Municipal Court holds protective measure contrary to law - rules for returning from abroad change

On Wednesday 31 March, the Municipal Court in Prague annulled part of the protective measure regulating the crossing of state borders, on the grounds of it being contrary to law, effective 5 April. The Ministry of Health responded on Saturday by issuing a new measure. The Czech Republic is not the only country struggling with the illegality of coronavirus-related restrictions. On the same date, a similar ruling was issued in Belgium.

The Municipal Court has ruled that the parts of the Ministry of Health’s Protective Measure of 15 March imposing the obligation to produce a negative test before entering the territory of the Czech Republic on everybody without a difference are contrary to law. Czech citizens’ rights to return to their homeland cannot be infringed upon this way. The court also held the requirement to submit a negative test certificate to international carriers illegal. At the same time, the Municipal Court stressed that the conclusions reached shall only apply to citizens of the Czech Republic, not to citizens of other states, as they are not covered by the right of free entry into the Czech Republic as enshrined in the Charter of Fundamental Rights and Freedoms. However, the court pointed out that if another protective measure is adopted, the health ministry must consider its possible discriminatory effects from the perspective of EU law and the rights of citizens of other member states who have, for example, a permanent residence in the Czech Republic.

The court also dealt with the objection of illegality concerning the part of the measure restricting movement in the form of a mandatory post-arrival test and the associated quarantine or self-isolation at home after entering the territory –  the petitioner pointed out that the situation abroad is much less risky than in the Czech Republic. However, the municipal court found this part of the measure fully legitimate, as it aimed to minimise the risk of spreading the disease and the possibility of bringing the virus and its mutations to the country, or, more precisely, to limit the spreading of the disease from foreign sources. The court also pointed out that it would be absurd if the state restricted movement between districts or municipalities, but at the same time did not respond in any manner to arrivals from other countries on the grounds that the situation there is better than in the Czech Republic.

Following the municipal court ruling, the ministry issued a new protective measure restricting state border crossings effective from 5 April. In terms of the testing requirements, the conditions of entry into the Czech Republic now differ for Czech citizens or their family members, EU citizens with temporary residence and foreigners with permanent residence (‘residents’) and other foreigners. For Czech citizens and residents, a negative test is no longer required upon return, only a certificate that a test has been taken. Other foreigners must continue to submit a negative test. For Czech citizens and residents, the measure also distinguishes whether they are travelling to the Czech Republic by public or individual transport. The conditions of return also differ depending on the risk rating of the country from which the person is returning.  For citizens of the Czech Republic and residents, return to the Czech Republic is possible even if they test positive. Following these changes, the conditions for entry to the workplace have been adjusted.

The decision of the municipal court may be challenged by a cassation complaint to be filed with the Supreme Administrative Court. It remains to be seen whether any of the parties to the dispute will use this option, and if so, what the opinion of the SAC will be.

In conclusion, it should be noted that the Czech Republic is not the only country encountering problems concerning the illegality of coronavirus measures. Following an action brought by La Ligue des Droits Humains (League for Human Rights), a Brussels court ruled that the coronavirus measures issued by the Belgian government were against the law. The Belgian government has been given 30 days to rectify this situation. Otherwise, Belgium will have to pay a fine of EUR 5 000 a day.

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