Current Affairs

Výpis aktualit

Decision Pl. ÚS 12/21 of 16 March 2021 - Petition of Senators to annul the Government’s declaration of the state of emergency ruled inadmissible


I. On 16 March 2021, the Plenum of the Czech Constitutional Court rejected for the lack of jurisdiction a Motion of a group of 35 Senators to annul Government Resolution No. 125 of 14 February 2021 (published under no. 59/2021 Coll.) by which a state of emergency was declared due to the threat to public health posed by the Covid-19 pandemic, starting on 15 February 2021 for a period of 14 days. The Constitutional Court further discontinued the proceedings as to the Motion to annul subsequent Government Resolutions on emergency measures as those had ceased to have effect in the course of the proceedings before the Constitutional Court

II. The Constitutional Court reiterated that – as follows from its earlier case law (e.g. decision no. Pl. ÚS 8/20 or no. Pl. ÚS 11/20) – if the Government Resolution on declaration of the state of emergency pursuant to Art. 6 para. 1 of the Constitutional Act no. 110/1998 Coll., on the Security of the Czech Republic (hereinafter “Constitutional Act on Security”), does not contain any specific emergency measures, its direct and isolated review by the Constitutional Court is excluded since such a resolution represents an act of governance of a political nature, and thus belongs to the framework of a political review by the Chamber of Deputies. The Chamber of Deputies exercised such power on 18 February 2021 when it voted to annul the state of emergency on the day newly adopted Act on Extraordinary Measures in Times of Epidemic of Covid-19 entered into force, but no later than on 27 February 2021. The Constitutional Court further reminded that the contested resolution had been challenged by earlier motions that were reviewed under No. Pl. ÚS 5/21, No. Pl. ÚS 9/21 and No. Pl. ÚS 10/21; all of those motions were rejected.

Although the Government Resolution on declaration of the state of emergency could not be reviewed on merits, the Constitutional Court expressed its non-binding opinion in obiter dictum. It held that the Constitutional Act on Security may not be interpreted through the lens of Act on Emergency Management, i.e. ordinary (sub-constitutional) piece of legislation. If the Constitutional Act on Security cogently provides that the Government may declare the state of emergency for 30 days at most and the period may only be prolonged with consent of the Chamber of Deputies (Art. 5 para 1 and Art. 6 para 2), the Government may not circumvent this statutory restriction by declaring a new state of emergency immediately after the previous one ends. If the circumstances that led to the declaration of the state of emergency do not substantially change, a new state of emergency may not be declared right after the previous state of emergency ended because the Chamber of Deputies did not give consent to its prolongation. 

Article 3 para. 5 of the Emergency Act provides that “when it is impossible to avert a risk in the context of the state of threat, the Regional Governor shall immediately request the prolongation of the state of emergency from the Government.” The cited Article may not, however, be interpreted as a specific exception from the general rule allowing for the prolongation of the state of emergency exclusively with the consent of the Chamber of Deputies. Such request of a Regional Governor must be preceded by the declaration of the state of threat. Moreover, the request is not binding for the Government; a review of the impossibility to avert a risk must be conducted.

III. Vladimír Sládeček served as the Justice Rapporteur in the case. A dissenting opinion was submitted by Justices Jaroslav Fenyk, Josef Fiala, Jan Filip, Radovan Suchánek and Milada Tomková.