The state continues to take measures to prevent the spread of coronavirus (COVID-19) infection in the territory of the Republic of Azerbaijan. We hope that the spread of the COVID-19 pandemic will be prevented in the near future and people will return to normal life. However, a state of emergency can be declared if the number of infected people continues to rise. To better understand the practical implications of this, we bring the following article to the readers' attention.
In accordance with article 112 of the Constitution of the Republic of Azerbaijan (hereinafter referred to as the “Constitution”), the event of … epidemic … the President of the Republic of Azerbaijan shall declare a state of emergency in separate regions of the Republic of Azerbaijan and shall, within 24 hours, submit the appropriate decree to the Milli Majlis of the Republic of Azerbaijan for approval.
In article 1 of the Law “on the state of emergency” of the Republic of Azerbaijan (hereinafter referred to as the “Law on the of emergency”) it is stated that state of emergency is a special legal regime, which allow the limitation of the constitutional rights and freedoms of citizens, foreigners and stateless persons and rights and legal interests of all legal entities regardless of the form of ownership in different regions of the state, as well as allows the introduction of additional duties to them and which regulates activities of relevant authorities, their officials.
Emergency measures and temporary restrictions
During the state of emergency, the following measures and temporary restrictions may be envisaged by the state body in the area of its application, which will affect the activities of entrepreneurs:
- Restrictions on citizens' freedom of movement, entry and residence of foreigners and stateless persons in the area;
- Restrictions on the implementation of certain types of financial and economic activities, including the movement of goods, services and financial resources;
- Establishment of a special regime for the acquisition, sale and distribution of daily necessities and food;
- The use of curfew, that is, a ban on citizens staying on the street or in other public places at certain times of the day without identification documents and special permits;
- implementation of quarantine, sanitary-anti-epidemic, veterinary and other similar measures, as well as civil protection measures provided by the legislation;
- attraction of material resources of the state, mobilization of resources of all legal entities, regardless of the form of ownership, change of their mode of work, adaptation of production of these organizations to the conditions of emergency mode and appropriate change of production and economic activity in case of emergency mode;
- mobilization of able-bodied population and involvement of citizens' vehicles in exceptional cases in connection with the implementation of rescue and other urgent measures, subject to full compliance with the rules of labour protection.
As can be seen, the above measures can impede visits of employees at workplaces, restricting legal entities and individuals from participating in certain types of commercial activities and restricting their ownership rights.
Compensation paid by the state
According to the Law on State of Emergency, the amount of resources attracted by the state in connection with the elimination of the circumstances that led to the state of emergency, the size and procedure of financing and logistics, as well as social payments and compensations to citizens affected by the state of emergency , as well as the procedure for financing the measures of temporary relocation of residents to safe areas in connection with the implementation of other measures provided for in Chapter III of this Law shall be determined by the relevant executive authority. These measures are financed from the state budget.
Thus, the state must reimburse the costs of emergency measures and temporary restrictions at the expense of the state budget. The procedure for financing these measures shall be determined by the Cabinet of Ministers of the Republic of Azerbaijan.
We believe that the need to pay compensation for the state of emergency may be one of the possible reasons why the state does not declare a state of emergency.
Duration of the state of emergency
According to the Law on State of Emergency, the period of validity of a state of emergency may not exceed 60 days. After the expiration of this period, the state of emergency shall be deemed to have expired. If the objectives of the state of emergency are not achieved during this period, its validity period may be extended for a period not exceeding 60 days.
Legitimacy of restrictions imposed by the quarantine regime
In accordance with Part II of Article 71 of the Constitution, no one may restrict the implementation of human and civil rights and freedoms. Pursuant to Part III of this Article, the implementation of human and civil rights and freedoms during the declaration of war, martial law and state of emergency, as well as mobilization may be partially or temporarily restricted, taking into account the international obligations of the Republic of Azerbaijan. The population is informed in advance about the restricted rights and freedoms.
Restriction of human and civil rights and freedoms is possible only when
- martial law,
- a mobilization is declared.
However, the current decisions of the Cabinet of Ministers of the Republic of Azerbaijan on the quarantine regime also apply these restrictions. Given the above provisions of the Constitution, the legitimacy of these decisions is questionable.
Liability for violation of the state of emergency
According to Article 517 of the Code of Administrative Offenses of the Republic of Azerbaijan, violation of the requirements of the state of emergency is punishable by a fine of 40 to 80 manat for individuals or taking into account the circumstances of the case and the identity of the offender administrative detention for up to 15 days, 350 to 500 manat for officials and 1,500 to 2,500 manat for legal entities.
Cases on administrative offenses under this article are considered by district (city) courts. At the same time, the right to consider cases on administrative offenses under Article 517 belongs to the officials of the Ministry of Internal Affairs of the Republic of Azerbaijan. Given the nature of the administrative offense, the identity of the offender, the degree of his guilt, aggravating circumstances and the existence of confiscated goods, the official concludes that there are grounds for imposing a heavier sanction than the warning or fine provided for in the sanction of the relevant article, sends the protocol on administrative violation to the court for consideration.
According to the general international practice, in order to eliminate the negative impact of the above measures on businesses, tax and other mandatory exemptions are applied, the deadlines provided by law, the transfer of which results in fines, are extended until the end of the state of emergency.