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.).

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7. Are derogations to human rights possible in emergency situations under national law? What are the circumstances and criteria required in order to trigger an exception? Was a derogation under Article 15 ECHR or under any other international instrument made? Does national law prohibit derogation from certain rights even in emergency situations? Is there an explicit requirement that derogations should be proportionate, that is limited to the extent strictly required by the exigencies of the situation, in duration, circumstance and scope?

Albania

Under Article 174 of the Constitution, the Council of Ministers may decide to declare a state of natural disaster to prevent or eliminate the consequences of a natural disaster or technological accident. With the promulgation of this condition, based on Article 175 of the Constitution, the rights and freedoms may be limited provided for in Articles: 37 , 38 , 41 paragraph 4 , 49 , 51 of the Constitution and the act that declares the state of natural disaster must qualify the rights and freedoms that are limited according to paragraphs 1 and 2 of this article. But also, the limitation of constitutional freedoms and rights has to be based on Article 17 of the Constitution, respecting these criteria: the limitation should be done only by law, for a public interest or for the protection of the rights of others, the limitation must be in proportion to the situation that has dictated it, the limitation must not violate the essence of freedoms and rights and in no case exceed the limitations provided for in the ECHR.

Republic of Albania has submitted to the Council of Europe on April 1, 2020 a Note Verbale, regarding the derogation of the Republic of Albania from Article 15 of the ECHR taking into account the state of emergency. According to this verbal note, the implementation of the measures taken by the Government during this state of emergency due to the pandemic, gives reasons to avoid certain obligations of the Republic of Albania, based on Articles 8 and 11 of the ECHR, Articles 1 and 2 of the Protocol to ECHR and Article 2 of Protocol No. 4 to the ECHR.

Armenia

Yes, Art 76 of the Constitution provides for the possibility of restrictions on basic rights and freedoms during the state of emergency or martial law. It stipulates that “During state of emergency or martial law, basic rights and freedoms of the human being and the citizen — with the exception of those referred to in Articles 23-26, 28-30, 35-37, part 1 of Article 38, part 1 of Article 41, part 1, first sentence of part 5 and part 8 of Article 47, Article 52, part 2 of Article 55, Article 56, Article 61, Articles 63-72 of the Constitution — may be temporarily suspended or subjected to additional restrictions under the procedure prescribed by law, only to the extent required by the existing situation within the framework of international commitments undertaken with respect to derogations from obligations during state of emergency or martial law.”

In comparison to Article 15 of the ECHR, Armenian Constitution provides for a more limited range of rights which maybe subject to restriction in case of the state of emergency, in particular the following rights may not be restricted - human dignity, physical and mental integrity, general equality before the law, freedom of marriage, parental rights and responsibilities, rights of the child, right to education, freedom of thought, conscience and religion, right to citizenship, prohibition of deportation or extradition, national and ethnic identity rights.

Article 78 of the Constitution provides for the principle of proportionality which says that "the means chosen for restricting basic rights and freedoms must be suitable and necessary for achievement of the objective prescribed by the Constitution. The means chosen for restriction must be commensurate to the significance of the basic right or freedom being restricted”.

Respectively, Article 10 of the Law on Legal Regime of State of Emergency states that “Restrictions on the rights and freedoms enshrined in this law shall be applied exclusively to the purposes for which they were intended, and shall be proportionate to the purposes set forth therein”.

Austria

In contrast to very common limitations to fundamental rights in specific cases, a general derogation to human rights in emergency situations is not possible under national law anymore (prior to its repeal by Article 149 paragraph 2 of the Federal Constitution, Article 20 of the Basic Law on the General Rights of Nationals (Staatsgrundgesetz 1867) has provided for a temporary and local suspension of the rights in Articles 8, 9, 10, 12 and 13 of this law).

No derogation was made under Article 15 ECHR or under any other international instrument either.

A general derogation is neither possible under national nor is it prohibited explicitly. Generally, national law permits limitations to most human rights; however, there are certain “absolute” rights which may not be restricted even in situations of emergency. These include, among others, the prohibition of the death penalty (Article 85 Federal Constitution ), and several rights regulated in the ECHR – which enjoys the status of constitutional law in Austria – such as the prohibition of torture in Article 3, the prohibition of slavery and forced labour in Article 4, the guarantee of nulla poena sine lege in Article 7, the prohibition of expulsion of nationals and of collective expulsion of aliens (Articles 3 and 4 of the 4th Additional Protocol), the right not to be tried or punished twice (Article 4 of the 7th Additional Protocol). Some of these rights are also not subject to derogation according to Article 15 paragraph 2 ECHR.

Limitations to human rights must always be proportionate, pursue a public objective, be suited to achieve this objective and be limited to the extent strictly required. All limitations have to meet the principle of equality and must not be arbitrary. Since there is no general derogation possible under Austrian law, there are no requirements regulated as to the extent of such derogations.

Azerbaijan

Yes, derogations to human rights are possible in emergency situations under Azerbaijani law. According to Article 71 (III) of the Constitution rights and freedoms of man and citizen may be partially and temporarily derogated in time of war, martial law and state of emergency, as well as mobilization, subject to the international obligations of the Republic of Azerbaijan. The population shall be notified in advance about restrictions as regards their rights and liberties.

Under Article 2 of the Constitutional Law on regulating of implementation of human rights and liberties in the Republic of Azerbaijan rights provided for by Article 27 (except the cases of death as a result of war conducted in accordance with the law), part I of Article 28, part III of Article 46, Article 63, Article 64 and part VIII of Article 71 of the Constitution of the Republic of Azerbaijan are non-derogable rights and no reservations are applicable to them.

Article 21.1 of the Law on state of emergency stipulates that activities involving limitation of the rights and legal interests of all legal entities regardless of their form of ownership, rights and freedoms of citizens, foreigners and stateless persons, and measures taken in the conditions of the state of emergency are implemented within the limits arising from the acuteness of a situation and in line with the procedure established by the Constitution of the Republic of Azerbaijan, legislative acts of the Republic of Azerbaijan and international agreements recognized by the Republic of Azerbaijan.

Belgium

The Belgian Constitution does not provide for the possibility of derogating from the rights and freedoms guaranteed by its Title II, in emergency situations, on the contrary it explicitly prohibits it in its article 187. (see Q1)
Several provisions of the Constitution, on the other hand, allow the exercise of the rights and freedoms they include to be limited, but not to suspend them. The two main conditions for limitation are the principle of legality (limitations must be provided for by or under a law) and the prohibition of preventive measures. By combining the reading of Title II with similar provisions of human rights conventions, the Constitutional Court guarantees, as far as possible, a current and evolving interpretation of Title II of the Constitution, which incorporates into the Constitution the protection that these conventions offer, in particular by confirming the requirement that the limitations must be proportionate to the legitimate aim which they pursue.
Belgium has not made a declaration under Article 15 of the ECHR.

Bosnia and Herzegovina

The Constitution of Bosnia and Herzegovina does not contain explicit provisions on restrictions and derogation from human rights, nor does it contain provisions on the possibility of derogation from human rights in case of a state of emergency. However, Article II (2) of the Constitution of Bosnia and Herzegovina establishes the constitutional status of the European Convention, according to which this act has priority over all other laws. Also, Article II (3) of the Constitution of Bosnia and Herzegovina establishes a catalogue of rights that are identical to the rights listed in the European Convention and the Protocols to the European Convention. According to Article X/ 2 of the Constitution of Bosnia and Herzegovina, no amendment to this Constitution may eliminate or diminish any of the rights and freedoms referred to in Article II of this Constitution, nor amend this provision. Given the above, it can be concluded that the restrictions on human rights in Bosnia and Herzegovina arise from the European Convention and its Protocols. During the pandemic, Bosnia and Herzegovina did not inform the Secretary General of the Council of Europe on derogation from the European Convention under Article 15 of the European Convention.

In the answer to Q1, it is stated that the Constitution of the Republika Srpska, in Article 81, prescribes the possibility of suspending certain provisions of the Constitution which refer, among other things, to certain human freedoms and rights. The following rights and freedoms cannot be suspended: equality of all persons in the Republika Srpska when it comes to freedoms, rights and duties; human life; human dignity, physical and spiritual integrity, human privacy, personal and family life; torture, cruel, inhuman or degrading treatment or punishment; unlawful deprivation of liberty; the right to compensation; fair trial; the right to defines; the principle of legality; inviolability of the apartment; and freedom of thought and choice, conscience and belief, as well as public expression. However, freedom and security of person, the right to appeal, freedom of movement, etc. were not on the list of rights under the Constitution of the Republika Srpska that cannot be suspended.

Bulgaria

Derogations to human rights are possible in emergency situation. However, pursuant to Art. 57 of the Constitution there are several restrictions – it shall be temporary and proportionate (prohibition of excessiveness), which derives from the rule of law, and it could never extend over the fundamental rights listed in paragraph 3.

Article 57. (1) Citizens' fundamental rights shall be inalienable.
(2) Rights may not be abused, nor may they be exercised to the detriment of the rights or legitimate interests of others.
(3) Upon declaration of war, of a state of martial law or another state of emergency, the exercise of particular citizens' rights may be temporarily restricted by a law, with the exception of the rights provided for in Articles 28, 29, 31 (1), (2) and (3), Article 32 (1), and Article 37 herein.

Article 28 guarantees the right to life, Article 29 prohibits torture or to cruel, inhuman, or degrading treatment, or forcible assimilation, as well as "medical, scientific, or other experiments without [the person's concerned] voluntary written consent." Article 31 guarantees certain fair trial rights, and Article Article 32. (1) guarantees the private life, family life honour, dignity, and reputation. Article 37 (1) guarantees freedom of conscience.

The Republic of Bulgaria has officially notified the Council of Europe of the state of emergency declared on 13 March 2020, the Law on Measures and Actions during the State of Emergency adopted on 23 March 2020, as well as of the amendments to the Health Act.

The measures were taken due to the pandemic and the related absolute need to protect human health and limit the spread of COVID-19. The country informed the Council of Europe that the temporary restriction of some of the rights of citizens and persons residing in the territory of the Republic of Bulgaria will last until the end of the state of emergency. It has stated its readiness to notify the General Secretariat of the Council of Europe if a further derogation is required of some of the provisions of the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms.

Cyprus

Article 183(2) requires the proclamation of emergency to indicate the articles of the Constitution that may be suspended during the emergency. This might include for instance the right to liberty, to free movement within Cyprus, to the inviolability of the home, to secrecy of correspondence, to State of emergency in the coronavirus pandemic, to compensation upon requisition of property, to strike, and even to life (Article 7), if death is inflicted by a permissible act of war.

Article 33(1) of the Constitution also stipulates that fundamental rights and liberties cannot be limited beyond the Constitutional provisions relating to the state of emergency.

However, in 2020 those provisions were not usef, instead, the Government used the powers granted by the 1932 Quarantene Law.

Czech Republic

The Czech Charter of Fundamental Rights and Freedoms does not foresee the possibility of a formal derogation of the rights and freedoms enshrined in this charter. Several of its provisions contain limitation clauses which allow for limitations, but not suspension, of some aspects of these provisions. The Czech Republic has not formally derogated from either the ECHR or any other human rights treaty it is Party to (ICCPR, ICESCR, etc.).

That being said, under the Constitutional Act on Security (see Q1 and Q2), in a declaration of the state of emergency "the government must specify which rights prescribed in individual statutes shall, in conformity with the Charter of Fundamental Rights and Basic Freedoms, be restricted, and to what extent, and which duties shall be imposed, and to what extent. Detailed provisions shall be laid down by statute."

Denmark

The ECHR, including article 15, has been incorporated into Danish law in 1992. Otherwise, no formal provisions on derogations to human rights exist. It was the opinion of the Government that none of the emergency legislation enacted during the crisis was in contravention of the Constitution or the ECHR. So, no derogation under ECHR article 15 was necessary and was not made.

France

There has been no notification under Article 15 of the ECHR by France.

The laws relating to states of emergency do not contain general provisions on derogations from human rights.

Constitutional checks on these legislative provisions (by the Constitutional Council) are exercised in accord with the usual procedures.

Other texts taken (including ordinances) are also subject to ordinary judicial review procedures. The courts and administrative tribunals carry out their review under normal conditions. All the texts taken under these provisions recall that the measures prescribed [...] are strictly proportionate to the health risks incurred and appropriate to the circumstances of time and place and should be terminated without delay when they are no longer necessary.

Germany

The Basic Law of Germany does not provide a derogation clause in case of emergency. Limitations to fundamental rights are only permissible if the fundamental right in question contains a reservation of legal restriction and there is a legal basis for the interference.

According to Article 80 of the Basic Law the Government, a Minister or the Land governments may be authorized by statute to issue ordinances. The content, purpose, and scope of the authorization so conferred must be laid down in the statute concerned. This legal basis has to be stated in the ordinance. Where a statute provides that such authorization may be delegated, such delegation requires another ordinance.

Restrictions must be carried out in accordance with the law. Furthermore, every restriction of fundamental rights must comply with the principle of proportionality derived from the Rechtsstaatsprinzip. Legislators, authorities and courts have to carry out an individualised evaluation of the particular situation. The limitation or restriction must be strictly necessary to achieve a legitimate objective, based on scientific evidence, must be proportionate to achieve that objective, neither arbitrary nor discriminatory in application, of limited duration, respect-ful of human dignity, and subject to review. So on the one hand, the freedoms affected by the measures to combat Covid-19 must be safeguarded, on the other hand, the state has to ob-serve the fundamental right to life and physical integrity (Article 2 II 1 Basic Law) – itself a core fundamental rights obligation – which imposes the duty to protect on the state. This means that the state has to take all suitable, necessary and appropriate measures in order to fulfil its duty to protect the population. If type and extent of the crisis are not clear there is scope for the legislative and the executive to assess both the extent of the crises and the suitability and necessity of the security measure. The greater the dangers to life and health of the population, the more comprehensive and massive restrictions may be. So far, German courts have considered the restrictions as adequate in most cases. The urgent need to save lives would justify restrictions on other rights, such as the freedom of movement and of assembly or the freedom of religion. However, the restrictions have to be checked regularly. Once the exceptional circumstances change the emergency measures have to be reduced or lifted (see Q14).

Hungary

Article 54 Paragraph (1) of the FL clarifies that under a special legal order, the exercise of certain fundamental rights – with the exception of the fundamental rights provided for in Articles II and III (right to life and human dignity; prohibition of torture; inhuman or degrading treatment or punishment; servitude; human trafficking; medical or scientific experiment on human beings without their consent; eugenics; use of human body for financial gain; human cloning), and Article XXVIII Paragraphs (2) to (6) (presumption of innocence, right to defence, nullum crimen, ne bis in idem) – may be suspended or may be restricted beyond the extent specified in Article I Paragraph (3). This means that the level of restriction, compared to peacetime rules (necessity, proportionality, respect of the essential content), may be exceeded. It must be emphasized that the suspension or restriction, in line with the extraordinary status, still shall be necessary and proportionate (the wording “beyond” suggests that tthe same constitutional requirements are to be met, although the treshold of "proportionality" may be arguably lower).

Accordingly, Act XII of 2020 on the containment of coronavirus set out that the Government may exercise its power during the state of danger only for the purpose of preventing, controlling and eliminating COVID 19, and preventing and averting its harmful effects, to the extent necessary and proportionate to the objective pursued.
No derogation from international obligations has been made in Hungary under the Convention for the Protection of Human Rights and Fundamental Freedoms or any other international instrument.

Ireland

In the event of an emergency caused by a war or armed rebellion (see Article 28.3.3 at Q1 above) derogation from human rights norms in the Constitution could take place. As the emergency law would be for the purpose of the emergency it is implied that the derogations must be necessary and proportionate. No formal derogation was made under Article 15 ECHR or other international instrument in respect of COVID measures.
Even in an emergency under Article 28 there can be no derogation from the ban on the death penalty.

Italy

The Constitution does not regulate the state of emergency, with the exception of war. Nothing similar to Article 15 ECHR mechanism is provided by the Italian Constitution, nor is the proportionality principle explicitly established. However, such principle is observed in the Constitutional Court’s case-law, where it is also affirmed that derogations to human rights, or more precisely suspensions of constitutional provisions regarding (also) human rights, are admissible provided that their duration is strictly limited and that the inherent restriction pursues certain constitutional aims (see decision n. 15/1982).

Korea, Republic

There is no formal derogation mechanism but the Constitutiona provides that rights can be limited, and certain limitations are provided by current legislation on health emergencies.

Article 37 (2) of the Constitution provides the following:
Article 37(2) The freedoms and rights of citizens may be restricted by Act only when necessary for national security, the maintenance of law and order or for public welfare. Even when such restriction is imposed, no essential aspect of the freedom or right shall be violated.

This rule applies to all laws that limit basic rights. Therefore, even if a public health crisis arises due to the spread of infectious diseases, it is not possible to limit the essential content of basic rights in tackling the crisis. In addition, in any case, the restriction of basic rights must comply with the principle of proportionality.

Kyrgyzstan

The declaration of a state of emergency is accompanied by restrictions on certain human rights and freedoms guaranteed by the Constitution. The list and limits of emergency measures and an exhaustive list of temporary restrictions on the rights and freedoms of citizens and additional obligations are set out in the State of Emergency Act itself. The restrictions imposed must be proportionate, as required by Article 20 of the Constitution.

Liechtenstein

No derogation to Article 15 of ECHR or any other international instrument was made. According to Bussjaeger (in Liechtenstein-Institut (ed.), Commentary of the Constitution of the Principality of Liechtenstein, www.verfassung.li), emergency regulations may only repeal or restrict the binding force of domestic legal provisions. But emergency regulations cannot suspend the effects of existing obligations under international law. This means that acts of sovereignty legitimized by an emergency regulation might very well violate obligations under international law. This might be of particular relevance concerning the limits of discretionary emergency powers as imposed by the ECHR. Yet apart from the absolute fundamental rights granted by the ECHR, other obligations under international law may be altered by the emergency regulations.

Lithuania

Derogation to human rights are possible if the "constitutional" state of emergency is declared under Article 144 (which did not happen in Lithuania in connection with the COVID-19 crisis).

In addition, some limitations may be introduced if the Government declares the state of emergency regime provided by the Law on Civil Protection (which was introduced in Lithuanian in 2020 - on measures under the Law on Civil Protection see further below).

Article 145 of the Constitution indicates the possible restrictions on human rights in the event that a state of emergency or martial law is declared:
“Upon the imposition of martial law or the declaration of a state of emergency, the rights and freedoms specified in Articles 22, 24, 25, 32, 35, and 36 of the Constitution may temporarily be limited.”, i.e. the right to private life and to the privacy of communications (Article 22); the right to the inviolability of home (Article 24); freedom of expression, information and convictions (Article 25); freedom of movement (Article 32); freedom of association (Article 35); and freedom of assembly (Article 36).

The Law on the State of Emergency specifies that limitations on the above-mentioned rights and the use of the measures should be determined by the Parliament or the President of the Republic, having regard to the circumstances. All limitations may not be contrary to the international obligations of the State. It is forbidden to limit other rights than those provided for under the Constitution and the law. Specific restrictions concerning each of the enumerated human rights are specified in the said Law on the State of Emergency: for example, the examination of correspondence and control over communication can be carried out without the order of the court (Article 19); the right to free movement can be limited by ordering not to change permanent residence (Article 22); assembly in public spaces is prohibited (Article 25); etc.

There are other restrictions, which may be introduced under the Law on the Prevention and Control of Communicable Diseases in Humans: thus, restrictions to the right of free movement and freedom of economic activity during quarantine are provided under Paragraph 11 of Article 21 of this law. The Government may determine the conditions and procedures for the production of goods and their sale, drinking water supply and the provision of services (Point 1 of Paragraph 11 of Article 21); the Government may also limit or temporarily prohibit all public events and other meetings in institutions and public spaces; to limit or temporarily prohibit residents from leaving the municipality of residence and to limit their movement within it, to refuse entry to the foreigners to the territory of the Republic of Lithuania; to order temporary removal of residents from the territory of quarantine (Point 2 of Paragraph 11 of Article 21), etc.

The Law on Civil Protection provides that, when carrying out rescue or search operations and urgent operations freedom of movement, the right to property and the inviolability of home can be restricted; also in the event that a state-level situation of emergency is declared, freedom of economic activity and the right to receive public services can be limited (Article 8).

Under the Law on the Prevention and Control of Contagious Diseases in Humans, the special regime of quarantine permits limitation of the freedom of movement, freedom of economic activity, freedom of work, etc (Paragraph 1 of Article 21). The same Law provides for the quarantine may in zones of an outbreak of epidemics (Paragraph 21 of Article 2).

Article 15 of the ECHR was not invoked, as it concerns a state of emergency, which was not declared in Lithuania. Derogations under the ICCPR were not made.

Under the Constitution, certain rights are considered absolute, such as the right to life (Article 19), human dignity (Article 21) and prohibition of torture (Article 21). There are no provisions permitting derogations from these rights and freedoms even in emergency situations. All derogations from human rights and freedoms in an emergency situation are precisely prescribed by relevant laws in an exhaustive manner.

As to the requirements of proportionality the Constitutional Court’s ruling of 29 December 2004 proclaimed that any limitation of human rights and freedoms needs to be lawful and necessary in a democratic society in order to protect the rights and freedoms of other persons, the values of the Constitution, as well as constitutionally important objectives. The limitation should not destroy the essence of the right or freedom, and the constitutional principle of proportionality should be observed. The Constitutional Court also described in detail the proportionality test (see, inter alia, the Constitutional Court’s ruling of 6 May 1997).

The principle of proportionality is also enshrined in the legislation. For example, the Law on the State of Emergency provides that restrictions on human rights can be applied only inasmuch as it is required by the deterioration of the situation (Paragraph 2 of Article 18). It follows from the Law on the Prevention and Control of Contagious Diseases in Humans that restrictive measures introduced during the quarantine may not be applied longer than the duration of quarantine. The Law on Civil Protection provides that the Government, when regulating restrictions on economic activity, especially the provision of services and the sale of certain products, must keep in line with, among others, the principle of proportionality, and must determine the period of the applicable restrictions, which must not exceed the duration of the situation of emergency itself; all the measures should be revoked as soon as the circumstances implying the introduction of the restrictive measures change (Article 301); the same applies to restrictions on other human rights and freedoms provided for by this law – limitation on the application of restrictions in time.

Mexico

Article 29, which provides for the possibility to suspend certain fundamental rights, stipulates that the following rights should not affected by the measures enacted by the President's emergency decrees: the right to non discrimination, the right to legal personality, the right to life, the right of personal integrity, the right of protection to the family, the right to have a name, the right to have a nationality, the children’s rights, the political rights, the freedom of thought, the freedom of religion, the principles of legality and retroactivity, the prohibition on the death penalty, the prohibition on slavery and servitude, the prohibition of disappearance and torture, and the judicial guarantees that are necessary to protect these rights and principles.

Article 29 also provides that "restriction or suspension of constitutional rights and guarantees should be based on the provisions established by this Constitution, should be proportional to the danger, and should observe the principles of legality, rationality, notification, publicity and non discrimination."

Monaco

There has been no general limitation on rights and freedoms. Ad hoc restrictions can generally be in the context of reconciling public interest requirements with individual rights and freedoms as stipulated in the Constitution and the ECHR. The situation did not justify the implementation of the provisions of Article 15 of the ECHR. It is a mechanism similar to that resulting from administrative jurisprudence on exceptional circumstances.

On the other hand, some measures taken by the administrative authority have led to the limitations of certain rights and freedoms.

Morocco

Article 59 of the Constitution on the state of emergency provides that even in this regime, "the fundamental rights and freedoms provided for in this Constitution remain guaranteed". The legal status of fundamental rights and freedoms is enshrined in the Constitution and defined by law. In the event of derogations in a state of emergency, the legislator and the judge must intervene in a proportionate and necessary manner and under the control of the judge.

The Decree-Law of March 2020 allows the Government, in case of need, to take, exceptionally, any provision of an economic or financial or social or environmental nature that would contribute directly to limiting the negative effects of the state of emergency. It also punishes any person who disobeys the orders and decisions of the authorities with one to three months in prison and a fine of between 300 and 1300 dirhams, or one of the two penalties.

Norway

The Norwegian Constitution contains no derogation clause. A few years ago, the Norwegian parliament rejected a proposal for constitutional amendment that would have introduced a general derogation clause.

a. However, it is long-established 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.

b. National law does not formally prohibit derogation from certain rights in emergency situations, but such prohibitions, for example of the right to life and prohibition of torture, would likely follow from the proportionality requirement in the unwritten derogation rule mentioned above.

c. Norway has not triggered a derogation from the ECHR according to Article 15.

Peru

Under the Constitutional (see Q1) the state of emergency implies the temporary suspension of four constitutional rights: 1. Inviolability of the home. 2. Freedom of movement on the national territory. 3. Freedom of peaceful assembly, and 4. Liberty and security —i.e., not to be detained except by written and motivated order of a judge or by the police authorities in the event of a flagrant crime.

The same constitutional norm establishes the circumstances that can motivate the declaration of a state of emergency: 1. Disturbance of peace or internal order. 2. Catastrophe. and, 3. Serious circumstances that affect the life of the Nation. Finally, the very same constitutional norm establishes that nobody can be exiled under any circumstance.

Additionally, the aforementioned legal norm —Article 132 of Act Nº 26842, General Act of Health— establishes that all security measures, including quarantine, adopted by the Health Authority, should comply with the principle of proportionality, should not exceed the time required to address the danger and that measure should be effective for for the purpose but least intrusive for the free movement of people and goods, freedom of enterprise, and any other rights affected.

Portugal

The declaration of a state of emergency allows the competent authorities to provide for rules determining certain limitations in the exercise of fundamental rights, under the terms defined by the content of the declaration.

The circumstances and grounds for declaring a state of emergency are set out in the Constitution and in the Organic Law.

The Portuguese Republic did not use the measure provided for in Article No. 15 of the ECHR or other international instrument.

During a state of siege or a state of emergency, the Constitution and the Organic Law guarantee the absolute inviolability of the rights to life, personal integrity, personal identity, civil capacity and citizenship, the non-retroactivity of the criminal law, accused persons' right to defence, or the freedom of conscience and religion, and the state of exception cannot 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 office holders.

The Constitution and the Law Organic, directly and explicitly impose that the choice and application of the measures should be made according criteria of appropriateness and proportionality - See Article 19, paragraph 4, of the Constitution, and, in the event of a state of siege or state of emergency, citizens shall retain their full right of access to courts, in accordance with general law, to defend their rights, freedoms and guarantees damaged or threatened with damage by any unconstitutional or illegal measures – See Article 3 of the Organic Law.

San Marino

Under San Marino’s legal framework, the only provision that explicitly provides for restrictions to the exercise of certain human rights is Article 6, paragraph 1, of San Marino Constitution (the Declaration), stating that “[e]verybody shall enjoy civil and political freedoms in the Republic. In particular, personal freedoms, freedom of residence, establishment and expatriation, freedom of assembly and association, freedom of
thought, conscience and religion shall be guaranteed. The privacy of any form of communication shall be protected. 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.” Therefore, such human rights restrictions rest on the principle of legality, necessity and proportionality.

In addition, according to Article 1, paragraph 4, of the Declaration San Marino’s “constitutional order recognises, guarantees and enforces the rights and fundamental freedoms set forth by the European Convention for the Protection of Human Rights and Fundamental Freedoms”, which – like other treaties on the protection of human rights and freedoms – after ratification and implementation has acquired the constitutional status. Consequently, San Marino conforms to the provisions on human rights’ derogations enshrined under Article 4 of the International Covenant on Civil and Political Rights (ICCPR) and Article 15 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).

Accordingly, derogations to human rights are possible in emergency situations to the extent they are strictly required by the exigency of the situation and to the extent that derogating measures are not inconsistent with other obligations binding on San Marino under international law. In addition, derogations should not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. Pursuant to Article 4, paragraph 2, of the ICCPR and Article 15, paragraph 2, of the ECHR, in exercising its derogation prerogatives San Marino conforms to the prohibition to derogate to the right to life, the right to be free from torture or cruel, inhuman or degrading treatments or punishments, the right to be free from slavery or servitude, the right not to be imprisoned merely for the inability to fulfil a contractual obligation, the right not to be punished without law, the right to be recognised as a person before the law and the right to freedom of thought, conscience and religion.

In accordance with the principle of necessity, Ordinance n. 1/2020 of the Secretary of State for Health and Social Security, as well as subsequent Ordinances, recalled in its preamble the reasons of urgency that justified the derogating measures adopted thereby. Ordinance n. 1/2020, in its preamble, also affirmed its conformity with the principle of proportionality and precaution. Subsequent Law-Decrees adopted by the
Congress of State and providing for "Urgent measures to reduce the spread of COVID- 19 (Coronavirus)" also
mentioned in the preamble the reasons of urgency that justified their adoption.

Serbia

Article 200 of the Constitution explicitly envisages measures derogating from human and minority rights guaranteed by the Constitution may be taken during the state of emergency either by the the National Assembly, or, where it is not in a position to convene, by the Government, in a decree, with the President of the Republic as a co-signatory - for a maximum period of 90 days (with the possibility of extension).

Article 202 of the Constitution (“Derogation from human and minority rights in the state of emergency and war”) established that “upon proclamation of the state of emergency or war, derogations from human and minority rights guaranteed by the Constitution shall be permitted only to the extent deemed necessary."

Measures providing for derogation shall not bring about differences based on race, sex, language, religion, national affiliation or social origin.

Measures providing for derogation from human and minority rights shall cease to be effective upon ending of the state of emergency or war.

Measures providing for derogation "shall by no means be permitted in terms of the rights guaranteed pursuant to Articles 23, 24, 25, 26, 28, 32, 34, 37, 38, 43, 45, 47, 49, 62, 63, 64 and 78 of the Constitution" (i.e. with respect to such rights as dignity and free development of individuals; right to life; inviolability of physical and mental integrity; prohibition of slavery, servitude and forced labour; minimal rules on the treatment of persons deprived of liberty; right to a fair trial; legal certainty in criminal law, etc).

Slovakia

There are two regimes for restricting fundamental rights during a pandemic – the ordinary constitutional regime, which is defined in the general limitation clause found in Art. 13 of the Constitution and in the specific limitation clauses for specific fundamental rights, and the extraordinary regime during a state of emergency, as it is defined in Art. 5 of Constitutional Law no. 227/2002.

Pursuant to Art. 12 par. 1 of the Constitution, fundamental rights and freedoms are inalienable, untransferable, imprescriptible and indefeasible. However, they may be restricted by a law and strictly within the boundaries set up by the Constitution (Art. 13 par. 2 of the Constitution). When restricting fundamental rights and freedoms, attention must be paid to their essence and purpose. These restrictions must serve a legitimate purpose (Art. 13 par. 4 of the Constitution). This is the basic limitation clause in relation to constitutional rights.

It follows from Art. 5 of Constitutional Law no. 227/2002 that a state of emergency may only be declared to the necessary extent, for the necessary time and for no longer than 90 days. A state of emergency may only be declared in the affected or imminently threatened area. If a state of emergency is declared, fundamental rights and freedoms may be restricted and duties imposed only to the necessary extent and for the necessary time in relation to the severity of the threat and only in the affected or imminently threatened area.

The state of emergency allows for more severe restrictions of fundamental rights, as they are explicitly listed in Art. 5 par. 3 of Constitutional Law no. 227/2002. Any restrictions not listed therein must follow the ordinary constitutional regime (this was also the case of the restrictions to the right to privacy and personal data protection described in question no. 14).

No derogation under Article 15 ECHR or under any other international instrument was made.

Spain

Neither the Spanish Constitution nor the Organic Law 4/1981 of 1 June 1981 on states of alarm, exception and siege establishes that any fundamental rights or public freedoms subject to constitutional complaint may be abrogated under the state of alarm.

The Spanish Constitution only provides for the "suspension" of some rights, which are explicitly mentioned, in the event of the declaration of states of exception and siege, but not under the state of alarm (Art. 55.1 SC). According to Art. 116.1 SC, it is possible to establish "limitations", during the state of alarm, which according to Art. 11 Organic Law 4/1981, can affect the freedom of movement at certain hours or under certain requirements, to goods that can be requisitioned, to the compulsion of personal contributions, to the intervention and transitory occupation of premises (except private homes), to the limit or rationing of the use or consumption of services or essential commodities or to the adoption of health and environmental protection measures. In any case, Art. 1.2 of this Organic Law establishes that the measures to be adopted in any of these situations, as well as their duration, will be "those strictly indispensable to ensure the reestablishment of normality. They shall be implemented in a manner proportionate to the circumstances".

Spain has not derogated any right of the ECHR under Article 15 ECHR or under any other international instrument.

Sweden

The Constitution does not provide for derogations to human rights in war time (Chapter 15 Art. 7) nor in other emergency situations. However (see Q1), where the Parliament or the War Delegation (a small war-time Parliament) are blocked from meetings in wartime, the government may, without any derogations to human rights, issue ordinances with the force of law. In a peacetime crisis or emergency such derogations are not possible under national ordinary law. This does not prevent, however, the Government to limit certain rights due to the emergency, by using its power to issue ordinances given by the ordinary legislation (see Q8 for the examples).

Switzerland

As far as extraordinary situations (as described above, see Q1) are concerned, the Constitution remains the basis for decisions taken by the Federal Council. In the case of a state emergency (which was not declared in Switzerland, see Q4) the Federal Council and Federal Assembly would – according to legal doctrine – be allowed to derogate from the Constitution. This would include the competence to severely restrict constitutional rights, even without a formal legal basis. Ius cogens provisions, humanitarian law, Art. 15 al. 2 of the ECHR would remain untouched. According to Swiss legal doctrine, the core content of fundamental rights can never be infringed upon. No derogation has been made under Article 15 of the ECHR or under any other international instrument. Since the state of emergency is not regulated by the Constitution or by law, there are also no explicit requirements on the limits of derogations and restrictions of human rights. Re-strictions on fundamental rights during an extraordinary situation under Article 185 al. 3 of the Constitution and under Article 7 of the Epidemics Act must be subject to the conditions of public interest, proportionality and the prohibition of violation of the intangible core of all fundamental rights (Articles 5 and 36 al. 2-4 of the Constitution).

North Macedonia

Articles 21 and 54 of the Constitution refer to the state of emergency or war in the human rights context. Article 21 limits the right to peacefully assembly during a state of emergency or war.

Article 54 provides that "the freedoms and rights of the individual and citizen can be restricted during states of war or emergency, in accordance with the provisions of the Constitution." It also enumerates (in para. 4) rights which cannot be restricted (apparently even during the state of war or state of emergency): prohibition of discrimination, the right to life, the interdiction of torture, inhuman and humiliating conduct and punishment, the legal determination of punishable offences and sentences, freedom of religion and belief.

North Macedonia made a derogation declaration under Article 15 of the ECHR from articles 8 and 11 of the Convention (the right to respect for private and family life and the freedom to assembly and association), as well as from Article 2 of the Protocol no. 1 (the right to education) and Article 2 of the Protocol no. 4 (the freedom of movement).

Tunisia

Article 80 of the Constitution conditions the use of measures imposed by the State of Emergency to the existence of imminent peril, impeding the regular functioning of public authorities. Secondly, these measures must aim to ensure, as soon as possible, the return to regular functioning of public authorities.

Thirty days after these measures come into force, the Constitutional Court may be referred by the President of the Assembly or 30 deputies to rule on the maintenance of the state of emergency.

Therefore, these measures come to an end, as soon as their reasons are terminated. Article 49 of the Constitution states that without undermining their substance, the law sets out restrictions on the rights and freedoms guaranteed by the Constitution and their exercise. These restrictions can only be established to meet the requirements of a civil and democratic state, and to safeguard the rights of others or the imperatives of public safety, national defence, public health or public morality while respecting the proportionality between these restrictions and their justifications. Judicial bodies ensure the protection of rights and freedoms against any infringement. No revision can undermine the achievements of human rights and freedoms guaranteed by this Constitution.

On the other hand, Articles 4, 5, 6, 7 and 8 of Decree 78-50 of 26 January 1978, regulating the state of emergency gives broad prerogatives to the Minister of the Interior and governors to limit and arrange civil and individual freedoms.

Turkey

Article 15 of the Constitution (entitled “Suspension of the exercise of fundamental rights and freedoms” provides that “in times of war, mobilization, a state of emergency, the exercise of fundamental rights and freedoms may be partially or entirely suspended, or measures derogating the guarantees embodied in the Constitution may be taken to the extent required by the exigencies of the situation, as long as obligations under international law are not violated."

Certain rights are inviolable even during the state of emergency (Article 15 paragraph 2): the right to life, the physical and spiritual integrity (except where death occurs through acts in conformity with law of war). Noone shall be compelled to reveal his/her religion, conscience, thought or opinion, nor be accused on account of them; offences and penalties shall not be made retroactive; nor shall anyone be held guilty until so proven by a court.

Under Article 119 of the Constitution, the financial, material and labour obligations to be imposed on citizens, the manner of restriction and temporary suspension of fundamental rights and freedoms in line with the principles of the Article 15, and the provisions to be applied and actions to be carried out in the event of state of emergency shall be regulated by law.

Ukraine

Article 64 of the Constitution provides that "under conditions of martial law or a state of emergency, specific restrictions on rights and freedoms may be established with the indication of the period of effectiveness of these restrictions. The rights and freedoms envisaged in Articles 24, 25, 2 7, 28, 29, 40, 47, 51, 52, 55, 56, 57, 58, 59, 60, 61, 62 and 63 of this Constitution shall not be restricted."

No derogation under Article 15 ECHR or under any other international instrument was made.

Article 22 of Law of Ukraine «On Legal Regime of Emergency State» on 16 April 2000, No. 1550-III (amended)provides that "The restrictions on the constitutional rights and freedoms of citizens provided for by this Law, which may be applied in a state of emergency, are exhaustive and are not subject to extended interpretation."
Article 24 of this law provides that during a state of emergency certain rights cannot be limited, for example, there is a prohbition of torture, cruel or degrading treatment or punishment, as well as "any restriction of the right to life, freedom of thought, conscience or religion within the meaning of those rights and freedoms adopted in the International Covenant on Civil and Political Rights, and laws of Ukraine. Any attempt to use the imposition of a state of emergency to seize or abuse power entails liability under the law."

United Kingdom

Human rights are safeguarded in the UK on the domestic level by the HRA ("the Human Rights Act"). This Act effectively incorporates the ECHR into domestic law, by imposing on public authorities an obligation to comply with the Convention rights (s. 6) (including when making delegated legislation), creating a cause of action for those who allege a violation of their Convention rights (ss. 7-8), and empowering the courts to interpret statutes in conformity with the Convention rights (s. 3). Where a statute cannot be interpreted to be consistent with the Convention, it remains valid, but the court may issue a declaration of incompatibility (s. 4).

The UK has not derogated from the European Convention in response to Covid-19 pandemic; however, derogations are possible in theory under the HRA.

S. 14 empowers the Secretary of State to “designate” a derogation from the ECHR which has been or is anticipated to be made as a matter of international law. Once the Secretary of State does so, the derogation takes effect in domestic law by causing the removal of the rights to which it relates from the definition of “Convention rights” in s. 1, in accordance with s 1(2).

There has only been one derogation ever made (and subsequently withdrawn) under s. 14, which was made to Art. 5(1) ECHR in 2001. That derogation was challenged by judicial review: A v Secretary of State for the Home Department [2004] UKHL 56. It was conceded by the government, and accepted by the House of Lords (see §42; §106; §164; §225, with some reluctance from Lord Scott: §152) that a designation of a derogation in domestic law by order of the Secretary of State can validly take effect only if the international legal conditions precedent for a derogation under Art. 15 ECHR have been met (including, it must be assumed, the restrictions on derogations from certain rights contained in the Convention). Lord Hope summarised the test as follows (§110): "Leaving a state of war aside as it does not arise in this case, the wording of this article can be broken down into three parts, each of which can be put in the form of a question. (1) Is the situation facing the High Contracting Party a public emergency which threatens the life of the nation? (2) Are the measures strictly required by the exigencies of the situation which has arisen? (3) Are the measures inconsistent with the High Contracting Party's other obligations under international law?"

United States of America

At Federal Level: According to the doctrine, there are three specific exceptions to general rules in the case of an emergency situation, two of which concern individual rights (possibility to suspend the habeas corpus rule in cases of insurrection or invasion - which would be inapplicable in the cases of epidemy where courts can hear cases via videolinks, and the indictment by a grand jury) and the third relating to the powers of the states vis-a-vis the national government (see Q1).

The United States does not use the concept of “derogation” from constitutional rights, and there is no recognized process by which to derogate from protected rights, either by the legislature or by the executive. No derogation was made under Article 15 of the ECHR, to which the US are not a party, or any other international instrument.

Serious limitations on certain human rights were ordered by the executive, but mostly at the State level - for example, lockdown orders were made by State governors, but not by the national government.