CYIL vol. 12 (2021)

Tomáš Holčapek CYIL 12 (2021) measures were diverse and changed a lot as time went on. A significant part of them focused on limiting free movement (travelling, visiting other people etc.), larger gatherings and commerce (shops, restaurants, entertainment etc.). As the restrictions were instituted by the executive branch with aim to protect public health, their review fell within the purview of constitutional and administrative law. Institutionally, this meant that it was mostly administrative courts (regional courts, particularly the Municipal Court in Prague, and the Supreme Administrative Court) and the Constitutional Court. 1.1 State of Emergency and Restrictive Measures One of the initial legal steps of the government was the Cabinet’s decision to introduce a state of emergency under the Czech Republic Security Constitutional Act 2 (the “CRSCA”) by its decision adopted on 12 March 2020. According to Article 5 of the CRSCA, the Cabinet may declare the state of emergency in case of natural disasters, environmental or industrial accidents or other dangers which considerably threaten lives, health, property, internal order or security. The Cabinet must state reasons and explicitly determine for how long and for which area the state of emergency applies. 3 The maximum duration of 30 days may only be prolonged with consent of the Chamber of Deputies. 4 Together with the declaration of state of emergency, the Cabinet must determine which rights will be restricted and to what extent, and which obligations will be instituted. 5 Possible measures are described in much more detail in an ordinary (i.e. not constitutional-level) statute, the Crisis Management Act. 6 They may include e.g. restrictions of personal inviolability during evacuations, of right of ownership, freedom of movement and assembly in affected areas or carrying out of business activities. 7 The Cabinet acted in line with these principles and accompanied the declaration of state of emergency with a set of restrictive measures (so-called “crisis measures”), prohibiting, among other things, travelling, albeit with various exceptions. However, a few days later, the government’s approach changed in the sense that the Cabinet would no longer adopt crisis measures by its own decision, but restrictions would be stipulated by measures adopted by the Ministry of Health 8 on a different legislative foundation, the Public Health Protection Act. 9 The reasons for this switch can be debatable, but a material role in it might have been played by worries about potential compensation. According to the Crisis Management Act, persons affected by the adopted measures may claim compensation of damage caused by such measures against the state 10 , but there is no such explicit rule in the Public Health Protection Act. For the purposes of this paper, it is not necessary to discuss whether this legal idea really works or not. After all, during almost two years of the epidemic’s duration so far the country has already spent many billions on various reimbursements and support programmes without substantial litigation about the compensation duty. Nevertheless, the change in tack meant that when the Czech Constitutional Court had its first real opportunity to review the

2 I.e. Constitutional Act no. 110/1998 Coll., on Security of the Czech Republic, as amended. 3 Article 6(1) of the CRSCA.

4 Ibid. 5 Ibid. 6 Act no. 240/2000 Coll., on Crisis Management, as amended. 7 Section 5 of the Crisis Management Act. 8 The first one was issued on 23 March 2020. 9 Act no. 258/2000 Coll., on Protection of Public Health, as amended. 10 Section 36 of the Crisis Management Act.

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