Today, the Constitutional Court ruled on the initiator’s proposal for the temporary suspension of measures. Together with the majority of seven judges, Judge ddr. Klemen Jaklič voted against the petitioner’s motion for detention, but only Judge dr. Špelca Mežnar voted for. Judge Jaklič issued an affirmative dissenting opinion, in which he pointed out, among other things, that this initiative for the review of constitutionality, filed by an adviser to the Constitutional Court, should be rejected and therefore not decided at all. However, as it was not rejected, the Constitutional Court thus forged a new standard, according to which from today onwards other advisers and judges of the Constitutional Court may also submit petitions directly to the Constitutional Court, which will then rule on them. “But such a standard from the Constitutional Court creates a caricature and in traditional constitutional democracies around the world it has no equal,” said Constitutional Judge Jaklič.
“One of the reasons for this assessment is, among other things, that the initiator is Igor Vuksanović, who is employed as a consultant at the Constitutional Court and is therefore one of the actors within the process of the institution whose constitutional task is to assess and not submit direct initiatives. Like the judges, the adviser from the Constitutional Court is obliged to protect the external appearance of the impartiality of the Constitutional Court. However, the appearance of impartiality would inevitably be trampled on if actors within the assessment process at the Constitutional Court were recognised a legal interest in filing direct abstract initiatives,” wrote Judge Ddr. Klemen Jaklič.
Already in March, during the first wave of the epidemic, we drew attention to the opinions of advisor Vuksanović, who also writes columns for Dnevnik, that the Slovenian government, unlike all other countries attacked by the epidemic, should not restrict outdoor movement. According to him, it is an interference with human rights. Ordinances based on the Infectious Diseases Protection Act came into force with extremely severe restrictions on human rights to (at least) freedom of movement, assembly, privacy, freedom of action, free economic initiative and even health care and education, the constitutional adviser said at the time at the court of the Republic of Slovenia and Dnevnik columnist, Igor Vuksanović.
In October, we reported that the initiative to assess the decree on night traffic restrictions due to the coronavirus epidemic was submitted by Vuksanović. The President of the Constitutional Court, Rajko Knez, fell silent. Years ago, Vuksanović tarnished the reputation of the Constitutional Court, with his insulting and biased comments, which were even hostile at the expense of Borut Pahor, SDS, Janez Janša and economist Rado Pezdir.
The majority of judges of the Constitutional Court voted against the petitioner’s proposal today
The initiator Vuksanović challenged the recently adopted measure of the Government to restrict movement 21.00 and 6.00, with which the Government tries to prevent further spread of the disease in the direction of the scenario during the peak of the epidemic, with carefully prepared advice from the health profession and a comparative legal model as we witnessed in the spring in neighbouring Italy. The initiator claimed that such a measure was disproportionate because, despite the exceptions and the limited duration of part of the day (night), it was not only a restriction of movement (Article 32 of the Constitution), but also a mass deprivation of personal liberty or a kind of house arrest” (Article 19 of the Constitution). The initiator further argued that the legal basis of such a measure (Article 39 of the Infectious Diseases Act confers the power to take measures to restrict movement in order to prevent the spread of infectious diseases to the Government) is unconstitutional because it is too vague. The initiator also filed a motion to suspend the adopted measures. The majority of judges of the Constitutional Court voted against the petitioner’s proposal today. “There is a serious possibility that if the measures are withheld, the judges themselves (without considering the medical profession, which carefully considered and proposed such a proposal) would cause deterioration of health and death of a large number of people, and may even push the situation irreversibly in the direction of the scenario observed in neighbouring Italy in the spring,” Jaklič wrote in the explanation of his opinion. Today, the Constitutional Court decided only on the initiator’s proposal, Jaklič explained, and also remarked that in his opinion the initiator had no legal interest in directly challenging the measures with the initiative before the Constitutional Court.
A caricature is created from the institution of the Constitutional Court
With today’s decision to simply reject the motion for temporary detention, instead of rejecting such an initiative in its entirety at the outset, the Slovenian Constitutional Court has establishing a standard that does not meet the fundamental principle of protecting the appearance of the Constitutional Court’s impartiality. “Instead of consolidating the appearance of the highest ombudsman of constitutionality, human rights and impartial judgment on these highest values, it creates a caricature of the institution of the Constitutional Court, which in the environment of a free democratic world cannot be compared,” Jaklič critically continued his explanation, that according to the standard created by the Constitutional Court today – because the initiative of such an initiator was not primarily rejected, but had previously decided on one of its proposals (detention) that counsellors and Judges can also freely use them to submit general initiatives for an abstract review of constitutionality directly to the Constitutional Court, which is obviously permitted.
“This is an absurd and obviously inconsistent standard with the institutional structure prescribed by the Constitution, which would create a caricature of the Constitutional Court in the eyes of the domestic and international public if this initiative will be adopted and thus enforced. Only the caricature of the court itself produces initiatives and judges them at full speed at the same time,” Jaklič wrote. He himself would reject such an initiative, which establishes an unconstitutional standard through the automatic recognition of a legal interest, today and would not decide on (non-)detention at all.