By: Sara Rančigaj (Nova24tv)
In the last two months, decisions by the Constitutional Court (CC) on the unconstitutionality of government decrees during the covid-19 epidemic have been falling. The Constitutional Court stated that a ban on protests is necessary only if there is a real danger that the protests will have consequences for protected legal goods, which cannot be prevented by other, less severe measures. The decisions of the Constitutional Court must certainly be respected by the government, but it is also important to point out that these reveal unconstitutionalities that have been in force almost throughout the time of independent Slovenia. The Constitutional Court has ruled that the law passed by the LDS and SD in 1995 is unconstitutional. Similarly, the order issued by Šarec’s Minister of Health Aleš Šabeder before the resignation of the government, with which he himself restricted movement in public places, is also unconstitutional.
In early June, the Constitutional Court ruled that government decrees restricting or prohibiting the movement and gathering of the population during an epidemic were unconstitutional, as there were insufficient safeguards. Based on this decision, epidemiological government decrees adopted on the basis of the Infectious Diseases Act, such as restriction of movement at night or curfew, ban on gathering in public places and areas, and ban on crossing regional and municipal borders, are unconstitutional.
The CC’s decision then drew a wave of astonishment as they deemed the law passed by the LDS and SD in 1995 unconstitutional. According to the Constitutional Court, the “complete ban on rallies also meant an extremely serious encroachment on the right to peaceful assembly and public assembly”, as defined in the Constitution. “The general total ban on rallies applied to the entire territory of Slovenia and for five months completely prevented such a constitutionally protected form of collective expression of opinions.”
Additionally, the Constitutional Court ruled on Monday that government decrees banning and limiting the number of participants in rallies were unconstitutional. The Constitutional Court stated that a ban on protests is necessary only if there is a real danger that the protests will have consequences for protected legal goods, which cannot be prevented by other, less severe measures. “The government has not given convincing reasons why rallies with up to a few hundred participants could not prevent the spread of infections by ensuring sufficient distance between participants, wearing a mask and using disinfectants,” the Constitutional Court said. It should also be remembered that the protests in the last year took place without proper organisation and registration, while it is generally clear who is the initiator of the “spontaneous” protests.
Restricting protest is less tragic than death
Two constitutional judges, Klemen Jaklič and Marko Šorli, voted against this decision. In his dissenting opinion, Jaklič explained that the possible consequence of the loss of life and health of a large number of people is more severe and irreparable than the possible temporary inability of more than ten participants to attend public gatherings during the peak of a highly contagious disease. “An important question is which of the possible harmful consequences on both sides – on the one hand the lives and health of more people and on the other hand the temporary restriction of rallies to no more than 10 participants – would be more harmful and irreparable if such or different final meritorious decisions occurred,” he wrote.
Opposition is applauding the CC’s decisions against restrictions, which they adopted themselves. The opposition does not hide its satisfaction with the latest decisions of the Constitutional Court. In any case, it is correct that the government takes into account the decisions of the highest judicial institution in the country, but Interior Minister Aleš Hojs gave an interesting thought. He said that in addition to top lawyers, there are also the best epidemiologists in the CC who know what is right. It is even more interesting to work in the LMŠ party, as they have always supported the decisions of the CC, while they themselves have passed the laws that they now blame on the government.
Šarec’s Minister of Health, Aleš Šabeder, was among those who adopted an order of banning gatherings at certain sports and other events in public places outdoors. The order was adopted on March 10th, 2020 and entered into force on the same day. This is also unconstitutional by current standards.