OGH: Jurisdiction in the case of "self-monitored home quarantine"

Sept 15, 2021 Benn-Ibler Rechtsanwälte

In the present case, the Supreme Court (Oberste Gerichtshof, OGH) examined the question of the application of Section 7(1a) sentence 2 of the Epidemics Act (Epidemiegesetz, EpiG) to "self-monitored home quarantine," which arises directly from the COVID-19 Entry Ordinance (COVID-19-EinreiseV).

Sec. 7(1a)(2) of the EpiG provides for review by the ordinary courts in the event of a mandatory quarantine.

The applicant went into "self-monitored quarantine" after his vacation without an official order in accordance with the COVID-19-EinreiseV. Two days later, he filed a motion with the district court requesting the immediate lifting of the restriction of liberty ordered by the regulation.

The court of first instance denied the motion on the grounds that Sec. 7(1a)(2) of the EpiG applied only to judicial review based on individual legal acts. The application was inadmissible in the present case because the quarantine obligation resulted directly from a regulation. The Court of Appeal confirmed this legal opinion.

The OGH first held that Sec. 7(1a)(2) EpiG grants a detained person a right of judicial review. This choice of wording indicates that the norm only deals with guidelines that are decreed ad personam. Such an interpretation is confirmed by systematic considerations, because the cited norm refers to Section 2 of the Tuberculosis Act (Tuberkulosegesetz) with regard to review, which serves only concretely personally ordered restrictions of freedom. The materials of the law also explicitly give the persons on whom a measure restricting freedom has been decreed the opportunity of a judicial review of the measure.

According to the OGH, Sec. 7(1a)(2) of the EpiG could not be interpreted to mean that the review procedure is applied to the quarantine obligation based on the COVID-19-EinreiseV.

The OGH therefore ruled in conclusion that it can already be read from Sec. 7(1a)(2) EpiG that the regulation is limited only to "ad personam ordered detentions".

OGH 7 Ob 45/21z (31.08.2021)