Emergency mode – legal basis, restrictions and form of protection of rights in case of emergency
Therefore it is logical that ordinary citizens have questions, what is a state of emergency, what legal act is governed by specified emergency mode, which limits the rights of citizens possible in its introduction, what are the rights of citizens during the emergency mode, is it possible with the introduction of state of emergency not to pay loans, utility services, etc.
Mode is extremely a situation in the Russian Federation are governed by Federal law. from 21.12.1994 №68-FZ “On protection of population and territories from emergency situations of natural and technogenic character” (further – “Law on emergencies”).
IMPORTANT! 01 April 2020 to the specified Federal law in connection with the spread of coronavirus infection (COVID-19) was substantially amended, according to which the basis for the imposition of state of emergency became “the spread of the disease, representing a danger to others”. In addition, the Government presented right at the introduction of high alert and emergency mode as in the entire country and its parts.
According to this Federal law an emergency situation is a situation in the certain territory, developed as a result of an accident, hazardous natural phenomena, catastrophe, the spread of the disease, representing a danger to others, a natural or other disaster which can entail or entailed human victims, the damage to human health or the environment, considerable material losses and violation of conditions of activity of people.
In accordance with this Federal law there are 3 modes of operation of state administration bodies and forces of the unified state system of prevention and liquidation of emergency situations (es):
- casual mode (in the absence of the threat of an emergency);
- high alert mode (if there is a threat of an emergency);
- directly a state of emergency (in the event of emergency situation).
Themselves emergencies are classified according to the territory distribution of the number of people who die or suffer health damage, or damage to emergency situations:
- local character (does not extend beyond the territory (object), while the number of victims up to 10 man or the amount of damages not more than 240 thousand rubles);
- municipal character (does not extend beyond the territory of one municipal formation, the number of people killed and (or) received health damage, is not more than 50 persons, or the damage is not more than 12 million roubles, and also the emergency cannot be attributed to the emergency of local character);
- inter-municipal in nature (affecting the territory of two or more municipal districts, municipal districts, urban districts, located in the territory of one subject of the Russian Federation, or intracity territories of cities of Federal significance, the number of people killed and (or) received health damage, is not more than 50 persons, or the damage is not more than 12 million rubles);
- regional nature (it does not go beyond the territory of one subject of the Russian Federation, the number of people killed and (or) received health damage is over 50 employees but not more than 500 employees or the size of the material damage amounts to more than 12 million roubles, but not more than 1.2 billion.roubles);
- interregional events (affecting the territory of two and more subjects of the Russian Federation, the number of victims or extent of damage is similar to regional);
- Federal character (the number of people killed and (or) received health damage amounts to more than 500 people, or amount of damage is more than 1,2 billion rubles).
Depending on the qualifications of emergency is determined by what the budget will be funding for the prevention and elimination of consequences of emergency situations.
The decision on introduction of emergency can be taken at the Federal level throughout the country or parts of it (Government of the Russian Federation, the Government Commission on prevention and liquidation of emergencies), at the regional level (the highest Executive authorities of subjects of the Russian Federation) and municipal level (head of municipality).
With the introduction of the emergency may introduce certain restrictive measures:
- limit access of people and vehicles on the territory where there is a threat of emergency;
- suspension of activities of the organizations, if there is a threat to the safety of their employees and other citizens;
- other measures, not restricting the rights and freedoms of man and citizen, creating necessary conditions for prevention and liquidation of emergency situation and minimize its negative impact.
IMPORTANT! April 01, 2020 government of the Russian Federation and bodies of state power of subjects of the Russian Federation granted the right to establish compulsory for citizens and organizations rules of conduct in the mode of increased readiness or emergency mode.The state authorities of the constituent entities of the Russian Federation, taking into account the particularities of an emergency situation on the territory of a constituent entity of the Russian Federation or the threat of its occurrence pursuant to the rules of conduct established by the Government of the Russian Federation, may establish additional rules of conduct binding upon citizens and organizations when introducing a high alert or emergency situation. Moreover, the rules of conduct established by the state authorities of the constituent entities of the Russian Federation during the emergency period cannot contradict the rules of conduct established by the Government of the Russian Federation.
On April 2, 2020, the Government of the Russian Federation adopted Decree No. 417 “On the approval of the Rules of Conduct binding on citizens and organizations when introducing a high alert or emergency.”
According to this decree, citizens and organizations are obliged to implement the decisions of the RF Government, Governmental Commission on prevention and liquidation of emergency situations and ensuring fire safety, and officials listed in clauses 8 and 9 of article 4.1 of the Law on protection of the population, aimed at adoption of additional measures on protection of population and territories from emergency situations.
In particular, hearing the warning signal and (or) emergency messages, citizens should immediately hear information about the algorithm of action on radio or television or by means of mobile telephone communications (and the organization – to inform immediately the employees and other persons on the territory of the organization), or by contacting the uniform dezhurno-dispatching service of the municipality or on a single number call emergency services.
With the introduction of the mode of danger or emergency, the citizens agree to comply with the public order, the requirements of the legislation on protection of population and territories from emergency situations and the sanitary-epidemiological welfare, and to comply with legal requirements (instructions) of the head of liquidation of emergency situations, representatives of the emergency services and other authorised officials.
Upon receipt of the instruction (indication) of designated officials, including through the media and Telecom operators, citizens are required to evacuate from the disaster zone and (or) use of means of collective and individual protection and other provided by the authorities and local self-government property intended to protect against emergencies. Finding the victim, you need to call authorized officers, and until their arrival in the absence of threats to life and health to provide first aid. In addition, you must carry and produce on request of authorized persons of the identity document, and – if any – the document granting the right not to comply with the requirements established by the Regulations.
In the event of emergencies or threat to citizens do not create conditions that prevent and hamper the actions of the authorized officers and employees of public transport, to go over the fence designating the area of emergency or another dangerous area, carry out actions threatening security, life and health, including other persons, and to disseminate knowingly false information about the threat or occurrence of a disaster.
Organizations, depending on the situation, are required to ensure the evacuation of employees or other citizens residing in their territory, and to provide it to state agencies and local governments. They must also provide employees and other citizens in the territory of the organization, means of protection and take other necessary measures.
In addition, responsibilities of the organizations included measures to improve the sustainability of the organization and ensuring of activity of employees, organization and carrying out rescue and other urgent works in the subordinate objects of industrial and social facilities and adjacent territories in accordance with the action plans for the prevention and elimination of emergencies. When threatened, the health and safety of workers and other citizens residing in the territory of the organization are obliged to suspend operations.
In the concluding paragraph of the Rules States the responsibility of organizations to promptly provide to the management bodies of a unified state system of prevention and liquidation of emergency information in the field of protection of population and territories from emergency situations of natural and technogenic character.
In addition, at present, in connection with the distribution of the coronavirus (COVID-19), in almost all constituent entities of the Russian Federation declared a state of alert and the organs of state power of subjects of the Russian Federation adopted the rules of conduct for citizens and organizations in times of high alert. (for example, in Moscow – the Moscow Mayor’s Executive order on March 5, 2020 No. 12-UM “On introduction of high alert mode” (in edition of decrees of Mayor of Moscow from March 10, 2020 No. 17-UM, dated March 14, 2020 number 20-MIND 16 March 2020 number 21-a MIND, on March 19, 2020 No. 25-MIND March 23, 2020 No. 26-UM, of March 25, 2020 No. 28,-UM, of March 26, 2020 No. 31-UM, of March 27, 2020 No. 33-UM, of March 29, 2020 No. 34-UM, from March 31, 2020 No. 35-the MIND, 2 April 2020 No. 36-INTELLIGENCE, dated 4 April 2020, No. 39-UM, 9 April 2020, No. 41-UM):
IMPORTANT! With the adoption of the amendments to the law on emergency situations from 01 April 2020 appeared a legal collision between the law on emergency situations, on the one hand does not allow to restrict the rights and freedoms of citizens in the adoption of measures for the protection of population and territories from emergencies (n. d. h. 10 V. 4.1 of the law on emergency situations), and on the other hand allowing the Government of the Russian Federation and bodies of state power of subjects of the Russian Federation to establish the rules of behavior in times of high alert or state of emergency (article 10 and 11 of the law on emergency situations), including restricting the constitutional right of citizens to freedom of movement. In this case, the legislator does not set the limits of legal regulation of the behavior of citizens and organizations in times of high alert or emergency mode, and the permissible limitations of their rights in the regime of high alert and emergency mode, which obviously entails the possibility of abuse by public authorities and violations of their fundamental rights and freedoms established by the Constitution of the Russian Federation.
During introduction of the emergency regime citizens of the Russian Federation have the right:
- the protection of life, health and property in emergency situations;
- in accordance with the action plans on prevention and liquidation of emergency situations to use means of collective and individual protection and other equipment of Executive authorities of constituent entities of the Russian Federation, local self-government bodies and organizations intended to protect the population from emergency situations;
- to be informed of the risk they may be exposed in certain places of stay in the country and about measures of necessary safety;
- to appeal personally and also to submit to state bodies and bodies of local self-government of individual and collective appeals for the protection of population and territories from emergency situations, including the safety of people on water objects;
- to participate in the prescribed order in the prevention and liquidation of emergency situations;
- for damages caused to their health and property due to emergencies;
- for medical care, compensation and social guarantees for residence and work in zones of emergency situations;
- the compensation and social guarantees for damage caused to their health during the performance of duties during elimination of emergency situations;
- to a pension in case of disability in connection with injury or disease received in the execution of tasks on protection of population and territories from emergency situations, in the manner prescribed for employees who have disabilities that occurred as a result of industrial injury;
- for a pension for loss of breadwinner, who was killed or died from injury or disease received in the execution of tasks on protection of population and territories from emergency situations, in the manner prescribed for the families of citizens who were killed or died from injuries suffered when performing the civil duty to rescue human life, protect property and the rule of law;
- to receive free legal aid in accordance with the legislation of the Russian Federation.
The procedure and terms, the types and amounts of compensation and social guarantees provided to citizens of the Russian Federation, established by the legislation of the Russian Federation and the legislation of subjects of the Russian Federation.
In case of introduction of state of emergency, the state assumes funding for the prevention and elimination of consequences of emergency situations. Citizens have the right to damage compensation caused to their health and property due to the disaster.
The size and types of compensation are different, usually, this lump sum compensation, depends on nature of the scale of the disaster and also compensation for lost property and housing. The procedure and terms, the types and amounts of compensation and social guarantees provided to citizens of the Russian Federation, established by the legislation of the Russian Federation and the legislation of subjects of the Russian Federation.
Thus, the order of payment determined by resolution of the government of the Russian Federation No. 1928 from 28.12.2019 of the year “On approval of Rules of provision of other interbudget transfers from the Federal budget, source of financial support which are budget appropriations of reserve Fund of the Government of the Russian Federation, to budgets of subjects of the Russian Federation on financial support of certain measures on liquidation of emergency situations of natural and technogenic character, compensatory payments to natural and legal persons who have suffered damage as a result of a terrorist act, and damages caused by terrorist act by lawful actions”.
Benefits to the citizens in case of emergencies, the Federal, interregional and regional nature include:
- the providing one-time financial assistance in the amount of 10 thousand rubles per person;
- the providing of financial assistance in connection with the loss of their property necessities (from the calculation for partial loss of property Essentials – 50 thousand rubles per person, for the loss of property Essentials – 100 thousand rubles per person);
- lump sum payment:
— family members (spouse (wife), children, parents, and persons dependent on) citizens who were killed (died) as a result of the emergency situation in the amount of 1 million rubles for each victim (deceased) in equal shares to each family member;
— families of citizens killed (deceased) in emergency situations in the amount equal to the cost of services provided in accordance with the guaranteed list of burial services set by the legislation of the Russian Federation;
— citizens who were in emergency situation, the harm, taking into account the severity of harm from the calculation of the degree of severity of the harm (serious harm or moderate harm – in the amount of 400 thousand. rubles per person, light damage – 200 thousand rubles per person).
In the case of the loss of housing in emergencies can be provided as cash compensation, and Kazakhstan on the purchase of housing for the state. The certificate is issued only in case, if for the citizen and all his family members lost the living room was the only one. If a citizen who has lost housing in the disaster have received assistance in restoring their housing rights (e.g., compensated in respect of loss of housing or subsidy for the purchase of new residential premises) to apply for the issuance of this certificate, he can not.
The list of victims eligible for compensation are the authorised Executive bodies of those subjects of the Russian Federation on the territory of which the emergency has originated, or the interdepartmental Commission for the investigation of CHS.
If a citizen is not included in the lists affected by the disaster, for example, because that has not been registered in the area of the disaster, he will have in court to prove that he is affected by the disaster and to file a claim in court with requirement about recognition of its victims in connection with flood, earthquake, etc. and the payment of appropriate compensation.
In addition, affected individuals who think the amount understated, may in court to challenge the amount of compensation. To the claim must attach the report of the independent expert on the real damage.
Often in the Internet space you can find the opinion that the introduction of emergency, позволя12ет citizens to pay for utility services, and exempt from the obligation to pay on loans and mortgages, please note that these arguments are not based on the law as in the law on emergency situations, there are no provisions allowing for the introduction of the emergency not to pay for utility services and to pay loans. In addition, in the case of the emergency mode can dismiss any employee (if he is not involved in protection from emergencies). (paragraph 7 of article 83 of the Labor code).
The right of citizens to compensation of the damage caused to health and property due to the disaster, refers to citizens, but not to the business. The law on emergency situations does not contain the obligations of public authorities in providing financial assistance to the business community, but public authorities have discretion to provide support to the victim from the emergency business.
Thus, the introduction of the emergency does not guarantee business offset some of the losses of the state.
In addition, pay attention to the business community that the introduction of the emergency is not automatic evidence of the presence of force majeure (force majeure), which exempts the parties from liability for nonperformance or improper performance of the obligation in accordance with paragraph 3 of article 401 of the civil code. (except for the cases expressly provided for in the contract, that the introduction of the emergency is a force majeure). Force majeure may occur, and without the emergency mode.
The presence of force majeure (force majeure) can be recognized by the court in a specific civil case, if there is evidence of a causal connection between the execution of obligations under the Treaty and the circumstances of insuperable force (force majeure). For example, if the provider had to deliver the goods to another country, however, in connection with the distribution of the coronavirus (COVID-19) the borders between countries were closed, which does not allow to fulfill the obligations.
IMPORTANT! The existence of force majeure excuse (not awarded penalties, fines), but not from the performance of the obligations, that is, terminates the contracts, and provides a delay without penalty their implementation.
Thus, in the case of coronavirus, a force majeure, as a rule, will be the measures taken to eliminate the spread of coronavirus, the coronavirus.
For information! The Russian government recognizes that measures to combat coronavirus force majeure when the implementation of public procurement.