After constitutional lawyer Andraž Teršek and lawyer Damijan Pavlin filed an initiative with the Constitutional Court to review the constitutionality of Article 39 of the Infectious Diseases Act, on the basis of which the government adopted a measure restricting movement between 9 pm and 6 am, as they believe was an unconstitutional decision, we went for “other” legal opinions and 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 initiative, as the initiators do not show a legal interest.
Yesterday, constitutional lawyer Andraž Teršek and attorney Damijan Pavlin filed an initiative with the Constitutional Court to review the constitutionality of Article 39 of the Infectious Diseases Act, claiming that restricting movement is unconstitutional unless a state of emergency is declared first.
The Constitutional Court ruled in the spring on the restriction of movement, and the restriction of movement between 21:00 and 6:00 is a restriction on movement. They ruled that it was not unconstitutional with a result of 5: 4. Klemen Jaklič also gave a separate affirmative opinion at the time, explaining his opinion in more detail during his visit to Radio Ognjišče.
Jaklič: It is not only the government that is responsible
Jaklič estimates that health and life are among the most strictly protected human rights, but that it needs reciprocal behaviour of the authorities and citizens in order to be effective. If citizens do not adhere to the measures taken by the authorities, “then it all makes no sense.” He added that the Criminal Code is also adapted to this, which punishes the irresponsible behaviour of everyone in the country regarding this issue of transmitting the disease due to negligence or even intent with a severe sanction.
Regarding the decision of the Constitutional Court or the constitutionality of such a restriction of movement by the authorities, he said that it was basically a strictly legally simple case. The values of life and health represent inappropriately higher constitutional weight than the partially limited transition between municipalities, which is only temporary for the period of the worst pandemic. A different decision would be clearly wrong. He added that he had followed all the objections in public in detail and that so far he had not heard any that would be good enough.
An experienced constitutional lawyer immediately sees
In the continuation, he thought that a trained constitutional lawyer should see at first sight what it is about. If there were any excessive restrictions which were manifestly unreasonable or unrelated to the protection of health and life, or which had more lenient alternatives which would be less burdensome for freedom of movement and at the same time at least equal to or more effective for life and health insurance, it would be different, the case could be difficult. In the case of the most strictly protected constitutional values, such as life and health, it is not enough to ask only about the existence of milder restrictions for opposing rights (e. g. movement), but it is also required that such milder restrictions be at least as effective for insurance of life and health. However, when at a crucial moment, when it is necessary to make a quick decision on how to protect life and health, not even the health profession can answer the question of equally effective (but for the opposite rights milder) alternatives, it is obvious that the case is constitutionally simple, he said. The assessment of the necessity of the measure in the proportionality test is thus sufficient.
Given that the government had not yet declared a state of emergency at the time, and Constitutional Court Judge Jaklič argued, not only that this was not necessary, but that it otherwise satisfied the assessment of the necessity of the measure (we assume that the restriction of movement would also be between 21:00 and 6:00), we look forward to what, from a legal point of view, could be the strongest argument against his position.
Zobec: The state has a duty to protect people’s lives and health
Jaklič’s opinion was joined by two other, renowned Slovenian lawyers, professor at the Nova Univerza Matej Avbelj, and former constitutional judge Jan Zobec. The latter 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 an active, positive duty to protect people’s lives and health when these constitutional values are threatened. With the pandemic we are facing, these values are even more threatened.
According to him, the state is therefore obliged to adopt the law on infectious diseases and to envisage in it the measures that must be taken in order to fulfil its constitutional duty to protect people’s lives and health. It is constitutionally authorized to adopt such measures. Article 32 of the Constitution speaks of freedom of movement, which in its second paragraph 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, i.e. 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 measures
Professor Avbelj commented for Večer that the restriction of movement in a certain period of time is covered by Article 32 of the Constitution, which allows the restriction of freedom of movement by law, but this is not necessary, as Andraž Teršek mistakenly writes. The Infectious Diseases Act, specifically Article 39 thereof, is exactly such a law that implements the statutory reservation from the aforementioned Article 32 of the Constitution and is therefore not unconstitutional and abstract. A scenario in which it could be unconstitutional would be when the government fails to take proportionality tests, which is not the case here, as the government listened to experts, most of whom were even in favour of much stricter measures.
BMZ: The Constitutional Court will have to a priori reject Teršek’s initiative
The three constitutional lawyers were joined with interesting information about Teršek’s and Pavlin’s initiative by the “elder of the Slovenian constitution”, Boštjan M. Zupančič, who commented in a tweet that the Constitutional Court would have to reject Andraž Teršek’s initiative a priori because the initiative is not something any citizen can employ the Constitutional Court. According to him, there was a lack of legal interest in this initiative.
