Lawyers Andraž Teršek and Damijan Pavlin have filed a request with the Constitutional Court for the constitutional review of the ban on movement between regions and the 9 p.m. to 6 a.m. curfew. In the request, they argue that the state is only allowed to ban movement and set a curfew if the so-called state of emergency is declared. Otherwise, they believe, such actions are unconstitutional. But the fact is that movement can be restricted if it interferes with the constitutional freedoms of other people, such as the right to health and a healthy living environment, which the lawyers appear to have forgotten. We have found ourselves in the situation we are currently in because all of the measures taken so far to curb the epidemic were not successful enough, as the number of new infections continues to rise sharply, so movement between regions and during the night needs to be restricted. And every law that is passed weighs between the encroachment of one or another human right. To encroach on somebody’s rights to health and a healthy living environment with someone else’s right to freedom of movement is absurd.
Lawyer Andraž Teršek explained that the request, which was also published on his website, had already been sent to the Constitutional Court. With this, he highlights the importance of Article 32 of the Constitution, according to which it is determined that everyone has the right to freedom of movement, to choose his place of residence, to leave the country and to return at any time. This right should not be limited by law, except where this is necessary to prevent the spread of infectious diseases and in a few other cases. The Constitution allows the state the opportunity to restrict the right to freedom of movement in and around the country, but only if there are sufficient, convincing reasons for it, STA reports.
Teršek and Damijan Pavlin also believe that the Constitution does not give the state the possibility of banning movement in and around the country, except in the case of declaring a state of emergency; otherwise, it is obliged to resort to less strict or milder measures. As they further state, the so-called state of emergency is explained by the provision of Article 16 of the Constitution. This article states that human rights and fundamental freedoms provided by the Constitution may exceptionally be temporarily suspended or restricted, which is only applicable during a war or a state of emergency. However, the aforementioned rights and freedoms may only be suspended or restricted for the duration of the war or state of emergency, and only to the extent required by such circumstances. “If movement in and around the country is banned and a curfew is introduced, this will be unconstitutional: an unconstitutional violation of the fundamental constitutional rights and freedoms of the population, and unconstitutional conduct of the state authorities. The government’s measures will apparently be unconstitutional,” the legal experts believe.
According to them, the Communicable Diseases Act, to which the current government refers to when introducing the aforementioned measures, is unconstitutional. Namely, it stipulates that it is possible to prohibit or restrict the movement of the population in areas which are infected or directly endangered, thus giving the state the opportunity to do something that is not constitutionally permissible – to ban movement in the entire country, without declaring a state of emergency. According to them, the same legitimate goal – to curb the spread of infectious diseases, can also be achieved by implementing more lenient measures. They both believe that the state cannot just ban any movement. In fact, it can, but this is legally inadmissible, which the state is supposedly doing right now – it has not only restricted movement but also banned it, and according to the lawyers, there are no emergency reasons for this, which would make the measure sensible.
Are the rights to health and a healthy living environment not human rights?
We asked a legal expert for his opinion, but he wanted to remain anonymous. He explained that an epidemic has been declared in Slovenia, but after the measures had already been introduced. The Communicable Diseases Act does not provide for the establishment of a state of emergency, except if all of the other measures prove to not be enough. The measures that have been implemented earlier did not work, as the number of infections continued to increase, so stricter measures could then be taken, following the example of other EU countries. The so-called state of emergency is something completely different in our constitutional system, and it is not true that human rights can only be suspended in a state of emergency, as the principle of proportionality allows for the encroachment when the rights to health and a healthy living environment are in question. And these two rights are considered to outweigh the others in our current situation and based on the principle of proportionality, as they cannot be guaranteed in any other way than with the implementation of such measures. This, however, is a matter of profession, and not politics, as all of this was suggested by the professionals. The regions are defined as infected areas, and restricting movement within the regions is justified in this case, which can also be applied to the whole country. The same goes for curfew. Article 15 of the Slovenian Constitution also needs to be taken into account, as it clearly states: “Human rights and fundamental freedoms shall be exercised directly on the basis of the Constitution.
The manner in which human rights and fundamental freedoms are exercised may be regulated by law whenever the Constitution so provides or where this is necessary due to the particular nature of an individual right or freedom. Human rights and fundamental freedoms shall be limited only by the rights of others and in such cases as are provided by this Constitution.” In short: our rights are limited by the rights of other people. In this case, it is about the right to health and a healthy living environment. The aforementioned measures are also internationally comparable and in line with the opinions of the profession. In this case, it is virtually impossible to act otherwise. If we base our thinking on the opinion of the legal experts, we can conclude that the right to health and a healthy living environment are not human rights, as all other rights can encroach on these two rights – which is absurd. The law that the government refers to is not unconstitutional, as Article 32 of the Constitution clearly justifies it. Movement can, therefore, legally be restricted in order to prevent the spread of infectious diseases. Every law that is passed weighs between the encroachment of one or another human right; otherwise, we would have to introduce a state of emergency for each separate law.
Constitutional judge Jaklič: This is about protecting the lives and health of the people
Judge Klemen Jaklič, Ph.D., shares a similar opinion. After the restriction of movement between municipalities in the spring wave of the epidemic, he wrote the following: “I support today’s decision, with which the Constitutional Court ruled that the ban on movement between municipalities at the time of the COVID-19 outbreak was constitutional. The core parts of the decision are an argumentation, for which I have been advocating since the very beginning of the substantive debate on this issue, even when the majority did not support it yet. I believe that only a decision like this can be consistent with the Constitution, as one of the two sides of the scale is about protecting one of the most valuable and protected constitutional values – human life and health – at a time of the epidemic of an unpredictable and not well-known, but dangerous virus, which brings death, and if the will not be successful in controlling the disease quickly and effectively, it can even bring death on a larger scale. We have witnessed its deadliness in our immediate vicinity – in Italy.”
Domen Mezeg