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Breakthrough Judgement by the Municipal Court in Prague Overturning Major Czech Government COVID Restrictive Measures - 23 April 2020 

by KSB Covid-19 Task Force

Published: April, 2020

Submission: April, 2020

 



On 23 April 2020, the Municipal Court in Prague issued a judgment upholding the petition for annulment of certain measures of the Ministry of Health issued in connection with the COVID-19 pandemic. With effect from 27 April 2020, the Court annulled two extraordinary measures of the Ministry of Health of 17 April 2020 and 26 March 2020 on the restriction of retail sales and two extraordinary measures of the Ministry of Health of 15 April 2020 and 23 3. 2020 on the restriction of free movement of persons ("Extraordinary Measures"). The court found that by issuing these Extraordinary Measures, the Ministry of Health exceeded its competence, respectively did not have sufficient material scope to issue them, so they are illegal, which the government immediately corrected and at its meeting on 23 April 2020 "overturned" the repealed measures into the form of crisis measures, in which it proceeded to the announced relaxing of the measures.


The Municipal Court in Prague annulled the Extraordinary Measures with regard to the above-mentioned fundamental defects in their issuance and no longer dealt with the petitioner's further arguments concerning the unreviewable nature of the challenged Extraordinary Measures and the disproportionate restriction of fundamental rights and freedoms. In particular, the Court pointed out that the legal order of the Czech Republic provides for the restriction of fundamental rights and freedoms in times of emergency in Article 6 of the Constitutional Act on the Security of the Czech Republic and Sections 5 and 6 of the Crisis Act. The provisions of Section 6 of the Crisis Act allow for the issuance of decisions on specific crisis measures for periods of emergency, and Section 5 of the Crisis Act regulates the general possibility for the government to restrict the fundamental rights and freedoms listed here. It follows from these provisions that the possibility of restricting fundamental rights and freedoms during a state of emergency is available to the government, which is the main body of crisis management in times of state of emergency. The law does not allow the delegation of this power to members of the government. Thus, if the government ordered a member of the government to order a crisis measure, it would act ultra vires (note: beyond the limits of competence), and thus also in conflict with Article 2 para. 2 of the Charter and Article 2 para. 3 of the Constitution. The Court therefore considered whether such an approach was so flawed that the contested Extraordinary Measures could otherwise be found to be unlawful.


Although the Ministry of Health generally has significant powers to implement epidemic control measures, the court concluded that"in the event of a state of emergency, the government demonstrates that the problem is such that the standard procedures provided by general law are not sufficient to address it."By declaring a state of emergency, a special power of the government is assumed. In addition, the Court emphasizes that by the declaration of a state of emergency the crisis law enters the position of a special law in relation to the Public Health Protection Act and thus the principle of lex specialis derogat legi generali (note: a special legal norm takes precedence over a general legal norm) applies. The court then states that: "However, the key fact remains that in the event of a state of emergency, the executive is obliged to follow the laws governing this emergency, as the declaration of a state of emergency constitutes this" special circumstance". Otherwise, there would be no difference between a normal and an emergency situation.


It is in the interpretation of Article 6 para. 1 of the Security Act of the Czech Republic in connection with § 5 and § 6 of the Crisis Act that only the government as a collective body is entitled to issue specific measures restricting the exercise of individual rights and freedoms, not the Ministry, they are mandated by the government to adopt specific restrictions on these rights and freedoms. A contrary interpretation would unreasonably concentrate power in the hands of one administrative body, which could potentially undermine the principle of the functioning of the rule of law and democracy.


In addition, the court adds that:“[t] he adoption of measures by the government according to the Crisis Act, but by the Ministry of Health according to the Public Health Act, the court also considers as a violation of the constitutional guarantees of the division of power. When adopting crisis measures pursuant to the Crisis Act, the government is under the constant supervision of the Chamber of Deputies of the Parliament of the Czech Republic. As the contested measures were adopted by the Ministry of Health in accordance with the Public Health Protection Act, this control was excluded by the Chamber of Deputies."


On the interpretation of the provisions of § 69 of the Act on the Protection of Public Health, especially in letter i), according to which the Ministry of Health may“prohibit or order other certain activities to liquidate the epidemic or the danger of its occurrence”, the court stated that “[t] he generally formulated § 69 par. 1 let. (i) of the Public Health Protection Act cannot serve as a blank check issued by the legislator for any serious and extensive interference with fundamental rights.”, especially in situations where another law (the Crisis Act) allows restrictions on these rights and freedoms. To do otherwise would be contrary to Article 4 (2) of the Charter of Fundamental Rights and Freedoms. In addition to the above, the court stated that it could not accept that the Ministry of Health could base its power to issue the contested measures restricting freedom of movement and business on this "residual provision" without further explanation.


The court also dealt with the argument of the Ministry of Health, which claimed that these Extraordinary Measures were "taken into account by the Government" because:"[t] he remarks cannot be identified with the adoption of a crisis measure, both formally and materially." This proves that the government is aware of its role in the emergency.


In conclusion, the court noted that the subject of the proceedings was not to evaluate Extraordinary Measures according to their effectiveness, as efficiency is not a measure of legality. The legal system enshrines the Constitutional Act on the Security of the Czech Republic and the Crisis Act, which provide for the possibility of restricting the rights and freedoms of citizens. This legal regulation serves to deal with extraordinary events in which: “Although the law usually recedes into the background and the individual measures of the executive bodies become relevant, it cannot be argued that the laws will cease to apply permanently. On the contrary, it is necessary to adhere to their strict observance, as they provide constitutional guarantees and clear boundaries in which the executive branch may and may not go."


The judgment of the court is final. However, a cassation appeal can be lodged against the judgment with the Supreme Administrative Court, and the government has already publicly declared that it will use this appeal. However, its submission will not have a suspensive effect on the judgment.


 



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