CYIL vol. 12 (2021)

CYIL 12 (2021) THE PANDEMIC AND THE LAW: CHALLENGES OF COVID-19 TO THE ETHICAL … at all costs, their containment policies would be different. The lockdowns as well as particular anti-epidemic measures would be harsher, longer, and more strictly enforced. There are certain legal, especially constitutional, limits that could not have been crossed by the states. For example, most countries could have not introduced draconic punishments for people who do not comply with epidemiological measures. Nevertheless, democracies have as a rule tried to weigh the benefits of their containment policies against their risks and negative consequences. In this way, they limited themselves even when they arguably could have applied stricter measures from the constitutional perspective. For example, economies were not completely and totally shut down for very long periods of time. It is often not prima facie clear that such complex lockdowns would be unconstitutional. However, it was assumed that in the longer term, they could lead to even more suffering than they would prevent. Similar considerations are undoubtedly consequentialist in their nature, and as they are focused on the public good, they can arguably be understood as utilitarian. Furthermore, even where the courts find certain measures unconstitutional, they sometimes do so by using consequentialist arguments. 27 In some cases, there is a procedural problem such as insufficient justification in the explanatory report to the legal regulation. Then, the court’s intervention can be seen as rooted in a rather deontological requirement of sound justification. However, material unconstitutionality will usually be evaluated based on a certain kind of test of proportionality. This is both true for the European Court of Human Rights 28 and many national courts (including the Constitutional Court of the Czech Republic). 29 Various kinds of the tests of proportionality work with the ability of interference to basic rights to fulfil its legitimate aim while the benefits are weighed against the caused harm. 30 The test is, therefore, inherently oriented on consequences. It might be even perceived as an instrument that introduces consequentialism to human rights protection since there are only very few human rights (especially the above-mentioned right not to be tortured) that are non derogable and thus have a purely deontological character. 27 For a closer analysis of the “pandemic” case law, see HOLČAPEK, Tomáš. Judicial Oversight in Times of a Pandemic. In this issue of the Czech Yearbook of Public and Private International Law, 2021 . 28 For a general overview of the test of proportionality before the European Court of Human Rights, see for example TRYKHLIB, Kristina. The principle of proportionality in the jurisprudence of the European Court of Human Rights. EU and Comparative Law Issues Series (ECLIC). (2020, Vol. 4), pp. 128–154. doi: https://doi. org/10.25234/eclic/11899. 29 See for example the decision of the Constitutional Court of the Czech Republic of 9 February 2021, file no. Pl. ÚS 106/20. 30 See for example TRYKHLIB, Kristina. The principle of proportionality in the jurisprudence of the European Court of Human Rights. EU and Comparative Law Issues Series (ECLIC). (2020, Vol. 4), pp. 128-154. doi: https://doi.org/10.25234/eclic/11899. For the test of proportionality as it is used before the Constitutional Court of the Czech Republic, see (in the Czech language) WAGNEROVÁ, Eliška. Úvod. [Introduction.] In WAGNEROVÁ, Eliška, ŠIMÍČEK, Vojtěch, LANGÁŠEK, Tomáš, POSPÍŠIL, Ivo (eds.). Listina základních práv a svobod. Komentář. [Charter of Fundamental Rights and Freedoms. The Commentary.] Wolters Kluwer, Praha 2012, pp. 26–28 or (in the English language) ŠUSTEK, Petr. Non-Compliant Patients and the Restrictions of their Exercise of the Right to Health. In ŠTURMA, Pavel, LIPOVSKÝ, Milan (eds.). 70 th Anniversary of the Universal Declaration of Human Rights. rw&w Science & New Media Passau-Berlin-Prague, Waldkirchen 2019, p. 132.

377