Lawyer Andraž Teršek and attorney Damijan Pavlin filed an initiative with the Constitutional Court to review the constitutionality. In it, they argue that the state is allowed to ban movement around the country and set a curfew only if state of emergency is declared. Otherwise, they believe, it is unconstitutional. But the fact is that the 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 lawyers are apparently forgetting. In the current situation, the measures taken so far to control the epidemic have not been effective, as the number of infections has continued to rise sharply, so it is necessary to restrict movement to the regions and at night. And every law passed weighs between the encroachment on one and the other human right. With the right to freedom of movement to interfere with the right to health and a healthy living environment at the expense of others, it is absurd.
Lawyer Andraž Teršek explained that the initiative, which was also published on his website, had already been sent to the Constitutional Court. He also states the importance of Article 32 of the Constitution, according to which it is determined that every person has the right to free movement and choice of residence. At the same time, according to this article, someone can leave the country at any time and return to it at any time. This right is not restricted by law, except in the case of containment of an infectious disease and in certain other cases. The constitution gives the state the opportunity to restrict the right to free movement as well as in and around the country, but only if there are sufficiently convincing reasons, reports STA.
At the same time, Teršek and Damijan Pavlin are still convinced that the constitution does not give the state the possibility to ban 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 state of emergency is explained by the provision of Article 16 of the Constitution. It states that it is exceptionally permissible to annul or restrict human rights or fundamental freedoms for a certain period of time, which refers to a state of war or state of emergency. However, this may be done only for the duration of the state of war or emergency and to the extent required by such state. “If movement in and around the country is banned and curfew is ordered, it will be unconstitutional: unconstitutional violation of the fundamental constitutional rights and freedoms of the population and unconstitutional conduct of the state authorities. The government’s measures will obviously be unconstitutional,” both legal experts are convinced.
According to them, the law relating to infectious diseases, to which the current government refers when introducing the already mentioned measures, is unconstitutional. Namely, it stipulates that it is possible to ban or restrict the movement of the population in areas that are infected or directly endangered, thus offering 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 legitimate goal is the same – to curb the spread of infectious diseases, can also be achieved through measures that are more lenient. They both believe that the state cannot just ban any movement. In fact, it can, but this is legally inadmissible, which the state is supposed to be doing right now – it has not only restricted the movement, but also banned it, and according to them, there is no indication of urgent reasons that do not exist.
The right to health and a healthy living environment are not human rights?
We asked a legal expert for an opinion, who did not want to be named, and who explained that an epidemic had been declared in Slovenia at a later stage. The Infectious Diseases Act does not provide for the establishment of a state of emergency, but only if other measures do not work. The measures taken earlier did not work, as the number of infections only increased, so stricter measures could 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 only in a state of emergency can human rights be suspended, as the principle of proportionality can be encroached upon because there is also the right to health and the right to a healthy living environment. And in this case these two rights are more important on the principle of proportionality, because they cannot be guaranteed in any other way than by such measures. This, however, is a matter of profession and not politics, as it was all suggested by the profession. Regions are defined as infected areas and restricting movement to them is justified in this case, which can also be introduced for the whole country. The same goes for curfew. It is also necessary to read Article 15 of the Constitution of the Republic of Slovenia, which clearly states: “Human rights and fundamental freedoms are exercised directly on the basis of the Constitution.
The law may prescribe the manner of exercising human rights and fundamental freedoms when so provided by the Constitution, or if necessary due to the very nature of an individual right or freedom. “Human rights and fundamental freedoms are limited only by the rights of others and in cases provided for by the Constitution.” To put it briefly: our rights are limited by the rights of other people. In this case, it is about the right to health and a heatlhy living environment. These are measures that are also internationally comparable and in line with the opinions of the profession. In such a case, it is virtually impossible to act otherwise. If we start from the opinion of the already mentioned experts, then 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 referred to by the government is not unconstitutional, as Article 32 of the Constitution clearly justifies this. Movement can therefore be leaglly restricted in order to prevent the spread of infectious diseases. Every law that is passed weighs between the enroachment on all human rights, otherwise a state of emergency would have to be passed for each law separately.
Constitutional Judge Jaklič: It is a matter of protecting people’s lives and health. Judge ddr. Klemen Jaklič, who, after restricting movement to municipalities during the spring wave of the epidemic, wrote the following: “Today’s decision by which the Constitutional Court ruled that the ban on movement between municipalities at the time of the COVID-19 outbreak was consistent with Constitution, I support. In the core parts of the decision, this is an argument that I have been advocating from the very beginning of the substantive discussion on this issue, even when the majority did not yet support it. In my opinion, such a decision alone can be constitutionally consistent, as on both sides of the scales it is a matter of protecting one of the most valuable and protected constitutional values - human life and health – at a time of unpredictable and not sufficiently known but dangerous epidemic, which sows death or, if the disease fails to be controlled quickly and sufficiently, even death on a large scale. We have witnessed such dimensions even in our immediate vicinity, in the Italian Republic.”