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
6. Was the declaration subject and submitted to judicial review? Was it found justiciable?
No. Since the state of natural disaster has been declared by a Decision of the Council of Ministers (i.e. by a normative sub-legal act), based on article 131, point 1, “c” of the Constitution, the competent body to review the compliance of this act with the Constitution and / or international agreements (such as the European Convention on Human Rights) is the Constitutional Court. The latter, due to the vetting process is still not fully operational and finds it impossible to make decisions.
No, though the Decree of the Government may be subjected to constitutional review (art 168 point 1 of the Constitution) by the 1/5th majority of the Deputies of the National Assembly or the President of the Republic (art 169 part 1 points 2 and 5), the Decree was not challenged before the Constitutional Court.
Not applicable - a state of emergency was not declared in Austria, and the Constitution does not provide for such a declaration (see Q1 about the extraordinary powers of the Government in cases where Parliament cannot meet), and the Government was acting on the basis of pre-exiting legislation, or legislation amended during the COVID crisis
Not applicable, since no declaration of emergency on account of the pandemic
Not applicable, no declaration having been made.
Decisions on declaring the state of emergency and natural disasters were not subject to judicial review.
The declarations were not subject to judicial review.
Νο. There was not declaration, in the constitutional meaning, so there was nothing to subject to judicial review. The Government used powers given by the 1932 Quarantene Law.
The declaration of the state of emergency, as well as various emergency measures introduced in its course, have been challenged both in ordinary courts and in the Constitutional Court of the Czech Republic. The Constitutional Court, in its decision issued on 28 April 2020 (Pl. ÚS 8/20), concluded that the declaration of the state of emergency was an ad hoc decision and an act of governance which, as such, is not subject to judicial review and lends itself only to the political “review” by the Chamber of Deputies. The Constitutional Court did not however exclude the possibility of judicial review of the declaration of the state of emergency altogether. It suggest that this declaration “could be annulled [by the CC], if it contradicted the fundamental principles of the democratic Rechtsstaat (état de droit) or involved the change of essential features of the democratic Rechtsstaat” (§ 27). As to government resolutions issued by the Crisis Act, the CC analysed their legal nature and concluded that the challenged measures should be classified as ‘other legal acts’ and can be challenged only by the designated priviledged applicants (parliamentary opposition, ombudsmen), not by everyone. Measures taken by the Ministry are subject to review by administrative courts by persons affected by them.
The announcement of initiatives by the Government, before they were enacted as laws, could not in itself have been challenged under judicial review since it had, in itself, no legal consequences. However, the individual acts of administration or legislation stemming from it could all be challenged. So far, no known requests for judicial review have been submitted.
The state of health emergency was declared by the law of March 2020, thus excluding judicial challenge to the declaration itself, except possibly by way of constitutional control. On the other hand, the measures adopted under the state of emergency are themselves subject to judicial review.
Numerous legal acts, measures and actions were reviewed by preliminary legal protection before the federal constitutional court, the constitutional courts and the administrative courts of the Länder.
The Constitutional Court, as the principal organ for the protection of the FL, shall examine whether the laws (and the judicial decisions) comply with the criteria of constitutionality. Article 54 Paragraph (2) of the FL clearly states 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. This provides the constitutional control over the actions of the Government in a state of danger too. However, no petition has been submitted to the Constitutional Court asking the constitutional review of the Government Decree 40/2020 (11 March) on the declaration of state of danger.
No such declaration of a state of emergency was made.
The declaration by the executive (provided by the 1992 law, the constitution does not provide for a declaration in such circumstances) as such is not subject as such to judicial review.
The Korean executive authorities used powers they have already by virtue of an ordinary legislation (see Q3), constitutional mechanisms of legislation by Presidential decrees or declaration of a martial law (see Q1) were not used. In any event, for the President to adopt emergency decrees the Constitution does not require a separate declaration (which is, however, required if the martial law regime is established).
Under the Constitution of the Kyrgyz Republic, the court does not have the right to review presidential Acts declaring a state of emergency; but it is hypothetically possible to appeal the Presidential Decree and the Act of Parliament declaring a state of emergency to the constitutional review body, the Constitutional Chamber.
The state of emergency was not declared in Lichtenstein, since this mechanism is not provided by the Constitution (see Q1), consequently, it could not be submitted to a judicial review.
The specific legal regime (state-level situation of emergency and quarantine), was declared by the Government and was not submitted to parliamentary approval; it was based on the Law on Civil Protection and the Law on the Prevention and Control of Contagious Diseases in Humans, which empower the Government to take the necessary actions. This regime is different from the declaration of the state of emergency by the Seimas (or the President, in urgent cases, when Seimas is in recession) provided by Article 144 of the Constitution.
The state of emergency was not declared, and was not submitted, consequently, to the judicial review. However, under Article 29 of the Constitution, "the decrees enacted by the President of the Republic, during the restriction or suspension of the constitutional rights and guarantees, shall be immediately reviewed by the Supreme Court of Justice of the Nation, which shall rule on their constitutionality and validity as soon as possible."
In the absence of an emergency declaration, ministerial decisions could have been appealed to the Supreme Court under Article 90 of the Constitution. So far, such remedies have not been used.
Theoretically, all acts of the Head of Government are subject to review before the administrative courts, but in practice this has not been the case.
The concept “state of emergency” does not exist in Norwegian constitutional law (but see Q1 for the unwritten rule of necessity). These matters are regulated by ordinary legislation - so, there was no declaration to be submitted to judicial review.
At the Constitutional Court level, there has not been any process yet, as of June 2020. However, there could be complaints asking for the judicial review of the state of emergency and quarantine at the lower instances of Peru’s constitutional justice system —i.e., constitutional judges and constitutional chambers of superior courts. There is not publicly available information about it.
The declaration of a state of emergency was issued in the exercise of a political competence of the President of the Republic provided for in the Constitution, and is not, as such, subject to judicial control, as it has the nature of a constitutional political act enabling the exercise of the competence of the Government through legislative or administrative implementing acts; the Government acts are subject, in general terms, to judicial review by the Constitutional Court, which oversees the constitutional conformity of legislative acts and asses the legality of rules on grounds of infringement of superior law (those laws which require a qualified majority for approval). In the concrete application, the implementation acts by the Government or by competent public entities, are subject to concrete constitutionality assessment by the competent courts (by ordinary courts if it concerns rules or Regulations; by administrative courts if it concerns administrative acts) in general terms, with recourse to the Constitutional Court restricted to the issue of constitutionality.
The ordinance declaring the state of emergency was not submitted to judicial review.
On 21 May 2020 the Constitutional Court refused to start the examination of the constitutionality and legality of the declaration of the State of Emergency. The Constitutional Court found that the outbreak of COVID-19 and danger of its uncontrolled spread on the territory of Serbia significantly endangered the health of the general population, and thus calls into question the normal course of life in the country, including the functioning of its institutions, public services, the economy and especially the health system. The Court concluded that the COVID-19 could be considered as "public danger that threatens the survival of the state or its citizens" in the sense of the paragraph 1 of the Article 200 of the Constitution.
The Constitutional Court has the explicit power to review the constitutionality of any resolution of the Government declaring or amending state of emergency and of any other decisions based on those resolutions (Art. 129 par. 6 of the Constitution), i.e. there is a separate procedure for that. The motion may be filed by one fifth of members of parliament, the President of the Republic or the Prosecutor General (§ 189 of the Law on the Constitutional Court). However, no such motions have been filed during the first state of emergency. Two motions were filed on 5 October 2020, contesting the newly declared state of emergency. The cases are pending.
In accordance with constitutional jurisprudence, the royal decree declaring a state of alarm has the rank or value of law, and it is therefore exclusively up to the Constitutional Court to judge its conformity with the Constitution (ATC 7/2012 of 13 January and STC 83/2016 of 28 April). Royal Decree 463/2020, on the declaration of the state of alarm, Royal Decree 465/2020, on the modification of the previous Royal Decree and the first three extensions of the former, by Royal Decree 476/2020 of 27 March, 487/2020 of 10 April and Royal Decree 492/2020 of 24 April, as well as Order SND/298/2020 of 29 March, establishing exceptional measures in relation to funeral wakes and ceremonies to limit the spread and contagion of COVID-19, were the subject of an action of unconstitutionality before the Constitutional Court lodged by members of the VOX Parliamentary Group in Congress (appeal 2054-2020). The Constitutional Court declared the action admissible by order of 6 May 2020.
Not applicable - the constitution does not provide for any state of emergency except in a situation of war
The state of emergency has not been declared in Switzerland.
The first two decisions of the President were subject of review by the Constitutional Court. The initiative for review of the constitutionality of the first declaration was rejected because the declaration was not in force anymore. The Constitutional Court decided on the constitutionality of the declaration on 6th of May 2020, while the declaration was in force till 16th of April 2020 (Resolution U. No. 41/2020). The second decision for declaration of a state of emergency was also subject to review by the Constitutional Court. The applicant claimed that the Constitution limits the period of a state of emergency that can be declared by the President of the Republic to a total of 30 days, which is the maximum terms.
Article 3 of the Organic Law No. 2002-11 of February 4, 2002, amending and supplementing Law 72-40 of June 1, 1972 relating to the Administrative Court states in Article 3 (new) that: "The Administrative Court has jurisdiction to rule on appeals for excess of power aimed at the annulment of acts taken in administrative matters."
No such declaration of a state of emergency was made.
The Government's orders declaring the state of emergency in specific regions were not challenged in court
There is no constitutional framework providing for the "declaration for the state of emergency", but some of the regulations made under the PH(CoD)A (see Q3)were subject to judicial review.
At Federal Level: Although President Trump’s Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (Proclamation 9994) is potentially subject to judicial review, it has not been submitted to judicial review as of June 16, 2020.
Albania
Admittedly, there is also a possibility of review of the above declaration by administrative courts. Regarding the legality of the Decision of the Council of Ministers on declaring a state of natural disaster, based on Article 10, paragraph 2, letter "b" of the law "On administrative courts and adjudication of administrative disputes", as amended, the Administrative Court of Appeal is the competent court. Also, based on the decision no. 264, dated 17.12.2019 of the Administrative Court of Appeal, a criterion has been established for the difference between the constitutional and administrative jurisdiction for the review of normative bylaws. The normative act for declaring a state of natural disaster has not been challenged in this court either, so this remains a theoretical discussion at present.
Armenia
Austria
Azerbaijan
Belgium
Bosnia and Herzegovina
Bulgaria
Cyprus
Czech Republic
Denmark
France
The authorities responsible for refering it to the Constitutional Council under the prior control procedure (Article 61-1 of the Constitution, the CC being the sole authority to control a law before its enactment), did not refer it to it after the vote of the 2020-290 law.
On the other hand, the prorogation law was submitted to the CC. The Constitutional Council issued its decision on 11 May (no. 2020-800 DC).
The law organising the end of the health emergency has been referred to the Constitutional Council, which will have rendered its decision on 9 July 2020 (2020-203 DC being published on the CC website)
Germany
Hungary
Ireland
Italy
Korea, Republic
In theory, the exercise of the President's exceptional legislative power over state finances under Article 76 (1) of the Constitution is subject to judicial review. The Constitutional Court found that such exercise of exceptional legislative power would be subject to constitutional complaint if it constrained the basic rights of the people (29 February 1996, 93Hun-ma186). According to this case, if the exercise of exceptional legislative power or martial law by the President to prevent the spread of infectious diseases is triggered, it is subject to judicial review afterwards. However, in relation to the spread of COVID-19, the IDCPA (the law which regulates powers of the executive in the times of the health crisis) has not been challenged in the form of constitutional complaints upon the request of the general courts.
Kyrgyzstan
Liechtenstein
Lithuania
As the special legal regime (state-level situation of emergency and quarantine) was introduced by the resolutions of the Government, only the Constitutional Court has the exclusive competence to verify the legality of the acts adopted by the Government (Articles 102 and 105 of the Constitution). The Constitutional Court has no right to initiate constitutional review cases by itself; it administers constitutional justice after a subject entitled to file a constitutional petition challenges a particular legal regulation. No such petition challenging the constitutionality of the governmental resolution that declared the situation of emergency and quarantine has been accepted for examination in the Constitutional Court so far. There is one individual petition filed with the Constitutional Court regarding the constitutionality of the resolution of the Government declaring the quarantine and introducing the lockdown measures, but the issue concerning the admissibility of this petition has not been resolved yet.
Mexico
Monaco
Morocco
Norway
Peru
Portugal
None of the Government decrees in the context of the state of emergency has been subjected to abstract judicial review of constitutionality or legality.
San Marino
Serbia
Slovakia
Spain
Sweden
Switzerland
The compliance of an ordinance based on Article 185 al. 3 of the Constitution or on Article 7 of the Epidemics Act with the Constitution and with international law, namely in the case of an extraordinary situation, may be submitted to judicial review, provided that an individual and concrete decision based on the ordinance is issued (see also answer Q16).
North Macedonia
The Constitutional Court rejected this argument and decided that the prolongation of state of emergency for additional 30 days is constitutional. The Constitutional Court stated in particular that “if the conditions for a state of emergency are still valid, which is a constitutional ground and condition, a new decision for state of emergency should be adopted. That is a guarantee that the state of emergency cannot be prolonged automatically, but there is a need of new evaluation whether the conditions and need for a state of emergency are fulfilled [...]” (Resolution U. No. 55/2020)
Tunisia
This text, by its general nature, encompasses all administrative acts on the basis of the material criterion. Nevertheless, the dominant doctrine in Tunisia classifies certain acts, including the proclamation of a state of emergency as acts of government, which are not subject to recourse for excess of power.
However, all administrative acts taken later on the basis of the presidential decree will be subject to the judicial review of the administrative judge.
Turkey
Ukraine
United Kingdom
United States of America
At State Level: Although each state’s declaration of a state of emergency is potentially subject to judicial review, as of June 8, 2020, none of these declarations has been submitted to judicial review. There have, however, been several judicial challenges to the stay-at-home and other orders issued by various governors (see below).
WI: Andrea Palm, the current Secretary-designee of the Wisconsin Department of Health Services, by the power delegated to her by Governor Evers, issued Emergency Order 12 on March 24, 2020, requiring “all individuals present within the State of Wisconsin . . . to stay at home or at their place of residence.” Then, on April 16, 2020, Palm issued Emergency Order 28, extending the stay-at-home order. The Wisconsin Legislature sued Palm to have the Wisconsin Supreme Court declare the extension unconstitutional. On May 13, 2020, in Wisconsin Legislature v. Palm, 942 N.W.2d 900 (Wis. 2020), the Wisconsin Supreme Court did indeed overturn the extension of the stay-at-home order. Thus, the State of Wisconsin no longer has a stay-at-home order in place.
WA: Gov. Jay Inslee’s stay-at-home order has faced several legal challenges. On May 1, Franklin County Commissioner Clint Didier and gubernatorial candidate Tim Eyman filed a lawsuit aimed at forcing Inslee to reopen the county’s economy. Four Republican state legislators filed a similar challenge on May 5, contending that the emergency had been contained and therefore the stay-at-home order was unconstitutional. To date, however, these challenges—like the numerous judicial challenges to Gov. Inslee’s orders relating to church and business operations during COVID-19—have been unsuccessful.