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
14. Was this additional legislation subject to judicial review?
No
No, the amended legislation was not subject to the judicial review.
The adopted laws and regulations can be subject to judicial review by the Constitutional Court. There are already some applications pending. On 14 July 2020 the Austrian Constitutional Court issued a judgment re. COVID-19 regulation of 15 March 2020, Federal Law Gazette II no. 98/2020 (as amended), according to which the entry into public places was generally forbidden for the purpose of preventing the spread of COVID-19. The Constiturional Court found this regulation was unlawful because it lacked a clear legal authorisation expressly providing for such a far-reaching interference with the right to free movement. § 2 of the COVID-19 Measures Act provides that entering certain locations may be forbidden by administrative regulation in order to prevent the spread of the pandemic. As per § 1 of the COVID-19 regulation of 15 March 2020, Federal Law Gazette II no. 98/2020, as amended (hereinafter, the "Regulation-98"), entry into public places was generally forbidden. § 2 of Regulation-98 included several exceptions to this prohibition; for example, entering public places was allowed for the purpose of covering necessary basic needs (§ 2.3), and for professional purposes (§ 2.4); finally, outdoor public places could be entered alone or with people living in the same household (§ 2.5). Regulation-98 expired on 30 April 2020.
No, this legislation was not subject to judicial review
Not applicable
On May 14 the President submitted a request to the Constitutional Court of the Republic of Bulgaria (case No 7/2020) to establish the unconstitutionality of Art. 63, para. 2-7 of the Health Act:
For the ovewiew of the case-law of the Constitutional Court on the COVID-19-related measures see here
Not applicable - no new legislation
Not so far
No requests for judicial review have been submitted.
The law extending the state of emergency passed on 9 May was submitted to the Constitutional Council, which issued its decision on 11 May 2020 - see here
According to the the German Association of Judges, more than 1000 applications for preliminary injunctions have been submitted to German administrative and constitutional courts by the end of May, 2020. Most of the complaints filed against corona protective measures were unsuccessful.
Act XII of 2020 on the containment of coronavirus amended the Criminal Code introducing punishment of those who hinder protective epidemiological measures: i.e. obstruction of the emergency measures, which are aimed at protecting the public health and limit citizens’ free movement and certain patient rights, e.g., the isolation of patients as well as those suspected of carrying the virus [New Section 322/A of the Criminal Code]. The amendment also orders the imposition of graver sanctions for scaremongering and the spreading of fake news [Section 337 of the Criminal Code].
None of the new legislation at Q3 above has been subject to judicial review as yet. An application was made by lay litigants challenging the restrictions but it was rejected by the High Court at the earliest stage as being bound to fail and taken in the wrong procedure. It is possible that there will be an appeal. The High Court judgment of 13th May is attached at Annex D.
No, since ordinary legislation was not amended during the COVID-19 crisis (only decree laws were adopted and approved by Parliament)
Not applicable (no additional legislation was adopted).
For the case-law of the Constitutional Court on the COVID-19-related measures see here.
In theory, the Constitutional Law «On the state of emergency» and the decrees of the President of the Kyrgyz Republic on the declaration of a state of emergency in specific regions may be subject to review by the Constitutional Chamber for conformity with the Constitution. In the present context, the proportionality of the restrictions imposed is likely to be considered.
The State Court as a constitutional court of the country has not yet had to deal with legal questions concerning measures taken during the Corona crisis.
According to Articles 102 and 105 of the Constitution, only the Constitutional Court is entitled to review the constitutionality of acts issued by the Parliament and the Government.
Not applicable - the state of emergency was not declared and the government was using its powers under the ordinary legislation on health risks
No new legislation has been adopted/amended, so there was no judicial review thereof
No, although such control is legally possible.
All Norwegian legislation and administrative acts are subject to judicial review. The Corona Act specifically states that all measures taken by the government in accordance with the act, are subject to judicial review.
Not applicable - see Q13
Not applicable - see Q13
The Romanian Constitutional Court decided that the compulsory isolation or quarantine are not constitutional, meaning the way they were instated doesn’t respect the Romanian Constitution. Following the decision, a huge number of citizens who were practically detained in the isolation or quarantine centers asked for their release.
Several decrees adopted during the state of emergency by the Government were challenged before the Constitutional Court; these cases are still pending, and no emergency measure was invalidated
The provisions introduced by Law no. 62/2020 (see Q13) were contested before the Constitutional Court. The Court suspended them in its ruling of 13 May 2020 (ref. no. PL. ÚS 13/2020).
Yes. Given the volume and diversity of rules that have been adopted, it is difficult to describe all the appeals that may have been lodged against those rules or against the acts that implemented them; therefore, it should be merely recalled that, like all other legislative and administrative activity, it is subject to judicial control: only by the Constitutional Court if it has the status of a law (which is the case, as noted above, with decree-laws and decrees declaring and extending the state of alarm) and by the ordinary courts if the rules in question have the status of regulations or administrative acts (with the peculiarity that, if it is considered that there has been a violation of fundamental rights, this control can ultimately be brought before the Constitutional Court by lodging a remedy of constitutional complaint, provided that the constitutional and legal requirements for lodging such complaint are met).
The bill was submitted, as is the usual practice, for judicial prereview by the Council of Legislation. This is non-binding, but the recommendations of the Council are usually followed. See Q16.
Not applicable (see Q2)
The Government's decrees having the force of law have been challenged and some of them have been annuled by the Constitutional Court (see Q8)
Non
No additional legislation was taken and therefore subject to judicial review
For the case-law of the Constitutional Court of Ukraine on COVID-related measures and amendments to the legislation click here.
In the UK, there is no judicial review of the legsilation as in some continental systems, but the courts can verify the compliance with the Convention of the statutory intrstruments (and issue declaratory judgments). Furthermore, judicial review of the regulations issued by the executive is also possible.
At Federal Level: Although the additional congressional legislation is potentially subject to judicial review, as of June 16, 2020, the additional legislation has not been submitted to judicial review and rather is fully operative.
Albania
Armenia
Austria
In April 2020, an individual filed a constitutional complaint against Regulation-98, alleging, in particular, the violation of his right to free movement and to freedom of property. He claimed that due to the COVID-19 situation, his employer had ordered him to work from home. Therefore, the exception of § 2.4 of Regulation-98 did not apply to him. He was allowed to leave his home to go for a walk according to § 2.5 of Regulation-98 but he could not access his rented apartment in Vienna because he would have needed to use public transport to get there. According to § 4 of Regulation-98, the use of public transport was only permitted for the exceptions provided in § 2.1 to 2.4, excluding § 2.5.
The applicant, a university assistant, also claimed that he could only fulfil his professional duties, which include writing a dissertation, to a very limited extent – in particular because he was denied the use of the university's library. Therefore, § 1, § 2 and § 4 of Regulation-98 also affected his right to freedom of employment. At the time of the Constitutional Court's judgment, the measures under Regulation-98 had already expired. However, the Constitutional Court, developing its case law, found that the legal interest of an applicant to obtain a binding decision on the constitutionality of a provision can extend beyond the relatively short period in which the provision has been in force if a breach of that provision would be punishable by law.
The Constitutional Court held that there are no objections to the constitutionality of § 2 of the COVID-19 Measures Act, on which Regulation-98 had been based. § 2 of the COVID-19 Measures Act provides a sufficiently precise legal basis for any prohibitions on entry and thus corresponds to the principle of legality under Article 18.2 of the Federal Constitutional Act and – with a view to the right to freedom of movement – under Article 2 Protocol 4 ECHR and Article 4.1 of the Basic Law on the General Rights of the Citizens of 21 December 1867.
Yet, the Constitutional Court decided that Regulation-98 was unlawful because its provisions exceeded the limits set by § 2 of the COVID-19 Measures Act. § 1 (ban on entry) and § 2 (exceptions) of Regulation-98 were systematically related to § 4 of Regulation-98, regulating the use of public transport. According to § 6 of Regulation-98, every person entering a public place had to demonstrate, in case of police control, that such entry was covered by the exceptions set out in § 2 of Regulation-98.
The Constitutional Court pointed out that the purpose of § 1 of Regulation-98 was to make people stay at home. The Constitutional Court further detailed that under § 2 of the COVID-19 Measures Act, the competent Minister of Public Health (hereinafter, the "Health Minister") may describe, in a specific or abstract way, the places which shall not be entered, and may also prohibit the entry of regionally limited areas. However, the Health Minister is prohibited from imposing an exit ban as such (albeit regionally limited) through a general ban on entering public places. The legal authorisation is limited to the extent that people cannot be forced to stay in a certain place, especially in their homes.
The Constitutional Court observed that Regulation-98 had provided for exceptions to the general ban on entry. However, these exceptions – in particular § 2.5 of Regulation-98– did not change the fact that § 1 of Regulation-98 did not only prohibit the entry of certain places but rather constituted a general exit ban. This contradicted § 2 of the COVID-19 Measures Act, which does not authorise such a general prohibition. The Constitutional Court highlighted that this does not mean that an exit ban could not be justified in specific circumstances if such a measure can be proved to be proportionate. In any case, such a far-reaching restriction of free movement, which in principle abrogates this right, would require a specific statutory authorisation.
The Constitutional Court therefore concluded that Regulation-98 was unlawful because it lacked a sufficient legal authorisation.
Another judgment of the CC of Austria (that of 14 July 2020) concerned property restrictions as provided in § 1 of the COVID-19 regulation of 15 March 2020, Federal Law Gazette II no. 96/2020, including an entry ban on customer areas of business premises and leading to a temporary closure of shops and businesses are necessary in order to avoid the spread of the COVID-19 pandemic.
§ 1 of the COVID-19 regulation of 15 March 2020, Federal Law Gazette II no. 96/2020 (hereinafter, "Regulation-96"), put a ban on entering customer areas of business premises and therefore, shops had to close. § 2 of Regulation-96 provided for certain exceptions. According to § 4.2 of the COVID-19 Measures Act, which is the legal basis of Regulation-96, the provisions of the Epidemics Act 1950 on the closure of establishments are not applicable where a regulation under § 1 of the COVID-19 Measures Act has been issued. In contrast to § 32 of the Epidemics Act 1950, however, the COVID-19 Measures Act does not provide for compensation for loss of earnings incurred by companies affected by measures taken under that act.
The applicants which are business companies with several branches in Austria filed a constitutional complaint with the Constitutional Court, alleging, in particular, the violation of their right to property according to Article 5 of the Basic Law on the General Rights of the Citizens of 21 December 1867 (hereinafter, the "Basic Law") and Article 1 Protocol 1 ECHR, as well as a violation of the constitutional principle of equality laid down in Article 7.1 of the Federal Constitutional Act and in Article 2 of the Basic Law.
The Constitutional Court held that the lack of a right to compensation does not violate the fundamental right to property or the principle of equality. To begin with, the Constitutional Court observed that a ban on entry for business premises would have the same effect on the affected companies as a ban on operation and thus constitutes a significant interference with the fundamental right to property. However, the Constitutional Court held that the ban on entry was and is embedded in an extensive package of measures which aims to cushion the economic impact of the ban on entry on the companies concerned and of the consequences of the COVID-19 pandemic in general. The Constitutional Court held that this package would be a substitute for the entitlement to compensation according to the Epidemics Act 1950.
In particular, the Constitutional Court pointed out that affected companies are legally entitled to financial support such as benefits for short-time work. With regard to these support measures, the ban on entry does not constitute a disproportionate interference with the fundamental right to property. A right to compensation for all companies affected by the ban on entry cannot be derived from the right to property: All companies in trade and service industries with customer areas (apart from the exceptions provided for in § 2 of Regulation-96) were affected by the entry ban and the adverse consequences associated therewith. The property restrictions were deemed necessary in order to avoid further spread of the COVID-19 pandemic. Therefore, the Constitutional Court held that in the present constellation, no obligation could be derived from the fundamental right to property to provide an additional claim for compensation.
The Constitutional Court noted that in addition, it does not violate the principle of equality that the COVID-19 Measures Act lacks a right to compensation in the event of a ban on entry, while the Epidemics Act 1950 grants such a right for loss of earnings in the event of the closure of companies. These provisions cannot be compared with each other since the Epidemics Act 1950 is only aimed at fighting the spread of local epidemics, e.g., by closing certain business facilities (especially factories) presenting a specific risk for spreading an epidemic – in contrast to large-scale measures affecting the whole retail economy as laid down in the COVID-19 Measures Act.
Furthermore, the Constitutional Court pointed out that the legislator enjoys a wide margin of discretion when combating the economic consequences of the COVID-19 pandemic. The decision to embed the ban on entry into a separate rescue package (instead of resorting to the regime of the Epidemics Act 1950), which essentially pursues the same objective as the right to compensation for loss of earnings under the Epidemics Act 1950, does not run counter the principle of equality.
The Constitutional Court concluded that in an overall view, the lack of compensation does not constitute a breach of a constitutional right.
Azerbaijan
Belgium
Bosnia and Herzegovina
Since no new legislation was adopted during this period, it was not subject to the judicial review. At the sub-legislative level, some measures ordered by the executive have been challenged before the Constitutional Court. Thus, the order of the Federation Crisis Headquarters banning the movement of persons under the age of 18 and over the age of 65 has been challenged by an appeal filed with the BiH Constitutional Court. Deciding on this appeal, the Constitutional Court of BiH found that the bans pursued a legitimate aim necessary in a democratic society to prevent, protect and combat the COVID-19 pandemic, but found that the matter of dispute was a limitation on the proportional relationship between the general interest of the community and the right to the freedom of movement of the individual. The Constitutional Court of BiH found that the movement bans did not cover any exceptions or the specific needs of the categories covered. The Constitutional Court of BiH also stated that the complete ban on movement, among other things, neglected the issue of persons over 65 who are employed, and that possible alternatives to the introduction of milder measures were not considered at all. The Constitutional Court especially emphasized the fact that the period of duration was not determined by the extraordinary measures, i.e. that the flat statement in the decisions of the FBiH "until further notice" left a large space for inadmissible arbitrariness. In this regard, the Constitutional Court of BiH emphasized that the principle of the rule of law from Article I (2) of the Constitution of BiH must be ensured regardless of the extraordinary circumstances due to which the measures have been adopted. The Constitutional Court concluded that a total ban on movement restrictions for persons under age of 18 and over the age of 65 was not proportionate to the aim sought to be achieved, thus violating the right under Article 2 of Protocol No. 4 to the European Convention.
Bulgaria
The President's request was motivated by the contradiction of the above provisions with the texts of Article 57, para. 3 (prohibition of violation of the listed irrevocable rights), Article 61 (citizens’ obligation to render assistance to the State and society in the case of natural and other disasters), Article 4 (rule of law) and Article 8 (separation of powers) of the Constitution.
Article 63 (as amended, with last amendments in 2020):
(1) In the event of an immediate threat to the life and health of the public owing to the epidemic spread of a disease referred to in Article 61(1), an emergency epidemic situation shall be declared to protect the life and health of said public
(2) The emergency epidemic situation referred to in Paragraph (1) shall be declared for a fixed period by a dedicated decision of the Council of Ministers and following a proposal by the Minister of Health on the basis of an assessment of the epidemic risk in place conducted by the Chief State Health Inspector.
(3) An immediate threat to the life and health of the public referred to in Paragraph (1) shall exist where the assessment referred to in Paragraph (2) finds that the infectious disease referred to in Article 61(1):
1. is caused by a pathogen characterised by a high epidemic potential (infectivity of the virus, high mortality rate, multiple transmission routes and asymptomatic carriers) and/or its source and its transmission mechanism and route are uncommon or unknown; or
2. constitutes a serious threat to public health even where the number of confirmed cases in humans is small; or
3. may obstruct or slow down the implementation of public health control measures (including due to a lack of treatment and/or vaccine and/or existence of multiple outbreaks among others); or
4. cannot be deterred due to low immunity rates in the public; or
5. is uncommon in a given region, for a given season, or population group; or
6. is characterised by a more severe course than expected, a high morbidity rate and/or mortality rate or unusual symptoms; or
7. puts vulnerable or risk groups (children, the elderly, refugees, persons suffering immune deficiency and/or chronic conditions and others) at further risk; or
8. is confirmed to have cases in medical professionals.
(4) Where an emergency epidemic situation referred to in Paragraph (1) is declared, the Minister of Health shall issue an order introducing temporary anti-epidemic measures on the territory of Bulgaria or of a specific region following a recommendation by the Chief State Health Inspector.
(5) The measures referred to in Paragraph (4) may also include a ban on entry into the territory of the country of nationals of other countries, with the exception of citizens with permanent, long-term or continued residence in the territory of the Republic of Bulgaria, as well as their family members.
(6) The measures referred to in Paragraph 4 may also include temporary restriction of movement within the territory of the country, as well as suspension or restriction of the operation or the mode of operation of public use facilities and/or other facilities or services provided to citizens.
(7) Temporary anti-epidemic measures referred to in Paragraph (4) may also be introduced on the territory of a specific region, municipality or settlement by an order of the Head of the relevant Regional Health Inspectorate, where said order is agreed with the Chief State Health Inspector.
(8) Medical treatment and health care facilitates, regardless of their ownership, shall implement the measures introduced under paragraphs 4 and 7.
(9) Central and local government authorities shall ensure the necessary conditions for the implementation of measures referred to in Paragraphs (4) and (7), while the resources for their implementation shall be provided from the state budget or the municipal budgets respectively.
(10) The orders referred to in Paragraphs 4 and 7 shall be subject to appeal before the competent administrative court according to the procedure established by the Code of Administrative Procedure.
(11) The orders referred to in Paragraphs (4) and (7) shall constitute general administrative acts issued under Article 73 of the Code of Administrative Procedure, published on the website of the Ministry of Health or of the relevant Regional Health Inspectorate respectively and subject to anticipatory enforcement.
By Decision No. 10 of 23 July 2020, the Constitutional Court rejected the request as unfounded for the following reasons. With the exception of those explicitly indicated in Art. 57, para. 3 of the Constitution, restrictions of fundamental rights and freedoms are in principle admissible (Decision No 15 of 2001, No 3/2001), without, however, infringing the essential core of the specific right. The guarantee for this is the constitutional rule that the restriction, when permissible, is made only by law (Decision No 15 of 2010, No 9/2010). The contested provisions of the Health Act provide for the restriction of the exercise of certain rights of citizens not on the grounds of Art. 57, para. 3 - in case of declaration of war, martial law or other state of emergency, and on the basis of the special restrictions, provided in the Constitution, which refer to separate fundamental rights.
The legislator has provided that the emergency epidemic situation is declared under strictly specified in the law (Art. 61, para. 1 of the Health Act) cumulative prerequisites. The Constitutional Legislator assigns to the Council of Ministers the power to lead and implement the domestic policy of the country, as well as to ensure public order and national security (Article 105, paragraphs 1 and 2). This power must always be exercised in accordance with the Constitution and the laws of the country. According to Art. 3 of the Health Act, the state health policy is managed and implemented by the Council of Ministers, and the Minister of Health manages the national health care system and exercises control over the activities for protection of the health of the citizens (Art. 5 of the Health Act). Fully within these functions is provided in Art. 63, para. 2 of the Health Act, the competence of the Council of Ministers to declare an “emergency epidemic situation” on the proposal of the Minister of Health.
The exercise of the power of the Government to declare an emergency epidemic situation and the anti-epidemic measures taken by the Minister of Health in implementation of the decision of the Council of Ministers are not out of control. During an emergency epidemic, the Parliament retains all its powers, including overseeing the actions of the Executive. In the event of an emergency epidemic situation, the Council of Ministers shall not revoke the power of the National Assembly to adopt a decision to declare a state of emergency.
The decision of the Council of Ministers to declare an emergency epidemic situation, as well as the orders of the Minister of Health and the director of the respective regional health inspectorate for introduction of temporary anti-epidemic measures are subject to review under the Administrative Procedure Code. In this way, the Legislature, the Executive and the Judiciary retain their constitutional functions in the event of a state of emergency.
The provision is in unison with Art. 61 of the Constitution as well, which requires citizens to provide assistance to the state and society in case of disaster, including to tolerate the measures and restrictions introduced by the state in order to protect and preserve their lives and health. In this case, the disaster was caused by a contagious disease that has reached an epidemic with immediate danger to the lives and health of citizens.
Croatia
Cyprus
Czech Republic
Denmark
France
For the summary of the recent decisions of the Consitutional Council (in French) click here.
Germany
Only 3 out of 33 applications to the federal constitutional court were at least partially successful. On April 29, 2020, the ban on gatherings of religious communities under the Lower Saxony Ordinance for Protection Against New Infections with the Corona Virus was suspended as it did not allow for exceptions in individual cases. The court considered the general prohibition without any possibility of allowing exceptions under specific conditions and requirements appropriate to the situation in individual cases and, if necessary, in coordination with the health authority, as disproportionate and incompatible with the freedom of belief guaranteed in Article 4 I GG. In principle, however, the constitutional court assessed the ban on church services as constitutional. Although the prohibition constitutes a substantial interference with the fundamental right, in view of the current situation, the right to worship together must be balanced against the dangers to life and limb that the state must protect in accordance with Article 2 II GG.
The freedom of assembly (Article 8 I GG) was the subject of a number of other proceedings. In two cases, the complainant's applications for legal protection were successful as the local authorities were instructed to decide on the admissibility of the assembly again. The local authorities, when deciding to grant an exemption from the assembly ban, did not see that the ordinances gave discretion. Since they had not made use of the discretion granted in the ordinances, they had not checked the specific circumstances of the individual situation and had not considered the further minimization of the infection risks. This duty to examine measures to minimize the infection risk applies not only to the organizer but also to the authority grant-ing the exception to the ban on the meeting.
All other requests that were directed against the ban on assembly, against single other measures, against several provisions of the ordinance of the Land or even against all the corona protection ordinances of the Länder were rejected by the constitutional court. The court points out that the protective measures are not disproportionate to such an extent that existing rules would have to be declared null and void in preliminary procedures. It was considered acceptable to temporarily interfere with the applicants’ rights in order to protect health and life others. This finding was, however, under the condition that the rules were adapted to changing circumstances.
The decisions of the constitutional courts and administrative courts of the Länder follow the same line. Here too, only a few applicants were successful. For example, the Saxon Constitutional Court has declared the prohibition of the Saxon Corona Protection Ordinance to reduce retail space to 800 square meters to be able to reopen the business as an infringement of the principle of equality in the Saxonian Constitution. However, the court decided not to suspend the ordinance, as it already expired on March 3, 2020. In Mecklenburg-Pomerania, the Higher Administrative Court qualified the temporary ban on day trips to the Baltic Sea islands and places on the Baltic Sea as a disproportionate interference with the fundamental right to free-dom of the person (Article 2 II 2 GG). The ban on entry to Mecklenburg-Pomerania and the obligation to leave the Land for people without a first place of residence in Mecklenburg-Pomerania, on the other hand, was judged to be proportionate in view of the current situation on the basis of a summary review in the preliminary procedure. Complaints from second home owners and a hunting tenant in this regard were unsuccessful.
Hungary
A constitutional complaint has been submitted to the Constitutional Court requesting the Court claiming that the amended Section 337 (2) of the Criminal Code is contrary to the FL, and requesting to annul it on the basis of Section 41 (1) of the Act CLI of 2011 on the Constitutional Court. In its decision 15/2020. (VII. 8.), the Constitutional Court declared that the amendment is in line with the FL, and that it puts necessary and proportionate limits on freedom of speech. The decision emphasized that the Criminal Code prohibits communication of knowingly false or distorted facts to the general public only if the authorities are thereby hindered to implement protective measures during the an emergency situation (i .e. special legal order). The ban does not apply to critical opinions. However, the Constitutional Court, in the interests of legal certainty and acting ex officio, considered it necessary to confirm the interpretation of the amendment in the form of a constitutional requirement : if the fact alleged at the time of the offense is disputed and only proves to be false at a later date, communication of such facts does not constitute scaremongering, therefore the person disseminating such facts cannot be held criminally liable.
Some Decrees adopted during the state of emergency by the Government were challenged before the Constitutional Court; most of these cases are still pending except the following - in its decision 3234/2020 (VII. 1.) the Court found that Section 4 of the Government Decree 92/2020 (IV.6.) laying down derogations applicable to the central budget of Hungary for the year 2020 during the period of state of danger (distraction of vehicle tax from the local governments, limitation of the local governments’ property rights in a state of danger) is in line with the FL.
For the case-law of the Curia related to the COVID-19 legislation [click here|https://www.venice.coe.int/files/EmergencyPowersObservatory/attachments/Hungary_caselaw.docx].
Ireland
Italy
Korea, Republic
Kosovo
Kyrgyzstan
Liechtenstein
Lithuania
So far, the Constitutional Court has not received for consideration any petitions questioning the amendments of legislation related to the quarantine measures adopted to fight the Covid-19 pandemic.
Mexico
Monaco
Morocco
Norway
Peru
Portugal
Romania
Basically, the Court’s decision implied that the restraining of the human rights cannot be imposed through an order issued by the Ministry of Health, but only by a law voted in the Parliament. So far, the compulsory isolation or quarantine in Romania were imposed through an order signed by the Minister of Health.
Serbia
Slovakia
The contested legislation amended the Law on Electronic Communications (“LEC”), allowing the Public Health Authority (“PHA”) to gather and use certain personal data for the purposes of Covid-19 tracking.
The amended provisions first obliged telecom providers to retain certain telecom identification and location data of effectively everyone for the duration of an extraordinary situation or state of emergency declared in the healthcare system due to the occurrence of a pandemic or the spread of dangerous infectious human disease.
The amended provisions specified three reasons for this retention obligation, namely (1) processing in anonymised form for statistical purposes, (2) identification of people who need to be notified by message of special measures adopted by the PHA, and (3) identification of users for the purposes of life and health. The first reason was not contested as the processing was to be carried out in an anonymised form and thus did not violate anyone’s right to privacy.
Subsequently the data were to be provided to the PHA on the basis of a reasoned written request and the latter was allowed to process and retain the obtained data for the duration of the extraordinary situation or state of emergency in healthcare, but no longer than until 31 December 2020.
The Court noted at the outset that the contested provisions oblige telecom providers to conduct blanket data collection about everyone who has mobile phone services registered with them. Only their subsequent provision to the PHA may be considered differentiated according to some criteria specified in the law. Thus, the blanket collection and subsequent provision of identification and location phone data interfere with the right to privacy and personal data protection. Such interference may be justified by public interest consisting in the need to protect life and health of others during a pandemic. However, any such restriction to fundamental rights must be sufficiently clear, proportionate to the circumstances and strong guarantees against misuse of the data must be present.
Since the Court’s task at this stage of proceedings was to decide on admissibility and the petitioners’ request to suspend the contested provisions, it limited the scope of its review to only those aspects which might cause irreparable harm. Thus, the Court refrained for the time being from conducting a full-scale proportionality test and rather focused on the evaluation of legal guarantees against data misuse and the general clarity and unambiguity of the contested provisions. Even if the latter later turned out to be unconstitutional, sufficient legal guarantees and clarity would prevent unwanted misuse of the data and thus any immediate harm.
The Court received statements by the Ministry of Justice, the PHA and other stakeholders from which it followed that public authorities envisaged three different solutions: (A) tracking by means of a phone interview with the use of the interviewed person’s phone movement map, subject to that person’s consent; (B) launch of an application with an informational and self-monitoring function; (C) PHA requesting identification and partial location data of persons who recently returned from high-risk countries.
The Court recalled its previous case-law and the case-law of the CJEU, according to which blanket identification and location data collection constitutes an especially serious interference with the relevant rights and therefore the strictest criteria must be applied in assessing the law’s clarity and the legal guarantees. It concluded that the formulation “identification of users for the purposes of life and health” was overly vague and its application unpredictable and for that reason unacceptable in a democratic society. It therefore suspended the said provision together with the provisions allowing the PHA’s access to that data, since the legislation failed to provide sufficient legal guarantees. The required guarantees include subsidiarity of the use of the obtained data, clear definition of the purpose for which the data are to be used, quality supervision by a court or other independent authority, ensuring data protection and security, the obligation to erase the data after a certain time and informing the persons concerned.
The Court did not find unconstitutionality in the provision obliging telecom providers to collect data necessary to identify people who need to be notified by message of special measures adopted by the PHA. It did, however, suspend those provisions which allowed the PHA to have access to those data upon request, as such notification could be carried out by the telecom providers themselves and thus there was no need to give the PHA access to them. The Court also pointed out the absence of the same legal guarantees as mentioned above.
For more details see here.
Spain
Sweden
Switzerland
North Macedonia
Tunisia
Turkey
Ukraine
United Kingdom
The CA was not the subject of a judicial review. Had a party sought to bring a judicial review of the CA, the bases on which it could have been reviewed would be limited to compliance with EU law under the UK’s transition arrangements, or for a declaration of incompatibility under s. HRA, as set out above. Parliament can, aside from the restrictions imposed by EU law, make or unmake any law whatsoever, and those laws will not be subject to judicial review (save for a declaration of incompatibility) or annulment by a court (save for inconsistency with EU law). The two Scottish Coronavirus Acts and the Northern Irish Act were also not challenged by way of judicial review. However, were such a challenge to be brought, it could only be brought for lack of competence, inconsistency with EU law or the HRA, or violation of fundamental principles of the rule of law. If one of these grounds were made out, the Act in question could be declared invalid.
There were human rights and vires challenges to the English lockdown regulations by way of judicial review. These challenges did not succeed, with the restrictions on human rights found to be justified. n R (Hussain) v Secretary of State for Health and Social Care [2020] EWHC 1392 (Admin), the applicant sought an interim injunction restraining enforcement of the regulations insofar as they prohibited attendance at Friday prayer at his mosque. In order to secure such an injunction, the court held that, in light of the public health crisis, the applicant would have to show a “particularly strong” case that he would be able to show the regulations to be unlawful by virtue of inconsistency with Art. 9 ECHR at trial (§9). The court held at §§18-19: "I turn now to the question of justification. My conclusion is that were this matter to go to trial, it is very likely that the Secretary of State would succeed on his submission that interference with the Claimant’s article 8 rights as a result of the 2020 Regulations is justified. Put in the way that is relevant for the purposes of this application for interim relief, the strong prima facie case the Claimant requires to get over the first American Cyanamid hurdle does not exist.
The Covid-19 pandemic presents truly exceptional circumstances, the like of which has not been experienced in the United Kingdom for more than half a century. Over 30,000 people have died in the United Kingdom. Many, many more are likely to have been infected with the Covid-19 virus. That virus is a genuine and present danger to the health and well-being of the general population. I fully accept that the maintenance of public health is a very important objective pursued in the public interest. The restrictions contained in regulations 5 to 7, the regulations in issue in this case, are directed to the threat from the Covid-19 virus. The Secretary of State describes the “basic principle” underlying the restrictions as being to reduce the degree to which people gather and mix with others not of the same household and, in particular, reducing and preventing such mixing in indoor spaces. I accept that this is the premise of the restrictions in the 2020 Regulations, and I accept that this premise is rationally connected to the objective of protecting public health. It rests on scientific advice acted on by the Secretary of State to the effect that the Covid-19 virus is highly contagious and particularly easily spread in gatherings of people indoors, including, for present purposes, gatherings in mosques, churches, synagogues, temples and so on for communal prayer.
Accordingly, no interim injunction was granted.
In Dolan v Secretary of State for Health and Social Care [2020] EWHC 1786 (Admin), the applicants sought permission to challenge the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 as amended, as well as an alleged decision to close schools and educational establishments. It was alleged that the regulations were ultra vires the PH(CoD)A; vitiated by a number of public law wrongs (fettered discretion, failure to take into account relevant considerations, irrationality or disproportionality) and inconsistent with Convention rights; namely Arts. 5, 8, 9, 11 and Arts. 1-2 of Protocol 1. Permission was refused on all grounds.
With regard to the question of vires, the court concluded that the Regulations were intra vires the PH(CoD)A. The Court held, at §37: "The provisions of the 1984 Act do provide power for the Secretary of State to take measures, including measures applicable to England generally, for the purpose of combating the spread of infection from a disease such as Covid-19. The powers conferred on the Secretary of State are not limited to making regulations in relation to specific individuals or groups of individuals (or specific premises). The powers are broad powers intended to enable the Secretary of State to adopt a wide range of measures to combat the spread of infection. There are other mechanisms in place under the 1984 Act to ensure that those broad powers are used only in appropriate circumstances and that any restrictions imposed are kept under review. […] The wording in section 45C of the 1984 Act is clear. It is intended to enable the Secretary of State to make general regulations to combat the spread of infection. The provisions that may be made “include” the type of orders that a magistrate could make, such as restrictions on movement and contact and requirements to abstain from working or trading. The provisions are not intended to limit the Secretary of State to making the kind of individualised orders in relation to particular individuals who or are may be infected. Similar provisions apply in relation to premises and things."
The challenges based on domestic administrative law were all refused permission to proceed. In particular, with regard to the requirement of proportionality where regulations made under the PH(CoD)A impose restrictions or requirements, the court held, at §59: "The decision on proportionality and necessity under the 1984 Act and Regulations is, ultimately, for the minister. The courts recognise the legitimacy of according a degree of discretion to a minister “under the urgent pressure of events, to take decisions which call for the evaluation of scientific evidence and advice as to the public health risks [.]"
The human rights challenges were also refused permission to proceed. In respect of Article 5, it was held that a requirement to stay in one’s own home overnight did not amount to a deprivation of liberty within the meaning of that provision. In respect of Article 8, it was not entirely clear whether the court concluded that there had been an interference with the rights guaranteed by Article 8. In any event, the court held any interference to be justified (§§77-78): "On any analysis, it is unarguable that the restrictions imposed here would be a justified if they amounted to an interference with the right to respect for private and family life. The Regulations seek to achieve a legitimate aim, namely the reduction of the incidence and spread of coronavirus. They do that by seeking to reduce the opportunity for transmission between households. That is a legitimate aim and is in accordance with law as the restrictions are included in Regulations made under powers conferred by an Act of Parliament. Any interference is proportionate. The restrictions are limited. Persons remain free to live with family members or friends forming part of their household. They may communicate with other and family members by means of communication such as telephones and, if available, internet facilities. They may physically meet family and friends outdoors (subject to the restrictions on numbers in regulation 7). Given the limited nature of the restrictions, the gravity of the threat posed by the transmission of coronavirus, the fact that the Regulations last for a limited period and have to be reviewed regularly during that period, and restrictions must be terminated as soon as no longer necessary to meet the public health threat, there is no prospect of the current regulations, at the current time, being found to be a disproportionate interference with the rights conferred by Article 8 of the Convention.
The Article 9 issue was adjourned, since the day after the hearing the restrictions were amended to permit attendance at places of worship, and the court required submissions on the effect of this change.
As regards Article 11, the court held that there was an inference with the right to assemble, but that the interference would clearly be justified (§95): "In truth, however, there is no realistic prospect that the courts would find regulation 7 in its current form to be a disproportionate interference with the rights guaranteed by Article 11 of the Convention. The context in which the regulation was made was one of a pandemic where a highly infectious disease capable of causing death was spreading. The disease was transmissible between humans. The scientific understanding of this novel coronavirus was limited. There was no effective treatment or vaccine.
As regards A1-P1, the court held that the applicants had not identified any property with which the restrictions interfered. As regards A2-P1, the court held that there had not in fact been any legal measure which required schools to close. No order had been made to close schools under the CA. Accordingly, the challenge was academic: there was no measure which could be quashed were the applicants to succeed.
Permission to challenge the regulations was accordingly refused on all grounds.
There have also been judicial reviews of measures of economic and social protection adopted under the CA or other empowering legislation. In R (Adiatu) v Her Majesty’s Treasury [2020] EWHC 1554 (Admin), an unsuccessful challenge was brought against various economic support schemes on the ground that there existed schemes for the employed and self-employed, but that individuals who were “workers” fell between these schemes, and that this was discriminatory. The challenge was not successful.
In Sharp v Scottish Ministers [2020] CSOH 74, the petitioner alleged that a scheme which gave grants to retail, hospitality and leisure businesses on the basis of the number of properties from which the business traded and the rateable value of those properties was unlawful because it restricted the grants payable in respect of additional properties. This was said to be irrational, and in breach of legitimate expectations. Both basis of challenge were rejected.
In R (Article 39) v Secretary of State for Education [2020] EWHC 2184 (Admin), the applicant challenged the lawfulness of the Adoption and Children (Coronavirus) Amendment Regulations 2020, which amended certain regulatory protections for children in care. The challenge alleged (a) a failure to consult; (b) that the 2020 Regulations were contrary to the objects and purpose of the statutory scheme; and (c) that they were made without regard to the welfare of children, contrary to statutory obligation. All these challenges were rejected, but the court observed: "At the heart of the challenge are two very different views of what the 2020 Regulations did and were designed to do. The Claimant argues that the 2020 Regulations undermine a wide range of statutory protections for vulnerable children, are a disproportionate response to the Covid-19 crisis, and significantly increase the risk to vulnerable children. The Defendant argues that the 2020 Regulations were a temporary and proportionate response which put in place limited flexibility in a number of absolute requirements in order to prioritise the needs of children by supporting the delivery of services at an exceptionally challenging time."
United States of America
At State Level:
Where additional state legislation has been passed (i.e., in New York, Washington state, and Wisconsin), it is potentially subject to judicial review. As of June 16, 2020, however, this legislation has not been submitted to judicial review and remains fully operative.