Venice Commission - Observatory on emergency situations
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Disclaimer: this information was gathered by the Secretariat of the Venice Commission on the basis of contributions by the members of the Venice Commission, and complemented with information available from various open sources (academic articles, legal blogs, official information web-sites etc.).
Every effort was made to provide accurate and up-to-date information. For further details please visit our page on COVID-19 and emergency measures taken by the member States: https://www.venice.coe.int/WebForms/pages/?p=02_EmergencyPowersObservatory&lang=EN
1. Are there specific provisions in the constitution of your country applicable to emergency situations (war and/or other public emergency threatening the life of the nation)?
The Constitution of the Czech Republic (Constitutional Law No. 1/1993 Coll.) as such does not regulate emergency situations. It refers to these situations only in connection with the competences of the Parliament (§§ 39(3) and 43 of the Constitution). Article 39(3) The concurrence of an absolute majority of all Deputies and an absolute majority of all Senators is required for the adoption of a resolution declaring a state of war or a resolution granting assent to sending the armed forces of the Czech Republic outside the territory of the Czech Republic or the stationing of the armed forces of other states within the territory of the Czech Republic, as well as with the adoption of a resolution concerning the Czech Republic's participation in the defensive systems of an international organization of which the Czech Republic is a member. Article 43(1) Parliament decides on the declaration of a state of war, if the Czech Republic is attacked, or if such is necessary for the fulfillment of its international treaty obligations on collective self-defense against aggression.
2. Do organic/constitutional or ordinary laws regulating the state of emergency exist in your country?
The Czech Republic’s legal order knows four types of the state of emergency: the state of danger (stav nebezpečí), the state of emergency (nouzový stav), the state of the threat to the State (stav ohrožení státu), the state of war (válečný stav). The legal regulation is enshrined in the Constitutional Law on the Security of the Czech Republic (No. 110/1998 Coll.) and the Law on Crisis Management and on amendments of certain acts (No. Act N. 240/2000 Coll., so called Crisis Law - for the English text click here). The former pertains to the state of emergency, the state of the threat to the State and the state of war, the latter contains norms related to all the four types of the state of emergency.
3. Do organic or ordinary laws on health risks or other public emergency exist in your country?
The general legal regulations on the state of emergency are enshrined in the Constitutional Law on the Security of the Czech Republic (No. 110/1998 Coll.) and the Law on Crisis Management and on amendments of certain acts (No. Act N. 240/2000 Coll., so called Crisis Law). More specifically, on health risks, the protection of health is indicated as one of the basic duties of the Czech Republic in Article 1 of the Constitutional Law on the Security of the Czech Republic. Threats to health may trigger, depending in their severity and extent, any of the four types of the state of emergency known in the Czech Republic. The legal regulation in this area is complemented by the Law on the Protection of Public Health (Law No. 258/2000 Coll.) which regulates the adoption of exceptional measures at epidemics (§ 69). This law gives the Ministry of Health and spme other state authorities specific powers combat an epidemic, but the use of these powers is not linked to the declaration of a state of emergency (or other emergency regime).
4. Was a state of emergency declared in your country due to the Covid-19 pandemic? By what authority and for how long?
The Government of the Czech Republic declared the state of emergency (nouzový stav), i.e. the second type of the state of emergency known in the legal order, by its Decision (usnesení) No. 194 issued on 12 March 2020. The state of emergency was declared by virtue of Articles 5-6 of the Constitutional Law on the Security of the Czech Republic for a period of 30 days, effective as of 12 March 2 pm. On 7 April 2020, the Chamber of Deputies approved of the extension of the state of emergency till 20 April 2020 (Decision 1012). On 28 April, the Chamber further extended it till 17 May (Decision 1105). On 17 May 2020, the state of emergency ended.
5. Was the declaration subject and submitted to parliamentary approval (if it was taken by the executive)?
The original declaration of the state of emergency was not subject to parliamentary approval. Its extension beyond the 30-day limit foreseen by the Constitutional Law on the Security of the Czech Republic was reserved to the Chamber of Deputies. By virtue of Article 5(4) of this Law, the Chamber of Deputies has the competence to annul the declaration of the state of emergency. The Chamber has not used, or even considered using, this competence in the framework of the COVID-19 crisis.
6. Was the declaration subject and submitted to judicial review? Was it found justiciable?
The declaration of the state of emergency, as well as various emergency measures introduced in its course, have been challenged both in ordinary courts and in the Constitutional Court of the Czech Republic. The Constitutional Court, in its decision issued on 28 April 2020 (Pl. ÚS 8/20), concluded that the declaration of the state of emergency was an ad hoc decision and an act of governance which, as such, is not subject to judicial review and lends itself only to the political “review” by the Chamber of Deputies. The Constitutional Court did not however exclude the possibility of judicial review of the declaration of the state of emergency altogether. It suggest that this declaration “could be annulled [by the CC], if it contradicted the fundamental principles of the democratic Rechtsstaat (état de droit) or involved the change of essential features of the democratic Rechtsstaat” (§ 27). As to government resolutions issued by the Crisis Act, the CC analysed their legal nature and concluded that the challenged measures should be classified as ‘other legal acts’ and can be challenged only by the designated priviledged applicants (parliamentary opposition, ombudsmen), not by everyone. Measures taken by the Ministry are subject to review by administrative courts by persons affected by them.
7. Are derogations to human rights possible in emergency situations under national law? What are the circumstances and criteria required in order to trigger an exception? Was a derogation under Article 15 ECHR or under any other international instrument made? Does national law prohibit derogation from certain rights even in emergency situations? Is there an explicit requirement that derogations should be proportionate, that is limited to the extent strictly required by the exigencies of the situation, in duration, circumstance and scope?
The Czech Charter of Fundamental Rights and Freedoms does not foresee the possibility of a formal derogation of the rights and freedoms enshrined in this charter. Several of its provisions contain limitation clauses which allow for limitations, but not suspension, of some aspects of these provisions. The Czech Republic has not formally derogated from either the ECHR or any other human rights treaty it is Party to (ICCPR, ICESCR, etc.).
8. Which human rights have been limited/derogated from in your country, in the context of the Covid-19 pandemic?
In the course of the state of emergency, the Czech Republic introduced a far-reaching system of exceptional measures. Most of these measures ceased to operate by 17 May (end of the state of emergency), though some, often in a modified form, have remained in force after this date. The measures have been repeatedly revised and modified. The following human rights have been primarily affected (for more information [click here):
9. If a declaration of state of emergency was not made, did the Executive enjoy additional powers under the ordinary legislation on health risks or another public emergency? Did it decide to impose exceptional restrictions on human rights based on these laws?
During the state of emergency, the government relied on the emergency powers granted to it by the emergency legislation. After the end of the state of emergency, some of the measures have been enacted based on the standard legislation, mainly the Law on the Protection of Public Health. In early May 2020 the Government considered introducing an extensive draft amendment of this law that would give the Minister of Health increased powers to introduced restrictive measures outside the state of emergency. The idea however have not been carried out so far.
10. Are the possibilities for the Executive to derogate from the normal division of powers in emergency circumstances limited in duration, circumstance and scope?
During the state of emergency, the government as well as various ministries and other State organs (the Czech National Bank, regions and municipalities, etc.) gets special emergency competences by virtue of the emergency legislation (the Constitutional Law on the Security of the Czech Republic and the Crisis Law). The competences are enumerated in the legislation and they are limited in scope? and time. The activities during the state of emergency should be coordinated by a special organ, the Central Crisis Staff (Úsřední krizový štáb), established ad hoc by the Prime Minister in an emergency situation. The Central Crisis Staff was established on 15 March 2020 and abolished on 11 June 2020. It was headed first by the vice-minister of health and later on by the minister of interior.
11. Were the sessions of parliament suspended during the Covid-19 pandemic? If so, for how long? Were specific rules on the functioning of parliament during the emergency adopted? By parliament or by the executive?
On 11 March 2020, the Chamber of Deputies (the lower chamber) prematurely terminated its session. It declared its readiness to reconvene and approve of legislative changes in a speed way “in case the impact of the spread of the new type of coronavirus on the society was greater than expected” (press release 11 March 2020). During the state of emergency, the Chamber occasionally reconvened to adopt legal acts related to COVID-19.
12. Were the judicial sessions of the Constitutional Court or court with equivalent jurisdiction and/or other courts be suspended during the Covid-19 pandemic? If so, for how long? Were specific rules on the functioning of these courts during the emergency adopted? By parliament or by the executive?
The Constitutional Court continued its activities during the state of emergency. It however adopted certain emergency measures involving the closure of the CC building to the public and the impossibility to check the documents at the premises of the CC. The emergency measures were suspended by 11 May 2020.
13. Was legislation on the state of emergency or on the emergency amended or adopted to deal with the Covid-19 pandemic?
No, legislation on the state of emergency has not been amended in connection with the COVID-19 crisis. Amending the Law on the Protection of Public Health was considered (see supra 9) but has not carried out so far. Several ordinary laws have been amended in response to the COVID-19 crisis, for instance the Public Procurement Act (Law No. 134/2016 Coll.), which should now allow for a simplify procedure to procure personal protective equipment. Several special usually ad hoc pieces of legislation have been adopted since March 2020, for instance the Law No. 262/2920 Coll. On the compensation bonus related to the emergency anti-COVID-19 measures. Finally, pursuant to the Government Regulation (No. 75/2020 Coll), adopted on 13 March 2020, coronavirus disease has been included in the list of contagious human diseases, the spread of which can be classified as a criminal offence (spreading a contagious human disease by intention or negligence, §§ 152-153 of the Criminal Code).
14. Was this additional legislation subject to judicial review?
Not so far
15. Was the state of emergency prolonged? For how long? Was the prolongation subject and submitted to parliamentary control? Was it subject and submitted to judicial review?
The original state of emergency declaration was made by the Government. The extensions of the state of emergency were made by acts of the Chamber of Deputies and, as such, they constituted in themselves acts of parliamentary control. On 23 February 2021 the Municipal Court in Prague declared the declaration of the (new) state of emergency by the government unconstitutional. The government had not secured agreement for the continuation of the original state of emergency from the National Assembly, so it had decided to declare a new state of emergency for 2 weeks. However, it appears that the court has no competence to abolish the state of emergency, so the validity of the Government declaration remains unclear.
16. What are the legal remedies available against general measures and/or individual taken under the state of emergency? What are the legal remedies for measures taken in application of ordinary legislation on health crisis? Has any change to the available legal remedies been decided on account or brought about by the state of emergency? Were any emergency measures invalidated and for what reasons (competence, procedure, lack of proportionality etc.)
Measures introduced in the state of emergency may be challenged in ordinary courts and, in some instances, in the Constitutional Court. Numerous applications have been submitted to various courts with respect to the emergency measures enacted in spring 2020. In addition, the first applications to the European Court of Human Rights have already been submitted.
17. If parliamentary and/or, where applicable, presidential elections were scheduled to take place during the Covid-19 emergency: were they held? Were special arrangements made, and if so, which arrangements? Was it necessary to amend the electoral legislation? What was the turnout? How was it compared to the previous elections? If they were postponed, what was the constitutional or legal basis for doing so? Who took the decision? For how long were they postponed? Was this decision subject and submitted to parliamentary control or judicial review?
No regular parliamentary or presidential elections were scheduled to be held during the COVID-19 emergency. Due to the death of the president of the Czech Senate Jaroslav Kubera on 20 January 2020, by-elections to fill the vacancy in one Senate district (Teplice) was scheduled for 27-28 March (first round) and 3-4 April (second round). By its decision of 15 March 2020 (No. 218, published as No. 88/2020 Coll.), the Government suspended the elections. The decision relied on § 5(c) and § 6(1)(b) of the Crisis Law which allows the Government to temporarily prohibit entry, stay or movement of persons in certain areas or territories.
18. Same questions as under 17), mutatis mutandis, as regards local elections and referendums.
No local elections or referendums were scheduled to be held during the COVID-19 emergency.
Czech Republic
For the text of the Czech Constitution click here
Likewise, the Charter of Fundamental Rights and Freedoms (Constitutional Law No. 2/1993 Coll.) contains no provisions dealing with emergency situations. It does however indicate that “/a/ny limits placed on fundamental rights and freedoms may be governed only by law under conditions set by this Charter“ (Article 4(2)) and that “/w/hen using the provisions on the limits of the fundamental rights and freedoms, their essence and purpose shall be respected. Such limits may not be used for other purposes than those for which they were instituted” (Article 4(4)).
However, matters related to emergency (see Q2) are regulated by the Constitutional Act on the Security of the Czech Republic (No. 110/1998 Coll.). Under this act the Government may declare the state of emergency "in cases of natural catastrophe, ecological or industrial accident, or other danger which to a significant extent threatens life, health, or property or domestic order or security.
Under the Constitutional Act on the Security of the Czech Republic (No. 110/1998 Coll.). Under this act the Government may declare the state of emergency "in cases of natural catastrophe, ecological or industrial accident, or other danger which to a significant extent threatens life, health, or property or domestic order or security." The state of danger is declared, under the Crisis Law, by the competent regional authorities and can be prolonged with the consent of the Government.
The Municipal Court in Prague has ruled that in a state of emergency, interventions by the government should take precedence over interventions by the Ministry of Health:
‘The fact that the challenged measures were adopted by the Ministry of Health, and not by the government, amounts to a breach of the constitutional guarantees of division of powers. In the process of adopting crisis measures pursuant to the Crisis Management Act, the government is under a continuous supervision of the Chamber of Deputies. […] As a result of adopting the challenged measures by the Ministry of Health pursuant to the Act on the Protection of Public Health, such supervision by the Chamber of Deputies was excluded. The [Ministry] has therefore limited the constitutionally guaranteed power of the Chamber of Deputies.’ (para 152)
That being said, under the Constitutional Act on Security (see Q1 and Q2), in a declaration of the state of emergency "the government must specify which rights prescribed in individual statutes shall, in conformity with the Charter of Fundamental Rights and Basic Freedoms, be restricted, and to what extent, and which duties shall be imposed, and to what extent. Detailed provisions shall be laid down by statute."
a) Right to free movement
• Restrictions on free movement within the country: on 16 March, free movement was limited with the exception of travel to and from work and trips necessary to ensure basic human needs (e.g. foodstuffs, pharma shopping, helping older family members). On 24 April, free movement of people outside was allowed for groups of up to and including 10 people. Originally, the restrictions were imposed by the Government decision (Decision No. 215). Later on, the legal basis was changed to the decisions of the Ministry of Health. By its decision of 23 April 2020 (14 A 41/2020), the Prague Municipal Court abolished the latter decisions due to the lack of competence of the Ministry of Health to adopt such measures in the state of emergency. Since then, the restrictions were again introduced and/or modified by the Government decisions.
• Restrictions on free movement without a face mask: as of 19 March, the obligation to wear a face mask or other covering of the nose and mouth in all areas outside of the place of residence was introduced (Government Decision No. 247). The decision has been progressively moderated, with various exceptions (members of a single household, children up to 2 years, drivers in private cars etc.) introduced. As of 25 May, the obligation only applied in the interiors of buildings (outside home) and in public transport. Again, the restrictions were at first introduced by Government decisions but later on newly based on decision of the Ministry of Health. Applications challenging the legal basis have been submitted to courts.
• Mandatory individual quarantine: on 13 March, the mandatory 14-day quarantine was introduced for anyone arriving to the Czech Republic from areas under increased risk of COVID-19 (Government Decision No. 209). Later, the obligation was extended to all persons arriving to the Czech Republic. Since the end of the state of emergency, the obligation has been gradually loosened to apply only to persons arriving from areas under increased risk again.
• Mandatory collective quarantine: during the state of emergency, some 20 municipalities were temporarily (14-day) closed in connection with the spread of COVID-19. Certain health and social premises, especially those hosting older persons, were subject to mandatory quarantine as well.
• Restrictions on travelling to/from the Czech Republic: as of 16 March, access to the Czech Republic was prohibited for all foreign nationals with certain exceptions. The citizens of the Czech Republic were prohibited from leaving the country, again with certain exceptions (cross-border workers). International air, rail, coach, boat or road travel for more than 9 persons was suspended. As of 14 April, travelling abroad for essential activities (business trip, a visit to a doctor or a relative, etc.), was allowed. As of 27 April, access to the Czech Republic was open for certain EU citizens and the Czech citizens were allowed to freely leave the country. As of 11 May, rules on the travel to/from the Czech Republic were relaxed again and cross-border public transport was allowed to restart.
b) Right to freedom of assembly: as of 13 March, all sporting, cultural, religious and other activities both public and private involving more than 30 people were forbidden (Government Decision No. 199). Since the end of the state of emergency, the restrictions have been gradually loosened. By 14 June, it is possible to organize events involving up to 500 persons.
c) Right to property
• Suspension of retail sales and sales of services: on 14 March, retail sales and the sales of services in business premises were suspended, with some exceptions (foodstuffs, electronics, ICT, fuel, pharmacies, chemists, animal welfare goods and feeds, opticians, newsagents, laundromats and e-shops). Progressively, new exceptions were added. Some of the legal acts serving as the basis for these restrictions, issued by the Ministry of Health, was abolished by the Prague Municipal Court in its decision of 23 April 2020 (14 A 41/2020) for the lack of competence.
• Freezing of flat rents: On 23 April, a moratorium on the increase of flat rents, for both public and private premises, was declared (Government Decision No. 445), to be terminated on 1 June (Government Decision No. 601).
d) Right to education: on 12 March, full-time education in elementary, secondary and tertiary educational facilities was suspended for the whole period of the state of emergency. Teachings has gradually restarted since the end of this state, though participation in classes (for children) has remained non-mandatory. Final exams and entrance exams have been organized in a modified way.
e) Right to privacy: as of 30 March, the so-called “smart quarantine” project has started up in test mode. The goal of smart quarantine is to prevent the further spread of SARS CoV-2 coronavirus in the Czech Republic as quickly and effectively as possible. It is based on mapping the contacts of positively tested individuals for COVID-19 using modern information technologies. The instrument may not be used without the agreement of the persons concerned.
f) Right to religion: the measures limiting the right to freedom of assembly introduced during the state of emergency applied to religious services as well. These services were thus suspended and had to be held online (which actually happened). By the end of April, the services could resume with the maximum number of 15 participants. With the loosening of the limits imposed on public assemblies, this restriction has been further relaxed since then.
The Crisis Management Law (N. 240/2000 Coll.) provides, in para. 5, that during the emergency state or the state of menace certain rights could be limited, "for the
period and to the extend unavoidably required", and para. 6 gives the Government the power to order certain measures (evacuation of people from the determined territory, prohibition of movement of people on a designated territory, border controls etc.). The law contains different sets of precise measures depending on the type of the regime (state of emergency/state of menace). Thus, state of emergency provides for a possibility for the Government to prohibit intry into the national territory of persons in general (para. 6 (1) (b)), while under the state of menace the Governemnt may only prohibit the entry on the national territory of non-citizens.
By virtue of § 8 of the Constitutional Law on the Security of the Czech Republic, during the state of the threat to the State or the state of war, “the government may request that the Parliament deal with government bills in shortened debate” (par. 1). No similar regulation is foreseen for the state of emergency. By virtue of § 99 of the Rules of Procedure of the Chamber of Deputies (Act No. 90/1995 Coll.), the president of the Chamber shall, at the government’s request, declare a state of legislative emergency (stav legislativní nouze) for a definite period of time “under exceptional circumstances, when principal human rights and liberties or the state’s security are in jeopardy or the state may suffer considerable economic losses” (para 1). In the state of legislative emergency, the following rules apply:
• the President of the Chamber of Deputies may – at the government’s request – decide to conduct summary consideration of any bill presented by the government;
• any bill designated for summary consideration shall be referred by the President of the Chamber to one of the committees. The President shall specify a deadline for the presentation of the committee’s resolution that may not be broken. In its resolution the committee shall specify whether a general debate is necessary and what parts should become subject to detailed debate; it shall also propose the time limit within which the Chamber should complete its consideration.
• the Chamber shall review if the circumstances on which the state of legislative emergency is based still persist before discussing the programme of its meeting. If it comes to a conclusion that the conditions have already passed, it shall cancel the state of legislative emergency.
• the Chamber shall review whether the conditions of summary consideration persist before considering every governmental bill. Should it come to a conclusion that there is no reason for summary consideration, it shall not apply it.
• the provisions of the rules addressing the first reading of bills shall not be applied to summary consideration. The Chamber may decide to cancel the general debate that is to take place during the second reading of a bill and to reduce the speech limit of individual Deputies to as little as five minutes. The second reading of a bill may be followed by its third reading immediately. The third reading of a bill is modified as well.
The conditions under which the state of legislative emergency may be declared have been further specified in the decision of the Constitutional Court of 1 March 2011 (Pl. ÚS 55/10, 80/2011 Coll.). The Court stressed that the declaration of the state of legislative emergency is conditioned on “the existence of exceptional circumstances which have the potential to threaten in an essential way fundamental rights and freedoms or when there is a threat of significant economic hard to the State” (§ 84). The severity of such circumstances must to comparable to that foreseen by § 6 of the Constitutional Law on the Security of the Czech Republic.
The state of legislative emergency was declared by the President of the Chamber of Deputies, at the request of the Government, on 19 March 2020 for the period of the state of emergency (Decision No. 41). The state of legislative emergency ended with the end of the state of emergency (16 May 2020). On 26 May 2020, the President of the Chamber declared a new state of legislative emergency, effective till 30 May 2020 (Decision No. 56), to make a speedy adoption of certain emergency measures possible.
The first applications were considered in the late April 2020. Two important decisions were rendered then. The first was the decision of the Prague Municipal Court of 23 April 2020 (14 A 41/2020) which abolished four acts by the Ministry of Health (two related to the restrictions on the right to freedom of movement, two related to those on the right to property) because they had been adopted ultra vires. The second was the decision of the Constitutional Court of 28 April 2020 (Pl. ÚS 8/20) which declared the declaration of the state of emergency outside the judicial review (in principle). The two courts both limited their review to formal aspects of the emergency legal acts and declined to engage in the review of the substantive aspects (proportionality etc.). Other decisions are certainly to follow.
On 17 April 2020, the Parliament adopted a special law (Law No. 187/2020 Coll.), which, by virtue of § 10 of the Constitutional Law on the Security of the Czech Republic, extended the terms for holding by-elections to the Senate, calling upon the President to call these elections for not later than 30 June. On 6 May 2020, the President by its decision No. 240 called the by-elections for 5-6 June (first round) and 12-13 June (second rounds). The by-elections were effectively held in these new terms. The turnout was 15,79% in the first and 9,26% in the second round, which however is not unusual for the Senate elections.
On 1 April 2020, the original Government decision to suspend the by-elections was considered, and declared null and void, by the Supreme Administrative Court (Pst 19/2019 – 12). The Court concluded that the competence to suspend elections was reserved to the Parliament (§ 10 of the Constitutional Law on the Security of the Czech Republic) and that the right to vote cannot be limited by virtue of provisions relating to other human rights. The Court declared that “although nothing suggest that the Government would not have acted bona fide /…/, it is not possible /…/ to give up fundamental rule established by the constitutional legal act exactly for such exceptional situations that we are facing now. It is necessary to protect not only health, lives and economy, but also the democratic constitutional Rechtsstaat” (§ 13).