Only very serious public emergencies, where the physical safety of the population, political independence, territorial integrity or the existence and functioning of state institutions that are essential to guarantee the right in question are threatened, can justify derogation from human rights.
The government may provide notification that it intends to derogate from some human rights only in very exceptional circumstances that are serious enough to “threaten the life of the nation.” This essentially means a situation of crisis or emergency which affects the whole population and is a threat to the organized life of the society within the state. These are generally very serious situations where the physical safety of the population, political independence, territorial integrity or the existence and functioning of state institutions that are essential to guarantee the right in question, are threatened.
example War with another state threatens the territorial integrity, political independence and physical safety of a state’s population. War with another state in the territory of your state is recognized as a type of emergency where some human rights obligations may be derogated from.
The emergency has to be actually happening or imminent. This means that states do not have to wait for the emergency, such as a terrorist attack or an environmental catastrophe to actually occur in order to start taking measures in response, but it has to be sufficiently clear that the crisis is imminent or its consequences much worse, if no action is taken.
The emergency situation does not necessarily need to be spread throughout the whole territory of a state - a crisis which concerns only a particular region of the state can amount to a public emergency threatening “the life of the nation”. However, these emergency situations must be so exceptional that restrictions on human rights that are normally permitted are clearly not sufficient to tackle the threat to public safety and security.
example A serious terrorist threat in one region of a state can justify derogation from human rights. In such case, the derogation should not be automatically applied to the whole territory of the state unless there are properly justified reasons why this is necessary to tackle a regional crisis.
Types of emergencies
Some emergencies that may justify derogation from human rights are:
- an armed conflict
- a pandemic
- an attempted overthrow of the government
- a terrorist threat
- a major natural disaster
The Moldovan law defines the following terms:
- state of emergency - a set of measures of a political, economic, social and public order nature, which are temporarily instituted in some localities or throughout the country in case of the imminence of exceptional situations of a natural, man-made or biological-social nature and existence of a danger to national security or constitutional order
- state of siege - a set of measures of a political, military, economic and social nature, which are instituted in some localities or on the entire territory of the country in order to raise the fighting capacity of the troops and the level of preparation of the population, the economy and the respective territory in case of an imminent armed aggression
- state of war – a regime established throughout the country in the event of a declaration of war or an armed aggression against the Republic of Moldova, in order to defend the sovereignty, independence, unity, territorial integrity and constitutional order
If necessary, mobilization can also be introduced - a complex activity carried out on a political, economic, administrative and military level in order to provide human and technical-material resources necessary for the defence of the country and the transition of the state from a state of peace to a state of war.
During the state of emergency, depending on the situation, various measures may be taken, for example:
- the temporary evacuation of citizens
- establishment of a special regime for entry into and exit from the country
- introducing the quarantine regime and taking other mandatory sanitary-anti-epidemic measures
- establishing a special working regime for economic agents and public institutions,
- modification of the procedure for appointing and dismissing the heads of economic agents and public institutions
- the introduction of special rules for the use of telecommunications means
Some other measures, that may be taken during the state of siege or of war, are provided at Articles 42 and 59 of the Law on the State of Emergency, Siege and War.
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