The nature of crisis and emergency measures in the light of the expected decisions of the Constitutional Court

April 28, 2020  |  Crisis and emergency measures

On 28 April 2020, the Constitutional Court issued two plenary resolutions rejecting a constitutional complaint against a government resolution on declaring a state of emergency, a government resolution on the adoption of a crisis measure and certain extraordinary measures with file no. stamp Pl. ÚS 8/20, and the proposal of a member of the Prague 4 city council directed against the government resolution on the adoption of a crisis measure (122/2020 Coll.), File No. Pl. ÚS 7/2020.

Resolution of the Constitutional Court of 28 April 2020, file no. No. 7/2020

The Constitutional Court rejected the petition because the petitioner is not a person who would be a party to the proceedings on the constitutional complaint in a particular case, as in his submission he does not object to any interference with his fundamental rights in the form of decisions, measures or other public intervention, with which the subject petition could possibly connect. The proposal is specifically directed against other legislation and therefore, as a natural person, he does not have active legitimacy to make such a proposal. Only certain entities to which this right is granted by the Act on the Constitutional Court, i.e., for example, a group of at least 25 deputies or 10 senators, are actively legitimized to make such a proposal to repeal another legal regulation, according to section 64 of the Constitutional Court Act.

The Constitutional Court came to the conclusion that the contested Government Resolution of 23 March 2020, No. 274, is not a measure of a general nature. In general, according to section 8 of the Crisis Act, decisions on crisis measures referred to in section 6 (1) of the same Act are published in the mass media and are published in the same way as the Act. In addition, the Constitutional Court states that: “acts of public administration bodies which are prima facie legal regulations, as they are so designated in the relevant law authorizing their issuance, will always be primarily examined in the framework of standard control proceedings, unless in one of such proceedings, the Constitutional Court came to the conclusion that the said act should in future be assessed according to its material conception, i.e., for example, as a measure of a general nature”. The Crisis Act does not explicitly stipulate that a government measure issued pursuant to section 6 (1) b) of the Crisis Act is in its form a measure of a general nature and for this reason it is necessary for the Constitutional Court to proceed to a material evaluation of this measure of the government.

The Constitutional Court came to the conclusion that the challenged crisis measure applies to the entire territory of the Czech Republic, and therefore does not contain the specificity of the subject of regulation. The material scope of the regulation applies to an unspecified number of council meetings, but the material scope remains defined through the classes of defining features and not through the enumeration of their elements. In addition, the adjustment is limited to a certain period of time. The Constitutional Court came to the conclusion that “it is necessary to take into account (just) the generality of the set subject of regulation from the point of view of space and substance. The definition of the circle of addressees can also be considered abstract if it affects an unspecified number (or specified target group and all) of members of local self-government councils.” For the above reasons, crisis measures cannot be considered measures of a general or formal or from a material point of view.

The Constitutional Court came to the conclusion that the contested government resolution on the adoption of a crisis measure has the nature of another legal regulation. The reason is that this government resolution has a legally normative content, which is just defined by the general subject and class of entities. In practice, this means that although the contested act is not a regulation within the meaning of Article 78 of the Constitution, it has the nature of a general normative legal act. Based on the above conclusion on the generality of the subject and the addressees, the Constitutional Court came to the conclusion that “the challenged crisis measure of the Government has the material nature of another legal regulation within the meaning of Art. 87 (1)b) of the Constitution or the provisions of Section 64 (2) of the Act on the Constitutional Court”.

Resolution of the Constitutional Court of 28 April 2020, file no. PL. ÚS 8/20

The Constitutional Court assessed the reviewability of certain extraordinary measures of the Ministry of Health, a government resolution on the adoption of a crisis measure and a government resolution on the declaration of a state of emergency. The Constitutional Court thus individually rejected the constitutional complaint in the part directed against the Government's resolution on declaring a state of emergency pursuant to section 43 (1) d) of the Act on the Constitutional Court, as it is not competent to discuss such a proposal, in the part directed against the Government resolution on the adoption of a crisis measure pursuant to section 43(1) c) of the Act on the Constitutional Court, as a motion filed by someone manifestly unauthorized, in the part directed against the second extraordinary measure of the Ministry of Health and the third emergency measure of the Ministry of Health as a motion which the Constitutional Court does not have jurisdiction to hear and according to section 43 (1) e) in connection with section 75(1) of the Act on the Constitutional Court as an inadmissible proposal.

Regarding the Government Resolution on the Declaration of a State of Emergency (Government Resolution No. 194 of 12 March 2020), the court commented that this resolution was not a measure of a general nature, as the petitioner objected, as ”The Resolution on a state of emergency is not primarily aimed at individual natural or legal persons, as the declaration itself is not a binding act imposing on them, changing or repealing specific rights and obligations as addressees outside the system of relations of organizational superiority and subordination in public administration. Enforceable rules of conduct contain only specific implementing measures, which are issued on the basis of a decision to declare a state of emergency." For these reasons, this government resolution on declaring a state of emergency cannot be considered as another legal regulation within the meaning of Article 87 (1) b) of the Constitution of the Czech Republic or section 64 (2)of the Act on the Constitutional Court. The Constitutional Court came to the conclusion that the Government's resolution on declaring a state of emergency is an ad hoc decision, as: “it concerns an individual case of an emergency situation and does not contain any repeatable rule. The Government's decision to declare a state of emergency itself does not have a legally normative content, as a result of which it does not fulfill the function of a legal regulation. "The Constitutional Court determines the government's decision to declare a state of emergency itself does not have a legally normative content, as a result of which it does not fulfill the function of a legal regulation. The Constitutional Court describes the government's resolution on declaring a state of emergency as a "government act" which, under the control of a democratically elected body, is the Chamber of Deputies.

Regarding government resolutions on the adoption of a crisis measure (Government Resolution No. 215 of 15 March 2020), the Constitutional Court in fact copies the considerations from the above-mentioned resolution of the Constitutional Court of 28 April 2020, file no. stamp Pl. ÚS 7/2020, and for this reason refers to the above arguments.

In the case of extraordinary measures of the Ministry of Health, the following three extraordinary measures were evaluated, namely:

(1) extraordinary measures of the Ministry of Health of 23 March 2020, File no. MZDR 12745 / 2020-1 / MIN / KAN

(2) Extraordinary measure of the Ministry of Health of 30 March 2020, File no. MZDR 12745 / 2020-4 / MIN / KAN and

(3). Extraordinary measure of the Ministry of Health of 6 April 2020, File no. MZDR 15190 / 2020-4 / MIN / KAN.

The Constitutional Court came to the conclusion that it is not competent to evaluate extraordinary measures (2) and (3), as these measures were repealed by later extraordinary measures, namely pursuant to section 43 (1) d) of the Act on the Constitutional Court.

To determine the nature of the first extraordinary measure of the Ministry of Health, the Constitutional Court came to the conclusion that: “in this case it is necessary to proceed primarily from how the extraordinary measures of the Ministry of Health are indicated by law. In this sense, it is sufficient that the Act on the Protection of Public Health directly designates extraordinary measures of the Ministry of Health as measures of a general nature, even if it provides for certain derogations from Part Six of the Administrative Procedure Code.” The legal regulation designates extraordinary measures pursuant to Section 94a of the Public Health Protection Act as measures of a general nature.