Poland, Supreme Administrative Court, 23 September 2021, No. II GSK 844/21
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
Further areas addressed
- Use of protection devices
- Sanctions and remedies
- Restriction of freedom and rights by law
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 was not wearing a protective mask while standing in line on May 9, 2020 at a petrol station during a period when such an obligation was imposed by government regulation.
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 obligation for sick persons and persons suspected of contracting the disease to undergo medical examinations and other prophylactic measures and treatments (point 4) and an order for a specific mode of movement (point 12). In the Regulation of the Council of Ministers of 16 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orders and prohibitions in connection with the occurrence of an epidemic state (Journal of Laws of 2020, item 878, repealed) establishes an order to move on foot at a distance of at least 2 m from each other (§ 16 section 1 point 1), as well as an order to cover the nose and mouth, among others, in commercial or service facilities (§ 17 section 1 point 2c).
In the case, there was no doubt that the complainant did not keep the required distance while standing in the checkout queue, nor did he have his nose and mouth covered. The health authorities of both instances unanimously decided to impose an administrative fine of PLN 5 000.
The Regional Administrative Court found that the decisions of both instances were issued without legal basis and in gross violation of the law and discontinued the proceedings. The Court of first instance pointed out that the basic condition for a constitutional limitation of citizens' 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 manner of movement and the order to cover the mouth and nose contained in the regulation do 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 25 June 2020, the Voivodship Sanitary Inspector stated that an official note, drafted on 9 May 2020 at 19:30 by a police officer, showed that the appellant, while standing at a service station in a queue to the cash register and the shop, did not keep a distance of 2 metres from other people and did not wear a protective mask over his mouth and nose. The amount of the penalty was determined by the degree of danger to the health and life of other people that was caused by the applicant's action. Due to the creation of a direct threat to the most important legally protected goods, i.e. health and life of citizens, the authority was forced to consider that no personal conditions of the party could influence the amount of the administrative penalty that had to be imposed on the addressee of the decision.
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
In accordance with Article 52(1) of the Constitution of the Republic of Poland, everyone is guaranteed personal freedom of movement within the territory of Poland. Although this freedom is not of a personal nature, it may, in accordance with the will of the legislator, be subject to limitations specified only by law (Article 52 Paragraph 3 of the Constitution). Regardless of the formal criterion for introducing limitations to the scope of exercise of freedom, such limitations may not at the same time violate the essence of the freedom or subjective right in question (Article 31 clause 3 of the Constitution). Bearing in mind the provisions of the Constitution, the court held that no sub-statutory regulation may now appear in the common law system which is not directly based on the Act and which does not serve its implementation. The introduction of restrictions on the exercise of constitutional human and civil rights and freedoms, consisting in the establishment of common orders and bans that interfere with these freedoms and rights, is basically possible and permissible in situations of special threats that create the possibility of introducing an appropriate state of emergency, namely the state of emergency martial law, a state of emergency or a state of natural disaster (Article 228 (1) of Constitution), which means that the rules of operation of public authorities and the extent to which human and civil freedoms and rights may be restricted during individual states of emergency are specified by statute. Despite the fact that the prerequisites for the introduction of a state of natural disaster have been updated, it has not been introduced, and the state of epidemics introduced in its place, preceded by a state of epidemic threat, due to the fact that it is not a state of emergency within the meaning of Article 228(1) of the Constitution, may not lead to violation of fundamental rights and freedoms, together with the restrictions introduced on its basis.
Pursuant to the provisions of art. 46a and art. 46b of the Act on preventing and combating infections and infectious diseases in humans, the Council of Ministers was authorized to make executive regulations concerning the scope of application of these provisions. As a result, the executive regulation established on its basis allowed for the imposition of general restrictions on the exercise of the constitutional personal freedom of movement (movement) by orders, prohibitions and obligations limiting the use of this freedom, addressed to anyone legally present in the territory of Poland. In the opinion of the Court, contrary to the principle of absolute exclusivity of the act in the field of repressive (sanctioning and disciplining) provisions (regulations), virtually all significant subjective and objective features of the tort referred to above were defined not in the act, but in the executive regulation. Thus, it was not reading the act, but reading the regulation that defined the complete outline of the orders introduced by it, 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.
According to the Court, all significant subjective and objective features of the tort consisting in not keeping a distance of 2 meters from other people and not covering the nose and mouth were defined not in the act, but in the executive regulation. The above is a violation of the constitutional principle of limiting rights only by law and leads to the conclusion that the contested decisions of the health authorities made on the basis of executive regulation issued in excess of the statutory reference were made without a 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
- The principle of limiting rights by law
Balancing techniques and principles (proportionality, reasonableness, others)
The Court referred to the principle of proportionality and necessity which is regulated in Art. 31 sec. 3 of the Constitution: Restrictions on the exercise of constitutional rights and freedoms may be established only by statute and only if they are necessary in a democratic state for its safety or public order, or for the protection of the environment, public health and morality, or the freedoms and rights of other persons. These limitations cannot affect the substance of freedoms and rights. In the case, the court emphasized the limitation of rights by statute, considering that failure to meet this obligation constituted a violation of the provisions of the constitution.
Impact on Legislation/Policy
Yes, after the judgement, to art. 46b of the Act of 5 December 2008 on preventing and combating infections and infectious diseases in humans, point 13 was added by the Act of 28 October 2020 (Journal of Laws 2020.2112) amending the above Act, which explicitly stated that the regulation may establish an order to cover the mouth and nose, in certain circumstances, places and objects and in certain areas, together with how to carry out this order.
