Article by Xhulio Doku, Senior Associate, CR PARTNERS
The recent outbreak of the novel coronavirus has urged the government of Albania to impose several precautionary measures, including the restriction of movement, closure of public and private services, cancellation of the events, international travel restrictions and the compulsory self-quarantine for people who have recently returned from the COVID – 19 affected countries. While the World Health Organization declared that the outbreak of the viral disease COVID-19 had reached the level of a global pandemic, the Albanian government is still reluctant in declaring the state of emergency based on the regulatory framework on civil protection.
The public announcement of the state of emergency and the implementation of the civil protection law is the milestone in preventing a de facto state of emergency, which is a situation whereby the government restricts human rights without officially proclaiming an emergency situation. International human rights law provides that, subject to the declaration of the state of emergency, a multitude of legal prescriptions can be imposed for managing situations that are so severe that they constitute a serious threat to the public safety. The United Nations human rights experts have acknowledged that the use of the emergency powers by governments, which may temporary restrict certain human rights, is allowed by international law in response to significant threats such as COVID - 19. However, the experts stressed that such extraordinary powers shall be performed only under a publicly declared state of emergency and should be notified to the relevant treaty bodies when fundamental rights including movement, family life and assembly are being significantly limited.
Further, any emergency responses to the coronavirus must be proportionate, necessary and non-discriminatory. For the purpose of balancing the public safety with the civil and human rights, a clear, transparent and legally based operational plan shall be followed by the government of Albania, while imposing measures for coping with COVID-19. In this regard, addressing questions as to the COVID-19 outbreak constitutes a legal ground for declaring the state of emergency and the following actions that shall be taken are of a crucial importance from a legal point of view.
What is a ‘de jure’ state of emergency?
Based on the Law no. 45/2019 “On Civil Protection” (“Civil Protection Law”), a state of emergency (i.e. the state of natural disaster in COVID -19 context) is an extraordinary situation which poses negative consequences for the public safety, due to a disaster that causes immediate and severe damage to people's lives, livelihoods, property, cultural heritage and the environment. The need to declare a state of emergency may arise from situations as diverse as an armed action against the state by internal or external elements, a natural disaster, civil unrest, an epidemic, a financial crisis or a general strike. For the purpose of the Civil Protection Law, the epidemics such as COVID-19 fall within the range of natural disasters, subject to which the state of emergency must be declared.
A state of emergency may alter government operations, order specific actions by individuals and suspend regular civil rights. In this case, the government is vested with powers to which it is not entitled under a normal situation. Article 170/1 of the Albanian Constitution provides that emergency measures can be imposed only under a state of war, emergency or natural disaster and shall last as long as these circumstances are present. Hence, such extraordinary powers shall be exercised by the government on ad hoc basis and only under the condition that the state of emergency is announced. Such condition is related to the specific legal regime that should be respected by the government under a state of emergency, which, inter alia, requires excessive financial support by the state budget.
The Civil Protection Law sets out the key elements of risks that lead to a state of emergency:
While the situation caused by COVID - 19 comprises all the elements enlisted above, yet the government of Albania has not proclaimed the state of emergency, despite the de facto behavior reflected through the precautionary measures taken so far.
The regulatory framework for coping with epidemics in Albania is composed, inter alia, of the Law no. 45/2019 “On Civil Protection” and the Law no. 15/2016 “On Prevention and Fighting of Infections and Infectious Diseases”. Although there is a prima facie overlap of the legislation in this regard, the approach is that both of these sources of law are complementary to each other and do not preclude the application of one another. Law no. 15/2016 provides for some precautionary measures that the state authorities may take for the sake of prevention of an epidemic, without needing to declare the state of emergency. Such measures include the following:
It is highly arguable whether the precautionary measures taken by the government of Albania, to date, exceed the range of the measures provided by the Law no. 15/2016. The approach of the government of Albania is that the ordinances adopted so far, are based on the Law no. 15/2016, meaning that the legitimacy of such measures is not conditioned to the declaration of state of emergency. However, several precautionary measures such as closure of all facilities which provide night club services, facilities which provide indoor entertaining activities to children and youth, gyms, sport centers, swimming pools, internet centers, bars, coffee shops, restaurants, fast foods and any other facility that provides customer services countrywide constitute an interference on several fundamental human rights, such as the right to economic freedom and the right to freedom of movement. In this context, the government authorities shall manifest due diligence with respect to the legitimacy of the precautionary measures taken and shall assess whether the state of emergency shall be declared, in order to prevent any violation of international human rights law which may lead to potential and successful civil claims against Albanian government in the near future.
Obligations of the government stemming from a declared state of emergency
The scale and severity of the COVID-19 pandemic, which clearly rises to the level of a serious threat to the public health, constitutes a situation in which the state of emergency must have been declared by the government of Albania. The legal regime of the emergency stated is mainly set out under the Civil Protection Law, which stipulates several procedures and measures that the state authorities must undergo in compliance with this law. Based on Civil Protection Law, the state of the natural disaster, i.e. the state of emergency, is declared by the Council of Ministers for a period not longer than 30 days. In case the risk urging the state of emergency continues to be present, the Parliament may decide the extension of the state beyond the 30 days period. The state of emergency is declared only on the territory affected by the risk imposing such state.
Apart from the core role of the public authorities with respect to managing the risk during the state of emergency, even the individuals play an important role in this respect. Under the Civil Protection Law, the individuals are subject to specific rights and obligations at all stages of the state of emergency, which include in particular the right to information by public institutions, the rights to the protection of their lives and property, and the right to compensation. At the same time, they also have specific tasks such as, the obligation to enforce public orders, to inform public institutions of any disasters identified by them and to comply with extraordinary measures taken by the government.
For each case of the emergency state, the Council of Ministers establishes the Inter-Ministerial Committee for Civil Emergencies (KNEC) and appoints its chairperson, which may be the Prime Minister, the Deputy Prime Minister or a Minister, depending on the type of emergency. This authority is an ad hoc structure responsible for coordination of the actions of state authorities and private entities, as well as the material and financial resources to deal with the extraordinary state.
Declaring the state of emergency forces the government to make available all its financial, logistical and human resources to cope with the negative consequences caused throughout the state of emergency. During this period, the governance priorities and balances shift in favor of taking the extraordinary risk management measures related to the event that caused the state of emergency.
What is next?
Albania has faced a very recent experience of state of emergency, as a result of the deadly earthquake that occurred near Durres in November 2019, which dropped a heavy financial burden on the state budget. The reluctance of the government of Albania in declaring the state of emergency due to COVID-19 outbreak, based on the Civil Protection Law, could partly be related to the obligations that such law imposes on governmental authorities with respect to financial compensation of the damages caused to natural and legal persons as a result of the state of emergency and the precautionary measures taken to mitigate it.
Many countries of the region like Serbia, North Macedonia and Bosnia & Herzegovina have already declared the state of emergency due to COVID -19. In the light of the de facto emergency state reflected through the ordinances and decisions of the Albanian public authorities in response to the spread of coronavirus, the Albanian government should likely follow the example of the other regional states and release a formal act of declaration of the state of emergency in the following days.