CYIL vol. 12 (2021)

CYIL 12 (2021) JUDICIAL OVERSIGHT IN TIMES OF A PANDEMIC findin mission, because it usually draws no conclusions whether a particular restriction was truly necessary, whether it was capable to efficiently contain the epidemic or whether it was the best option in comparison with any alternatives. But when all what courts do is to repeatedly send the issue back to the executive branch for better justification, it may not lead to a very productive outcome. The courts typically do not say how the reasoning for a particular measure should look like, they rather tend to state that it was just not enough. In such situation it may then be easier for the executive authorities, instead of sincerely attempting to improve the justification, to simply repeat the measure, perhaps with cosmetic changes, and wait for a new challenge. This leads back to the tactic described above, i.e. that before the court has another opportunity to strike the measure down, it may no longer be relevant, and when it finally does so, there is nothing to prevent the public authority from doing the same for the third or fourth time. Arguably, the reason why this tactic of waiting and repetition may be resorted to by the government is because the crucial factual issues are not actually resolved. Neither the Constitutional Court nor the administrative courts have much evidence at their disposal on which they could base their decisions. Theoretically, the courts could appoint experts to offer them some guidance on these extremely difficult issues. But such approach would be very risky. During turbulent times of a global pandemic it is practically impossible to find an expert whose opinion would not be immediately contradicted by an equally reputable opponent. Certainly, there may be some basic consensus on elementary questions, such as that Covid-19 is a contagious viral disease. But when it comes to details such as whether pupils in schools should obligatorily wear face masks during their classes, such consensus is much harder to find. Furthermore, what makes the fact-finding in this respect even more unattractive is the clear risk of politicisation. If a court makes actual finding to the effect that a particular measure is effective (or ineffective) in fighting Covid-19, it will influence the country’s response to the epidemic. But directing a national response to an epidemic is an issue for which governments have – and probably should have – political responsibility. In this way courts could become openly political actors and start to bear responsibility for the effectiveness of a country’s fight against the epidemic. Conclusion Are the courts able to properly protect individual rights from excessive interference by public authorities at a time of unavailability of essential information about nature and severity of the threat and suitability of countermeasure? From the case law presented above, some general observations can be made. The courts’ decisions in such a complicated situation tend to avoid the core of the problem. Judges are able to operate from a predominately legalistic viewpoint and quash restrictive measures on the ground of lack of powers or lack of reasoning. Therefore, to some extent they protect individual rights and their decisions may e.g. give ground for subsequent compensation. But the impact is limited. In this sort of cases the courts typically do not possess enough information to decide on the optimal response to the epidemic threat, and are naturally reluctant to attempt such adjudication. As a result, many practically important questions (e.g. should face masks be mandated in such-and-such situation?) are left unanswered, or in effect relegated back to the executive branch. And the potential for compensation may be doubtful too. When a measure which affected the whole

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