The legal basis on which the freedom-restricting corona measures were based until the arrival of the pandemic law does not violate the Constitution – with a small exception. That is what the Constitutional Court states in a long-awaited judgment.
The Constitutional Court delivered a long-awaited judgment on Thursday afternoon on the constitutionality of most of the freedom-restricting corona measures imposed by our governments during the corona pandemic. Conclusion: The law on which the government relied does not violate the Constitution – with one minor exception.
From the outbreak of the pandemic, in March 2020 to October 2021, the government’s corona measures were legally based on the Civil Security Act of 2007, which gives the Minister of the Interior the power to oblige the population ‘in the event of threatening circumstances’. ‘to move away from places or areas that are particularly exposed, threatened or affected’.
The law also offers the possibility to ‘prohibit any movement or movement of the population’ and provides for penalties for those who do not follow the instructions. But the law was not initially intended for long-term restrictions on freedom, but to deal with acute emergencies such as explosions or other short-lived disasters.
The question was also whether the powers that the law gave to the Minister of the Interior did not go too far. Restrictions on constitutional rights and freedoms are only possible by law, and such an extensive delegation to one minister – not the entire government – many experts saw as too far-reaching.
In November 2020, a large group of constitutional specialists demanded a firmer legal basis in an open letter in this newspaper. Shortly afterwards, the then newly appointed Vivaldi government promised to work on such a pandemic law, but in the end due to all kinds of delays it took until February 2021 for the government to be out, until July for the special law to be approved in the House and until October. until it actually took effect.
It was on the constitutionality of that broadly defined delegation and the penal provisions of the civil security law that the Constitutional Court ruled on Thursday, in response to some so-called preliminary questions from the Charleroi Police Court.
“Since there are various types of risk and emergencies that cannot be described exhaustively and in detail, the legislator was able to choose broad terms to enable appropriate action to be taken with regard to those risks.” Court. The penal provisions are also sufficiently clear.
However, the Court finds one unconstitutionality. The Civil Security Act does not allow judges to take into account extenuating circumstances and for that reason impose a lower sentence than foreseen. That is the case with punishments that are in the Criminal Code. The Constitutional Court has ruled that this impossibility is discriminatory. The law will therefore have to be amended in that regard.
Third and final high court
The Constitutional Court is thus the third and last high court to give its approval to the legal basis of the original corona measures. Many judges, both at first instance and on appeal, had reversed certain sentences imposed on individuals for violating the measures.
But the Supreme Court of Cassation, the nation’s highest court, ruled in September 2021 that the Civil Security Act was sufficient as a legal basis. Earlier, the Council of State – the watchdog of the executive that was very flexible, especially at the beginning of the pandemic – had already given its approval.
On Thursday, the Constitutional Court also ruled on the constitutionality of the rules on contact tracing during the pandemic. The Court also gives the green light, with a few exceptions. For example, he cancels the absence of a maximum retention period for personal data and the authorization that has been granted to transfer personal data to third parties for the purpose of scientific research.
An annulment appeal against the pandemic law itself is also pending before the Constitutional Court, which is also not without controversy. However, a statement on this cannot be expected immediately.