IV. ÚS 1642/22

During the pandemic alert, the Ministry of Health issued an emergency measure restricting the personal presence of pupils in schools. Pupils were allowed to be present in person at school if they were screened twice a week through an antigen test for the presence of the SARS-CoV-2, the antigen that causes COVID-19, with negative results. Students who had laboratory confirmation that they had contracted the disease in the past 90 days and those who were vaccinated were also exempted from testing. 

The complainants, who at the relevant time attended a grammar school, a primary school and a nursery school, sought in two actions that the Supreme Administrative Court annul the extraordinary measure. They claimed to have had COVID-19 and that laboratory tests showed that they had sufficient antibodies. In their opinion, the emergency measure was unlawful in that it did not provide for an exemption from the testing requirement for persons who have had the disease and have demonstrated sufficient levels of antibodies. The Supreme Administrative Court rejected the applicants’ actions by order as manifestly unfounded. It stated that the complainants did not have laboratory confirmation of having contracted COVID-19 and are essentially requesting that another exemption be provided in the measure. However, the Supreme Administrative Court does not have the power to amend the measure.

The Constitutional Court has already intervened once in the case of the complainants with its judgment of 16 November 2021, file No II. ÚS 2385/21, by which it annulled both resolutions. At that time, it reproached the Supreme Administrative Court for failing to deal with the objection that the regulation contained in the contested extraordinary measure was insufficient. In further proceedings, the Supreme Administrative Court again rejected the applicants’ actions as manifestly unfounded. It considered the adjustment of the exemptions from the obligation to screen pupils in schools set out in the emergency measure to be sufficient. 

The Fourth Panel of the Constitutional Court (Justice Rapporteur Josef Baxa) once again annulled the Supreme Administrative Court’s resolutions of 21 April 2022 ref. Nos 5 Ao 13/2021-71 and 5 Ao 6/2021-68. The court violated the complainants’ constitutionally guaranteed fundamental right to judicial protection. According to the Constitutional Court, the Supreme Administrative Court erred in considering the justification of the emergency measure sufficient, even though it merely paraphrased the text of the measure itself and did not comment on the scientific knowledge backing the exceptions. The Ministry of Health did not convincingly supplement its justification even in the subsequent court proceedings on the motions to annul the emergency measure. The Constitutional Court disagreed with the conclusion of the Supreme Administrative Court that the measure was fitting for the time when it was adopted. The extraordinary measure did not contain any justification for the exceptions to the screening of pupils in schools, and the Supreme Administrative Court failed to meet the constitutional requirement of reviewing it if it nevertheless found it lawful. At the same time, it failed to respect its own decision-making practice.

Emergency measures issued under the Public Health Protection Act and the Pandemic Act are measures of a general nature. The court assesses the sufficiency of the regulation of a particular issue, in particular on the basis of the information provided in the justification. The extent and quality of the justification for emergency measures may vary, taking into account the urgency and predictability of the epidemiological situation. However, the Court cannot infer the justification from other emergency measures, even though they contain similar provisions.