Commentary and criticism of the decision of the Constitutional Court of the Republic of Slovenia, No. U-I-83/20, on the legality and constitutionality of the restrictions of constitutional and fundamental human rights and freedoms during the official 2020 Coronavirus Covid-19 pandemic
dr. Andraž Teršek,
Professor of Constitutional Law
Faculty of Education, University of Primorska and European Faculty of Law, New University
Introduction
During the official 2020 Coronavirus Covid-19 pandemic, I published on this blog an article titled “Reflection On Legal and Political Deliberations Regarding Human Life and Dignity After the 2020 Coronavirus Pandemic” (June 12, 2020). After the official pandemic, my fellow lawyers and I published an article on this blog (July 10, 2020) entitled “On the legality and constitutionality of measures and restrictions to constitutional rights in Slovenia during Official Coronavirus Pandemic 2020“. In it, we critically analyzed the legality and constitutionality, as well as the legitimacy under international law, of measures that were in force in Slovenia during the official pandemic and that strongly interfered with fundamental constitutional and human rights and freedoms. We evaluated the measures as being illegal and unconstitutional. Now, in Slovenia, we have finally awaited Constitutional Court’s decision on the legality and constitutionality of these measures. The decision comes as no surprise to me. However, I am very disappointed with the decision of the Constitutional Court. In the following I offer the readers a detailed critical commentary on this decision.
I would like to start by saying that there is a real possibility that the initiator who unsuccessful before the Slovenian Constitutional Court may appeal to the ECtHR.
I was just about to read a media report about a US federal judge who declared measures restricting the exercise of basic constitutional rights and freedoms, similar to those in force in Slovenia during the officially declared pandemic, to be unconstitutional and accompanied it with a message to the authorities: good intentions and exceptional circumstances do not yet release the authorities of their legal obligation to respect the criteria of legality and constitutionality when taking measures restricting fundamental rights and freedoms. It is very likely that the case will soon be brought before the US Supreme Court. However, the Slovenian Constitutional Court has been slow in deciding on the issue, albeit quicker than the US Judiciary. The public announcement of the Constitutional Court decision no. U-I-83/20 distracted me from reading the American cases in detail first. Slovenian Constitutional Court did exactly the opposite of what the US judges want to prevent.
About the decision of the majority (5:4)
I have been expecting such a majority decision of the Constitutional Court. I have also been expecting which judge would be the “rider on the scales.” It was the president of the Court, undoubtedly. For me, there are almost no surprises as far as the important decisions of the Slovenian Constitutional Court are concerned. Mostly no big ones. I know most of the constitutional judges very well, concerning their way of thinking and their characters. Besides that, many people like to keep me informed about interesting information regarding the constitutional judges, even if the messages go through several communicators and mediators. They are not always perfect, but they are usually accurate.
The decision is fatal and historic.
In general, the reasoning of the decision of the majority of constitutional judges is read as a report on the official positions of the Government of the Republic of Slovenia, or as a summary of these positions. Which is more than unfortunate. In the reasoning, an attempt is made to make the reasoning look convincing and well thought out, constitutionally considered. But it misses this goal – at least as far as I am concerned as an attentive reader of this text. However, it succeeds in explaining something else, even if I can only speculate whether this has been done in a well-considered way and with concentrated caution: it avoids defining all (!) of the most controversial issues, which in several places form decisive overlaps between constitutional, daily-political and social questions and the medical aspects of the case. But it is precisely these intersections that are at the heart of the matter. In addition to the issues addressed directly and explicitly, these overlaps also include indirect and parallel issues – legal, medical, and political – which form an inseparable whole with central questions about the existence of a legitimate objective of restricting certain constitutional rights and freedoms, about the proportionality of restrictions in a narrower and broader sense in connection with the legitimate objective, about the application of the proportionality test and the suitability of the means used to achieve the legitimate objective, and in particular about the proven existence of the “necessity” of state action (Decree and measures). The common thread is expressed, as always, in the implicit question of “appropriateness” in the constitutional review, in the question of the inclusion of objective, honest and clear “reason” in the thinking of these measures, taking into account all known facts and circumstances. Especially when one thinks of the “substantiating persuasiveness” and “professional persuasiveness” of the arguments of the Government of the Republic of Slovenia. Finally, this clearly, understandably, and convincingly results from the divergent opinions of the minority in relation to the decision of the majority.
First, however, on the reasons for the final and binding decision of the majority.
After reading paragraph 28 in the reasoning, it becomes clear that there will be many conceptual and descriptive variations and, above all, many naked summaries of the official positions of the Government of the Republic of Slovenia and insufficient constitutional argumentation. I ended the reading with such an impression, a strong one. The indecisiveness of the majority in using the terms ‘epidemic’ and ‘pandemic’ is only worrying. But it is not insignificant. Nor is the sentence in the explanatory statement, which informs the reader that “the pandemic is still going on”, even though it has been officially ended. Because it was marked by the word “war against the virus” and because the authorities like to win “wars”, it was symbolically accompanied by a military scene: the flight of military aircrafts over the capital Ljubljana.
The problem of ‘retroactivity’ – which arose when the Communicable Diseases Act (in the Slovenian abbreviation: ZNB) delegated the power to decide on the existence of the epidemic, the definition of endangered areas in the country and the definition of measures to the Minister of Health and his prior, also logically necessary, consultation with the National Institute of Public Health (NIJZ) and the Slovenian medical profession/community, even though the measures were adopted by the Government of the Republic of Slovenia – was resolved most quickly and dryly. The Government subsequently changed the content of the relevant provisions of the Act by reducing the powers of the Minister and introducing extensive powers of the Government. This is more worrying. To put it simply: Constitutional Court majority is satisfied with the fact that the provisions of the Act and their content are now as they are, and that the intermediate point at which these provisions and their content were amended is practically eliminated in one sentence as an insufficient issue of constitutional significance or does not constitute a constitutional problem. For most. Very unconvincing.
This issue, which is a problem, is constitutionally important precisely because the government has subsequently amended this part of the content of the Act. If it had not been changed and the content of the Act had remained unchanged, the problem would have been – at least in my opinion – smaller. By amending the provision in the Act dealing with the possibility of declaring an epidemic and defining areas at risk, while the Government was entrusted with the definition of special health measures, the Government subsequently provided the legal basis for its actions, which have previously directly concerned the Minister and – with logical substantive and institutional necessity – the NIJZ as the central decision-maker – and not the Government, its commissions or professional working-groups.
At that time, I expected that an argument would follow concerning the substantive quality and constitutional integrity of the provisions of the Act as such. However, the majority decided that they did not need to question or defend the constitutional integrity of the Act itself, since without this they could decide on the constitutionality and legality of executive acts. All the more regrettable and no longer merely distracting.
The last sentence in paragraph 34 of the reasoning is probably important, but it is too incomprehensible to be commented on convincingly. So I will not quote it. The majority focuses on the first paragraph of Article 8 and the first paragraph of Article 39 of the above mentioned Act. From the Constitution, it refers to the first paragraph of Article 32 (freedom of movement) as the core of the problem. Between the sentences, a special sequence suddenly appears, in which the words “epidemic” and “pandemic” are constantly changing, which also appear together as “epidemic or pandemic”, and the description “nationally declared epidemic” is the most commonly used.
Suddenly the words about “mutual ethical obligations of citizens” appear in the reasoning. This phrase, which introduces the notion and concept of “ethics” in the majority decision, predicts the central part of the argument by which the majority affirms the legitimacy of the goal pursued by the Government. Too unfortunate. However, the question of “ethics” is very important in this matter. But for another reason. On this in the concluding part of the article.
This is followed by the content in which the majority points to the existence of a “serious infectious disease” and summarizes the official positions of the Government and its PR. By referring exclusively to the official positions of the Government, presented at press conferences, and published on the website of the Government, the majority concludes that all measures were “medically/professionally justified”. The majority attributes the status of the general opinion of the medical profession, i.e. the Slovenian, European, and worldwide medical community, to the Government PR and the so-called professional commission, on whose behalf one person, one doctor (a woman), acts at all times. The majority determines the official Government PR, press-releases and medical evaluations exclusively formed inside the Government expert-commission (Slovenian public does not know the names of the members of this commission) and working-group (the identity of its members in unknown) as a matter of “professional justification” of the measures. Even though this argument always revolves around the name of the representative of the expert-group of the Government (one doctor, a woman), which appears in the reasoning only slightly less frequently than the word Constitution. Even if this person does not officially bear the title of government spokesman because this official title is held by another male person who is an official government spokesman, this person does in fact appear in public all the time as the press co-representative of the Government. At the same time, and this is very important, as a person who speaks on behalf of the entire Slovenian health community, including the European health community, and therefore on behalf of the two university clinical centres, the NIJZ, all other health care institutions, and institutes and all Slovenian doctors. Or at least more than just a qualified majority of the entire medical community. Therefore, also on behalf of the supposedly unanimous Slovenian immunologists. It behaves as if it is merely conveying messages to the public that are about a “consensus” in medical science and the profession. From this, the majority concludes that the “pressing need” for action and measures is proven: all of them, and exactly as they were during the pandemic.
Really? I was overwhelmed with anxiety. The explanation of the majority decision undermined my constitutional patience. I needed a break before continuing my concentrated reading.
After the break, I continued with paragraph 47 of the reasoning. I quickly realized that the break was too short and the psychological preparation for continuing the reading was too short. In this paragraph and in the following paragraph of the explanation the majority defines “direct, physical contact between people” as a proven, justified and immediate danger of the spread of a “serious infectious disease”. However, it does not distinguish between “contact between people” and “freedom of movement of people” without contact with other people. The majority doesn’t address the logic of freedom of movement precisely because of the withdrawal of people, turning away from the possibility of direct contact with other people, getting away from people; into the forests, into nature… The problem of “contacts”, physical contacts, the proximity between one person and another that is so slight that the “virus” can move from one person to another, or their offspring can shed with another person, is automatically equivalent to the question of “freedom of movement”. Not a single sentence addresses the essential difference between the question of “contacts” and the question of “movement” – away from contacts, into the forest, into nature, into solitude…
I took another break. Longer. With psychological preparation for the sequel.
In paragraph 49, the majority writes that there should be ‘no speculation’ on this matter. In other words, on issues of danger, the seriousness of the danger, the immediacy of the danger, medical and scientific justification, and the noble aims of the authorities. It does this by excluding the “risk of speculation” by referring only to the official positions of the Government and the statements of the head of the group of experts, that already mentioned and a single doctor, who is the de facto press co-representative of the Government. Such argumentation seems to the majority to be “reasonable”.
In paragraph 50, the majority who cannot decide whether it is an epidemic, a pandemic, or an epidemic throughout the entire national territory, but who have previously decided that the pandemic is still ongoing, uses the expression “epidemic or pandemic”. For the majority these are synonyms. At this point majority uses the argument “experiences of other countries”. These “other countries” ARE only Italy. Period. The paragraph ends with the statement that the Government has justified “transparent reasons” for the measures.
I needed a third break.
In paragraph 51 of the reasoning, the majority again uses the word sequence “epidemic throughout Slovenia”. This is suddenly followed by a sentence that mentions areas with a higher number of infections and thus a higher risk of transmitting a serious infectious disease. However, the majority does not apply these word sequences to the provisions of the Act, the content of the regulation (Decree), the content and scope of restrictive measures, or the scope for interpretation of the constitutional right to free movement and general freedom of conduct. Nor does it affect the scope for interpretation of the right to health and a healthy living environment. In other words, the majority only uses these words without explaining clearly and specifically why it used them, why it used them correctly at this point, and what exactly the majority wanted to say with these words. The conclusion is that the measures were “appropriate”.
In paragraph 52, the majority finds that the measures were also “necessary”. In paragraph 54, it finds that they were “necessary” to prevent actual contact between people, without justifying how “actual contact between people” can be synonymous with “freedom of movement” that follows the purpose of moving away from people. Therefore, the majority does not explain why it is more difficult to transmit the virus from one person to another when all people from a particular municipality are in the public areas of that municipality at the same time, and easier when all people from the same municipality are not in the same municipality when they are away from home. The majority does not say anything about this at all. It, therefore, concludes in paragraph 55 of the reasoning that the “seriousness of the interference” with constitutional rights is “commensurate” with the “aim” and “benefit” of the measures.
This is followed by a sentence of brilliance: “In exceptional cases” (note: when the movement was allowed, but under the strict criteria for allowing exceptions, such as having to travel to the workplace, or needing to go to the store to buy necessary goods since there is no such store in one’s own municipality, “there was no impairment of freedom of movement.” I read that sentence five times. Brilliant.
Then follows a sentence in which the concept of “ethics” creeps in again: the weight of the restrictive measures is tempered by the importance of the ethical duties we have towards each other. I have read it several times. I am not sure I understood it. But, as it is written, it is meant to mean that it is the ethical duty of every individual towards other people not to leave his municipality in a state of extraordinary social circumstances and to move only to public areas of his own municipality where other residents, all inhabitants of the same municipality move to, because a retreat into another municipality and away from people living in the same municipality would constitute a violation of the ethical duty towards other people from one’s own municipality and towards people from other municipalities, none of which is officially defined as a particularly dangerous area, and even if the municipality from which one comes does not have the status of a particularly vulnerable municipality because the whole area is at epidemic risk, which means that it is a pandemic, which is synonymous with an epidemic, which means an epidemic and a pandemic, which means an epidemic in the whole country without first identifying individual areas as particularly vulnerable, and this will not happen if all the inhabitants of the same municipality move only within the boundaries of their municipality. Something like this, I guess.
Then the majority finds out that it is an “unknown epidemic” and that the measures could be even stricter given the situation in Italy. And because they were not even stricter, they were sensible.
In paragraph 58 of the reasoning, the majority affirms that “the infected areas are scattered throughout the country”. It is therefore appropriate, proportionate, and reasonable, but at the same time necessary, to prohibit movement outside the municipal boundaries. Why?
In paragraph 61, the majority concludes that the measures are “clear” because their content and purpose are clear. And it describes the explanations of the measures offered to the general public during the official pandemic (epidemic?) on the website of the Ministry of the Interior on a daily basis not as a problem of their “clarity”, but as “welcome” – because they are intended for the “predominantly legally ignorant/uneducated public”.
This is followed by the “statement” of the majority that the measures were not only based on the official positions of the Government and the PR presentations but had a “broader context”. What this broader context is, the majority does not say.
Paragraphs 62 and 63 introduce the final decision of the majority. The beginning of the final argument. According to the second paragraph of Article 15 of the Constitution ((1.) Human rights and fundamental freedoms are exercised directly on the basis of the Constitution. (2.) The law may prescribe the manner of exercising human rights and fundamental freedoms when so provided by the Constitution, or if this is necessary due to the very nature of an individual right or freedom. (3.) Human rights and fundamental freedoms are limited only by the rights of others and in cases provided for in this Constitution)), the measures were not only “proportional” but… such measures can be taken by the Government of the Republic of Slovenia “even under normal circumstances”. I repeat: such measures can be taken by the Government of the Republic of Slovenia under normal circumstances. Because, of course, the Constitution does not require Government to declare “a state of emergency” (Article 16 of the Constitution) for such measures which (only) affect the free movement of persons, and at the same time, Article 32 of the Constitution is not subject to the exceptions of Article 16 of the Constitution.
I claim: with this decision of the Slovenian Constitutional Court the ghost escaped the bottle irrevocably.
The reasoning concludes by stating that, in making this assessment, the majority did not need to assess the legal basis for the measures, i.e. the constitutionality of the Communicable Diseases Act.
Dissenting opinions (4:5)
I leave aside the affirmative dissenting opinions. Mostly out of leniency. But I will allow myself to say: as usual, one of these opinions, written by the president of the Constitutional Court, is characterized by modesty, or rather by the simplicity of its arguments and by the absence of anything constitutionally tangible or at least partially convincing, even if it is written on several pages.
Judge dr. M. Accetto, in an understandable and convincing dissenting opinion, which was written very leniently and politely, emphasized that both the Government and the majority had completely forgotten all other issues concerning “public health” and the adverse effects of such measures on the general health of the population. The judge essentially points out that the measures taken by the Government were in no way “professionally justified” and were neither proposed nor confirmed by the medical community nor by the National Institute of Public Health. In particular, he draws attention to the problem of the dangerous nature of this decision, which informs the Government and the public that in exceptional cases, when it is necessary to act quickly, almost anything is therefore permissible for the government. He stresses that the NIJZ is not an “end” but a “means” of government policy. And he concludes that the majority has forgotten to assess and distinguish between “forms of restriction of freedom of movement”.
Judge dr. Š. Mežnar, in a dissenting opinion (joined by judge dr. K. Šugman Stubbs), immediately turns to a very important question: Constitutional Court should also evaluate the legal basis, i.e. the provisions of the Act, and not only the measures enforced by the decrees. She points out that the majority decision confirms the position that the law gives the Government “only the power” to act and not the restrictions of its actions. She points out that in the Slovenian constitutional system, the legislator is the one who determines the rights, obligations and limitations, which are regulated by laws, and not the Government, which would regulate them by decrees. She concludes, in common sense, that these precisely assessed measures did not in fact “contribute to the restriction of contacts” because they were not necessary for that purpose – such restrictions were already imposed by other measures, less severe. She noted that the Government had in no way justified the “necessity of measures”. She recalled the decision of the Austrian Constitutional Court explaining to the Government that the executive branch may regulate executive matters only within the limits of the law and may only adopt such restrictive measures in specific and particularly vulnerable areas. She accuses the majority of “cowardice” and describes the actions of the government as “professional unfoundedness”.
The brilliant dissenting opinion of judge dr. P. Čeferin literally nails the decision of the majority to the pillar of shame. It leaves the impression that a wise, educated, and experienced teacher would rebuke and underestimate the unworthy product of an underage student. The judge points out that the decision of the majority creates a “dangerous precedent”. He explains succinctly that the majority most apparently applied the proportionality test in such a way that it was able to confirm the predicted result. He stresses that the Government did not justify the contested measures as being appropriate, proportionate, necessary, or “professionally justified”. In this case, he asks, was it really the “medical community” recommending and confirming the measures? He also answers: it was neither the Slovenian medical community nor the National Institute of Public Health! Judge dr. P. Čeferin politely and calmly, but resolutely and without hesitation, recalls the fact of the rapid political changes in the position of the director of the Nation Institute of Public Health and does not forget to mention that dr. M. Eržen was replaced as the director of the Institute precisely because he opposed the measures of the Government and publicly declared that they were not in accordance with the National Institute of Public Health recommendations. The medical profession either rejected the measures to restrict freedom of movement or did not take a stand on them, but did not agree with them in any way, the judge emphasized. It is common sense to write that the ban on movement increased the health risk at best. He wrote down a logical and rhetorical question: if the virus is present everywhere in Slovenia, why the ban on crossing municipal borders? He accuses the majority of the decision of “misleading” and lack of “facts” that would justify the final decision. He also criticizes the Act, stressing that it is a sub-normative act that gives the government too much room for maneuver. He even describes it as an “unconstitutional executive clause”.
Conclusion
The decision in question is undoubtedly the most important decision of the Constitutional Court in its current composition. What is more, I see it as a fateful decision. Unlike the aforementioned US federal judge, who, with regard to the legality and constitutionality of interventions in constitutional rights and freedoms, has described restrictive measures of the executive branch as unconstitutional, pointing out that legal measures invoked in special social circumstances must still fulfill the criteria of their legality in constitutionality, the majority vote in the Slovenian Constitutional Court gives the executive branch a blanket power to substantially restrict constitutional rights and freedoms by ordinances, decrees, if only the government indicates a “direct and immediate health threat” and only on the basis of official positions of the Government and its de facto press representatives, whether they have a daily-political or professional title.
I maintain that with this decision of the Constitutional Court the protection of constitutionality and legality in the social constitutional democracy of the foundational model, the Slovenian people have lost the protection of the supreme institutional protector of the constitutional order and their rights and freedoms – against daily party politics. Emphasizing that this case did not involve difficult constitutional issues, or the problem of different interpretations of elusive constitutional concepts and doctrines, or different views on borderline or controversial constitutional issues. It is about reason, about common sense. At the heart of the matter lies determination, freedom of principle, fearlessness, upright ethical stance, and personal integrity, which must determine the public office of constitutional judge. The minority that lost the vote maintained the above. The minority that lost the vote has joined that (large and apparently growing) section of the thinking public that dares to know and recognize the pitfalls of seduction, manipulation, deception, and populism when these pretend to work categorically and exclusively for the common good and the well-being of the people. The minority has tied itself to public opinion, which relies on reason, on the power of argument, on evidence, on a broader context, rather than naked statistics that raise more questions than they provide answers. The minority of judges relied on logic, constitutionally convincing good faith, and proven sincerity.
If I had been elected to the position of the constitutional judge on the 16th of June 2020, I would not vote with a majority in this case.
With regard to the Slovenian public, which from day to day experiences what is happening in the country as an increasingly difficult, increasingly stressful, and less and less healthy life, and which will perhaps or probably experience even more difficult life and living circumstances, even more stressful, and even less healthy life, accompanied by an apparent overthrow of the rule of law and a mocking disrespect for the constitution – I have to say I am sorry: for the fact that in the process of running for the office of constitutional judge, I foresaw six traps being set, five of which I successfully jumped over, but I could not cope with the last, sixth trap and trick, with politically corruptive “secret ballot” on my candidacy in the National Assembly, which most obviously was not secret at all, but very well planned and instructed in advance and in striking opposition to what has been previously and publicly announced and promised by parliamentary political parties.
