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
3. Do organic or ordinary laws on health risks or other public emergency exist in your country?
Law no. 45/2019 "On Civil Protection" is an ordinary law which aims to reduce the risk of disasters and the implementation of civil protection to guarantee the protection of human life, property, cultural heritage etc. This law regulates the functioning of the civil protection system, defining the responsibilities of the institutions and structures of this system, international cooperation, the rights and obligations of citizens and private entities, education, training and inspection.
There are a number of ordinary laws on health risks or other public emergency, in particular Law on protection of the population during the situation of emergency, Law on protection of the population during the situation of emergency, Law on Medical Care and Service of the Population, Law on the rescue service, Law on seismic protection, Law on fire safety, Law on Civil Defense.
The health matters are regulated, in particular, by the Epidemic Acts of 1950 (Epidemiegesetz 1950). This law constitutes the basis for the measures implemented during the current Corona crisis (see Q8 and Q9.). It determines, among others, the conditions for a quarantine of sick individuals (section 7); disinfection of objects and rooms (section 8); blocking of apartments, ban on funeral ceremonies (section 12); measures against the gathering of large crowds of people (section 15); closure of educational facilities (section 18); operating restrictions or closure of commercial operations (section 20) and restrictions on transport to foreign countries (section 25).
The Law on sanitary and epidemiological safety was adopted in 1992 (No. 371) - for the text in Azeri click here
Several ordinary laws relate to health risks or other emergency situations.
In addition to the laws listed in the answer to the second question, in Bosnia and Herzegovina there are also the Law on Protection of the Population from Infectious Diseases of the Federation of BiH and the Law on Protection of the Population from Infectious Diseases of the Republika Srpska.
Тhe protection of the citizens’ health is regulated by the Health Act from 2004, which was also amended during the pandemic.
Yes, it is reulgated by the Quarantine Law of 1932 (see Q2)
The general legal regulations on the state of emergency are enshrined in the Constitutional Law on the Security of the Czech Republic (No. 110/1998 Coll.) and the Law on Crisis Management and on amendments of certain acts (No. Act N. 240/2000 Coll., so called Crisis Law). More specifically, on health risks, the protection of health is indicated as one of the basic duties of the Czech Republic in Article 1 of the Constitutional Law on the Security of the Czech Republic. Threats to health may trigger, depending in their severity and extent, any of the four types of the state of emergency known in the Czech Republic. The legal regulation in this area is complemented by the Law on the Protection of Public Health (Law No. 258/2000 Coll.) which regulates the adoption of exceptional measures at epidemics (§ 69). This law gives the Ministry of Health and spme other state authorities specific powers combat an epidemic, but the use of these powers is not linked to the declaration of a state of emergency (or other emergency regime).
There is general health legislation providing for measures during e.g. epidemics and pandemics. The general law is “Law on measures against contagious or other transferable diseases” (“Lov om foranstaltninger mod smitsomme og andre overførbare sygdomme” - see in Danish here). This law provides for a number of administrative measures during e.g. epidemics and pandemics. It was amended twice in March 2020 following the outbreak of Covid-19 (the amendments in Danish are here). The amendments had a sunset clause (March 2021).
Yes, an ordinary law provided for it.
The legal basis for the control of infectious diseases is provided by the Federal Act to Prevent and Combat Infectious Diseases in Humans – Infection Protection Act (Gesetz zur Verhütung und Bekämpfung von Infektionskrankheiten beim Menschen – Infektionsschutzgesetz – IfSG) of 2001. The legal purpose is to prevent communicable diseases in humans and to stop their further spreading (§ 1 IfSG).
The Disaster Management Act sets out the duties of disaster management bodies, and in particular the Government, as well as the framework for cooperation between government agencies and citizens. Compared to earlier regulations the Act moves the administrative action to the centralised authorities.
Such provisions are to be found in the Health Act 1947 - for a copy click here. This law was amended by the Health (Preservation and Protection and Other Emergency Measures in the Public Interest) Act 2020 at the start of the Covid crisis. This law gives the Minister for Health power to make regulations containing restrictions on travel and activities and attach penal sanctions. The law also provided for emergency social welfare payments.
In addition to the legislation on civil protection (see Q2) Law n. 833/1978, establishing the National Health Service, enables the Ministry of Health to adopt urgent orders aimed at regulating an health emergency arising at the national level, as well as the Presidents of the 19 Regions and 2 Autonomous Provinces to adopt urgent orders aimed at regulating an health emergency arising at the regional level.
In South Korea, “Infectious Disease Control and Prevention Act [IDCPA]” is already implemented as a general law to deal with the spread of infectious diseases. The purpose of this Act is to contribute to improving and maintaining citizens' health by preventing the occurrence and epidemic of infectious diseases hazardous to citizens' health, and prescribing necessary matters for the prevention and control thereof. The IDCPA is the most relevant law in effect regarding the COVID-19 outbreak in South Korea. The IDCPA endows the government with specific means to distribute resources, mobilize and stimulate various actors across the whole society in the effort to fight against the spread of infectious diseases.
: The Kyrgyz Republic has a number of laws regulating the health sector. Due to the Covid-19 pandemic, the most vulnerable group became the medical professionals who directly treated patients with coronavirus infection. Despite the presence of protective suits, respirators and masks, the number of medical personnel infected with Covid-19 was quite high. In this connection, the Parliament of the Kyrgyz Republic introduced amendments to the Law of the Kyrgyz Republic «On the Status of the Medical Worker» aimed at the social protection of medical workers.
Due to the provisions of the Customs Treaty between Switzerland and the Principality of Liechtenstein, the Swiss Epidemiegesetz (Epidemic Act) (see in French here) is applied in Liechtenstein as well; the relevant Swiss provisions were promulgated by LGBl 2020/Nr. 128.
The Law on the Prevention and Control of Contagious Diseases in Humans sets out the foundations for the management of the prevention and control of communicable diseases in humans, dispute settlement and damage compensation, liability for the violations regulations on communicable diseases, compensations for costs related to the prevention measures etc.
The Health Law (for the text in Spanish click here provides, in Article 356, that when the circumstances necessitate, the Ministry of Health may determine areas or premises of isolation for sanitary purposes.
There is a Civil Security Organization Act 1-283 of 7 June 2004 that provides for the implementation of several categories of contingency plans, including an "Ormose" plan to address major risks.
The only legal norm that exists is the law on the state of health emergency (see Q2).
Norwegian law contains both specific laws on public emergencies, including war, health crisis, and infectious diseases, as well as emergency provisions in other statutes.
Yes. Act Nº 26842, General Act of Health, of July 20th, 1997, includes provisions for declaring quarantine, among other security measures, in its Articles 130 to 132. The most important of these norms is the last one, which establishes the principles of proportionality this measure should comply with:
In a situation where there are serious health risks, or in other case that require a prompt contingency response, outside the exceptional conditions of declaration of the state of siege or emergency, the ordinary law (Framework Law of Civil Protection - Law nº 27/2006, of 3 July 2006) foresees three levels of intervention according to the seriousness of the situation: alert situation, contingency situation, and public calamity.
Under organic or ordinary law, no specific provisions exist on health risks or other public emergency besides
The Law on the protection of population from infectious diseases, which has been applied in the current situation of the COVID-19 pandemic - click here (in Serbian)
There are two ordinary laws which contain further regulation on health risks and other public emergencies.
Yes. Of the three exceptional regime provided for in Article 116 SC and in Organic Law 4/1981, of 1 June, on states of alarm, exception and siege, only the state of alarm expressly provides that it may be declared in the event of "health crises, such as epidemics and serious pollution situations" [Art. 4.b) LOEAES].
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.
With the Federal Act on Combating Contagious Diseases of Human Beings of 28 September 2012 (Epidemics Act - for relevant extracts in French click here), the Swiss Confederation has been equipped with a law that intends to protect the population from the outbreak and spread of contagious diseases (Article 2 of the Epidemics Act). Due to the restrictions on fundamental rights and the shift of certain powers from the cantonal to the federal level the Act brings along, it was intensely discussed in par-liament and in the public sphere. The facultative referendum was taken against the Act, how-ever, in the popular vote, the majority of the voters was in favour of the Act.
The following ordinary laws exist:
Law 92-71 of 27 July 1992 relating to communicable diseases, amended and supplemented by Law 27-12 of 12 February 27.
Management of epidemies is regulated by Law No. 1593 on Protection of Public Health dated 24/4/1930. This law includes provisions for the protection and administration of public health, the fight against diseases, ensuring public health in general, the fight against infectious diseases and the necessary measures to be taken for public access to health services.
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).
The UK legal order does not provide for "constitutional" or "organic" legislation, i.e. laws which are above ordinary statutes and are adopted by a supermajorities or in special procedures. Furthermore, since UK is composed of four legal orders, the term “UK law” refers to law which applies without (significant) differentiation across the four nations of the UK.
At Federal Level: Title 42 of the United States Code, amended by the Public Health Service Act, provides that “the Secretary may take such action as may be appropriate to respond to the public health emergency, including making grants, providing awards for expenses, and entering into contracts and conducting and supporting investigations into the cause, treatment, or prevention of a disease or disorder . . . .” 42 U.S.C. §247 (2019). Furthermore, the “Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” 42 U.S.C. §264 (2002).
Albania
Article 17 § (b) of Law no. 45/2019, “On Civil Protection” provides that the Assembly shall exercise parliamentary control over the issues related to civil protection.
Law no. 15/2016 "On the prevention and control of infections and infectious diseases", as amended, is an ordinary law and aims to protect the population from infections and infectious diseases, defining the rules and activities for timely detection, identification, prevention and their control. This law defines the responsibilities and role of health services, public health services, as well as other actors of all levels, public and non-public, in taking measures to prevent, control, treat, monitor, provide funding and share responsibilities for infectious diseases and events of public health importance.
Armenia
Austria
In early March 2020, parts of this law have been replaced by new legislation on the Covid-19 pandemic (see below, in particular Q4, Q8, and Q9).
There is also the Law on Epizootic Diseases (Tierseuchengesetz) which authorizes the Federal Chancellor According to order sanitary measures and veterinary measures in order to prevent or combat diseases.
Azerbaijan
Belgium
To take measures to combat the spread of the Covid, involving restrictions on freedom of movement and other fundamental freedoms (see Q8), the federal government did not rely on the law of March 27, 2020 assigning special powers to the King (see Q2), but on article 4 of the law of 31 December 1963 on civil protection (Mon .b. 16 January 1964), articles 11 of the law of 5 August 1992 on the function of police (Mon. b. December 22, 1992), and especially on article 181 of the law of May 15, 2007 relating to civil security (Mon. B. July 31, 2007), which provides: “The minister or his deputy may, in the event of dangerous circumstances, in order to ensure the protection of the population, force the latter to move away from places or regions particularly exposed, threatened or damaged, and assign a temporary place of stay to the persons targeted by this measure ; it can, for the same reason, prohibit any displacement or movement of the population. The same power is recognized in the burgomaster. "
On the basis of these provisions, the Minister of the Interior issued the ministerial decree of March 23, 2020 on emergency measures to limit the spread of the Covid-19 coronavirus (Mon. b. 2nd ed., March 23, 2020) which was repealed and replaced by the ministerial decree of June 30, 2020 on emergency measures to limit the spread of the Covid-19 coronavirus (Mon. b. June 30, 2020) which in turn was repealed and replaced by the Ministerial decree of October 18, 2020 on emergency measures to limit the spread of the COVID-19 coronavirus (Mon. B. October 18, 2020)
These ministerial decrees were prepared within the National Security Council, chaired by the Federal Prime Minister, in which the ministers-presidents of the governments of the federated entities participated, among others. Since the new Belgian government took office in October 2020, the ministerial decree has been prepared by the Concertation Committee, which is made up of six federal ministers and six ministers from the governments of the federated entities.
In this context, it is important to stress that "preventive medicine", with the exception of national prophylactic measures, falls within the competence of the Communities. (art. 5, § 1, 8 of thed Special law of August 8, 1980 on institutional reforms) The Flemish Community, the Walloon Region, which has taken over this competence from the French Community, the German-speaking Community and in Brussels, the Common Community Commission and the French Community Commission, have therefore adopted decrees / ordinances to combat the spread of communicable diseases, such as Corona disease.
Bosnia and Herzegovina
Bulgaria
Furthermore, due to the COVID-19 crisis t several legal acts have been adopted or amended; they introduced measures coping with the situation. Several Orders were issued by the Minister of Health or by other executive authorities - for example, the Minister of Agriculture, Food and Forestry issued Ordinance № 2 of 5.08.2020 on the implementation of measure on the “Extraordinary temporary support for farmers and small and medium-sized enterprises that are particularly affected by the crisis caused by COVID-19” of the Rural Development Program for the period 2014 – 2020 (promulgated, SG, no. 70 of 7.08.2020).
Cyprus
Czech Republic
The Municipal Court in Prague has ruled that in a state of emergency, interventions by the government should take precedence over interventions by the Ministry of Health:
‘The fact that the challenged measures were adopted by the Ministry of Health, and not by the government, amounts to a breach of the constitutional guarantees of division of powers. In the process of adopting crisis measures pursuant to the Crisis Management Act, the government is under a continuous supervision of the Chamber of Deputies. […] As a result of adopting the challenged measures by the Ministry of Health pursuant to the Act on the Protection of Public Health, such supervision by the Chamber of Deputies was excluded. The [Ministry] has therefore limited the constitutionally guaranteed power of the Chamber of Deputies.’ (para 152)
Denmark
Measures under the law include:
• Authorities for the health agencies to prescribe that anyone suffering from, or assumed to be suffering from, generally dangerous diseases should be hospitalized or isolated etc.
• Prohibitions on the assembling of several people in one place at the same time.
• Prohibitions against any person being at a certain place (e.g. parks where many people usually assemble).
These measures cannot be taken with respect to religious or political assemblies.
The competency to decide on those measures, before the March 2020 amendments, belonged to regional Epidemic Commissions, composed of representatives from police; emergency management authorities; health authorities; and three local politicians. After the 2020 amendments some of the powers of the regional Epidemic Commissions were transferred to the Minister of Health and the Elderly. The Minister obtaned the power to order persons who are suspected of being infected to be isolated, the power to ban larger gatherings, events, limit access means of transport. The amendments also introduced the information obligation to detect the spread of the virus,and amended some other legislation in the health sector (limiting, for example, the right to free choice of hospital).
France
Section L.3131-1 of the Public Health Code allows the Minister of Health to take any proportionate and appropriate action "in the event of a serious health threat requiring emergency action."
Some measures could be taken on the basis of this section before the Law 2020-290 of 23 March 2020 which added an article L.3131-12 creating a "health state of emergency".
Parliament has requested a revision of those measures in March 2021, as these provisions are only applicable until that date. A vote will have to take place before that date to give them, eventually, a permanent character.
Germany
Until March 2020 (when the IfSG was revised - see below) the IfSG left only a coordinating role for the federal government and the Robert Koch institute, the federal agency and research institute responsible for disease control and prevention. When the Covid-19 reached Germany the IfSG gave primary responsibility for threat prevention and maintenance of public order to the 16 states and their governments, which had to implement the provisions of the IfSG and to determine the type and scope of the required measures.
The authorities responsible for measures are determined by ordinance of the Länder governments, unless there is a Land law regulation (§ 54 I IfSG). Ordinances (Rechtsverordnungen) of the Länder governments to prevent the spread of infectious diseases are issued on the basis of § 32 IfSG and have state-wide effect. Lower administrative authorities, the cities and municipalities, issue general orders (Allgemeinverfügungen) on the basis of Paragraph 28 IfSG. This means that a multitude of Land and local authorities are performing tasks under the IfSG.
On March 27, 2020, the federal Infection Protection Act was revised as a part of the massive legislative "corona crisis package“ (the Act for protecting the Population in the Event of an Epidemic Situation of National Importance containing amendments to several existing laws). In addition to measures to mitigate the consequences of the pandemic, these amendments also aimed at expanding the competencies of the federal government.
On the same day with the same legal act and effect on April 28, 2020, the Bundestag declared a national emergency in case of the "epidemic situation of national significance“ (§ 5 I IfSG) and authorized the Ministry of Health under the revised provisions to restrict cross-border-traffic and check identity and health at the borders (§ 5 II lit. 1, 2 IfSG). Measures to ensure the supply of medicines, medicinal products, medical devices, desinfectants, products for laboratory diagnostics or measures to strengthen human resources in the health sector can be regulated by ordinance of the ministry of health; ordinances can allow exceptions to sub-statutory health care provisions to ensure health care. Ordinances and orders issued pursuant to § 5 II IfSG shall be effective until the statement of the epidemic situation has been lifted, but shall expire no later than March 31, 2021, at the latest (§ 5 IV IfSG).
Two Länder parliaments (Landtage) adopted additional legal acts. The Bavarian Landtag passed already on March 25, 2020, an Infection Protection Act (Bayerisches Infek-tionsschutzgesetz, BayIfSG). North-Rhine-Westphalia followed on May 21, 2020 with the Infection and Powers Act (Infektions- und Befugnisgesetz, IfSBG NRW).
Hungary
The Health Care Act CLIV of 1997 defines health crisis as any event, usually unexpected, which endangers or damages the life, physical integrity, health of the citizens or the functioning of healthcare institutions, which requires the cooperation of public health bodies, health care instututions and other state and municipal bodies. The state of health crisis shall be declared by the minister responsible for healthcare. In the event of a health crisis, the patients' rights specified in the Health Care Act may be exercised only if and to the extent that they do not jeopardize the effectiveness of the elimination of the health crisis. However, the patient's right to human dignity cannot be restricted in this case either.
In relation to a COVID-19 crisis, a new act was adopted in 2020: Act LVIII of 2020 on the transitional measures related to the termination of the state of danger and on epidemiological preparedness. It amended the rules of health crisis and provided the Government with a wide range of crisis management powers. The amendment sets out that – if the statutory preconditions exist – the state of health crisis ("epidemiological preparedness") shall be declared by governmental decree on the proposal of the minister responsible for healthcare based on the recommendation of the chief medical officer. According to the amendment by means of a decree the Government could restrict or prohibit:
• the operation of any institutions, establishments, events and activities which may contribute to the spread of the epidemic,
• the operation and opening of shops,
• the passenger traffic between certain areas of the country and between Hungary and another country,
• the transport of animals or goods,
• the personal contact of citizens of certain areas of the country, as well as residents of Hungary and other countries
• visiting certain institutions (medical, educational, social child welfare etc.)
• leaving certain areas,
• the sale, consumption or purchase of certain foods
• the consumption of drinking water,
• keeping certain animals.
Additionally, the Government may set out provisions aiming to regulate e. g. supply of medicines, medical aids and health services; the rules on wearing protective equipment; the time period reserved for the elderly in shops and markets; traffic restriction or traffic ban; epidemiological isolation; delivery of consignments. The Government may exercise its power insofar as those are necessary and proportional to the purpose of preventing, tackling and eliminating the health crisis, and preventing and combating its detrimental effects, and may not impose curfew during the state of epidemiological preparedness.
Further amendments stipulate that if the measures outlined by the crisis management law are insufficient, the Government may, in order to guarantee that life, health, person, property and rights of the citizens are protected, and to guarantee the stability of the national economy, by means of a decree, suspend the application of certain Acts, derogate from the provisions of Acts and take other extraordinary measures during a state of danger declared in the event of human epidemic. The Government may exercise its power for the purpose of preventing, controlling and tackling the human epidemic, and preventing and combating its detrimental effects, to the extent necessary and proportionate to the objective pursued.
Ireland
In addition the Emergency Measures in the Public Interest (Covid-19) Act 2020 was enacted to make emergency provisions for the application of other regulatory schemes in other laws, including the registration of health professionals.
During April and May of 2020 regulations were made by the Minister for Health under the Health Act 1947 as amended by the recent provisions.
These regulations included the Health Act (Affected Areas) Order 2020 designating the entire territory of the state as an infected area.
In addition the Health Act 1947 (S31A-Temporary Restrictions) (Covid-19) Regulations 2020 introduced restrictions from April 8 to end on April 12. These were extended from April 10 to 5 May, and later with variations until June 8. There are also regulations about a compulsory form for incoming travellers.
Italy
Korea, Republic
This Act stipulates certain powers and responsibilities of the state, local governments and medical personnel, in addition to the rights and duties of the people. The law also has a wide range of regulations, including those on basic plans and projects for prevention and surveillance management of infectious diseases, process of notification and reporting on diseases, epidemiological investigations, preventive measures, and compensation. The current Act was adopted following the 2015 Middle East Respiratory Syndrome (MERS) outbreak. The Act was initially enacted in 1954 as an independent law with far fewer provisions compared to the current one, and has been so far revised over forty times, largely in response to miscellaneous infectious disease threats, including MERS.
In addition, the Framework Act on the Management of Disasters and Safety, the Quarantine Act, the Regional Public Health Act, and the Prevention of Acquired Immunodeficiency Syndrome Act is already in place to combat the spread of infectious diseases.
Kyrgyzstan
In particular, health-care workers of State and municipal health-care organizations who perform their professional duties and are at high risk of harm to their health during a state of emergency or emergency situation, compensation is paid as determined by the Government of the Kyrgyz Republic.
Medical personnel of State and municipal health-care organizations performing their professional duties in the sanitary-quarantine zone are subject to the regime of heavy work and work with harmful and dangerous working conditions, and compensation is paid, as determined by the Government of the Kyrgyz Republic.
A number of other amendments were adopted. The above-mentioned amendments were adopted by the Parliament of the Kyrgyz Republic in May 2020.
Liechtenstein
The government of the Principality of Liechtenstein used the abovementioned provisions to issue the Regulation of 13 March 2020 on the Measures to Fight the Coronavirus (COVID-19). The regulation was published by the LGBl 2020/Nr. 94.
Lithuania
This law, inter alia, gives a definition of the quarantine regime, defines, in Article 21, the the purpose of quarantine (to set up a special procedure, restrictions and conditions for the work, living, rest and movement of persons and their economic and other activities in order to limit the spread of communicable diseases).
Under the law, quarantine must not exceed 3 months and can be extended for not more than one month each time. Quarantine can be imposed nationwide or in several municipalities by the decision of the Government upon submission by the Minister of Health, or on the territory of one municipality by the decision of the Government upon joint submission by the Direction of the Administration of the Municipality concerned and the Minster of Health.
Another legal regime provided for by this law is qualified quarantine, which is applied in cases of mass outbreaks of serious communicable diseases. This quarantine covers a limited territory, specific object, specific raw material and (or) product or a specific service. Modalities of this type of quarantine are determined by the chief epidemiologist of the Republic of Lithuania or the chief epidemiologist of the county.
This law also regulates questions of mandatory hospitalisation and (or) isolation of patients, persons suspected to be ill, those who have been exposed to or are carriers of agents, which have been relevant during the period of the Covid-19 pandemic.
Another law which is relevant in the circumstances of the COVID-19 crisis is the Law on the State of Epergency and the law on the Civil Protection (see Q2)
Mexico
Article 73.XVI.1a of the Health Law creates a National Health Council at the federal level subordinated to the President and empowered to enact regulations.
Under Article 73.XVI.2a the federal Ministry of Health has the power to take all "preventative measures" in the case of grave pandemics.
Article 184 of the Health Law empowers the Ministry of Health to undertake all measures deemed necessary, in particular regulate gatherings and movement of people, regulate land, maritime, and air traffic, use means of communication, etc.
Monaco
It should be noted that the measures taken in Monaco in the context of this health crisis were mainly in reference to the WHO International Health Regulation, made enforceable in Monaco and implemented by Sovereign Ordinances 3.153 of 24 February 2011 and 6.387 of 9 May 2007.
It should also be noted that the general provisions applicable in times of health crisis do not fall under a specific legislative system.
The normative framework is therefore:
-WHO health regulations to combat epidemics;
-the Civil Security Act of 1-238 of 2004;
-the 2016 National Security Preservation Act 1.430, which assigns jurisdiction to the Minister of State in the event of threats that could affect, in particular, the safety of persons.
-the Sovereign Ordinance of 6.387 of 9 May 2017 which, under the aforementioned WHO regulations and in the event of a threat of epidemic, gives the Minister of State the powers to take measures to deal with these threats.
Morocco
Norway
a. Infectious diseases, regulating movement, isolation and other measures: 1994 Act relating to control of communicable diseases (smittevernloven)
b. Health emergencies, regulating health personnel, medical supplies and resources etc.: 2000 Act on health and social preparedness (helseberedskapsloven)
c. Emergencies affecting the supply chain of goods and services: 2011 Act on business and industry preparedness (næringsberedskapsloven)
d. War: 1950 Act relating to special measures in time of war, threat of war and similar circumstances
e. War, threaths to the nation and peacetime emergencies, allowing for mandatory public service and the requisition of property: 2010 Act on municipal preparedness, civilian protective measures and the Civil Defence
f. Examples of emergency provisions in other general statutes:
i. Article 16 of the 2000 Act on radiation protection and use of radiation
ii. Articles 9-1 to 9-7 in the 2009 Energy Act
Peru
All safety measures taken by the Health Authority under this law are subject to the following principles:
(a) They must be proportionate to the aims pursued;
(b) Their duration should not exceed what is required by the imminent and serious situation of danger that justified them; and
c) Measures should be preferred that are effective for the achieving the aim pursued but cause minimal harm to free movement of persons and goods, freedom of enterprise
and any other rights affected.
Article XII of the Preliminary Title of the aforementioned Law has provided that the exercise of right to property, to the inviolability of the home, to the free movement of people, to freedom of work, business, commerce and industry, as well as the exercise of the right of assembly, are subject to the limitations established by law in protection of public health.
Portugal
In addition, certain measures are described by the Framework Law on the Health Protection (for the text in Portugese click here and the Law on Law on Public Vigilance of Health Risks, which provides for measures which can be adopted by the executive in case of a public health emergency (including the closure of businesses or isolation of sick persons) - for a text in Portugese click here.
San Marino
those specifically adopted to tackle the COVID-19 pandemic.
Serbia
Slovakia
Law no. 42/1994 on the Civil Protection of Population authorises the Government to declare an extraordinary situation if there is a threat to life, health or property due to natural disasters, accidents, public health emergencies or terrorist attacks. This declaration confers certain extraordinary powers on public authorities and imposes various duties on citizens for preventing or managing the consequences of the crisis (§§ 2, 3, 8). The measures taken may include rescue operations, evacuation, emergency provisioning and emergency housing. The law has a subsidiary role in relation to the declaration of state of emergency and it is not applied if a state of emergency has been declared (§ 3b). The extraordinary situation was declared on 11 March 2020, i.e. only a few days before the state of emergency, but continued after the first state of emergency ended.
Law no. 355/2007 on Protecting, Supporting and Developing Public Health Care (hereinafter “Law on Public Health Care”) confers certain powers on the Public Health Authority of the Slovak Republic. The Public Health Authority may take measures aimed at disease prevention and at addressing public health crises (§ 5 par. 4 letter k)). The measures pursuant to § 48 par. 4 may include:
• prohibit the production, treatment, storage, transport, import, sale and other handling of products and animals which may cause the spread of a disease within the population, or an order for their non-hazardous elimination;
• impose a prohibition or restriction on the contact of some groups of persons with the rest of the population following the detection of serious health reasons;
• impose a prohibition or restriction on collective events;
• impose a prohibition or restriction on the operation of facilities where the assemblage of persons takes place;
• impose a prohibition on the use of water, foodstuffs and meals, items suspected of contamination and animal feeds and regulation of the consumption of certain kinds of foodstuffs and water;
• issue an order for the reservation of beds for the provision of hospital treatment of an increased number of sick persons and, in the case of serious infections, for ensuring the isolation of persons suspected of harbouring a disease or suspected of contamination throughout the maximum incubation period of the disease;
• issue an order for the special handling of deceased persons, the reservation of sites and determination of the method of interment of an increased number of deceased persons.
Spain
Regarding health legislation, Law 33/2011, of 4 October, General Law on Public Health and Organic Law 3/1986, of 14 April, on Special Measures in the Field of Public Health should be mentioned.
Both rules relate exclusively to the field of health protection, recognised by Article 43 SC, and do not extend their provisions to other fields or regulate other rights which might be affected by a situation of a global health crisis of the intensity of COVID-19. Furthermore, none of these rules expressly provides for any limitation of fundamental rights or for the involvement f Parliament (specifically, the Congress of Deputies), both in the initial declaration of the state of alarm by the Government and in the necessary approval of successive extensions by the Congress.
Organic Law 3/1986, of 14 April, on Special Measures in Public Health Issues, aims to "protect public health and prevent its loss or deterioration", for which "the health authorities of the various public administrations may, within the scope of their powers, adopt the measures provided for in this Law, when so required for urgent or necessary health reasons". These measures refer to the treatment, hospitalisation and control of patients, and of the immediate environment, if there is a health hazard for the population and in the case of transmissible diseases (arts. 1, 2 and 3). Measures may also be taken to ensure the supply and distribution of the necessary medical products (art. 4).
Law 33/2011 of 4 October, the General Law on Public Health, aims to "achieve and maintain the highest possible level of health of the population", and, specifically, "to lay the foundations for the achievement and maintenance of people's health at the highest possible level, by means of policies, programmes, services and, in general, actions of all kinds carried out by public authorities, companies and citizens' organisations with the aim of acting on the processes and factors that most influence health, and thus prevent diseases and protect and promote people's health, both in the individual and collective sphere" (Art. 1).
Article 52 of this General Law on Public Health attributes to the Ministry of Health (state health authority) in some cases, together with its General Directorates, the adoption of special intervention measures to protect public health, in situations of emergency or need and in the face of extraordinary circumstances (Art. 52).
Sweden
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”.
Switzerland
The Act differentiates three stages of situations, activating a different set of measures:
- The so-called normal situation refers to the epidemiological day-to-day business, i.e. pre-vention, surveillance and control of, for example, tuberculosis, meningitis, HIV/AIDS, etc. The Cantons are responsible for the enforcement of the law (Article 75 of the Epi-demics Act), while the Confederation exercises high supervision and, where necessary, coordinates enforcement (Article 77 of the Epidemics Act);
- A special situation (also: epidemiological emergency) occurs either when the proper enforcement bodies are no longer able to hinder and fight the outbreak of contagious diseases (Article 6 al. 1 lit. a of the Epidemics Act) or when the WHO states that there is a public health emergency (Article 6 al. 1 lit. b of the Epidemics Act). In such cases, Article 6 of the Epidemics Act empowers the Federal Council to take measures that limit individual freedoms, to oblige doctors and other health professionals to cooperate in the fight against the disease and to impose compulsory vaccination for particularly vulnerable population groups. Before ordering immediate measures, the Federal Council must consult the cantons;
- The declaration of an extraordinary situation requires a threat for the inner and outer secu-rity of the country. Article 7 of the Epidemics Act authorises the Federal Council to take the necessary measures (see answer to question 10), which means, the Federal Council is also legitimized to take measures which derogate from the law.
North Macedonia
- Law on Crisis Management (Official Gazette of the Republic of Macedonia, No. 29/2005, 36/11, 41/14, 104/15, 39/16 and 83/18).
- Law on Protection of the Population from Contagious Diseases (Official Gazette of the Republic of Macedonia, No. 66/04, 139/08, 99/09, 149/14, 150/15 and 37/16.)
- Law on Public Health (Official Gazette of the Republic of Macedonia, No. 22/10, 136/11, 144/14, 149/15 and 37/16.)
Tunisia
Government decree No. 152 of March 13, 2020.
Turkey
There are also provisions in the Turksih legislation regarding the emergency situations in the following laws:
- Law No. 5902 on Organization and Functions of the Disaster and Emergency Management Presidency
- Law No.7269 on Measures and Assistances to Be Put into Effect Regarding Disasters Affecting the Life of the General Public
- Law No. 4123 on Execution of Services Related to Damage and Disruption Caused by Natural Disasters
- Law No. 7126 on Civil Defence
- Law No. 6306 on Restructuring of Areas Under Risk of Disasters
- Law No. 7402 on Destruction of Malaria
- Law No. 5368 on Fight against Tuberculosis
- Law No. 2548 on Ship Health Charges
- Law No. 3359 Basic Law on Health Services
- Law No. 5442 on Provincial Administration
In particular, the Law on Provincial Administration gives the governor of a province the power to take necessary measures to provide peace, security, and public well-being, which may include measures prohibiting certain people from entering or exiting certain places. The Law on the Protection of Public Health authorizes Public Health Councils, established in all provinces, to take necessary measures against a pandemic, including introduction of a quarantine regime, medical checkups, closure of public places etc. These provisions were applied by the State authorities in dealing with the COVID-19 crisis
Ukraine
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).
United Kingdom
(a) England and Wales
The primary law governing health risks arising from infectious disease in England and Wales is the Public Health (Control of Disease) Act 1984 (PH(CoD)A). The Act grants certain powers to public officials, primarily magistrates and the appropriate minister (defined in s. 45T(6) as meaning the Welsh ministers in respect of Wales, and the Secretary of State in respect of England), to take steps to prevent the transmission of infectious diseases.
(i) Magistrate’s Power to Control Disease
The regulation-making power of the appropriate minister under the statute is defined by reference to the powers of magistrates. The scheme of the Act is to divide the powers of magistrates into orders concerning persons, orders concerning things, and orders concerning premises.
A magistrate may make an order on application from the local authority under s 45G if satisfied that a person is or may be infected, with an infection which presents or could present significant harm to human health, that there is a risk that the person may infect others, and that it is necessary to make the order to remove or reduce the risk (s. 45G(1)). The list of possible orders is set out at s. 45G(2):
The order may impose on or in relation to P one or more of the following restrictions or requirements - submitting a person medical examination, mandatory hospitalisation, imposition of isolation or quarantine, disinfection of the person, the person must provide information about his/her health, subjecting the person to restrictions on where the person goes or with whom that person has contact, and that the person must abstain from working or trading.
The Act provides for analogous powers in respect of things and premises. In respect of things, s. 45H(2) sets out what the magistrate may order that the thing be seized or retained; that the thing be kept in isolation or quarantine; that the thing be disinfected or decontaminated; in the case of a dead body, that the body be buried or cremated; in any other case, that the thing be destroyed or disposed of.
In respect of premises, s. 45I(2) provides that the order may impose the for example the following restrictions or requirements: that the premises be closed, disinfected or decontaminated, or destroyed.
(ii) Power to make Regulation
The Act also empowers the appropriate minister to make regulations which apply generally, on top of the power of magistrates to make orders in respect of particular persons, things or premises.
There are two primary relevant regulatory powers under the Act: the power to make international travel regulations under s. 45B and the power to make domestic regulations under s. 45C. In respect of both, there is a common list of example powers which the regulations may contain (s. 45F(2)):
Health protection regulations may confer functions on local authorities and other persons; create offences; enable a court to order a person convicted of any such offence to take or pay for remedial action in appropriate circumstances; provide for the execution and enforcement of restrictions and requirements imposed by or under the regulations; provide for appeals from and reviews of decisions taken under the regulations; permit or prohibit the levy of charges; permit or require the payment of incentive payments, compensation and expenses; provide for the resolution of disputes.
Regulations under either s. 45B or s. 45C may amend an enactment in order to give effect to an international agreement (s. 45F(3)). Under neither provision can a regulation require a person to undergo medical treatment, including vaccination or other prophylactic treatment (s. 45E). There are restrictions on the kinds of offences which can be created by regulation under either provision: s. 45F(5)-(5A).
The conditions precedent to the exercise of each power, and the scope of each power, are set out in more detail in the relevant enabling provisions.
S. 45B empowers the appropriate minister to make provision to prevent danger to public health or the spread of infection from conveyances, or to give effect to an international agreement relating to the spread of infection or contamination (s. 45B(1)). S. 45B(2) provides further detail as to what those regulations may provide:
Regulations under subsection (1) may in particular include provision for the detention of conveyances, for the medical examination, detention, isolation or quarantine of persons, for the inspection, analysis, retention, isolation, quarantine or destruction of things, for the disinfection or decontamination of conveyances, persons or things or the application of other sanitary measures, for prohibiting or regulating the arrival or departure of conveyances and the entry or exit of persons or things, imposing duties on masters, pilots, train managers and other persons on board conveyances and on owners and managers of ports, airports and other points of entry, and requiring persons to provide information or answer questions (including information or questions relating to their health).
S. 45C provides that the Secretary of State is empowered to “by regulations make provision for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination in England and Wales (whether from risks originating there or elsewhere)” (s. 45C(1)). Regulations made under s. 45C may make provision in relation to infection generally, or in relation to particular forms of infection; and in respect of either can make provision which is general, contingent, or specific to a particular set of circumstances (s. 45C(2)).
S. 45C sets out a cascade of health regulations which the minister may make, with increasingly stringent conditions the more invasive the regulation is. The provision operates by setting out non-exclusive examples of the type of intervention permissible, rather than finite lists of powers.
The first type of regulation is a regulation which does not impose or enable the imposition of restrictions or requirements on people, things, or premises. Examples are set out in s. 45C(3)(a)-(b), which refer to duties on medical practitioners to record or notify cases; or conferring monitoring functions on public authorities. There are no specific limits on the exercise of this power beyond the fact that the provision must be for the purposes set out in s. 45C(1) and reproduced above.
The second type of regulation is a regulation which imposes or enables the imposition of restrictions or requirements on people, things, or premises, aside from “special restrictions or requirements”. A special restriction or requirement is defined as a restriction or requirement which can be imposed by a magistrate by virtue of ss. 45G(2), 45H(2) or 45I(2) (which are reproduced above) (s. 45C(6)(a)). S. 45C(4)(a)-(c) provides examples of non-special restrictions or requirements: they refer to keeping a child away from school, prohibiting or imposing restrictions on an event or gathering, or imposing restrictions or requirements on the handling of human remains.
This second type of regulation can be imposed only “in the event of, or in response to, a threat to public health” (s. 45C(3)(c)). Further, the regulation may only impose restrictions or requirements if “the appropriate Minister considers, when making the regulations, that the restriction or requirement is proportionate to what is sought to be achieved by imposing it,” (s. 45D(1)). Alternatively, if the regulation enables the imposition of a restriction or requirement, the person empowered to impose that restriction or requirement under the regulation must be required to consider that the restriction or requirement is proportionate before they are able to exercise that power (s. 45D(2)).
The third type of regulation is a regulation which imposes or enables the imposition of special restrictions and requirements (s. 45C(4)(d)). In addition to meeting the requirements of “threat to public health” and proportionality applicable to the second type of regulation, there are additional limitations depending on whether the regulation directly imposes the special restriction or requirement, or merely enables the imposition of the restriction or requirement (see the distinction set out in s45D(5)).
If the regulation imposes the special restriction or requirement directly (that is, without any subordinate decision being required before the restriction/requirement is imposed (s45D(5)(b))), then it is subject to the same requirements of “threat to public health” and proportionality applicable to the second type of regulation and set out above. Such a regulation may not directly impose special restrictions or requirements of the sort set out in s. 45G(2)(a)-(d): namely that a person submit to medical examination; be removed to or detained in a hospital or other suitable establishment; or be kept in isolation or quarantine. If these measures are thought necessary, the regulation must enable the decision to impose the restriction or requirement, as set out immediately below.
If the regulation is to enable an authority or person to by subordinate decision impose a special restriction or requirement (s. 45D(5)(a)), it must meet a heightened threshold under s. 45D(4), which provides: regulations under section 45C may not include provision enabling the imposition of a special restriction or requirement unles the regulations are made in response to a serious and imminent threat to public health, or imposition of the restriction or requirement is expressed to be contingent on there being such a threat at the time when it is imposed.
Therefore, it is a condition precedent to enabling the imposition by decision of special restrictions or requirements that the regulation in question is made in response to a “serious and imminent” threat to public health; or alternatively makes the exercise of such power under the regulation contingent on the existence of such a threat. Further, additional safeguards are required where regulations have this effect: there must be a right of appeal against the decision imposing the restrictions or requirements (s. 45F(6)), there must be provision for review of any detention, isolation or quarantine at specified intervals of not more than 28 days (s. 45F(7)-(8)).
A regulation promulgated under s. 45C, which imposes or enables the imposition of a special restriction or requirement, may not be made unless it has been laid before Parliament in draft and approved by a resolution of each House of Parliament, or in the case of Welsh regulations, before the National Assembly for Wales (s. 45Q(4)). However, if the appropriate minister determines that, by reason of urgency, it is necessary to make the regulation without the draft being laid and approved, the regulation can be made without these steps being taken (s. 45R(2)). Once a regulation is made under this emergency procedure, it must be laid before each House of Parliament or the National Assembly for Wales, as applicable (S. 45R(3)). Regulations made under this procedure will cease to have effect at the end of a period of 28 days beginning with the day on which the order is made unless approved by resolution of each House of Parliament, or of the National Assembly for Wales, as applicable (s. 45R(4)); or if rejected by either House of Parliament, or the National Assembly for Wales, before that point, at the end of the day on which the regulations were rejected (s. 45R(5)).
(b) Northern Ireland and Scotland
The public health statutes applicable in Northern Ireland and Scotland did not provide for the powers necessary to create broad, general measures of this sort (see the Public Health etc. (Scotland) Act 2008 and the Public Health Act (Northern Ireland) 1967 (“PHA(NI)”)) prior to the Covid-19 pandemic. Such powers were accordingly created by the Coronavirus Act 2020 (“CA”).
(i) Northern Ireland
S. 48 of the CA provides that Schedule 18 of that Act contains temporary modifications to the PHA(NI). Schedule 18 of the CA temporarily inserts ss. 25A – 25Y into PHA(NI). Those provisions are largely (with appropriate modifications made for the Northern Ireland legal context) lifted from the PH(CoD)A and create powers materially identical to the powers available in respect of England and Wales, including identical provisions for making urgent regulation and submitting them to review by the legislature (in Northern Ireland’s case, the Northern Ireland Assembly) (ss. 25P - 25Q).
(ii) Scotland
S. 49 of the CA provides that Schedule 19 of that Act contains “provision enabling the Scottish Ministers to make regulations for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination in Scotland[.]”
Schedule 19 provides for regulation-making powers in the following way. Paragraph 1 contains a materially identical power to that contained in s. 45C PH(CoD)A. Paragraphs 2 and 3 contain materially identical restrictions to the exercise of that power as are contained in s. 45D and s. 45E PH(CoD)A. Paragraph 4 replicates the definition of “special restriction or requirement” contained in s. 45C(6) PH(CoD)A. Paragraph 5 contains materially identical elaborations on the power to those contained in ss. 45F and 45P PH(CoD)A (with appropriate amendments to reflect the Scottish legal context). Paragraph 6 sets out the procedure for the making of regulations under Schedule 19. It provides for a materially equivalent ordinary and urgent process for the making of regulations as PH(CoD)A, save that the regulations must be laid before the Scottish Parliament rather than the UK Parliament. (There does not appear to be an equivalent provision regulating what happens if the Scottish Parliament rejects urgent regulations laid before it).
Therefore, for the purposes of a comparative rule-of-law assessment at the European regional level, it can be assumed that the public health regulation-making powers are effectively the same across the UK.
United States of America
Moreover, as stated above, the National Emergencies Act (NEA), 50 U.S.C. §1601-1651 (1976), allows the President to declare a national emergency in appropriate circumstances; a public health emergency is within the scope of these relevant presidential powers.
At State Level:
GA: Georgia has dedicated laws regulating the governor’s activities during a public health emergency, which is defined as the occurrence or imminent threat of an illness or health condition that is reasonably believed to be caused by bioterrorism or the appearance of a novel or previously controlled or eradicated infectious agent or biological toxin and poses a high probability of any of the following harms:
(A) A large number of deaths in the affected population;
(B) A large number of serious or long-term disabilities in the affected population; or
(C) Widespread exposure to an infectious or toxic agent that poses a significant risk of substantial future harm to a large number of people in the affected population. O.C.G.A. §38-3-3(6).
Before declaring a public health emergency specifically, the governor must “issue a call for a special session of the General Assembly pursuant to Article V, Section II, Paragraph VII of the Constitution of Georgia.” This session must convene on the day after the state of emergency is declared and either support or terminate the public health emergency. O.C.G.A. 38-3-51(a).
In addition to the emergency powers granted to the governor during any state of emergency, during a public health state of emergency, the governor can:
- Compel a health care facility to provide services or even transfer the management and supervision of the health care facility to the Department of Public Health for the duration of the public health emergency;
- Impose a mandatory vaccination program or quarantine (though the Department of Public Health can do this whether a state of emergency exists or not—see O.C.G.A. §31-12-4 and O.C.G.A. §31-12-3(a)).
- Direct the Department of Public Health to coordinate the state’s response to the public health emergency (coordinate responses, collaborate with other entities, provide information to the public, etc.) O.C.G.A. §38-3-51 (d) (4.1) and (h)(3)(i)
NE: Public health emergencies are not specifically discussed in the Nebraska law that addresses the declaration of a state of emergency. However, the governor has fairly broad powers to respond to the emergency that can be used to achieve public health objectives. These include controlling the movement of people within a disaster area, transferring state personnel or changing the function of departments of state government to respond to the emergency, and commandeering private property (subject to the payment of appropriate compensation). Neb. Rev. Stat. 81-829.40(6).
NY: Public health emergencies are not specifically discussed in the New York state law that addresses the declaration of a state of emergency. However, the governor can declare a disaster emergency when he or she “finds that a disaster has occurred or may be imminent for which local governments are unable to respond adequately.” N.Y. EXEC. LAW § 28 (McKinney 1981). Public health emergencies such as COVID-19 are covered within the broad scope of this statute if, as in the case of COVID-19, the governor considers the outbreak an emergency or determines that local governments will not be able to address the issue adequately.
WA: Public health emergencies are not specifically discussed in the Washington state law that addresses the declaration of a state of emergency. However, the governor can use his or her general state-of-emergency powers to achieve public health objectives (e.g., preventing groups of any size from gathering in public places—see RCW §43.06.220(1)(b)). RCW §43.06.220(1)(h) further empowers the governor to prohibit “such other activities as he or she reasonably believes should be prohibited to help preserve and maintain life, health, property or the public peace.”
WI: Pursuant to Wisconsin Statute 323.10, “If the governor determines that a public health emergency exists, he or she may issue an executive order declaring a state of emergency related to public health for the state or any portion of the state and may designate the department of health services as the lead state agency to respond to that emergency.” WIS. STAT. § 323.10 (2009).