By Patryk Wachowiec
A series of court judgements have challenged the legality of coronavirus restrictions introduced by the Polish government. This has encouraged a growing number of businesses to reopen in defiance lockdown measures, which they argue are unconstitutional.
From the legal point of view, the coronavirus pandemic has been an enormous challenge to the state. There has been an urgent need to amend or introduce huge amounts of legislation to allow local authorities, courts, schools and other public bodies to operate remotely or to extend time limits set in laws that citizens must comply with.
Similarly, it is beyond dispute that such extraordinary times demand measures to stop the spread if the virus, such as restrictions on movement, public gatherings or economic activity.
Avoiding a state of emergency
But, since the very beginning of the pandemic, an intense debate has been taking place among scholars, the legal community and civil society organisations over the legal basis for such interventions. In particular, many argue that only under an official “state of natural disaster” does the constitution allow more severe restrictions on movement, business activity and work to be introduced.
Yet the government has decided not to introduce a state of natural disaster. At first, it justified that decision on the basis of the need to organise presidential elections (which would have been postponed if those measures had been announced). It has also warned that declaring a natural disaster would require the state to pay enormous compensation to those negatively affected by the resultant restrictions, thus threatening public finances.
That latter claim was quickly debunked. While there would be some financial costs, these would only stretch as far as compensating for losses resulting directly from the restrictions (such as the seizure of vehicles in order to transport those infected by the virus), not the expected profit lost because of lockdown.
In any case, the government has during the pandemic introduced a series of large-scale compensation and stimulus measures to support struggling industries and workers. It looks like the decision not to announce a state of emergency – even when daily reported cases of COVID-19 peaked at above 20,000 in October – was purely political.
Executive orders
Instead, the government and its parliamentary majority have opted to manage the pandemic through ordinary legislation, in particular the law on infectious diseases of 2008, which provides for “a state of epidemic” in which the executive is granted powers to limit certain rights and freedoms (such as via compulsory quarantine or temporary closure of business activity) through secondary legislation.
However, such restrictions must be in line with both statutory and constitutional requirements including the principle of proportionality and prohibition of limiting the essence of rights and freedoms in governmental decrees. This is particularly important since the constitution explicitly allows any court to set aside secondary legislation should a judge find it inconsistent with superior law.
Since Poland’s first reported coronavirus case in March 2020, the government has introduced almost 50 regulations providing for various rules, such as compulsory face coverings, strict limits on public gatherings, quarantine for those travelling from abroad or the closure of certain businesses and venues. The executive went so far as to adopt a mandatory stay-at-home order for a few days in the spring and on New Year’s Eve, as well as completely closing gyms, nightclubs, public exhibitions and hotels.
At the same time, parliament authorised sanitary authorities to impose administrative fines of up to 30,000 zloty (€6,650) for violating the said measures and limited effective judicial review by making them immediately enforceable. Fines that can be imposed on the spot by police under the petty offences code have also been increased to 5,000 zloty (€1,100).
However, as noted above, unless the government uses constitutional emergency provisions, it is not allowed to deal with the outbreak by violating the essence of certain rights and freedoms, in particular by doing so through secondary legislation. Such legislation must also be strictly in line with statutes that delegated certain powers to the executive.
Courts question restrictions
Such doubts about the legal basis of Poland’s coronavirus restrictions have increasingly moved beyond theoretical academic discussions and into the courts. Hundreds of participants in protests have successfully challenged fines they received for violating face-covering or social distancing requirements, as well as limits on the size of public gatherings.
For example, one court in Gorzów Wielkopolski ruled that the law on infectious diseases allows the government to impose compulsory face covering only on those already infected or suspected of infection. Applying the rule to everyone, as the government has sought to do, was therefore illegitimate.
Courts have also found that the constitutional right to freedom of assembly permits citizens to take part in “spontaneous gatherings” in response to previously unexpected public issues. This is because, among other things, governmental regulations only prohibit “organising” larger gatherings, but not taking part in them.
Therefore, since unplanned assemblies are not formally “organised” (i.e. no prior registration before a competent authority is needed), there is no way to impose fines on people who spontaneously meet to express their views.
Other rulings have concerned mandatory quarantine orders for all people arriving from abroad. An administrative court in Gliwice found that statutory provisions allowing the government to limit freedom of movement or to introduce rules on compulsory quarantine could not be applied to everyone simply due to the fact that they crossed Polish borders and regardless of whether they display symptoms of COVID-19 or not.
With regard to economic activity, in October the administrative court in Opole quashed a fine imposed by the sanitary authorities on a hairdresser caught working in violation of regulations. It found that, should the government decide not to introduce a state of natural disaster (despite there being grounds to do so), it must strictly follow constitutional rules on limitations of rights and freedoms.
In particular, it held that the constitution allows restricting freedom of economic activity only in statutes, whereas all such limitations have so far been provided in secondary legislation. The court also noted that the practice of imposing administrative fines only on the basis of information provided by police officers violates procedural rights, such as the requirement to gather all relevant evidence.
Later, the administrative court in Szczecin went even further and held that, apart from the contested governmental restrictions, the wording of the law on infectious diseases itself does not fulfil constitutional criteria to be regarded as allowing the executive to adopt secondary legislation. According to the court, this statute does not precisely specify “the scope of matters” to be regulated by the government and lacks “guidelines concerning the wording of such regulation”, both required by the constitution.
Businesses defy lockdown
Although Polish courts do not set legally binding precedents, in response to the judgement in Opole hundreds of businesses decided to reopen in defiance of restrictions, counting on similar rulings in their own cases.
An initiative called #otwieraMY (#WeAreOpening) gathered restaurants, gyms, café bars, hotels and ski slopes across Poland whose owners invoke the Opole ruling whenever police officers or sanitary services check whether they are obeying the government’s restrictions.
Despite that, in most cases fines are still handed down because those laws are still in force, and it would be practically impossible for individual officers not to apply binding regulations in each case due to doubts about their constitutionality.
The mass non-compliance with the restrictions has provoked the executive to respond and remind businesses that any violation of lockdown rules leads to refusal to grant governmental financial support for those affected by the crisis.
However, from the point of view of the law, should a court rule to annul an administrative or criminal fine, there are no grounds to refuse such support. Otherwise, it would mean that the government does not respect courts’ rulings declaring that there was no violation as the very restrictions were unlawful.
Every week, more and more courts have been questioning the legality of various measures. Recently, citizens won all 21 cases that went before an administrative court in Warsaw concerning restrictions on movement, compulsory quarantine or face-covering requirements. Each of these cases contributes to the growing belief that, since the first COVID-19 case reported in March 2020, the Polish government has employed faulty legal measures to combat the outbreak.
The importance of rule of law
This story confirms the importance of an independent judiciary and, more generally, the rule of law, in particular in such extraordinary times. Judicial review allows citizens to check whether public authorities are complying with the constitution while exercising their powers over human rights and freedoms.
Apart from that, the rule of law assumes that those in power are accountable for actions which violate the law. It is therefore not impossible that one day members of the government that imposed illegal restrictions could face either civil or criminal responsibility.
At the same time, there are no grounds to believe that the ruling majority will change its course and start dealing with COVID-19 using an appropriate legal basis.
It looks like these chaotic measures adopted in the secondary legislation, followed less and less frequently and massively overruled by courts, will remain until the end of the pandemic. Were this not the case, the government could be seen to be admitting that the current limitations infringed the constitution and relevant statutes.
Main image credit: Grzegorz Celejewski / Agencja Gazeta
