CYIL vol. 12 (2021)

CYIL 12 (2021) JUDICIAL OVERSIGHT IN TIMES OF A PANDEMIC Cabinet’s actions, the Cabinet’s crisis measures were no longer in legal force, having been effectively replaced by the Ministry of Health’s measures. 1.2 First Analysis by Constitutional Court The first relevant decision of the Constitutional Court came in its ruling of 22 April 2020. 11 The complaint before the court attacked the declaration of state of emergency and crisis measures of the Cabinet, together with a set of three initial measures issued by the Ministry. The Constitutional Court began its analysis by considering whether the Cabinet’s decision to declare the state of emergency may be subject to judicial review. It came to the conclusion that it was not. The court held that such decision was no administrative measure. Neither did it fall within the special category of “measures of general nature” 12 , which are administrative acts with a specific object but generally defined addressees 13 . In addition, the declaration could not be considered as a sort of legislation, as in itself it had no normative content (the crisis measures were adopted separately, although at the same time). The court ruled that declaring the state of emergency was an act of governance which usually cannot be reviewed judicially. Control over it is primarily exercised politically, by the Chamber of Deputies, although in certain, exceptional circumstances the courts might also intervene. 14 As the declaration was accompanied by the Cabinet’s crisis measures, the Constitutional Court then turned to legal evaluation in their regard. The court referred to its earlier decisions 15 , in which it had held that measures of general nature required fulfilment of the two conditions set out above, i.e. a specific object and general definition of addressees. However, the crisis measures of the Cabinet did not materially fulfil those conditions. They concerned the whole territory of the country, were not limited to precisely designated things (objects) and constituted a general, area-wide restriction of movement of persons. Therefore, the court held that the regulation’s object was not concrete and the crises measures were no “measures of general nature”. 16 Because of the general applicability and very broad scope of addressees the crisis measures were then held to amount to legislation. But the complainant in the case did not have standing to attack unconstitutionality of legislation, as she would only be allowed to attack it in connection with a constitutional complaint e.g. against a lower court’s decision which would be based on such legislation. The complaint failed not only with respect to the declaration of state of emergency and Cabinet’s crisis measures, but also the Ministry of Health’s measures. The Constitutional Court held that because two of three ministerial measures were already replaced by different (later) measures, i.e. they were no longer in effect, they could not be reviewed by the court. The sole measure which was held judicially reviewable was considered to be a “measure of general nature”, as it had been issued by the Ministry under the Public Health Protection Act. Its section 94a stated explicitly that this type of measure fell within the said category, 11 Ruling of the Constitutional Court of 22 April 2020, file no. Pl. ÚS 8/20. 12 Inspired by the concept of an Allgemeinverfügung in German administrative law, especially under section 35 of the German Verwaltungsverfahrensgesetz , but not exactly the same. In Czech law they are regulated by sections 171 through 174 of the act no. 500/2004 Coll., the Administrative Procedure Code, as amended. 13 As opposed to individual administrative acts, e.g. a decision of a public authority on an individual person’s application. 14 Ruling of the Constitutional Court of 22 April 2020, file no. Pl. ÚS 8/20, paragraphs 24 to 27. 15 Especially its judgments of 19 November 2008, file no. Pl. ÚS 14/07, of 29 March 2010, file no. IV. ÚS 2087/07, and of 31 January 2012, file no. Pl. ÚS 19/11. 16 Ruling of the Constitutional Court of 22 April 2020, file no. Pl. ÚS 8/20, paragraph 40.

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