government vs. right
The Supreme Administrative Court continues to dismiss other illegal actions from the workshop of André Papis (ANO) government. One of the frequent reasons, in particular, is the request of the Ministry of Health to explain and document the reason for restricting the rights of citizens. The judges have repeatedly pointed out that the law does not allow the automatic identification of healthy people as suspected of infection for precautionary reasons only, without proper justification from the ministry.
The court has repeatedly indicated in several decisions that the Ministry of Health does not act in accordance with the rules when working with the Public Health Protection Act. Among other things, it does not justify why it is automatically considered that everyone is contagious, even though the law speaks of limiting contact only to people who have been in contact with the infected. This, for example, in addition to the decision to close restaurants, to close kindergartens and primary schools, reappears in the latest position on the closure of sports grounds.
The court stated that it would generally be possible to restrict sports venues on the basis of a section of the Public Health Protection Act. “However, based on this provision, contact between groups of natural persons suspected of being infected with other natural persons may be prohibited or restricted. Such a person is a healthy natural person who has been in contact with an infectious disease or has been in an outbreak during the incubation period. However, no This fact can be automatically assumed. It should be based on relevant data and duly substantiated in the emergency measure. Judge Jitka Zavilova said in the case, however, that the defendant had never claimed that the entire Czech Republic was the epicenter of the disease, let alone prove it .
The court then states in one of its decisions that it is theoretically possible to consider the entire republic as a potential outbreak, and thus everyone suspects the disease, but the mere fact of a pandemic cannot automatically suffice. “The defendant did not mention anything in justifying the extraordinary measure or in its notes to the court, which means that the entire Czech Republic is the epicenter of the disease in the legal sense, let alone substantiating it. Moreover, the defendant “discovered” this argument only in the present proceedings, indicating that it is a purposeful argument and that the defendant only later seeks legal support for his action,” the court stated.
According to health law expert and pirate expert Ondřej Dostál, this shortcoming, which has been missing all along, is not a formality. “This is a very important question, almost philosophical, where is the limit at which I can prevent a large number of people who are asymptomatic and with a high probability of being perfectly healthy from coming into contact with other people who are otherwise healthy just because I consider them infected,” he said to Echo24. I’ve got it.
Since Covid-19 is specific in that it has an initially asymptomatic period, it is not directly unreasonable to say that the restrictions should apply to everyone. “But what does the court want to know from the department to think he’s thinking about why he thinks this situation still exists, when we have a huge group of millions of dollars of asymptomatic people to suspect of infection, and when can we say they don’t have the disease or not spread it?” . For example, it is about explaining why and whether those who have already been visibly exposed to the virus or who have been tested by someone and do not have the slightest sign of illness continue to be restricted and are appropriate.
According to Dostal, if the ministry comes up with justification, the court will still decide its adequacy, that is, whether it allows, for example, to prevent children from going to school. “But the court could not do that because the ministry did not take the first step,” he added. The same principle applies to some other procedures that are still in force.
The question is, for example, whether an untested person can be denied access to a particular institution or business. “In such a case, the person who issued this ban must say why he thinks the suspect is the disease just because he has not been tested. Not being tested does not mean that he is suspected of being infected,” Dostal added.
The review of exceptional measures taken under the Epidemiological Law is a new jurisdiction of the Supreme Administrative Court. Because of frequent and rapid changes, the court has been unable to cancel the proceedings in recent months while they are still in force, but it can consider them illegal.
Last week, for example, the court ruled that regulating the operation of sports facilities, swimming pools and health facilities to prevent the spread of the coronavirus is illegal. Deal with the April scale for the Ministry of Health. The Ministry has not properly justified the specific level of risk associated with the required regulation, nor has it addressed its necessity. The SAC has previously examined the same procedure when dealing with the ban on sales in convenience stores, the regulation of cable cars and ski lifts, and the regulation of the operation of catering services. It has repeatedly declared illegal, mainly because there is no support for specific measures in the law, or because of insufficient justification.
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