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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1. Are there specific provisions in the constitution of your country applicable to emergency situations (war and/or other public emergency threatening the life of the nation)?
Article 116 of the Spanish Constitution of 1978 (henceforth, SC) provides for three types of emergency situations: state of alarm, state of exception and state of siege (the most serious limitations). It establishes conditions in which they should declared; the specific circumstances that allow for their declaration are not defined and are to be developed in an organic law.
2. Do organic/constitutional or ordinary laws regulating the state of emergency exist in your country?
Yes. The provisions of Art. 116 SC are developed in the Organic Law 4/1981, of 1 June, of the states of alarm, exception and siege (hereinafter, LOEAES). This organic law establishes that the state of alarm may be declared in the event of natural crises, including health crises: this is the normative basis for the measures taken in Spain in the face of the COVID-19 crisis.
3. Do organic or ordinary laws on health risks or other public emergency exist in your country?
Yes. Of the three exceptional regime provided for in Article 116 SC and in Organic Law 4/1981, of 1 June, on states of alarm, exception and siege, only the state of alarm expressly provides that it may be declared in the event of "health crises, such as epidemics and serious pollution situations" [Art. 4.b) LOEAES].
4. Was a state of emergency declared in your country due to the Covid-19 pandemic? By what authority and for how long?
Yes. According to Art. 116.2 SC, the state of alarm is declared "by the Government by means of a decree agreed upon by the Council of Ministers for a maximum time limit of fifteen days". After this first tim-limit, the Government may submit the declaration for successive extensions to Parliament. Neither the Constitution nor the Organic Law establishes the duration that these extensions should have, so the Government proposes a duration for the extension that must be authorised by the Congress of Deputies. In fact, Congress can determine the scope and conditions of the extension, and this also includes its duration.
5. Was the declaration subject and submitted to parliamentary approval (if it was taken by the executive)?
Article 116.2 of the SC states that the Government declares a state of alarm and reports to the Congress of Deputies, which should meet immediately for that purpose. Art. 162 of the Regulations of the Congress of Deputies (RCD) foresees that, after receiving the communication of the declaration accompanied by the decree agreed upon in the Council of Ministers, it shall be referred to the competent committee, which may request such information and documents as it deems appropriate; Art. 165 establishes that the matter will be immediately submitted to the Plenary of the Congress, convened for that purpose if it is not in session.
6. Was the declaration subject and submitted to judicial review? Was it found justiciable?
In accordance with constitutional jurisprudence, the royal decree declaring a state of alarm has the rank or value of law, and it is therefore exclusively up to the Constitutional Court to judge its conformity with the Constitution (ATC 7/2012 of 13 January and STC 83/2016 of 28 April). Royal Decree 463/2020, on the declaration of the state of alarm, Royal Decree 465/2020, on the modification of the previous Royal Decree and the first three extensions of the former, by Royal Decree 476/2020 of 27 March, 487/2020 of 10 April and Royal Decree 492/2020 of 24 April, as well as Order SND/298/2020 of 29 March, establishing exceptional measures in relation to funeral wakes and ceremonies to limit the spread and contagion of COVID-19, were the subject of an action of unconstitutionality before the Constitutional Court lodged by members of the VOX Parliamentary Group in Congress (appeal 2054-2020). The Constitutional Court declared the action admissible by order of 6 May 2020.
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?
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.
8. Which human rights have been limited/derogated from in your country, in the context of the Covid-19 pandemic?
The state of alarm does not allow the suspension or derogation of fundamental rights. The declaration of the state of alarm allows for the introduction of limitations or restrictions to the exercise of a fundamental right, but does not deprive this right of its fundamental character or of its constitutional rank. Nor does it suspend, even provisionally, the effectiveness of the right. The right remains in force and is endowed with all the applicable constitutional guarantees (effective judicial protection, respect for the core content of the right ex Article 53.1 of the SC, examination of the proportionality in the exercise of the limitations imposed and protection by a constitutional complaint before the Constitutional Court).
9. If a declaration of state of emergency was not made, did the Executive enjoy additional powers under the ordinary legislation on health risks or another public emergency? Did it decide to impose exceptional restrictions on human rights based on these laws?
Not applicable - the Government has made the declaration and has used powers provided by the constitutional law on the three regimes of emergency (see Q2).
10. Are the possibilities for the Executive to derogate from the normal division of powers in emergency circumstances limited in duration, circumstance and scope?
The declaration of the state of alarm does not allow the abrogation of the division of powers.
11. Were the sessions of parliament suspended during the Covid-19 pandemic? If so, for how long? Were specific rules on the functioning of parliament during the emergency adopted? By parliament or by the executive?
A few days before the declaration of the state of alarm, the Congress of Deputies decided to postpone its activity, knowing that some of its members had been infected and the rest of the members of the parliamentary group to which they belonged were not going to attend the sessions - see here the press release of 10 March. Shortly thereafter, the Board (the governing body of the House) agreed to suspend most of the activity of the Congress for two weeks, notwithstanding addressing urgent issues (such as the validation of the outstanding decree-laws), by making distance voting generally available in such cases, so that only those members of the House who were to take the floor in the session would have to attend - see the press release of March 12.
12. Were the judicial sessions of the Constitutional Court or court with equivalent jurisdiction and/or other courts be suspended during the Covid-19 pandemic? If so, for how long? Were specific rules on the functioning of these courts during the emergency adopted? By parliament or by the executive?
The second additional provision of Royal Decree 463/2020, on the declaration of the state of alarm, generally established the "suspension of procedural deadlines", which will have to be resumed when the state of alarm ends (subsequently, but without being applicable until that time, Royal Decree Law 16/2020, of 28 April, on procedural and organisational measures to deal with COVID-19 in the area of the Administration of Justice, has established the criteria that the courts of justice will have to follow in order to resume their activity). Some exceptions to this suspension are expressly established: thus, the suspension does not affect habeas corpus proceedings, proceedings concerning detainees, protection orders, prison surveillance, violence against women or minors, protection of the fundamental rights of the person, collective conflict, protection of minors or, more openly, those necessary to avoid irreparable damage to the rights and legitimate interests of the parties in the proceedings.
13. Was legislation on the state of emergency or on the emergency amended or adopted to deal with the Covid-19 pandemic?
Neither the emergency legislation nor the emergency health legislation has been amended. Decisions have been taken to deal with COVID-19 in application of the provisions of the decrees adopted within the legal regime of the state of alarm, within the framework of previously existing emergency legislation or by using the power of the Government to adopt emergency legislation provided for in Article 86 of the Constitution (Decree Laws).
14. Was this additional legislation subject to judicial review?
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).
15. Was the state of emergency prolonged? For how long? Was the prolongation subject and submitted to parliamentary control? Was it subject and submitted to judicial review?
Yes. The state of alarm, initially declared for a period of fifteen days, has been extended on six occasions, in accordance with the provisions of Art. 6.2 LOEAES (the SC does not establish any express regulation on the extension), which requires the express (and prior) authorisation of the Congress of Deputies, which in this case may establish the scope and conditions in force during the extension. The Government, in accordance with Art. 162 of the Regulations of the Congress of Deputies, must request it before the expiry of the deadline; the parliamentary groups may submit proposals on the scope and conditions of the extension before the debate, which begins with a presentation by a member of the Government of the reasons justifying the request for the extension and ends with the voting on the proposals submitted by the parliamentary groups after the Government's request and subsequently incorporating the proposals that have been previously approved. Amendments to Royal Decree 463/2020 have been included, specifying, extending or reducing the scope of the measures initially envisaged, in the decrees enacting these successive extensions always for exactly fifteen-day time limits so that the development of the state of alarm can be periodically debated in Congress (the LOEAES does not contain any provision on the duration of these extensions). It has been announced that the extension authorised by Congress on 3 June and which will run until 21 June will be the last one and therefore the state of alarm is due to end on that day.
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.)
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.
17. If parliamentary and/or, where applicable, presidential elections were scheduled to take place during the Covid-19 emergency: were they held? Were special arrangements made, and if so, which arrangements? Was it necessary to amend the electoral legislation? What was the turnout? How was it compared to the previous elections? If they were postponed, what was the constitutional or legal basis for doing so? Who took the decision? For how long were they postponed? Was this decision subject and submitted to parliamentary control or judicial review?
No general elections were held or planned during the state of alarm. According to the Art. 116.5 SC the dissolution of the Congress during the state of alarm or other exceptional states is forbidden. Besides, in this moment the President of the Government can not dissolve the Parliament and call for early elections until a year has passed since the last dissolution (Art. 115.3 SC). Since last elections were held on 10 November 2019, it is only possible to call for early elections in September 2020 in order to hold them in November 2020.
18. Same questions as under 17), mutatis mutandis, as regards local elections and referendums.
Before the declaration of the state of alarm, the presidents of the Autonomous Communities of Basque Country and Galicia had called for elections to the respective parliaments of these Autonomous Communities, exercising the power of early dissolution granted to them by the regional laws (both Autonomous Communities had held the previous elections on 25 September 2016 and their parliaments have a four-year term).
Spain
A state of alarm is proclaimed by the Government, for a maximum period of fifteen days. The Congress of Deputies shall be informed and must meet immediately. Without their authorization the said period may not be extended. The decree shall specify the territorial area to which the effects of the proclamation shall apply.
A state of emergency shall be proclaimed by the Government with prior authorization by the Congress of Deputies, may not exceed thirty days, subject to extension for a further thirty-day period, with the same requirements.
A state of siege (martial law) shall be proclaimed by absolute majority of the Congress of Deputies, exclusively at the proposal of the Government. Congress shall determine its territorial extension, duration and terms.
In addition, under Article 86 of the Constitution, in cases of "extraordinary and urgent need", the Government may issue temporary legislative provisions which shall take the form of Decree-Laws and which may not affect the regulation of the basic State institutions, the rights, duties and liberties contained in Title I, the system of the Autonomous Communities, or the General Electoral Law. he Decree-Laws must be submitted forthwith to the Congress of Deputies and voted within thirty days after their promulgation.
For the text of the LOEAES in Spanish click here.
Regarding health legislation, Law 33/2011, of 4 October, General Law on Public Health and Organic Law 3/1986, of 14 April, on Special Measures in the Field of Public Health should be mentioned.
Both rules relate exclusively to the field of health protection, recognised by Article 43 SC, and do not extend their provisions to other fields or regulate other rights which might be affected by a situation of a global health crisis of the intensity of COVID-19. Furthermore, none of these rules expressly provides for any limitation of fundamental rights or for the involvement f Parliament (specifically, the Congress of Deputies), both in the initial declaration of the state of alarm by the Government and in the necessary approval of successive extensions by the Congress.
Organic Law 3/1986, of 14 April, on Special Measures in Public Health Issues, aims to "protect public health and prevent its loss or deterioration", for which "the health authorities of the various public administrations may, within the scope of their powers, adopt the measures provided for in this Law, when so required for urgent or necessary health reasons". These measures refer to the treatment, hospitalisation and control of patients, and of the immediate environment, if there is a health hazard for the population and in the case of transmissible diseases (arts. 1, 2 and 3). Measures may also be taken to ensure the supply and distribution of the necessary medical products (art. 4).
Law 33/2011 of 4 October, the General Law on Public Health, aims to "achieve and maintain the highest possible level of health of the population", and, specifically, "to lay the foundations for the achievement and maintenance of people's health at the highest possible level, by means of policies, programmes, services and, in general, actions of all kinds carried out by public authorities, companies and citizens' organisations with the aim of acting on the processes and factors that most influence health, and thus prevent diseases and protect and promote people's health, both in the individual and collective sphere" (Art. 1).
Article 52 of this General Law on Public Health attributes to the Ministry of Health (state health authority) in some cases, together with its General Directorates, the adoption of special intervention measures to protect public health, in situations of emergency or need and in the face of extraordinary circumstances (Art. 52).
In accordance with this provision, Royal Decree 463/2020 of 14 March was initially issued, declaring the state of alarm for the management of the health crisis situation caused by COVID-19, which has been extended six times, for successive 15-day time limits (the extension, at the time of the writing) was authorised at the plenary session of the Congress of Deputies held on 3 June. The Minister of Health has been the state authority designated in Royal Decree 463/2020, of 14 March, to manage the state of alarm and in its six successive extensions (at the first period, together with other Ministers, due to the subject matter to be acted upon).
For the decree declaring the state of alarm in Spanish click here.
The Plenary Session of the Congress of Deputies was effectively convened for 18 March. In this session, the Prime Minister explained the reasons and content of the declaration of the state of alarm, followed by a debate with the intervention of the spokespersons of the different parliamentary groups. Each extension of the Declaration requires a previous authorization of the Congress.
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.
Among other measures, Article 7 of Royal Decree no. 463/2020 on the declaration of the state of alarm established serious limitations or restrictions on the way how the freedom of movement is exercised (Art. 19 SC). It was done in order to contribute to the achievement of a public interest such as guaranteeing people's health, in line with what is authorized by Articles 11 and 12 of Organic Law 4/1981. The decree no. 463/2020 contained a prohibition of going out into the street with the some exceptions set out in Article 7 (acquisition of food, pharmaceutical products and staples; providing assistance to health centres, services and facilities; commuting; returning to the habitual residence; assistance and care of children, minors, disabled or especially vulnerable persons; going to financial and insurance institutions; or due to force majeure or situation of need, or any other activity of similar nature).
The "containment measures" on road travel and movement of individuals that have been adopted in various fields have had an impact on the exercise of certain rights but without suspending them while maintaining all the guarantees for judicial defence; such has been the case in the field of education, business, cultural and recreational activities, hotels and restaurants, places of worship and religious ceremonies, public health, customs transit and transport, food supply, power supply and other essential services, public and private media and the establishment of a specific system of penalties. Such penalties are currently under judicial review for they had been adopted under general grounds of “disobedience”.
However, some Constitutional Law scholars have argued before the Ombudsman that the limitation of rights has been so important than they consider we are in front of a real suspension of rights. For them, in reality the state of alarm corresponds to a state of exception. Main opposition parties (PP and Vox) agree with such statement.
Article 116.5 of the SC establishes that none of the constitutional powers of the State may be discontinued during the validity of any of the three exceptional states. In constitutional terms the position of Parliament is strengthened, since it cannot be dissolved while any of the three exceptional states are in force, with the chambers (Congress and Senate) automatically convened if they are not in session, insofar as the intervention of Congress is expressly provided for (to varying degrees, depending on the exceptional state in question). In fact, in the state of alarm both the declaration and the extensions require joint action by the executive and the legislature. The executive declares the state of alarm and must immediately inform the legislative. As for the extension, it is requested by the executive, but must be authorised by the parliament, which determines its scope and conditions.
Regarding regional powers, the Decree of the state of alarm allows the national government to subject regional competences related with the emergency situation under the direction of National authorities. During the first period of the state of alarm regional competences over such issues were solely executive. Then, during the last extensions of the state of alarm, a coordination and cooperation among both levels of government was established.
After the declaration of the state of alarm, the Chamber met in all the cases provided for in the Constitution and regulations (extension of the state of alarm, validation of decree-laws) and it gradually returned to its ordinary functionning as well.
For the Houses of National Parliament there is no provision on virtual sessions in the Regulations of the Congress and Senate, only distance voting in some particular circumstances.
It has been particularly important to maintain the parliamentary scrutiny of Government by means of oral questions and interpellations during parliamentary sessions in which all the members of the Executive have appeared and intervened. Also noteworthy is the weekly appearance of the Health Minister in committee session. During the state of alarm, all the members of the Government have appeared, at their own request, in the corresponding Commissions of the Congress and the Senate to present and debate their actions with the parliamentary groups during this period.
Since the declaration of the state of alarm, the Congress has held 12 plenary sessions and numerous committee meetings, including those of the Health and Consumer Affairs Commission (11), inasmuch as the head of the Health Ministry, as indicated above, has been given a greater role among the competent authorities. The Congress has also agreed on the creation of a special commission "for Social and Economic Reconstruction", which has held daily sessions since its establishment and has been organized into four working groups: economic recovery, social protection and care, public health and European Union.
As for the Constitutional Court, by decision of 16 March 2020, adopted by the Plenary in a virtual meeting, it was established that the deadlines for any procedural or administrative actions were suspended during the state of alarm, although appeals and briefs affecting the various constitutional or administrative processes could still be filed. Applying the principle of regular functioning of the institutions mentioned above, it was also agreed that the Constitutional Court would continue to issue such rulings and interim measures as may be necessary "in the constitutional processes as so required, in order to guarantee the constitutional system and fundamental rights and public freedoms". The Constitutional Court subsequently adopted the decision of 6 May 2020, also of the Plenary, to specify that, in all constitutional processes already under way, the terms and deadlines that had been suspended by application of the previous decision would be recalculated from the beginning, the first day of the calculation being therefore the next working day following that on which the suspension of the proceedings was lifted.
The provisions governing the state of alarm allow the competent authority (in this case, the Government ) to adopt necessary measures to face the extraordinary situation (Art. 11 and 12 LOEAES). In this regard, numerous regulations have been agreed upon, in the form of a royal decree approved by the Council of Ministers or a ministerial order, in which such measures have been specified (they can be consulted on the website created by the Official State Gazette: "COVID-19: European, State and Autonomous Communities Law", for the text in Spanish click here.
Additionally, the Government, when deemed necessary, has also made use of the general authorisation contained in Article 86.1 of the SC, which allows it to make legally binding rules in cases of "extraordinary and urgent need", which are of a provisional nature until they are validated or repealed by the Congress of Deputies (30 days). Since 10 March (before the declaration of the state of alarm, which was agreed on 14 March) and until 14/6/2020, 16 rules of this type have been approved, affecting various areas: protection of public health, economic and social impact, employment, population mobility, assistance to victims of gender violence, taxation, administration of justice, culture, etc.
The purpose of these decree-laws has been to build what is commonly referred to as a social shield against the pandemic which has been driven by the protection of health, as well as the maintenance of the economic fabric within the framework of a social market economy, the preservation of employment and social protection. All these economic measures will continue their ordinary parliamentary procedure before the Spanish Parliament so that they can finally be incorporated into the legal system, when appropriate, and in the terms determined by the Spanish Parliament itself.
The two decrees for the dissolution of the parliaments of these Autonomous Communities were agreed on the same day and elections were also called on the same date, 5 April (Decree 2/2020 of 10 February of the Lehendakari dissolving the Basque Parliament and calling for elections and Decree 12/2020 of 10 February dissolving the Galician Parliament and calling for elections).
As a result of the worsening health situation, the governments of both Autonomous Communities decided that the elections could not be held with the necessary health guarantees and both electoral processes were suspended (Decree 7/2020 of 17 March of the Lehendakari, cancelling the elections to the Basque Parliament on 5 April 2020), due to the health crisis derived from the Covid-19, and determines the issuance of the new election call and Decree 45/2020 of 18 March, which waives the holding of elections to the Parliament of Galicia on April 5, 2020 as a result of the health crisis derived from the COVID-19). Both decrees have a brief and very similar content: in addition to providing for that measure, they establish when the election call will be activated, with a slight difference on this point, since the first one just requires the "health emergency" (declared by the autonomous government) to have been lifted, while the second one also refers to the lifting of the state of alarm (which depends, as noted, on the central institutions of the State); in either case, when that time comes, the election call must be made "immediately" (Basque Country) or "as soon as possible" (Galicia) and, in both cases, "after political parties have been heard", by means of a new decree by the autonomous president.
The Royal Decree 514/2020, of 8 May, by which the state of alarm is extended (the fourth extension) established that "the validity of the state of alarm shall not be a hindrance to the development and carrying out of the electoral activities required for holding the elections called to the Parliaments of the Autonomous Communities" (Art. 7. 1 bis.). This possibility has allowed both Autonomous Communities to call for their respective elections once again (Decree 11/2020, of 18 May, of the Basque President, calling elections to the Basque Parliament, which sets the voting date for 12 July, and Decree 72/2020, of 18 May, of the Galizia’s President, alling elections to the Parliament of Galicia, for the same date of 12 July).
In both cases, it is understood that this is an appropriate date for carrying out the electoral process taking the necessary preventive measures, given that the epidemic is expected to present more favourable data (as opposed to a forecast that a new outbreak may occur at a later date). In any case, if the public health conditions worsen, making it difficult to hold the elections on the date set forth, it is planned to cancel the call for elections again, putting off the vote for a later date that can provide due health guarantees.
In absence of any legislative provision regarding the suspension of elections in Spain, in such cases, decision was taken by both Regional presidents, with a political agreement with the parties represented in both regional Parliaments, and with the agreement of both Regional Electoral Commissions.