Poland, Supreme Administrative Court, 31 January 2023, II GSK 413/22

The Supreme Administrative Court upheld the claim of the first instance court. The Supreme Administrative Court stressed that freedom of movement (Article 52(1) and (2) of the Polish Constitution), is a specific manifestation of personal freedom (Article 31(2) of the Constitution) and exemplifies the general liberty status of the individual (Article 31(1) of the Constitution).

The court stated that the cassation appeal does not challenge the fact that the statutory authorization regarding the possibility of introducing by (executive) regulation the obligation to cover the mouth and nose in places open to the public was not enacted until the amendment law of 28 October 2020 (with effect from 29 November, 2020) and the violation of this obligation attributed to the party took place on 26 August 2020.The freedom of the individual is not absolute, however in accordance with the will of the constitutional legislator, it may be subject to limitations specified only by law (Article 31(3) of the Constitution).

This means that regardless of the indicated formal criterion for the introduction of restrictions on the exercise of constitutional freedoms, these restrictions must not at the same time violate the essence of the freedom or subjective right in question (see Constitutional Court judgments of: 12 January 1999, P 2/98; 25 May 1999, SK 9/98; 10 April 2002, K 26/00) and their introduction may be justified if, at the same time, it is necessary in a democratic state for its security or public order, or for the protection of the environment, health and public morals, or the freedoms and rights of others. Failure to preserve the statutory form for restrictions of freedoms and rights must lead to the disqualification of the provision in question as contrary to Article 31(3) of the Constitution (see the judgment of the Constitutional Court of 19 May 1998, U 5/97).

In the context of the degree of detail (depth) of statutory regulation, the Supreme Administrative Court stressed that in some areas the absolute exclusivity of the law (act of parliament) is relevant (see the judgment of the Constitutional Court: in the case K 28/98 and the judgment of 24 March 1998, K 40/97) - these areas include the sphere of human freedoms and rights and the sphere of provisions of a repressive (sanctioning-disciplining) nature, the purpose of which is to subject a citizen to some form of punishment or sanction.

The case-law of the Constitutional Court, emphasizes that "With regard to the sphere of human freedoms and rights, the reservation of the exclusively statutory rank of the their limitations should be understood literally, with the exclusion of the admissibility of subdelegation, i.e., the delegation of normative competence to another body, analogous to the exclusion of such a possibility with regard to executive regulations vis-à-vis laws [acts of parliament]. [...] in this specific matter, which is the regulation of human and civil liberties and rights, the provided necessary or even only permitted by the Constitution, the statutory regulation must be characterized by completeness. In any case, in a situation of a dispute between an individual and a public authority over the scope or manner of exercising freedoms and rights, the legal basis for resolving this dispute cannot be detached from the constitutional norms, nor have a rank lower than that of a law [act of parlkiament]" (see judgment of 19 May 1998, U 5/97; see also, for example, judgments of the Constitutional Court of: 28 June 2000, K 34/99; 6 March 2000, P 10/99; 7 November 2000, K 16/00; 19 July 2011, P 9/09). In addition, the Constitutional Court (judgment of 25 May 1998, U 19/97) explained that "The requirement to include directly in the text of a law all the essential elements of a legal regulation must be applied with particular rigor when the regulation concerns the sovereign forms of action of public administration bodies towards citizens, the rights and obligations of the administration body and the citizen within the framework of the public-law relationship, or the exercise by citizens of their rights and freedoms [...]."

The SAC pointed out that, in light of the current Constitution of the Republic of Poland, the introduction of restrictions on the exercise of constitutional freedoms and rights of man and citizen, consisting in the establishment of general orders and prohibitions interfering with these freedoms and rights, is in principle possible and at the same time permissible in situations of special danger, which create the possibility of introducing an appropriate extraordinary measures, namely a state of war, a state of emergency or a state of natural disaster (Art. 228(1) of the Constitution), with the result that the rules of action of public authorities and the extent to which human and civil liberties and rights may be restricted during particular states of emergency are determined by law.

The SAC stressed that it shares the legal view presented in the court jurisprudence that despite the actualization of the premises justifying the introduction of the state of natural disaster, it was not introduced, and the state of epidemics introduced in its place, preceded by a state of epidemiological emergency, as it is not an extraordinary measure within the meaning of Article 228(1) of the Constitution of the Republic of Poland, cannot lead, together with the restrictions introduced on its basis, to a violation of fundamental rights and freedoms (see the judgment of the Supreme Court of 16 March 2021, II KK 64/21). The basis for issuing the challenged decision was the Regulation of the Council of Ministers of 7 August 2020 (issued on the basis of Article 46a and Article 46b of the Law of 5 December 2008) on the establishment of certain restrictions, orders and prohibitions in connection with the outbreak of an epidemic, which stipulated that the obligation to cover the mouth and nose, among other things, in places open to the public, was imposed until further notice. Failure to preserve the statutory form for restrictions on human and civil liberties and rights in relation to the simultaneous exclusion in this sphere of the admissibility of subdelegation, i.e. the delegation of normative competence to another body, analogously to the exclusion of such a possibility in relation to executive regulations in relation to laws, must lead to the disqualification of the legal regulation in question, as contrary to Article 31(3) of the Constitution (the principle of admissibility of restrictions on constitutional rights and freedoms).

The SAC stressed that the solution of taking legislative intervention in personal freedom in this form of lawmaking, which is not a law (act of parliament), is unacceptable. The authority granted to the Council of Ministers, under the provisions of Articles 46a and 46b of the Law on the prevention and control of infections and infectious diseases in humans, to enact executive regulations, when it came to its scope, resulted in the fact that the executive regulation made it possible to impose widespread restrictions on the exercise of constitutional personal freedom by means of injunctions, prohibitions and obligations addressed to everyone limiting the exercise of this freedom, including the imposition of fines.

The Court further emphasized that the statutory authorization for the possibility of introducing by executrive regulation a sanctioned obligation to cover the mouth and nose in places open to the public was not enacted until the amendment law of 28 October 2020, with effect from 29 November 2020. The SAC found that, contrary to the principle of absolute exclusivity of the law (act of parliament) in the field of provisions (regulations) of a repressive (sanctioning-disciplining) nature, virtually all of the relevant subjective and material elements of the tort (failure to cover one's mouth and nose in a publicly accessible place) were specified not in the law, but in the executive regulation. Consequently, it was not the law, the executive regulation that determined the complete scope of the orders introduced by it, the violation of which was subject to penalization. The court found that the provision of Section 24(1) of the Regulation of 7 August 2020 could not constitute, or co-form a substantive legal basis for imposing a fine on the applicant for violation of the orders established therein and, besides, was issued in excess of the statutory authorization.

The SAC further emphasized that in light of the conditions arising from Article 92 of the Constitution for the constitutionality and legality of a regulation, as a normative act issued on the basis of and for the purpose of implementing a law, the provision of the law establishing the authorization to issue an executive act is subject to a strict linguistic interpretation and cannot lead to the inclusion in the scope of the authorization of matters not mentioned therein by means of a teleological interpretation (see, e.g.: judgments of the Constitutional Tribunal of: 11 May 1999, P 9/98; 5 October 1999, U 4/99; 22 November 1999, U 6/99). The provisions of the executive regulation must remain in a substantive and functional relationship to the statutory solutions (see the judgment of the Constitutional Court of 16 February 1999, SK 11/98). Failure to comply with the constitutional requirements results in the ordinance becoming, in essence, a self-contained act, thus deprived of its strictly executive character in relation to the law.