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The Constitutional Court rejected a motion by a group of deputies to repeal some parts of the amendment to the Pandemic Act

Judgment Pl. ÚS 7/22

The Plenum of the Constitutional Court (Justice Rapporteur Jaromír Jirsa) rejected a motion made by a group of deputies to repeal Section 2(2)(b) and (c), (d) in the words “sports ground in the internal space of a building, outdoor sports ground,” (e) and (f), (k) in the words “or laying down conditions”, (m) to (v), Section 8a, Section 10(1) in the words “or in accordance with Section 69(1)(b) or (i) of the Public Health Protection Act, the purpose of which is to eradicate the COVID 19 epidemic or the risk of its recurrence”, Section 10(2)(f), Section 10(3) and Section 11(3) of Act No 94/2021, on emergency measures during the COVID 19 epidemic and amending certain related acts, as amended by the judgment of the Constitutional Court, promulgated under No 4/2022, and Act No 39/2022.  

A group of 57 deputies, represented by Radek Vondráček (hereinafter the “movant”), proposed to repeal certain parts of the Pandemic Act, which were added to the Act by the amendment made by Act No 39/2022. In particular, the movant alleged a violation of the rules of the legislative process – the act was passed in a state of legislative emergency, for which, in the movant’s opinion, the conditions were not met, and procedural defects occurred during its approval that render it unconstitutional. The movant also sought the repeal of Section 8a of the Pandemic Act, which, according to the movant, violates personal liberty and freedom of movement and residence. Hitherto, the legal regulation has allowed for the quarantine of a suspected infected person or the isolation of an infected person to be decided by a public authority (public health authority) fully subject to the Administrative Code; however, the Pandemic Act revolutionises the process, allowing for fundamental human rights to be restricted even by means of remote communication. Finally, the movant also challenged Section 2(2)(b) of the Pandemic Act, which introduced a number of new restrictions and obligations for entrepreneurs, which, in the movant’s view, also infringed the right to engage in enterprise guaranteed by Article 26 of the Charter of Fundamental Rights and Freedoms.  

The Constitutional Court first examined whether there was a legitimate reason for declaring a state of legislative emergency and the subsequent summary consideration of Act No 39/2022, which outweighed the interest in maintaining a proper legislative procedure. The circumstances of the case at hand are similar – but not identical – to those considered by the Constitutional Court in its judgment File No Pl. ÚS 20/21 (the relevant press release and the judgment are available at: bit.ly/3qKMH9E External link icon  ), in which it found a legitimate reason for fast-tracking an act via summary consideration in a state of legislative emergency. According to the Constitutional Court, such a reason also existed in the case at hand.  

At the submission of the draft Act No 39/2022, the Government relied on expert documents and publicly available data, which showed, inter alia, that the number of confirmed cases of COVID-19 had been increasing from 20 January 2022 to 18 February 2022 at the time the draft act was being discussed, and that the virus variant becoming dominant at the time had an order of magnitude higher potency than earlier variants. Therefore, the reasons claimed by the Government are neither fictitious nor arbitrary; they are based on specific alleged circumstances and are reviewable. At the same time, they imply the need to respond immediately to the situation of an ongoing pandemic as an objective emergency threatening the health and life of a large part of the population, the gravity of which allows for the application of Article 99(1) of the Rules of Procedure of the Chamber of Deputies and Article 8 of the Constitutional Act on Security. The effect of the current Pandemic Act was set to expire on 28 February 2022 and the draft amendment was submitted on 20 January 2022. Therefore, the Constitutional Court concludes that the state of legislative emergency in this case was not justified by the mere disagreement of the opposition and that it was not used as a tool to enforce the will of the parliamentary majority in order to circumvent the proper legislative procedure and the guarantees associated with it. 

The Constitutional Court further examined whether the individual alleged and identified deficits of the legislative process, individually or in their totality, reached constitutional legal intensity. The reference criterion for the review was primarily whether the rights of the parliamentary opposition and their members were materially preserved during the consideration of the act, as anticipated by the case law of the Constitutional Court. In doing so, the Constitutional Court concluded that the legislative process as a whole did not completely deny the opponents of draft Act No 39/2022 the opportunity for parliamentary discussion or the right of individual deputies as members of the parliamentary opposition to familiarise themselves with the draft act and to assert their opinions, competing views and positions with respect to it. The act was under consideration for almost 30 days and the general public had sufficient time to get acquainted with it. 

After examining the process of adopting the contested provisions of the Pandemic Act, the Constitutional Court has examined the Act in substance and, on the basis of the considerations set out below, has concluded that the petition was not justified in this part.  

The Constitutional Court has already dealt in detail with a substantial part of the emergency measures in accordance with Section 2 of the Pandemic Act in the above cited judgment File No Pl. ÚS 20/21. In doing so, the Court concluded that the contested provisions should be upheld in the light of the constitutional aspects examined. In the present case, the Constitutional Court based itself on the conclusions and premises defined in that judgment. The Constitutional Court then subjected the contested provision of Section 2(2)(b) of the Pandemic Act itself to the proportionality test, in view of the conflict between the right to engage in enterprise and pursue other economic activities and the right to health protection; the provision passed the test. The Constitutional Court considers the provision of an effective anti-epidemic tool to minimise the risk of COVID-19 spreading through the population and its impact on public health through measures restricting the performance of business or other activities in places where there is a higher concentration of people at any one time to be a legitimate objective. Predicting the development of a COVID 19 pandemic is almost impossible given its dynamics. Therefore, there is an interest in having all available tools in place to set up effective and targeted anti-epidemic measures. In view of the existence of sufficient safeguards for the restriction of constitutionally guaranteed rights and freedoms – in particular with regard to the possibility of judicial review of extraordinary measures – the Constitutional Court does not consider the restriction of fundamental rights and freedoms caused by the contested provision to be disproportionate. 

The obligation of natural persons to subject to, inter alia, isolation or quarantine measures [for the definition of these terms, see Section 2(6) and (7) of the Public Health Protection Act] at the statutory level stems from Section 64(a) of the Public Health Protection Act. The contested Section 8a of the Pandemic Act regulates the procedure for notifying the order to isolate or quarantine, i.e. orally or in writing, including by means of remote communication (e.g. by SMS or telephone). The effects of the contested provision consist primarily in an interference with legal certainty, since its construction creates a risk that the order to isolate or quarantine will not be served to the addressee. Therefore, the Constitutional Court subjected this provision to the proportionality test, considering the principle of legal certainty on the one hand and the protection of health on the other hand, and it concluded that the provision passed this test. The legislation in question pursues the legitimate aim of imposing quarantine measures and isolation in a timely and non-formal manner in order to prevent or at least slow down the spread of COVID-19 by restricting the mobility of the population in the context of public health protection. Before the adoption of the contested provision, isolation or quarantine could only be ordered by a decision in an administrative procedure in accordance with the Code of Administrative Procedure. However, given the high number of quarantines and isolations ordered, which can reach thousands of cases per day at the height of a pandemic, and the need to subject to these measures immediately, this formalised approach is not feasible in practice. In the context of the effective legal order, it is difficult to imagine another way – with greater consideration for constitutionally guaranteed rights and freedoms – in which anti-epidemic measures can be ordered in a non-formal manner and without delay to the extent necessary. The legislation then provides sufficient safeguards for limiting the constitutionally guaranteed rights and freedoms of individuals, such as the possibility to request within three working days an investigation by a public health protection authority into the justification of the quarantine or isolation order, the possibility of judicial review in the administrative justice system, or the possibility of claiming damages against the State under Act No 82/1998.  

For completeness, the Constitutional Court adds that the movant has not raised any substantive objections other than procedural objections in relation to the other contested provisions, so the motion is unfit for substantive consideration in this part.