Poland, Supreme Administrative Court, 25 January 2023, II GSK 429/22
Case overview
Country
Case ID
Decision date
Deciding body (English)
Deciding body (Original)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Instance
Area
Outcome of the decision
Link to the full text of the decision
General Summary
The case concerns the imposition of a fine on a person who, while walking on the street, did not keep a distance of 2 m from other people. At the time such an obligation was imposed by government regulations.
Pursuant to the statutory delegation in Article 46b of the Act of 5 December 2008 on preventing and combating infections and infectious diseases in humans (consolidated text Dz.U. of 2019, item 1239 as amended), the regulation referred to in Article 46a may establish an order for a specific mode of movement (point 12). In the Regulation of the Council of Ministers of 2 May 2020 on the establishment of certain restrictions, orders and prohibitions in connection with the occurrence of an epidemic state (Journal of Laws of 2020, item 792) establishes an order to move on foot at a distance of at least 2 m from each other (§ 17 section 1 point 1).
In the case, it was undisputed that the claimant did not maintain the required distance when walking on the street. The sanitary authorities of both instances unanimously decided to impose an administrative fine of PLN 5,000.
The Voivodship Administrative Court found that the decisions of both instances were issued without legal basis and in violation of the law, and discontinued the proceedings. The Court of first instance pointed out that the basic condition for a constitutional limitation of civil rights is to establish them only by law (not regulation or other lower-order act). The regulation underlying the imposition of the restriction on the mode of movement contained in the regulation of the Council of Ministers did not fulfil this constitutional criterion.
The Supreme Administrative Court dismissed the cassation appeal.
Facts of the case
In the grounds for the appeal decision of 10 March 2021, the Voivodship Sanitary Inspector stated that an official note, drafted on 7 May 2020 by a police officer, showed that the claimant has attended a public gathering and did not keep a distance of 2 m from other people, while walking on the street. The amount of the penalty was determined by the real risk to the health and life of other people associated with the exposure to the SARS-COV-2 virus caused by the claimant's action.
Type of measure challenged
Measures, actions, remedies claimed
- annulment of the administrative decision
- discontinuance of administrative proceedings
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private individualDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
Pursuant to Article 52(1) of the Constitution of the Republic of Poland, everyone is guaranteed freedom of movement within the territory of the Republic of Poland. Although this freedom is not of an absolute nature, in accordance with the will of the legislator, it may be subject to limitations specified only by law (Article 52 Paragraph 3 of the Constitution). In the case at hand, the problem was whether the restriction on the mode of movement was correctly (i.e. formally and legally) introduced into legal order.
The court held that the introduction of restrictions on the exercise of constitutional human and civil rights and freedoms is in principle possible and permissible in situations of special threats that create the possibility of introducing an appropriate state of emergency: martial law, a state of emergency or a state of natural disaster (Article 228 (1) of Constitution). A state of natural disaster has not been introduced but a state of epidemic, preceded by a state of epidemic emergency, was introduced in its place. Since it is not a state of emergency within the meaning of Article 228(1) of the Constitution, it cannot lead to a violation of fundamental rights and freedoms, together with the restrictions introduced on its basis.
In the opinion of the Court, the implementing regulation established on the basis of the Act on preventing and combating infections and infectious diseases in humans allowed for the introduction of general restrictions on the exercise of the constitutional personal freedom of movement by orders, prohibitions and obligations limiting the use of this freedom, addressed to anyone residing in the territory of Poland. This led to a violation of law – contrary to the principle of absolute exclusivity of the act in the scope of repressive laws, almost all significant subjective and objective features of the administrative tort referred to above were defined not in the act, but in the executive regulation. Hence, it was not the act, but the regulation that defined the complete outline of the orders it introduced, the violation of which was subject to penalisation.
Conclusions of the deciding body
The Court rejected the claim of the public authority (which lodged a cassation appeal) and upheld the judgement of the first instance court.
In the Court's view, there was a violation of the constitutional principle of limitation of rights only by law. The contested decision of the sanitary authority was issued on the basis of an executive regulation issued in excess of the statutory delegation, without legal basis.
Fundamental Right(s) involved
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
- Rule of law
- State of emergency or necessity
Balancing techniques and principles (proportionality, reasonableness, others)
The Court referred to the principle of proportionality (art. 31 sec. 3 of the Constitution) but the emphasis was on the legal grounds that allow rights to be restricted by law rather than by executive order.
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.
