On the Legality and Constitutionality of Measures and Restrictions On Constitutional Rights in Slovenia, During an Official Coronavirus Pandemic 2020
dr. A. Teršek, D. Pavlin, J. Dragan, mag. B. Nastran & N. Vražič
Just before the official start of this year’s Coronavirus COVID-19 pandemic, the previous Slovenian government resigned and a new government coalition of parliamentary parties (four) was formed. New government was faced with a new challenge and a lot of responsibility. It was necessary to act and act quickly and decisively. But also responsibly. And, finally, legally and constitutionally correct.
In the first phase, the government faced the challenge and problem of the CIVID-19 virus by adopting the Decree on the Temporary General Prohibition of Movement and Gathering of People in Public Places and Areas in the Republic of Slovenia and on the Prohibition of Movement (In the following: Decree), on the basis of the Infectious Diseases Act. Outside the municipalities borders any movement was prohibited unless with special reasons and due to special circumstances officially allowed by government. No “state of emergency” has been officially declared in Slovenia. This possibility is otherwise regulated by the Slovenian Constitution in Article 92. The s.c. “State of emergency” was established, which created actual and extraordinary living condition as de facto state of emergency. Slovenian citizens were living “in quarantine.”
During the pandemic, some of us have repeatedly, in good faith and with the best of intentions, called on the government and the media not to neglect the psychological impact of fear, the health consequences of fear, anxiety and uncertainty of the people. We have been advocating the public should be much less addressed by politicians and their PR’s and much more by representatives of medical profession. We argued against the policy of “pure statistical data” on COVID-19 communication with the public: the number of people tested, the number of people hospitalized, the number of people in home-quarantine and the number of deaths. We proposed a broader context should be reported: on the age of patients, their previous health status, possible chronic diseases, incurable diseases and the possible (unfortunately) expectation of imminent death due to the disease. One of us was not successful at that as far as the government official are concerned. But there was more success in addressing the media to repeatedly choose medical professionals as their interlocutors, as well as psychologists, psychiatrists and psychotherapists. Due to its beneficial, soothing effect on the mental and general well-being of people, and thus on the immune system and health as such.
On 7th of June 2020, a Slovenian Institute for Public Health spokesman described Slovenia as a “dangerous country” due to COVID-19. So we are even more worried that the fear among the people will become epidemic.
To date (9th of June 2020), the Constitutional Court (CC) has not yet publicly presented its final decision on the initiative for a constitutional review of the Decree, which it adopted for meritorious consideration (case no. U-I-83/20-10). It is publicly known that the initiative accepted for consideration (unofficially we were informed that more than 60 similar initiatives had been filed) had already problematized the existence of a well-founded legal interest in filing it. It is legitimate to ask why the CC decided to consider this very initiative on the merits? We left the reflection on this to the Slovenian public.
According to the research group below, the legal interest in filing such an initiative would be fulfilled for sole the reason that the initiator could not move freely on the territory of Slovenia, because he could not leave the municipality in which he resides, unless he had a special and convincing reason, approved by the state. The significant restriction on the right to free movement, as well as the right to privacy and family life (because closely, intimately or family-related people could not establish direct, physical personal contact freely, without prohibition and significant restrictions) is thus obvious. The second question is whether it is constitutionally justified?
The constitutional problematization of the Decree begins with the question of “reasonableness.” To put it simply, but according to the facts: a person who wanted to go for a walk in the woods in another municipality, withdraw from other people and strengthen his mental mood and immune system by walking in nature was not allowed to do so. A reasonable assessment of this prohibition, without seeking “urgent and compelling reasons” for it, allows a logical conclusion that it would not run counter to the alleged legitimate interest and aim of the government to prevent or reduce the possibilities for dissemination and transmission of a contagious disease, by preventing human intercourse and consequently COVID-19 infections from one person to another. It is legitimate to ask whether the walk of all people living in a certain municipality, which can be larger (such as Kamnik, my hometown municipality) or very small (such as Osilnica), on the same, municipal streets, parks, forests and in meadows, represents a greater risk of transmitting infection and virus when an individual and/or family walk in a meadow, in a forest, or in hilly areas within the boundaries of another municipality? Or solely driving a car outside the domicile municipality?
The Decree also forbade (this is not a joke!) sitting on benches in parks, next to forests and IN forests. The benches were wrapped with ribbons. The medical profession did not give its consent to such a ban. On the contrary, the immunology experts explained how it is with the life of the virus in the air, on things, and in nature. It is legitimate to question the reasonableness and constitutional proportionality of such a prohibition. We claim: it was not reasonable and it was not proportional. So it was unconstitutional.
The Decree was adopted by another body, as previously provided by law. The statute concerned stipulated that a measure restricting the exercise of certain constitutional rights in the public interest, represented by measures to aggravate or prevent the spread of an infectious disease, could be taken by the minister responsible for health – not the government. The provision of the law addressing this issue, a particular Article of that Act, was subsequently amended, after the Decree had already been adopted! And the phrase “Minister responsible for health” was replaced by the word “Government.” It is therefore legitimate to ask whether such retroactive validity of a change in law is constitutionally permissible? Given the specificity of the circumstances, is this only a constitutionally insignificant “technique”? We don’t think so.
During the official pandemic and quarantine, the government gave the municipal authorities (!) the power to interfere with the constitutional rights and freedoms of the people themselves, through their legal regulations adopted at the municipal level! Is it legitimate to ask the question if such conduct is lawful and constitutionally permissible: to regulate the substance and volume of the fundamental constitutional rights and freedoms by legal regulations adopted at the municipal level? According to the Constitution and its Official Commentary the answer is NO.
The Decree was enforced on the entire territory of Slovenia, not only in individual areas, which would be defined as “particularly dangerous” for the spread of the disease. It is therefore legitimate to raise the question of the fundamental legal “principle of legality.” The statutory provisions were clear on this question: professional assessment of the medical profession (not the government) can define certain areas as particularly risky and infected areas. The law as such does not specify the entire territory of the country as a “risky area.” On this issue, it is legitimate to ask if it is legally permissible to determine the entire Slovenian territory as such an area? And not just individual areas? But at this point we do recognize the fact that officially it was not just an epidemic but a pandemic as a legitimate argument of the government. Even though, the CC should decide on this question as well.
In our constitutional analysis legitimate constitutional questions are posed and argued, which we consider to be the most important for the final constitutional answer regarding the legality and constitutionality of the Decree and government measures during an official pandemic. The analysis highlights the content-relevant and preliminary decisions of the US, legal literature, applicable regulations in Slovenia, provisions of the Constitution and international law. Including the ECHR.
Attention is also drawn to certain public statements or announcements by government officials during the validity of the Decree. The problem of “definiteness and clarity” of the legal provisions that were in force during the de facto state of emergency, and thus the “legal predictability” of permissible and prohibited actions, is highlighted. Namely, during the period of validity of the Decree, the Government published its understanding and interpretation of the applicable rules on its website for a longer period of time. Is it legitimate to ask the question if such circumstances regarding the interpretation of valid legal provisions and such legally obliged conduct is lawful and constitutionally acceptable?
The Decree and the measures of the government during the official pandemic are burdened with procedural, material-legal and constitutional disputes and errors. It is legitimate to ask questions about this. These are not the most important issues, because the most important is a success of the country (including Europe and the whole world) in curbing the pandemic, preventing the spread of infections, preventing deaths and normalizing life. However, these issues are not insignificant. These issues are worthy of careful consideration and serious legal debate.
We have decided to leave the final answer to these questions to the CC. The CC decision in this matter will undoubtedly be of great importance. Both in the constitutional and legal-theoretical sense, as well as in terms of the prediction that a “second wave” of the pandemic is very likely to follow. Such a prediction was made as a warning by several Slovenian representatives of the medical profession, including the World Health Organization (WHO) and the European Commission (available on websites). However, it may happen that the CC informs the public that it will not judge the constitutionality of the Decree on the merits, because it is no longer valid.
Dr. Andraž Teršek, University Professor of Constitutional Law,
University of Primorska (Koper) and New University (Ljubljana & Nova Gorica, Slovenia)
mag. Barbara Nastran, Lawyer (Kranj, Slovenia)
Nastja Vražič, dipl.iur., Legal Assistant at the Damijan Pavlin Law Firm
Jure Dragan, mag. iur., Trainee Lawyer at the Damijan Pavlin Law Firm
Damijan Pavlin, Founder and Director of the Damijan Pavlin Law Firm (Kranj, Slovenia)