Judges declare restrictive measures unlawful
With the introduction of a travel ban for its own citizens, the Czech measures to contain the corona epidemic have so far been among the strictest in Europe. Two weeks ago, the Prague City Court overturned four measures taken by the Czech Ministry of Health that restricted the free movement of citizens and retailers. A number of lawyers believe that this ruling increases the chances of businessmen and entrepreneurs to claim compensation from the state. Some legal experts also stress that the Czech government must provide more detailed justification explaining the need for the significant restrictions on fundamental rights and freedoms.
On Thursday the week before last, the judges declared several measures concerning restrictions on freedom of movement and the closure of most shops and services to be unlawful, as these restrictions were based only on the extraordinary measures issued by the Ministry of Health and were not declared by the government under the conditions of the Crisis Act. The court thus granted the complaint of the health law expert Ondřej Dostál, who described the regulations as arbitrary, chaotic and incomprehensible.
In its press release, the City Court stated that it had not assessed the appropriateness but the legal form of the measures. The government was given a four-day deadline to adopt the regulations in a way that was in accordance with the law, i.e. as crisis measures. It did so on Thursday evening two weeks ago.
The Chairman of the Court Senate Štěpán Výborný emphasised that even in the current extraordinary situation, the authorities had to comply with the rules in order to preserve the rule of law as far as possible: “In a situation in which a state of emergency is declared, only the government may restrict fundamental rights and freedoms to such a massive extent, by means of a resolution issued on the basis of the Crisis Act.”According to him, such power cannot be given to a single ministry.
Controversial Compensation Claims
Dostál, a lawyer and health law expert, filed the lawsuit after the government lifted the restrictions originally imposed under the Emergency Decrees, and the Ministry of Health immediately re-issued them as extraordinary measures under the Public Health Act. By transferring the measures to the Ministry, businesses that had been severely affected by the restrictions lost the legal basis for compensation claims against the government. Indeed, a claim for compensation arises only in the case of a restriction imposed by the government under the Crisis Act. “It was a legal quibble to make the government exempt from paying compensation,” Dostál suspects.
When Health Minister Adam Vojtěch was asked during the press conference on Thursday evening last week, why the government delegated the explanation of the restrictive measures to the Ministry of Health, he replied that the Ministry of Health had also adopted other extraordinary measures that were still in force and that were put into effect even earlier than the state of emergency. “In such a situation, we were not aware that we could not act in accordance with the Public Health Protection Act,”said Vojtěch, adding that the case still had to be judged by the Supreme Administrative Court.
During the press conference, the Minister of Health surprisingly also announced a much faster loosening of the Corona crisis measures. He justified this with the good development of the epidemiological situation in the Czech Republic. In addition to lifting the ban on freedom of movement, foreign travel was also permitted again. Upon returning to the Czech Republic, however, one must obtain a negative coronavirus test or enter quarantine for two weeks. Foreigners may re-enter the country in justified cases and under certain conditions. People may move in groups of up to ten people in public places. Large shops, restaurants, hotels, theatres and zoos may reopen during the course of this month, i.e. earlier than expected. From the end of April onwards, the universities were also opened to a limited extent.
Restrictions to Fundamental Freedoms must be Justified in Detail
According to Jan Wintr, an expert in constitutional law from Charles University in Prague, the court ruling also implies, among other things, that the government must explain in more detail the need for the restrictive measures, which significantly restrict fundamental rights and freedoms. “In a constitutional state this has to be justified,” he said in an interview.
Another constitutional law expert from Charles University, Jan Kysela, also believes that the government must carefully justify its steps to make it clear that they are not based on chance, but on a careful analysis that takes into account the impact of the restrictive regulations on basic civil rights.
Moreover, the two experts tend to believe that there is rather no legal basis in the Czech constitutional system for closing the borders to its own citizens. This is a particularly sensitive issue in a country where borders were impermeable for 40 years during the communist era. However, the Czech courts will still decide on complaints about the ban on leaving the country. A group of senators who wanted to lodge a constitutional complaint on this issue stopped preparing the proposal after the reopening of the borders.
Extension of the State of Emergency
The decision of the Municipal Court also influenced the discussion on the extension of the state of emergency in the Czech Republic. Prime Minister Andrej Babiš originally shared the opinion of the opposition that it was no longer necessary to maintain the state of emergency after 30 April.
However, after the ruling of the City Court was announced the week before last, the government requested in Parliament that the state of emergency be extended until 25 May, as the measures adopted under the Crisis Act can only remain valid in the event of an emergency. The state of emergency would continue to be necessary so that the restrictions on trade and services could be gradually eased over the course of May.
On Tuesday last week, the House of Representatives first adopted a compromise proposal – the emergency extension until 17 May. According to Prime Minister Babiš, next week the government will present an amendment to the Public Health Protection Act to maintain measures against the spread of the coronavirus until 25 May.
The Czech Republic is a Constitutional State
So far, the Czech Republic has coped with the epidemic very well by international standards, to which the government has undoubtedly made its contribution. However, the court decision – like the parliamentary decisions on the time limit for the state of emergency – reminds us that the regulations of the rule of law must be respected even in times of crisis and that measures affecting the entire country must be subject to parliamentary control. The judgment also shows that the liberal democratic institutions, which serve as a basis for upholding the rule of law, function well in the Czech Republic. This distinguishes the country from its Central European neighbours, Poland and Hungary.
Project Manager, FNF Central Europe & the Baltic States