In connection with the COVID-19 coronavirus, terms such as “state of emergency” or “state of emergency” are frequently mentioned; these terms refer to legal provisions governing situations of widespread threat to society and, in this context, empowering public authorities to adopt measures aimed at protecting society and the state. In almost every case, these measures entail some form of economic damage, which is naturally also suffered by entities other than the state or local government bodies. The primary purpose of legal provisions in this area is, of course, protection against imminent danger and the mitigation of its negative effects; however, if the legislature is to consider all aspects of the regulated issue, the regulation of claims for compensation for damages caused by the adopted measures should not be an exception. Since the current situation caused by the coronavirus pandemic has no precedent under the applicable legal framework, the answer cannot be found in case law; therefore, the only way forward is to interpret the relevant legal provisions.
The primary legal regulation governing this matter is Act No. 387/2002 Coll. on State Management in Crisis Situations Outside of Wartime and a State of War (hereinafter referred to as the “Act on State Management in Crisis Situations”), which regulates the powers of public authorities in state management during crisis situations outside of wartime and a state of war, the rights and obligations of legal entities and natural persons in preparing for and resolving crisis situations outside of wartime and a state of war, and the penalties for violating the obligations established by this Act. In connection with the subject matter of the Act on State Management in Crisis Situations, it is appropriate to define the term crisis situation (or crisis situation outside of wartime and a state of war), which for the purposes of this Act means a period during which the security of the state is immediately threatened or disrupted and constitutional bodies may, upon fulfillment of the conditions set forth in the constitutional act (Constitutional Act No. 227/2002 Coll. on State Security in Times of War, Martial Law, a state of emergency, and a state of emergency) or a special law (Act No. 42/1994 Coll. on Civil Protection of the Population, as amended) to declare a state of emergency, a state of emergency, or an extraordinary situation to address it.
The purpose of the aforementioned Act No. 42/1994 Coll. on Civil Protection of the Population, as amended (hereinafter referred to as the “Act on Civil Protection of the Population”) is to regulate the conditions for the effective protection of life, health, and property against the consequences of extraordinary events, as well as to establish the tasks and powers of state administration bodies and municipalities, and the rights and obligations of natural persons and legal entities in ensuring civil protection of the population (hereinafter referred to as “civil protection”). This Act, as defined in the definition of a crisis situation in the Act on State Management in Crisis Situations, establishes the conditions for declaring a state of emergency. For the purposes of the Act on Civil Protection of the Population, a state of emergency means a period of threat or a period during which the consequences of an extraordinary event affect life, health, or property, which is declared pursuant to this Act; during which measures are taken to save lives, health, or property, to reduce risks, or to carry out activities necessary to prevent the spread and impact of the consequences of an extraordinary event. An emergency is a natural disaster, an accident, a catastrophe (meaning an accumulation of destructive factors of a natural disaster or accident), a Level II public health threat, or a terrorist attack. Pursuant to Section 48(2) of Act No. 355/2007 Coll. on the Protection, Support, and Development of Public Health and on Amendments to Certain Acts, a Level II public health threat occurs if it is necessary to take measures under the Civil Protection Act in the event of an outbreak of a communicable disease, a suspected communicable disease, or a suspected death from a communicable disease exceeding the expected level. In view of the current situation caused by the coronavirus, these provisions have empowered the competent authorities—namely municipalities, district offices, district offices in the seat of the region (if the scope of the emergency exceeds the territorial jurisdiction of the district office), and the Government of the Slovak Republic (if the scope of the affected territory exceeds the jurisdiction of district offices and municipalities), to declare a state of emergency.
If the measures adopted under the Act on Civil Protection of the Population in the context of an emergency situation are insufficient, the Government of the Slovak Republic may invoke the provisions of Constitutional Act No. 227/2002 Coll. on State Security in Times of War, Martial Law, a State of Emergency, and a State of Emergency (hereinafter referred to as the “Constitutional Act on State Security”), which allow for the declaration of a state of emergency. In the context of the Constitutional Act on State Security, we refer to so-called crisis situations. This term has no legal definition; however, according to the Terminological Dictionary of Crisis Management and the Principles of Its Use, approved by Resolution No. 523 of the Government of the Slovak Republic dated July 6, 2005, it can be defined as a legal state declared by a competent public administration authority in a specific territory to address a crisis situation, directly dependent on its nature and scope (war, state of war, state of emergency, state of emergency). It is associated with the failure of generally applicable procedures, tools, and management mechanisms and with the need to apply crisis management principles, including the temporary restriction of fundamental rights and freedoms. A state of crisis can thus be viewed as a subset of a crisis situation that anticipates more serious or socially dangerous circumstances and also accounts for times of war and a state of war.
In the context of the situation caused by the coronavirus disease, it is appropriate to clarify and distinguish between the concepts of a state of emergency and a state of emergency. A state of emergency covers a situation in which a terrorist attack has occurred or is imminent, extensive street unrest associated with attacks on public authorities, looting of shops and warehouses, or other mass attacks on property, or other mass violent unlawful acts that, by their scope or consequences, substantially threaten or disrupt public order and national security. Unlike a state of emergency, a state of emergency addresses a situation where there is a threat to human life and health, including in connection with the outbreak of a pandemic, a threat to the environment, or a threat to significant property values resulting from a natural disaster, catastrophe, industrial, transportation, or other operational accident. The Government of the Slovak Republic is authorized to declare a state of emergency only in the affected or immediately threatened territory, to the extent necessary and for the necessary duration, for a maximum of 90 days. During a state of emergency, fundamental rights and freedoms may be restricted and obligations imposed in the affected or immediately threatened territory to the extent necessary and for the necessary duration, depending on the severity of the threat, in accordance with Article 5, paragraph 3 of the Constitutional Act on State Security.
When rights are restricted and obligations are imposed under a state of emergency, damages naturally arise in the form of out-of-pocket expenses incurred to fulfill obligations, lost profits, and the like. Pursuant to Article 11(3) of the Constitutional Act on State Security, “Legal claims for compensation for:
a) restrictions on property rights,
b) damages caused by the armed forces, armed units, the Fire and Rescue Corps, and emergency services,
c) breaches of duty by public authorities,
d) damage caused by public authorities in the exercise of public power,
e) recuperation leave,
f) the performance of work duties and other work and services performed to fulfill tasks under this Constitutional Act,
g) overtime work,
which arose during a time of war, martial law, or a state of emergency, become payable to the entitled persons only after the end of the war, martial law, or state of emergency. The statutory time limits for their enforcement do not run during a time of war, martial law, or a state of emergency. However, a state of emergency is missing from the listed crisis situations, which raises the question of whether this provision could be applied analogously to a state of emergency. Due to the absence of more detailed provisions following on from the relevant provision of the Constitutional Act on State Security, as well as implementing measures by public authorities, no clear conclusion can be drawn. However, upon closer examination of the interpreted provision of Article 11(3) of the Constitutional Act on State Security, it can be concluded that the purpose of this provision is to defer the maturity of statutory claims for compensation for damages incurred during a state of war, a state of war, and a state of emergency, not to provide special regulation of claims for damages arising in connection with the aforementioned crisis situations. It follows from the foregoing that the legal system of the Slovak Republic does not contain specific provisions governing claims for damages arising in connection with a state of emergency, and the maturity of claims arising from general legal regulations in the event of a state of emergency is not specifically regulated by Article 11(3) of the Constitutional Act on State Security.
As an example of specific legal regulation of claims for compensation for damage arising in a situation that is designated in our legal system as a state of emergency under the Constitutional Act on State Security, one may cite Czech Act No. 240/2000 Coll. on Crisis Management and on Amendments to Certain Acts (hereinafter the “Crisis Act”). Under Section 36 of the Crisis Act, the Czech Republic is obligated to compensate for damage caused to legal entities and natural persons in causal connection with crisis measures and exercises pursuant to Section 39(4) of the Crisis Act. The Czech Republic may be relieved of this liability only if it proves that the injured party caused the damage itself. The Crisis Act thus establishes a claim for compensation for the entire damage incurred in connection with the situation in question. The aforementioned provision further establishes a subjective time limit of 6 months and an objective time limit of 5 years for asserting a claim for compensation for such damage.
Since the legislative framework of the Slovak Republic does not contain specific provisions governing claims for compensation for damages arising in connection with a state of emergency, the answer to the question at hand can only be found through an interpretation of general regulations, which we will address below. Our law firm is ready to provide you with legal advice regarding potential measures adopted by the state and their consequences.
We will continue to monitor the situation regarding claims for damages arising in connection with the current measures and will regularly update this article on the website www.legalfirm.sk with the latest information.
