, protecting the constitutionally established institutions, maintaining order and security or assisting in the case of natural catastrophes and disasters (e.g. if circumstances outside their control have put the competent officials beyond capacity to effect intervention by the military and irreparable damage to the community at large would arise from a further wait).

Without reference to possible damage or harm, Article 5 paragraph 2 provides for the transfer of the seat of supreme Federal organs to another location by the Federal President for the duration of exceptional circumstances. Likewise, Article 25 paragraph 2 regulates the convocation of the National Council elsewhere within the federal territory. Finally, Article 51 paragraph 7 determines that the upper limits for the federal budget may be exceeded in case of imminent danger and in case of defence.

During the COVID crisis, no such regulations as referred to in Article 18 paragraph 3 of the Federal Constitution have been issued. Instead, at the beginning of the crisis, a special session of the Parliament was held in order to adopt a „Covid- 19-Act”.

In addition to the provisions in the Federal Constitution, Austria is obliged to respect Article 15 ECHR. Since 1964, the Convention as a whole, and hence also its Article 15, has been an integral part of the Constitution. It is disputed in which national procedure measures derogating rights under the Convention may be adopted.

Azerbaijan

Under Article 111 of the Constitution, in the event of an actual occupation of part of the territory of the Republic of Azerbaijan, a declaration of war against it by a foreign country or countries, a real danger of an armed attack against the Republic of Azerbaijan, a blockade of its territory, or in the event of a real threat of such a blockade, the President of the Republic of Azerbaijan shall declare martial law throughout the territory of the Republic of Azerbaijan, or within its separate regions, and shall, within 24 hours, submit the appropriate decree to the Milli Majlis of the Republic of Azerbaijan for approval.

According to Article 112 of the Constitution, in the event of natural disasters or epidemic, epizootic, severe ecological and other disasters; the commission of acts directed at violating the territorial integrity of the Republic of Azerbaijan, insurrections or coups d’état; mass disorders accompanied by violence; other conflicts threatening the lives and security of citizens, or the normal activities of state bodies, the President of the Republic of Azerbaijan shall declare a state of emergency in separate regions of the Republic of Azerbaijan and shall, within 24 hours, submit the appropriate decree to the Milli Majlis of the Republic of Azerbaijan for approval.

These provisions, however, were not used in the context of the COVID0-19 epidemy; the Government used powers provided by the ordinary legislation.

Belgium

Article 187 of the Belgian Constitution states: "The Constitution may not be suspended in whole or in part". This is the reason why the Constitution does not contain any provisions relating to the state of emergency, dealing with emergency situations allowing public authorities to derogate from the Constitution.
Therefore, the Constitution is not suspended, neither during the war, nor during any other public emergency threatening the life of the Nation. From the experience of the two world wars, however, it turns out that constitutional provisions are suspended "in fact" when circumstances of force majeure no longer allow them to be applied. (eg in case of impossibility of convening parliament) In addition, "the independence of the country" is supposed to be a supraconstitutional value which justifies derogations from the constitutional provisions the application of which would jeopardize this independence. (see the decree-law, October 11, 1916, relating to the state of war and the state of siege).
In addition, Article 105 of the Constitution allows the legislator to confer powers on the King (i.e, in practice, the federal government). It provides that “the King has no other powers than those formally assigned to him by the Constitution and the particular laws made by virtue of the Constitution itself." On the basis of this article, in the event of" exceptional circumstances or circumstances of crisis "which justify a rapid decision-making - a serious economic or financial crisis eg" - the federal legislator can attribute special powers to the King, allowing him to "repeal, supplement, modify or replace legislative provisions", by regulatory means, on condition that the royal decrees that the King takes on the basis of these powers are subsequently confirmed by a legislative norm. However, the technique of “special powers” does not allow the King to derogate from constitutional provisions, such as the provisions of the title of the Belgian Constitution, guaranteeing fundamental rights and freedoms.
This same technique known as “special powers” also exists at the level of federated entities. (see e.a. art. 78 Special law on institutional reforms of August 8, 1980).

Bosnia and Herzegovina

The Constitution of Bosnia and Herzegovina does not contain any provision on regulating the state of emergency. However, in addition to the State-level Constitution, Bosnia and Herzegovina also has Entity-level constitutions (the Constitution of the Federation of BiH and the Constitution of the Republika Srpska), and the Statute of the Brčko District of Bosnia and Herzegovina.

The Constitution of the Federation of Bosnia and Herzegovina, in Article IV. B. 9, stipulates that “the Government of the Federation is empowered to issue decrees with the force of law in the event of danger to the country when the Federation Parliament is unable to do so. Any regulation shall have the force of law and may not derogate from the rights and freedoms set forth in this Constitution“.

The Constitution of the Republika Srpska regulates emergency situations and possible suspension of human rights in more detail. Article 68, paragraph 3 of the Constitution of the Republika Srpska prescribes that the measures in its jurisdiction to be implemented in a state of war or emergency declared by the institutions of Bosnia and Herzegovina, as well as measures to be implemented in a state of emergency declared by the institutions of the Republika Srpska.

Furthermore, Article 70 stipulates that the National Assembly, in accordance with the Constitution and the law, declares a state of emergency for the Republic or part of the Republic in case of security is endangered due to natural disasters (floods, earthquakes and fires), natural disasters, epidemics, human rights violations and the freedom and normal functioning of the constitutional bodies of the Republic. Article 81 of the Constitution of the Republika Srpska determined the powers of the President of the Republika Srpska as follows: “In a state of war or emergency declared by the institutions of Bosnia and Herzegovina, and if the National Assembly is unable to convene, the President of the Republic, upon the proposal of the Government or on his or her own initiative, having consulted the President of the National Assembly, shall issue decrees with the force of law regarding matters in the jurisdiction of the National Assembly, and shall appoint and recall those officials who are normally appointed and recalled by the National Assembly. The President of the Republic shall submit these decrees and the decisions of appointments and recalls to be voted by the National Assembly as soon as it is able to convene. In a state of war declared by the institutions of Bosnia and Herzegovina or in a state of emergency, the National Assembly, or the President of the Republic, if the National Assembly is unable to convene, may pass extraordinary legal acts, which shall be valid only for the duration of such a state and shall suspend certain provisions of the Constitution related to: the procedure of passing of laws, other regulations and general legal acts; the powers of republican bodies to undertake certain measures; to certain human freedoms and rights, except for the freedoms and rights provided in Articles 10, 11, 13, 14, 15, 17, 18, 19, 20, 24 and 25 of the Constitution; changing the organization and powers of executive, governing and judicial bodies and their personnel, as well as the territorial organization of the Republic.”

Bulgaria

Article 84, item 12 of the Constitution of the Republic of Bulgaria vests the National Assembly the power to declare a state of martial law or another state of emergency in the entire national territory or in a part thereof, acting on a motion by the President or by the Council of Ministers.

The President shall declare a state of war in the event of an armed attack against Bulgaria or in response to a need to urgently honour international commitments, or shall proclaim a state of martial law or another state of emergency whenever the National Assembly is not sitting. In such cases, the National Assembly shall be convened forthwith to pronounce on the decision (Article 100, para. 5 of the Constitution).

In case of war, a state of martial law or another state of emergency which has occurred during the term of the National Assembly or after the expiry thereof, the mandate of the Assembly shall be extended until the said circumstances are over (Article 64, para. 2 of the Constitution).

In addition, the Government may introduce special measures on the basis of the Health Act, as amended in 2020.

Cyprus

Article 183 of of the Constitution of Cyprus contains a detailed regulations on the state of emergency, which has however never been triggered or proclaimed. More specifically, a Proclamation of Emergency can be made “in case of war or other public danger threatening the life of the Republic or any part thereof” giving the Council of Ministers the power to suspend specific provisions of the Constitution. This article allows the Council of Ministers to proclaim a state of emergency in the event of war or another public occurrence that endangers the life of the Republic or any part of it. The president and/or vice president can veto the proclamation of the state of emergency within 48 hours of its announcement. The proclamation is also submitted to the House of Representatives for ratification; if rejected, it is deprived of any effect ex nunc, if approved it is promulgated on publication in the official Gazette of the Republic. The state of emergency cannot last more than two months, unless prolonged by the House of Representatives. During the state of emergency, the Council of Ministers can take strictly necessary measures (ordinances with the force of law) that are also subject to veto by the president and/or vice president (Article183(7)). These ordinances cease to have effect at the end of the period of emergency at the latest. Article 183(2) requires the proclamation of emergency to indicate the articles of the Constitution that may be suspended during the emergency.

In past crises, Cyprus has relied on the doctrine of the state of necessity, developed in the Ibrahim case (1964), which offers a way round constitutional impasses created by the inability of the bi-communal system (Turkish and Greek), on which the Cypriot Constitution of 1960 was based, to function. The 'constitutional emergency' caused by the withdrawal of all Turkish Cypriots from state bodies prevented the state from functioning according to constitutional rules that required the presence of both communities. Therefore the doctrine of the state of necessity , recognised as a source of law, enabled a departure from constitutional requirements as to the composition of state bodies and organs in order to ensure the continuation of state functions.

Czech Republic

The Constitution of the Czech Republic (Constitutional Law No. 1/1993 Coll.) as such does not regulate emergency situations. It refers to these situations only in connection with the competences of the Parliament (§§ 39(3) and 43 of the Constitution). Article 39(3) The concurrence of an absolute majority of all Deputies and an absolute majority of all Senators is required for the adoption of a resolution declaring a state of war or a resolution granting assent to sending the armed forces of the Czech Republic outside the territory of the Czech Republic or the stationing of the armed forces of other states within the territory of the Czech Republic, as well as with the adoption of a resolution concerning the Czech Republic's participation in the defensive systems of an international organization of which the Czech Republic is a member. Article 43(1) Parliament decides on the declaration of a state of war, if the Czech Republic is attacked, or if such is necessary for the fulfillment of its international treaty obligations on collective self-defense against aggression.

For the text of the Czech Constitution click here

Likewise, the Charter of Fundamental Rights and Freedoms (Constitutional Law No. 2/1993 Coll.) contains no provisions dealing with emergency situations. It does however indicate that “/a/ny limits placed on fundamental rights and freedoms may be governed only by law under conditions set by this Charter“ (Article 4(2)) and that “/w/hen using the provisions on the limits of the fundamental rights and freedoms, their essence and purpose shall be respected. Such limits may not be used for other purposes than those for which they were instituted” (Article 4(4)).

However, matters related to emergency (see Q2) are regulated by the Constitutional Act on the Security of the Czech Republic (No. 110/1998 Coll.). Under this act the Government may declare the state of emergency "in cases of natural catastrophe, ecological or industrial accident, or other danger which to a significant extent threatens life, health, or property or domestic order or security.

Denmark

There are no such specific provisions in the Constitution, and “State of Emergency” is not an official term in Danish law. However, it is in theory and practice generally assumed that there may be situations where deviations from the constitutional order is permitted. In practice, this was last seen during the German occupation in World War II where, in the absence of a functioning Parliament, the administration enacted “executive orders”. The Constitution provides for no such orders.

Under the Constitution, the King has a limited power to take measures when Parliament cannot meet, see section 23: the King may "issue provisional laws, provided that they shall not be at variance with the Constitutional Act, and that they shall always, immediately on the assembling of the Folketing, be submitted to it for approval or rejection." See here.

France

The Constitution of France contains two provisions relating to the state of emergency: Article 16 granting exceptional powers to the President of the Republic when the institutions of the Republic, the independence of the Nation, the integrity of its territory or the execution of its international commitments are threatened in a serious and immediate manner and that the regular functioning of the constitutional authorities is interrupted and Article 36 on the state of siege.

Article 16 on exceptional powers was invoked only once, in 1961, following a failed coup attempt in the then French Algeria.

The state of emergency is not as such framed by the French Constitution. On two occasions, the Constitutional Council has ruled that the Constitution does not exclude the possibility for the legislature to provide for a state of emergency regime (Decisions No. 2015-527 QPC of 22 December 20 and 2016-535 QPC of 19 February 2016).

In the case of species, the French authorities did not use the emergency regimes provided for by the legislation in force (Law 55-385 of 3 April 1955), but introduced, by a law adopted to this effect in March 2020, a new "health emergency" regime.

In addition, Article 38 of the Constitutio n provides that "In order to implement its programme, the Government may ask Parliament for authorization, for a limited period, to take measures by Ordinance that are normally the preserve of statute law.

Ordinances shall be issued in the Council of Ministers, after consultation with the Conseil d'État. They shall come into force upon publication, but shall lapse in the event of failure to table before Parliament the Bill to ratify them by the date set by the Enabling Act. They may only be ratified in explicit terms.

At the end of the period referred to in the first paragraph hereinabove Ordinances may be amended solely by an Act of Parliament in those areas governed by statute law."

Germany

The Basic Law for the Federal Republic of Germany does not provide for special rules for a pandemic. However, in cases of natural disasters and grave accidents and other internal or external emergencies, the Basic Law puts in place certain procedural and organizational rules to ensure the functioning of the constitutional order. These provisions do not justify a derogation of human rights in emergency situations.

The external emergency is intended to cover the case of an armed attack from outside the country’s borders (State of Defense, Articles 115a-115 l).

The internal emergency is defined as “an imminent danger to the existence or free democratic order of the German Federation or of a Land" (Article 91 I). It is regulated in Articles 35, 87a and 91 and enables the Federal Government and the states (Länder) to pro-vide mutual administrative assistance. Article 35 allows the federal or the states governments, in case of a threat to public order, a grave accident or a natural disaster, to call upon personnel and facilities of the Federal Border Police or the Armed Forces. According to Article 91 the Land can do the same and ask for the use of another Land’s civil service to avert an imminent danger to the existence or to the free and democratic constitutional order of the Federal Government or one of the states. If a Land is unwilling or unable to combat the threat, the Federal Government can assume control over the state’s policy or deploy units of the Federal Police. In cases where the danger extends beyond the territory of a single Land, and inasmuch as necessary to combat such danger, the Federal Government may give instructions to Land governments. These articles do not allow for a shift of powers towards the executive branch or special interventions in fundamental rights. Even more, the Federal Government may only intervene if there is a threat to the existence or constitutional order of the state.

Hungary

The Fundamental Law of Hungary (hereinafter: FL) contains a section entitled Special Legal Orders; it covers rules governing six types of special legal regimes: state of national crisis, state of emergency, state of preventive defence, state of terrorist threat, unexpected attack and state of danger (see Articles 48-54).

The regulation of the special legal regimes (orders) is therefore entrenched in the FL. Article 54 Paragraph (1) of the FL clarifies that under a special legal order, the exercise of certain fundamental rights – with a number of exceptions regarding non-derogable rights – may be suspended or may be restricted beyond the extent specified in Article I Paragraph (3). Further safeguards are set in Paragraph (2) of the same Article which adds that under a special legal order, the application of the FL may not be suspended, and the operation of the Constitutional Court may not be restricted.

The state of national crisis shall be declared by the Parliament in the event of a state of war or danger of war (i. e. imminent danger of armed attack by a foreign power). For the declaration of a state of war or the declaration of a special legal order pursuant to paragraph (1), a majority of two thirds of the votes of all Members of Parliament shall be required. In this situation the Parliament establishes the National Defence Council, which exercises the rights of the President of the Republic and the Government and which is delegated to it by the Parliament. This is the highest level of emergency that refers especially to mobilisation for military defence.

The state of emergency is declared by the Parliament in the event of actions aimed at the overthrowing of the lawful (constitutional) order or at the exclusive acquisition of power, and of serious mass acts of violence threatening life and property; committed with arms or in an armed manner. The most important powers are exercised by the President of the Republic.

The state of preventive defence shall be declared by the Parliament for a fixed term in the event of a threat of an external armed attack or in order to meet an obligation arising from a military alliance. After initiating the declaration of a state of preventive defence the Government is entitled to adopt special measures affecting the operation of public administration, the military forces and the law enforcement agencies. This regulation ensures that these subordinate bodies are carrying out their duties required by threats or alliance obligations without delay.

The state of terrorist threat shall be declared by the Parliament in the event of a significant and direct threat of a terrorist attack or in the event of a terrorist attack. It is the internal security equivalent of the state of preventive defence and creates an opportunity to use the military forces if the forces of the police and national security services are insufficient.
In the event of an unexpected attack (i. e. unexpected invasion of external armed groups into the territory of Hungary) the Government is obliged by the FL to take immediate actions to repel the attack and to defend the territory of Hungary. This is a temporary institution whose aim is to make the Government able to respond immediately to the aggression threatening the territory of the state in order to protect law and order, life and property, public order and public safety.

The state of danger shall be declared by the Government in the event of a natural disaster or industrial accident endangering life and property, or in order to mitigate its consequences. Under Article 53, the extraordinary measures uder the state of danger are to be defined in a cardinal act. During the state of danger the Government may legislate by decrees, of a limited duration of 15 days, until their confirmation by Parliament, and not longer than the state of danger exists.

These disasters are described in more detail in the Act CXXVIII of 2011 on disaster management (hereinafter: Disaster Management Act), e. g. flood, inland waters, extreme weather events, consequences of industrial accidents, and human or animal epidemic as well. During the state of danger, the Government may adopt decrees by means of which it may, as provided for by a cardinal Act, suspend the application of certain Acts, derogate from the provisions of Acts and take other extraordinary measures. Unlike the previous special legal order types the purpose of immediate action in a state of danger is not the armed defence of the state but to eliminate the disaster in order to minimize the consequences.

Ireland

The Constitution of Ireland (1937) contains three very narrow and specific provisions which are relevant.
The most relevant provision is to be found in Article 28.3.3 as follows:
‘Nothing in this Constitution other than Article 15.5.2 shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion, or to nullify any act done or purporting to be done in time of war or armed rebellion in pursuance of any such law. In this subsection ‘time of war’ includes a time when there is taking place an armed conflict in which the State is not a participant but in respect of which each of the Houses of the Oireachtas shall have resolved that, arising out of such armed conflict, a national emergency exists affecting the vital interests of the State and ‘time of war or armed rebellion’ includes such time after the termination of any war, or of any such armed conflict as aforesaid, or of any armed rebellion, as may elapse until each of the Houses of the Oireachtas shall have resolved that the national emergency occasioned by such war, armed conflict, or armed rebellion has ceased to exist.’

This means that the terms of the Constitution (except the ban on the death penalty) can be superseded by a law stated to be for the identified purposes related to a war, rebellion or armed conflict. This only applies to war or armed rebellion and does not apply to pandemics or natural disasters.

Article 15.8 mentions "special emergency" which allows either House to hold a private sitting. This concept of special emergency is wider than war or armed rebellion. Article 24.1 provides for the passing of urgent Bills in an abridged procedure, due to a public emergency, and that concept is also wider than war or armed rebellion.

Italy

Under Article 78 of the 1948 Italian Constitution, “Parliament has the authority to declare a state of war and vest the necessary powers into the Government.” No other public emergency is regulated by the Constitution.

In addition, according to Article 77, paras. 2 and 3, “When the Government, in extraordinary cases of necessity and urgency, adopts under its own responsibility a temporary measure, it shall introduce such measure to Parliament for transposition into law. During dissolution, Parliament shall be convened within five days of such introduction. Such a measure shall lose effect from the beginning if it is not transposed into law by Parliament within sixty days of its publication. Parliament may regulate the legal relations arisen from the rejected measure.”

The effective meaning of the words “extraordinary cases of necessity and urgency” has significantly varied from time to time. While in the first decade of the constitutional practice such cases designed public emergencies such as earthquakes or financial crisis, governments adopted later decree laws (namely the “temporary measures” as provided in Article 77) as ordinary means of legislation, with the effect of transforming the exception (or the emergency) into the rule.

During the COVID crisis the emergency measures were taken by the Government on the basis of the mandate given by the ordinary legislation (see Q2 and Q3); in addition, the Government legislated by decree laws under Article 77 of the Constitution

Korea, Republic

South Korea has a presidential system of governemnt. In the state of emergency, the power to issue urgent measures is given to the President by the Constitution. Constitutional provisions regarding this are as follows:
Article 76
(1) In time of internal turmoil, external menace, natural calamity or a grave financial or economic crisis, the President may take in respect to them the minimum necessary financial and economic actions or issue orders having the effect of Act, only when it is required to take urgent measures for the maintenance of national security or public peace and order, and there is no time to await the convocation of the National Assembly.
(2) In case of major hostilities affecting national security, the President may issue orders having the effect of Act, only when it is required to preserve the integrity of the nation, and it is impossible to convene the National Assembly.
(3) In case actions are taken or orders are issued under paragraphs (1) and (2), the President shall promptly notify it to the National Assembly and obtain its approval.
(4) In case no approval is obtained, the actions or orders shall lose effect forthwith. In such case, the Acts which were amended or abolished by the orders in question shall automatically regain their original effect at the moment the orders fail to obtain approval.
(5) The President shall, without delay, put on public notice developments under paragraphs (3) and (4).

Article 77
(1) When it is required to cope with a military necessity or to maintain the public safety and order by mobilization of the military forces in time of war, armed conflict or similar national emergency, the President may proclaim martial law under the conditions as prescribed by Act.
(2) Martial law shall be of two types: extraordinary martial law and precautionary martial law.
(3) Under extraordinary martial law, special measures may be taken with respect to the necessity for warrants, freedom of speech, the press, assembly and association, or the powers of the Executive and the Judiciary under the conditions as prescribed by Act.
(4) When the President has proclaimed martial law, he shall notify it to the National Assembly without delay.
(5) When the National Assembly requests the lifting of martial law with the concurrent vote of a majority of the total members of the National Assembly, the President shall comply.

Article 76 of the Constitution provides for the President's exceptional legislative powers in a state of emergency. Therefore, the exceptional legislative powers under Article 76 are recognized only when the requirement that the National Assembly (Parliament) cannot be called is met. When convocations are possible, the National Assembly will review the President's exercise of exceptional legislative power and decide whether to approve it. The exceptional legislation made thereupon is invalid ab initio unless approved by the National Assembly.

Article 77 of the Constitution is a provision for military forces to step in to ensure public order in a state of emergency. When martial law is issued, certain restrictions may be imposed on the warrant system, freedom of assembly, and the powers of the court. The National Assembly is entrusted with parliamentary control over martial orders.

Kyrgyzstan

Article 15 of the Constitution provides for the possibility of declaring a state of emergency. At the same time, a state of emergency is declared only if there are grounds provided for in the Constitutional Law «On the State of Emergency». The subjects authorized to declare a state of emergency are the President and the Parliament. But, as a rule, a state of emergency is declared by presidential decree with immediate notification to the Parliament. A state of emergency imposed by an act of the President is subject to approval or repeal by the Parliament. These provisions are contained both in the Constitution (article 64, part 9, paragraph 2; article 74, part 5, paragraph 1) and in the Constitutional Law «On the state of emergency».

Liechtenstein

According to Art 10 of the Constitution of the Principality of Liechtenstein (LV - see here), the Prince "in urgent cases" shall take "the necessary measures for the security and welfare of the State".

The Prince is also entitled to pass emergency regulations on the ground of Art 10 para 2 LV. Those regulations may not suspend the Constitution as a whole or individual provisions thereof, but may only limit the applicability of individual provisions of the Constitution. Emergency regulations may not curtail the right of each person to life, the prohibition of torture and inhuman treatment, the prohibition of slavery and forced labour, or the principle of nulla poena sine lege. Moreover, the provisions of this Article, of Articles 3 (House Law of the Princely House), 13ter (motion of no-confidence against the Prince, and 113 (abolishment of the Monarchy), and the Law on the Princely House may not be limited by emergency regulations. Emergency regulations shall expire at the latest six months after they have been issued.

Lithuania

There are two types of emergency situations provided for in the Constitution: 1) a state of emergency and 2) martial law. The Constitution also mentions other extreme cases, such as a natural disaster or epidemics (Paragraph 4 of Article 48) as the grounds to impose compulsory labour on citizens, but there is no further elaboration on or mention of these grounds in any situation other than that provided for in Article 48.

In their turn, the first two situations of emergency are specified in more detail.

Article 144 of the Constitution provides for the possibility of introducing a state of emergency, in cases of threats to "the constitutional system or social peace in the State". It is declared by the Seimas. The period of the state of emergency shall not exceed six months.

In cases of urgency, between sessions of the Seimas, the President of the Republic shall have the right to adopt a decision on the state of emergency and convene an extraordinary session of the Seimas for the consideration of this issue. The state of emergency shall be regulated by law.

The doctrine considers that a "threat to the constitutional system" consists of a threat to the fundamental constitutional elements: democracy, the rule of law and the protection of human rights; a threat to social peace could be understood as riots, public violence or other similar disruptions.

The second emergency situation provided for in the Constitution, which differs from a state of emergency, is martial law (regulated by Article 142); martial law can be imposed by the Seimas or the President of the Republic essentially under a threat of an armed attack, which is decided essentially in the same procedure as the state of emergency

Paragraph 2 of Article 147 of the Constitution stipulates that the Constitution may not be amended during a state of emergency or martial law.

In practice, during the COVID-19 epdiemy those Constitutional provisions were not invoked: the Government used powers granted by the ordinary legislation (see Q2 and Q3)

Mexico

Under Article 29 of the Constitution of the United Mexican States (for the text in English click here) "in case of invasion, serious breach of the peace or any other event which may place society in severe danger or conflict", certain fundamental rights can be "suspended" by the President of the Republic, following consultations with the Attorney General and the secretaries and with approval of the Congress of the Union. If Parliament is in recess, the President should obtain the approval of the Permanent Committee, and the Congress should be convened immediately.

The Permanent Committee is composed of 37 MPs from both chambers, which exists during biannual recesses of the federal parliament and which has a limited number of powers, including the power to call an extraordinary session of the federal parliament (Article 67 of the Constitution).

Such suspension should be "temporary and general, never a suspension can be applied on a single person" - i.e. ad hominem measures are prohibited.

At the end of the emergency period, "all legal and administrative measures taken during the restriction or suspension will be void immediately".

These provisions were used during the WWII, but were not applied in the recent history, including the COVID-19 crisis.

Monaco

There are no specific constitutional provisions.

Morocco

The Constitution of 29 July 2011 enshrines as exceptional situations the declaration of war, a state of emergency, a state of siege, and provides for the creation of a High Security Council whose mission is notably to resolve crisis situations.

The Declaration of War: it is deliberated in the Council of Ministers, it is part of the powers that the King exercises with the countersignature of the Head of Government, and a communication is made to Parliament (Article 49, indent 9).

The State of Exception: this is provided for by the Constitution, proclaimed by the King and is part of the powers without countersignature "when the integrity of the national territory is threatened or when events occur that hinder the regular functioning of the constitutional institutions". The Head of State has full powers in such cases, and governs, legislates and administers. Such a regime was proclaimed only once, on 7 June 1965. The state of exception impacts the institutional balance, which is not the case for other exceptional circumstances. It is global and national, applies throughout the territory and conditions of substance and form are expressly provided for its triggering (Article 59).

The State of Siege: it is provided for by the Constitution, deliberated in the Council of Ministers and imposed for a period of 30 days. It is the exercise of a royal power with a counter-signature of the Head of Government. Such a regime implies the handing over of police powers to the military and entails a limitation of freedoms. It may be limited to a portion of the territory and does not affect the functioning of the institutions. This exceptional regime has never been applied in Morocco and, so far, no text has been passed governing it (Article 49, indent 8).

The High Security Council: this is a new institution provided for in the 2011 Constitution, with a view to better security governance and to respond to the recommendations of the Equity and Reconciliation Commission. Its mission is to resolve crisis situations. To date, it has not yet been set up and the internal regulations governing it have not yet been adopted (Article 54).

The state of emergency: this regime is not provided for by the Constitution and therefore remains justiciable by an infra-constitutional norm, in this case a law - see question 2. Article 81 of the Constitution allows the government to pass decree-laws in the interval between parliamentary sessions, with the agreement of the relevant committees of both chambers, which must be submitted for ratification by Parliament during its next ordinary session. This mechanism was used to adopt Decree-Law No. 2.20.292 of 28 rejeb 1441 (23 March 2020) enacting special provisions for the State of Health Emergency and measures of its declaration (BO No. 6887), which was ratified by Law No. 23.20.

Norway

No general provision on emergency situations or derogation exists in the Constitution. However, there is one specific clause concerning the parliament in case of war and infectious diseases, allowing parliament to relocate to a safe city. Article 68 of the Norwegian Constitution: “The Storting shall as a rule assemble on the first weekday in October every year in the capital of the realm, unless the King, by reason of extraordinary circumstances, such as hostile invasion or infectious disease, designates another town in the realm for the purpose. Such a decision must be publicly announced in good time.”

That being said, there is an unwritten but long-established rule that derogations can be made according to an unwritten rule of constitutional necessity. The prime and latest example of the application of this rule is the transfer of the parliament’s power to the government in exile in face of German occupation in 1940. To trigger derogations according to the unwritten rule of constitutional necessity, there must be a serious emergency that necessitates a derogation, thus a necessity requirement. Furthermore, all derogations must be proportional to the aim pursued, thus a proportionality requirement. The exact scope and limits of this unwritten rule is not clear.

Peru

Yes, there are such provisions. Article 137 of Peru’s 1993 Constitution regulates the Exception
Regime in the following terms:

The President of the Republic, with the advice and consent of the Cabinet, may decree for a determined time period in all or part of the national territory, and report to Congress or Permanent Assembly the state of exception as provided for in this article:
1. State of emergency in case of disturbances of the peace or the domestic order, disasters, or serious circumstances affecting the life of the Nation. In this case, the exercise of constitutional right relating to personal freedom and security, the inviolability of the home, and freedom of assembly and movement in the territory as set forth in paragraphs 9, 11 and 12 of Article 2 and in paragraphs 24, subparagraph f in the same Article, may be restricted or suspended. Under no circumstances no one shall be exiled.
The state of emergency period shall not exceed 60 days. Its extension requires a new decree. Under a state of emergency, the Armed Forces may assume control over domestic order if the President of the Republic decides it.
2. State of siege, in case of invasion, foreign or civil war, or imminent danger that such events might occur, with mention to those fundamental rights whose exercise is not restricted or suspended. The applicable period shall not exceed 45 days. When the state of siege is declared, Congress convenes by law. Its extension requires Congress approval.

Portugal

The Portugese Constitution distinguishes between the state of siege (a higher-degree emergency affecting public order and security of the country) and the state of emergency (a lower-level calamity). In addition, certain emergency measures can be ordered either by virtue of the special legislation on health risks, on the civil protection etc., Finally, some measures can be ordered by the legislative decrees of the executive.

Article 19 of the Constitution ("Suspension of the exercise of rights") provide for the constitutional basis for a declaration of states of exception:

"1. Entities that exercise sovereignty may not jointly or separately suspend the exercise of the rights, freedoms and guarantees, save in the case of a state of siege or a state of emergency declared in the form provided for in the Constitution.

2. A state of siege or a state of emergency may only be declared in part or all of Portuguese territory in cases of actual or imminent aggression by foreign forces, a serious threat to or disturbance of democratic constitutional order, or public disaster.

3. A state of emergency is declared when the preconditions referred to in the previous paragraph are less serious, and may only cause the suspension of some of the rights, freedoms and guarantees that are capable of being suspended.

4. Both the choice between a state of siege and a state of emergency and the declaration and implementation thereof must respect the principle of proportionality and limit themselves, particularly as regards their extent and duration and the means employed, to that which is strictly necessary for the prompt restoration of constitutional normality

5. Declarations of a state of siege or a state of emergency shall set out adequate grounds therefore and specify the rights, freedoms and guarantees whose exercise is to be suspended. Without prejudice to the possibility of renewals subject to the same limits, neither state may last for more than fifteen days, or when it results from a declaration of war, for more than the duration laid down by law.

6. In no case may a declaration of a state of siege or a state of emergency affect the rights to life, personal integrity, personal identity, civil capacity and citizenship, the non-retroactivity of the criminal law, accused persons' right to a defence, or the freedom of conscience and religion.

7. Declarations of a state of siege or a state of emergency may only alter constitutional normality in accordance with the provisions of the Constitution and the law. In particular, they may not affect the application of the constitutional rules concerning the competences and modus operandi of the entities that exercise sovereignty or of the self-government organs of the autonomous regions, or the rights and immunities of the respective officeholders.

8. Declarations of a state of siege or a state of emergency grant the public authorities the competence to take the steps that are necessary and appropriate for the prompt restoration of constitutional normality.

With regard to procedures , Article 134 provides in p. d) that it is within the President's powers "to declare a state of siege or a state of emergency, in compliance with the provisions of Articles 19 and 138". Article 138 of the Constitution provides that the "declaration of a state of siege or a state of emergency requires prior consultation of the Government and authorization by the Assembly of the Republic [Parliament], or, if the Assembly is not sitting and it is not possible to arrange for it to sit immediately, by its Standing Committee; when a declaration of a state of siege or a state of emergency is authorized by the Assembly of the Republic's Standing Committee, that declaration will then to be confirmed by the Plenary as soon as it is possible to arrange to it for sit".

San Marino

The Constitution of San Marino is enshrined in the Declaration on the Citizens’ Rights and Fundamental Principles of San Marino Constitutional Order (hereafter the Declaration), firstly adopted with Law n. 59 of 8th July 1974 and further amended by subsequent legislative acts. The Declaration in and for itself does not foresee specific provisions concerning public emergency or other situations that threaten the life of the nation. There exists, however, a provision attributing emergency powers to the Captains Regent (“Capitani
Reggenti”), who jointly hold the Office of Head of State (Article 3, paragraph 1, of the Declaration). In fact, Article 3 paragraph 3, of the Declaration provides that “[i]n case of urgency and after having heard the opinion of the Congress of State [the executive body], [the Captains Regent] may issue Regency Decrees which, under penalty of nullity, shall be ratified by the Great and General Council within three months.”

The possibility to restrict the exercise of certain human rights is also envisaged under the Declaration, although such restrictions do not specifically concern emergency situations. Under Article 6 paragraph 1, the Declaration provides that “[e]verybody shall enjoy civil and political freedoms in the Republic. [...]. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary for the protection of public order and general welfare”.

The power of the Executive (the Congress of State) to issue emergency regulations is regulated by Constitutional Law n. 183/2005 and Qualified Law n. 184/2005.

Serbia

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.

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.

Slovakia

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.

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).

Spain

Article 116 of the Spanish Constitution of 1978 (henceforth, SC) provides for three types of emergency situations: state of alarm, state of exception and state of siege (the most serious limitations). It establishes conditions in which they should declared; the specific circumstances that allow for their declaration are not defined and are to be developed in an organic law.

A state of alarm is proclaimed by the Government, for a maximum period of fifteen days. The Congress of Deputies shall be informed and must meet immediately. Without their authorization the said period may not be extended. The decree shall specify the territorial area to which the effects of the proclamation shall apply.

A state of emergency shall be proclaimed by the Government with prior authorization by the Congress of Deputies, may not exceed thirty days, subject to extension for a further thirty-day period, with the same requirements.

A state of siege (martial law) shall be proclaimed by absolute majority of the Congress of Deputies, exclusively at the proposal of the Government. Congress shall determine its territorial extension, duration and terms.

In addition, under Article 86 of the Constitution, in cases of "extraordinary and urgent need", the Government may issue temporary legislative provisions which shall take the form of Decree-Laws and which may not affect the regulation of the basic State institutions, the rights, duties and liberties contained in Title I, the system of the Autonomous Communities, or the General Electoral Law. he Decree-Laws must be submitted forthwith to the Congress of Deputies and voted within thirty days after their promulgation.

Sweden

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.

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.

Switzerland

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.

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.

North Macedonia

The Seventh chapter of the Constitution of North Macedonia regulates the states of war and emergency. Article 124 of the Constitution regulates that a state of war “exists when direct danger of military attack on the Republic is impending, or when the Republic is attacked, or war is declared on it.”

Differently to this, Article 125 regulates that a state of emergency can be declared on the territory of the North Macedonia or on part of it. As reason for declaring a state of emergency, the Constitution regulates that “a state of emergency exists when major natural disasters or epidemics take place.”

The Constitution regulates the same procedure for declaration of state of war or emergency. A state of war or emergency is declared by the Assembly by a two-thirds majority vote of the total number of Representatives of the Assembly, on the proposal of the President of the Republic, the Government or at least 30 Representatives. If the Assembly cannot meet, the decision on the declaration of a state of war is made by the President of the Republic who submits it to the Assembly for confirmation as soon as it can meet.

The difference between two special regimes (state of war and state of emergency) that the Constitution limits the duration of the period in which the decision of the Parliament to declare emergency situation can remain in force (maximum of 30 days), while there is not such limitation for the state of war.

During the state of emergency (and the state of war) the Government may legislate through the decrees having the force of law (see also Q9)

Tunisia

The 2014 Constitution provides for a “state of exception”.

Article 80 of the Constitution states that in the event of imminent danger to the national integrity, security or independence and impeding the regular functioning of the public authorities, the President of the Republic may take the measures required by the state of emergency, after consultation with the Head of Government, the President of the Assembly of People's Representatives and after informing the President of the Constitutional Court.

The President announces these measures in a message to the people. The aim of these measures is to ensure, as soon as possible, the return to regular functioning of public authorities. During this period, the Assembly is considered to be in a permanent session. In this situation, the President cannot dissolve the Assembly and cannot be presented with a motion of censure against the Government. Thirty days after these measures came into force, and at any time thereafter, the Constitutional Court may be involved, at the request of the President of the Assembly of The People's Representatives or thirty of its members, to rule on the maintenance of the state of emergency.

Article 77 of the constitution stipulates that the President of the Republic can take the measures required by the state of emergency and proclaim them in accordance with Article 80.

Turkey

Article 119 of the Constitution provides that in the event of war, rebellion, widespread acts of violence etc., or in the case of occurrence of natural disasters, outbreak of dangerous epidemic diseases or emergence of a serious economic crisis the President of the Republic may declare state of emergency in one region or nationwide for a period not exceeding six months.

This declaration shall be submitted for approval to the Grand National Assembly of Turkey on the same day. If the Grand National Assembly of Turkey is in recess, it shall be immediately summoned.

The Grand National Assembly may extend the period for a maximum of four months each time at the request of the President of the Republic. In the event of war, this time-limit shall not apply.

In the event of state of emergency, the President of the Republic may issue presidential decrees on matters necessitated by the state of emergency. Limitations set forth in the second sentence of the seventeenth paragraph of the Article 104 (for example not to regulate by decrees issues of fundamental rights or matters which are within the exclusive competency of the legislator or regulated by law) are inapplicable during the emergency. Such decrees which have the force of law shall be submitted for approval to the Grand National Assembly of Turkey on the same day.

Except in the case of inability of the Grand National Assembly of Turkey to convene due to war or force majeure events, presidential decrees issued during the state of emergency shall be debated and decided in the Grand National Assembly of Turkey within three months. Otherwise presidential decrees issued during the state of emergency automatically lose effect.

Ukraine

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).

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)

United Kingdom

The constitution of the United Kingdom is not comprised of a single codified document but is rather to be found in a multitude of ordinary statutes, rules of the common law, and non-legal conventions. It is not therefore possible to identify specific “provisions in the constitution”. It makes little difference for these purposes whether particular provisions which serve to regulate emergencies are to be considered “constitutional” or “part of the constitution”. States of emergency are generally regulated by ordinary statutes.

The United Kingdom is comprised of four different nations, each of which has, to a greater or lesser extent, its own legal system. Accordingly, it is at times necessary to consider each jurisdiction individually.

United States of America

Article I, Section 8 of the United States Constitution grants to Congress powers relating to war and military action: to declare war; to raise and support armies; to provide and maintain a navy; and to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions.

Article II, which vests Executive Power in the President (Section 1), also makes the President the Commander-in-Chief of the army and navy (i.e., the armed forces in general). This Commander-in-Chief power also extends to the militia when called into federal service (Section 2). Moreover, Article II, Section 3 requires that the President “take care that the laws be faithfully executed….”

According to the doctrine, there are three specific exceptions to general rules in the case of an emergency situation, two concerning individual rights and the third concerning the powers of the states vis-a-vis the national government. First, the privilege of the writ of habeas corpus cannot be suspended, “unless when in cases of rebellion or invasion the public safety may require it.” Second, no one may be charged with a capital or otherwise infamous crime without an indictment by a grand jury, “except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger.” Third, no state may engage in war, “unless actually invaded, or in such imminent danger as will not admit delay (see ” William B. Fisch, Emergency in the Constitutional Law of the United States, 38 AM. J. COMP. L. SUPP. 389, 389-391 (1990). “There is no indication either in the document itself, or in the adoption literature supporting it, of an intention to provide exceptional rules for non-military emergencies.” That is, there is no evidence that the Framers of the Constitution wanted “to permit certain government action in emergency situations which would be impermissible in normal times.” Rather, “it appears to have been assumed that the power to regulate encompasses whatever power is needed to deal with emergencies.” Thus, the Article I and Article II powers to regulate in emergency situations threatening the nation extend to non-military emergencies. The COVID-19 pandemic therefore falls under the purview of these governmental powers.