CYIL vol. 12 (2021)

Tomáš Holčapek

CYIL 12 (2021)

3. Inferences and Context From the overview – admittedly very superficial – of selected case law, it is apparent that both the Constitutional Court and the administrative courts approached the Covid-19 problematic with understandable unease. The judges have been rather reluctant to insert themselves in the middle of debate on suitability of various measures aimed at countering the epidemic. They have resorted to several main ways how to deal with the challenges which were brought before them. Some cases were dismissed on procedural grounds, e.g. for lack of standing of the complainant. Another line was to quash the measures for lack of powers of their maker (e.g. the Ministry of Health), not precluding that a different authority (e.g. the Cabinet) may, in effect, reissue them. But after the executive branch learned to handle these aspects, the most prominent argument in legal challenges to Covid-19 restrictions started to be the insufficiency of reasoning for the various measures. When the Constitutional Court emphasised the need for proper justification in its judgment of 9 February 2021, it also looked for support to decisions from other countries with similar legal tradition. The court pointed out that the Austrian Constitutional Court (Verfassungsgerichtshof ) stated in its judgment of 10 December 2020 43 that the public authority in question (in that case, a ministry) had to document the information basis for the decision and how the weighing of various interests was carried out, although requirements for it should not be excessive. 44 The examples of Germany, Austria and Poland, all neighbouring countries of the Czech Republic, and also of the state of Bavaria in Germany, have shown that it is possible to provide reasons for regulation adopted by the executive branch. 45 The judges’ tendency to approach the cases on a rather narrow ground, especially in the beginning of the epidemic outbreak, seems perfectly understandable. Courts do not wish to be seen as an obstacle standing in the way of efficient fight against a dangerous threat. 46 At the same time, they do not want to give up their duty to safeguard individual rights and freedoms. When they quash a particular measure issued by the Cabinet or another public authority on an ultra vires basis, it is a solution with considerable advantages for the judiciary. On a purely legal foundation, which does not require much evaluation of the factual background, the courts can adjudicate a legal challenge and put some limits on potential excesses of the executive branch. At the same time, it means that a very similar measure could be reinstituted in a legally “more correct” way (e.g. by a different authority, or after new legislation is put in force by Parliament) without much actual change in substance. The judicial decision typically comes after at least some months, which means that it may be already outdated (and no longer relevant) and that for a period before the court handed down its judgment, the relevant measure had been in force and therefore had played its role in combating the epidemic threat. The second approach, i.e. quashing a restrictive measure for lack of proper reasoning, is somewhat less attractive. It still means that the court does not need to embark on a fact- 43 File no. V 436/2020, concerning restrictive measures in schools. 44 Ibid., p. 56, paragraph 2.2.5. 45 WINTR, Jan Neodůvodněná krizová opatření vlády odporují principům demokratického právního státu [ Cabinet’s Crisis Measures Lacking Reasons Contravene the Principles of Democratic Rule-of-Law State ]. Právo a krize. [online]. Available at: https://pravoakrize.net/neoduvodnena-krizova-opatreni-vlady-odporuji-principum- demokratickeho-pravniho-statu/ [2021-08-31]. 46 Cf. the Supreme Administrative Court’s judgment quoted above, explaining it very openly.

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