The Supreme Court upheld 3 cassations of the Human Rights Defender, concerning convictions for violation of the prohibition of movement introduced by the government on March 25, 2020 – April 19, 2020. The judges decided that the limiting regulation had no legal basis.
During the year of fighting the pandemic, the lockdown took many faces. The harshest was at the beginning, when the government hoped for a quick smothering COVID-19 in the bud, he introduced a ban on movement: according to the regulation, people could leave the house only to meet an important life need.
This restriction, as indeed all the others postulated by the government, including those relating to economic activity, was introduced by means of a regulation. Considering the appeals of the Commissioner for Human Rights Supreme Court he confirmed what the common courts said, refusing to punish citizens for breaking such provisions: they were introduced contrary to the Constitution.
The Supreme Court ruled that the prohibition of movement was inconsistent with the Constitution
Ombudsman decided to bring a cassation appeal against the judgments of citizens for breaking the ordinances, pointing to the lack of proper legal validation of the bans. The government did not decide to declare a state of natural disaster, and introduced the restrictions by ordinance, and not by an act required by the Constitution.
Supreme Court confirmed the defectiveness of the regulations introduced by the government, stating that “the cassation appeal was obviously justified”. The ruling is of great importance for the functioning of the state, as argued in the Dziennik Gazeta Prawna daily by attorney Andrzej Michałowski.
This means that both earlier and future regulations that interfere with constitutional freedoms, as long as they are also introduced by means of ordinances, have no legal basis. So they can be effectively challenged.
Lawyers emphasize that the Supreme Court confirmed that they were introduced by regulations restrictions they have no legal basis and cannot be binding on citizens.
Dariusz Zbroja, deputy director of the criminal law team in Office of the Commissioner for Human Rights.
In all these cases, the Ombudsman alleged violation of Art. 54 of the Code of Petty Offenses in connection with the relevant provisions of the ordinances of the Council of Ministers on restrictions, orders and bans applicable during the epidemic. The main argument was the issue of the unconstitutionality of the provisions of the regulation, which established the prohibition of movement due to the fact that this type of restriction of constitutional rights should be established by the act on introducing a state of emergency, e.g. a state of natural disaster.
The representative of the Human Rights Defender added that the regulation exceeded the statutory authorization, because the delegation from the act on preventing and combating infections and infectious diseases in humans (i.e. Journal of Laws of 2020, item 1845, as amended) allowed for the introduction of restrictions, not a total prohibition. This statement should be of particular interest to entrepreneurs who have been imposed a ban on accepting customers by the government through a regulation. The ruling of the Supreme Court brought closer to the recognition of unconstitutional also these restrictions.
Introducing restrictions by means of ordinances, and not by means of laws and declaration of a state of natural disaster, is interpreted as the government’s desire to avoid the responsibility of the state and the necessity to pay compensation closed enterprises. The obligation to compensate the business arises directly from the law; instead, the government has decided to launch anti-crisis shields, which are only available to a select few, and the amounts of support are often inadequate to losses suffered by entrepreneurs as a result of the lockdown.
RadioZET.pl/Dziennik Gazeta Prawna