Whoever thought that traveling to and from the Czech Republic would return to normal after the end of the state of emergency on 18 May 2020 was wrong.
Border checks remain in place until 13 June 2020 and air, rail and bus services are still suspended. Restrictions on entering and leaving the country remain almost unchanged without a time limit, tourists are still completely banned from entering. This raises legal issues, also with regard to the role of the Ministry of Health.
The closing of the Czech Republic starting from mid-March 2020 was very strict in European terms. The borders were completely closed, and passenger air, rail and bus transport was almost completely suspended. From mid-March 2020, Czech citizens and citizens of the EU and third countries with a residence permit were even forbidden to leave the country; however, this ban was gradually lifted. Tourists were completely excluded from entering the Czech Republic, which is still the case, and Czech citizens and citizens of the EU and third countries had to present, with some exceptions, a PCR test which could not be older than four days, and they had to submit a notice of the arrival electronically in advance. These rules basically continue to apply; the test should be submitted on a form in Czech/English, and the test result must not be older than four (4) days. In addition, movement restrictions or a 14-day quarantine apply.
The actual restrictions on entering and leaving the country introduced by the government's task force under the Constitutional Act on the Security of the Czech Republic in mid-March have remained virtually unchanged since 18 May 2020, as they have applied since early April 2020. The actual restrictions on entry and exit, which the government's crisis management team had put into force from mid-March 2020 on the basis of the Security and Crisis Act of the Czech Republic, will remain in force from 18 May 2020 virtually unchanged as they have been in force since the beginning of April 2020 (see our previous article "Again new Czech entry and exit rules during the emergency".
These restrictions now apply under a Decree of the Ministry of Health of 15 May 2020, referred to as a "protective measure", issued by the Minister of Health pursuant to Section 68 and Section 80 of the Public Health Protection Act (Act No. 258/2000 Sb. (Collection of Laws)), without a time limit. However, after the end of the state of emergency, this "protective measure" raises questions, as only on 23 April 2020 the Metropolitan Court in Prague annulled, with effect as of 27 April 2020, by a very well-reasoned judgment (Ref. No. 14 A 41/2020), six (6) decisions of the Ministry of Health of March and April 2020 on restrictions on retail, provision of services and prohibition of movement within the Czech Republic (the decisions were immediately re-approved by the government task force) due to unconstitutionality. In these abstract proceedings on the review of the legal rules, the Metropolitan Court in Prague came to the conclusion that it has jurisdiction over these proceedings, although other courts are also dealing with the same proceedings, among others the Constitutional Court and the Supreme Administrative Court of the Czech Republic, and secondly, that the Ministry of Health has no authority to issue such measures at all. According to the Constitutional Act on the Security of the Czech Republic and the Crisis Management Act (Act No. 110/1998 Sb. (Collection of Laws) and Act No. 240/2000 Sb. (Collection of Laws)), only the government as a whole is authorized to issue measures, and not individual ministries. The reason for this is the principle of division of power, which is limited but not suspended at times of the state of emergency, and also the risk that the foundations of a democratic state governed by the rule of law will be weakened if legislative work is carried out not only by the government but also by individual ministries. This is explained in a detailed and comprehensible manner and justified. The Metropolitan Court also points out that, contrary to Article 15 of the European Convention on Human Rights, the Council of Europe was not notified of the restrictions on fundamental rights as a result of the emergency measures.
The new restrictions on entering and leaving the country contain almost literally the existing regulation, but they are issued only by the Ministry of Health. Nevertheless, this is not a "protective measure", but rather an abstract regulation, i.e., it is a label fraud perpetrated by the Ministry of Health. If the authority of the Ministry of Health did not exist at the time of the state of emergency, its authority after the end of the state of emergency is even more disputable. Although the Ministry of Health provides justification of the "protective measure" on four pages, the justification is more a self-praise and makes absurd propositions (without the Czech government’s measures, "millions" would become infected in the Czech Republic, i.e., at least 20% of the population!!) rather than an answer to the question whether Section 68(1) and Section 80 actually allow for such far-reaching protective measures to be ordered by the ministry which suffered a severe defeat in court on 23 April 2020; the adequacy of restrictions on entering and leaving the country or the question of the need for a time limit for the measures are not justified either.
It should be noted that, according to the Schengen Borders Code, border checks have been extended by another month until mid-June 2020, and restrictions on entering and leaving the country continue to apply without a time limit. In addition to the negative coronavirus test, quarantine or restriction on movement of individuals who arrived in the country are also envisaged, because the test is not reliable, according to the Ministry of Health. In particular for tourists and individuals who are not covered by exemptions relating to entering and leaving the country, i.e., those who have no "serious reason" to enter the country but can produce a negative test, an absolute ban on entering the country seems disproportionate, also due to the fact that the risk of infection outside the Czech Republic is not higher, it is now comparable in Europe. In addition, Czech hotel keepers and restaurant owners have to do without foreign tourists until further notice, and they have to reckon with a significant reduction in turnover and losses in the coming months, which the Czech state does not intend to compensate.
Regulation ("protective measure") of the Ministry of Health of 15 May 2020
Constitutional Act on the Security of the Czech Republic (Act No. 110/1998 Sb. (Collection of Laws))
Crisis Management Act (Act No. 240/2000 Sb. (Collection of Laws))