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Sunday, June 23, 2024

A depoliticised Constitutional Court also sided with the government in the case of the doctors’ strike

By: C. R.

The Constitutional Court dismissed the initiative of the medical union Fides and Doctor Milenko Stanković to review the constitutionality of the decree that specifies medical services during the current doctors’ strike. It ruled that the petitioners did not demonstrate legal interest for initiating a review of the decree’s constitutionality and legality.

The petitioners, the Slovenian doctors’ and dentists’ union Fides and doctor Milenko Stanković, who is also the vice-president of Fides, submitted the initiative to the Constitutional Court because they believed the decree infringed on the constitutionally and legally regulated right to strike. According to Fides, the decree adopted by the government cannot serve as a legal basis for the government to determine the scope of medical services that constitute the minimum work process, “as this is very clearly and specifically defined in the law”.

The Constitutional Court notes that Fides is among the qualified proposers who, under the Constitutional Court Act (if the condition of workers’ rights being endangered is met), have the option to file a request. However, from the application in this case, it appears that they are submitting an initiative, not a request. In a specific part of the application, they justify their legal interest, which must only be demonstrated in the case of an initiative. Additionally, they explicitly propose that the initiative be accepted for consideration.

According to the Constitutional Court, the first petitioner, Fides, mentions in the application that the decree endangered the rights of workers (its members) and that it is entitled to submit the initiative based on the first paragraph of Article 23.a of the Constitutional Court Act, which could potentially indicate that they are filing a request. However, these statements are made only within the context of asserting legal interest and not as independent claims.

As the Constitutional Court added, with claims about the existence of legal interest, the union as the proposer also cannot substantiate the existence of an endangerment of workers as one of the conditions that must be met for the union to file a request. All of this indicates that the first petitioner is not filing the application in the capacity of a proposer but rather as an initiator, as they have consistently referred to themselves.

The Constitutional Court emphasises that it is “reasonably expected from qualified participants in the procedure for assessing the constitutionality and legality of regulations that their submissions be professionally and qualitatively reasoned”. “Therefore, the least the Constitutional Court can expect from them (including the first petitioner) is that it be entirely clear from the submission that they are filing as qualified proposers. The first petitioner has undoubtedly not met this criterion,” the decision states.

The legal remedy that the first petitioner could use to challenge the decree before the Constitutional Court and thus protect the interests of its members is a request. Therefore, according to the court, the first petitioner cannot be granted legal interest for submitting the initiative, even though it concerns a regulation that has a direct effect.

The court explains that the fundamental difference between the procedure for assessing constitutionality and legality initiated based on an initiative and that initiated by a request is that the procedure based on an initiative includes an additional phase – the review process of the initiative. In this phase, the Constitutional Court can either reject or accept the initiative for consideration. The procedure initiated by a request does not include this intermediate phase.

The second petitioner, Doctor Stanković, claims that the decree infringes on his constitutional right to strike. However, according to the Constitutional Court, his statements do not clarify how the alleged increased scope of services that doctors are required to perform during the strike under the contested decree affects his legal position.

“In other words, the second petitioner does not specify in the initiative which services from the decree he is actually required to perform and how the decree limits his right to strike. Consequently, the second petitioner has not demonstrated whether the contested decree even affects him and whether a finding of unconstitutionality of the decree would improve his legal position. Therefore, the second petitioner also does not demonstrate legal interest in submitting the initiative,” the court stated.

Fides has already responded to the decision: “In the Fides union, we are concerned about the Constitutional Court’s decision. We emphasise that the decision in a case that should have been handled with absolute priority was issued a full month after the amendment of the law, which abolished the contested decree – meaning the decision is now irrelevant for the doctors exercising their right to strike.

It also seems highly unusual to us that the Constitutional Court initially accepted Fides’ initiative for a review of constitutionality, provided a substantive response to the government, and then forwarded the government’s response back to Fides for further substantive reply. Finally, they decided that the initiative does not demonstrate Fides’ legal interest for consideration. So, they first held that the initiative met the basic procedural prerequisites for consideration, only to later decide it did not, thereby concluding that the court cannot rule on the substance of our initiative.

The fact that the Constitutional Court’s decision was made by a narrow margin of five to four votes also indicates that this is not an entirely clear and undisputed position. The decision implies that one vote tipped the balance, showing that the decision on the non-fulfilment of the formal requirements for submitting the initiative did not convince all constitutional judges. As stated in the dissenting opinion of one of the judges, there was agreement not only on the demonstrated legal interest but also on the unconstitutionality of the decree. The dissenting opinion mentions that the judges were already prepared to annul the decree.

Fides will soon initiate a procedure to review the constitutionality and legality of the amendment to the Medical Service Act, which replaced the content of the decree and thus abolished it.”

THE CONSTITUTIONAL COURT MADE THE DECISION ON THE NON-FULFILMENT OF THE CONDITIONS FOR SUBMITTING THE INITIATIVE WITH A NARROW MAJORITY OF 5:4. HOWEVER, IT IS IMPORTANT TO NOTE THAT ONE OF THE JUDGES, IN A SEPARATE OPINION, HIGHLIGHTED THAT THE JUDGES HAD PREVIOUSLY AGREED BOTH ON THE LEGAL INTEREST AND THE UNCONSTITUTIONALITY OF THE DECREE. SO WHY SUCH A FINAL DECISION? https://t.co/xAQfmdnzuW) pic.twitter.com/Z7i2QcGI00

 

– SINDIKAT FIDES (@SINDIKATFIDES) May 22, 2024

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