CYIL vol. 12 (2021)

CYIL 12 (2021) JUDICIAL OVERSIGHT IN TIMES OF A PANDEMIC been able to issue reviewable decisions with much better reasoning than in the beginning. 36 The court also pointed out a complete lack of reasons for all those exceptions which the measure had set out. 37 Apparently, after some initial hesitation courts now demanded more from the executive branch and began to quash restrictive measures more willingly. However, the reaction of the Cabinet and the Ministry of Health was, broadly speaking, to issue new measures replacing those quashed without much substantive difference. Some details were modified; after all, the epidemiological situation was continuously changing. But there was no qualitative break with the previous practice. It seems that the executive branch was simply unable to come up with a more thorough analysis. That is probably not too surprising, given that there was no perfect consensus on optimal Covid-19 prevention measures throughout the world. As a result, the trend continued; more and more measures were quashed, with lack of proper reasoning as one of the decisive grounds or even the most important one. 38 On 26 February 2021, Czech Parliament adopted a special statute concerning extraordinary measures for the Covid-19 epidemic (colloquially known as the “Pandemic Act”). 39 The purpose of the statute was to broaden the powers of the Ministry of Health and local public health protection authorities and to allow them to institute various restrictions without need to resort to state of emergency and without the perceived problem of insufficient legal basis in the Public Health Protection Act. As regards judicial review, measures of countrywide application were made subject to a sole-instance review by the Supreme Administrative Court, skipping the level of regional courts (such as the Municipal Court in Prague) and centralising the judicial proceedings. It turned out that moving the review to a different venue did not lead to different results. The Supreme Administrative Court’s approach to measures which were challenged before it after the Pandemic Act took effect was notably similar to the previous trend. The court found numerous measures to be in contravention of the law, often on one of two main grounds (or both of them). First, the Pandemic Act provides authority for various restrictions (e.g. of public transport, shops, services, university education etc.), but not outright prohibitions (complete prohibition is only allowed e.g. in case of visits to hospitals and social services institutions); therefore, some measures were held to exceed this limited power. 40 The other main ground was, again, lack of proper reasoning. 41 The court felt that it was necessary to react to criticism that it was putting a too heavy burden on the executive branch: “Fight against the epidemic contains a factor of uncertainty and when the court speaks about ‘acceptable form’ of reasoning, it means also concise, but comprehensible and convincing reasoning. (…) The Supreme Administrative Court does not stand in the way of the fight against the epidemic, it requires the [authorities] ‘only’ to fulfil the requirements of the Pandemic Act, i.e. good reasoning for the adopted measures .” 42

36 Ibid., paragraph 149. 37 Ibid., paragraph 153.

38 Cf. e.g. judgment of the Municipal Court in Prague of 31 March 2021, file no. 18 A 16/2021. 39 Act no. 94/2021 Coll., on Extraordinary Measures during Epidemic of COVID-19 Disease. 40 Cf. judgments of the Supreme Administrative Court of 2 June 2021, file no. 9 Ao 3/2021, and 10 Ao 2/2021. 41 Cf. judgment of the Supreme Administrative Court of 9 June 2021, file no. 8 Ao 15/2021. 42 Ibid., paragraph 61.

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