CYIL vol. 12 (2021)

Tomáš Holčapek CYIL 12 (2021) so the court’s job was quite easy here. The court expressly mentioned that although the very similar Cabinet’s measure was held to be a special sort of legislation, the explicit designation of the Ministry’s measures as “measures of general nature” by the law took precedence. 17 Nevertheless, at this point the complaint ran into another obstacle. Because the Ministry’s measure had that particular characteristic, the complainant should have attacked it before administrative courts. 18 She did not, and so her constitutional complaint was rejected in full. The court’s decision was immediately criticised by several dissenting opinions. Apart from many legal details and technicalities, one of the lines of criticism emphasised that the court’s majority was approving a trap of a sort. When the complaint was denied with respect to those ministerial measures which had already been abolished (replaced by subsequent measures), it created an opportunity for the Ministry to avoid judicial control simply by frequently replacing the measures by new ones with similar content. 19 According to this dissent, the court should have considered the substance of the ministerial measures even though they were no longer in effect, because in the extraordinary conditions it was particularly important to subject the executive branch’s measures which restrict fundamental rights and freedoms to effective judicial control. 20 1.3 Re-evaluation In its first ruling Constitutional Court held that measures of the Ministry of Health could be challenged before administrative courts, and that is what indeed happened. A discussion in that respect is offered below in part 2. But that was not the Constitutional Court’s final word on the matter. It had another chance to reconsider its position on the basis of a constitutional complaint raised not by a private individual, but rather a group of 63 members of the Czech Parliament’s Senate. 21 Under the Czech constitutional system, such a group may attack unconstitutionality of legislation without it being necessary to challenge a particular lower court’s decision, thus overcoming the issue of standing mentioned above. The complaint was directed against a set of decision adopted, once again, by the Cabinet (not the Ministry of Health). They contained prolongation of the state of emergency and serious restrictions on retail and services businesses, prohibiting many shops to operate at all. Once again, the Constitutional Court dismissed the complaint in larger part due to the fact that some of the Cabinet’s decisions had already been abolished or replaced. 22 Nevertheless, one of the crisis measures was still in force when the court handed down its decision. The complaint challenged many aspects of the crisis measure, including also the process of its adoption and its contents. The court held that the Cabinet’s measure, empowered in principle by Article 6 of the CRSCA, interfered with the fundamental right to carry out 17 Ibid., paragraphs 53 to 54. 18 In accordance with sections 101a and following of the act no. 150/2002 Coll., Code of Administrative Justice, as amended. 19 Ruling of the Constitutional Court of 22 April 2020, file no. Pl. ÚS 8/20, dissenting opinion of Kateřina Šimáčková, Vojtěch Šimíček and David Uhlíř, paragraph 10. This worry turned out later to be well-founded, cf. e.g. ruling of the Constitutional Court of 16 June 2020, file no. Pl. ÚS 20/20. 20 Ruling of the Constitutional Court of 22 April 2020, file no. Pl. ÚS 8/20, dissenting opinion of Kateřina Šimáčková, Vojtěch Šimíček and David Uhlíř, paragraphs 17 to 28. 21 In the meantime, numerous other constitutional complaints had been dismissed on procedural grounds based on the first ruling. 22 Judgment of the Constitutional Court of 9 February 2021, file no. Pl. ÚS 106/20, paragraph 40.

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