U-I-445/20

Reference no.:
U-I-445/20
Objavljeno:
Official Gazette RS, No. 179/20 | 03.12.2020
ECLI:
ECLI:SI:USRS:ECLI:SI:USRS:2020:U.I.445.20
Abstract:
Publisher's Note: The full text of this Decision/Order is available only in Slovene. This is a summary that has been prepared for informational purposes only.
 
The Validity of Regulations and Their Publication during the COVID-19 Epidemic
 
In partial Decision and Order No. U-I-445/20, dated 3 December 2020 (Official Gazette RS, No. 179/20), the Constitutional Court decided on the petition of two minor children attending primary school for children with special needs. They challenged the regulation that, during the COVID-19 epidemic, prohibited gatherings in educational institutions and determined that educational work be temporarily carried out at a distance. The petitioners disputed that, on the basis of the mentioned regulation, educational work was to be carried out at a distance also for children with special needs.
 
The measures in question were adopted by the challenged Ordinance Temporarily Prohibiting Gatherings of People in Educational Institutions and Universities and Independent Higher Education Institutions. Its validity was limited to seven days following its publication. The Government decided to extend the validity of the measures determined by the relevant Ordinance three times. The Constitutional Court established that by adopting the orders the Government determined in an original manner the extended validity of the measures referred to in the Ordinance. By so doing, it regulated in an abstract manner the legal position of an indefinite number of the legal entities and natural persons to whom such measures applied (educational institutions, and particularly the pupils attending them). This entails that, in terms of content, the mentioned orders of the Government were regulations. The Constitutional Court namely considers any act that contains general and abstract legal norms regulating the rights and obligations of legal entities or any act that contains norms that cause external legal consequences (so-called external effects) to be a regulation.
 
The Constitutional Court emphasised that, in accordance with the Constitution, regulations must be published before they enter into force. A regulation enters into force on the fifteenth day after its publication, unless otherwise determined in the regulation itself. State regulations are to be published in the official gazette of the state. The Constitutional Court established that the orders of the Government in question were not published in the Official Gazette of the Republic of Slovenia and decided that as a consequence they could not have entered into force. This circumstance also affected the validity of the measures determined by the Ordinance.
 
Due to the closure of schools, an order of the minister competent for education was also adopted which determined that, in light of the deteriorated epidemiological situation, educational work in primary and music schools was to be temporarily carried out at a distance. The Constitutional Court explained that the legislature left it to the minister competent for education to decide whether educational work was to be carried out at a distance. The contested order of the minister therefore entailed an original decision of the minister regarding carrying out education at a distance. By so doing, it regulated in an abstract manner the legal position of an indefinite number of the legal entities and natural persons to whom such measures applied. The contested order of the minister was thus by its nature a regulation as well. The Constitutional Court noted that a regulation can enter into force only if it is published in an appropriate manner. Since the contested order of the minister was not published in an appropriate manner, the Constitutional Court held that it had not entered into force and its application was not allowed.
 
In view of the fact that the Constitutional Court established that there was no appropriate legal basis for the temporary prohibition of gatherings in educational institutions in which such measures were deemed to be extended by invalid government orders, such organisations should have been reopened immediately. As the Constitutional Court was aware that the epidemiological situation in the country might not yet permit gatherings in such large numbers and that certain guidelines and organisational adaptations might be necessary for these organisations to reopen, it determined the manner of execution of its decision. It decided that the adopted decision would apply only after the expiry of a three-day period following its publication in the Official Gazette of the Republic of Slovenia.  By so doing, it allowed sufficient time for the authorities competent to decide on the closure of educational institutions and competent to order that education be carried out at a distance to once again assess whether such measures are scientifically justified and on the basis of such assessment respond in an appropriate manner and order whatever might be necessary for educational work to resume in the relevant institutions.
 
Note:
¤
Document in PDF:
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
executive regulation
Applicant:
A. B., C.
Date of application:
13.11.2020
Date of decision:
03.12.2020
Type of decision adopted:
decision
Outcome of proceedings:
other resolutions
Document:
AN04040