1. The origins of the current law and the general legal framework of states of emergency

The Czech Constitution was adopted in December 1992, after several months of hard work on its text following the political crisis after the June 1992 elections and the impending end of the Czechoslovakia (the union of the Czechs and Slovaks ceased to exist on 1 January 1993). The 1992 Constitution was enacted three years after the fall of the Communist regime and must be interpreted against this backdrop. The drafters of the Constitution did not strive for continuity with the old communist regime; quite the contrary, the Constitution was associated with the revolutionary fervour of the 1989 Velvet Revolution and attempted to annihilate the Communist heritage.Footnote ¹

The text of the Constitution is rather brief. It is less detailed than its Central European counterparts, e.g., the Slovak Constitution of 1992, the Polish Constitution of 1997, and the Hungarian Constitution of 2011.

Perhaps because of the lack of time, in late 1992, when the Czechoslovakia was about to be dissolved within a few months, the drafters of the Constitution did not aspire to cover all constitutional matters in a single constitutional document. They left out all controversial issues to be determined by the future consensus of the political elite (thus, the regional self-government was finally enacted by a separate constitutional act in 1997), moreover, some hot political potatoes have never been resolved (such as the provision for holding general referendums, which still does not exist in the Czech legal system).Footnote ²

The Czech Constitution includes only organizational matters and almost completely leaves out the substance of fundamental rights. This was caused, at the time of drafting in the fall of 1992, by political disagreement over the content of the bill of rights. As a sort of compromise, the federal Czechoslovak Charter of Fundamental Rights of 1991 was reaffirmed as part of the Czech legal system, and the Constitution referred to it as a part of the “constitutional order.” Those are the fundamental rights which dominate much of the workload of the Czech Constitutional Court (CCC). It is, therefore, fair to say that even though the Constitution itself deals strictly with organizational matters, fundamental rights protection is a central element of the broader constitutional culture of the Czech Republic.

To sum up, the Czech Constitution is not the only constitutional law of the land but part of the so-called “constitutional order” composed of a plethora of constitutional acts (including the Charter of Fundamental Rights). All those acts are formally equal, and the Constitution does not enjoy any primacy among them. One of those “other” constitutional acts is the Constitutional Act on the Security of the Republic, enacted in 1998 (see below).

Both the 1992 Constitution and the 1991 Charter of Fundamental Rights were laws typical of the era of the “End of History” and liberal constitutionalism of the 1990s, i.e., the thesis of the ultimate triumph of liberal capitalism, often presented through its neoliberal manifestations and a plethora of free market policies.Footnote ³ No one dared to question “the only possible” road to the future. The latter simply prescribed peaceful future development and a small liberal (or neoliberal?) state.Footnote ⁴ Because the future was supposed to be happy, the constitutional laws did not consider the potential of some emergency situations (the Czech Constitution of 1992 only dealt with one “traditional” emergency, the declaration of a state of war).

But the future is never set in stone. Emergencies did not wither away with the collapse of communism. The game changer in Czechia was a big Central European flood in July 1997, which affected Germany, Austria, Poland, Slovakia, and Czechia. In Czechia, the natural disaster impacted almost a third of the country’s territory. Fifty people lost their lives as a result, and more than ten thousand were left homeless.Footnote ⁵ At the time, it was clear that the silence of the 1992 Constitution on emergency situations was a serious problem. Dozens of deaths in 1997 were more than visible proof that the constitutional order needed to be amended to include some emergency situations and the associated restrictions on fundamental rights.

Therefore, in the following year, a special on the Security of the Czech Republic was adopted.Footnote ⁶ Technically, the act is not an amendment to the Constitution but a short, separate constitutional law dealing with several types of states of emergency. The purpose of this short constitutional law (it has only thirteen brief articles) is to list all basic states of emergency and provide a constitutional basis for the enactment of “ordinary” law. It is to be this ordinary law that provides details for dealing with those emergencies under each respective category of the state of emergency. The lawmaker explained in the travaux préparatoires that the current law does not enable state authorities to deal with emergencies or limits basic rights when necessary.Footnote ⁷

The 1998 constitutional law distinguishes between three categories of state of emergency. The first is a state of war (in Czech, válečný stav). As I have explained above, this is the only state of emergency dealt with by the text of the 1992 Constitution. Since 1992, a state of war has never been declared.

The second is a threat to the state (stav ohrožení státu). This is declared by both houses of the ParliamentFootnote ⁸ on the proposal of the Government if the sovereignty of the state or the territorial integrity of the state or its democratic foundations are under imminent threat. The threat to the state may be applied either locally or to the entire territory of the state. As drafted, it appears to apply mainly to civil unrest or other internal threats to the state. In any case, even this special legal order has never been declared.

Third is a state of emergency (nouzový stav), which deals with natural disasters, environmental or industrial accidents, accidents or other dangers that significantly threaten life, health or property, values or internal order and security. It is the state of emergency that has been repeatedly used since 2000 and deserves the most attention. “In emergencies that may arise as a result of major natural disasters (floods, earthquakes), major industrial accidents and other incidents, it will be necessary to take a number of precautions that may also affect certain civil rights and freedoms,” explains the travaux préparatoires. The state of emergency could be applied either locally or to the whole territory of the state. Although not explicitly mentioned, it could also be used for pandemics.

The 1998 Constitutional Law is general and does not contain any specific rules. It only states that some fundamental rights can be restricted in emergency situations without giving further details.Footnote ⁹ It is the task of the ordinary law to lay down detailed rules and list the fundamental rights that can be restricted under the respective emergency, of course within the limits of the 1998 Constitutional Law and subject to the requirements of proportionality. It took two more years to enact this ordinary law.

In 2000, a new law named the “Crisis Regulation Act” was adopted.Footnote ¹⁰ The law further specified the details of respective emergencies and state and local self-administration actions relating to various types of threats. The Crisis Regulation Act also describes which fundamental rights could be limited under the state of emergency or the threat to the state (the right to the inviolability of the person and the home; the right to property; freedom of movement and residence; the right to assemble peacefully; the right to engage in business activities; the right to strike) and defines general situations in which those rights could be limited (for instance, freedom of movement and residence within a defined area threatened or affected by a crisis situation; the right to property in order to protect life, health, property or the environment threatened by an emergency situation, for which adequate compensation shall be provided).Footnote ¹¹

In addition to the list of emergencies provided for in the 1998 Constitutional Act, the 2000 Act created a so-called state of danger (stav nebezpečí). This is the least invasive state of emergency, so there is no need for it to be expressly covered by the Constitutional Act. Unlike other emergencies, a state of danger can only be declared locally, for a region or part of a region. The state of danger may be declared if it is not possible to avert the threat through the normal activities of the administrative agencies. The governor of the region (or in Prague, its mayor) may declare a state of danger for a part of the region’s territory or for the entire region. The scope of powers within the state of danger is also narrower. The governor of the region may impose labour assistance obligations or the obligation to provide in-kind resources to deal with a crisis situation, order the immediate execution of works, construction, landscaping or removal of structures to mitigate or avert the threat, ensure priority supply to children’s and health care facilities and armed security and firefighting services, ensure an alternative method of deciding on and paying social security benefits, order the evacuation of the population, or prohibit the entry, stay and movement of persons in a defined place or territory, etc.

Finally, there is also the “special emergency” adopted by law in March 2021 due to the COVID-19 pandemic.Footnote ¹² The new lawFootnote ¹³ created a new type of emergency (pandemic alert; in Czech, stav pandemické pohotovosti). The pandemic alert started the moment the act was enacted (this took place at the peak of the COVID-19 crisis); later, it could be called into existence by the decision of the lower house of the Czech Parliament (this exceptional situation is not mentioned in the Constitution). The law provided an exhaustive list of all limitations which could be decided by different authorities during the pandemic alert (banning assemblies, prohibiting the operation of certain business activities such as restaurants and other services, limiting school education, etc.).Footnote ¹⁴ The law was modified in February 2022, and the Parliament prolonged its validity until November 2022 and further specified some powers of the authorities (for the reaction to the previous rigorous case law of the Czech Supreme Administrative Court, see below).

The most important novelty of the law is that it gave people the right to challenge the measures enacted during the pandemic alert before the judiciary. A special expedited procedure was created to resolve all lawsuits in due time. The law ceased to be effective on 1 December 2022 when COVID-19 no longer posed a serious threat. This means the “pandemic alert” is now a purely historical piece of legislature.

2. Checks and balances in emergency situations

The comprehensive legal regulation of both the 1998 Constitutional Act and the 2000 Crisis Regulation Act strives for checks and balances in declaring and applying emergency situations.

With respect to a state of war, this involves the consent of both houses of Parliament (the majority of all deputies and all senators). According to the Constitution, Parliament decides whether to declare a state of war if the Czech Republic is attacked or if it is necessary to fulfil international treaty obligations concerning joint defence against attack. The checks and balances in this exceptional situation are guaranteed by the fact that both houses of Parliament must consent. The law is silent on whether such a decision could be reviewed by the Constitutional Court, but I doubt the Court would be willing to rule on such an openly political issue. After all, the Court was unwilling to review the constitutionality of the declaration of a state of emergency in March 2020 (see the following text).

Unlike the state of war, threat to the state better fits the classical description of checks and balances. It requires cooperation between both the executive and legislative branches (this emergency is declared by both houses of Parliament at the proposal of the Government). As I have noted above, neither a state of war nor a threat to the state has ever been used.

More practically, the power to declare and prolong a state of emergency is also divided between the executive branch and legislature. A state of emergency is declared by the Government. The Government shall immediately inform the House of Representatives (the lower house of Parliament) of the declaration of a state of emergency. The House may cancel the declaration at any time. A state of emergency may be declared for a maximum period of 30 days, which may be extended only with the prior consent of the House.

When, in March 2020, the declaration of a (“COVID-19”) state of emergency was challenged before the Constitutional Court, the Court did not hesitate to emphasize its self-restraint. In the Court’s view, the responsibility for the lawfulness of the declaration rests with the Government, which is reviewed by the legislature (the House). The Court emphasized that the mere declaration of a state of emergency in 2020 had not (yet) restrained any rights (unlike previous declarations, which listed measures adopted to fight floods or other natural disasters; see II.1. below):

The Court would be less hesitant to review the declaration of a state of emergency if the declaration itself contained the rules capable of directly limiting the rights of individuals (this was the case of all declarations before 2020, which have not been challenged before the Court). As the Constitutional Court noted in a corresponding case, the declaration of a state of emergency…

There is no question that executive measures which restrict rights are subject to judicial review; if the latter are part of the declaration of a state of emergency (and generally they should be), the Constitutional Court will review themFootnote ¹⁷ (on this, see II.2. below).

The idea that the House of Representatives is a watchdog for the constitutionality of the declaration of a state of emergency might be good in theory and might even have worked well in a specific situation in 2020 when Czechia had a minority government (the government lacked a majority in the House of Representatives so it had to find support in the House on a case-by-case basis, so it is fair to say that the minority government was indeed carefully scrutinized by the lower house of Parliament). In a normal scenario, however, the government has a majority in the lower house, so one may wonder what kind of effective scrutiny it is subject to by the House composed of a majority of friendly members.

A good example is the state of emergency in 2022 related to the Ukrainian refugee crisis. The parliamentary elections of 2021 created a new political situation, with the government once again enjoying solid support in the House (a typical situation for most governments after the fall of the communist regime in 1989). A new government appointed in November 2021 soon faced a crisis arising from Russia’s invasion of Ukraine. It declared a state of emergency initially for 30 daysFootnote ¹⁸ but then extended it for two additional months.Footnote ¹⁹ Even though there were some concerns about whether this was constitutionally permissible (if the Constitutional Act makes it clear that a state of emergency can be declared for a maximum of 30 days, how is it possible for it to be extended by twice this length?), the government did not face any trouble in this regard in the House, which approved the extension without many complications. It is true that the opposition parties complained that the extension was too long and, therefore, unconstitutional, but they were unable to do much about it. Since the state of emergency did not affect the rights of citizens (instead, it allowed the state authorities to simplify some procedures related to the Ukrainian refugees), the opposition saw no possible political gain in challenging the extension in Court for the sake of constitutional purity.Footnote ²⁰

Anyway, the Constitutional Court made it clear that the absence of judicial review of the declaration of a state of emergency is not absolute. One can imagine circumstances in which the Court itself could (and should) assess, based on a petition by a political minority, whether the state of emergency was duly declared and whether it had had the intended constitutional effects. An act declaring a state of emergency could be annulled by the Constitutional Court if it contravened the fundamental principles of the democratic rule of law and if it constituted a change in the essential elements of the democratic rule of law (the “core of the Constitution,” which cannot be amended even by a constitutional supermajority of parliamentarians).Footnote ²¹

1. Emergencies before 2020

The Czech Republic entered the 21st century prepared for potential emergencies. Following the adoption of the Constitutional Act of 1998, the legislature passed the detailed Crisis Regulation Act in 2000 (see I.1. above). This paid off two years later.

In August 2002, a week of heavy rainfall caused flooding across much of Europe. Czechia (more precisely, its Western part, Bohemia) was hit particularly hard.Footnote ²² The severe flooding put the new emergency regulation to the test. The government declared a state of emergency on 12 August 2002 (it lasted 20 days, until 31 August 2002). The state of emergency was not declared for the whole republic but only for five western regions. The declaration listed the emergency measures ordered by the government to handle the crisis (e.g., evacuation of endangered persons from the affected and endangered area; prohibition of the entry, stay and movement of persons in the affected territory; labour assistance and the obligation to provide material resources to deal with the crisis situation; carrying out construction work and the removal of structures as necessary in connection with the development of the crisis).Footnote ²³ The 2002 floods proved that the new legislation was indeed a good tool for dealing with natural disasters. After all, the legislation was drafted by lawyers and politicians who had the 1997 floods in mind, so it was carefully tailored to deal with natural disasters. The state of emergency used in the summer of 2002 helped to manage the impending crisis and, unlike in 1997, resulted in far fewer deaths (17 in 2002 as opposed to 50 in 1997). The state of emergency was short and politically uncontroversial, so it was not challenged by anyone.

The following three states of emergency also addressed natural disasters, floods in 2006Footnote ²⁴ and 2013,Footnote ²⁵ and a devastating hurricane in 2007.Footnote ²⁶ They were declared for several weeks only, never longer than a month (18 days in 2006, 28 days in 2013, 12 days in 2007) and never for the entire territory (always just for the regions affected by the natural disaster).

If there were any judicial disputes, they were related to compensation for damages that occurred during rescue activities. According to the 2000 Crisis Regulation Act, the State is liable for damage caused to corporations and individuals in causal connection with crisis measures and exercises carried out pursuant to this Act. A typical example was the removal of a building to protect a neighbourhood from rising waters.Footnote ²⁷

2. Emergencies during the COVID-19 pandemic in general

Before 2020, states of emergency were only used in response to natural disasters. The laws were well drafted to deal with natural disasters in general and floods in particular. Of the four emergencies before 2020, three were due to floods, and one was due to a hurricane that damaged much of the forest in the mountains, so the laws were smoothly applied. The Covid pandemic in 2020 was a game-changer and presented the government with completely new challenges.

On 12 March 2020, the government declared a state of emergency. However, unlike previous emergency declarations, the March 2020 declaration did not list any restrictions on rights or executive measures to deal with the crisis. Instead, the declaration referred to subsequent emergency measures to be adopted separately by the government.Footnote ²⁸ These were measures typically employed to deal with the pandemic, such as lockdowns, closures of services, education, shops, etc. Those regulations were adopted by government resolution and published in the same way as ordinary legislation (i.e., in the official collection of laws).

The March 2020 declaration of the state of emergency raised two important questions. Both were soon answered because unhappy citizens challenged the declaration before the Constitutional Court. There was no possibility for citizens to challenge the law, so the Court had to dismiss these complaints. However, while doing so, the Court stated some important answers to the questions (technically, it was obiter dictum).

The first question was whether it was possible to declare a state of emergency without specifying the measures which would accompany the emergency. The text of the 1998 Constitutional Act on the Security of the Republic strongly indicated that this was not possible (“While declaring a state of emergency, the government must define which rights set out in the special law are restricted and to what extent, … and which obligations are imposed and to what extent.”). However, the Constitutional Court approved the declaration without providing any details, emphasizing the uncertainty associated with the novel situation of the global pandemic:

The second question concerned the legal nature of executive measures restricting citizens’ rights and granting certain powers to the authorities to deal with the crisis. The text of the Constitution was rather unclear in this respect. As citizens challenged many of these measures before the Constitutional Court in the spring of 2020, the Court found an opportunity to explain their legal nature in its decisions dismissing these constitutional complaints for lack of standing. The Court explained that these executive crisis measures were not administrative decisions or measures of a general nature that are subject to direct judicial review by the administrative judiciary. Directly applying these measures to an individual would be required to enable bringing an action against that application. In explaining what these measures are, the Court found refuge in classifying them as “sui generis legal regulations.”Footnote ³⁰

Although lawyers like labelling unknown concepts “sui generis,” such a label does not help us to understand the legal nature of the executive measures created during the emergency. Such a classification does, however, raise another question. It is a fundamental principle of Czech constitutional law that rights can only be limited by the act of parliament (legislation), not by any other (“inferior”) law. The Constitutional Court explained that the power to impose duties and limitations on fundamental rights according to an executive measure under the 1998 Constitutional Act is a special arrangement related to general constitutional principles (this special rule has primacy over a general rule). In the case of emergencies, therefore, the constitutional law allows “the basis of a certain obligation to be defined not in the legislation but only in a government decision, without limiting the possibility of setting the limits of this governmental authority by legislation.”Footnote ³¹

3. The first phase of fighting the pandemic: unlimited reign of the executive (March 2020–February 2021)

The COVID-19 pandemic proved to be persistent, with repeated declarations of a state of emergency in autumn 2020 and spring 2021. However, the separation of powers and parliamentary oversight worked due to the specific situation of the minority government (2018–2021), which had to find support in the House of Representatives for each extension of the state of emergency.

From a legal point of view, the COVID-19 pandemic regulation in the Czech Republic may be divided into two different phases. The initial stage covers the first twelve months of the pandemic, from March 2020 to the end of February 2021. During this period, the state of emergency was the decisive factor in dealing with the crisis, the executive and its measures were dominant, and the role of judicial review was very limited (see below).Footnote ³² The second phase began in March 2021. During this period, the parliament introduced a completely new state of emergency called “a state of pandemic alert.” Although the state of emergency continued until April 2021 (and then again briefly for thirty days in November and December 2021), the effect of the state of pandemic alert now predominated. The role of judicial review became the dominant feature of the second phase of the Covid crisis.

The first wave of Covid was covered by the state of emergency from 12 March to 17 May (67 days in total).Footnote ³³ Politically, the state of emergency was uncontroversial during this period; the political scene was united in the face of a novel situation and an unknown pandemic. The situation changed in autumn 2020. By the summer of 2020, it was widely believed that the pandemic was over. The reintroduction of the state of emergency in the autumn was a cold shower for most of the population and, therefore, became much more politically contentious.Footnote ³⁴ The state of emergency was declared on 5 October 2020 and lasted until 11 April 2021 (189 days in total, although technically, it was three successive states of emergency). Accordingly, the government’s position was much more vulnerable. As I mentioned above, it was a minority government that lacked a majority of deputies in the House. Even though the government played its role skilfully, and repeatedly managed to win the support of the fragmented House of Representatives and obtained five consecutive extensions, the government was ultimately defeated in a vote in February 2021, and the House did not agree to the sixth extension.

At the same time, however, the situation was extremely critical, with the number of sick and hospitalized people soaring across the country. As a result, the governors of the fourteen regions took advantage of a provision in the 2000 Crisis Regulation Act and asked the government to declare a new state of emergency. This move was ironic because almost all these regions were controlled by opposition politicians in 2021. The government used this opportunity to declare a brand new state of emergency, politically blaming the opposition, which was divided between its parliamentary faction (which strongly opposed any further extension of the state of emergency) and the regional factions, which favoured the extension due to the unfolding disaster in the regions.Footnote ³⁵ It should be stressed that the regional governors’ request did not oblige the government to declare a new state of emergency. In addition, there was an intriguing constitutional question as to whether the government was bypassing the previous negative vote of the House of Representatives: if the House did not agree to the extension, would it be possible for the government to simply announce a new state of emergency and seemingly start from scratch?

The members of the House of Representatives did not initiate proceedings before the Constitutional Court because they soon reached a new agreement with the government (see below). However, some senators did challenge a new state of emergency before the Constitutional Court. As the state of emergency lasted only twelve days (because of a new agreement between the House and the government), the Court could not rule on the case and had to dismiss it (based on the referral by parliamentarians, the Court can only rule on valid laws, not laws which have in the meanwhile been abolished). However, in dicta, the Court stated that the new state of emergency was unconstitutional (an unconstitutionality that the Court could not supposedly review). In the Court’s view, if the 1998 Constitutional Act on the Security of the Republic provides that the Government may declare a state of emergency for a maximum period of 30 days and that the said period may be extended only with the prior consent of the House of Representatives […], no other procedure for extending the state of emergency is possible. Unless the facts based on which the state of emergency was declared have changed, a state of emergency cannot be ‘re-declared’ by the Government from the moment the 'authorized’ state of emergency has ended, and the House of Representatives has not agreed to its extension.Footnote ³⁶

Here, the Court seemed to have resolved the issue, even though it had no jurisdiction to do so (the state of emergency has since been abolished by the act of the House of Representatives). As a result, this part of the Court’s reasoning became the target of five judges who wrote their own concurring opinions. The judges argued persuasively that if the Court did not have jurisdiction to review the constitutionality of the declaration of the state of emergency in this case, then logically, there was no place for such strong obiter dictum. Moreover, if the Court had already announced that it does not have the power to rule on the constitutionality of a proclamation of a state of emergency, then this part had no place in the Court’s decision. Finally, some of the concurring judges stressed that a new consensus had been reached between the government and the majority of the House. Personally, I agree with the concurring judges who pointed out many flaws in the Court’s brief reasoning, which was inconsistent, suffered from questionable methodology and contradicted previous case law. Above all, the opinion of the Court was so short that it failed to provide any meaningful legal reasoning. Further, it ignored the rapid political evolution that had taken place in the meantime and the new balance between the House of Representatives and the government.Footnote ³⁷

And indeed, political evolution did take place. In mid-February 2021, the COVID-19 crisis reached its peak in the Czech Republic, and the parliamentary opposition soon came under pressure from the regions controlled by the same parliamentary opposition. In a nutshell, all major parliamentary factions agreed that the continued state of emergency was necessary. Therefore, the parliament did not lift the state of emergency immediately, but the deputies postponed it until the adoption of a brand-new law that would cover some specifics of the legal regulation of pandemics.Footnote ³⁸ In the same month, on 27 February 2021, the legislature passed a law dealing specifically with COVID-19 in an accelerated procedure within a few daysFootnote ³⁹ (see III.4. below).

Prior to March 2021, it was extremely difficult to subject most executive measures adopted during the state of emergency to judicial review. The Constitutional Court repeatedly emphasized in its case law that these measures were laws (albeit “sui generis”). Since judges in the Czech Republic are bound only by acts of Parliament (legislation), all other laws may be reviewed by any ordinary judge. If the judge finds that the law is in conflict with the constitution or legislation, they will set the law aside (the judge, therefore, cannot annul the law).Footnote ⁴⁰ However, no one in the Czech Republic can file a lawsuit against a law that is directly applicable to his or her legal situation. In Czechia, there is no constitutional complaint that can be lodged against the law which directly violates rights, unlike in Germany and Hungary. Even if a law directly imposes obligations on individuals, a decision or other state action to apply the law (police intervention, seizure, arrest, etc.) is still required to initiate legal proceedings.

Most government measures in relation to COVID-19 were directly applicable and imposed immediate duties on individuals and corporations (e.g., bans on entry into some areas, face-mask mandates, work obligations of medical students, closures of schools, restaurants and other services, and the closure of state borders). Individuals and corporations could not challenge those rules but needed to wait for the public authority to make a decision or take some other action against them (or even provoke such a decision or action). This is why very few judicial cases were decided on the merits during this period. Most cases ended in vain, as the plaintiffs sued the state for enacting the law.Footnote ⁴¹ Some lower administrative courts tried to subsume these situations under lawsuits against unlawful interference by public authority. In this way, at least one lower court tried to create a special lawsuit against the direct effect of the law.Footnote ⁴² One chamber of the Supreme Administrative Court tried another approach: it simply assumed that the origin of the unlawful interference in the case of the prohibition on personal participation in teaching was the primary school – which is why the plaintiff could sue that school.Footnote ⁴³

The grand chamber of the Supreme Administrative Court rebuffed both ways of challenging the emergency laws. In the grand chamber’s opinion, neither schools nor shops, etc., can be held liable for a law enacted by the government if this law prohibited attendance at classes or closed the shops. Moreover, the effects directly resulting from a legal provision cannot constitute unlawful interference that can be contested before administrative courts. If these crisis regulations could be directly challenged (without any decision or another action aimed at the plaintiff), any law with direct effects could be sued before the administrative courts. This would be clearly beyond the power of the administrative judiciary, concluded the grand chamber.Footnote ⁴⁴

As a result, the only way to challenge these measures directly before the Constitutional Court was through the few institutions that were empowered to challenge laws directly (so-called general norm control), usually involving a group of deputies or senators. The problem was that the Constitutional Court could only rule on these complaints while the law was still in force. If its validity expired or the law was repealed by the lawmaker, the Constitutional Court must dismiss the complaint. As the “lifespan” of these measures was extremely short, the Constitutional Court was not able to rule on any of the cases filed by parliamentarians. All these cases were dismissed. The only exception was in February 2021, also thanks to the fast-tracked work of the judge-rapporteur attached to the case (the case arrived at the Court at the end of November 2020, and the Court decided the case within two months; by the time the case was announced, the law was no longer in force). The Constitutional Court, in this uniquely speedy case, abolished the executive crisis measure prohibiting retail sales and the sale and provision of services in establishments because the law was too broad and disproportional.Footnote ⁴⁵

4. The second phase of fighting the pandemic: “The rule of judges” (March 2021–December 2021)

The lack of proper judicial oversight of crisis regulation was severely criticized at the end of 2020 and the beginning of 2021. The COVID-19 law enacted in February 2021 allowed for much easier judicial review, and as a result of its adoption, the parliamentary opposition also agreed to the extension of the state of emergency.Footnote ⁴⁶ The adoption of the law marked the beginning of a new (“litigious”) phase in the legal handling of COVID-19.Footnote ⁴⁷

The pandemic alert began on the day the law was published, 27 February 2021. The state of pandemic alert was combined with the state of emergency for most of its duration. The law created new powers for the Ministry of Health and regional sanitary authorities. The most important innovation of the law was a new right for citizens to sue the Ministry of Health or the sanitary authorities and to challenge the laws issued by these institutions during the state of pandemic alert. Regulations enacted by the Ministry were challenged before the Supreme Administrative Court, while those enacted by the regional sanitary agencies were challenged before lower administrative courts. The Czech Supreme Administrative Court was selected to do this job because of the executive nature of those laws (which made this court a more natural candidate for this task than the Constitutional Court).Footnote ⁴⁸

In order to make this new proceeding fit with the general competences of administrative courts, the COVID-19 Law labelled these emergency regulations “measures of general nature”Footnote ⁴⁹ (which are within the powers of the administrative judiciary), even though the emergency regulations do not fit the doctrinal concept of “measures of general nature.”Footnote ⁵⁰

If the regulation was no longer valid, the court had to rule on the case regardlessFootnote ⁵¹ – an important novelty for the administrative courts, which otherwise never adjudicate on measures which have ceased to be valid.

A flood of cases followed (more than 300 cases were filed with the Supreme Administrative Court in 2021). Many regulations issued during the pandemic alert were annulled by the Supreme Administrative Court. There were two main reasons why so many regulations were annulled or declared unlawful by the Court. The first was the strict proportionality requirement in the Covid-19 law. The second was that the Covid-19 law was hastily drafted and did not provide many of the powers that the Ministry of Health believed it had. What happened in 2021 and 2022 might be called a sort of formalistic (textualist) judicial activism.

First, the Covid-19 law was quite strict with respect to many features of the regulations enacted during the pandemic alert. The authorities had to apply proportionality analysis while drafting the justification of the regulation. Because the Ministry of Health was unable to apply this requirement and largely ignored the application of the proportionality principle, the Supreme Administrative Court started to annul measures enacted by the Ministry.Footnote ⁵² Moreover, while making a new regulation, the authority had to review the previous regulation and assess its effectiveness. If it failed to do so, the new regulation would be unlawful.Footnote ⁵³ The case law demanded that the authority justify and prove almost everything. This requirement found drafters of the regulations unprepared and unable to do so.Footnote ⁵⁴ This, combined with the fact that the law provided for easy standing (virtually anyone could contest the regulations), caused so many annulments.

Second, the COVID-19 law was hastily drafted and suffered from many gaps and unclear rules. The Supreme Administrative Court refused to apply friendly reasoning in favour of the authorities and instead rigorously demanded that only proper statutory authorization could allow the Ministry and other authorities to produce crisis regulations. Accordingly, in May and June 2021, the Supreme Administrative Court found that many regulations did not have the proper statutory basis. Many bans, including closures of restaurants,Footnote ⁵⁵ elementary schools and kindergartensFootnote ⁵⁶ (ironically, only universities were under the powers of the Ministry of Health) and many other servicesFootnote ⁵⁷ were found to be beyond the powers of the Ministry.

The lessons of the Spring 2021 case law forced the legislature to enact an amendment to the COVID-19 law. The February 2022 amendment fixed many flaws criticized by the Supreme Administrative Court.Footnote ⁵⁸ However, this amendment was not tested in practice because the pandemic had begun to recede. Most of the provisions of the Covid-19 Law ceased to be effective on 1 December 2022, and the “pandemic alert” became a historical piece of the legislature. We may also say, however, that from a legal point of view, the legal system is again unprepared for any global pandemics that might occur.

5. States of emergency after COVID-19 (since 2022)

The last state of emergency related to COVID-19 was declared on 26 November 2021 and lasted just one month.Footnote ⁵⁹ COVID-19 was over, at least for now. But the world did not return to the good old peaceful days. On 24 February 2022, the Russian war against Ukraine began, with a flood of refugees from Ukraine. Soon, hundreds of thousands of refugees were crossing the Czech borders, and the government was struggling to meet the needs of so many people (mostly women with children). The response was to declare a new state of emergency in early March 2022. This state of emergency lasted almost four months (119 days) until the end of June 2022.Footnote ⁶⁰ The purpose of this was to simplify some legal procedures and generally provide the government with exemptions from the duty to follow some strict legal rules in public procurement, etc.

Unlike the COVID-19 states of emergency, the “Ukrainian” state of emergency was much less controversial, also because it did not impose any duties on citizens. Accordingly, there were no judicial disputes relating directly to this state of emergency. However, one interesting feature of this state of emergency has already been discussed above, in part I.2 (where I explained the problems of checks and balances relating to the declaration and extension of states of emergency).

6. The state of danger in practice

In part I.1., I already explained that the 2000 Crisis Regulation Act created a so-called state of danger, the least invasive state of emergency, which is not regulated by the 1998 Constitutional Act on the Security of the Czech Republic. A state of danger is declared if lives, health, property, or the environment are threatened, if the intensity of the threat does not reach a significant extent and if it is not possible to avert the threat through the normal activities of administrative authorities. If the emergency exceeds the powers or capabilities of the region, the governor should request that the government declare a state of emergency.

The governor of the region (or, in Prague, the mayor) may declare a state of danger applicable to part of the region’s territory or the entire region. A typical example of when the state of danger is declared is for less serious natural disasters, such as small-scale floods, landslides, and tornadoes, but also technical accidents (failure of a waterworks, leakage of a dangerous pollutant, etc.).Footnote ⁶¹ In practice, states of danger are not controversial, and I am aware of no litigation related to them.