After the constitutional lawyer Andraž Teršek and lawyer Damijan Pavlin filed a request with the Constitutional Court for a constitutional review of Article 39 of the Communicable Diseases Act, on the basis of which the government adopted the measure of restricting movement between 9 p.m. and 6 a.m., which Teršek and Pavlin believe was an unconstitutional decision, we decided to get the “second” legal opinions. We gathered the opinions of as many as four prominent Slovenian lawyers, dr. Matej Avblelj, ddr. Klemen Jaklič, Jan Zobec and dr. Boštjan M. Zupančič, who claim the exact opposite and ensure that there is nothing unconstitutional in restricting movement. The former judge of the European Court of Human Rights even believes that the Constitutional Court should reject the request, as the initiators do not show a legal interest.
On Tuesday, constitutional lawyer Andraž Teršek and lawyer Damijan Pavlin filed a request with the Constitutional Court for a constitutional review of Article 39 of the Communicable Diseases Act, claiming that restricting movement is unconstitutional unless a state of emergency is declared first.
The Constitutional Court already made a ruling on the restriction of movement in the spring, and the restriction of movement between 21:00 and 6:00 also belongs to this category. They ruled that it was not unconstitutional to restrict movement, with a result of five against four. Klemen Jaklič also gave a separate affirmative opinion at the time, explaining it in more detail as the guest on Radio Ognjišče.
Jaklič: The government is not the only one that is responsible
Jaklič estimates that human health and life are among the most strictly protected human rights, but that they need the reciprocal behaviour of the authorities and citizens in order to be effective. If the citizens do not adhere to the measures implemented by the authorities, “then none of it makes any sense.” He added that the Criminal Code is also adapted to this, as it punishes the irresponsible behaviour of anyone in the country when it comes to the issue of transmitting the disease due to negligence or even with intent, with severe sanctions.
Regarding the decision of the Constitutional Court on the constitutionality of such a restriction of movement by the authorities, he said that it was basically a simple case, legally speaking. The values of life and health carry a much higher constitutional weight than the partially limited movement between municipalities, which also carries significant constitutional weight, but it is still much lower than that of human life and health. And movement is only temporary limited, for the duration of the worst part of the pandemic. Any other decision made by the Constitutional Court would clearly be wrong. He added that he had followed the debate and listened to all the objections of the public in detail and that so far, he had not heard any that would be good enough.
An experienced constitutional lawyer immediately knows what this is about
He went on to say that he believes that an experienced constitutional lawyer should immediately know what this is about. If there were any excessive restrictions which were manifestly unreasonable or unrelated to the protection of health and life, or if there were any alternatives which would be more lenient and less burdensome for the freedom of movement, and at the same time, at least equal to or more effective when it comes to the protection of life and health, this situation would be different, and the case could be considered difficult. But in the case of the most strictly protected constitutional values, such as life and health, it is not enough to only ask about the existence of milder restrictions that would better protect the “opposing” rights (for example, the right of movement). These milder restrictions also need to be at least as effective when it comes to protecting life and health.
However, in a crucial moment, when it is necessary to make a quick decision on how to protect the life and health and not even the health professionals can answer the question of the equally effective (but milder for the opposite rights) alternatives, it is obvious that the case is simple when it comes to the constitutionality of it, he said. The assessment of the necessity of the measure with the proportionality test is sufficient.
Regarding the fact that the government had not yet declared a state of emergency at the time, the Constitutional Court Judge Jaklič argued that not only was this not necessary, but it otherwise satisfied the assessment of the necessity of the measure (we assume that the same would apply to the restriction of movement between 21:00 and 6:00). We are eagerly waiting to find out what the strongest legal argument against his position could be.
Zobec: The state has a duty to protect people’s lives and health
Two other renowned Slovenian lawyers, professor at the New University (Nova Univerza), Matej Avbelj, and former constitutional judge Jan Zobec, agree with Jaklič. Zobec also told Radio Ognjišče that human life is inviolable and that the state therefore not only has a duty to refrain from interfering in it but also has the active, positive duty to protect people’s lives and health when these constitutional values are threatened. And since we are facing a pandemic, these values are more threatened than ever.
He believes that the state is therefore obliged to adopt the Communicable Diseases Act and to envisage the measures that must be taken in order to fulfil its constitutional duty to protect people’s lives and health in it. The state is constitutionally authorized to adopt such measures.
Article 32 of the Constitution speaks of freedom of movement. In its second paragraph, it stipulates that freedom of movement may be restricted by law in order to prevent the spread of infectious diseases. This is a legal reservation that authorizes the legislator and at the same time imposes intervention, so the restricting freedom of movement, in cases such as the one we are currently facing, which is why Zobec does not see it as unconstitutional.
Avbelj: Most experts were in favour of even stricter measures, which ensures the proportionality of the measures
Professor Avbelj commented for Večer that the restriction of movement for a certain period of time is covered by Article 32 of the Constitution, which allows for the restriction of freedom of movement by law, but movement does not necessarily need to be restricted by law, as Andraž Teršek mistakenly writes. The Communicable Diseases Act, specifically Article 39, is exactly the law that implements the statutory reservation from the aforementioned Article 32 of the Constitution and is therefore not unconstitutional in abstracto. A scenario in which this could be unconstitutional would be when the government fails to take the proportionality tests into account, which is not the case here, as the government listened to the experts, most of whom were even in favour of much stricter measures.
Boštjan M. Zupančič: The Constitutional Court will have to reject Teršek’s request a priori
Boštjan M. Zupančič, the “elder of the Slovenian constitution,” joined the three constitutional lawyers in their opinion, with some interesting information about Teršek and Pavlin’s initiative. In a tweet, he commented that the Constitutional Court would have to reject Andraž Teršek’s request a priori because the request is not something that just any citizen can address to the Constitutional Court. According to him, there was a lack of legal interest in this request.