CYIL vol. 12 (2021)

CYIL 12 (2021) COVID-19 RESTRICTIONS OF FREEDOM OF MOVEMENT IN THE CR AND LITHUANIAs … In this context we have to draw a distinction between the concept of freedom of movement which is part of international human rights law and the concept of free movement as it has been laid down by EU law. Although the EU Charter of Fundamental Rights includes the freedom of movement and of residence among “citizen´s rights” (Article 45), this freedom, originally, is not based on the notion of general human rights but on the concept of economic freedoms under EU law. Therefore, the personal and material scope of Article 45 of the Charter is different from the above cited human rights norms. Specific rules concerning the free movement of EU citizens are contained in Directive 2004/38/EC. For the purpose of this study, we will not deal in depth with the EU law dimension of restrictions on freedom of movement. As far as the renewal of controls at the internal Schengen borders is concerned, they will be partly addressed with due regard to the external dimension of freedom of movement, as described above. 2.1 The legislative basis for the restrictions on the right of movement Besides Article 43 of the Constitution of the Czech Republic which deals with the declaration of a state of war, the Constitutional Act No. 110/1998 Sb., on the Security of the Czech Republic (Security Act) provides the constitutional framework for emergency measures. According to Article 2 of the Security Act a state of emergency, a state of national threat or a state of war may be declared if, among other things, lives and health are threatened to a significant extent. The choice of one of these extraordinary states depends on the intensity, the territorial extent and the character of the situation. As for the declaration of a state of emergency, Articles 5 and 6 of the Security Act lay down the conditions. The government may declare a state of emergency in cases of natural catastrophe, ecological or industrial accident, or other danger which to a significant extent threatens life, health, property, the domestic order or security. A state of emergency may be declared for a period of no more than 30 days. This period may be extended only with the prior consent of the Chamber of Deputies which is the lower chamber of the Czech Parliament. According to Article 6 para. 1 of the Security Act, a state of emergency may be declared only for the stated reasons, for a fixed period, and in relation to a defined territory. The government must specify which rights prescribed in individual statutes shall, in conformity with the Charter of Fundamental Rights and Basic Freedoms, be restricted and which duties shall be imposed. It is quite obvious that in reaction to the COVID-19 outbreak the declaration of a state of emergency in the Czech Republic was the only rational option under the Security Act because the declaration of a state of national threat or state of war would require a direct threat to the state´s sovereignty, territorial integrity or democratic foundations, respectively an (external) attack against the state. Unlike a state of emergency, a state of national threat or a state of war may be declared only by the Parliament. Whereas the Security Act governs only the basic conditions for a state of emergency, a more detailed regulation may be found in the Crisis Act No. 240/2000 Sb. With a reference to a state of emergency declared under the Security Act, Section 5 of the Crisis Act, for the period and to the extent unavoidably required, allows for the limitation of specific rights 2. Anti-epidemic measures in the Czech Republic

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