Poland, Supreme Administrative Court, 5 October 2023, II GSK 1977/22
Case overview
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General Summary
The crux of the dispute is whether the imposition of the quarantine obligation on the applicant should be by means of an administrative decision issued by the competent health authority (instead of, as in the case, by a substantive - technical action of this institution). The complainant filed a complaint with the Voivodship Administrative Court in Bydgoszcz against the action of the Sanitary Inspector to place him under quarantine.
The Voivodship Administrative Court in Bydgoszcz declared the challenged action of the Sanitary Inspector to be ineffective. An appeal in cassation against the above judgment was filed by the Sanitary Inspector. The Supreme Administrative Court upheld the claim of the first instance court. In its reasoning, the Supreme Administrative Court held that it is only the administrative decision that determines the quarantine obligation for a specific addressee and thus has a guarantee function in relation to the rights and obligations of that addressee.
The imposition of the quarantine obligation constitutes an interference with fundamental civil rights and freedoms, e.g. freedom of movement, guaranteed by Article 52(1) of the Constitution, which, however, may be subject to limitations, but specified by law (Article 52(3) of the Constitution). Pursuant to Article 31(3) of the Constitution (the principle of proportionality), all limitations on the exercise of constitutional freedoms and rights may be established only by statute and only when they are necessary in a democratic state for its security or public order, or for the protection of the environment, public health and morals, or the freedoms and rights of others.
In this state of affairs § 5 (1) second sentence of the regulation of 6 May 2021, which states that no decision of a sanitary authority shall be issued in the case of placing a person in quarantine by the sanitary inspection authorities due to exposure to a disease caused by the SARS-CoV-2 virus, isolation or isolation at home, and information about this shall be placed in the information and communication system referred to in § 2(4)(1) cannot be applied in the case as it violates constitutional standards.
Facts of the case
The complainant filed a complaint of 22 November 2021 with the Voivodship Administrative Court in Bydgoszcz against the action of the Sanitary Inspector to place him under quarantine. The quarantine was imposed on the basis of a list of persons who had been in contact with a person infected with Covid-19, sent to the Sanitary Inspector by one of the public institutions, for the purpose of quarantine. The applicant considered that he was discriminated against, since persons vaccinated against Covid-19 were not subject to the mandatory quarantine.
The Voivodship Administrative Court in Bydgoszcz declared the challenged action of the Sanitary Inspector to be ineffective and ordered the Sanitary Inspector to reimburse the applicant's costs. In the first instance court's view, for the sake of completeness of evidence, all actions with regard to the complainant should have been recorded in the form of at least an official note and a printout from the authority's system, which materials could have made up the case file to be forwarded to the court together with the complaint and the response to the complaint.
In the light of art. 41, sec. 2, first sentence, of the Constitution of the Republic of Poland and art. 5, sec. 4, of the ECHR, a situation in which the Court does not have at its disposal the materials of the case which make it possible to control the legality of the measure bearing the hallmarks of deprivation of liberty applied to a given person within the meaning of the above mentioned legal acts, including its factual basis, is unacceptable. In the Court's view, the authority simplified the procedure and made judicial review impossible.
Type of measure challenged
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Individual / collective enforcement
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Private individual
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Reasoning of the deciding body
The Supreme Administrative Court upheld the claim of the first instance court. In its reasoning, the Supreme Administrative Court held that it follows from Article 34(2) of the Act of 5 December 2008 on the Prevention and control of infections and infectious diseases in humans (Journal of Laws 2021, item 2069, as amended) that, in order to impose a quarantine obligation, it is necessary first to identify persons who meet the conditions set out in this provision, i.e. who have been exposed to the infectious disease or have been in contact with the source of the pathogenic agent, and who do not show symptoms of the disease. It is only the administrative decision that determines the quarantine obligation for a specific addressee and thus has a guarantee function in relation to the rights and obligations of that addressee.
The imposition of the quarantine obligation constitutes an interference with fundamental civil rights and freedoms, e.g. freedom of movement, guaranteed by Article 52(1) of the Constitution, which, however, may be subject to limitations, but specified by law (Article 52(3) of the Constitution). Taking into account the scope of other restrictions related to the imposition of the quarantine, the imposition of the quarantine should also be considered, as the Court of First Instance correctly argues, from the perspective of Article 41(1) of the Constitution, from which it follows that everyone is guaranteed personal inviolability and personal liberty, and in the second sentence that deprivation or restriction of liberty may take place only on the principles and in the manner specified by law. Pursuant to Article 31(3) of the Constitution (the principle of proportionality), all limitations on the exercise of constitutional freedoms and rights may be established only by statute and only when they are necessary in a democratic state for its security or public order, or for the protection of the environment, public health and morals, or the freedoms and rights of others. The constitutional conditions for the restriction or deprivation of personal liberty are, in this respect, the same as those set out in Article 5(1)(e) of the ECHR, from which it follows that everyone has the right to liberty and security of person.
In this state of affairs, it is necessary to share the argumentation presented in the case law of the SAC (judgments of 2.06.2023, ref. no. II GSK 1304/22; 10.01.2023, ref. no. II GSK 672/22) that § 5 (1) second sentence of the regulation of 6.05.2021, which states that no decision of a sanitary authority shall be issued in the case of placing a person in quarantine by the sanitary inspection authorities due to exposure to a disease caused by the SARS-CoV-2 virus, isolation or isolation at home, and information about this shall be placed in the information and communication system referred to in § 2(4)(1) cannot be applied in the case as it violates constitutional standards. Taking into account the arguments set out above, the allegations of procedural violations were also unjustified.
Conclusions of the deciding body
Compulsory quarantine cannot be imposed without an administrative decision. Such an obligation must result from a law and not from a sub-statutory act. This would be contrary to the constitutional principles of limiting civil rights and freedoms.
Fundamental Right(s) involved
- Freedom of movement of people, goods and capital
- Right to health (inc. right to vaccination, right to access to reproductive health)
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Principle of Proportionality, Art. 31 sec.3, Polish Constitution
- Freedom of movement, Art. 52(1), Polish Constitution
- Right to liberty and security of person, Art. 5(1), Polish Constitution
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
- Rule of law
- Proportionality
Balancing techniques and principles (proportionality, reasonableness, others)
Principle of proportionality – article 31 (3) of the Constitution.
Impact on Legislation/Policy
None. But the legislator has made multiple changes to the executive regulation in question in the following months of the COVID-19 pandemic. Furthermore, at the time of adjudication, there were no restrictions on the mode of movement in force.
