CYIL vol. 12 (2021)

Birutė Pranevičienė – Violeta Vasiliauskienė – Harald Scheu CYIL 12 (2021) governed by the rule of law. 19 But such conflict did not occur in relation to the government resolution of 12 March 2020. As for government measures adopted under the Crisis Act, the Constitutional Court found that only a limited number of privileged complainants have locus standi in procedures concerning their legality, such as a group of 25 deputies or 10 senators of the Parliament. On the contrary, individuals may challenge extraordinary measures adopted by the Ministry of Health under the Public Health Act if they take the form of measures of a general nature. However, such claims shall be raised before the competent administrative courts and not before the Constitutional Court. 20 On 12 May 2020, the Constitutional Court used the same arguments to reject another individual complaint challenging the relevant government resolutions and the measures of the Ministry of Health. 21 In a decision of 5 May 2020, 22 the Constitutional Court dealt with an individual complaint concerning the prohibition to leave the country. The complainant argued that, after a lot of hard work during the winter, he intended to travel abroad for the purpose of holidays in early April. According to the complainant, for the first time in the history of the free Czech state, citizens were forbidden to leave their country. Therefore, he found that the executive cannot be left without control in a situation when disproportionately harsh measures threatening the very essence of democracy and the rule of law are being adopted. The Constitutional Court reached at the conclusion that the complainant could not challenge the legality of the government measures without showing an individual decision or another interference by a public authority in his constitutionally guaranteed fundamental rights. One of the judges, Kateřina Šimačková, added a very interesting dissenting opinion pointing at the importance of Article 14 of the Charter of Fundamental Rights and Freedoms for the Czech constitutional order. According to Šimáčková, there are two fundamental constitutional provisions reflecting historical experiences with the former communist regime, namely Article 12 of the Constitution saying that no persons may be deprived of their citizenship against their will and Article 14 of the Charter of Fundamental Rights and Freedoms providing everyone with the right to freely to leave the country. Therefore, she did not agree with the conclusion of the majority that a general measure banning leaving the country, taken alone, can never, as such, be an interference with an individual’s fundamental rights. Comparing today´s situation with the experience from thirty-five years ago, Šimáčková made the cynical remark that at that time the individual interference would be a shot in the back at the border according to the then valid border guard instructions. According to Šimáčková, leaving the country is not just about holiday, but mainly about one of the few ways to get freedom from the government, which an individual perceives as unacceptable or dangerous for him. By the mid of June 2020, the Constitutional Court had rejected or postponed more than 70 complaints against anti-COVIDmeasures taken by the government or theMinistry ofHealth. 23 19 Vikarská, Zuzana: Czechs and Balances – If the Epidemiological Situation Allows…, VerfBlog, 2020/5/20, https://verfassungsblog.de/czechs-and-balances-if-the-epidemiological-situation-allows. 20 For more details, see Sova, A. Přezkum opatření přijatých v době nouzového stavu [Review measures taken in at the time emergency situation]. Správní právo , 5/2020, pp. 298–312. 21 Pl. ÚS 11/20. 22 Pl. ÚS 10/20. 23 For an overview of judgments in which Czech court anulled anti-COVID measures, see https://advokatnidenik. cz/2021/04/23/za-uplynulych-deset-mesicu-soudy-zrusily-nekolik-protiepidemickych-opatreni.

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