Headnotes:
The restriction of business or other economic activity under Section 2(2)(b) of the Pandemic Act stands up to the test of proportionality of interference with the essence and purpose of the freedom of enterprise guaranteed under Article 26(1) of the Charter of Fundamental Rights and Freedoms, since the protection of life and health (Articles 6 and 31 of the Charter) must be regarded as a justifying reason and a legitimate aim.
Summary:
I. A group of Members of Parliament proposed the repeal of certain provisions of the Pandemic Act, arguing, in particular, that the rules of the legislative process had been violated during the discussion and adoption of the amendment to the Pandemic Act, since the amendment was adopted in a state of legislative emergency, for which, in its opinion, the conditions had not been met, and that procedural defects had been committed during its adoption which rendered it unconstitutional. The applicant also sought the annulment of Section 8a of the Pandemic Act, which, in her view, infringes personal freedom and freedom of movement and residence. Until now, the legal provisions had accepted that, when ordering the quarantine of a person suspected of being infected or the isolation of an infected person, it was a decision of a public authority subject to the Administrative Procedure Act. The Pandemic Act modified the possibility of restricting fundamental human rights by means of remote communication – short text messages. The applicant has also challenged Section 2(2)(b) of the Pandemic Act, which introduced a number of new restrictions and obligations for entrepreneurs, which, in her view, also infringes the right of establishment guaranteed by Article 26 of the Charter.
II. The Constitutional Court first examined whether there was a legitimate reason for declaring a state of legislative emergency and the subsequent expedited consideration of the amendment, which would outweigh the interest in maintaining a proper legislative procedure. The Court noted that at the time of the submission of the bill, the Government had relied on expert evidence and publicly available data which showed, inter alia, that the number of confirmed cases of COVID-19 had been rising from 20 January 2022 to 18 February 2022 at the time the bill was being debated, with the dominant variant of the virus being transmitted with an order of magnitude greater potency than earlier variants. Thus, the reasons advanced by the Government are not fictitious or arbitrary, they are based on the specific circumstances alleged and are reviewable. At the same time, they imply the need to respond immediately to the situation of the ongoing pandemic as an objective exceptional circumstance threatening the health and life of a large part of the population, the gravity of which is covered by the Rules of Procedure of the Chamber of Deputies and the Constitutional Act on the Security of the Czech Republic. The Constitutional Court concluded that the state of legislative emergency in this case was not justified by mere disagreement of the opposition parties and used as an instrument to enforce the will of the parliamentary majority, the purpose of which would be to circumvent the proper legislative procedure and the guarantees associated with it.
The Constitutional Court then subjected the contested provision of Section 2(2)(b) of the Pandemic Act itself - in view of the conflict between the right to engage in business and other economic activity and the right to health protection - to the so-called proportionality test, in which the provision passed. The Constitutional Court considers the provision of an effective anti-epidemic tool to minimise the risk of the transmission of COVID-19 in the population and its impact on public health through measures restricting the conduct of business or other activities in places where there is a higher concentration of people at any one time to be a legitimate aim. Predicting the COVID 19 pandemic is almost impossible given its dynamics. Therefore, there is an interest in having all available tools in place to set up effective and targeted anti-epidemic measures. In view of the existence of sufficient safeguards for the restriction of constitutionally guaranteed rights and freedoms - in particular as regards the possibility of judicial review of emergency measures - the Constitutional Court did not consider the restriction of fundamental rights and freedoms caused by the contested provision to be disproportionate.
When it comes to the alleged interference with the freedom of movement and the right to liberty, the obligation of natural persons to undergo, inter alia, isolation or quarantine measures stems at the statutory level from the Public Health Protection Act. The contested Section 8a of the Pandemic Act regulates the manner in which the order for isolation or quarantine measures may be notified, i.e. orally or in writing, including by means of remote communication (e.g. by SMS or telephone). The effects of the contested provision consist primarily in the interference with legal certainty, since its construction creates a risk that the order for isolation or quarantine measures will not be notified to the addressee. The Constitutional Court has therefore subjected this provision to a proportionality test, in which the principle of legal certainty and the protection of health are on the one hand and, on the other, it has concluded that the contested provision passes the test. The legislation in question pursues the legitimate aim of imposing quarantine measures and isolation in a timely and informal manner in order to prevent or at least slow down the spread of the COVID-19 disease by restricting the mobility of the population in the interests of public health. Prior to the adoption of the contested provision, isolation or quarantine could only be ordered by a decision under the Administrative Procedure Act in an administrative procedure. However, in view of the high number of quarantines and isolations ordered, which can amount to thousands of cases per day at the height of a pandemic, and the need to undergo such measures without delay, this formalised method is not practically feasible. The legislation then provides sufficient safeguards for the restriction of the constitutionally guaranteed rights and freedoms of individuals, such as the possibility to request within three working days an investigation by a public health protection authority into the justification for ordering quarantine or isolation, the possibility of judicial review in the administrative courts or the possibility of claiming damages against the State.
III. The Justice Rapporteur in the case was Jaromír Jirsa. None of the Justices dissented.