Judgment III. ÚS 3319/22

The 3rd Panel of the Constitutional Court (Justice Rapporteur Vojtěch Šimíček) annulled the judgment of the Municipal Court in Prague of 21 September 2022, ref. No 69 Co 17/2022-165, and judgment of the District Court for Prague 2 of 2 May 2022, ref. No 43 C 44/2021-140. These decisions violated the complainants’ right to judicial protection under Article 36(1) of the Charter of Fundamental Rights and Freedoms and the right to compensation under Article 36(3) of the Charter.

The complainant had to give birth in a maternity hospital without the presence of the other complainant (the father of the child) as a result of the emergency measures adopted to tackle the COVID-19 pandemic. By judgment of 2 May 2022, the District Court for Prague 2 dismissed the action by which each of the complainants (the father, mother and child) sought payment of CZK 50,000 from the State as compensation for other than proprietary harm which they were to have suffer as a result of the extraordinary measure of the Ministry of Health of 27 March 2020 to protect the population and prevent the risk of the emergence and spread of COVID-19, which prohibited the presence of fathers at childbirth. The District Court justified its dismissal of the action in particular by the fact that the emergency measure in question was not a decision, and therefore any compensation for damage could not be claimed in accordance with Act No 82/1998 Sb., on liability for damage caused in the exercise of public authority by a decision or an incorrect official procedure. The complainants’ appeal was decided before the Municipal Court in Prague, which, in its judgment of 21 September 2022, upheld the conclusions of the District Court and further stated that “the father’s ability to be present at the birth is not a fundamental right”. The complainants contested these judgments with a constitutional complaint.

The Constitutional Court upheld the complainants’ complaint and annulled the contested decisions. It held that the father’s presence at the birth fell within the scope of the fundamental right to family life guaranteed by Article 32 of the Charter and Article 8 of the Convention. The birth of a child is undoubtedly a crucially important, if not the most important moment in family life, and experiencing such moment together can strengthen the bonds between mother, father and child. Therefore, the Constitutional Court does not accept that the right of the mother, father and child to be together at the moment of birth and the moments immediately following should remain outside the scope of constitutional protection. 

Both the District Court and the Municipal Court justified the rejection of the complainants’ claim on the grounds that the extraordinary measure of the Ministry of Health in question was not a decision within the meaning of Act No 82/1998 Sb, emphasising at the same time the lack of active capacity related to the fact that the complainants were not parties to the proceedings in which the measure was issued. The Constitutional Court rejected both of these conclusions as an expression of impermissible formalism, which in effect denies the constitutionally guaranteed fundamental right of an individual to seek compensation for damage caused in the exercise of public authority. From the outset, the complainants have been proactive and have used all available procedural means to protect their rights that can reasonably and fairly be required of them. Therefore, the civil courts should have considered the question of the legality of the Ministry of Health’s emergency measure or lack thereof themselves, as a preliminary question, in view of the complainants’ failure in the proceedings before the administrative courts. Therefore, the Constitutional Court did not comment on this issue, as this assessment is for the courts in further proceedings.  

The Constitutional Court merely summarised that it takes a substantive view of the fulfilment of the conditions of the State’s liability for damage and accepts that the decision in question does not have to be annulled or amended. This exception to the rule responds to specific cases where a requirement to annul an unlawful decision would appear to be unduly formalistic and would effectively exclude state liability for damage. The right to compensation for damage under Article 36(3) of the Charter cannot be made conditional on the exhaustion of legal remedies that would clearly not lead to an effective remedy or could lead to a deterioration of the individual’s legal position. This also applies to the admissibility of a claim for damages where the damage is caused by an unlawful measure of a general nature in a situation where, given the state of the law, it was not possible to obtain its annulment. 

Therefore, in further proceedings, the District Court is obliged to examine, using the proportionality test, whether the interference with the fundamental right by the relevant measure of the Ministry of Health had a constitutionally legitimate reason based on legitimate aims and whether it was carried out only to the extent strictly necessary and in the most considerate manner still leading to the intended aim, in a non-discriminatory manner and without arbitrariness. If one of these conditions is not met, it is a reason to find the measure of a general nature in question unconstitutional and therefore unlawful.