On November 8, 2023, the Constitutional Court published its judgment in case no. stamp IV. ÚS 1642/22according to which it is valid that mextraordinary measures issued under the Act on the Protection of Public Health and the Pandemic Act have the nature of measures of a general nature. The court evaluates the sufficiency of the treatment of a certain question mainly on the basis of the information provided in the justification. The scope and quality of the justification for the extraordinary measure may vary with regard to the urgency and predictability of the development of the epidemiological situation. However, the court cannot derive justification from other extraordinary measures, even though they contain a similar provision.
During the state of pandemic emergency, the Ministry of Health issued an extraordinary measure limiting the personal presence of pupils in schools. It was made possible for pupils who underwent an antigen test twice a week for the presence of the antigen of the SARS-CoV-2 virus that causes the disease covid-19 and showed a negative result. Pupils who had laboratory confirmation that they had experienced the disease in the past 90 days and those who had undergone vaccination were also exempted from the obligation of testing.
The applicants, who attended gymnasium, elementary school and kindergarten at the relevant time, demanded with two motions that the Supreme Administrative Court annul the extraordinary measure. They claimed that they had experienced covid-19 and that according to laboratory tests they had enough antibodies. They saw the illegality of the extraordinary measure in the fact that it did not provide for an exemption from the obligation to test for persons who have experienced the disease and demonstrate a sufficient level of antibodies.
The Supreme Administrative Court rejected the applicants’ proposals by resolution as clearly unfounded. He stated that the complainants have not been laboratory-confirmed to have experienced covid-19 disease and basically demand that another exception be established in the measure. However, the Supreme Administrative Court does not have the authority to supplement the measure.
In the case of the applicants, the Constitutional Court has already intervened once with a decision dated 16 November 2021, file no. stamp II. ÚS 2385/21, which canceled both resolutions (press release available HERE). At that time, he reproached the Supreme Administrative Court for not substantively dealing with the objection that the regulation contained in the challenged extraordinary measure is insufficient. In further proceedings, the Supreme Administrative Court again rejected the applicants’ proposals as clearly unfounded. He considered the modification of exceptions from the obligation to test pupils in schools established in the extraordinary measure to be sufficient.
The Fourth Chamber of the Constitutional Court (reporting judge JUDr. Josef Baxa) once again annulled the Supreme Administrative Court’s resolution of April 21, 2022 No. 5 Ao 13/2021-71 and No. 5 Ao 6/2021-68. The court violated the constitutionally guaranteed fundamental right of the applicants to judicial protection. According to the Constitutional Court, the Supreme Administrative Court erred by considering the justification of the extraordinary measure to be sufficient, even though it only paraphrases its text itself and does not comment on the scientific knowledge of the defined exceptions. At the same time, the Ministry of Health did not convincingly supplement the justification even in the subsequent court proceedings on proposals to cancel the emergency measure. The Constitutional Court disagreed with the conclusion of the Supreme Administrative Court that the measure corresponded to the time when it was adopted. The extraordinary measure did not contain any justification for the exemptions from testing pupils in schools, and the Supreme Administrative Court did not comply with the constitutional requirement for its review, if it nevertheless found it legal. At the same time, he did not respect his own decision-making practice.
Extraordinary measures issued under the Act on the Protection of Public Health and the Pandemic Act have the nature of measures of a general nature. The court evaluates the sufficiency of the treatment of a certain question mainly on the basis of the information provided in the justification. The scope and quality of the justification for the extraordinary measure may vary with regard to the urgency and predictability of the development of the epidemiological situation. However, the court cannot derive justification from other extraordinary measures, even though they contain a similar provision.
The finding of the Constitutional Court no. stamp IV. ÚS 1642/22 is available HERE.
Source: Constitutional Court
Illustration photo: canva.com