Current Affairs

Decision Pl. ÚS 8/20 - Certain measures adopted amid Covid-19 pandemic

22 April 2020

 

On 12 March 2020, pursuant Law no. 240/2000 Coll., the Crisis Management Act (CMA), the Czech government declared, in reaction to the Covid-19 pandemic, a state of emergency over the entire territory of the Czech Republic for a period of 30 days. The state of emergency had later been twice prolonged (on 9 April 2020 and on 30 April 2020) and only ended on 17 May 2020. Relying on Article 4 and 6 of the CMA, the government adopted several crisis measures limiting certain human rights. Moreover, relying on Law no. 258/2000 Coll., on the Protection of Public Health (LPPH), the Ministry of Health adopted several extraordinary measures further limiting certain rights. The Ministry of Health replaced some of the earlier issued crisis measures of the same content issued by the government while other extraordinary measures set new restrictions and obligations.

On 26 March 2020, an applicant (a natural person) filed a constitutional complaint against the original decision declaring the state of emergency and its first extension, against one of the crisis measures of the government limiting the freedom of movement on the territory of the Czech Republic and three extraordinary measures of the Ministry of Health, all limiting the freedom of movement on the territory of the Czech Republic as well.

In its decision of 22 April 2020, no. Pl. ÚS 8/20, the Constitutional Court ruled as follows:

 

1.       As to the applicant´s complaint regarding the original decision of the government of 12 March 2020, no. 194, published under no. 69/2020 Coll., on a declaration of a state of emergency, as amended by the decision of the government of 9 April 2020, no. 396, published under no. 156/2020 Coll., the Constitutional Court partly rejected the constitutional complaint for lack of jurisdiction over the impugned act.

The Constitutional Court held that the decision on a declaration of a state of emergency is an act of governance, which has a normative effect, and is not subject to a review by the Constitutional Court but is rather reviewable by a democratically elected non-judicial authority (the Chamber of Deputies). The government is politically responsible for their decision to declare a state of emergency. However, the Constitutional Court stated that any constitutional review of such decision is not absolutely excluded. The Constitutional Court could annul a decision on a declaration of a state of emergency if such decision contained specific crisis measures; under such circumstances, the Constitutional Court would review exclusively that part of the decision. A decision on a declaration of a state of emergency could also be annulled if the Constitutional Court found that it is contrary to the fundamental principles of the rule of law and that it changes the essential features of democracy and the rule of law.

 

2.       As to the applicant´s complaint regarding the decision of the government of 15 March 2020, no. 215, on the adoption of crisis measures published under no. 85/2020 Coll., the Constitutional Court partly rejected the constitutional complaint for lack of locus standi of the applicant.

The Constitutional Court found that crisis measures adopted by the government do not take the form of "hybrid measures" (opatření obecné povahy; i.e. a specific type of measures that are general in their application but individual in their subject matter). Crisis measures should be classified as “other legal acts” within the meaning of the Constitutional Court Act (CCA), i.e. a legal act of general normative nature. Those may not be challenged by any individual but solely by privileged applicants as enacted in the CCA. The applicant, as a natural person, could only challenge a crisis measure if she lodged a constitutional complaint alleging that her fundamental rights and basic freedoms guaranteed by the constitutional order had been violated as a result of a final decision in proceedings to which she had been a party, of a measure or some other interference by a public authority. However, in the present case, the applicant challenged directly the legal act to which she lacks standing. 

 

3.       As to the applicant´s complaint regarding the extraordinary measure of the Ministry of Health of 23 March 2020, no. MZDR 12745/2020-1/MIN/KAN, the Constitutional Court partly rejected the constitutional complaint as inadmissible for failure to exhaust available remedies.

On contrary, an extraordinary measure of the Ministry of Health, although it contained the exact same regulation as the above-cited crisis measure of the government, should be qualified as a hybrid measure and may as such be challenged before administrative courts. A constitutional complaint against an extraordinary measure of the Ministry of Health may only be lodged after the remedies available in administrative justice have been exhausted. The Constitutional Court could exceptionally review a constitutional complaint even if the condition of exhaustion of available remedies has not been met if the constitutional complaint "significantly exceeded the applicant's interests". The Constitutional Court, however, found that the applicant failed to prove that it is the case in the present proceedings.

 

4.       As to the applicant´s complaint regarding the extraordinary measures of the Ministry of Health of 30 March 2020, no. MZDR 12745/2020-4/MIN/KAN and of 6 April 2020, no. MZDR 15190/2020-4/MIN/KAN, the Constitutional Court partly rejected the constitutional complaint for lack of the jurisdiction over the impugned act.

Concerning the extraordinary measures of the Ministry of Health of 30 March 2020 and of 6 April 2020, the Constitutional Court concluded that those might not be reviewed as they were already annulled.