CYIL vol. 12 (2021)
Birutė Pranevičienė – Violeta Vasiliauskienė – Harald Scheu CYIL 12 (2021) Doc., 2006). He has received numerous fellowships (Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht in Heidelberg, University of Bern, European University Institute in Florence, University of Zürich, University of Vienna). From 1997 until 2006 he lectured at the Department of International Law and since 2006 at the Department of European Law of the Law Faculty of Charles University in Prague. He teaches and conducts research in the fields of International and European Law and International Human Rights Law. Since 2013 member of the Council of the Government of the Czech Republic for Human Rights, since 2014 member of the Czech Government’s Legislative Council, from 2015 until 2020 member of the Management Board of the European Union Agency for Fundamental Rights, since 2020 member of the Advisory Committee on the Framework Convention for the Protection of National Minorities. Introduction In the foregoing contribution we will analyse relevant legal measures restricting the freedom of movement in Lithuania and the Czech Republic which have been adopted during the fight against the COVID-19 pandemic. The article will reveal the legal bases in legislative acts and their changes, and point at relevant executive measures and judicial decisions adopted during this pandemic situation in both countries. As the fight against a global pandemic problem, in principle, requires swift action, there has been limited space for lengthy debates on human rights restrictions. Whereas the executive branch has proved its ability to act quite quickly under time pressure, the legislative and the judicial branches rather lagged behind and were limited in their capacity to thoroughly evaluate the appropriateness of those executive measures. The choice of the two countries for the case study is based on the knowledge of the authors of each country’s situation respectively and, furthermore, on the relatively similar size and history of the development of the both countries. Exceptional situations may put the legal order to an enormous stress test. From the perspective of legal analysis, it is quite difficult to deal with legal problems linked to an emergency situation which is still ongoing. Executive measures have been changing very quickly and, in reaction to the COVID-19 pandemic, restrictions on various human rights have been very significant in all Member States of the EU. Faced with an unprecedented global pandemic, it has become obvious that legitimate decision-making processes, to a large degree, are dependent on conditions which we understand as standard or normal. Indeed, factual normality is not only a presupposition for the application of general legal norms, but, as has been pointed out by Carl Schmitt, also a condition for their validity. 1 Nevertheless, legal orders also cover the exceptions to these norms. In modern legal orders, we find relevant provisions governing different states of emergency and crisis. According to Josef Isensee, even “when the emergency regime fails to do its thing, this does not necessarily hail the advent of a legal vacuum”. 2
1 Schmitt, C. Politische Theologie (2nd edition), München/Leipzig, 1934, pp. 19-20. 2 Isensee, J. On the Validity of Law with Respect to the Exception Case, In: Jinek, J., Kollert, L. (eds.) Emergency Powers. Rule of Law and the State of Exception . Nomos, 2020 (11–28), p. 12.
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