Venice Commission - Observatory on emergency situations
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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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16. What are the legal remedies available against general measures and/or individual taken under the state of emergency? What are the legal remedies for measures taken in application of ordinary legislation on health crisis? Has any change to the available legal remedies been decided on account or brought about by the state of emergency? Were any emergency measures invalidated and for what reasons (competence, procedure, lack of proportionality etc.)
Constitutionality of the restrictions imposed by bylaws can be reviewed only by the Constitutional Court, while their legality by the Administrative Court of Appeal. Laws can be challenged before the Constitutional Court for claims of their incompatibility with the Constitution and international agreements. With regard to individual measures (such as fines for persons who may have violated the rules of quarantine), they may be challenged first administratively to the Police Directorate and then to Administrative Courts of First Instance that have the territorial jurisdiction to review them.
For the case-law of the Supreme Court of Argentina on COVID-related measures see here.
Acts restricting the right to personal liberty may be challenged administratively or in courts in accordance with the Law on Fundamentals of Administration and Administrative Proceedings and the Code of Administrative Procedure of the Republic of Armenia.
Apart from the mechanism provided by Article 15 ECHR, Austrian constitution does not provide for a state of emergency as such. That being said, there are legal remedies which may be applied in respect of the measures taken in application of the “health crisis legislation”. Laws (the pre-existing laws and the recent amendments adopted during the COVID crisis) and regulations can be subject to judicial review. In fact, there are several applications currently pending with the Constitutional Court. Legal remedies against individual measures such as administrative penalties (fines) for violation of COVID-related restrictions include, above all, appeals. An appeal (Einspruch) has to be lodged within two weeks before the authority which has issued the penalty.
All legal remedies provided by the legislation continued to be effective during the COVID crisis.
Bills / decrees / ordinances conferring special powers on governments (see Q2) were submitted for preventive control by the Council of State, legislation section, which confirmed that they were in principle in accordance with the Constitution. The law, decrees and ordinances conferring special powers on governments could have been subject to constitutional review by the Constitutional Court, but no appeal was brought.
There are no special remedies for measures adopted during the emergency situation and measures adopted during the implementation of laws related to the health crisis. At the session held on 27 April 2020, the House of Peoples of the Federation Parliament passed the Law on Deadlines and Proceedings in Court Proceedings during a Natural Disaster. This law prescribes the following: deadlines for filing a lawsuit in civil proceedings, a proposal to initiate a non-litigation or document enforcement procedure, as well as other submissions related to the deadline, shall cease to run during the state of disaster; in criminal and misdemeanour proceedings, the time limits for filing appeals against decisions terminating the proceedings, for declaring extraordinary legal remedies, as well as for taking other procedural actions shall cease to run during the state of disaster; deadlines in administrative disputes relating to the taking of procedural actions and the fulfilment of their material obligations shall cease to run during the state of disaster; deadlines for declaring ordinary and extraordinary legal remedies, proposals for restitution or for undertaking other procedural actions in civil, non-litigation and enforcement proceedings and administrative disputes referred to in this Law shall cease to run during the state of disaster; statutes of limitations, prescribed by civil law, shall not run during a state of disaster. Similar arrangements are contained in the Decree with the force of law on the work of the judiciary in the Republika Srpska.
For the outline of the case-law of the Federal Supreme Court on COVID-related legislation and measures, see (in English) here.
No changes to the available legal remedies have been made. Regarding the state of emergency declared by the National Assembly, individuals in case of possible violations of their rights and freedoms may approach any of the bodies exhaustively indicated in the list under Art. 150 of the Constitution – one-fifth of the MPs, the President, the Council of Ministers, the Supreme Court of Cassation, the Supreme Administrative Court, the Prosecutor General, the Ombudsman and the Supreme Bar Council – which in turn may refer the case to the Constitutional Court. All legal acts of the Council of Ministers including those related to the declared emergency epidemic situation, as well as the orders of the Minister of Health, may be appealed before the Supreme Administrative Court on the grounds of Art. 132, para. 2 of Administrative Procedure Code.
On the basis of the recommendation of the Minister of Justice and the recommendation of the head of the Supreme court of the Republic of Croatia, hearings in individual cases that were not urgent, that were not „older cases“, nor were cases in which proceedings were to be ended soon, were postponed in the period from 14 March to 14 May 2020 for an indefinite period of time, leaving each individual court to reschedule them for the time they considered possible. Obligation of adherence to special measures of reduced physical contact, physical distance and possibility of work of courts in morning and afternoon shifts was in force.
Measures introduced in the state of emergency may be challenged in ordinary courts and, in some instances, in the Constitutional Court. Numerous applications have been submitted to various courts with respect to the emergency measures enacted in spring 2020. In addition, the first applications to the European Court of Human Rights have already been submitted.
No changes in legal remedies have been made in respect of Covid-19 measures. This means that all general legal remedies (administrative recourse, judicial review etc.) have been available. No requests for judicial review have been submitted.
All appeals under the ordinary legal regime of judicial and constitutional review could be exercised as normal.
For the case-law of the Constitutional Court regarding COVID-19 related measures see here
The Constitutional Court is the main body for the protection of the FL; it shall examine whether the laws (and the judicial decisions) comply with the criteria of constitutionality. Article 54 Paragraph (2) of the FL clearly states that under a special legal regime (order), the application of the FL may not be suspended, and the operation of the Constitutional Court may not be restricted. This provides the constitutional control over the actions of the Government in a state of danger too.
No state of emergency has been declared. If there was an emergency caused by war or armed rebellion under Art.28.3 (see Q1 above) then legal remedies would exist to challenge the parliamentary resolutions, and the constitutionality of laws resulting. These remedies would take the form of declaratory action in the High Court or judicial review of specific steps taken or in defence of enforcement proceedings.
There are no special remedies for the measures adopted during the emergency. Ordinary methods for access to justice apply. A distinction between legal remedies should be made depending whether they concern objective legality, including respect for the competences of the State, the Regions and the municipalities as provided in the Constitution and in ordinary legislation, or infringement of human rights. The national government started court proceedings against certain Regions (Calabria). The national government alleged that those regions' emergency measures encroached upon the State’s competences. In that case the administrative tribunal invalidated the Region’s measure. As regards lawsuits based on the human rights claims, their outcome is not yet known.
The exercise of the President's exceptional legislative power over state finances under Article 76 (1) of the Constitution is subject to judicial review. The Constitutional Court found that such exercise of exceptional legislative power would be subject to constitutional complaint if it constrained the basic rights of the people (29 February 1996, 93Hun-ma186). According to this case, if the exercise of exceptional legislative power or martial law by the President to prevent the spread of infectious diseases is triggered, it is subject to judicial review afterwards. However, in relation to the spread of COVID-19, the IDCPA (the law which regulates powers of the executive in the times of the health crisis) has not been challenged as to its constitutionality.
Under a state of emergency, citizens are not deprived of the right to judicial protection, as this right is included in the Constitution of the Kyrgyz Republic as absolute rights subject to no restriction whatsoever.
The system of remedies had not changed during the crisis. Affected persons may challenge the relevant regulations before the State Court (Art 104 LV and Art 15 State Court Act). Also, the ordinary courts could obtain the examination of laws and ordinances by the State Court (Art 18 and 20 State Court Act). Regulations could also be challenged by a group of people (Art 20 para 1 State Court Act requires 100 signatures).
The Constitutional Court has repeatedly stated that, in a democratic state, courts are the main institutional guarantee of human rights and freedoms. Paragraph 1 of Article 30 of the Constitution prescribes: “A person whose constitutional rights or freedoms are violated shall have the right to apply to a court.” Any person considering his or her rights or freedoms to be violated by the measures taken during the quarantine regime may apply to a court, challenging the legal regulation or claiming damages for compensation or the redress of the situation.
All ordinary legal remedies are normally applicable: the request for a declaration on incompatibility with the constitution, the amparo procedure and the constitutinonal dispute. None of the measures applied during the COVID-19 crisis was declared unconstitutional
For the case-law of the Constitutional Court of Moldova related to penalties imposed for breaching sanitary rules see here.
Recourse against ministerial decisions before the Supreme Court is possible (see above), but, so far, there has been no such cases.
For the case-law of the Constitutional Court on the COVID-19-related measures see here.
Appeal for excess of power is available but has not been exercised in practice. There has been no change in this respect.
No state of emergency is provided by the Constitution. Judicial review of legislative and administrative acts is not limited by the emergency laws and provisions mentioned in Q3, and the Corona Act specifically states that all measures taken by the government in accordance with the act, are subject to judicial review. For the case-law of the Supreme Court related to the COVID-19 measures see here.
Under Article 200 of the Constitution, the exercise of the writ of habeas corpus and the writ of Amparo (which operates in case of an act or omission by any authority, official, or person, which violates or threatens the other rights recognized by the Constitution) is not suspended during the enforcement of the states of exception referred to in Article 137 of the Constitution. When petitions concerning these constitutional rights are filed with regard to restricted or suspended rights, the corresponding jurisdictional body examines the reasonability and proportionality of the restrictive act. The judge is not entitled to challenge the declaration of the state of emergency or siege. The possible legal remedies include “acción popular” and “inconstitucionalidad” against the content of norms.
The individual remedies available are the usual ones and ensure full access to courts; the state of emergency and the extraordinary situation of public calamity add nothing to the current regulations, and do not remove emergency measures from the general system of access to courts.
The state of emergency did not affect the existing legal remedies.
Any prolongation, expansion or declaration of the state of emergency may be subject to judicial review by the Constitutional Court, as well as any decision based on the state of emergency, pursuant to Art. 129 par. 6 of the Constitution.
There is no disruption in the judiciary control system of rules and acts related to the state of alarm. By way of example, some rulings have been issued which have upheld or revoked the decisions taken in relation to demonstrations or gatherings convened on the occasion of the celebration of 1 May, affected by the measures on traffic limitation (thus, Judgment of the High Court of Justice of Galicia of 28 April 2020, Judgment of the High Court of Justice of Aragon of 30 April 2020 or Order of the Constitutional Court of 30 April 2020). Other decisions of some High Courts of Justice of several Autonomous Communities have upheld demonstrations on 23 May organized by Vox in some cities against the government management of the crisis.
Ordinary legal remedies are applied for measures during the health crisis. If a concrete dispute arises regarding ordinances issued under statutes providing for exceptional peacetime powers (e.g. regarding the compliance of such an ordinance with hierarchically superior norms, the statute itself and the Constitution) this can be subject to judicial review before the courts. In addition, as noted above, p. 13, the new formulation of para. 6c of the Act on Protection against Contagious Diseases, provides explicitly for an appeal against administrative measures involving a restriction of a civil right (within the meaning of Article 6 ECHR). So far, no emergency measures have been invalidated.
So far, no measure by the federal authorities related to the Covid-19 crisis has been invalidated by a court.
Every person can initiate a procedure of review of constitutionality of the decisions with general measures, decrees with thel force of law. Also, individual measure may be contested before ordinary courts.
The suspension of the activity of the courts was the subject of a jurisdictional conflict between the Ministry of Justice and the Higher Council of the Judiciary. An appeal before the administrative judge was submitted by a lawyer against the MSC's decision of 28 April 2020 and that of the Minister of Justice as of 3 May 2020, relating to the organization of the activity of the courts during the pandemic.
The Constitutional Court has not delivered any judgement on the measures relating to the pandemic.
The ordinary legal remedies remained in force
In each of England and Wales, Scotland, and Northern Ireland, individuals can bring applications for judicial review alleging that a public act or decision was unlawful. Judicial review has been available against general measures, as well as individual applications of them (subject to the requirement to exhaust avenues of appeal) throughout the pandemic crisis and some challenges have been brought.
In both Federal and State jurisdictions, all of the ordinary legal remedies of judicial review are available against both general and individual measures taken under the state of emergency, as well as against ordinary legislation. There has been no change to the available legal remedies related to the state of emergency. The only successful judicial invalidation of an emergency measure was by the Supreme Court of the State of Wisconsin (see details above, in response to Question 6).
Albania
On 17.04.2020 the Council of Ministers approved the normative act no. 16 “On the remission of administrative measures of a punitive nature established during the period of infection caused by Covid-19”, which provided for the remission of all administrative measures of a punitive nature, imposed by the relevant state authorities, for violation of rules or legal and sub-legal acts issued within the measures taken to prevent and combat infection caused by Covid-19, starting from the moment of ascertainment of this disease in the territory of the Republic of Albania until 17.4.2020.
Argentina
Armenia
No measure was invalidated, but some measure were dropped off at a later date under strong public criticism (e.g. limitation of freedom of publications on the COVID cases in the country which may spread panic).
Austria
Available legal remedies were not restricted or changed in any other way. No emergency measures have been invalidated to date. However, some of those regulations which have been limited in duration have already ceased to be in force (see Q10).
For the case-law of Austrian courts concerning the COVID-related measures, click here.
Azerbaijan
According to Article 130 (III) of the Constitution the Constitutional Court of the Republic of Azerbaijan, based on a request submitted by the President, the Milli Majlis, the Cabinet of Ministers, the Supreme Court, the Prosecutor’s Office of the Republic of Azerbaijan, and the Ali Majlis of the Autonomous Republic of Nakhchivan shall resolve the conformity of laws of the Republic of Azerbaijan, decrees and orders of the President, resolutions of the Milli Majlis, resolutions and orders of the Cabinet of Ministers, and normative legal acts of central executive bodies with the Constitution of the Republic of Azerbaijan.
Under Article 130 (V) of the Constitution everyone shall have the right to lodge, as prescribed by law, complaints with the Constitutional Court of the Republic of Azerbaijan against normative acts of the legislature and the executive, acts of municipalities, and judicial acts infringing upon his/her rights and freedoms, for resolving by the Constitutional Court of the Republic of Azerbaijan the issues referred to in Article 130 (III) of the Constitution, for the purpose of restoration of his/her violated rights and freedoms.
According to Article 5.3 of the Constıtutıonal Law on the Commıssıoner for Human Rıghts (Ombudsman) of the Republıc of Azerbaıjan, declaration of a state of emergency or martial law shall not cease or restrict the activities of the Commissioner.
Under Article 24.2 of the Law on state of emergency decision on the administrative detention may be appealed against with a higher body (public officer) or a court of law.
Article 36 the Law on sanitary and epidemiological safety provides that actions of the chief state sanitary doctors, other officials and specialists of the state sanitary-epidemiological service may be appealed to the state sanitary doctor of the higher level within one month. Decision on complaint shall be adopted within 30 days from the date of it receipt. In case of dissatisfaction with the decision, the actions of officials and specialists may be appealed in court in accordance with the legislation of the Republic of Azerbaijan.
Belgium
The draft ministerial decrees based on the law of 15 May 2007 on civil security were not submitted to the preventive control of the Council of State, legislation section, the government considering that, given the urgency, it was impossible to wait for the Council's opinion. Several provisions of these decrees, implying restrictions on fundamental rights and freedoms, were subsequently submitted to legal control, on the one hand by the Council of State, the administrative litigation section which has the power to annul and suspend them, and on the other hand, judicial jurisdictions which have the power to refuse to apply them in the event of non-compliance with higher standards.
Several measures were contested before the Council of State, administrative litigation section, in an "urgent" summary procedure. The Council of State rejected almost all these appeals, on the one hand because the conditions for ordering the suspension in the context of an urgent summary procedure were not met, on the other hand because the Council considered that, sometimes taking into account the margin of appreciation available to the authorities in the matter, the measures taken were not without reasonable justification, nor disproportionate.
The legal basis of these ministerial orders has also been contested. Case law is uncertain. Certain jurisdictions (eg Trib. Pol. Charleroi, September 21, 2020, Mélotte), supported by constitutionalists, claim that the law of May 15, 2007 did not grant such broad powers to the Minister of the Interior and that the constitutional principle of legality (see 7) implies that it is up to the legislator to determine a stricter legal framework on the basis of which the King - not a single minister - can take the necessary measures limiting the exercise of fundamental rights and freedoms. The General Assembly of the Council of State, administrative litigation section, on the other hand ruled that the law of May 15, 2007 did indeed provide a sufficient legal basis and in accordance with the principle of legality, with the disputed ministerial decrees. (Council of State, administrative litigation section, nr. 238.818, October 30, 2020, NV Unami v. Belgian State; nr. 238.819, October 30, Verhelst and others v. Belgian State). Other jurisdictions have ruled in the same direction. (Trib. Pol. Louvain, August 20, 2020; Corr. Bruges, June 25, 2020)
Bosnia and Herzegovina
Brazil
Bulgaria
It appears that the temporary adjournment of court proceedings in certain category of cases, ordered by a decision of the Supreme Judicial Council in March 2020, also affected some judicial review proceedings which related to the measures taken by the executive during the COVID-19 crisis. The SCJ later reconsidered its decision opening a possibility to bringing cases about COVID-related measures during the state of emergency.
Croatia
The Constitutional Court examined cases related to the measures introduced during the crisis. Thus, the Constitutional Court of the Republic of Croatia rendered on 3 July 2020 decision no. U-VII-2980/2020. It held that from the perspective of Article 16 of the Constitution, it is not constitutionally and legally unacceptable to exclude the possibility of citizens who have been diagnosed with COVID 19, and are thus in isolation, and also citizens who are in self-isolation due to the suspicion that they have an infectious disease, to come in person to a polling station.
However, citizens who have been diagnosed with COVID 19 as well as all others who, for other prescribed reasons, do not come to polling stations but may vote outside polling stations (Article 83.2–83.6 of the Act on t he Election of Representatives to the Croatian Parliament) – should have the possibility to vote outside polling stations, under conditions adjusted to the nature of the potential risk of infection and aligned with requirements regarding the health safety and protection of other participants in the election process.
Therefore, the State Election Commission must secure the possibility to exercise the voting right for this category of voters, by adequately adjusting the rules on voting outside polling stations in cooperation with the Croatian Institute of Public Health and by taking into account the protection of the health of all participants in the election process.
For the ovewiew of the case-law of the Constitutional Court on the COVID-19-related measures see here
Czech Republic
The first applications were considered in the late April 2020. Two important decisions were rendered then. The first was the decision of the Prague Municipal Court of 23 April 2020 (14 A 41/2020) which abolished four acts by the Ministry of Health (two related to the restrictions on the right to freedom of movement, two related to those on the right to property) because they had been adopted ultra vires. The second was the decision of the Constitutional Court of 28 April 2020 (Pl. ÚS 8/20) which declared the declaration of the state of emergency outside the judicial review (in principle). The two courts both limited their review to formal aspects of the emergency legal acts and declined to engage in the review of the substantive aspects (proportionality etc.). Other decisions are certainly to follow.
Denmark
France
Prior control: In its decision of 11 May 2020, the Constitutional Council partially censored the article providing for the establishment of a "tracing" (non-digital) scheme, and was able, through various reservations of interpretation, to recall, in particular in the area of quarantine and isolation measures, its jurisprudence on the limitations of freedom to come and go.
Control a posteriori: between 16 March and 10 July 2020, the Council of State examined more than 250 procedures some of which have obliged the Government to specify provisions arising from the ordinances and regulatory measures taken under the emergency, initial or the extension law.
The Court of Cassation considered all appeals concerning the application of some of the emergency measures.
The Constitutional Council has recieved two QPCs ("priority issue of constitutionality") requests concerning certain provisions put in place in the state of emergency as early as the end of May. The decisions were issued on 25 June and 2 July 2020. The delays between the application before the court and the decision of the Constitutional Council were thus, in both cases, less than the normal period of 3 months. (2020-846.847.848 QPC July 25, 2020 and 2020-851.852 QPC of July 2, 2020).
Some previous jurisprudence on the emergency regimes may be relevant in the current context.
On 11 December 2015 the Council of State sent a QPC request to the Constitutional Council, which, by decision of 22 December 2015, stated that house arrest does not involve deprivation of individual liberty within the meaning of Article 66 of the Constitution and that the first 9 paragraphs of Article 6 of the 1955 Act do not disproportionately infringe on the freedom of movement and do not disregard Article 16 of the Declaration human and citizen's rights, neither the right to privacy nor the right to lead a normal family life, nor freedom of expression and communication, nor any other guaranteed right not the Constitution. The Constitutional Council also ruled that the Constitution does not exclude the possibility for the legislature to provide for a state of emergency.
On 18 January 2016, the Constitutional Council, by a decision of 19 February 2016, declared that Article 8 of the 1955 law on the temporary closure of theatres, drinking establishments and meeting places of any kind complied with the Constitution. The Constitutional Council also reiterated that the Constitution does not exclude the possibility for the legislature to provide for a state of emergency.
Germany
Hungary
The extraordinary court vacation which had been in effect until 30 March may have had the effect of delaying some of the proceedings related to individual complaints arising from the emergency measures.
Ireland
The recent new laws referred to under Q3 could be challenged by similar actions. The regulations bringing in the special measures could be challenged in such actions on the basis of constitutionality and consistency with the law under which the regulations were made. Further the regulations are subject to a negative laying provision in parliament so a resolution could be brought in either House to annul them.
No change to available legal remedies has been made.
As indicated under Q14 above an application was brought by two lay litigants but failed in the High Court. It is possible that there will be an appeal.
Italy
Korea, Republic
Kyrgyzstan
Liechtenstein
Lithuania
It is expressis verbis provided for in the Law on the Prevention and Control of Contagious Diseases in Humans (Article 38) that all disputes involving the violation of personal rights with respect to communicable disease prevention and control, as well as all disputes concerning the non-fulfilment of the obligations of legal and natural persons with respect to communicable disease prevention and control, are resolved in a court.
Regarding the quarantine measures adopted by the Government, as the review of its legal acts falls into the exclusive competence of the Constitutional Court (Articles 102 and 105 of the Constitution), the Constitutional Court is the only institution to invalidate these measures. Only one individual petition challenging a governmental decree adopted during the quarantine has been received in the Constitutional Court, but the question of the admissibility of this petition has not been resolved yet. No other petitions seeking to invalidate particular emergency measures have been received in the Constitutional Court by now.
So far, the measures taken to prevent the spread of Covid-19 were not invalidated by any judicial decision, but, once the measures had lost their relevance or the situation had changed, these measures were amended or discontinued by the same institution that had ordered them.
Mexico
Moldova, Republic of
Monaco
Montenegro
Morocco
Emergency measures have not been invalidated; on the contrary, they have been validated since by two judgments the courts rejected the applicants' claims. For more details on the case law see here.
Norway
Peru
Portugal
There is no information about the invalidation of emergency measures by the courts; however, it is not excluded that individuals who consider themselves affected may complain about the effects of those measures.
A case of mandatory quarantine in a hotel the person who entered the territory of an Autonomous Region of Azores was decided in a request for habeas corpus. A citizen was placed in prophylactic confinement in a hotel, after disembarking at the airport, coming from the mainland of Portugal. This measure was determined by the regional health authorities. The court noted that there was no consent from the person concerned, the situation occurred outside the period of the state of emergency, and the legal provisions emanating from the Autonomous Region's bodies that authorized the measure did not respect the powers provided for in the Constitution for the Region. The court decided that the compulsory confinement of a person, without sufficient evidence that this person was infected, without weighing the values of public health against personal freedom, and without the possibility of staying at home (while in other parts of Portugal it was possible to spend the quarantine at home), violates the principle of proportionality. By decision of May 16, the court ordered the immediate termination of the measure.
In the July 30 decision, the Constitutional Court examined this situation and said that the authorities had treated visitors of the Azores Islands like prisoners serving short sentences. Visitors were required to quarantine even if they had no symptoms, and it was unconstitutional to impose the mandatory quarantine on all visitors. Travelers to the Azores Islands now have the option to take a COVID-19 test either before they arrive, or on arrival before they are admitted. If a traveler chooses not to take the test, they will be required to return to an area outside of the Azores.
Serbia
In addition, on 20 March 2020, the Government issed a Decree on deadlines in court proceedings during the state of emergency, which extended the deadlines for filing of claims in civil proceedings, filing a private lawsuit in criminal proceedings, etc. For the case-law of the Constitutional Court on the COVID-19-related measures see here.
Slovakia
Administrative decisions taken by public authorities are susceptible to judicial review by administrative courts in administrative complaint proceedings. Numerous constitutional complaints have been filed against the obligatory quarantine in a state-owned facility imposed for people returning from abroad in a measure issued by the Public Health Authority on 17 April 2020. The Constitutional Court has so far dismissed 19 of them for non-exhaustion of legal remedies, stating that those measures were susceptible to judicial review by administrative courts and that the complainants should seek redress of their rights first in administrative complaint proceedings. The written versions of the decisions are not yet ready.
Some of the legislation adopted during the state of emergency has been successfully challenged before the Constitutional Court - see Q14. For the case-law of the Constitutional Court on the COVID-19-related measures see here.
Spain
Sweden
Switzerland
North Macedonia
The declarations of the State of emergency were challenged before the Constitutional Court (see Q15). The Government's decisions (decrees with the force of law) were challenged and some of them annuled by the Constitutional Court (see Q8)
The Decision for prohibition and special regime for movement on the territory of the Republic of North Macedonia was challenged before the Constitutional Court, which imposed interim measures.
So far, the Constitutional Court nullified three decrees with the force of law and one of the provisions from another decree with the force of law.
The Decree with the force of law for determining the limit of the salary of elected and appointed officials in the public sector for the time of an emergency situation was nullified on several grounds. With this decree the salaries of all holders of public offices, which were appointed or elected, were reduced for two months (April and May) to the amount of the minimal salary guaranteed in the country. Only appointed officials in health sector were excluded from this restriction of the salaries. This decree with legal force affected 2060 holders of public offices (Members of the Parliament, of the Government, of the Constitutional court, judges, prosecutors, managers etc.). The Constitutional court stated that the limitation of the salaries was not constitutionally based, as such contrary to the Constitution it restricts the right to salary and the right to property and that this measure is not proportionate to the aim, neither is necessary in the moment, nor is a crisis measure. Also the Court found that such measure was discriminatory (Decision U. No. 44/2020 and U. No. 50/2020).
The Decree with the force of law on limitation of payment of public sector employees’ benefits and compensations for the period of emergency situation, was nullified because the Constitutional Court determined that the limitation of the labor rights does not have a constitutional basis: in the Constitution there are no provisions on the basis of which these rights can be limited in the time of a state of war or emergency (Decision U. No. 49/2020).
The Decree with the force of law for public prosecutors’ servants, investigators and other employees in the Special Prosecution Office (the SPO) was also nullified. This decree was related to the effects of the destitution of the Special Public Prosecutor, which resulted in the dismissal of the staff of the Special Prosecutor's Office. The Decree with a force of law gave competence to the Prosecutor General to decide on the issues connected with the labor rights of the former SPO staff members. The Constitutional court found that “the matters that fall in the scope of the challenged decree are not connected to the reason for existence of the state of emergency determined in the Decision of the President of the Republic”, and that it transcends the reason for declaration of the state of emergency. (Decision U. 45/2020).
Article 3 of the Decree with legal force for terms of judicial proceedings in state of emergency and work of the courts and public prosecutions was nullified. That article regulated that the term of the office of the lay judges, whose mandate expires during the state of emergency, will be prolonged until the proceedings are completed. The Constitutional Court ruled that such a provision interfered with the principle of separation of powers, because the Government took over the competence of the Judicial Council to decide on the mandate of lay-judges (Resolution, U. No. 56/2020).
Tunisia
Turkey
Ukraine
United Kingdom
For the judicial review of the legislation see Q14.
Further, in England and Wales under the PH(CoD)A and under the equivalent provisions in Northern Ireland, there must exist under any regulations which enable the imposition of special restrictions and requirements on individuals a right of appeal against the decision to impose the restriction or requirement (s. 45F(6) PH(CoD)A; s. 25F(8) PHA(NI)). A similar right of appeal must exist for any regulation made by the Scottish ministers in respect of Scotland (CA Schedule 19 para 5(5)).
The measures introduced by emergency regulation have not affected the jurisdiction of the ordinary courts to review the regulations for their legality, nor, where no appeal lies, to review individual measures taken under those regulations.
As deminstrated above, none of the challenges so far brought alleging the invalidity of a public health regulation made to respond to the Covid-19 pandemic has resulted in the regulation in question being declared invalid.
I
United States of America