What is going on?
As the pandemic situation escalates, the Czech Republic, the same as almost every country in the world, including Slovakia, has taken strong measures to curb the COVID-19 pandemic. However, these steps raise questions, both in public and also among scholars. The Constitutional Court of the Czech Republic brought this debate to a higher level on 22 February 2021. The Court published an interesting award on measures that prohibited retail sales and the provision of services in the country. The Government of the Czech Republic, same as in Slovakia, has adopted various resolutions and measures, all in order to somehow stop the spread of the coronavirus. The Court wrote about 63 Czech senators who challenged the constitutionality of the Czech Government’s resolutions adopted in November 2020, including a resolution banning retail sales and providing services. The Court analyzed this problem precisely, on the 35 pages of the award, and ruled that the intervention was in violation of the Czech Constitution.
Why is it important?
As already mentioned, the Czech situation can be applied to and compared with the Slovak one in many – as well as measures, recently the numbers of infected and also the social situation are similar. The legitimacy and legality of the measures are dealt with not only by politicians but also by constitutional lawyers. The only question is when a similar proceeding will take place in Slovakia. It must be taken into account that this is an unprecedented situation, and the courts do not have similar case-law. Therefore, it will be necessary for the lawyers to argue by using comparison with decision-making activities abroad. In this case, the Czech Court provides a wide scope for the field of discussion about the constitutionality (or potentially the unconstitutionality) of the said measures.
The Court chose a very good argument. The Court pointed out that the Government, when adopting the restrictions, used „(...) a flat-rate ban on all retail sales and the provision of services in establishments, while at the same time providing a large number of exceptions, almost in the size of a ‘telephone book’ (36 in total). However, the fundamental deficit of this procedure is that it is not apparent from any relevant source on the basis of which the government has reached this very solution. Even practical uncertainty and a lack of perfect information do not mean that the government can do anything, relying solely on instinct or political compromise.”
The Court’s legal opinion also dealt with the area of the legitimacy of the measures; according to it, the very way of how the Government restricted the sale of goods and services is bad. The Court reported that it is not possible to prohibit “everything” and only retrospectively give exceptions to this-or-that kind of retail or service.
What will happen next?
At the end of the award, the Court itself wrote that it is aware of an emergency situation and could not naturally make demands that a normal situation would require. However, this cannot, in any way, be an excuse, let alone an excuse for the Government, a powerful institution, which affects everyday life.
Some maneuvering room for the critics of the pandemic restrictions offers the Court’s legal view when talking about the fact that the restrictions might not be so bad in the material, but in the process: “The Constitutional Court concludes that, in a situation where the government makes use of the possibility of restricting fundamental rights or freedoms by crisis measures and impose obligations on its addressees, it must also be able to properly justify its measure in order to make it clear that its decision-making was not arbitrary. In particular, this means that the information on the basis of which the government decides in such cases should be (at least) available and that information must subsequently be reviewed in proceedings before the Constitutional Court.”
On the other hand, in order to illustrate the mood and vibes in the society and also the attitude of the Czech courts on the Government’s measures, we can also mention the judgment of the Municipal Court in Prague issued on 23 February 2021, in which the court cancelled distance schooling and ordered one of the Prague schools to launch presence schooling; it did so on the basis of an action brought by one of the students.
However, for the sake of delivering the whole and full information, it should be stressed that the notable stumbling block, in this case, was mainly the procedural and formal side of the case and the fact that the measures taken could be achieved in both cases in a more acceptable, less invasive, simpler and, in particular, well-established and fully justified way. Although, at first sight, the dispute was very factual in both cases, fundamental rights and freedoms and their repression played a key role. To conclude, we can quote one of the last points of the Court’s award: “(...) the reasoning is not only a necessary basis for the review carried out by the Constitutional Court, but also for the social acceptance and thus the legitimacy of crisis measures. (...) The constitutional system of the Czech Republic is based on the primacy of the individual before the state (…) However, this concept is fundamentally alien to the procedure where the executive body issues measures highly interfering with the fundamental rights of these individuals, without properly and rationally justifying such measures. In such a case, of course, their legitimacy is also declining, and the same goes for the citizens and their willingness to accept such measures.”
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