What does the state of emergency mean and what are its possible implications?
What does the state of emergency mean and what are its possible implications?
On March 11, the World Health Organization declared the novel coronavirus, COVID-19 as a pandemic. The decision was made due to the fact that the disease was spreading fast in different countries of the world, covering significant part of their population. After individual states clearly saw all-encompassing dimensions of the spread of the disease, they introduced a range of different restrictive measures in order to contain and curtail the outbreak, which manifested in imposition of social distancing policy. In particular, work and educational institutions and commercial businesses were closed down and other restrictive measures introduced.[1]
As the number of COVID-19 cases grew in Georgia, active discussions began about the nature of measures implemented by the State. More specifically, following adoption of the regulations made by the COVID-19 coordination council, air travel was completely banned without coordination with the government and majority of commercial businesses were closed.[2] On March 21, the Georgian PM declared a state of emergency. Against this background, it is important to discuss the difference between an emergency and a state of emergency, powers of the government and their implications for human rights.
What does an emergency and a state of emergency mean?
The Georgian legislation distinguishes between an emergency and a state of emergency, subject to different legal procedures.
Emergency is a situation characterized by the disturbance of normal living conditions and it may pose a threat to life and/or health of individuals,[3] while a state of emergency is a temporary measure declared in accordance with the Georgian legislation to secure safety of citizens of Georgia in case of a mass riot, ecological catastrophe, epidemic, and other circumstances where the public authorities are not able to normally exercises their constitutional powers.[4]
How is an emergency managed and prevented?
According to Law of Georgia on Public Health, a particularly dangerous epidemic and pandemic is an emergency, managed according to the Law of Georgia on Public Safety. A number of restrictions are imposed during a public health emergency, including:
- Mandatory medical procedures to prevent the spread of a communicable disease;
- Observance of sanitary and epidemiological norms;
- Suspension of activities of a natural or legal person that may be putting the society at risk;
- Subjecting natural persons to isolation and quarantine, etc.[5]
When there is a reasonable suspicion that an individual has a communicable disease, s/he may be demanded to undergo a mandatory testing and treatment if the disease in confirmed, in order to contain the infection as much as possible. A decision to subject an individual to an isolation or quarantine can be made by public health authorities and it can be appealed in court.[6] Law enforcement authorities may be involved in the process of enforcement of an isolation or quarantine decision. According to the Law of Georgia on Police, within its competencies the police participate in implementation of quarantine measures, which may serve as grounds for using police measures prescribed by law.[7]
What are the implications of declaration of the state of emergency?
The decision to declare a state of emergency is made by the President of Georgia, based on the Prime Minister’s proposal, which is immediately sent to the PM for his/her counter-signature. The act counter-signed by the PM is approved by parliament upon convening, with majority of the entire membership.[8] If the decision on state of emergency is voted down by parliament, it will no longer have a legal force.[9]
During a state of emergency, restrictions may be placed on constitutional rights, based on a decree issued by the president upon nomination by the Prime Minister, which has a legal force and is counter-signed by the PM.
On March 21, the Prime Minister applied to the president for declaration of the state of emergency nationwide, for the period of 1 month, until April 21. According to the information that has been published, the state of emergency allows the government to:
- in an event of violation of isolation or quarantine rules, transfer the individuals involuntarily to corresponding institutions or subject them to sanctions prescribed by law;
- use property of natural or legal persons for quarantine, isolation or medical purposes;
- order private organizations, businesses to perform or limit performance of certain activities;
- gathering of more than 10 individuals has been prohibited, etc.[10]
Violation of the state of emergency regime may lead to imposition of an administrative fine amounting to GEL 3,000 for natural persons and GEL 15,000 for legal person. Repeat offence will lead to imposition of a criminal liability and in particular, deprivation of freedom for up to 3 years.[11]
In addition, the legislation foresees the possibility to impose the following restrictions, which have not been activated at this point but may be introduced if needed:
- temporary evacuation of population from danger zones;
- introducing a special regime for accessing areas subjected to the state of emergency;
- restricting the freedom of movement and the right to leave one’s place of residence without a permission, if necessary;
- subjecting media to control;
- restricting movement of transportation;
- imposing a curfew, etc.
This is an incomplete list of measures that can be additionally imposed nationwide or in any part of the country, in consideration of specific situation or particularities of risk management.
Notably, while during emergency legislation allows closure of facilities that are considered a public health risk or restriction of freedom of movement by ordering quarantine or isolation, in the state of emergency, restrictive measures are tightened to include the possibility to not only impose a large-scale restriction of movement but also to implement mass quarantine measures, exercise control over media and restrict or suspend individual constitutional rights.[12]
Notably, the state of emergency, as an extraordinary situation in the country affects democratic processes and hinders them for a specific period of time. According to the Georgian legislation:
- General elections will not be held during a state of emergency. If a state of emergency is declared in a certain part of the country, a decision on whether to conduct elections in the rest of the territory of the country will be made by parliament; [13]
- Consideration of a constitutional bill shall be suspended in an event of declaration of the state of emergency,[14] until revocation of the state of emergency, which is an important restriction in consideration of the pending constitutional amendments. The declaration of the state of emergency may put question mark over the possibility to adopt the amendments prior to the elections;
- In an event of dissolution of parliament, if the election date coincides with a state of emergency, elections should be held no earlier than the 45th day and no later than the 60th day after the state of emergency has been revoked;[15]
- Impeachment procedure of the president, when his/her actions violate the Constitution or contain signs of crime, is inadmissible during a state of emergency.[16] Notably, in the state of emergency, individual rights are restricted based on the presidential decree, while in an event of violation of the Constitution in this process, it is impossible to implement impeachment procedures, which increases the risk of individual decisions being made in violation of the Constitution.
What are the standards established by the European Court of Human Rights?
According to Article 15 of the European Convention of Human Rights, any High Contracting Party that derogates from its obligations under the Convention in the time of a public emergency, should keep Secretary General of the Council of Europe fully informed of the measures which it has taken and their reasons. It should also inform the Secretary General when such measures have ceased to operate and the provisions of the Convention are again being fully executed.[17]
According to standards established by European Court of Human Rights, a state of emergency is an exceptional situation of crisis in the State that poses a threat to the entire population or part of the population. [18] A state of emergency should be imminent and immediate, potentially affecting large groups of the society, and the crisis or the danger should be of a particular character, making it impossible to ensure public safety and health by imposing ordinary restrictions.[19]
According to the applicable Georgian legislation and the ECHR standards, the State should exercise a particular caution when imposing restrictions during the state of emergency. These measures should only be a last resort for preventing a widespread outbreak of the disease.
----
[1] R. Baldwin, B. Weder di Mauro, Mitigating the COVID Economic Crisis: Act Fast and Do Whatever It Takes, p. 1;
[2] See the decision of the COVID-19 coordination council operating under the leadership of the Prime Minister: http://gov.ge/index.php?lang_id=GEO&sec_id=541&info_id=75672
[3] See the Law of Georgia on Public Safety, art.3
[4] The Law of Georgia on the State of Emergency, art.1
[5] The Law of Georgia on Public Health, art.5;
[6] The Law of Georgia on Public Health, art.11;
[7] The Law of Georgia on Police, art.17;
[8] The Constitution of Georgia, art.71;
[9] The Law of Georgia on the State of Emergency, art.2;
[10] The Statement of the Prime Minister on Declaration of the State of Emergency: http://gov.ge/index.php?lang_id=GEO&sec_id=541&info_id=75681
[11] Ibid;
[12] See the Constitution of Georgia, Article 71;
[13] See the Constitution of Georgia, Article 71;
[14] See the Constitution of Georgia, Article 77;
[15] See the Constitution of Georgia, Article 37;
[16] See the Constitution of Georgia, Article 48;
[17] See the European Convention on Protection of Basic Human Rights and Freedoms, Article 15;
[18] Guide on Article 15 of the European Convention on Human Rights, Derogation in time of emergency, 2019, p. 6;
[19] B.Bokhashvili, European Court of Human Rights Jurisprudence, p.361.