available languages: english March 31, 2020

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As countries around the world attempt to fight off the covid-19 pandemic, European governments are introducing emergency measures. DRI’s Jakub Jaraczewski examines how some of these can undermine the rule of law in Europe.

Most governments’ response to the Coronavirus crisis has included a strict curtailment of the right to freedom of movement. Some EU Member States have imposed these, and further limitations, as part of an officially declared ‘state of emergency’. This special measure provides governments with the constitutional or legal means to impose extraordinary legal measures.

EU countries are not free to shape their emergency measures as they wish. EU treaties and human rights instruments such as the European Convention on Human Rights (ECHR), OSCE commitments and the United Nations human rights treaty system continue to apply even during crises. These obligations guarantee human rights and the core elements of the rule of law during emergencies, such as the prohibition of torture, inhuman or cruel treatment and punishment. Other rights and freedoms may be limited, but their essential core must remain intact.

While one can expect limits in the ability to administer justice and see non-essential court cases delayed due to shutdowns, elements of the right to a fair trial, such as the right to challenge an arrest before an independent court, must be preserved. Moreover, some regional and international instruments, such as the ECHR, feature a mechanism for countries to notify the relevant organisation that they are suspending some elements of the legal instrument when facing an exceptional, clearly identifiable threat by enacting temporary, extraordinary measures.

National security and public health are primarily under the responsibility of each EU country, which means that each state has its own regulations to deal with large scale crises or states of emergency. Some countries have an array of detailed states of emergency to be introduced depending on the nature of the threat outlined in their constitutions. Poland falls under this category, where the constitution delineates conditions for states of emergency and laws outline detailed provisions for each state of emergency. Germany, on the other hand, has no clearly defined state of emergency that would fit this situation. Its situation is complicated by federalism, where the 16 Länder have the authority to address the situation. The federal government’s role is mostly one of co-ordination, trying to achieve a degree of uniformity for measures across the country.

Some countries have other tools to legally tackle crises. France, in addition to the “classic” situations in which to declare a  state of emergency, has a provision for the president to assuming undefined exceptional powers – pouvoirs exceptionnels. Other EU states, however, hardly mention emergency measures in their constitutions. Denmark, for example, has no specific state of emergency legislation, relying instead on “regular” bills presented to parliament in case of emergencies.

Challenges to the rule of law

Two weeks into the current phase of the pandemic, challenges are emerging as evidenced by responses taken by states, notably Italy, Poland, Hungary and Denmark.

While Italy is the hardest-hit European country so far, the government has used legal instruments that fall in line within the country’s constitutional framework. Following the introduction of a nation-wide state of emergency, the Italian government has resorted to using decree-laws, which may be introduced in “extraordinary cases of necessity and urgency” and must be subject to a vote by the Parliament within 60 days. These decree-laws were used to enact lockdown measures, limiting the freedom of movement, assembly and shutting down some economic activities, but also to strengthen medical services, suspension of some administrative and fiscal duties as well as protecting social rights of Italian citizens affected by the pandemic.

Poland was among the first to enact far-reaching measures, limiting freedom of movement and shutting down an increasingly large number of business and activities. While Poland’s constitution features potential states of emergency, including the well-suited provision for declaring a “state of natural disaster”, the Polish government has refrained from enacting it. Instead, Warsaw is relying on a “state of epidemic”, something that is not provided for in the constitution, as the legal grounds for limiting human rights and freedoms. This raises questions on both the legality and the motive behind the measure. One potential answer lies in the fact that declaring a state of emergency due to natural disaster would automatically postpone the 10 May presidential election, something the Polish government and incumbent president Andrzej Duda seem keen to avoid.

Hungary also imposed stringent measures to combat the spread of the coronavirus, enacting a state of emergency on 11 March. This measure in itself was hardly controversial, as the government followed its constitutional obligation and used the right tool for the job, at least in principle. Two weeks later, however, a draft bill emerged that featured some of the most far-reaching extensions of government power to counter the pandemic, with measures that exceed what we have seen not just in the EU, but worldwide. Under the proposed law, which was passed by the Hungarian parliament on 30 March, the state of emergency will be extended indefinitely, the government will be able to rule by decree without parliamentary approval, and spreading false information about the epidemic will be criminalised along with interfering in the efforts to contain it. The bill includes very little explanation of what these crimes would actually entail. Critics point to an apparent power grab by the ruling party that could push Hungary into full-blown authoritarianism.

Denmark’s lack of a strong constitutional framework for dealing with crises highlights the challenge of introducing a response that addresses covid-19 while staying in line with domestic, regional and international obligations. On 13 March, the Danish parliament enacted an emergency law that extended the powers of public health authorities and law enforcement and enables measures that limit access to public institutions and public transport. Commentators have said that this law is the most extreme public safety measure taken by Copenhagen since the Second World War. Denmark’s courts and parliament continue to function and the country has a strong rule of law culture and good track record of respecting human rights. Yet, the fact that the constitution does not foresee a special regime for such an exceptional situation is not ideal.

Conclusions

EU countries must follow regional and international rule of law and human rights standards. Only three EU Member States have notified the Council of Europe that they introduced extraordinary emergency measures and requested or announced derogations from their obligations under the ECHR. Notably, countries that have introduced some of the strictest measures have yet to do so.

While fighting existential threats can require limits to fundamental rights and freedoms, there is a high risk that governments will overstep and excessively impede rights and freedoms in response to covid-19. In extreme cases, a permanent, unlimited state of emergency, could lead to the removal of checks and balances and undermining the rule of law to the point where a country ceases to be democratic. Indeed, the Hungarian bill appears to be just that, a push towards autocracy masqueraded as a measure that ensures the safety of citizens.

DRI works to improve public understanding of the rule of law in the EU as part of the re:constitution programme funded by Stiftung Mercator. Sign-up to DRI’s newsletter and follow us on Facebook and Twitter to find out more about the rule of law in Europe.