The Constitutional Court reviewed Article 104 of the Act Determining Temporary Measures to Mitigate and Remedy the Consequences of COVID-19, which authorises the Minister of Education to order the performance of educational work at a distance in different educational organisations and if necessary to mitigate and remedy the consequences of COVID-19, and stipulates that by providing distance education, the realisation of lessons and objectives determined by educational programmes shall be achieved. The Constitutional Court reviewed the mentioned statutory provision, which interferes with the human rights to education and to education and training, in the part in which it refers to ordering distance learning in primary schools and schools and institutions for children with special needs.

In the assessment, the Constitutional Court focused on the allegation of the petitioners that the challenged statutory regulation grants the Minister of Education a blanket authorisation to decide by him- or herself on the content, manner, and duration of distance learning. In light of the above, the Constitutional Court reviewed the challenged regulation from the perspective of its conformity with the principle of legality determined by the second paragraph of Article 120 of the Constitution. The Constitutional Court explained that from the principle of legality there follows the requirement that a regulation by which a certain human right or fundamental freedom is limited in an originary manner, i.e. without a statutory authorisation, as is the situation regarding the challenged regulation, must be a law. The legislature may leave to the executive branch of power only the more detailed regulation of the limitations that the legislature itself prescribed beforehand, and only under the further condition that it prescribes sufficiently precise criteria for such further regulation by the executive branch of power.

Therefore, in ordinary circumstances, by conferring on the Minister of Education the authorisation to interfere in an originary manner, by him- or herself, with the human rights to education and to education and training by ordering the performance of educational work at a distance, the legislature would have violated the second paragraph of Article 120 of the Constitution. However, in special circumstances when an authorisation to adopt a measure is at issue that entails a response to the outbreak of a communicable disease which requires a prompt response, in the assessment of the Constitutional Court, the legislature exceptionally had the authorisation to leave the decision to order a measure that interferes with human rights and fundamental freedoms to the Minister of Education. Nevertheless, the legislature should have determined, by itself, in a law, and with sufficient precision, the substantive limitations by which the Minister of Education is bound when adopting such measure, limitations that entail safeguards against arbitrary limitations of human rights and fundamental freedoms.

The Constitutional Court assessed that the challenged statutory regulation does not meet the mentioned constitutional requirement. It established that the measure of the Minister of Education ordering the performance of educational work at a distance is not substantively determined in the Act at issue. Furthermore, the Act does not determine with sufficient precision the criteria or circumstances by which it is possible to order distance learning in primary schools and in schools and institutions for children with special needs. Furthermore, the Act does not contain any safeguards by which the legislature would ensure the [appropriate] care of vulnerable groups of children in the event distance learning is carried out. The legislature also failed to limit the measure in question in spatial and temporal terms. It also did not determine anything with regard to the duty of the Minister to consult with the expert community and to cooperate therewith with regard to the measures, nor did it determine the obligation that the public must be appropriately notified [of the measures]. The legislature left it to the Minister of Education to decide completely freely, at his or her own discretion, whether to order the measure in question, which interferes with human rights.

In view of the above, the Constitutional Court established that the challenged statutory regulation is inconsistent with the second paragraph of Article 120 of the Constitution. It decided that the National Assembly must remedy the established inconsistency within two months of the publication of this Decision in the Official Gazette of the Republic of Slovenia; until the inconsistency is remedied, the regulation on the basis of which the Minister of Education may order the performance of educational work at a distance shall continue to apply.