You sent a pre-litigation summons to the new Minister of Health Roman Prymul due to the announced measures. What exactly was it about?
I wrote that in the spring, the Municipal Court in Prague interpreted the Act on the Protection of Public Health in such a way that the Ministry of Health cannot issue measures that are widespread and drastic, as this belongs only to the government in a state of emergency. For the sake of correctness, I would add that the Act on the Protection of Public Health there sets out the competence of the Minister very broadly and vaguely. Only the court’s decision delimited the powers of the government according to the state of emergency under the control of the Parliament and the competences of the Ministry of Health.
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Nevertheless, I wrote to the Minister that at a time when he is already banning pubs after 10 pm and visits to various events are limited to fifty people when they do not sit there, and so on, these are measures that are, in my opinion, widespread and drastic in the sense of the mentioned statement of the Municipal Court. Therefore, if he wants to do them, he must release them under a state of emergency, like the whole government, and bring it before Parliament, otherwise I will sue.
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How would it actually be assessed whether the measures taken so far under Mr Prymul’s leadership are open to challenge?
The judicial criterion is whether they are widespread and forceful. They are undoubtedly flat, and whether they are vigorous is a question. Veils, for example, I suspect they would still go through the courts. On the other hand, we know that the spring lockdown and bans on retail and services would certainly not pass. And I think the measures that are already in place would be on the edge. And legitimately actionable, saying that it would be a question of whether the courts will assess the forcefulness so that it must be annulled.
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But I say in advance that I will not file the lawsuit. I suspected that it would be a much tougher measure, which we can read from the government today. In particular, I foreshadowed the situation where, for example, it is forbidden to sing in the church, and it is already clearly widespread and vigorous. In any case, the measure will be difficult to repeal, as it will expire on Monday, October 5. The moment the lawsuit goes to court, it will expire on its own.
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And when it comes to recovering damages? For example, do pubs have a chance for the current restrictions on opening hours?
If the innkeeper is going to worry this week, which I would quite understand, and they go back after that, then the law on public health does not have a provision on compensation, so he would have to go through general regulations. It would be difficult, but it is also legitimate to try.
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So I am positive that Mr Prymula has made it clear that they will not take the risk of the court and that the crisis measures will already have compensation incorporated in them from Monday, because the crisis law has a section 36 compensation.
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By the way, in the spring the Constitutional Court reviewed the declaration of a state of emergency itself and decided that it would not intervene unless it was an obvious excess. Do you think it is worthwhile to challenge individual measures at all?
Definitely yes. The declaration of a state of emergency itself is an act of government that the Constitutional Court will probably not want to touch. Although not all judges fully agreed.
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But our rights will not be affected by the declaration of a state of emergency in itself, but by the second paper that the government approved on Wednesday, and that is a crisis measure issued in the context of a state of emergency. And that can already be reviewed by the Constitutional Court. Just 10 senators, 25 deputies, an ombudsman or a regional council have to send him there, in short, only those who can go directly to the Constitutional Court. They are not citizens.
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However, while a state of emergency was declared in Slovakia from the following day, there was a five-day delay in the Czech Republic. How do you explain this if we are in a crisis situation? Have the weekend elections decided?
I think that the postponement, although I understand it politically, significantly weakens the government’s argument about the need for the measure. If it was a measure needed according to the rising curves needed on Wednesday, then they should drop the state of emergency and the measure, the election option. So they say: “There is a terrible crisis here, but what we are doing here now is just such an election game, because we are not issuing measures in that terrible crisis, but we let it go for another five days, and we will not issue it until after the elections, when it will be politically fine. So it’s not really a crisis. “
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