Background

The Supreme Court -Nejvyšší správní soud (NSS)- heard a lawsuit filed by a woman from Brno challenging the Covid Health Pass aka Digital Green Certificates. The provisions (established Dec 29, 2021) prohibit customers from entering food service establishments, music, dance, gambling and similar social clubs and discos, gambling halls and casinos, and from using short-term and vacation accommodation services unless they meet what the ministry calls “infection-free” conditions. These conditions are either completion of vaccination or having contracted covid-19 within the last 180 days. Only in exceptional circumstances is it possible to prove oneself by PCR test. [1]

Significance

This case is highly important as it challenges the very fundamentals of the Rights of the individual in a “free” society.

Plaintiff’s Argument

…More information is needed…

…More information is needed…

Relevant Prior Judgements/ Cases

In Spain, [2]

the Basque High Court ruled against the introduction of the vaccine passport for certain venues in November, arguing the measure was unjustified.

Despite the ruling, the vaccine passport was later approved after the case was taken to the Spanish supreme court in December.

Just months prior in August, the Spanish Supreme Court ruled that Spain’s 2020 strict lockdown policies had been unconstitutional but claimed that businesses and people were not eligible to take the government to court to sue for monetary damages incurred during the lockdowns.

Decision

• The Supreme Administrative Court (NSS) has dealt another heavy blow to the Health Ministry’s measures restricting the operation of restaurants or accommodation in the fight against the coronavirus pandemic. The court overturned an extraordinary measure, according to which people without completed vaccinations or after an illness were banned from entering catering establishments, clubs and short-term accommodation. [1]

• The Supreme Administrative Court of the Czech Republic has ordered the abolition of vaccine passports for restaurants, hotels, and other venues, arguing that the measure is tantamount to vaccination coercion, and therefore not legal. [3]

• The judges left the measure in place for one more week, after which it will cease to apply. [1]
• Judge Mikeš ruled that the government’s pandemic laws do not allow for the specific regulation of restaurants, clubs and hotels and that measures would only be justified if the government could prove the entire country was at risk of the Wuhan coronavirus or if the government were to enact a state of emergency and use emergency powers to force venues to accept the vaccine passport. [2]

“The Supreme Administrative Court has already stated in the past that the Ministry of Health has no basis for restricting this type of establishment in the so-called Pandemic Act, unless it is technical measures, such as the use of disinfection or the placement of seating,” Mikeš stated. [2]

• According to NSS Chief Justice Peter Mikes, the ministry had no support in the pandemic law for restricting services. [1]

“The ministry has no justification for restricting these types of establishments in the so-called pandemic law, unless they are technical measures, such as the use of disinfection or the placement of seating. The ministry could only restrict their activities under the Public Health Protection Act, but only against persons suspected of being infected,” Mikes explained, adding

that not everyone can be suspected of being infected without further ado. This would only be conceivable if the entire Czech Republic was designated as an outbreak.

The aim of the measure cannot be to indirectly force citizens to vaccinate

The state may not force people to vaccinate, referring to the ministry’s argumentation, which is voluntary. [1]

“However, the aim of the measure cannot be to indirectly force citizens to vaccinate. This would turn voluntary vaccination into compulsory vaccination by means of an emergency measure, since unvaccinated persons would have no choice but to be vaccinated if they wanted to live a normal life,” Mikeš stressed. [1]

• Supreme Administrative Court Judge Petr Mikes described the measure banning unvaccinated people from going to restaurants as illegal. [1]
• “The ministry has three options under the current legislation. [1]

1. Either assess the situation to be so bad that everyone can be considered suspected of being infected,
2. or appeal to the government to declare a state of emergency.
3. And of course there is the option of leaving the area unregulated,” Mikes said.

• The SAC erred when it did not address the objection to the recognition of antibodies, the Constitutional Court ruled [1]

“Under the current wording of the Pandemic Act, the Ministry of Health could only adopt a similar regulation if the conditions of the Public Health Protection Act were met. If these conditions are not met, then it is up to the government to decide whether it is able to manage the pandemic without such regulation or whether this is not the case, and if other conditions are met, this is grounds for declaring a state of emergency and adopting similar regulation through a government emergency measure,” Mikes added. [1]

Aftermath

Statement from Prime Minister Petr Fiala

The Czech Republic will stop requiring COVID passes for entry to restaurants and other service or entertainment venues starting next week, opening them up to unvaccinated people, Prime Minister Petr Fiala said. [3]

As Novinky.cz reports, the change will take effect on February 9, following a decision by Czech cabinet ministers on Wednesday evening. [3]

“Taking into account current developments, the government will abolish the obligation to prove with a certificate of vaccination or negative test when entering restaurants, services, cultural and sports events on February 9,” said Prime Minister Petr Fiala (ODS).

According to Fiala, the obligation to wear respirators indoors will remain in force. “According to experts, it proves to be highly effective and at the same time minimally restrictive,” he said.

The limit on the number of participants in mass events will also continue to apply, added Fiala. [3]

• Measures requiring mask wearing indoors and limits to the number of people at public events will remain. [3]
• Those who have not suffered from covid-19 or are not vaccinated will also be able to enter restaurants and hotels. [3]
• Compulsory wide-ranging coronavirus testing at work and in schools will also end on February 18. [3]

Statement from Health Minister Vlastimil Válek 

Health Minister Vlastimil Válek (TOP 09) first planned to comment on the verdict at a government press conference. However, he commented on the verdict at the plenary session of the lower house, which is dealing with an amendment to the pandemic law, saying that this is why the norm needs to be adopted. The SPD MPs are complicating its discussion by obstructing it. [1]

The minister supports amendments to the controversial pandemic law, which entail a wider range of COVID-19 restrictions, including the introduction of mandatory testing of entrepreneurs, students, and teachers, as well as a separate set of measures by the defence and interior ministries.

If the amendment to the pandemic law were already in force, the current situation would not have arisen, according to Válek. “This measure would be unassailable,” Válek told the plenary. [1]

Válek told Novosti on Saturday that entry to restaurants for the unvaccinated is under discussion in the Czech Republic. [1]

Despite Válek’s support for more pandemic laws, he also stated

“I believe that in March we will be able to cancel all [coronavirus] measures to the maximum. The current development of the epidemic and the forecast for the near future prove that [it is possible],” Valek said at a meeting with lawmakers. [4]

The Supreme Court has other actions on the table against existing measures, and it is possible that it will overturn them on similar grounds. [1]

Further Research

Court Documents:

• Read the Court Ruling

In the news:

• …More information is needed…

related:

• Czech Supreme Court Abolishes Mask Obligation. What Happens Now?

• Czech Republic to End Mandatory COVID Testing This Month

Media

Keyword

antibodies, Chief Justice Peter Mikes, constitution, Constitutional Court, Covid Health Pass, Czech, Czech Republic, Digital Green Certificates, Health Minister, Ministry of Health, Nejvyšší správní soud, NSS, Pandemic Act, Public Health Protection Act, Supreme Court, TOP 09, Unconstitutional, Vaccine, Válek, Vlastimil