Czechs and Balances – If the Epidemiological Situation Allows…

In the Czech Republic, the COVID-19 crisis has brought not only a general state of chaos but also a considerable shift of powers to the executive branch. The first shift, impairing the legislative branch, was triggered by the declaration of a state of emergency on 12 March 2020. The second shift, diminishing also the role of the judiciary, was caused by a ruling in which the Constitutional showed its unwillingness to interfere with the government’s steps. In this blogpost, I will first describe some of the crisis measures adopted in Czechia, then I will describe the constitutional and legal framework, including the judicial reaction to the situation, and finally, I will zoom in on some of the issues that could cause problems in the near future.

1. An overview of (selected) restrictive measures

COVID-19 became a real issue in the Czech Republic on 1 March 2020 when the Minister of Health confirmed the first three cases of the disease on the Czech territory. In the following days, the Ministry of Health suspended flights to and from South Korea and the north of Italy in order to prevent the spread of the disease from unsafe areas. To the disappointment of many sport fans, the State Security Council banned public participation at the World Cup Biathlon on 5-8 March 2020. Other public events were still being held but the organisers newly had to notify the regional hygiene station in advance of any event with participation of 5000+ persons. A couple of days later, the Ministry of Health ordered all those returning from Italy to stay at home for 14 days. Apart from these restrictions, life went on as usual.

Then, as a swift reaction to the growing concerns, on 10 March the Ministry of Health prohibited events with 100+ participants and banned all teaching in primary, secondary and tertiary educational institutions with effect from the following day. (I was actually on my way to class when I read the news – and while I still taught a seminar on Tuesday afternoon, my evening seminars no longer took place.) Two days later, the government declared a state of emergency and the Ministry of Health banned events with 30+ participants, closed gyms, swimming pools, music clubs, libraries, galleries, and much more. As of 14 March, the government closed shops and restaurants, with the exception of grocery stores, pharmacies, and some other shops.

On Monday 16 March the government shut the borders and significantly limited movement within the national territory. While foreigners were not allowed to enter the country, citizens and long-term residents were not allowed to leave it. Any movement was prohibited, except journeys to and from work, journeys to medical facilities, family visits, and other inevitable journeys. As of 19 March, everyone had to cover their mouth and nose whenever they left home, and persons below the age of 65 could not enter grocery stores between 10-12am. (This rule changed twice within less than a week, first to 7-9am, then to 8-10am, leaving everyone utterly confused.)

Between 12 March and 12 May the government issued 65 resolutions titled ‘government resolution on the adoption of a crisis measure’ (and a couple more ‘on the annulment of a crisis measure’), while the Ministry of health adopted further measures. During these two months, members of the government held frequent press conferences, drowning the inhabitants in a hypertrophy of legal rules, exceptions, and exceptions from the exceptions. This led the country to a state of surrender: after the people realised the state was not going to supply the promised face masks, everyone sat down to sew their own masks and in the meantime tried hard to keep up with the ever-changing rules and restrictions, hoping not to get fined for missing the latest TV updates.

At the beginning of April, the government started to modify some of the restrictions to make them more reasonable, e.g. allowing a limited operation of accommodation facilities, allowing individual consultations at universities or allowing outdoor sports without face masks. The rhetoric of ‘allowing’ certain activities raised a wave of (well-founded!) criticism: in a liberal democracy, the government should not allow things, but rather lift the restrictions. (While some will perceive this as a pointless linguistic distinction, those who remember the previous regime will be sensitive to the difference.) The month of April also brought three crucial judicial interventions. On 1 April the Supreme Administrative Court ruled that the government acted ultra vires when it annulled by-elections to the Senate (the upper chamber of the Parliament) which were to take place at the end of March. On 23 April, the Municipal Court in Prague annulled some of the restrictive measures issued by the Ministry of Health and emphasised that they should have been adopted by the government instead. Conversely, the Constitutional Court refused to annul the declaration of the state of emergency and the follow-up crisis measures, all for procedural reasons.

As of 11 May, the government started to lift the restrictions. People can now visit a hairdresser, get a massage, go to church or visit a museum, and restaurants have reopened their outdoor areas. The state of emergency ended on Sunday 17 May and further liberating steps are to be taken at the end of May when restaurants should open their indoor areas, hotels can fully resume their operation, schools plan to resume some of their activities (on a voluntary basis, mostly), and people should be able to visit ZOOs and castles and even get a tattoo (while, of course, wearing their face masks); all of this with an important reservation: if the epidemiological situation allows.

2. Constitutional framework, state of emergency and various types of crisis measures

The Czech constitutional framework distinguishes three extraordinary states: a ‘state of war’ (the only one foreseen by the Constitution itself), a ‘state of threat (to state sovereignty)’ and a ‘state of emergency’. All three are governed by the Constitutional Act on the Security of the Czech Republic (110/1998 Coll., ‘CAS’). Of the three extraordinary states, the state of emergency is the most appropriate (although not entirely apt) for a pandemic. A state of emergency can be declared by the government for a period of maximum 30 days in order to protect lives and health of people, among other reasons. The Chamber of Deputies (i.e. the lower chamber of the Parliament) may annul the government’s decision to declare a state of emergency, and any further extension of the state of emergency requires the approval of the Chamber of Deputies.

On 12 March 2020 the government declared a state of emergency in the entire national territory for a period of 30 days. This state of emergency was later prolonged on 9 April and again on 30 April, in both cases by a government resolution following prior approval of the Chamber of Deputies, as required by the CAS. At the beginning of May the government announced it was not going to ask for any further extension; the state of emergency thus ended on 17 May.

The constitutional framework of the state of emergency is brief; the relevant details are laid down in the Crisis Management Act (240/2000 Coll., ‘CMA’) which specifies the rights that can be limited by the executive in a state of emergency (Art. 5), including the freedom of movement, the right to free assembly, and the right to conduct business. All of these can only be restricted for a limited period of time and ‘to the extent unavoidably required to react to the situation’.

The most significant consequence of the state of emergency is the shift of powers in favour of the executive. Under ordinary circumstances, fundamental rights and freedoms may only be limited by an act of Parliament (Art. 4 of the Charter) but a state of emergency empowers the government alone to restrict rights and freedoms enumerated in the CMA. In line with Art. 6 of the CMA, the government is authorised to order measures, e.g. prohibit entry, stay and movement of people in specified places, or protect national borders. The most important limit is embedded in Art. 2 of the Constitution, pursuant to which ‘state authority may be asserted only in cases and within the bounds provided for by law and only in the manner prescribed by law’. Therefore, even in a state of emergency, the government cannot impose restrictions which are not foreseen by the CMA and cannot interfere with fundamental rights not enumerated in the CMA.

Next to the government acting pursuant to the CMA, other state authorities can also intervene in situations of an epidemic on the basis of another legal act, the Act on the Protection of Public Health (258/2000 Coll., ‘APPH’) which gives the Ministry of Health (and other state authorities) powers to adopt measures in order to prevent the spread of an epidemic. Although the legal order gives no indication as to the formal relationship between crisis measures adopted pursuant to the CMA and those adopted pursuant to the APPH, there are two crucial differences. First, while the government’s powers under the CMA are strictly linked to crisis situations, the powers of the Ministry under the APPH are not linked to an official declaration of a state of emergency. Second, the two regimes differ considerably when it comes to damages claims: while measures adopted pursuant to the APPH have to be unlawful to give rise to damages, the CMA promises in Art. 36 to compensate everyone who has suffered damage in connection with crisis measures adopted pursuant to this act. In this context, it should be pointed out that the government annulled some of its resolutions originally passed under the CMA and the Ministry consequently adopted the very same rules under the APPH, possibly hoping to avoid some of the damaging claims. However, the Municipal Court in Prague has ruled that in a state of emergency, interventions by the government should take precedence over interventions by the Ministry of Health:

‘The fact that the challenged measures were adopted by the Ministry of Health, and not by the government, amounts to a breach of the constitutional guarantees of division of powers. In the process of adopting crisis measures pursuant to the Crisis Management Act, the government is under a continuous supervision of the Chamber of Deputies. […] As a result of adopting the challenged measures by the Ministry of Health pursuant to the Act on the Protection of Public Health, such supervision by the Chamber of Deputies was excluded. The [Ministry] has therefore limited the constitutionally guaranteed power of the Chamber of Deputies.’ (para 152)

The quoted judgment gave the first signal that there is an important legal distinction between measures taken by the government and those taken by the Ministry of Health. Another indication was given by the Constitutional Court in its decision published a couple of days later.

3. The review by the Constitutional Court (or the lack thereof)

The government’s declaration of a state of emergency was challenged before the Constitutional Court, together with a number of crisis measures adopted by the government and by the Ministry of Health. The complaint was filed by an individual who claimed that the challenged measures violated her right to free movement guaranteed by Art. 14 of the Charter. She requested that the Constitutional Court annul the declaration of the state of emergency as well as the crisis measures.

In a rather controversial decision (Pl. ÚS 8/20), the Constitutional Court dismissed all the complainant’s claims for several procedural reasons. This was the pilot decision of the Constitutional Court concerning the COVID-19 situation. On the same day, the Court also dismissed a complaint challenging a resolution by which the government limited the activity of municipal councils (which were to meet only in inevitable cases, and their meetings were to be held online). When a municipal council member challenged this resolution, his complaint was dismissed for lack of standing.  Many more complaints have reached the Constitutional Court, four more were dismissed on 5 May, others are still pending.

Why is the pilot decision of the Constitutional Court controversial? It shows a major split of opinions – the ruling is supported by 8 of 15 judges, with 7 judges issuing dissenting or concurring opinions, offering notably different legal positions and thereby weakening the overall persuasiveness of the majority’s argumentation. In summary, the majority decided: a) that the Constitutional Court lacks competence to review the declaration of the state of emergency as such; and b) that the government’s resolutions can be directly challenged before the Constitutional Courts only by privileged applicants, while the measures adopted by the Ministry of Health can be challenged by individuals before administrative courts, not before the Constitutional Court.

a) the state of emergency is not subject to review (lack of competence)

The Constitutional Court has concluded that it lacks competence to review the declaration of a state of emergency for two reasons: first, the Constitution does not foresee any procedure by which such a declaration could be reviewed by courts; and second, such a declaration is an act of governing, i.e. a political act, not a legal act.

I do not consider the latter argument persuasive enough. The Slovak constitution, for example, also foresees a state of emergency which is declared by the government and which is political in its nature (Art. 119); yet, the constitutional court is authorised to review the constitutionality of such a declaration (Art. 129(6)). Therefore, the political nature of the declaration by itself does not suffice to exclude its judicial review. In combination with the lack of a review procedure, the argument seems somewhat stronger. Yet, the Court has taken two steps in its reasoning by which it undermined the conclusion on its lack of competence.

First, the Constitutional Court added a very controversial exception to the rule it had created:

The absence of judicial review of a declaration of a state of emergency is not absolute and it is conceivable that under some circumstances the Constitutional Court could (and should) assess, especially on the basis of a motion brought by a political minority, whether a state of emergency was duly declared, whether it had the intended constitutional effects, and decide on the legality or constitutionality of the ensuing implementing measures […]. The Constitutional Court could annul the act declaring a state of emergency if it were contrary to the fundamental principles of a democratic state governed by the rule of law and if it amounted to a change in the essential requirements of a democratic state governed by the rule of law. (para 27)

In other words, a declaration of the state of emergency cannot be reviewed by the Constitutional Court, but if such a declaration conflicts with the so-called material core of the Constitution (a concept similar to the eternity clause embedded in Art. 79(3) of the Grundgesetz) or with the state’s international obligations, the path to judicial review can open up. I do not consider this argument persuasive, but it is not the first time that the Constitutional Court has introduced a substantive exception to a procedural rule. In fact, a very similar idea was introduced in a case (Pl. ÚS 4/13) where the Court dismissed a challenge to the amnesty granted by president Václav Klaus: the Court stated that it lacked competence to review an amnesty decision but it reserved such a competence for future cases if an amnesty decision ever conflicts with the material core of the Constitution. The obvious problem is the lack of competence itself: if the Court truly lacks competence to review a certain act, how can it suddenly become competent in extreme cases?

Second, the Court engaged in a (very limited) review of constitutionality of the challenged declaration when it observed that the declaration had a formal flaw and proceeded to check whether that flaw amounted to unconstitutionality. Pursuant to Art. 6(1) of the CAS, when the government declares a state of emergency, it should at the same time

‘specify which rights prescribed in individual statutes shall, in conformity with the Charter, be restricted, and to what extent, and which duties shall be imposed, and to what extent’.

In the past, the government had always enumerated the rights in the same resolution by which it declared a state of emergency. Yet, in response to COVID-19, the government first declared a state of emergency (69/2020 Coll.) with a general reference to the rights enumerated in the CMA, and only several hours later it adopted five crisis measures in which it specified the individual restrictions. The majority of the Constitutional Court has concluded that although the steps of the government suffered from a formal shortcoming, they were not unconstitutional since ‘an excessively strict assessment of the formal requirements would belittle the severity and the exceptionality of the situation which had led to the declaration of the state of emergency’ (para 29). To me, that sounds like a review of constitutionality of the challenged declaration, namely of the process of its adoption, although the standard of review was admittedly very weak.

b) government resolutions can only be directly challenged by privileged applicants and measures of the Ministry are subject to review by administrative courts

As for the resolutions issued by the government pursuant to the CMA, the Court analysed their legal nature and concluded that the challenged measures should be classified as ‘other legal acts’. That means that although they are not ‘laws’ (i.e. their legal force is lesser than the legal force of acts of Parliament), they are nevertheless of general normative nature. Therefore, they cannot be directly (!) challenged by natural or legal persons but solely by privileged applicants such as the parliamentary opposition or the ombudsperson. Since the complainant has not challenged a concrete interference with her rights, her motion to annul the government’s resolutions cannot be considered by the Court. (Unlike the ECtHR, the Czech Constitutional Court is convinced that legal acts as such can never amount to an interference with fundamental rights.)

In contrast to government resolutions, measures issued by the Ministry of Health are of a different legal nature and, as a result, they have a different procedural status. According to the Constitutional Court, they take the form of ‘hybrid measures’ (Allgemeinverfügungen in German, opatření obecné povahy in Czech), i.e. a specific category of measures that are at the same time general in their application (like acts of Parliament) but individual in their subject-matter (addressing a specific issue, like administrative decisions). Such acts can be challenged before administrative courts on condition that the complainant has been personally affected by the challenged measure. The constitutional complaint was thus untimely, and the Constitutional Court can only deal with it once the complainant has exhausted all other available remedies in the administrative judiciary.

Surprisingly, the Court argued differently in relation to measures that had already been annulled by the executive branch. The Court concluded that since these measures were no longer in effect, they could not be reviewed at all. This was harshly criticised by some of the dissenting judges who emphasised that such a conclusion could lead to a ‘procedural trap’ if the Ministry intentionally replaced the challenged measures by new ones in order to preclude their judicial review. This is the most surprising resignation of the Court, since the legal order does not prevent the Constitutional Court from reviewing non-applicable legal acts (unlike administrative courts).

4. Legal issues arising from the current situation

The current situation has triggered a number of interesting legal problems which will have to be solved in the near future. Obviously, each of these is a problem of its own which would deserve more than just a quick sketch.

a) legality and proportionality of the adopted measures

The pilot ruling of the Constitutional Court has clarified the procedural aspects of reviewing crisis measures; yet, their substantive legality remains open to discussion. The Municipal Court in Prague has set out some basic rules for their substantive review, but many more cases are pending, and no measures have been annulled for substantive reasons (so far). That does not mean that the executive enjoys unlimited discretion. All crisis measures are subject to judicial review and their legality depends on an appropriate legal basis as well as on their proportionality.

While some of the crisis measures are unproblematic, others raise doubts. To mention a few examples, the complete ban on international travel could be problematic both from the perspective of its legal basis (does the Czech Republic even have competence to forbid its citizens to leave the country?) and its proportionality (is it necessary in a democratic society to completely ban entry and exit from a country if other countries allow travelling and impose a quarantine?), not to mention their potential conflict with EU law. Those who understand Czech can read Jan Wintr’s analyses of various measures on his webpage.

Another example which stirred public debate in the Czech Republic was the complete prohibition of fathers’ presence during childbirth due to protection of health of the medical personnel. After the ombudsman had infamously declared that the presence of fathers is merely a fad, not a subjective right, this topic was widely discussed by lawyers as well as by the general public and the Ministry of Health eventually lifted this restriction. There are some pending cases, however, brought by those whose rights have been restricted in the meantime.

b) discrepancy between the press conference and the written crisis measures

One blatant example of the utter regulatory confusion concerns the situation of cross-border commuters. Their situation has changed a number of times, always with a legal basis in some government resolution. However, the last change, announced during a press conference of the government, did not appear in any of the published crisis measures. This results in an absurd situation in which the government has announced a rule at a press conference and some persons follow this rule on the basis of its publicity; yet, as has been pointed out by an attorney, the rule itself does not appear in any of the published crisis measures. Similarly, the state has launched an application for smartphones (eRouška) which complies with the EU’s technical recommendations, yet, it completely lacks a proper legal basis or any regulatory framework whatsoever.

c) the uncertainty about future claims for damages against the state

One of the biggest legal issues are (and will be!) the future claims for damages brought against the state by those economically affected by the COVID-19 crisis. As mentioned above, while the Ministry’s acts passed pursuant to the APPH would have to be unlawful in order to trigger compensation mechanisms, the CMA promises compensation to everyone who has suffered damage as a result of any crisis measures, lawful or unlawful. Unsurprisingly, members of the government have already indicated that the state is not planning to compensate all the losses incurred by entrepreneurs in connection with the epidemic. The state will most probably attempt to argue these cases on lack of causation, claiming that the losses were incurred as a result of the epidemic, not of the crisis measures. This opens up an opportunity for interesting (and possibly absurd) counterfactual claims and it remains to be seen how the courts will tackle them.

d) the bigger picture: a European dimension?

A very sad circumstance of the COVID-19 crisis is that the Czech (legal) discourse seems to be estranged from the European reality. The Czech Republic has not derogated from its obligations pursuant to Art. 15 of the European Convention on Human Rights, nor under other international treaties, and almost nothing has been said on the European dimension of the crisis measures, on their (in)compatibility with EU law and/or the Convention. On the contrary, the political discourse has been shifting worryingly towards open declarations of protectionism and national sovereignty, arguing that the past two months have shown that Europe is not there when we need help, so we are better off on our own. It is not surprising that members of the right-wing nationalist party keep emphasising that any crisis measures should give preference to Czech workers, Czech entrepreneurs and Czech products. What is more worrying, though, is a similar rhetoric by the Prime minister, or the fact that the Chamber of Deputies is currently discussing a draft piece of legislation which would oblige supermarkets to stock 60 % of groceries produced by Czech producers, in order to boost sales of national agricultural products. (Although this was not a direct reaction to COVID-19, it has been used in recent discussions as an example of protectionism designed to help Czech actors overcome the crisis.)

In the context of the recent developments, it is hard to tell which of the current crises is the most dangerous for the liberal democracy which is becoming so fragile in our part of the world. With the end of the state of emergency, the previously upset balance of powers is gradually returning to normal, at least domestically. Still, many issues remain open and the legal, political, and economic consequences of the crisis are yet to be seen.

In her capacity as judicial law clerk at the Constitutional Court, the author was not involved in the drafting of the analysed decision.