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Securing Democracy?

1 January, 2009



Table of Contents

List of Abbreviations

1. Introduction

2. Constitutional Protection of the Democratic Order During States ofException: No European Consensus
2.1 Introduction
2.2 Types of states of exception
2.3 Declaration, prolongation and termination of emergency rule
2.4 Oversight and maintenance of democratic institutions duringa state of exception
2.5 Judicial control and oversight
2.6 The protection of human rights during states of exception

3. Legislation and Practice in Selected European States
3.1 Introduction
3.2 Switzerland and Germany: extra-constitutional carte blanche vs.tight constitutional limits
3.3 Varieties of the doctrine of necessity: Norway and France
3.4 Spain: closer to the German model
3.5 The middle ground: Finland and United Kingdom

4. Conclusions

5. Policy Recommendations

Annex 1. The constitutional regulations of emergencies in EU memberstates, Norway and Switzerland


It is widely agreed that, at present, states and societies face a number of complex(and partly new) threats and challenges, including pandemics, terrorist attacks,transnational organised crime, sudden and large scale population flows, as well asnatural catastrophes resulting from global warming. In order to deal with these complex and often sudden problems, the reflex of resorting to emergency powers can be strong. There is always a cost associated with such measures however, costs that may be harmful to human rights and democracy. This policy paper examines the regulation of the use of emergency powers inEuropean states (encompassing EU member states, Norway and Switzerland), andattempts to assess to what extent and in what ways existing rules protect thedemocratic order.