U-I-79/20

Reference no.:
U-I-79/20
Objavljeno:
Official Gazette RS, No. 88/2021 | 13.05.2021
ECLI:
ECLI:SI:USRS:2021:U.I.79.20
Act:
Communicable Diseases Act (Official Gazette RS, Nos. 33/06 – official consolidated text, 49/20, 142/20, 175/20, and 15/21) (CDA), 3rd Para. of Art. 5, 1st Para. of Art. 7, points 2 and 3 of the 1st Para. of Art. 39

Government of the Republic of Slovenia Act (Official Gazette RS, No. 24/05 – official consolidated text, 109/08, 8/12, 21/13, 65/14, and 55/17) (GRSA), 3rd Para. of Art. 21

Ordinance on the Temporary General Prohibition of the Movement and Gathering of People in Public Places and Areas in the Republic of Slovenia (Official Gazette RS, No. 30/20)

Ordinance on the Temporary General Prohibition of the Movement and Gathering of People in Public Places and Areas in the Republic of Slovenia and the Prohibition of Movement Outside of One’s Municipality (Official Gazette RS, Nos. 38/20 and 51/20)

Ordinance on the Temporary General Prohibition of the Movement and Gathering of People in Public Places and Areas in the Republic of Slovenia and the Prohibition of Movement Outside of One’s Municipality (Official Gazette RS, Nos. 52/20 and 58/20)

Ordinance on the Temporary General Prohibition of the Movement and Gathering of People in Public Places and Areas in the Republic of Slovenia (Official Gazette RS, No. 60/20)

Ordinance on the Temporary General Prohibition of the Gathering of People in Public Places and Areas in the Republic of Slovenia (Official Gazette RS, Nos. 69/20, 78/20, and 85/20)

Ordinance on the Mandatory Installation of Hand Sanitiser Dispensers in Apartment Buildings (Official Gazette RS, No. 135/20)

Order on the Declaration of an Epidemic of the SARS-CoV-2 (COVID-19) Communicable Disease in the Territory of the Republic of Slovenia (Official Gazette RS, Nos. 19/20 and 68/20)
Operative provisions:
 
Abstract:
»Publisher's Note: This is a summary of the Decision that has been prepared for informational purposes only.«
 
Decision of the Constitutional Court No. U-I-79/20, dated 13 May 2021 (Official Gazette RS, No. 88/21)
Restrictions on the Freedom of Movement and the Right of Assembly and Association during the COVID-19 Epidemic

Upon a petition submitted by multiple petitioners, the Constitutional Court reviewed points 2 and 3 of the first paragraph of Article 39 of the Communicable Diseases Act, which authorise the Government to prohibit or restrict the movement and gathering of people in order to prevent the introduction or spread of a communicable disease in the state. It also reviewed a number of ordinances that were adopted by the Government on the basis of the mentioned statutory provisions from April through October 2020 in order to contain and manage the threat of the COVID-19 epidemic.
 
The petitioners alleged, inter alia, that the challenged statutory regulation grants the Government the authorisation to decide, at its own discretion, without any statutory limitations or criteria, i.e. in an originary manner, on the restriction of the rights of individuals. The Constitutional Court assessed these allegations from the viewpoint of the second paragraph of Article 32 and the third paragraph of Article 42 of the Constitution (which expressly determine that freedom of movement and the right of assembly and association may be limited by law) in conjunction with the principle of legality determined by the second paragraph of Article 120 of the Constitution (which requires that the executive branch of power perform its work on the basis and within the framework of laws).
 
The Constitutional Court began by drawing attention to its hitherto case law in accordance with which the executive branch of power must not regulate questions falling within the field of legislative decision-making in an originary manner, i.e. without a statutory authorisation. Whenever the legislature authorises the executive branch of power to adopt an implementing regulation, it must first by itself regulate the foundations of the content that is to be the subject of the implementing regulation, and determine the framework and guidelines for regulating the content in more detail by the implementing regulation. A blank (bianco) authorisation granted to the executive branch of power (i.e. an authorisation not containing substantive criteria) entails the legislature’s failure to legislate statutory subject matter, which is inconsistent with the constitutional order.
 
The Constitutional Court stressed that the requirement that the statutory basis be precise is particularly stringent where a restriction of human rights and fundamental freedoms is at issue. A general act that directly interferes with the human rights or fundamental freedoms of an indeterminate number of individuals can only be a law. In the assessment of the Constitutional Court, when the regulation of restrictions on the movement and gathering of people in order to prevent the spread of a communicable disease is at issue, it is actually not inconsistent with the Constitution if the legislature – in order to effectively protect human rights and fundamental freedoms, as well as to ensure fulfilment of the positive obligations that stem from the Constitution – exceptionally leaves it to the executive branch of power to prescribe measures by which the freedom of movement and right of assembly and association of an indeterminate number of individuals are directly interfered with. However, the law must determine the purpose of these measures or their purpose must be clearly evident therefrom. Furthermore, the law must determine with sufficient precision the admissible types, scope, and conditions regarding the restriction of the freedom of movement and of the right of assembly and association, as well as other appropriate safeguards against the arbitrary restriction of human rights and fundamental freedoms.
 
 
The Constitutional Court concluded that the challenged statutory regulation does not fulfil this constitutional requirement, as it allows the Government to choose, upon its own discretion, the types, scope, and duration of restrictions, which interfere – possibly very intensely – with the freedom of movement of – possibly all – residents on the territory of the Republic of Slovenia. The challenged statutory regulation also leaves it to the Government to freely assess, throughout the entire period while the threat of the spread of the communicable disease lasts, in which instances, for how long, and in how extensive an area in the state it will prohibit the gathering of people in those public places where, according to the Government’s assessment, there exists a heightened risk of spreading the communicable disease. The regulation also lacks safeguards that could limit the discretion of the Government, such as the duty to consult or cooperate with the expert community and to inform the public of the circumstances and opinions of experts that are important for deciding on such measures.
 
In view of the above, the Constitutional Court concluded that points 2 and 3 of the first paragraph of Article 39 of the Communicable Diseases Act are inconsistent with the second paragraph of Article 32 and the third paragraph of Article 42 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, points 2 and 3 of the first paragraph of Article 39 of the Communicable Diseases Act shall apply. It so decided in order to protect the health and lives of people that due to the absence of a statutory basis [for the measures] could be at risk in the future, and thus prevented the occurrence of an even graver unconstitutional situation.
 
The Constitutional Court further established that also the challenged ordinances adopted by the Government were inconsistent with the mentioned two provisions of the Constitution, namely in the part where they were adopted on the basis of an unconstitutional statutory regulation. It decided that the establishment of such inconsistency shall have the effect of abrogation.
 
Password:
Points 2 and 3 of the first paragraph of Article 39 of the Communicable Diseases Act (Official Gazette RS, Nos. 33/06 – official consolidated text, 49/20, 142/20, 175/20, and 15/21) are inconsistent with the Constitution.

The National Assembly must remedy the inconsistency established in the preceding Point within two months of the publication of this Decision in the Official Gazette of the Republic of Slovenia.

Until the established inconsistency referred to in Point 1 of the operative provisions is remedied, points 2 and 3 of the first paragraph of Article 39 of the Communicable Diseases Act shall apply.

The petition for the initiation of proceedings to review the constitutionality of the third paragraph of Article 5 and the first paragraph of Article 7 of the Communicable Diseases Act is rejected.

The petition for the initiation of proceedings to review the constitutionality of the third paragraph of Article 21 of the Government of the Republic of Slovenia Act (Official Gazette RS, No. 24/05 – official consolidated text, 109/08, 8/12, 21/13, 65/14, and 55/17) is rejected.

The following were inconsistent with the Constitution:

The Ordinance on the Temporary General Prohibition of the Movement and Gathering of People in Public Places and Areas in the Republic of Slovenia (Official Gazette RS, No. 30/20);
The Ordinance on the Temporary General Prohibition of the Movement and Gathering of People in Public Places and Areas in the Republic of Slovenia and the Prohibition of Movement Outside of One’s Municipality (Official Gazette RS, Nos. 38/20 and 51/20);
The Ordinance on the Temporary General Prohibition of the Movement and Gathering of People in Public Places and Areas in the Republic of Slovenia and the Prohibition of Movement Outside of One’s Municipality (Official Gazette RS, Nos. 52/20 and 58/20);
The Ordinance on the Temporary General Prohibition of the Movement and Gathering of People in Public Places and Areas in the Republic of Slovenia (Official Gazette RS, No. 60/20); and
The Ordinance on the Temporary General Prohibition of the Gathering of People in Public Places and Areas in the Republic of Slovenia (Official Gazette RS, Nos. 69/20, 78/20, and 85/20),

in the part in which they were adopted on the basis of points 2 and 3 of the first paragraph of Article 39 of the Communicable Diseases Act.

The findings referred to in the preceding Point of the operative provisions shall have the effect of abrogation.

The petition for the initiation of proceedings to review the constitutionality of the Ordinance on the Mandatory Installation of Hand Sanitiser Dispensers in Apartment Buildings (Official Gazette RS, No. 135/20) is rejected.

The petition for the initiation of proceedings to review the constitutionality of the Order on the Declaration of an Epidemic of the SARS-CoV-2 (COVID-19) Communicable Disease in the Territory of the Republic of Slovenia (Official Gazette RS, Nos. 19/20 and 68/20) is rejected.

The proposals that the identity of the petitioners and their legal representatives be concealed are dismissed.
Legal basis:
Arts. 32.2, 42.3, Constitution [CRS]
Arts. 25.3, 38a.3, 40.2, 47, 48, Constitutional Court Act [CCA]
Note:

¤ By an order of the Constitutional Court, cases Nos. U-I-150/20, dated 3 December 2020; U-I-106/20, dated 3 December 2020; U-I-154/20, dated 3 December 2020; U-I-169/20, dated 3 December 2020; U-I-281/20, dated 3 December 2020; and U-I-178/20, dated 3 December 2020 were joined to the present case for joint consideration and decision-making.

Document in PDF:
The full text:
 
 
U-I-79/20
13 May 2021
 
 

DECISION

 
At a session held on 13 May 2021 in proceedings to review constitutionality and legality initiated upon the petitions of Žan Pajtler, Maribor, Borut Korošec, Celje, and others, all of whom are represented by Boštjan Verstovšek, attorney in Celje, and Aleš Karlovčec, Ljubljana, Damjan Pavlin, and Barbara Nastran, both from Kranj, and Vladko Began, Šmarje pri Jelšah, the Constitutional Court
 
 
decided as follows:
 
1. Points 2 and 3 of the first paragraph of Article 39 of the Communicable Diseases Act (Official Gazette RS, Nos. 33/06 – official consolidated text, 49/20, 142/20, 175/20, and 15/21) are inconsistent with the Constitution.
 
2. The National Assembly must remedy the inconsistency established in the preceding Point within two months of the publication of this Decision in the Official Gazette of the Republic of Slovenia.
 
3. Until the established inconsistency referred to in Point 1 of the operative provisions is remedied, points 2 and 3 of the first paragraph of Article 39 of the Communicable Diseases Act shall apply.
 
4. The petition for the initiation of proceedings to review the constitutionality of the third paragraph of Article 5 and the first paragraph of Article 7 of the Communicable Diseases Act is rejected.
 
5. The petition for the initiation of proceedings to review the constitutionality of the third paragraph of Article 21 of the Government of the Republic of Slovenia Act (Official Gazette RS, No. 24/05 – official consolidated text, 109/08, 8/12, 21/13, 65/14, and 55/17) is rejected.
 
6. The following were inconsistent with the Constitution:
 
 
  • The Ordinance on the Temporary General Prohibition of the Movement and Gathering of People in Public Places and Areas in the Republic of Slovenia (Official Gazette RS, No. 30/20);
  • The Ordinance on the Temporary General Prohibition of the Movement and Gathering of People in Public Places and Areas in the Republic of Slovenia and the Prohibition of Movement Outside of One’s Municipality (Official Gazette RS, Nos. 38/20 and 51/20);
  • The Ordinance on the Temporary General Prohibition of the Movement and Gathering of People in Public Places and Areas in the Republic of Slovenia and the Prohibition of Movement Outside of One’s Municipality (Official Gazette RS, Nos. 52/20 and 58/20);
  • The Ordinance on the Temporary General Prohibition of the Movement and Gathering of People in Public Places and Areas in the Republic of Slovenia (Official Gazette RS, No. 60/20); and
  • The Ordinance on the Temporary General Prohibition of the Gathering of People in Public Places and Areas in the Republic of Slovenia (Official Gazette RS, Nos. 69/20, 78/20, and 85/20),
 
in the part in which they were adopted on the basis of points 2 and 3 of the first paragraph of Article 39 of the Communicable Diseases Act.
 
7. The findings referred to in the preceding Point of the operative provisions shall have the effect of abrogation.
 
8. The petition for the initiation of proceedings to review the constitutionality of the Ordinance on the Mandatory Installation of Hand Sanitiser Dispensers in Apartment Buildings (Official Gazette RS, No. 135/20) is rejected.
 
9. The petition for the initiation of proceedings to review the constitutionality of the Order on the Declaration of an Epidemic of the SARS-CoV-2 (COVID-19) Communicable Disease in the Territory of the Republic of Slovenia (Official Gazette RS, Nos. 19/20 and 68/20) is rejected.
 
10. The proposals that the identity of the petitioners and their legal representatives be concealed are dismissed.
 
 
 
REASONING
 
 

A

 

The summary of the petitions

 
1. The petitioners filed petitions for the initiation of proceedings to review the constitutionality and legality of a number of ordinances adopted by the Government from April through October 2020 in order to contain and manage the threat of the COVID-19 epidemic. The challenged ordinances regulated restrictions on the movement and gathering of people, as well as several protective measures. The challenged ordinances are the following:
 
  • the Ordinance on the Temporary General Prohibition of the Movement and Gathering of People in Public Places and Areas in the Republic of Slovenia (hereinafter referred to as Ordinance/30);
  • the Ordinance on the Temporary General Prohibition of the Movement and Gathering of People in Public Places and Areas in the Republic of Slovenia and the Prohibition of Movement Outside of One’s Municipality (hereinafter referred to as Ordinance/38);
  • the Ordinance on the Temporary General Prohibition of the Movement and Gathering of People in Public Places and Areas in the Republic of Slovenia and the Prohibition of Movement Outside of One’s Municipality (hereinafter referred to as Ordinance/52);
  • the Ordinance on the Temporary General Prohibition of the Movement and Gathering of People in Public Places and Areas in the Republic of Slovenia (hereinafter referred to as Ordinance/60);
  • the Ordinance on the Temporary General Prohibition of the Gathering of People in Public Places and Areas in the Republic of Slovenia (hereinafter referred to as Ordinance/69);
  • the Ordinance on the Temporary Measures for Mitigating the Threat of Infection and the Spread of Infection with the SARS-CoV-2 virus (Official Gazette RS, No. 90/20 – hereinafter referred to as Ordinance/90); and
  • the Ordinance on the Mandatory Installation of Hand Sanitiser Dispensers in Apartment Buildings (hereinafter referred to as Ordinance/135).
 
2. The petitioners also challenged the Order on the Declaration of an Epidemic of the SARS-CoV-2 (COVID-19) Communicable Disease in the Territory of the Republic of Slovenia (hereinafter referred to as the Order), the Communicable Diseases Act (hereinafter referred to as the CDA), and the third paragraph of Article 21 of the Government of the Republic of Slovenia Act (hereinafter referred to as the GRSA).
 
3. The petitioner Žan Pajtler (hereinafter referred to as the first petitioner) challenged Ordinance/30, Ordinance/90, and Ordinance/135. He opines that the measures introduced by Ordinance/30 interfere with human rights and fundamental freedoms with such intensity that they could only be introduced in the event of war or a state of emergency (Articles 16 and 92 of the Constitution). In connection therewith, he alleges that also a review of Article 39 of the CDA should be carried out. The first petitioner also alleges that the measures should not have been adopted for the entire territory of the Republic of Slovenia. He alleges that, in accordance with the official instructions, the Police perform control over violations of the Ordinance, even though in accordance with the CDA it is the health inspectorate that has the authorisation to carry out such control. Allegedly, individuals have no factual expectancy regarding the further steps; public announcements are made daily and only then is it explained what individual ordinances in fact mean, as well as that the measures will progressively increase, which puts them in a very uncertain position.
 
4. According to the first petitioner, Ordinance/135 is inconsistent with Articles 2 and 153 of the Constitution and Article 21 of the GRSA, because allegedly in reality Ordinance/135 is a legally non-binding act, whereas the Government labelled it an “ordinance”.
 
5. The petitioners Borut Korošec and others (hereinafter referred to as the second petitioners) challenge Ordinance/38 and Ordinance/52. They claim that Ordinance/38 was not adopted by the competent authority, because on the basis of Article 39 of the CDA then in force, that regulation could only be adopted by the minister responsible for health [hereinafter: the Minister], and not by the Government. They opine that the restriction of movement to the municipality of one’s residence is not reasonable, necessary, urgent, proportionate, or constitutionally legitimate, that it is not based on scientific reasons, and that it is inconsistent with Articles 14 and 32 of the Constitution and Article 39 of the CDA. All of the imposed measures are allegedly based on untrue data on the number of deaths due to COVID-19, as the data on the mortality caused by COVID-19 on the basis of which the adopted measures are based allegedly does not differentiate between deaths due to COVID-19 and instances where a person who was indeed infected with SARS-CoV-2 died due to some other cause. The adopted measures are allegedly disproportionate, as on their account significant economic damage is being incurred, and they allegedly also have other negative repercussions in the field of the treatment of other diseases and regarding mental health. The competent authorities allegedly did not carry out any analysis of the harmful consequences of the counter-epidemic measures or a comparison of which consequences are graver. The second petitioners opine that the state should appropriately protect the older population, whereas all the other measures are allegedly without reason, unnecessary, and even counter-productive. Ordinance/52 is allegedly also inconsistent with Order of the Constitutional Court No. U-I-83/20, dated 16 April 2020 (Official Gazette RS, No. 58/20), and the CDA, as the Government allegedly did not fulfil its obligation stemming from the mentioned order of the Constitutional Court and obtain the opinion of the competent expert authority as determined by the CDA, i.e. the National Institute of Public Health (hereinafter referred to as the NIPH).
 
6. Furthermore, the second petitioners allege that the challenged two ordinances are implementing regulations of the executive branch of power by which measures restricting the freedom of movement were introduced. They draw attention to the fact that, in accordance with Article 87 of the Constitution, the rights and obligations of legal entities may only be determined by law. Interferences with human rights and fundamental freedoms are also only admissible if regulated by law. The second petitioners warn that the second paragraph of Article 32 of the Constitution expressly determines that the freedom of movement may only be limited by law and only where this is necessary to ensure the course of criminal proceedings, to prevent the spread of communicable diseases, to protect public order, or if the defence of the state so demands. In view of the above, it is alleged that the challenged two ordinances entail a serious interference with the competence of the legislative branch of power.
 
7. The second petitioners also challenge the CDA. They opine that the CDA is inconsistent with the Constitution as it does not prescribe a time limit regarding the measures and does not determine which scientific authorities adopt decisions on whether the conditions for declaring an epidemic are fulfilled and which measures should be carried out. The first paragraph of Article 39 of the CDA allegedly imposes on the executive branch of power generalised criteria for interfering with human rights, due to which it is allegedly inconsistent with Article 2, the second paragraph of Article 32, and Article 87 of the Constitution. According to the second petitioners, the CDA does not determine in what manner and scope movement can be restricted by an implementing regulation adopted on its basis, and it also does not determine the criteria for such limitations; on the contrary, it gives the Minister a blanket authorisation to choose by him- or herself, by an implementing regulation, without any restrictions or criteria determined by law, the measures, manner, and degree of restricting the movement of individuals.
 
8. The CDA is allegedly also inconsistent with the second paragraph of Article 39 of the Constitution because it does not envisage informing the public. The second petitioners allege that the Government did not inform the public and that it did not inform it objectively and transparently. He presents a list of numerous questions that the Government should have answered to the public, but it allegedly did not do so. The Government allegedly adopts measures to contain and manage the threat of COVID-19 on the basis of selective and incomplete information. The second petitioners opine that the residents of the Republic of Slovenia have the right to be informed objectively and comprehensively, in particular when measures that limit or even abolish constitutionally protected human rights and fundamental freedoms are at issue. Allegedly, residents have the right to learn accurate information and verify on the basis thereof whether the measures adopted by the Government were in conformity with the Constitution, lawful, proportionate, and necessary. According to the second petitioners, the CDA should prescribe that all (anonymised) relevant data on deaths (age, sex, associated diseases, autopsy results, the official medical grounds for death, etc.) be transparently published. Allegedly, it should determine a fair, balanced manner of informing the public by all state authorities. Allegedly, residents have the right to know what the real threats are and whether there also exist opinions that are different from those that are official (in order to be able to form their own opinion and to think critically). In the opinion of the second petitioners, it would be best to adopt a special law on the manner of informing the public by all state authorities on all public matters, not only with regard to the epidemic.
 
9. In the assessment of the second petitioners, also the third paragraph of Article 5 and the first paragraph of Article 7 of the CDA are inconsistent with the Constitution. The third paragraph of Article 5 of the CDA is allegedly inconsistent with the Constitution as it allegedly determines that the epidemiological situation is changing and assessed in conformity with the programmes of the World Health Organisation (hereinafter referred to as the WHO). The second petitioners opine that the CDA should have clearly determined itself the manner in which the epidemiological situation is monitored and studied and that in this respect it should not refer to other WHO programmes. Allegedly, the first paragraph of Article 7 of the CDA does not contain a definition of an epidemic that is sufficiently precise.
 
10. Furthermore, the second petitioners challenge the third paragraph of Article 21 of the GRSA. According to the position of the second petitioners, this provision in practice allows the Government as an authority of the executive branch of power to interfere with fundamental human rights by an implementing regulation without an express statutory authorisation, bypassing the Constitution and laws, although on the basis of Article 87 of the Constitution a restriction of human rights should be reserved only for a law. The provision allegedly allows the possibility of too broad an interpretation and thus of arbitrary decision-making by the executive branch of power. Thereby, the provision allegedly negates the second paragraph of Article 32 and Article 87 of the Constitution, destroys the hierarchy of legal regulations, and allows the executive branch of power to autonomously interfere with fundamental human rights.
 
11. The second petitioners also challenge the Order. They allege that it is not limited in time and that it does not determine in what circumstances the Minister must cancel it; therefore, it is inconsistent with Article 16 of the Constitution. Furthermore, the Order is allegedly also based on untrue data on the number of deaths due to COVID-19.
 
12. The petitioner Aleš Karlovčec (hereinafter referred to as the third petitioner) challenges Order/52, Order/60, Order/69, and points 2 and 3 of the first paragraph of Article 39 of the CDA, with regard to which he later withdrew his petition insofar as it refers to Order/52. He opines that the challenged two orders are inconsistent with the principle of legality determined by the second paragraph of Article 120 of the Constitution, as they overstepped the authorisation under Article 39 of the CDA, which is so vague and indeterminate that it is also itself inconsistent with the mentioned principle, as well as with Article 2 of the Constitution. The two Orders are allegedly also inconsistent with Articles 32 and 42 of the Constitution, in accordance with which limitations of the freedom of movement and of the right of assembly and association can only be introduced by law. The third petitioner stresses that administrative authorities must not adopt implementing regulations without a substantive basis in the law. All important normative decisions should be adopted by the legislature in a substantively specific, clear, and precise manner. The above-stated is allegedly particularly important in the event of the regulation of the exercise or limitation of human rights. Since Article 39 of the CDA only very superficially regulates the purpose of measures and coercive measures (the prohibition or limitation of the movement of people and the prohibition of the gathering of people in public spaces), it allegedly leaves the regulation of too many issues to the Government. In the challenged orders, the Government allegedly regulated numerous questions that are allegedly unrelated to the CDA, whereby it overstepped the framework of the CDA. According to the third petitioner, the CDA should be significantly more complete; it should contain more content and legal guarantees. In the assessment of the third petitioner, the CDA should regulate by itself also the temporal limitation of measures and the cooperation of the expert community (expert authorities and the manner of determining scientific bases). Allegedly, Articles 32 and 42 of the Constitution and the principle of proportionality require that the statutory regulation determine the thorough informing [of the public] and the reasoning of the extension, modification, or abolishment of measures. For these reasons, also the challenged Orders, in particular Article 6 of Order/60 and Article 5 of Order/69, which determine that it must be assessed on a weekly basis whether the measures are scientifically well-founded, are allegedly inconsistent with the Constitution, as they allegedly do not protect rights with sufficient force and effectiveness, and they do not protect against arbitrariness.
 
13. In the assessment of the third petitioner, Article 3 of Order/69, which contains a completely blanket transfer of the authorisation of the legal regulation of the limitation of the right of assembly to the NIPH, is inconsistent with Articles 2, 120, and 121 of the Constitution, as it allegedly concerns the broad and comprehensive transfer of authorisation to regulate the content of a human right to a public institution that is not an authority.
 
14. Furthermore, the third petitioner alleges that the restriction of movement and gathering in public spaces is disproportionate. This provision is allegedly also inconsistent with Articles 14 and 35 of the Constitution. Ordinance/60 allegedly provides religious adherents admissible grounds not only for moving by road or path to a church, but even for mass gatherings in a church as a closed public space – predominantly for the older and more threatened older population. Thereby, atheists are thereby discriminated against on grounds of religion. The social and emotional connections of the third petitioner and his possibility of cooperating and socialising with other people are allegedly strongly limited, and thus also his personality rights.
 
15. The third petitioner also alleges that the fourth paragraph of Article 3 of Order/60 is inconsistent with Article 32 of the Constitution, as it allows municipalities to further restrict movement.
 
16. Petitioners Damjan Pavlin and Barbara Nastran (hereinafter referred to as the fourth petitioners) challenge Order/38. They opine that it is inconsistent with the principle of legality, as it was allegedly adopted by bypassing the law or contrary thereto. The fourth petitioners stress that the determination of rights or obligations in conformity with Article 87 of the Constitution is reserved for the National Assembly, i.e. the legislative branch of power. Similar allegedly follows from Articles 32 and 42 of the Constitution, and Article 2 of Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette RS, No. 33/94, MP, No. 7/94 – hereinafter referred to as the ECHR). Order/38 allegedly restricts the freedom of movement, the right of assembly, and the right to privacy in a way that is outside the substantive and value criterion of the CDA. Except for the exhaustively listed exceptions in Articles 3, 4, and 5 of Order/38, people in the Republic of Slovenia were not even allowed to leave their private premises at the address of their temporary or permanent residence. In the opinion of the fourth petitioners, the CDA does not envisage such restrictions. The CDA allegedly only prescribes the possibility of restricting movement as a subsidiary option that should be applied in a restrictive manner and only in the event that the objective cannot be attained by measures already envisaged by the CDA. In the opinion of the fourth petitioners, these restrictions can only refer to endangered and infected areas, which in accordance with the fourth paragraph of Article 7 of the CDA must be declared in advance (which is allegedly not the same as declaring an epidemic), with regard to which the act that is to determine these areas has allegedly not been adopted. The Government thereby interfered with the right to the freedom of movement in an originary manner, i.e. without a statutory authorisation, and hollowed it out virtually completely. Such an interference is allegedly also disproportionate.
 
17. The fourth petitioners allege that the challenged ordinance is inconsistent with the principle of legality also because it was adopted by the Government, although the CDA authorised the Minister to order the measures determined by Article 39 of this Act. The challenged ordinance is allegedly also inconsistent with Article 2 of the Constitution, as allegedly it is not sufficiently clear and precise. The fourth petitioners allege that the provisions of the ordinance that allowed municipalities or mayors to further restrict movement are also inconsistent with the Constitution.
 
18. The petitioner Vladko Began (hereinafter referred to as the fifth petitioner) challenges Ordinance/52 and Ordinance/60, and also Article 39 of the CDA. He opines that the challenged two ordinances are inconsistent with the principle of legality, as allegedly there is no statutory basis therefor. In fact, in his opinion, movement and gathering may only be limited by law (and not by an ordinance), which allegedly follows from Articles 32, 42, and 87 of the Constitution. Therefore, the two ordinances are also inconsistent with Articles 120 and 153 of the Constitution.
 
19. The fifth petitioner opines that also the CDA is inconsistent with the principle of legality determined by Articles 2, 120, and 153 of the Constitution. The principle of a state governed by the rule of law determined by Article 2 of the Constitution allegedly requires it to be evident or at least predictable from the law what kind of limitations an individual must expect. From Articles 120 and 153 of the Constitution it allegedly follows that a law must by itself determine the foundations of the content that is to be the subject of the implementing regulation, and determine the framework and guidelines for regulating the content in more detail by the implementing regulation. Thus, in the opinion of the fifth petitioner, Article 39 of the CDA should determine the conditions, criteria, and fundamental criteria for restricting measures. Neither Article 39 nor other provisions of the CDA contained them; therefore, in the assessment of the fifth petitioner, the Government’s decision-making was arbitrary, and the challenged ordinances are inconsistent with the Constitution. The CDA also does not determine the criteria from which it is evident what is considered to be an infected area or an area directly at risk. The fifth petitioner explains that even though an epidemic may be declared for the entire state, there can be significant differences between different areas, and differences as regards the possibility of being infected can also exist between closed or open public or private spaces.
 
20. In the opinion of the fifth petitioner, the restriction of movement and gathering in public spaces determined by the challenged ordinances is disproportionate. The fifth petitioner alleges that the restriction of movement and gathering in open public spaces could only be admissible if the usage of masks and other protective equipment were prescribed in advance for movement in these spaces, and this measure proved to be ineffective. He alleges that the challenged two ordinances are also inconsistent with Article 14 of the Constitution and Article 4 of the CDA in the part where they determine that they shall not be used for activities carried out by the services competent for ensuring the performance of the tasks of the state, self-governing local communities, and public services. In the opinion of the fifth petitioner, this means that for the persons who perform the mentioned tasks, neither the obligation to maintain a safe distance from other persons, nor the use of protective equipment and the disinfection of hands applies – for which there are allegedly no reasonable grounds.
 
21. The fifth petitioner also alleges that the two ordinances are inconsistent with Article 16 of the Constitution, as allegedly a state of emergency was not declared, and the two ordinances allegedly restricted human rights contrary to Article 16 of the Constitution in “a normal” state.
 

The summary of the reply of the National Assembly

 
22. The Constitutional Court served the petitions by which the petitioners also challenge the CDA and/or the GRSA on the National Assembly. The National Assembly explains that the CDA regulates different measures for preventing and managing communicable diseases. The measures are allegedly adapted to different instances and allegedly differ from one another, depending on the circumstances of the concrete case. The challenged measures determined by points 2 and 3 of Article 39 of the CDA are allegedly connected with a situation in which it is impossible to prevent, by other measures determined by the CDA, the introduction of certain communicable diseases into the Republic of Slovenia and the spread thereof. Communicable diseases are inherently very diverse. This is allegedly evident from Article 8 of the CDA, which among the diseases due to which the general and special measures determined by the CDA are carried out also included numerous communicable diseases, which, in view of their nature, are also further classified by an implementing regulation of the Minister. Therefore, the law allegedly regulates the system of selecting measures in accordance with the principle of moving from the most lenient measure that can still prevent the introduction or spread of a communicable disease, to the strictest measure for such a purpose. In doing so, it does not expressly determine that a stricter measure that entails a more severe interference with the rights of individuals may only be used under the condition that prior to that a milder measure was applied. Allegedly, the system for protecting the population from communicable diseases can also in such manner appropriately respond and adapt to the actual circumstances and needs. In the opinion of the National Assembly, it is possible to deduce therefrom that such a regulation observes the constitutional principle of proportionality as one of the implementing principles of a state governed by the rule of law determined by Article 2 of the Constitution.
 
23. In the opinion of the National Assembly, the measure determined by point 2 of the first paragraph of Article 39 of the CDA (the prohibition or restriction of the movement of people in infected areas or in areas directly at risk) can be deemed to be a continuation or escalation of the measures of isolation, quarantine, and compulsory treatment and the transfer of patients (Articles 18 through 21 of the CDA), as well as of some other measures (e.g. the system of compulsory vaccination determined by Article 22 of the CDA, disinfection determined by Article 26 of the CDA, and compulsory medical checks determined by Articles 31 and 32 of the CDA). The restriction of movement, as the strictest measure, is allegedly based on the second paragraph of Article 32 of the Constitution, in accordance with which the right to the freedom of movement, which is a general right that belongs to everyone, may be restricted by law, but only in certain instances, inter alia when the spread of a communicable disease must be prevented. Hence, the restriction of the freedom of movement determined by point 2 of the first paragraph of Article 39 of the CDA is, in accordance with the Constitution, not admissible immediately when a communicable disease occurs, but only if other measures determined by the CDA cannot prevent the introduction or spread of communicable diseases in the state. Furthermore, this restriction is allegedly only admissible in infected areas or in areas directly at risk, which in extreme situations (where there exists a possibility of the rapid spread of a certain communicable disease) could also entail the entire territory of the Republic of Slovenia, and otherwise only narrower parts thereof. The National Assembly opines that the measure of the prohibition or limitation of movement is also limited in time, as the measure allegedly loses its substantive statutory basis if the area for which it was ordered is no longer infected or directly at risk.
 
24. In the assessment of the National Assembly, also point 3 of the first paragraph of Article 39 of the CDA (the prohibition of the gathering of people in public areas), concerns the continuation or escalation of other measures determined by the CDA. The constitutional starting point for limiting the gathering of people in public areas is allegedly the third paragraph of Article 42 of the Constitution, in accordance with which the right of peaceful assembly and public meeting and to freedom of association can be, inter alia, limited by law if protection from the spread of communicable diseases so requires. Also the right of assembly and association allegedly cannot be limited due to the mere appearance of a communicable disease, but also in this event certain conditions or limitations determined by law are key. The law allegedly determines when an interference with the human right of assembly and association is admissible (i.e. necessary, urgent, and sufficient).
 
25. The National Assembly opines that Article 39 of the CDA contains all the necessary elements for constitutionally consistent application: the measures determined by this Article are allegedly only admissible when the other measures determined by the CDA cannot prevent the introduction or spread of certain communicable diseases; in these instances, only some of the measures listed in points 1 through 4 of the first paragraph of Article 39 of the CDA can be imposed; the measures determined by points 2 and 3 are allegedly also limited in space in time.
 
26. In the assessment of the National Assembly, the definition of an epidemic determined by the challenged first paragraph of Article 7 of the CDA is a legal standard that is determined to a sufficient degree in order to enable an assessment in each individual case whether due to the emergence of a certain communicable disease immediate action must be taken in conformity with the CDA.
 
27. The National Assembly opines that also the allegation as to the unconstitutional denial of sovereignty due to the indeterminate nature of the foreign criteria of the WHO, which refers to the third paragraph of Article 5 of the CDA, is not substantiated, as the Republic of Slovenia is a member of that international organisation.
 
28. As regards the alleged inconsistency of the third paragraph of Article 21 of the GRSA with the Constitution, the National Assembly alleges that, in accordance with this provision, the Government may regulate by an ordinance only individual questions, adopt individual measures of general importance, or adopt other decisions for which a law or decree determines that the Government shall regulate such by an ordinance. In such manner, this statutory provision (in conformity with Article 153 of the Constitution – the conformity of legal acts) ensures the conformity of an implementing regulation within the hierarchy of legal acts. The GRSA allegedly determines substantive restrictions (only individual questions or measures that have a general meaning) and establishes that an ordinance must be connected with the content established by law, which the Government (in more detail and within the limits of the law) shall regulate by this type of implementing regulation. In view of the above, the third paragraph of Article 21 of the GRSA allegedly does not allow for arbitrary decision-making by the executive branch of power and is allegedly not inconsistent with Article 87 of the Constitution.
 

The summary of the reply and opinion of the Government

 
29. The Constitutional Court also served the petitions on the Government. The latter explains that it adopted the ordinances by referring to Article 39 of the CDA, and that thereby it only determined in more detail the restrictions already determined by the CDA on the basis of the second paragraph of Article 32 of the Constitution, and that thereby it did not regulate by an ordinance questions reserved for a law. The ordinances allegedly also pursue the purpose and objective of the law and do not narrow other rights. The Government alleges that the CDA regulates a precisely determined field (i.e. communicable diseases) and concurrently determines that the executive branch of power may order precisely determined measures, which the Government indeed has done by means of ordinances. It allegedly follows from the intention of the CDA that measures should be adopted on the basis of a law but only following an expert assessment of which measures should be applied in the individual case of a communicable disease and the circumstances thereof (the role of the NIPH in the field of the prevention of communicable diseases is allegedly determined already by Article 5 of the CDA). From Article 39 of the CDA there allegedly also follows the requirement that the principle of proportionality be observed, with regard to which the CDA allegedly expressly determines that in the event of a balancing between constitutionally protected values regarding the life and health of the population and the freedom of movement and association of individuals, the protection of the life and health of the population has priority. With respect to point 3 of the first paragraph of Article 39 of the CDA, in the opinion of the Government, the right of association can only be restricted if protection from the spread of communicable diseases so requires, until the threat of the spread thereof ceases. As well as with respect to the restriction of movement in accordance with point 2 of the first paragraph of Article 39 of the CDA, also in this event the Government can only restrict the right of assembly in instances where other measures determined by the CDA cannot prevent the prevent the introduction or spread of communicable diseases in the state. In the opinion of the Government, it must also be taken into consideration that, in the past, the state had not yet faced an epidemic of a communicable disease for which exceptionally little information existed in the initial stage. Therefore, the ordinances were issued in accordance with Articles 120 and 153 of the Constitution. They were allegedly also not inconsistent with the principles of clarity and precision determined by Article 2 of the Constitution, as they were sufficiently clear.
 
30. With respect to the allegation that the measures introduced interfere with human rights and fundamental freedoms with such intensity that they could only be introduced in the event of war or a state of emergency (Articles 16 and 92 of the Constitution), the Government explains that interferences with human rights are also admissible in times of peace. In the opinion of the Government, the case at issue does not concern the most intense interferences by the state with human rights or interferences that would entail an abrogation of human rights (the restrictions of movement that were not introduced would perhaps be even more drastic). The Government also opines that the conditions for declaring a state of emergency were not met, as the existence of the state from the viewpoint of its constitutive elements was not jeopardised. The measures were allegedly adopted precisely in order to prevent the collapse of the health care system, which in the worst-case scenario could indeed threaten the existence of the state and would require interferences with human rights that would be much more severe.
 
31. In the assessment of the Government, the measures introduced were appropriate, necessary, and proportionate in view of the trends regarding the number of people infected and the fact that in the opinion of health experts the spread of this disease can only be effectively prevented by prohibiting and restricting interpersonal contact. The measures were allegedly adopted on the basis of the opinions and findings of health experts. The Government alleges that infected persons were detected in the territory of the entire state, therefore measures had to be adopted for the area of the Republic of Slovenia; the regional adoption of measures would allegedly have been ineffective in view of how small the state is and in view of daily commuting. As regards the allegation of the petitioners that the limitation of movement and gathering in public spaces is also inconsistent with Articles 14 and 35 of the Constitution, the Government replies that the consequences of the restriction of movement can inherently also become apparent in other areas of life and that other rights were indirectly interfered with only to the extent necessary to protect public health and the life of the inhabitants.
 
32. With respect to the allegation that Ordinance/38 was not adopted by the competent authority, the Government explains that that Ordinance was adopted on the basis of Article 2 and the eighth paragraph of Article 20 of the GRSA. In the hierarchy of the executive branch of power, the Government is an authority that is allegedly hierarchically superior to an individual ministry; furthermore, it is also responsible for the situation in all areas, i.e. also in the field of measures for controlling epidemics that have consequences for the entire population and require an interdisciplinary response from all the entities involved. The Government opines that the Ministry of Health voted in favour of adopting the Ordinance, therefore (also) the Minister could have imposed the measures determined by the Ordinance. He draws attention to the fact that Article 7 of the Act Determining Intervention Measures to Contain the COVID-19 Epidemic and Mitigate its Consequences for Citizens and the Economy (Official Gazette RS, No. 49/20 – hereinafter referred to as the ADIMCEMC) amended Article 39 of the CDA, namely such that the power to adopt certain measures was transferred from the Ministry of Health to the Government. The measures mentioned in Article 39 of the CDA allegedly refer to different fields of life; therefore, in view of the substantive diversity of the measures, it would be more sensible if the Government, as a collective authority, decided thereon instead of an individual minister, as the CDA determined prior to the amendment thereof.
 
33. In view of the allegation that Order of the Constitutional Court No. U-I-83/20 was not observed, the Government alleges that Article 8 of Ordinance/52 was amended (Official Gazette RS, No. 58/20), namely such that it was limited in time in a clear manner as regards the continued monitoring of whether further measures were necessary, and also all ordinances adopted subsequently contained this provision.
 
34. As regards the allegation of the petitioners that Ordinance/38 is inconsistent with the Constitution because it allows municipalities and mayors to further restrict the movement [of people], the Government replies that the challenged regulation ensures that the exceptions from the temporary prohibition of the movement and gathering [of people] can be determined in more detail at lower levels, closer to the local population, in accordance with the principle of subsidiarity and by implementing the constitutional principle of local self-government as determined by Article 9 of the Constitution. Allegedly, this provision entails an instructive provision for self-governing local communities, which already on the basis of their powers can determine rules or impose certain restrictions. Allegedly, the challenged Ordinance only authorises mayors to determine in more detail the exceptions from the general prohibition of movement and association, and does not authorise them to interpret the exceptions determined by Article 3 of Ordinance/38 contrary to their content or to further restrict the right to free movement or gathering.
 
35. The Government opines that the definition of epidemics determined by the first paragraph of Article 7 of the CDA entails a legal standard that is sufficiently defined. Allegedly, that provision allows that on the basis of an expert assessment, appropriate measures determined by the CDA shall be adopted and carried out every time a certain communicable disease arises. In the assessment of the Government, in the event an epidemic has already been declared, it is not required that infected and directly threatened areas be specifically declared.
 
36. With respect to the challenged third paragraph of Article 21 of the GRSA, the Government explains that this statutory provision only determines the form of the acts that the Government adopts (e.g. ordinances), but this provision does not entail a substantive basis for adopting implementing regulations or other acts. In order to adopt a certain act on the basis of Article 21 of the GRSA, the Government or the Minister must have a substantive basis in the law, which in the given instances can be found in the CDA. In this context, the Government adds that the determination of measures that are limited in time in order to prevent the spread of communicable diseases is, in its opinion, a question of general importance.
 
37. As regards the allegations that refer to the Order, the Government stresses that on the day this Order was adopted, it was not at all possible to predict the length of the epidemic or how far-reaching its consequences would be, as it was a communicable disease that was completely new and thus far unknown. By declaring an epidemic, the Republic of Slovenia followed the declaration of a pandemic by the WHO. The Government alleges that the epidemic was declared on the basis of the expert opinion of the NIPH and by taking into consideration the trends in the number of infected persons.
 

The statements of the petitioners regarding the replies of the National Assembly and the Government

 
38. The Constitutional Court served the replies of the Government and of the National Assembly on the petitioners. In their replies, some petitioners additionally substantiated the positions and allegations that had essentially already been presented in their petitions.
 
The expansion of the petition
 
39. On 30 April 2021, the second petitioners filed an extensive supplement and expansion to the petition by which they also challenge numerous ordinances that the Government adopted in the period from October 2020 until this expansion was filed, the Order on the Application of Measures Determined by the Communicable Diseases Act for COVID-19 (Official Gazette RS, No. 117/20), and the Decree on the Implementation of Screening Programmes for the Early Detection of the SARS-CoV-2 Virus Infection (Official Gazette RS, Nos. 204/20, 20/21, 59/21, and 64/21).
 
 

B – I

 

As regards joining and partly excluding petitions

 
40. The petitions pose a series of equivalent questions that are related to one another. A number of petitioners challenge the same ordinances, as well as the CDA, on the basis of which the challenged ordinances were adopted. In light of the above, the Constitutional Court joined the petitions in order to consider and decide on them jointly. Then, the Constitutional Court excluded from the joined case those parts of the petitions that refer to the question of the legality and constitutional consistency of the measure of the obligatory use of a protective mask or another form of covering the mouth and nose area and the disinfection of hands, which the petitioners pose as regards Ordinance/52, Ordinance/60, and Ordinance/90, as it assessed that the joint consideration of this question in conjunction with other questions was not necessary and sensible. For the same reason, the Constitutional Court also excluded the part of the second petitioners’ petition that refers to acts only challenged in the extension of the petition. The Constitutional Court will decide separately on these parts of the request.
 

As regards proposals to conceal personal data

 
41. Some petitioners propose that in the decision or order hereon their personal data and the data of their representatives not be stated. They opine that due to the general fear of COVID-19, petitions could be misinterpreted. In their environment, the petitioners could be stigmatised and become a target of attacks. They could become victims of harassment and insulted on the internet and social media, by post, and locally. There also exists a threat of the misuse of police authorisations.
 
42. In accordance with the second paragraph of Article 38a of the Constitutional Court Act (Official Gazette RS, Nos. 64/07 – official consolidated text, 109/12, and 23/20 – hereinafter referred to as the CCA), the Constitutional Court can decide, in order to protect the privacy of participants in proceedings, that the personal data of a participant in proceedings or the personal data of other individuals not be stated in a decision or order. In order to conceal their identity, special circumstances must be demonstrated in the individual case that demonstrate the need to depart from the general rule that procedures before the Constitutional Court be public.[1] In the case at issue, such circumstances were not demonstrated. The allegations of the petitioners as to possible stigmatisation, attacks, harassment, and the misuse of police authorisations are completely generalised.[2] Furthermore, a number of months have passed from the adoption and entry into force of the challenged ordinances, and also the number of filed petitions that challenge the governmental ordinances on the restriction of movement and gathering [of people] has increased. In light of the above, the Constitutional Court dismissed the proposals to conceal their identity (point 10 of the reasoning).
 

As regards the legal interest to file petitions

 
43. Anyone who demonstrates legal interest may lodge a petition for the initiation of proceedings to review constitutionality or legality (the first paragraph of Article 24 of the CCA). In accordance with the second paragraph of the mentioned Article, legal interest is deemed to be demonstrated if a regulation or general act issued for the exercise of public authority whose review has been requested by the petitioner directly interferes with his or her rights, legal interests, or legal position.
 
As regards the legal interest to file a petition against the Order
 
 
As regards the legal interest to file petitions against the challenged ordinances
 
45. Challenged Ordinance/30, Ordinance/38, Ordinance/52, Ordinance/60, and Ordinance/69 addressed all individuals in the territory of the Republic of Slovenia. All the mentioned ordinances prohibited or restricted the gathering of people in public places and areas in the Republic of Slovenia. Ordinance/30, Ordinance/38, Ordinance/52, and Ordinance/60, also prohibited the movement of people in public places and areas in the Republic of Slovenia and access to public places and areas in the Republic of Slovenia, with the exception of exhaustively determined instances and under certain conditions. Furthermore, Ordinance/38 and Ordinance/52 prohibited the movement [of people] outside the municipality of their permanent or temporary residence, and also included exhaustively determined exceptions that applied under certain conditions. In the event of a violation of these prohibitions, the ordinances envisaged liability for a minor offence and referred to minor offence sanctions in accordance with the law regulating communicable diseases (Article 6 of Ordinance/30, Article 8 of Ordinance/38, Article 9 of Ordinance/52, Article 7 of Ordinance/60, and Article 6 of Ordinance/69).
 
46. In fact, the petitioners do not allege that due to the violation of the challenged ordinances they were sentenced for committing a minor offence, and together with the petition they also have not filed a constitutional complaint against a decision issued in minor offence proceedings based on the challenged ordinances. However, it is also not possible to require the petitioners to fulfil the statutory definition of a minor offence by violating the allegedly unconstitutional or unlawful provisions of the challenged ordinances in order to substantiate their legal interest. It follows from the challenged case law of the Constitutional Court that legal interest to file a petition is demonstrated even if the petitioner does not file the petition together with a constitutional complaint against an individual legal act that is based on the provisions of a general act that he or she deems to be constitutionally disputable if the petitioner could only elicit the issuance of such an individual act by acting contrary to mandatory regulations[3] or in such a way so as to expose him- or herself to unacceptable legal risk.[4] For this reason, also in the event where the petitioner could only achieve that an individual act be issued by acting in line with the statutory definition of a minor offence, the Constitutional Court deems that legal interest to initiate proceedings to review the constitutionality of a general act is fulfilled.[5] The case at issue also entails such an instance.
 
47. In view of the above, the legal interest of petitioners for a review of the constitutionality and legality of Ordinance/30, Ordinance/38, Ordinance/52, Ordinance/60, and Ordinance/69 at the time of filing the petitions was demonstrated.[6] Since the petitioners allege, inter alia, that the limitations of movement and/or assembly regulated by the challenged ordinances did not have any statutory basis in conformity with the Constitution, the Constitutional Court deemed that the petitioners had a legal interest to challenge the ordinances in their entirety.
 
48. Ordinance/135 imposed the mandatory installation of hand sanitizers in multi-apartment buildings by the entrances to the building and by the entrance to the elevator, if there is one, in the building. The second paragraph of Article 24b of the CCA determines that a petition must also include data from which it is evident that the challenged regulation directly interferes with the petitioner's rights, legal interests, or his or her legal position. The petitioner must also submit the relevant documents to which he or she refers to support legal interest. The first petitioner who challenges this order did not demonstrate that he lives in a multi-apartment building and did not submit documents from which the mentioned circumstance would follow. Therefore, the petitioner did not demonstrate legal interest to challenge Ordinance/135, therefore the Constitutional Court rejected the petition to initiate proceedings to review the constitutionality of this Ordinance (Point 8 of the operative provisions).
 
As regards legal interest to file petitions against the CDA and the third paragraph of Article 21 of the GRSA
 
49. The legal interest of petitioners to challenge the CDA exists insofar as in the challenged part this law directly interferes with their rights, legal interests, or legal position (the second paragraph of Article 24 of the CCA). The petitioners, inter alia, fault the CDA for not regulating the informing of the public [regarding such matters]. The allegation is connected with a concrete action (failure to inform [the public] or the non-objective informing thereof) of the Government by issuing the challenged ordinances that were issued on the basis of points 2 and 3 of the first paragraph of Article 39 of the CDA. It is not admissible in proceedings before the Constitutional Court to challenge this act of the Government, as it is neither an implementing regulation nor a general act issued for the exercise of public authority (which could be challenged by a petition on the basis of Article 24 of the CCA), or an individual act by which a state authority decides on a right, obligation, or legal benefit of an individual or legal entity (which can be challenged by a constitutional complaint on the basis of the first paragraph of Article 50 of the CCA). However, the petitioners also allege that a statutory regulation that does not regulate informing the public in such instances is already inconsistent with the Constitution. The alleged statutory legal gap, which can be found in points 2 and 3 of the first paragraph of Article 39 of the CDA, has a direct effect on the position of individuals. Since the Constitutional Court assessed that this is an important constitutional question, it accepted the petition in this part, and in view of the fulfilled conditions determined by the fourth paragraph of Article 26 of the CCA, proceeded to decide on the merits of the case.
 
50. In the remaining part, the challenged provisions of the CDA are not directly applicable. The legal interest of the petitioners [to initiate a] review of the constitutionality of these provisions therefore only existed at the time when the petition was filed insofar as the challenged ordinances were based thereon. Ordinance/30, Ordinance/38, Ordinance/52, Ordinance/60, and Ordinance/69 were adopted with reference to points 2 and 3 of the first paragraph of Article 39 of the CDA; therefore, the petitioners demonstrate legal interest to challenge these provisions also insofar as they allege that these provisions do not contain criteria that are sufficiently precise for restricting the freedom of movement and the right of assembly and association. The legal interest of petitioners also exists as regards the third paragraph of Article 5 of the CDA, which refers to monitoring and studying the epidemiological circumstances of communicable diseases, as the established epidemiological circumstances were of decisive importance in deciding on the introduction of the measures determined by points 2 and 3 of the first paragraph of Article 39 of the CDA.
 
 
52. The third paragraph of Article 21 of the GRSA determines that “[t]he Government regulates by an ordinance individual questions or adopts individual measures of general importance and adopts other decisions for which a law or decree determines that the Government regulates such by an ordinance.” Since this is a general definition of instances in which the Government decides by an ordinance, the Constitutional Court deemed that the challenged ordinances were also based on that provision, which entails that the legal interest of petitioners to challenge them existed at the time of filing the petition.
 

As regards the need for legal protection concerning the continuation of the procedure despite the cessation of the validity of the challenged ordinances

 
53. The challenged ordinances ceased to be in force during the procedure before the Constitutional Court. Ordinance/30 was in force from 20 March through 29 March 2020. On 30 March, Ordinance/38 entered into force, which abrogated Ordinance/30. Ordinance/38 ceased to be in force on 18 April 2020, when Ordinance/52 entered into force, and the latter ceased to be in force when Ordinance/60 entered into force, i.e. on 30 April 2020. Article 6 of Ordinance/60 determined that the Government shall establish the scientific justification for the measures determined by this Ordinance every seven days and decide, by taking into account scientific grounds, whether these measures should remain in force or be modified or repealed, and the National Assembly and the public should be informed thereof. As the Constitutional Court already explained in Partial Decision and Order No. U-I-445/20, dated 3 December 2020 (Official Gazette RS, No. 179/20, Paras. 11–15 of the reasoning), such a provision must be interpreted such that the validity of measures solely on the basis of an ordinance shall come to an end seven days following its adoption, and the further validity of the measures depends on the validity of the further decisions of the Government to prolong them, with regard to which these decisions must be published in the Official Gazette of the Republic of Slovenia prior to entering into force. Since within a period of seven days following the entry into force of Ordinance/60 in the Official Gazette no governmental order or other regulation by which the validity of measures determined by Ordinance/60 would be prolonged was published, the Ordinance ceased to be valid when this period expired. The same holds true as regards Ordinance/69, which entered into force on 18 May 2020 and whose Article 5 contained an identical provision as Article 6 of Ordinance/60. Since within a period of seven days following the entry into force of Ordinance/69 no regulation by which the validity of the measures determined by that Ordinance would be prolonged was published in the Official Gazette, also Ordinance/69 ceased to be valid when this period expired.
 
54. If during the course of proceedings before the Constitutional Court a regulation or general act issued for the exercise of public authority ceases to be in force, is modified, or amended, the Constitutional Court decides on its constitutionality or legality only if the petitioner demonstrates that the consequences of its unconstitutionality or illegality have not been remedied (the second paragraph in conjunction with the first paragraph of Article 47 of the CCA). In fact, if the consequences of the unconstitutionality or illegality of a regulation that has already ceased to be in force have already been remedied, the possible granting of a petition would bear no effect on the petitioner’s legal position. In such an event, the petitioner does not have the need for legal protection [in the form] of a review of the constitutionality or legality of the regulation, and, on the basis of the third paragraph of Article 25 in conjunction with Article 47 of the CCA, the petition must be rejected. Therefore, the Constitutional Court called upon the petitioners to explain whether they maintain [what they stated] in the filed petition or to demonstrate the circumstances from which it is evident which consequences of the unconstitutionality of the ordinances have not been remedied. In the case at issue, the need for legal protection regarding the assessment of the ordinances in the case at issue is also important for the existence of legal interest for a review of the constitutionality of the third paragraph of Article 5 and points 2 and 3 of the first paragraph of Article 39 of the CDA (except insofar as these provisions have a direct effect on the legal position of petitioners – point 49 of the reasoning of this Decision) and of the third paragraph of Article 21 of the GRSA, as the legal interest of the petitioners for a review of these statutory provisions is based on their legal interest for a review of the challenged ordinances (paragraphs 50 and 52 of this Decision).
 
55. Following a call to reply, the first petitioner stated that the consequences of Ordinance/30 had not been remedied, as the measures were only made stricter as subsequent ordinances were adopted.
 
56. The second petitioners, who challenge Ordinance/38 and Ordinance/52, opine that, in fact, the challenged two ordinances have not ceased to be in force for several months, as the Government adopted substantively similar ordinances approximately by the end of May, and the introduction of identical or even stricter measures is allegedly to be expected also in the future. The primary petitioner in the group of second petitioners also alleges that due to the prohibition or limitation of [freedom of] movement and [the right of] assembly, the decline in economic activity (as a result of disproportionate measures), intimidation by the Government as regards participation in protests, one-sided, partial, and the non-objective reporting by the Government regarding the circumstances and the systematic intimidation of people, he suffered psychological damage (severe stress, fear, traumas), which also affected his immune system. He also got the feeling of living under a dictatorship, due to which he allegedly sustained non-material damage. The consequences of this psychological damage still remain and also this damage can allegedly not be remedied.
 
57. The third petitioner did not respond to the call to reply of the Constitutional Court.
 
58. The fourth petitioners stated in their response to the call to reply that the negative consequences of the challenged Order/38 did not cease at the end of its validity, but will persist until the Constitutional Court adopts a position as to the allegations in their petition. What is allegedly at issue is mass interference by the state with basic human rights, and such interference allegedly does not lose its effect when the regulation ceases to be in force. The challenged ordinance allegedly has direct effect, and, in view of its specific nature, the petitioners do not have the possibility to initiate subsidiary proceedings for the judicial review of administrative acts. The petitioners allege that they could not perform their work as their law offices were closed and personal contact with their clients was allegedly no longer possible. They explain that they have not attached receipts or medical reports as they do not have such documents and because the scope of this damage can only be assessed with the assistance of experts. The petitioners allege that their petition opens an especially important precedential constitutional question that is in conformity with the position of the Constitutional Court in Decision No. U-I-83/20, dated 27 August 2020 (Official Gazette RS, No. 128/20).
 
59. The fifth petitioner alleged that the consequences of Ordinance/52 and Ordinance/60 were not remedied and also cannot be remedied, as time cannot be turned back. Following the cessation of the challenged ordinances, the consequences allegedly no longer occur on the basis thereof; however, they occur on the basis of subsequent ordinances. A serious consequence of the ordinances is that they reduced trust in the law. In the assessment of the petitioner, it is essential that legal interest existed at the time of filing the petition, as the petitioner has no influence on the cessation of the validity of the regulation [at issue]. Therefore, the Constitutional Court should decide on the petition. Otherwise, the right to judicial protection is hollowed out, which is allegedly also contrary to the principle of fairness.
 
60. By such allegations, the petitioners failed to demonstrate the existence of the condition determined by Article 47 of the CCA. In order to demonstrate the existence of the mentioned condition, they should demonstrate either that the consequences that occurred as a result of the direct effect of the challenged [implementing] regulation still persist, or that an individual act was adopted on the basis of the challenged [implementing] regulation by which their rights, obligations, or legal benefits were decided on.[7] In fact, some of the petitioners allege the occurrence of consequences but they do not explain the grounds from which it follows that the consequences that occurred precisely on the basis of the challenged ordinances did not cease when these ordinances ceased to be in force. The petitioners who allege the existence of damage do not concretise or demonstrate such damage. The need for legal protection also cannot be demonstrated by alleging that the consequences will exist for so long as the Constitutional Court does not carry out an assessment [of constitutionality] or by alleging that legal interest does not cease together with the cessation of the validity of the regulation at issue, as, according to such an understanding of Article 47 of the CCA, the need for legal protection would always exist.
 
61. The above mentioned does not entail that in the part that the petitions refer to the ordinances and the statutory provisions that were the basis for their adoption the petitions must be rejected. Namely, in paragraph 43 of the reasoning of Decision No. U-I-129/19, dated 1 July 2020 (Official Gazette RS, No. 108/20), the Constitutional Court adopted the position, which it also repeated in Decision No. U-I-83/20 (paragraph 27 of the reasoning), that in the event of the review of regulations that are adopted periodically and for a limited period of time, a specifically expressed public interest, if substantively established by the Constitutional Court, can substantiate an exception from the procedural impediment determined by the second paragraph of Article 47 of the CCA. This happens when the requirement of legal predictability in a certain field of regulation of social relations exceptionally demands a decision by the Constitutional Court on particularly important precedential constitutional questions of a systemic nature which in a reasonable assessment can also be raised with respect to acts of the same nature and of comparable content that may be periodically adopted in the future.
 
62. The petitions allege the unconstitutionality and illegality of the regulations by which, and on the basis of which, in order to contain and manage the spread of COVID-19, interferences with the human rights and fundamental freedoms of all individuals in the area of the Republic of Slovenia were introduced. The [declaration of the] COVID-19 epidemic was in fact repealed following the entry into force of the challenged Ordinance (the Ordinance on the Revocation of the SARS-CoV-2 (COVID-19) Epidemic, Official Gazette RS, No. 68/20), but then on 19 October 2020 an epidemic was again declared (the Ordinance on the Declaration of the SARS-CoV-2 (COVID-19) Epidemic in the Territory of the Republic of Slovenia, Official Gazette RS, No. 146/20). Some measures regulated by the challenged ordinances were reintroduced in the same or a similar form by further ordinances and remain in force at the time of the adoption of the present Decision. As regards other measures that were regulated by the challenged ordinances, it is not possible to exclude their reintroduction. Since the validity of such measures must be limited in time, it should be expected that the Constitutional Court will also in the future not be able to carry out a substantive assessment of such regulations at the time of their particularly short span of validity.[8] Therefore, it was necessary to assess whether the petitioners raise particularly important precedential constitutional questions.
 
63. In the assessment of the Constitutional Court, the allegations of the petitioners that refer to the third paragraph of Article 5 of the CDA and the third paragraph of Article 21 of the GRSA do not raise questions that correspond to the mentioned standard of importance and precedential quality; therefore, the Constitutional Court rejected the petition in this part (Points 4 and 5 of the operative provisions).
 
64. However, among the questions raised by the petitions are also those that can be qualified as particularly important precedential constitutional questions. One such question is undoubtedly the question of the constitutional conformity of points 2 and 3 of the first paragraph of Article 39 of the CDA and the constitutional conformity of the challenged provisions of the ordinances based thereon (i.e. Ordinance/30, Ordinance/38, Ordinance/52, Ordinance/60, and Ordinance/69), as the mentioned provisions of the CDA allegedly do not contain criteria that are sufficiently precise to limit the freedom of movement and the right of assembly and association.
 
65. Since this question concerns the constitutional conformity of the challenged ordinances in their entirety, the Constitutional Court decided to answer it first. The Constitutional Court accepted for consideration the petitions against Ordinance/30, Ordinance/38, Ordinance/52, Ordinance/60, Ordinance/69, and points 2 and 3 of the first paragraph of Article 39 of the CDA and, since the conditions determined by the fourth paragraph of Article 26 of the CCA were fulfilled, it proceeded to decide on the merits of the case.
 
 

B – II

 

The review of points 2 and 3 of the first paragraph of Article 39 of the CDA

 
66. The petitioners allege that Article 39 of the CDA is inconsistent with Articles 2 and 32, the second paragraph of Article 39, Articles 42 and 87, the second paragraph of Article 120, and Article 153 of the Constitution, because the criteria for interfering with the freedom of movement and the right of assembly and association it determines are too general, overly vague, and imprecise. Allegedly, the CDA does not determine the manner and scope of the limitation of rights, the conditions for introducing measures, the time limitation of measures, the cooperation of experts, and informing the public. It allegedly gives the Minister or the Government the authorisation to decide, at their own discretion, without any limitations or criteria determined by law, i.e. in an originary manner, on the restriction of the rights of individuals.
 
The challenged statutory regulation
 
67. The CDA determines communicable diseases that jeopardise the health of the population of the Republic of Slovenia and nosocomial infections that occur in causal relation to the performance of a health care activity, and also prescribes measures for their prevention and management (Article 1 of the CDA). In the CDA, the measures for prescribing and managing communicable diseases are divided into general and specific measures. Special measures also include isolation and quarantine. The first paragraph of Article 18 of the CDA determines that isolation is a measure by which the treating physician, the regional health care institution, or the NIPH restricts the free movement of a person who contracted a communicable disease that can result in the direct or indirect transmission of the disease to other people. In conformity with the first paragraph of Article 19 of the CDA, quarantine is a measure by which free movement is limited and compulsory medical checks are prescribed for healthy individuals who were in contact or are suspected of having been in contact with someone who contracted plague, viral hemorrhagic fever (Ebola, Lassa, Marburg), or a communicable disease regarding which the Minister or the Government declared an epidemic on the basis of the fourth paragraph of Article 7 of this Act during its contagious phase. Hence, among the special measures, the legislature regulated two by which an individual’s free movement is limited in order to prevent the spread of a communicable disease. Since it allowed the possibility that the introduction or spread of a certain communicable disease cannot always be prevented by merely limiting the movement of sick people and people regarding whom there exists a suspicion that they were in contact with sick people, the legislature determined that the movement and gathering of people could also be restricted more broadly. The challenged points 2 and 3 of the first paragraph of Article 39 of the CDA determined that the Government, when other measures determined by the CDA cannot prevent the introduction and spread of certain communicable diseases in the Republic of Slovenia, inter alia, may prohibit or limit the movement of the population in infected or directly jeopardised areas and/or prohibit the gathering of people in schools, cinemas, public bars, and other public spaces, as long as the threat of the spread of the concrete communicable disease lasts. The whole text of Article 39 of the CDA reads as follows:
 
“When the measures determined by this Act cannot prevent the introduction of certain communicable diseases into the Republic of Slovenia and the spread thereof, the Government of the Republic of Slovenia can also impose the following measures:
 
1. the determination of the conditions for travelling to a state in which there exists a possibility of infection with a dangerous communicable disease and for arriving from these states;
2. the prohibition or limitation of the movement of the population in infected or directly jeopardised areas;
3. the prohibition of the gathering of people in schools, cinemas, bars, and other public places until the threat of the spread of the communicable disease passes;
4. the limitation or prohibition of the sale of individual types of merchandise and products.
 
The Government of the Republic of Slovenia must immediately notify the National Assembly of the Republic of Slovenia and the public of the measures determined by the previous paragraph.”
 
The quoted text from the Act includes the changes introduced by Article 7 of the ADIMCEMC, which entered into force on 11 April 2020. Prior to the entry into force of the ADIMCEMC, the CDA authorised the Minister to impose the measures determined by the first paragraph of Article 39, and the second paragraph thereof determined as follows: “The minister responsible for health must immediately notify the Government of the Republic of Slovenia, the National Assembly of the Republic of Slovenia, and the public of the measures determined by the previous paragraph.” The challenged Ordinance/30 and Ordinance/38 were adopted prior to the entry into force of the ADIMCEMC, and all of the other challenged ordinances were adopted subsequently.
 
The starting points of the review
 
68. In accordance with the second paragraph of Article 120 of the Constitution, administrative authorities perform their work independently within the framework and on the basis of the Constitution and laws. The principle according to which the functioning of administrative authorities is bound to the constitutional and statutory basis and framework – the so-called legality principle – is one of the fundamental constitutional principles.[9] It is tightly connected to other fundamental constitutional principles, such as the principle of democracy (Article 1 of the Constitution), the principles of a state governed by the rule of law (Article 2 of the Constitution), and the principle of the separation of powers (the second sentence of the second paragraph of Article 3 of the Constitution). The principle of democracy requires that the most important decisions, in particular those that refer to citizens, be made by directly elected deputies by laws, while the executive power can only function on a substantive basis and within the framework of the law.[10] The above-stated is also required by the principle of the separation of powers; since in accordance with the Constitution legislative competence is ascribed to the National Assembly (Articles 86 through 89 of the Constitution), other state authorities must not change or independently regulate statutory subject matters.[11],[12] Also the principles of a state governed by the rule of law require that the fundamental relations between the state and individuals be regulated by generally valid and abstract laws and that statutory provisions be clear, with a determinable meaning, and thus predictable.[13] The principle of legality is also tightly connected with Article 153 of the Constitution (the harmonisation of legal acts), which requires that implementing regulations and other general acts be in conformity with the Constitution and laws (the third paragraph of Article 153 of the Constitution), while individual acts and actions of state authorities, local community authorities, and bearers of public authority must be based on a law or regulation adopted pursuant to law (the fourth paragraph of Article 153 of the Constitution). The Constitutional Court has explained a number of times that the principle of legality determined by the second paragraph of Article 120 of the Constitution also binds the Government as the highest authority of the state administration.[14]
 
69. The principle of legality determined by the second paragraph of Article 120 of the Constitution contains two requirements: (1) implementing regulations and individual acts of the executive branch of power (both of the Government and administrative authorities) can only be adopted on the basis of the law, which means that they must be based on a (sufficiently precise) substantive basis in the law, and (2) they must also be within the framework of the law, which means that they must not exceed the possible meaning thereof.[15] For the review of the challenged provisions of the CDA, only the first requirement is important, in accordance with which the executive power may only function on the basis of a substantive and sufficiently determinable regulation in the law. It follows from the established assessment of the Constitutional Court that the executive power otherwise (also normatively) does not need an express authorisation in the law (i.e. an executive clause).[16] It does need a sufficiently clear and precise statutory regulation of those questions whose regulation falls within the exclusive competence of the legislature, i.e. questions that are key, fundamental, and central for a certain legal system, but that are also not so important as to be regulated already by the Constitution.[17] The executive power must not regulate these questions in an originary manner. Even the law must not give it authorisation for such regulation. All matters that either in accordance with the Constitution or due to their meaning fall within the scope of statutory regulation may only be regulated by the legislature by law, and the legislature may only let the executive power technically supplement, break down, and determine in more detail the statutory subject matter.[18] Whenever the legislature authorises the executive branch of power to adopt an implementing regulation, it must first by itself regulate the foundations of the content that is to be the subject of the implementing regulation, and determine the framework and guidelines for regulating the content in more detail by the implementing regulation.[19] The intention of the legislature and the value criteria for implementing the law must be clearly expressed in the law or undoubtedly evident therefrom.[20]A blanket authorisation granted to the executive branch of power (i.e. an authorisation not containing substantive criteria) entails the legislature’s failure to legislate statutory subject matter, which is inconsistent with the constitutional order.[21]
 
70. All of the above also applies to the regulation of rights and obligations, as in accordance with Article 87 of the Constitution this field of regulation falls within the exclusive competence of the legislature.[22] The law must regulate rights and obligations in such a manner that the position of legal entities is known or predictable by them already on the basis of the law.[23] However, when predominantly expert technical questions are at issue that are not suitable for statutory decision-making, the legislature can grant the executive [branch of] power a broad margin of appreciation.[24] A different rule applies when the regulation of the fundamental content and scope of rights and obligations is at issue, as well as the conditions and procedure for acquiring rights and for obligations to be created. These questions must be regulated by law; an administrative regulation may only further break down the statutory subject matter such that it does not determine additional rights and obligations and such that it does not widen or narrow a right or obligation regulated by law,[25] as otherwise it would interfere with the sphere of the legislative branch of power.
 
71. The requirement of the precision of the statutory basis where a restriction of human rights and fundamental freedoms is at issue is even stricter. Human rights and fundamental freedoms are the fundamental and central part of the constitutional order, which follows already from the Preamble to the Constitution.[26] Provisions on human rights and fundamental freedoms are not merely binding guidelines for the legislature but directly applicable safeguards [protecting] each individual (the first paragraph of Article 15 of the Constitution determines that human rights and fundamental freedoms shall be exercised directly on the basis of the Constitution). Despite the fundamental role human rights and fundamental freedoms play in the legal order, and despite their direct applicability, the Constitution determined that human rights and fundamental freedoms may be limited (the third paragraph of Article 15 of the Constitution), but limitations must be exceptional in nature and determined as precisely as possible.[27] It follows from the second paragraph of Article 15 of the Constitution that the manner in which human rights and fundamental freedoms are exercised may only be regulated by law. This holds true all the more so regarding limitations of human rights.[28] As regards some human rights and fundamental freedoms, the Constitution also expressly determines that limitations thereof may be determined by law (this is a so-called statutory reservation, which is a special limitation clause). The Constitution framers even envisaged a regulation in accordance with which the legislature decides on limiting human rights and fundamental freedoms in time of war or a state of emergency.[29]
 
72. When the Constitution or a law requires the adoption of an individual act in order to interfere with a human right or fundamental freedom, i.e. an act that refers to a determined person (a court decision or the decision of an administrative authority), the law must determine a precise substantive basis for the adoption of such act. The purpose of the limitation must be clearly evident from the law. Furthermore, the law must determine the manner or types and scope of such limitation. It also must precisely determine the reasons for or conditions of such limitation and regulate procedural questions.[30] When, however, human rights and fundamental freedoms are directly interfered with by a general act, i.e. an act that refers to an indeterminable number of individuals, that act must be a law. In fact, in both instances the legislature can leave the more detailed regulation of less important and technical questions regarding the limitation of a certain human right or fundamental freedom to the executive branch of power, but – in view of the constitutional importance of human rights and the formulation of limitation clauses in the Constitution – in the law it must determine sufficiently precise criteria for such a regulation. In this context, it holds true that the degree to which the statutory authorisation is precise and accurate can vary depending on the subject matter of the regulation and the envisaged intensity of the interference with human rights or fundamental freedoms. The Constitutional Court has already adopted the position that the statutory authorisation granted to the executive branch of power must be all the more restrictive and precise the greater the interference with or effect of the law on individual human rights and fundamental freedoms.[31] It must always be sufficiently precise in order to not allow the executive power to regulate in an original manner a limitation of human rights and fundamental freedoms. Thereby, the predictability and legal certainty with respect to the implementation of human rights and fundamental freedoms are ensured, and concurrently the threat of the arbitrary limitation thereof by the authorities in power is reduced.[32] From the viewpoint of the state administration being bound by the Constitution and the law, a sufficiently precise statutory basis entails a key safeguard against arbitrary interferences by the executive power with human rights and fundamental freedoms.
 
73. The challenged points 2 and 3 of the first paragraph of Article 39 of the CDA enable the imposition of measures that interfere with the freedom of movement and the right of assembly and association. The first paragraph of Article 32 of the Constitution determines the right to the freedom of movement as everyone’s right to choose his or her place of residence, to leave the country, and to return at any time. The mentioned provision hence enables an individual (1) the freedom of movement within the state, which means that an individual can freely move in the territory of the Republic of Slovenia without any limitations,[33] (2) the right to the free choice of one’s dwelling, and (3) the right to freely cross the state border. Freedom of movement is an expression of the general freedom to act (Article 35 of the Constitution)[34] and one of the fundamental prerequisites of every free democratic society. It enables individuals to develop as active, intellectual, spiritual, and social beings. Without freedom of movement, it is difficult to imagine one’s freedom in the broadest sense of the term. Furthermore, freedom of movement is a condition for the comprehensive exercise of numerous other constitutionally guaranteed human rights and fundamental freedoms, such as right of assembly and association, freedom of expression, freedom of work, the right to private and family life, the freedom of scientific and artistic endeavour, freedom of education, free economic initiative, the right to health care, freedom of conscience, and other beliefs.
 
74. The right of assembly and association is determined by Article 42 of the Constitution, which grants everyone the right of assembly and public meeting (the first paragraph of the mentioned Article) and the right to freedom of association with others (the second paragraph of the mentioned Article). It is one of the foundational constitutional values that allows the free expression of opinions, the formation of political will, and self-organisation.[35] The right of assembly is also the starting point and a guarantee of the system of political pluralism, without which there can be no free democratic society.[36]
 
75. The second paragraph of Article 32 and the third paragraph of Article 42 of the Constitution expressly determine that freedom of movement and the right of assembly and association may be limited by law, with respect to which the Constitution also determines the admissible objectives for which they may be limited. One of the reasons due to which freedom of movement and the right of assembly and association may be limited in accordance with the Constitution is protection from the spread of communicable diseases and the prevention of communicable diseases. By Decision No. U-I-83/20 (paragraph 42 of the reasoning), the Constitutional Court explained that the purpose of this limitation clause is to protect the health and life of people threatened by a communicable disease. It stressed that, in the event of a communicable disease, in accordance with the Constitution, state authorities have the duty to appropriately protect the health and life of people. The first paragraph of Article 5 of the Constitution binds the state to protect human rights and fundamental freedoms in its own territory. With respect to human rights and fundamental freedoms, the state has both negative and positive obligations. The negative obligations entail that the state must refrain from interfering with human rights and fundamental freedoms. The positive obligations, on the other hand, require that the state and its individual branches of power be active in protecting human rights and fundamental freedoms. In this respect, it holds true that the positive obligations of the state are all the more emphasised the higher the protected value is positioned in the hierarchy of human rights. In the event of the emergence of an epidemic of a communicable disease that could seriously jeopardise the health or even life of people, the too slow or inadequate response of state authorities would be inconsistent with the positive obligations of the state to protect the right to life (Article 17 of the Constitution), the right to physical and mental integrity (Article 35 of the Constitution), and the right to health care (the first paragraph of Article 51 of the Constitution).
 
76. In accordance with the Constitution, state authorities have the duty to appropriately protect the health and life of people in the event a communicable disease occurs; if necessary, also such that they limit the freedom of movement and the right of assembly and association. However, in doing so they must take into consideration that these limitations must essentially be determined already in the law, and the possible authorisation granted to the executive branch of power to regulate these limitations in more detail must be sufficiently precise (paragraph 72 of the reasoning of this decision).
 
77. The requirement that the statutory regulation of interferences with human rights be specifically determined also follows from the case law of the European Court of Human Rights (hereinafter referred to as the ECtHR). With respect to a number of Convention rights, the ECtHR stresses that from the provisions of the ECHR, in accordance with which interferences with human rights must be prescribed by law, there follows not only the requirement that interferences be regulated by national law, but also that this law correspond with the principle of a state governed by the rule of law, which entails that it attains some quality criteria. The statutory regulation of interferences with human rights must be sufficiently clear, formulated with sufficient precision, accessible, and foreseeable.[37]
 
78. The freedom of movement is ensured by Article 2 of Protocol No. 4 to the ECHR, which in its third paragraph expressly determines that in the exercise of the rights under this Article there must be no limitations except those determined by law. The freedom of assembly and association is ensured by Article 11 of the ECHR, with regard to which it follows from the second paragraph of this Article that the exercise of these rights may only be limited by law. In order to assess whether there exists a sufficient statutory basis for an interference, the ECtHR applies equal quality criteria as when assessing interferences with other Convention rights.[38]
 
79. With respect to the requirement of foreseeability, the ECtHR stresses that statutory provisions must be formed with sufficient precision in order for the addressees to envisage the consequences of the regulation to a reasonable degree, taking into account the circumstances. The law must also offer protection from arbitrary interferences by the authorities in power with the protected right from the Convention. It would be contrary to the principle of a state governed by the rule of law if the law attributed unlimited discretion to the competent authorities. Therefore, the law must determine with sufficient precision the scope of discretion and the manner of its exercise. Furthermore, it must determine with sufficient precision the circumstances and conditions under which the competent authorities may interfere with the rights from the Convention.[39] The required precision of national legislation, which in any case cannot ensure the regulation of all possible instances, depends on the content of the subject matter, the field, and the number and position of addressees.[40]
 
80. In the leading case from the viewpoint of statutory precision regarding limitations of the freedom of movement, namely De Tommaso v. Italy, the ECtHR stressed, in addition to the mentioned general starting points, that predictability cannot be absolute. In fact, foreseeability is very welcome; however, excessive precision results in the excessive rigidity of the law, which must respond to the changeable circumstances of cases. For this reason, numerous regulations contain terms that are conceptually open to a greater or lesser extent where a question of the interpretation and application thereof arises in practice.[41] The ECtHR specifically stressed that the question of the accessibility and foreseeability of a law as to its effects is an especially important factor in a case such as the one at issue [i.e. De Tommaso v. Italy], where the legislation in question had a very significant impact on the applicant and his right to liberty of movement.[42] In its assessment, it inter alia established that the categories of individuals to which the limitations of movement as preventive measures referred were not sufficiently determined by law.[43] It also adopted the position that the provision of the disputed regulation that determined that courts may impose any measure that they deem necessary to protect the community without determining in more detail the content of these measures does not satisfy the requirement of foreseeability.[44] The ECtHR took into consideration that a court can explain conceptually open terms in a law and thus contribute to the foreseeability thereof. However, in the case at issue it assessed that also the constitutional court of the respondent state did not resolve the problem of insufficient predictability despite having interpreted the disputed provision.[45] Furthermore, the ECtHR drew attention to the fact that, as regards the measures imposed against the complainant (including the absolute prohibition of participating in public gatherings), the regulation contained no temporary or spatial limitations; the scope of the interference with the complainant’s fundamental right was entirely left to the competent court. Such a broad discretion – without a framework and the manner of exercise being sufficiently determined – is inconsistent with the requirement as to the foreseeability of the law and also does not contain the required sufficient safeguards against possible abuses.[46]
 
The review of points 2 and 3 of the first paragraph of Article 39 of the CDA
 
81. It has already been stated that the challenged points 2 and 3 of the first paragraph of Article 39 of the CDA enable the Government to impose measures which – in order to prevent the propagation of a certain communicable disease – interfere with the freedom of movement and the right of assembly and association. Contrary to some other measures determined by the CDA that are imposed by an individual act against precisely determined persons (e.g. quarantine and isolation – see paragraph 67 of the reasoning of this decision), limitations of the movement and/or gathering of people, which the Government can impose on the basis of points 2 and 3 of the first paragraph of Article 39 of the CDA, directly interfere with the rights of an indeterminate number of addressees.
 
82. From points 71–76 of the reasoning of this Decision it follows that, in conformity with the second paragraph of Article 32 and the third paragraph of Article 42 of the Constitution, limitations of the freedom of movement and the right of assembly and association may only be determined by law. A general act that directly limits the freedom of movement and the right of assembly and association of an indeterminate number of individuals 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 prescribed sufficiently precise criteria for such regulation [by the executive branch of power]. In the case at issue, the legislature did not envisage that every time a communicable disease occurs it would decide by itself by a law on the limitations of movement and the gathering of an indeterminate number of individuals. It granted the Government the authorisation to adopt a regulation that prohibits or limits movement and/or the gathering of people. By the challenged points 2 and 3 of the first paragraph of Article 39 of the CDA, the legislature left it to the Government not only to adopt the more detailed regulation of already adopted limitations of movement and gathering, but also to decide whether, upon the occurrence of a certain communicable disease, the freedom of movement and the right of assembly and association of an indeterminate number of individuals would even be interfered with.
 
83. In ordinary circumstances, the legislature would violate the second paragraph of Article 32 and the third paragraph of Article 42 of the Constitution by granting the Government such an authorisation (irrespective of the precision of the instructions that it determined at the same time). It must, however, be taken into consideration that responding to the emergence of a communicable disease is a special situation. The circumstances that are important for prescribing the measures determined by points 2 and 3 of the first paragraph of Article 39 of the CDA can namely change quickly; the legislative procedure, on the other hand, takes some time. If the legislature decided by itself on the introduction, modification, or abolition of such measures it would perhaps be unable to quickly enough adapt the statutory regulation to the changing epidemiological situation or expert findings from the field of the prevention of the spread of infectious diseases. Hence, a situation could thus arise where in light of the fast deterioration or improvement of the epidemiological circumstances or the emergence of new expert findings that would require the immediate modification of the statutory regulation, the National Assembly would be unable to introduce, abolish, or adapt measures sufficiently quickly in order to effectively protect the health and life of people or to remedy the disproportionate interferences with human rights and fundamental freedoms that could arise on the basis of the statutory regulation then in force. In this specific situation, it is thus not possible to deny the National Assembly the possibility of exceptionally leaving it to the executive branch of power to prescribe measures by which the freedom of movement and the right of assembly and association of an indeterminate number of individuals are directly interfered with in order to effectively protect human rights and fundamental freedoms, as well as to ensure fulfilment of the positive obligations that stem from the Constitution. However, the law must determine the purpose of these measures or their purpose must be clearly evident therefrom. Furthermore, the law must determine with sufficient precision the admissible types, scope, and conditions regarding the restriction of the freedom of movement and of the right of assembly and association, as well as other appropriate safeguards against the arbitrary restriction of human rights and fundamental freedoms. If there is no substantive basis in the law, it is not possible to speak of a limitation of human rights and fundamental freedoms by law. Therefore, the Constitutional Court will assess below whether the challenged provisions of the CDA satisfy the mentioned constitutional requirement.
 
84. The first paragraph of Article 39 of the CDA determines that the measures determined by this Article may only be imposed “when the measures determined by this Act cannot prevent the introduction of certain communicable diseases into the Republic of Slovenia and the spread thereof.” The communicable diseases due to which it is admissible to introduce the measures determined by Article 39 of the CDA are determined by the first paragraph of Article 8 of the CDA. The third paragraph of Article 8 of the CDA determines that if a threat of other communicable diseases occurs that could jeopardise the health of the population, the Government can decide that the measures determined by this law apply thereto, and must without delay notify the National Assembly of such decision. It follows from the above that the goal of imposing the measures determined by this Article is to protect the population from the communicable diseases that are expressly determined by the CDA and other communicable diseases that could jeopardise the health of the population. Hence, the intention of the limitations is sufficiently clearly evident from the Act.
 
85. In the mentioned part, the Act also gives the government the clear instruction that it may only impose the measures determined by this Article if it cannot prevent the introduction or spread of a communicable disease by other, more lenient measures envisaged in the CDA. As the National Assembly states in its reply, these more lenient measures are, in particular, isolation (Article 18 of the CDA), quarantine (Article 19 of the CDA), compulsory medication (Article 20 of the CDA), compulsory vaccination (Article 22 of the CDA), disinfection (Article 26 of the CDA), and compulsory medical checks (Articles 31 and 32 of the CDA). Hence, in conformity with the first paragraph of Article 39 of the CDA, the Government may not limit or prohibit the movement and gathering of people if it is possible to prevent the introduction or spread of a disease by other, more lenient measures. Thereby, the legislature in this part embedded in the Act one element of the general principle of proportionality (which follows from the principle of a state governed by the rule of law determined by Article 2 of the Constitution), i.e. the element of urgency, in accordance with which interferences with human rights and fundamental freedoms are only admissible if the pursued objective cannot be attained without an interference or by a more lenient measure.[47]
 
86. Further on, the first paragraph of Article 39 of the CDA lists the possible limitations and prohibitions. Point 2 of the first paragraph determines that the Government may “prohibit or limit the movement of the population in infected or directly jeopardised areas.” The second paragraph of Article 7 of the CDA defines an infected area as “an area in which one or multiple sources of infection are established and where there is a possibility of the spread of the infection.” The meaning of “a directly jeopardised area” is not defined in the CDA; however, the third paragraph of Article 7 of the CDA does determine the meaning of “a jeopardised area”, namely in the following manner: “A jeopardised area in accordance with this Act is an area to which a communicable disease can be transmitted from an infected area and where there are possibilities for the spread of the infection.” The syntagm “a directly jeopardised area” can thus be understood as an area with regard to which there exists a direct threat that a communicable disease will be transmitted thereto from an infected area and where there is a possibility of the spread of the infection. The fourth paragraph of Article 7 of the CDA also determines that the Minister declares an area to be infected or jeopardised. In instances when the entire territory of the Republic of Slovenia is infected or threatened therewith, it is the Government that declares the epidemic. It follows from these definitions that, in accordance with point 2 of the first paragraph of Article 39 of the CDA, the Government can prohibit or limit the movement of the population in an area where there is at least a direct threat that a communicable disease will be transmitted thereto from an area where one or multiple sources of infection have already been established, with regard to which there has to be a possibility of the spread of the infection in both areas.
 
87. By Decision No. U-I-83/20 (paragraph 58 of the reasoning), in which the Constitutional Court assessed the conformity of the prohibition of movement outside the municipality of one’s residence determined by Ordinance/38 and Ordinance/52, the Constitutional Court stated that the terms infected and jeopardised area from the second and third paragraphs of Article 7 of the CDA are legal standards whose content is filled anew upon every interpretation of these statutory provisions in view of the circumstances of a precisely determined communicable disease, even when the concretisation is made by executive regulations. However, such does not entail that the Act did not give the Government too wide a margin of appreciation by such legal regulation. From the position of the Constitutional Court in case No. U-I-83/20 it only follows that – in view of the broad statutory definition of the terms infected and jeopardised area – by imposing measures in the entire territory of the Republic of Slovenia the Government acted in accordance with the law (meaning that it did not overstep the possible interpretation thereof). The Constitutional Court also did not adopt a position as to the question of whether the Government also acted on a sufficiently precise statutory basis (see point 69 of the reasoning of this Decision, in which it is explained that acting within the framework of the law and acting on the basis of the law are two distinct requirements of the principle of legality).[48]
 
88. The use of indeterminate or conceptually open legal terms in the law is in and of itself not inconsistent with Article 120 of the Constitution; however, the indeterminacy of a legal term must not be such so as to prevent the executive branch of power from regulating statutory matter in an originary manner. The requirement of precision is particularly emphasised when the regulation of measures by which human rights and fundamental freedoms are interfered with is concerned (see paragraph 71 of the reasoning of the Decision). When assessing whether the statutory terms infected and directly jeopardised area exceed the degree to which they can be conceptually open, it is important that the Act does not define the term “area”. The Act also does not provide anchors that could be of help in defining this term more precisely. Hence, “a jeopardised area” can be understood very narrowly, e.g. by including merely the close neighbourhood of the source of infection. On the other hand, it could also be construed as meaning a wider or even very wide area, such as a village, city district, city, municipality, or even the broader area in the state (i.e. the region) where the source of infection is located. Similar holds true for the term “directly jeopardised area”. On the one hand, this term can be interpreted as a very narrow band encircling the infected area, but by taking into consideration how small the state is and daily commuting, it could also be interpreted as the whole state being affected as a result of a single source of infection. Hence, the legislature defined the terms infected and directly jeopardised areas so loosely that it granted the Government unlimited discretion in determining the scope of the territory in which a prohibition or limitation of movement is declared.
 
89. Furthermore, it must be assessed whether the manner (i.e. types) of admissible interferences with the freedom of movement are sufficiently precisely determined in the Act. Point 2 of the first paragraph of Article 39 of the CDA only determines that the Government may prohibit or limit the movement of people in infected and directly jeopardised areas, without further concretising such limitation or prohibition. Hence, it does not follow from the CDA that the legislature in any manner determined the types of admissible interferences with the freedom of movement. The statutory provision “to limit the movement of people” is identical to the second paragraph of Article 32 of the Constitution, which in the relevant part determines that the freedom of movement may be limited by law. Hence, such statutory text does not concretise the [mentioned] constitutional provision in any way, although the movement of people can be prohibited or limited in numerous ways. For instance, the prohibition or limitation of movement can include the prohibition of access to certain areas (which can be public or private, open or closed), the prohibition of movement outside a certain area (e.g. the limitation of movement to a local community, municipality, or region), but possibly also very intensive interferences with the freedom of movement that can come close to a revocation of this freedom, such as the general prohibition of movement during certain hours of the day (during a shorter or longer part of the day) or a prohibition on leaving home, with certain exceptions (which can vary significantly). Furthermore, the mentioned types of limitations of movement can refer to all individuals or to only some groups of individuals (which, again, can be determined in various ways). It has already been stated that the degree to which the required statutory authorisation is precise and accurate can vary depending on the envisaged intensity of the interference with human rights and fundamental freedoms. This means that the limitations that entail a milder interference with the freedom of movement can also be regulated by a general clause in the law (naturally only if all the other requirements that follow from Article 32 of the Constitution are observed). If the legislature desires to enable the executive branch of power to also introduce more intensive limitations, it must expressly regulate these measures and at least in general also determine the conditions for their introduction. Conversely, the challenged statutory regulation does not expressly regulate any of the numerous and very intensive interferences with the freedom of movement that it enables in view of its exceptionally broad diction, and as a result also does not determine the conditions for imposing them. The Act does not determine either the substantive basis for exceptions or other safeguards against excessive interferences with the freedom of movement or other human rights, e.g. the right to private and family life. It leaves it to the Government to assess by itself, in view of the circumstances of the concrete situation, which methods of limiting the freedom of movement of people are appropriate, necessary, and proportionate. Thereby, the legislature left it to the executive branch of power to carry out the key assessment that, in accordance with the Constitution, it should perform by itself.
 
90. The legislature also leaves it to the Government to assess how long the prohibitions or limitations of movement determined by the implementing regulation in force [in a certain situation] shall last. In fact, the Act does not contain the substantive basis for limiting in time the prohibitions or limitations determined by point 2 of the first paragraph of Article 39 of the CDA, and also does not impose on the Government the obligation to periodically check whether the imposed measures are justified. In the Act, the imposition and duration of the measures determined by Article 39 of the CDA are not conditional upon either the declaration of an epidemic or the time when an epidemic is declared. The National Assembly opines that the measure of the prohibition or limitation of movement is also limited in time, as the measure allegedly loses its substantive statutory basis if the area for which it was ordered is no longer infected or directly at risk. However, this criterion does not entail an appropriate limitation of measures in time, as it allows the Government to introduce and maintain measures at its own discretion for as long as there exists another source of infection or as long as there exists a direct risk that a communicable disease will be transmitted to a certain area. Such a statutory regulation is not only contrary to the second paragraph of Article 32 of the Constitution, in accordance with which only a law can limit the freedom of movement, but is also inconsistent with the first paragraph of Article 32 of the Constitution, as it allows disproportionate interferences with the freedom of movement. In Decision No. U-I-83/20 (paragraph 56 of the reasoning), the Constitutional Court already explained that measures to prevent the spread of a communicable disease that interfere with the right to the freedom of movement are only consistent with the first paragraph of Article 32 of the Constitution if they are limited in time. Namely, the longer a measure lasts, the more invasive the interference becomes.
 
91. Point 3 of the first paragraph of Article 39 of the CDA determines that the Government may “prohibit the gathering of people in schools, cinemas, bars, and other public places until the threat of the spread of a communicable disease passes.” As regards the determination of the manner of limiting rights, this measure is more precise than the measure determined by point 2 of the same paragraph, as the authorisation given to the Government is limited to public places (hence, on the basis of such authorisation the Government does not have the right to prohibit the gathering of people in private places), and also such public places are non-exhaustively listed. The fact that the Act lists the public places where the Government can prohibit the gathering of people allows for the deduction that the Act does not give the Government the authorisation to prohibit gatherings in all public places but merely in those that are essentially similar to the listed ones, which are, in particular, closed public places where a higher density of people can be expected and where the probability of getting infected is higher. It must be taken into consideration that the prohibition of gathering in the various listed public places interferes very differently with human rights (for instance, the prohibition of gathering in schools has a much more powerful effect on the rights of a significantly higher number of people than the prohibition of gathering in cinemas). In such instances, the law must determine the limits of the Government’s margin of appreciation by prescribing substantive criteria.[49] In the case at issue, however, the legislature leaves it entirely to the Government to assess in which public places and under which circumstances the gathering of people should be prohibited.
 
92. Furthermore, the CDA does not determine in which area the Government may order the measure determined by point 3 of the first paragraph of Article 39. The Government does not limit the authorisation of the Government to prohibit gathering in public places to either infected or directly jeopardised areas such as it determines (in a significantly too general manner) with respect to the prohibition or limitation of movement.
 
93. As regards the duration of the validity of the measures, point 3 of the first paragraph of Article 39 of the CDA determines that the prohibition of gathering may only last as long as the threat of the spread of a communicable disease lasts. However, this requirement, which follows already from the purpose of Article 39 of the CDA, does not give the Government a sufficient substantive basis for prescribing the duration of measures. It allows the Government to completely independently determine the duration of the prohibition of gathering in the entire period of the threat of the spread of the communicable disease and to determine in advance the validity of measures for the entire duration of the threat of the spread of the communicable disease without being obliged to periodically check, appropriately adapt, or prolong the measures.
 
94. The legislature also did not embed in Article 39 of the CDA any other safeguards by which it could limit the Government’s margin of appreciation, such as the duty to consult the expert community and cooperate therewith. It must namely be taken into consideration that the decisions that the CDA leaves to the Government in points 2 and 3 of the first paragraph of Article 39 do not fall only into the field of political assessment, but also into medical, epidemiological, psychological, sociological, and other domains. In Decision No. U-I-83/20 (paragraph 50 of the reasoning), the Constitutional Court stressed that when introducing measures by which, in order to prevent the spread of communicable diseases, people’s freedom of movement is interfered with, state authorities must take into account the findings of the relevant expert communities that are accessible at the time when the measures are introduced, and they must actively strive to reduce to the greatest extent possible the possible uncertainty as to the risk assessment and appropriateness of the chosen measures also after the measures are introduced. The above-mentioned is all the more true when a regulation by which human rights and fundamental freedoms are interfered with is not adopted by the legislature but by the executive branch of power, as the duty of the executive branch of power to assess the appropriateness of measures in light of expert findings significantly reduces the possibility of arbitrary interferences with human rights and fundamental freedoms. However, when limiting or prohibiting the movement and gathering of people, the CDA does not limit the assessment of the Government in such a way so as to require that it cooperate with and consult experts from the relevant fields of expertise who could guide it in the assessment of numerous questions, such as whether the introduction or spread of a disease could not be prevented by other measures referred to in the CDA, which types of the limitation of [the freedom of] movement and [the right of] assembly are appropriate for preventing a certain communicable disease, in what scope the measures introduced would be able to contribute to the protection of the health and life of people, and what the consequences would be in the field of mental health, material well-being, family life, and in numerous other fields. The third paragraph of Article 5 of the CDA determines that the NIPH and the regional health care institutions monitor and examine the epidemiological circumstances of communicable diseases in conformity with the obligations adopted by international agreements and in conformity with WHO programmes, and on such basis and, in conformity with the health care plan of the Republic of Slovenia, prepare programmes for preventing, managing, eliminating, and eradicating communicable diseases. Furthermore, the first paragraph of Article 46 of the CDA determines that monitoring the performance of the general and special measures referred to in this Act and the prevention and management of nosocomial infections are carried out by the NIPH and the regional health care institutions. However, these provisions do not refer to deciding on the measures determined by Article 39 of the CDA. The programmes determined by the third paragraph of Article 5 of the CDA are not at all intended to study the measures determined by Article 39 of the CDA, and the first paragraph of Article 46 of the CDA only refers to monitoring the performance of already adopted measures.
 
95. An important safeguard against arbitrary interferences with human rights and fundamental freedoms in such instances is also the clear, precise, and comprehensive informing of the public of the (expert) findings that are important for imposing the measures determined by points 2 and 3 of the first paragraph of Article 39 of the CDA, and the positions of the expert community as regards these measures. In fact, the public cannot effectively monitor the measures of the Government if it does not possess information as regards the spread and level of threat of the communicable disease at issue, if it does not know the positions of the expert community as regards the most appropriate methods to prevent the communicable disease, and if it is not informed of the reasons due to which the Government imposed the measures. The second paragraph of Article 39 of the CDA determines that the Government must notify the public of the measures that it introduces on the basis of the first paragraph of this Article, but it does not envisage informing the public of the circumstances and expert positions that are important for deciding on these measures.
 
96. It follows from the above that the legislature granted the Government a significantly too wide margin of appreciation in deciding on the measures determined by points 2 and 3 of the first paragraph of Article 39 of the CDA. Given that the instructions as to the spatial limitation of measures and the lack of the determination of the methods of responding (i.e. types of response), the criteria [for determining] the admissible duration of measures, the duty to consult and cooperate with the expert community, and the appropriate informing of the public are substantively empty, the legislature leaves it to the Government to select, at its own discretion, the manners (types) of taking action, the scope and duration of the limitations by which the freedom of movement of (possibly all) inhabitants of the territory of the Republic of Slovenia can (also very intensively) be interfered with. The legislature also leaves it to the Government to freely assess, throughout the entire period while the threat of the spread of the communicable disease lasts, in which instances, for how long, and in how extensive an area in the state it will prohibit the gathering of people in those public places where, according to the Government’s assessment, there exists a heightened risk of spreading the communicable disease. It only obliges the Government to assess, prior to introducing measures, whether the introduction or the spread of a communicable disease cannot be prevented by other measures referred to in the CDA.
 
97. By the substantively empty points 2 and 3 of the first paragraph of Article 39 of the CDA, the legislature waived its exclusive constitutional power to decide on limitations of human rights and fundamental freedoms on a general and abstract level by taking into account the general principle of proportionality. It must be taken into consideration that the principle of proportionality (which encompasses the requirement of the appropriateness, necessity, and proportionality in the narrower sense of the measures by which human rights and fundamental freedoms are interfered with)[50] binds not only the legislature but also all state authorities who use the law (such that they adopt implementing regulations, adopt individual and concrete legal acts, or perform material acts on the basis of the law). Due to its general and abstract nature (which ensures the equality of treatment and predictability),[51] statutory text can never have one single meaning such that a solution to a concrete problem could be derived therefrom without further interpretation. Therefore, the assessment of the appropriateness, necessity, and proportionality in the narrower sense of measures that interfere with human rights and fundamental freedoms is always left, at least to some extent, also to other state authorities. However, the legislature must always carry out at least the initial review and assessment of the proportionality of measures by which human rights and fundamental freedoms are interfered with, as in accordance with the Constitution the competence to limit human rights and fundamental freedoms is only granted thereto.
 
98. It follows from the reply of the Government that in the drafting of the CDA a review of proportionality was carried out, as it expressly determines that in the event of balancing between the constitutionally protected values of the life and health of the population, on the one hand, and the freedom of movement and association of individuals on the other, the protection of the life and health of the population has priority. One cannot concur with this thesis. From Article 39 of the CDA (and the Constitution) it only follows that the protection of the life and health of people can justify an interference with the freedom of movement and the right of assembly and association. Such entails that it must always be assessed whether a certain measure is at all appropriate and necessary for the protection of the health and life of people and whether the expected benefits as regards the protection of these values outweigh the weight of its interference with the freedom of movement and the right of assembly and association. Such an assessment, which essentially must be carried out by the legislature, is not prescribed by Article 39 of the CDA.
 
99. In this respect, the National Assembly draws attention to the fact that the CDA regulates different measures for preventing and managing very different communicable diseases. It opines that in such manner the system for protecting the population from communicable diseases appropriately responds and adapts to the actual circumstances and needs. Insofar as the National Assembly indicates by these allegations that a law cannot precisely prescribe in advance all possible modalities of different measures that would correspond to all concrete epidemiological circumstances, one has to concur to a certain extent with this argument. However, the legislature should have and had to determine the criteria for limiting the freedom of movement and the right of assembly and association significantly more precisely than it did in points 2 and 3 of the first paragraph of Article 39 of the CDA. Namely, the Act determines neither an appropriate substantive basis for the temporary and spatial determination of limitations nor the types of admissible limitations, and also does not contain other safeguards against arbitrary interferences with human rights and fundamental freedoms, such as the duty of the executive power to consult and cooperate with the expert community and the duty to inform the public of the circumstances and expert positions on which the limitations are based. Precise knowledge of the outbreak and spread of a particular communicable disease is not decisive for the regulation of these questions. Some communicable diseases for which the special measures determined by Article 39 of the CDA may be prescribed are known in advance, as they are listed in the first paragraph of Article 8 of the CDA. In fact, the CDA also allows for the introduction of measures determined by Article 39 in the event of the emergence of communicable diseases that are not exhaustively listed in the Act if they could jeopardise the health of the population (COVID-19 is such a disease). However, a more precise statutory regulation that could be adapted to already known diseases would not necessarily hinder an appropriate response to a new communicable disease. If that nevertheless happened, the National Assembly should adopt, in the shortest time possible, (a sufficiently precise) statutory basis that would be adapted to the characteristics of this new disease. In the event this statutory basis could not be adopted sufficiently quickly, the CDA could also determine a regulation in accordance with which in the meantime the Government could exceptionally also prescribe different measures if it assessed that the measures prescribed in the Act are not appropriate or sufficient to respond to such disease, but only by also taking into account strict temporary limitations and the obligation to consult the expert community.
 
100. In view of the above, the Constitutional Court concludes that by points 2 and 3 of the first paragraph of Article 39 of the CDA the legislature authorised the Government, in order to prevent communicable diseases, to decide on interferences with the freedom of movement and the right of assembly and association without also determining a sufficient substantive basis for the exercise of such authorisation. The challenged points 2 and 3 of the first paragraph of Article 39 of the CDA are thus inconsistent with the second paragraph of Article 32 and the third paragraph of Article 42 of the Constitution.
 
101. The established unconstitutionality requires that the challenged statutory regulation be abrogated. However, the Constitutional Court had to take into consideration that by abrogating points 2 and 3 of the first paragraph of Article 39 of the CDA, the executive branch of power would lose the statutory basis to limit [the freedom of] movement and [the right of] assembly in order to prevent communicable diseases, including COVID-19. Until the legislature adopts a new statutory regulation, the state would perhaps be unable to fulfil its positive constitutional obligation to protect the health and life of people. Since the right to health and life are fundamental constitutional values, the abrogation of the challenged statutory regulation could lead to an even worse unconstitutional situation than in the event the unconstitutional regulation remains in force for a certain period of time. For such reason, the Constitutional Court was unable to abrogate the challenged statutory regulation. Since the questions that the challenged regulation should address include complex expert questions, the Constitutional Court was also unable to establish that the challenged statutory regulation was unconstitutional, and, on the basis of the second paragraph of Article 40 of the CCA, by means of the manner of implementing the Decision, determine a transitional statutory regulation that is in conformity with the Constitution. In view of the above, on the basis of Article 48 and the second paragraph of Article 40 of the CCA, the Constitutional Court decided that points 2 and 3 of the first paragraph of Article 39 of the CDA are inconsistent with the Constitution (point 1 of the operative provisions), 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 (point 2 of the operative provisions), and until the established inconsistency is remedied, points 2 and 3 of the first paragraph of Article 39 of the CDA shall apply (point 3 of the operative provisions). Hence, in order to protect the health and life of individuals, the Constitutional Court prevented the application of unconstitutional statutory provisions until the established unconstitutionality is remedied. Thereby, it established for the future a statutory basis for the adoption of implementing regulations that regulate the measures determined by points 2 and 3 of the first paragraph or Article 39 of the CDA, and at the same time also for all implementing regulations adopted on the basis of the challenged statutory provisions that are still in force. As a result, courts must not deny the validity of the mentioned implementing regulations as regards relations that arise following the publication of this Decision in the Official Gazette of the Republic of Slovenia due to the unconstitutionality established in this Decision.
 
102. In determining the length of the time limit needed to remedy the established unconstitutionality, the Constitutional Court took into consideration that, on the basis of the challenged unconstitutional statutory regulation, interferences with the freedom of movement and the right of assembly and association of all individuals in the territory of the Republic of Slovenia have been occurring for more than a year. Therefore, the further application of these unconstitutional statutory provisions must be limited to the shortest time period necessary for the adoption of a statutory regulation that is in conformity with the Constitution. In the assessment of the Constitutional Court, the two-month time limit is sufficiently long to enable the elimination of the unconstitutional situation. In relation thereto, the National Assembly may remedy the established unconstitutionalities with the Constitution in various ways. The National Assembly may appropriately substantively supplement the general regulation determined by points 2 and 3 of the first paragraph of Article 39 of the CDA, it may adopt a special statutory regulation that is adapted to COVID-19,[52] but it can also order by itself measures that limit the movement and gathering of the population in order to prevent [the spread of] COVID-19 if it assesses that thereby it will be able to sufficiently quickly adapt the statutory regulation to the changing circumstances.
 
 
B – III
 

The review of Ordinance/30, Ordinance/38, Ordinance/52, Ordinance/60, and Ordinance/69

 
103. Ordinance/30, Ordinance/38, Ordinance/52, and Ordinance/60 were adopted with reference to points 2 and 3 of the first paragraph of Article 39 of the CDA, while Ordinance/69 was adopted with reference to point 3 [of the first paragraph] of Article 39 of the CDA. Furthermore, in the introductions of Ordinance/30 and Ordinance/38 also Article 2 and the eighth paragraph of Article 20 of the GRSA are listed as the statutory basis.
 
104. Article 2 of the GRSA determines the competences of the Government. The first paragraph of the mentioned Article determines that the Government determines, directs, and harmonises the performance of the state’s policies in accordance with the Constitution, laws, and other general acts of the National Assembly. To this end, it issues regulations and adopts other legal, political, economic, financial, organisational, and other measures necessary to ensure the development of the state and the regulation of circumstances in all fields of the state’s competence. The remaining paragraphs of Article 2 of the GRSA refer to the initiative function of the Government (the second paragraph) and the budget memorandum (the third paragraph). The third paragraph of Article 21 of the GRSA determines that “[t]he Government regulates by an ordinance individual questions or adopts individual measures of general importance and adopts other decisions for which a law or decree determines that the Government regulates such by an ordinance.” Hence, the mentioned provisions of the GRSA on the general level define the competences of the Government and determine the type of act by which the Government regulates questions of general importance. As such, they do not provide a substantive basis for the regulation of measures by means of implementing regulations by which human rights and fundamental freedoms are interfered with in order to prevent the spread of communicable diseases. Not even the eighth paragraph of Article 20 of the GRSA, which determines that decisions on the implementation of crisis management and leadership in a complex crisis are to be adopted by the Government upon a reasoned proposal of the competent minister, provides such a basis. The substantive basis for governmental measures adopted in order to prevent the spread of communicable diseases must be sought in the law that regulates the field of the prevention of communicable diseases, i.e. in the CDA.
 
105. In view of the above, the Constitutional Court deemed that Ordinance/30, Ordinance/38, Ordinance/52, and Ordinance/60, insofar as they regulated the limitation of movement and/or gathering, were adopted on the basis of points 2 and/or 3 of the first paragraph of Article 39 of the CDA.
 
106. The Constitutional Court assessed that points 2 and 3 of the first paragraph of Article 39 of the CDA do not contain a sufficient substantive basis for the Government’s decision-making as regards interferences with the freedom of movement and the right of assembly and association; therefore, they are inconsistent with the second paragraph of Article 32 and the third paragraph of Article 42 of the Constitution (point 1 of the operative provisions). The above-mentioned entails that also Ordinance/30, Ordinance/38, Ordinance/52, Ordinance/60, and Ordinance/69 are inconsistent with these two constitutional provisions in the part in which they were adopted on the basis of these statutory provisions.
 
107. Since the mentioned ordinances ceased to be in force, on the basis of the second paragraph in conjunction with the first paragraph of Article 47 of the CCA, the Constitutional Court established that they were inconsistent with the Constitution in the part in which they were adopted on the basis of points 2 and 3 of the first paragraph of Article 39 of the CDA (Point 6 of the operative provisions).
 
108. In conformity with the first paragraph of Article 47 of the CCA, the Constitutional Court decides whether the establishment of the unconstitutionality of an invalid implementing regulation with the Constitution has the effect of abrogation or annulment. In point 3 of the operative provisions of this Decision, the Constitutional Court decided that points 2 and 3 of the first paragraph of Article 39 of the CDA shall apply despite their inconsistency with the Constitution. Thereby, for the [immediate] future, it enabled the adoption of implementing regulations on the basis of points 2 and 3 of the first paragraph or Article 39 of the CDA, and at the same time ensured a statutory basis for all implementing regulations adopted on the basis of the challenged statutory provisions that are still in force. It decided so in order to protect the health and lives of people who, due to the absence of a statutory basis for the limitation of [the freedom of] movement and gathering in order to prevent [the introduction or spread of] communicable diseases could be at risk in the future, and thus prevented the occurrence of an even graver unconstitutional situation. The above-mentioned cannot be a reason for the Constitutional Court to not abrogate or annul the challenged ordinances that ceased to be in force prior to the adoption of this Decision. The sole effect that these ordinances still have is that they apply for disputes concerning the questions that they regulated when they were in force. However, such application has no effect on the spread of COVID-19 and cannot contribute to the protection of the health and lives of people. Hence, the Constitutional Court had no reason to not abrogate or annul the challenged ordinances due to the finding that they were inconsistent with the Constitution. The Constitutional Court decided that the establishment of the inconsistency of the challenged ordinances with the second paragraph of Article 32 and the third paragraph of Article 42 of the Constitution shall have the effect of abrogation (Point 7 of the operative provisions).
 
109. In view of such decision, the Constitutional Court did not assess the other allegations that refer to Ordinance/30, Ordinance/38, Ordinance/52, Ordinance/60, and Ordinance/69.
 
 
C
 
110. The Constitutional Court adopted this Decision on the basis of Article 48, the second paragraph of Article 40, the third paragraph of Article 25, Article 47, and the third paragraph of Article 38a of the CCA, and the third indent of the third paragraph in conjunction with the fifth paragraph of Article 46 of the Rules of Procedure of the Constitutional Court (Official Gazette RS Nos. 86/07, 54/10, 56/11, 70/17, and 35/20), composed of: Dr Rajko Knez, President, and Judges Dr Matej Accetto, Dr Rok Čeferin, Dr Dunja Jadek Pensa, Dr Špelca Mežnar, Dr Marijan Pavčnik, Marko Šorli, and Dr Katja Šugman Stubbs. Points 1, 2, 3, 6, and 7 [of the operative provisions] were adopted by five votes against three. Judges Jadek Pensa, Knez, and Šorli voted against. The Constitutional Court unanimously adopted Points 4, 5, 8, 9, and 10 of the operative provisions. Judges Jadek Pensa, Knez, and Šorli submitted partially concurring and partially dissenting opinions. Judges Mežnar, Šugman Stubbs, and Pavčnik submitted concurring opinions.
 
 
 
 
Dr Rajko Knez
President
 
 
[1] Order of the Constitutional Court No. U-I-104/20, U-I-107/20, U-I-122/20, U-I-129/20, U-I-130/20, U-I-132/20, U-I-137/20, U-I-140/20, dated 1 July 2020, paragraph 5 of the reasoning.
[2] Cf. Order of the Constitutional Court No. U-I-235/20, dated 2 July 2020, Para. 3 of the reasoning.
[3] Decision of the Constitutional Court No. U-I-192/16, dated 7 February 2018 (Official Gazette RS, No. 15/18, and OdlUS XXIII, 2), Para. 19 of the reasoning.
[4] Order of the Constitutional Court No. U-I-194/17, dated 22 March 2018, Para. 13 of the reasoning.
[5] Orders of the Constitutional Court No. U-I-107/15, dated 7 February 2019, Para. 17 of the reasoning, and No. U-I-40/17, dated 18 December 2019, Para. 21 of the reasoning.
[6] Cf. Order of the Constitutional Court No. U-I-83/20, Paras. 16–18 of the reasoning.
[7] In the second instance, the petitioner should also file, together with a petition, a constitutional complaint against that act, namely following the exhaustion of all legal remedies (such is stated in Order of the Constitutional Court No. U-I-174/05, dated 13 December 2007, Official Gazette RS, No. 122/07, and OdlUS XVI, 87).
[8] Cf. Para. 28 of the reasoning of Decision of the Constitutional Court No. U-I-83/20.
[9] Such is stated by Decisions of the Constitutional Court No. U-I-123/92, dated 18 November 1993 (Official Gazette RS, No. 67/93, and OdlUS II, 109), and No. U-I-73/94, dated 25 May 1995 (Official Gazette RS, No. 37/95, and OdlUS IV, 51), Para. 18 of the reasoning.
[10] Decisions of the Constitutional Court No. U-I-123/92 and No. U-I-73/94, Para. 18 of the reasoning.
[11] Decision of the Constitutional Court No. U-I-73/94, Para. 19 of the reasoning.
[12] An exception is determined by Article 108 of the Constitution. The exception refers to decrees with the force of law, which may be adopted by the President of the Republic upon the proposal of the Government in the event that the National Assembly is unable to convene due to a state of emergency or war. Such decrees may, in exception, restrict individual rights and fundamental freedoms as provided by Article 16 of the Constitution. However, the President of the Republic must submit decrees with the force of law to the National Assembly for confirmation immediately upon it next convening.
[13] See Decisions of the Constitutional Court No. U-I-123/92 and No. U-I-73/94, Para. 18 of the reasoning.
[14] See, e.g., Decision of the Constitutional Court No. U-I-73/94, Para. 17 of the reasoning, and No. U-I-84/09, dated 2 July 2009 (Official Gazette RS, No. 55/09, and OdlUS XVIII, 31), Para. 8 of the reasoning.
[15] Cf. Decision of the Constitutional Court No. U-I-73/94, Paras. 17–19 of the reasoning.
[16] See, e.g., Decision of the Constitutional Court No. U-I-73/94, Paras. 17–19 of the reasoning, Order of the Constitutional Court No. U-I-113/04, dated 7 February 2007 (Official Gazette RS, No. 16/07, and OdlUS XVI, 16), Para. 13 of the reasoning, and Decision of the Constitutional Court No. U-I-84/09, Para. 8 of the reasoning.
[17] See M. Pavčnik, Teorija prava, Prispevek k razumevanju prava [Theory of Law: A Contribution to Understanding Law], 5th revised edition, GV Založba, Ljubljana 2015, p. 249.
[18] Cf. Decision of the Constitutional Court No. U-I-50/00, dated 30 May 2002 (Official Gazette RS, No. 54-I/02, and OdlUS XI, 93), Para. 6 of the reasoning.
[19] Decisions of the Constitutional Court No. U-I-16/98, dated 5 July 2001 (Official Gazette RS, No. 62/01, and OdlUS X, 144), Para. 18 of the reasoning, and Nos. U-I-60/06, U-I-214/06, U-I-228/06, dated 7 December 2006 (Official Gazette RS, No. 1/07, and OdlUS XV, 84), Para. 126 of the reasoning.
[20] Decision of the Constitutional Court No. U-I-50/00, Para. 6 of the reasoning.
[21] Ibidem.
[22] The purpose of this provision is to ensure that all legal norms that regulate rights and obligations of legal entities in an originary manner are created in the form of laws. See Decision of the Constitutional Court No. U-I-40/96, dated 3 April 1997 (Official Gazette RS, No. 24/97, and OdlUS VI, 46), Para. 13 of the reasoning.
[23] Cf. Order of the Constitutional Court No. U-I-239/06, dated 22 March 2007, Para. 11 of the reasoning.
[24] Decision of the Constitutional Court No. U-I-183/99, dated 4 July 2002 (Official Gazette RS, No. 65/02, and OdlUS XI, 149), Para. 23 of the reasoning.
[25] Cf. Decision of the Constitutional Court No. U-I-56/98, dated 19 December 2001 (OdlUS X, 219), Para. 8 of the reasoning.
[26] One of the starting points of the Preamble of the Constitution is the Basic Constitutional Charter on the Sovereignty and Independence of the Republic of Slovenia, which in Section III determines that the Republic of Slovenia guarantees the protection of human rights and fundamental freedoms to all persons in the territory of the Republic of Slovenia irrespective of their national origin, without any discrimination whatsoever, in accordance with the Constitution of the Republic of Slovenia and the treaties in force.
[27] See F. Grad, I. Kaučič, S. Zagorc, Ustavno pravo [Constitutional Law], 2nd Edition, Univerza v Ljubljani, Pravna fakulteta, Ljubljana 2016, p. 745.
[28] See, e.g., Decision of the Constitutional Court No. U-I-25/95, dated 27 November 1997 (Official Gazette RS, No. 5/98, and OdlUS VI, 158), Paras. 30 and 31 of the reasoning, Decision No. U-I-287/95, dated 14 November 1996 (Official Gazette RS, No. 68/96, and OdlUS V, 155, Para. 8 of the reasoning), Decision No. U-I-346/02, dated 10 July 2003 (Official Gazette RS, No. 73/03, and OdlUS XII, 70), Para. 10 of the reasoning, and Decision No. Up-1303/11, U-I-25/14, dated 21 March 2014 (Official Gazette RS, No. 25/14, and OdlUS XX, 21), Para. 10 of the reasoning.
[29] It follows from Articles 16, 92, and 108 of the Constitution that the National Assembly decides on the temporary abrogation or restriction of human rights in time of war or a state of emergency. It is only if the National Assembly cannot convene that the President of the Republic can decide thereon, upon the proposal of the Government, by decrees with the force of law, which it must submit to the President of the Republic for confirmation immediately upon it next convening.
[30] See Decision of the Constitutional Court No. U-I-346/02, Para. 20 of the reasoning.
[31] Decision of the Constitutional Court No. U-I-92/07, Para. 150 of the reasoning.
[32] See Decision of the Constitutional Court No. U-I-25/95, Paras. 42 and 43 of the reasoning.
[33] J. Čebulj in: L. Šturm (Ed.), Komentar Ustave Republike Slovenije [Commentary on the Constitution of the Republic of Slovenia], Fakulteta za podiplomske državne in evropske študije, Ljubljana 2002, p. 337; Decision of the Constitutional Court No. U-I-83/20, Para. 40 of the reasoning.
[34] J. Čebulj in: L. Šturm (Ed.), op. cit., p. 337.
[35] Decision of the Constitutional Court No. Up-301/96, dated 15 January 1998 (Official Gazette RS, No. 13/98, and OdlUS VII, 98), Para. 11 of the reasoning.
[36] See ibidem; see also L. Šturm in: L. Šturm (Ed.), Komentar Ustave Republike Slovenije [Commentary on the Constitution of the Republic of Slovenia], Fakulteta za podiplomske državne in evropske študije, Ljubljana 2002, p. 462.
[37] See, e.g., the ECtHR Judgments in Roman Zakharov v. Russia, dated 4 December 2015, Para. 228 et seq. of the reasoning; Stafford v. the United Kingdom, dated 28 May 2002, Para. 63 of the reasoning; Dragin v. Croatia, dated 24 July 2014, Para. 90 of the reasoning; and Chumak v. Ukraine, dated 6 March 2018, Para. 39 of the reasoning. See also S. C. Greer, The Exceptions to Articles 8 to 11 of the European Convention on Human Rights, Human Rights Files No. 15, Council of Europe, Strasbourg 1997, pp. 9–13; J. Viljanen, The European Court of Human Rights as a Developer of the Legal General Doctrines of Human Rights Law: Study of the Limitation Clauses of the European Convention on Human Rights, Acta Universitatis Tamperensis 965, Tampere University Press, Tampere 2003, pp. 185–208.
[38] See, e.g., the ECtHR Judgments in Landvreugd v. the Netherlands, dated 4 June 2002, Paras. 54, 57, and 59 of the reasoning; and Gorzelik and Others v. Poland, dated 17 February 2004, Para. 64 of the reasoning.
[39] As similarly determined by the International Covenant on Civil and Political Rights (Official Gazette SFRY, No. 7/71, and Official Gazette RS, No. 35/92, and MP No. 9/92 – hereinafter referred to as the ICCPR). Article 12 ensures everyone who is legally in the territory of a certain state the right to move freely therein and to freely choose one’s residence. Everyone is also free to leave any country, including his own (the first and second paragraph of Article 12 of the ICCPR). The third paragraph of this Article determines that the above-mentioned rights may only be subject to any restrictions if they are provided by law, are necessary to protect national security, public order, public health or morals, or the rights and freedoms of others, and are consistent with the other rights recognised by the ICCPR. In conformity with the fourth paragraph of Article 40 of the ICCPR, the Human Rights Committee has the power to submit so-called general comments, by which it interprets the provisions of the Covenant. In General Commentary No. 27, dated 1 November 1999, regarding Article 12 of the ICCPR it is stressed that the law must determine by itself the conditions under which the rights determined by Article 12 of the ICCPR may be limited. Restrictions that are not determined or in conformity with law entail a violation of these rights. A law that grants authorisation to order interferences with the freedom of movement must contain precise criteria. The principle of proportionality must be observed not only in the law that determines the limitations, but also when they are ordered by administrative and judicial authorities. In proceedings deciding on interferences, the competent authorities must state the reasons therefor (points 12, 13, and 15 of General Commentary No. 27). Similar holds true with respect to the right of peaceful assembly and association regulated by Articles 21 and 22 of the ICCPR. Both stress that limitations may only be prescribed by law, inter alia, due to the protection of public health (Article 21 and the second paragraph of Article 22 of the ICCPR).
[40] The ECtHR Judgments in Maestri v. Italy, dated 17 February 2004, Para. 30 of the reasoning, and Lashmankin and Others v. Russia, dated 7 February 2017, Paras. 410 and 411 of the reasoning.
[41]         The ECtHR Judgment in De Tommaso v. Italy, dated 23 February 2017, Para. 107 of the reasoning.
[42] Ibidem, Para. 111 of the reasoning. The competent court imposed on the complainant the measure of special police supervision for a period of two years and also determined for him a compulsory place of residence. In addition to the above, a number of other measures [were imposed], e.g. the obligation to report to a police station every week or upon the request of the Police, the obligation to not leave his city or town of residence, a prohibition on changing his residence, and a prohibition on leaving his home between 10 PM and 6 AM, except in an urgent case upon first notifying the authorities.
[43] Ibidem, Para. 113 of the reasoning.
[44] Ibidem, Para. 121 of the reasoning.
[45] Ibidem. See also Para. 122 of the reasoning.
[46] Ibidem, Paras. 123 and 124 of the reasoning.
[47] See Decision of the Constitutional Court No. U-I-83/20, Para. 37 of the reasoning.
[48] In paragraph 58 of the reasoning of Decision No. U-I-83/20, the Constitutional Court expressly stated that in the case at issue it did not take a position as to the constitutional consistency of the statutory bases for the adoption of the challenged ordinances. In the case at issue, the decision on the merits only includes a review of the consistency of the measure of the prohibition of movement outside the municipality of one’s residence with those requirements of the Constitution regarding which such measure was challenged in this case.
[49] For instance, the law could limit the Government’s margin of appreciation by classifying the prohibitions of gathering in various public places into groups according to the intensity of the interference with the rights of people and by determining the conditions for introducing measures from an individual group.
[50] The appropriateness of a measure means that the pursued objective can indeed be attained therewith. The necessity of a measure means that the pursued objective cannot be achieved without the measure or by a milder measure. Proportionality in the narrower sense means that the weight of the consequences of the measure is proportionate to the value of the pursued objective or the expected benefits that will ensue due to the interference. See Para. 25 of the reasoning of Decision of the Constitutional Court No. U-I-18/02, dated 24 October 2003 (Official Gazette RS, No. 108/03, and OdlUS XII, 86.
[51] See M. Pavčnik, op. cit., p. 119.
[52] See Article 28a of the German Prevention and Control of Communicable Diseases Act (Gesetz zur Verhütung und Bekämpfung von Infektionskrankheiten beim Menschen), which was adopted specifically for the prevention of the spread of COVID-19.
 
U-I-79/20
27 May 2021
 
 
 
DISSENTING OPINION OF JUDGE
DR MARIJAN PAVČNIK REGARDING DECISION NO. U-I-79/20, DATED 13 MAY 2021
 
 
THE HIERARCHY OF THE LEGAL ORDER
 
1. COVID-19 is everything but merely a medical problem. The epidemic that it initiated requires that we also deal with it legally. In my hitherto separate opinions, I already drew attention to the importance of the system of checks and balances between the legislative, executive-administrative, and judicial authorities of the state power (in case No. U-I-83/20), the consistency of a state governed by the rule of law (in case No. U-I-455/20), the fact that “hardship teaches one to think” (in case No. U-I-473/20), and the freedom of the spirit – also at epidemiologically safe protests (in case No. U-I-50/21).
 
2. Let me add another aspect to these above. The Decision (in case No. U-I-79/20), which in addition to the Communicable Diseases Act also deals with freedom of movement and the right of assembly and association, draws attention to this aspect. One of the centres of gravity of the Decision is the question of how, substantively speaking, the hierarchy of the legal order should be established. What is it that the Constitution regulates? What is it that the law should regulate? And not least, what falls within the domain of implementing regulations?
 
3. The Constitution prescribes that freedom of movement may be limited by law also “to prevent the spread of communicable diseases.”[1] Also limitations of the right of assembly and association are admissible if “such is required [...] to protect [the population] from the spread of communicable diseases.”[2] Both situations are classified in the chapter on human rights and fundamental freedoms. In conjunction with the preamble and fundamental constitutional provisions, they form the systematic and teleological context that the limitations must take into consideration. The central imperative is that statutory limitations must observe the value objectives of fundamental rights and that such must also hold true for their normative concretisation by implementing regulations.
 
4. The statutory limitations to which the Constitution directs should enable constitutional values to coexist. Protection from the spread of communicable diseases has priority, which must not go so far as to excessively limit other constitutional values. The excessiveness starts where limitations are no longer necessary. If one continued to maintain them or manifestly overstretched them, such would entail that they are arbitrary and that they jeopardise the limits of constitutional democracy.[3]
 
5. A normative concretisation of statutory limitations is, volens nolens, inevitable if the measures determined by the Communicable Diseases Act “cannot prevent the introduction of certain communicable diseases into the Republic of Slovenia and the spread thereof.”[4] In such instances, the Government may “prohibit or limit the gathering of people in infected or directly jeopardised areas”[5] and “prohibit the gathering of people in schools, cinemas, public bars, and other public places until the threat of the spread of the communicable disease passes.”[6]
 
6. Prohibitions and limitations by which the Government should normatively concretise a law by means of implementing acts are vague and indeterminate to a significant degree. To a certain extent, one can be assisted by classical methods of interpreting legal acts, by an objective-dynamic method of interpretation, by already formed standards of conduct, by the rules of the profession (e.g. of the medical profession), and in particular by constitutionally consistent interpretation.[7] In any event, the basic guideline must absolutely be that implementing acts must not regulate that which is in the competence of the legislature. The legislature is the authority that must determine hard substantive centres of rights and obligations insofar they are not already regulated in the Constitution. The fundamental questions are in the domain of constitutional regulation and then also statutory regulation.
 
7. The temporal aspect is also important.[8] It is difficult to prevent communicable diseases and to say in advance by which measures they should be contained and remedied. When COVID-19 emerged, legal measures had to be adopted insofar as and in the manner that they were already envisaged by law. It is also key that it was necessary to respond by implementing acts based on a law that was not perfect. The interpretation attempted to solve what could be solved. Today, the situation is significantly different. Experience has shown where the legislation is weak and deficient. The executive power should perceive that in due time and propose that the legislation be sharpened and made complete.[9]
 
8. Law is a fragile phenomenon. If we are aware of Hominum causa omne ius constitutum, the task that we need to perform is easier to perform. The law stands and falls with that which happens with it in practice.
 
9. These are the reasons by which I substantiate that I voted in favour of Point 1 of the operative provisions, i.e. in favour of the finding that points 2 and 3 of the first paragraph of Article 39 of the Communicable Diseases Act are inconsistent with the Constitution.
 
 
 
 
 
                                                                                               Dr Marijan Pavčnik
                                                                                                          Judge
 
 
[1] The second paragraph of Article 32 of the Constitution.
[2] The third paragraph of Article 42 of the Constitution.
[3] See W. Hassemer, Constitutional Democracy, Pravnik, Nos. 4−5 (2003), pp. 207−226. Cf. also M. Pavčnik, Človekovo dostojanstvo in ustava [Human Dignity and the Constitution] (2019), in: M. Pavčnik, Razumevanje prava [The Understanding of Law], Lexpera, GV Založba, Ljubljana 2021, p. 55.
[4] The first sentence of the first paragraph of Article 39 of the Communicable Diseases Act.
[5] Point 2 of the first paragraph of Article 39 of the Communicable Diseases Act. 
[6] Point 3 of the first paragraph of Article 39 of the Communicable Diseases Act. 
[7] Also the so-called further development of the law is precious. Legality “requires that the arguments of the further development of law be within the limits of the conception of the law, which is directed, albeit vaguely and substantively porously, by legal principles.” (M. Pavčnik, Argumentacija v pravu [Argumentation in Law], 3rd edition, GV Založba, Ljubljana 2013, p. 126). As regards the further development of law, see and cf. also P. Koller, Theorie des Rechts. Eine Einführung, 2nd edition, Böhlau Verlag, Vienna, Cologne, and Weimar 1997, pp. 221 et seq.; E. A. Kramer, Juristische Methodenlehre, 6th Edition, Beck, Manz, Stämpfli, Bern 2019, pp. 152 et seq.; and B. Rüthers, C. Fischer, and A. Birk, Rechtstheorie und Juristische Methodenlehre, 11th edition, Beck, Munich 2020, pp. 493 et seq.
[8] In this respect, see also the already mentioned separate opinion Svoboda duha [Freedom of the Spirit] – also at epidemiologically safe protests (in case No. U-I-50/21), paragraph 3 of the reasoning.   
[9] Cf. the positions in the separate opinion mentioned in note No. 8. 
 
U-I-79/20
31 May 2021
 
 
 
 
 
PARTIALLY CONCURRING, PARTIALLY DISSENTING OPINION OF JUDGE MARKO ŠORLI
REGARDING DECISION NO. U-I-79/20, DATED 13 MAY 2021
 
 
 
The law is created for man and not a man for the law.
 
I agree with the decisions in and reasons for the Decision in Points 4, 5, 8, 9, and 10. In this opinion, I will explain my perspective on the case, which in its very starting point is different than that of the majority perspective. This was the reason that I could not support the Decision in Points 1, 2, 3, 6, and 7 of the operative provisions.
 
 
I
 
Legal norms do not encompass and also cannot encompass all or any social relations, but only those that are so important for the existence of society that they must be directed in an organised manner by the coercive force of the state. Visković calls such relations the substantive source of the law.[1] Such relations are concurrently the source and the subject of the adoption of legal norms. They are the source because due to their importance and conflictual nature they require the emergence of legal norms and concurrently cause them. A legal norm is created and shaped only when it exists or when in society a relation important for its existence is recognised that must be controlled.
 
The outbreak of COVID-19 caused a global health crisis unseen for a century, namely since the Spanish flu between 1918 and 1920. Due to the pandemic, Slovenia, as well as other states, on the basis of the positive obligation to protect the health and lives of people, found itself facing the completely new challenge of finding a balance between the protection of the health and lives of people and the principle of the democratic adoption [of regulations] and decision-making, on the one hand, and limitations of human rights such as the freedom of movement and the right of assembly and association, on the other.
 
In the first part of the epidemic the Government adopted multiple ordinances to contain the epidemic. In this context, the question of legality was raised, i.e. whether the ordinances have an appropriate, i.e. sufficient, statutory basis for the measures that limited freedom of movement and the right of assembly and association. In accordance with the findings of the Venice Commission, only few states, if any, deemed that their constitution or legislation envisages a sufficiently broad range of measures for the resolution of the given situation.[2]
 
In light of the above, the assessment of the conformity of points 2 and 3 of the first paragraph of Article 39 of the CDA with the second paragraph of Article 32 and the third paragraph of Article 43 of the Constitution should take into account that prior to the outbreak of the epidemic, COVID-19 was a virtually unknown disease and it was not possible to envisage an appropriate manner of preventing its spread. The Ordinances of the Government that are the subject of the assessment of constitutionality and legality in this case were adopted in the first months of the epidemic. During that time, the National Assembly, even if expert findings regarding the disease had been available, could not have carried out a procedure to change the law, otherwise waiting for the Act to be changed before taking action would certainly have cost more lives than it otherwise would have.[3]
 
In such a manner, one can concur with the position of the National Assembly and the Government that Article 39 of the CDA contains all of the necessary elements for constitutionally consistent application. In fact, in the discussion, also the majority concurred therewith by making statements according to which the Government was unable to act differently than it did, and in the given circumstances anyone would have acted the same. By stating such, the majority recognised the necessity of an immediate response by the Government to protect the lives of people. Concurrently, in its Decision this same majority established the unconstitutionality of the Act and ordinances due to the violation of the principle of legality. There was not even an assessment of whether regarding the CDA the legislature perhaps carried out a balancing between the obligation to protect the rights determined by Article 17 and 35 and by the first paragraph of Article 51 of the Constitution, on the one hand, and an interference with the rights determined by the first paragraph of Article 32 and the first paragraph of Article 42 of the Constitution, on the other, or whether it determined the conditions under which the mentioned two rights may be limited.
 
Such decision-making pushes away any value-based questions and avoids a value determination of a situation in which there was a collision between the highest protected constitutional right – i.e. human life and health – on the one hand, and the freedom of movement and association, on the other. The principle of legality is positioned as the supreme principle, which excludes any value-based determination. The applied interpretation of the principle of legality is in fact formally logical and appears to be objective, but it misses that the purpose of rules is not to subordinate people thereto, because it is people who in truth are in the focus. The starting point of the interpretation should have been that the rules should serve the people.
 
 
II
 
Even if the principle of legality prevailed and it were established that the CDA is inconsistent with the Constitution and that also other assessed ordinances are inconsistent therewith, I could not have supported the decision determined by Point 2 of the operative provisions as regards the two-month time limit. This time limit is certainly too short to remedy the established inconsistency. I also do not support the decision that the establishment of the inconsistency of the ordinances with the Constitution has the effect of abrogation. As regards the latter, I join the position of judges Dunja Jadek Pensa and Rajko Knez, who advocated the position that the establishment of the inconsistency of the ordinances with the Constitution should have the effect of the establishment of an unconstitutionality that does not allow the mentioned provisions of invalid ordinances to not be applied in possible proceedings before the competent courts.
 
 
 
 
Marko Šorli
    Judge
 
 
[1] N. Visković, Teorija države i prava, 2nd revised edition, Birotehnika CDO Zagreb, 2006, pp. 130, 131.
[2] According to the Council of Europe Report: “The Impact of the COVID-19 pandemic on human rights and the rule of law,” accessible at:
[3] The German legislature changed the 2001 federal law for the protection from communicable diseases, which is substantively similar to the CDA, and adapted it to the requirements for the prevention of COVID-19 in November 2020.
 
U-I-79/20
31 May 2021
 
 
 
 
PARTIALLY DISSENTING OPINION OF JUDGE
DR DUNJA JADEK PENSA
REGARDING DECISION NO. U-I-79/20, DATED 13 MAY 2021
 
 
I concur with the operative provisions insofar as they refer to the assessment of the challenged Act and the manner of implementation of this decision. What I could not agree with were the underlying reasons. I was not able to overcome disagreements about them by a concurring opinion.[1]
 
I opine that the majority imposed unreal requirements on the legislature. For instance, as regards the requirement that the “legislature determine with sufficient precision the admissible types, scope, and conditions regarding the restriction of the freedom of movement and of the right of assembly and association,”[2] the majority did not substantiate by which investigative method the legislature should obtain the findings regarding the characteristics of an unknown communicable disease, its hazards for the life and health of people, its spread, and the possibilities of the treatment thereof, which would enable it to fulfil the mentioned criteria referred to in the requirement.
 
In the reasoning, I deem that there was a split regarding the legal effect of the declaratory decision insofar as it refers to the review of a law. On the one hand, in judicial proceedings it is consistent with the Constitution to (also) take into consideration the unconstitutional two provisions of the Act and the implementing regulations that were in force when the Decision started to take effect or that will be adopted in the future on their basis, because this is necessary in order to protect the life and health of people (hereinafter referred to as the first situation).[3] On the other hand, such does not hold true as regards the challenged ordinances (they are listed in Point 6 of the operative provisions, hereinafter referred to as the second situation). Since they are based on unconstitutional statutory provisions, they lose applicability (Point 7 of the operative provisions). It namely follows from the Decision that the establishment of their unconstitutionality is an automatic consequence of the finding that the challenged provisions of the Act were unconstitutional;[4] this is the only allegation that concerns them.[5] However, it is with this very same allegation namely the unconstitutionality of the legal basis therefor that all of the implementing regulations relevant in this Decision are burdened with (from the first and second situations), and only the legal effect of the declaratory decision concerning this unconstitutionality is different. Let me underline that in the first situation it is in conformity with the Constitution to observe the implementing regulations, whereas in the second situation it is not. This gave rise to second thoughts. Particularly because the Decision, by its manner of implementation, determines that it is in conformity with the Constitution that the reviewed two provisions of the Act shall apply until their unconstitutionality is remedied (Point 3 of the operative provisions).[6] These two provisions are the statutory basis for the adoption of all implementing regulations determined by the first and second situations; concurrently, their unconstitutionality is the (only) reason for the decision determined by Points 6 and 7 of the operative provisions as regards the challenged ordinances.
 
The legal effect of declaratory decisions of the Constitutional Court is a matter of a principled question. A reply thereto should also contribute to building the internal conformity of the constitutional legal order following the publication of such a decision, so that this conformity would not perhaps be compromised because of it.
 
The reason for the accepted interpretation of the legal effect of a declaratory decision of the Constitutional Court in the second situation is: “The sole effect that these [challenged] ordinances still have is that they apply for disputes concerning the questions that they regulated when they were in force. However, such application has no effect on the spread of COVID-19 and cannot contribute to the protection of the health and lives of people.”[7] What bothered me is that the importance of the protection of the lives and health of people is valued in the second situation differently than in the first situation. Nevertheless, also in judicial proceedings initiated in the first situation, courts will be faced with a situation identical to that that the majority describes in the second situation. However, the instructions of the majority therefor are different – it is in conformity with the Constitution to take into consideration the two unconstitutional provisions of the Act and the implementing regulations adopted on their basis, namely due to protection of the life and [health of] people, even though in proceedings before courts the implementing regulations will no longer be in force and as such, similarly as in the second situation, they will no longer have the function of protecting the life and health of people. From the perspective of the internal consistency of the constitutional legal order, it does not appear convincing to me that the protection of the lives and health of people is concurrently important and not important. It is as if the internal consistency of the constitutional order is a machine whose gears are not meshing.[8] Therefore, I could not accept the reasons for the decision regarding the challenged ordinances.
 
In the decision-making process, an alternative draft of the decision was prepared. Below, I will refer to it as the alternative draft. I advocated for the adoption of that draft. The alternative draft substantiated the existence of an unconstitutional legal gap in the Communicable Diseases Act (Official Gazette RS, Nos. 33/06 – official consolidated text, 49/20, 142/20, 175/20, and 15/21, hereinafter referred to as the CDA), because the substantive framework for further normative concretisation by implementing regulations was not determined. Hence, it did not fault the legislature for having renounced its exclusive legislative power by the challenged provisions of the CDA, as the majority assessed.[9] Below, I will focus on the reasons for not concurring with some of the underlying reasons of the majority as regards the review of the challenged provisions of the CDA from the viewpoint of the Constitution, which I will jointly compare to my perspective and summarise only a part of the reasons from the alternative draft.
 
 
As regards some of the underlying reasons for the Decision insofar as it refers to the CDA
 
The incompatibility of the underlying reasons with the constitutionally determined structure of state power
 
 “When [...] human rights and fundamental freedoms are directly interfered with by a general act, [...] that act must be a law.”[10] On this very far-reaching position,[11] I suppose, the interpretation of the second paragraph of Article 32[12] and the third paragraph of Article 42[13] of the Constitution is based, in accordance with which “[a] general act that directly limits freedom of movement and the right of assembly and association [...] must be a law.”[14] Despite the fact that the majority classifies deciding thereon to be in the exclusive competence of the legislature (as in accordance with the Constitution only the National Assembly adopts laws), it concurrently at the level of statutory regulation allows an exception from the exclusive constitutional power of the National Assembly in a situation concerning the spread of a communicable disease. In fact, the further underlying position of the majority reads as follows: “In this specific situation, it is thus not possible to deny the National Assembly the possibility of exceptionally leaving it to the executive branch of power to prescribe measures by which the freedom of movement and the right of assembly and association of an indeterminate number of individuals are directly interfered with in order to effectively protect human rights and fundamental freedoms, as well as to ensure fulfilment of the positive obligations that stem from the Constitution.”[15] 
 
Conclusion. I cannot rid myself of the feeling that the summarised two positions of the majority are incompatible with each other. The Constitution is unequivocal – laws can only be adopted by the National Assembly (cf. Article 87 of the Constitution); and not even exceptionally may this exclusive competence of the National Assembly be transferred by a law to the executive branch of power, because such entails an inadmissible interference with the constitutionally determined competence of the National Assembly.[16] The only possibility for legislative competence to be delegated is regulated by the Constitution – in the first paragraph of Article 108, which also determines the conditions therefor. In accordance with that provision, decrees with the force of law are to be issued by the President of the Republic (not the Government).
 
 
As regards the conception of the interpretation of the major premise
 
Hence, the majority allows the mentioned exception. The majority substantiates it with the characteristics of the position of the struggle against the spread of communicable diseases. I completely concur with these characteristics. To illustrate, I will quote the beginning of paragraph 83 of the reasoning: “The circumstances that are important for prescribing the measures determined by points 2 and 3 of the first paragraph of Article 39 of the CDA can namely change quickly; the legislative procedure, on the other hand, takes some time. If the legislature decided by itself on the introduction, modification, or abolition of such measures it would perhaps be unable to quickly enough adapt the statutory regulation to the changing epidemiological situation or expert findings from the field of the prevention of the spread of infectious diseases.”
 
Where do I see the problem?
 
The building blocks of the legal order are highly nuanced and the values therein very intertwined.[17] I am sure that in the Constitution this characteristic of the subject matter of its regulation was not overlooked. If I focus on the situation of the epidemic, it is by the letter regulated at the constitutional level. Hence, the Constitution overlooked neither the situation of an epidemic nor the complexity of this position, which in extreme circumstances can even threaten the existence of the population. It is manifestly clear that preventing the spread of a communicable disease (even by limiting the freedom of movement and gathering) can save people from getting ill and consequently from death caused by a serious communicable disease. The second paragraph of Article 32 and the third paragraph of Article 42 of the Constitution resolve the collision of the positions protected by different rights, as well as the clash of the positive and negative duties of the state in a situation entailing the spread of a communicable disease. From the perspective of the Constitution, this position is not an exception and the characteristics of a struggle against the spread of a communicable disease are not exceptional from this perspective.
 
Conclusion. The interpretation of the second paragraph of Article 32 and the third paragraph of Article 42 of the Constitution in accordance with which “a general act that directly limits freedom of movement and the right of assembly and association […] must be a law” does not convince me. Let me underline that even the majority was not able to stay true to this interpretation of the major premise. Under the weight of reality (cf. the description summarised above), the majority exceptionally “allowed” the direct limitation of rights by the prescription of measures by implementing regulations of the executive branch of power. I advocated for such an interpretation of the major premise that would establish a logical connection between existence and value. In doing so, I proceeded from the presumption that (as a general rule) the statutory reservation includes the possibility that implementing regulations be adopted on the basis of a law even if it is only such that directly interfere with rights.[18] The Constitution, I believe, allows for and regulates the hierarchical nature of the legal order, of which groups of legal rules are characteristic (the Constitution, laws, implementing regulations, individual acts). These groups have their place in the constitutional legal order, which is reflected in their supraordination or subordination (cf. Article 153 of the Constitution). Separate from this is the question of the duty of the legislature to determine a sufficient substantive framework of an interference with a right for its further normative concretisation by an implementing regulation.[19] However, this is a completely ordinary requirement of the legal order expressed already by the principles of a state governed by the rule of law and also by the requirement that the regulation of interferences with rights be reserved for laws. Below I will expand on this requirement and the further requirements as regards the sufficient clarity and precision in terms of the meaning of such statutory basis in the field of the regulation of an epidemic, which should enable the further normative concretisation thereof in conformity with the Constitution.
 
 
As regards the unrealistic requirements imposed on the legislature
 
A limitation in order to prevent the spread of a communicable disease as referred to in the second paragraph of Article 32 and the third paragraph of Article 42 of the Constitution is allowed for prophylactic reasons, in order to manage a threat characterised by individuals getting ill and dying. Hence, the purpose of the limitation is to create conditions to exercise the right to the inviolability of life and health, as the Constitutional Court already stressed in Decision No. U-I-83/20 (paragraph 42 of the reasoning).[20],[21]
 
An understanding that these two provisions merely regulate a basis for a classical vertical interference of the state with the rights determined by the first paragraph of Article 32 and Article 42 of the Constitution would be, I believe, too simple. I opine that the mentioned two provisions of the Constitution, in view of their purpose (i.e. to protect the inviolability of human life and of physical and mental integrity, as well as the sustainability of the health care system, which should ensure respect for human dignity when a person is ill) cannot be interpreted outside of the context of the positive obligations of the state determined by Article 5 of the Constitution, and also outside the general limitation clause determined by the third paragraph of Article 15 of the Constitution, which in the first part determines that human rights and fundamental freedoms are limited only by the rights of others.[22] The Constitution is an indivisible whole. It must be understood that the whole process of the assessment of the collision of the positions protected by different rights must be carried out before the positive obligations of the state become provisions of a law from the perspective of the management of the threat [of a disease]. In this context, let me also stress that without freedom of movement it is difficult to imagine one’s freedom in the broadest sense of the term; the prohibition of gathering in specific public places, such as, for instance, in schools, is connected with the limitation of the exercise of other important human rights; the freedom of gathering in public places is important for the exercise of the freedom of expression and thereby for ensuring the principle of democracy and political pluralism, without which there can be no free democratic society. Experiences with the long-lasting limitation of the exercise of these rights also draw attention to the serious negative effect on the mental health of the population. In any event, by the mentioned provisions the Constitution imposes on the legislature the obligation to adopt quite complex legislation, because what is addressed is, firstly, a collision of positions that are protected by the same and different rights, and secondly, a clash of positive and negative obligations of the state in the circumstances of an epidemic.[23]
 
Managing the danger is in the nature of further normative concretisation in this field of [legal] regulation. This is the subject of regulation. Only knowing and encompassing the entirety of the circumstances of the spread of an individual communicable disease can enable the legislature to make an assessment, which should reflect a balance between the colliding rights.[24] This resolves the limits of the exercise of an individual colliding right at the sub-constitutional level. From this, I can deduce the following: when regulating future relations that should manage a certain future threat, the legislature may only formulate statutory provisions in such a manner that they predict the totality of the specific concrete circumstances that are to be expected in its assessment. Only on such a basis can it assess the positions protected by the colliding rights and adopt a position as to the positive obligations of the state in the field of the protection of the rights to life and health in an epidemic. This process inevitably presupposes numerous assessments of a certain situation that is dangerous for the life and health of people.
 
However, when a danger is predicted the uncertainty is unavoidable. Even when, for instance, an outbreak of an epidemic of a certain already known communicable disease is regulated, it is not possible to envisage in advance whether at that moment there will be enough medicine on the market for all ill people, enough protective gear for health care workers and doctors, enough space in hospitals, and so on. How real the danger is in its whole scope will only be revealed in light of experiences when dealing with the epidemic and all of its specific circumstances, which are numerous. What is it that should formulate the concrete content of the obligation of the state in the situation of an epidemic from the perspective of the protection of the right to life and health, and the sustainability of the health care system when no matter how precise and diligent the analysis of the given data is, the shift thereof into the future cannot be reliable.[25] I also doubt that when regulating an outbreak of a thus far unknown disease its danger for the life and health of people can be envisaged, as well as the possibility of the treatment thereof and the capacity of the health care system to respond thereto. It should be understood that the provisions of the second paragraph of Article 32 and the third paragraph of Article 42 of the Constitution encompass all spectrums of the threat of the spread of communicable diseases, both known and thus far unknown. Also the CDA comprehensively regulates these requirements of the Constitution and the response of the state to the emergence of known and unknown communicable diseases; furthermore, the review by the Constitutional Court must encompass all spectrums of facing communicable diseases. However, if an assessment is not possible due to difficulty in learning about a new disease, the requirement that when transferring authorisations to the executive branch of power the law must determine in advance and “with sufficient precision the admissible types, scope, and conditions regarding the restriction of the freedom of movement and of the right of assembly and association” – as follows from paragraph 83 of the reasoning of the majority Decision – cannot be realistic. The majority did not explain by which research method the legislature should – in the situation of an outbreak of an unknown communicable disease – discover in advance the characteristics of that disease, its spread, and treatment on the basis of which it would be able, in the statutory text, to “determine with sufficient precision the admissible types, scope, and conditions regarding the restriction of the freedom of movement and of the right of assembly and association.” Furthermore, in the quoted text the criterion “with sufficient precision” remained, I believe, undefined, which is likely to cause trouble in the interpretation and implementation of the requirements stemming from the Decision.
 
Conclusion. I could not accept the interpretation of the second paragraph of Article 32 and the third paragraph of Article 43 of the Constitution, which, as I understand it, deems that the mentioned two provisions regulate a classical vertical interference by the state with the rights determined by the first paragraphs of the mentioned two Articles. I believe that it was not taken into consideration that the Constitution is an indivisible whole and that the purpose of the constitutional regulation of the mentioned provisions of the Constitution was not recognised, as well as the collision of the positions protected by different rights and the mentioned capacities of a person to learn [about a disease] when predicting and assessing unknown variables in unknown circumstances. The requirement imposed on the legislature to “determine with sufficient precision the admissible types, scope, and conditions regarding the restriction of the freedom of movement and of the right of assembly and association” for all (known and unknown) communicable diseases is in my opinion unrealistic.[26]
 
 
The alternative draft*
[* Translator's note: Unless marked otherwise, all quotes are from the alternative draft of the Decision in this case.]
 
This draft took into consideration one of the fundamental characteristics of the legal order, namely its hierarchical nature; at the principled level, it included the possibility that the legislature, within the framework of a statutory reservation, transfers an authorisation to the executive branch of power for further normative concretisation by implementing regulations. It defined the requirement of the clarity and substantive precision of the regulation of an interference with the right to freedom of movement and gathering (from the first paragraphs of Articles 32 and 42 of the Constitution) – which should enable further normative concretisation by means of a substantive framework – in relation to the complexity of the subject of legal regulation.[27] In this respect, I opine, it did not impose an unrealistic requirement on the legislature. Hence, it was based on different underlying reasons; it namely substantiated the existence of an unconstitutional legal gap because the legislature failed to determine the substantive framework for further normative concretisation by implementing regulations. It observed the requirement of the clarity and substantive precision of the statutory basis for limiting rights, in which the requirement of sufficient clarity is embedded,[28],[29] from the perspective of the subject of regulation. Although as high a degree of clarity as possible in the field of statutory regulation is by all means welcome, experience shows that it is not always attainable;[30] and also, which I think is particularly important for the case at issue, excessive precision may, on the other hand, be reflected in the law being [too] rigid when faced with reality, because the law must enable the changing circumstances to be taken into account when the law touches reality.[31] Last but not least, it took into account that the situation of an epidemic of a certain communicable disease that lasts a longer period of time as a general rule reduces the difficulty in learning [about the disease] in this field of regulation, whereas the invasiveness of interferences with the freedom of movement and gathering increases the longer they last. This imposes on the legislature the obligation to adopt a more precise statutory regulation and thus a clearer substantive framework for further normative concretisation; then, as regards knowing the circumstances that are important for managing the threat caused by that same disease, there are either no more gaps in our knowledge or the extent of that which is unknown is greatly reduced.
 
Let me add that in a case wherein the VfGH reviewed the provisions of a law that regulated an authorisation given to the executive branch of power to adopt implementing regulations specifically due to COVID-19, and in which the mentioned Court adopted Judgment No. V 363/2020, dated 14 June 2020, which addressed the requirements as to the precision of the statutory basis from the perspective of the authorisation given to the executive branch of power, the VfGH stressed the following: according to the VfGH, these requirements must not be excessively strict when an expeditious response is necessary to ensure a reasonable and effective regulation, taking into account various spatially and temporally diverse elements (Prognosespielraum). With respect to the requirements as to the precision of the statutory basis from the perspective of the authorisation given to the executive branch of power, the VfGH stressed that a margin of appreciation in balancing proportionality is granted to the executive branch of power (Abwägungsspielraum).
 
Below, I will concisely summarise (only) two elements from the alternative draft. Firstly, the reasons concerning the interpretation of the major premise and thus the starting points for reviewing the challenged provisions of the CDA. And secondly, the reasons concerning the review of the second paragraph of Article 39 of the CDA from the perspective of the second paragraph of Article 39 of the Constitution. What is at issue is the assessment of the petitioners’ allegations concerning the unconstitutional legal gap from the viewpoint of the constitutional requirement concerning public information in the situation of an epidemic. The majority Decision assesses the duty to inform [the public] from the viewpoint of Article 120 of the Constitution, namely as a safeguard against arbitrary interferences by the executive branch of power when the exclusive legislative competence of the National Assembly is exceptionally transferred thereto (paragraph 95 of the reasoning). In contrast to the majority, I opined that the question of providing information in the situation of an epidemic falls within the field of regulation of the right to obtain information of a public nature (the second paragraph of Article 39 of the Constitution); and not within the field of the regulation of Article 120 of the Constitution.
 
 
As regards the interpretation of the major premise
 
“In conformity with the established constitutional case law, the legislature is obliged to establish a substantive framework as the basis for the more detailed regulation of individual questions in an implementing regulation, as the latter must not contain provisions that do not have a basis in the law, and in particular it must not regulate rights and obligations in an originary manner.[32] Namely, the provisions of the implementing regulation must always be within the substantive framework, which must be expressly determined by law or at least determinable therefrom by interpretation,[33] which entails the establishment of a substantive framework in the law that has a determinable meaning. In this respect, the use of general clauses and indeterminate legal terms is not prohibited.”[34] The alternative draft did not overlook the position of the Constitutional Court in accordance with which the statutory authorisation granted to the executive branch of power to adopt an implementing regulation under certain conditions must be all the more restrictive and precise the greater the interference with or effect of the law on individual human rights and fundamental freedoms.[35] It took into consideration that “from the perspective of the precision of criteria, the requirement imposed on the legislature unavoidably also depends on the answer to the question of what the field of regulation is and how tightly connected the field of regulation is with the exercise of other rights that are in  collision with the former ones.” The legislature must take them into account, whereas the search for a balance between the colliding rights, which merely enables the determination of limits for the exercise of the colliding rights at a general and abstract level, can transpire to be difficult. “This is in particular reflected in instances when unclear future circumstances ([such as] an outbreak of an unknown communicable disease) are concerned and when rights guaranteed directly on the basis of the Constitution are in collision. What must be taken into consideration is precisely what constitutional values require a limitation of an individual human right. The more important these constitutional values are, on the one hand, the more intensive the limitations of an individual human right can be, on the other. [...] What is key is that the legislature regulate the essential questions concerning the field of regulation,[36] which should resolve the collision of the positions protected by the rights in collision, and that it does not leave the decision thereon to the executive branch of power. Furthermore, it must be taken into consideration that due to the specificities of the field of regulation it is reasonably possible to predict that the measures intended to protect the legislative objective can be very diverse, which is also true when it is expected that the circumstances that are the subject of regulation are unknown or largely unknown in advance and can also change rapidly.[37] The above-mentioned in particular holds true in the field of the prevention of communicable diseases, which are not always known in advance, when it also is not known what type of concrete measures are necessary, and when it is also not possible to overlook the fact that the circumstances can change very rapidly, due to which also the measures must be adapted very quickly in order for the objective of protecting health and lives to even be attainable, nor the fact that also a completely new, very communicable disease can appear, whose characteristics and manner of spreading are at the very beginning virtually unresearched both scientifically and medically. Irrespective of that, in accordance with the Constitution, the legislature must adopt in advance an abstract and general regulation that will observe the obligation of the state to also in such circumstances respond quickly, effectively, and functionally by exercising its positive obligation to protect the rights determined by Articles 17 and 35 and the first paragraph of Article 51 of the Constitution.”
 
“A different situation is in an epidemic of a certain communicable disease of larger proportions, which can also last a longer period of time.[38] Not only does a longer-lasting limitation of the right to freedom of movement and gathering entail an ever more invasive interference with the mentioned rights and with the exercise of other rights, but also the hitherto insufficiently clear circumstances in the field of regulation of the protection of the rights determined by Articles 17, 35, and 51 of the Constitution become ever more clarified and known in light of the fact that the disease is increasingly researched [as time passes]. [...] Hence, when there are no further obstacles to more precise regulation of the set of measures and the conditions for their further regulation at the level of implementing regulations, i.e. obstacles that were a result of a gap in how well known the field of regulation was, the constitutional requirements imposed on the legislature in the sense of [the obligation] to precisely determine the mentioned subject matter and thus to [provide] the executive branch of power a statutory framework to directly interfere with the mentioned two rights are stricter. [...] Within the framework of more precise regulation that in relation to the general regulation will as a general rule be expressed in the form of a special regulation, in such a situation an authorisation can be granted to the executive branch of power to adopt measures that in conformity with the principle of proportionality[39] directly limit freedom of movement and gathering.”
 
 
As regards the duty to provide public information during an epidemic
 
In the circumstances of the spread of a communicable disease that can threaten the health and lives of people, public information has specific weight. On the one hand, this concerns informing the public in advance as much as possible, which entails to the extent possible given the scientific and medical findings regarding the manner the communicable disease at issue spreads, and its characteristics and consequences for the health and lives of people, in short, findings as regards everything that can affect the rights of people determined by Articles 17, 35, and the first paragraph of Article 51 of the Constitution with respect to that communicable disease. Since in accordance with Article 5 of the Constitution the state has a positive obligation to protect these rights, there also follows therefrom the obligation to regularly impart the mentioned information, which enables people to promptly adapt their behaviour to the dangers that stem from the spread of the communicable disease. On the other hand, this concerns the fact that people must also be regularly and promptly informed of all measures and the reasons therefor, which the state, i.e. – in conformity with the mentioned provision of the CDA – the executive branch in power, adopts in order to prevent the spread of the communicable disease and to manage it. In such a manner, the public is informed of the characteristics of the communicable disease and of the need to prevent the spread thereof, and also the public nature and transparency of the functioning of the executive branch of power are ensured, which enables the establishment of trust of people as to the necessity of the adopted measures. [...] The exceptional preventive importance of the measures for combating the spread of a communicable disease imposes on the competent authorities [...] the argumentative burden of explaining the adopted measures and the consequences they cause, be they either the expected consequences that are the objective of the adopted measures or consequences that cause discomfort due to the restrictive nature of the measures. Only in such a manner is it possible to substantiate in the public the appropriateness, necessity, and proportionality in the narrower sense of the measures in the given circumstances of the spread of a communicable disease.”
 
“When measures limiting human rights are at issue that, on a statutory basis under the CDA, are adopted by the Government, which in view of the factual circumstances concretises the necessary measures for attaining the constitutionally admissible objective by means of regulations with direct effect addressed to the entire population, the mentioned right to obtain information of a public nature also cannot be ensured in a manner that would require every individual to separately obtain such information again every time necessary. In the mentioned circumstances, the consequence would entail the utterly ineffective exercise of the right determined by the second paragraph of Article 39 of the Constitution. [...] By the second paragraph of Article 39 of the CDA, the legislature failed to fulfil the constitutional requirement as to ensuring the effective exercise of the right to obtain information of a public nature when the state has to fulfil the positive obligation to protect the health and lives of people. Therefore, the CDA is also inconsistent with the second paragraph of Article 39 of the Constitution.”
 
 
Conclusion
 
The alternative draft faulted the legislature (1) for not determining in the CDA the substantive framework for the further normative concretisation of direct interferences with the right to freedom of movement and gathering by implementing regulations; (2) for not determining even in the form of examples the types of admissible limitations of the rights determined by Articles 32 and 42 of the Constitution. Furthermore, by the regulation determined by the second paragraph of Article 39 of the CDA, in accordance with which the Government must inform the public of the adopted measures, the legislature failed to ensure effective exercise of the right to obtain information of a public nature. Due to the mentioned reasons, I was able to concur with the declaratory operative provisions of the majority decision insofar as they refer to the challenged provisions of the CDA. In addition, I opined that also the second paragraph of Article 39 of the CDA is inconsistent with the Constitution. If I could vote in favour of establishing the inconsistency of the CDA with the Constitution, I would concur with the manner of implementation of the declaratory decision in Point 3 of the operative provisions. This Point further ensures an unconstitutional statutory basis (i.e. points 2 and 3 of Article 39 of the CDA) for the further adoption of implementing regulations in order to protect the lives and health of people.
 
 
 
 
                                                                                   Dr Dunja Jadek Pensa
                                                                                   Judge
 
 
 
 
 
[1] The operative provisions and reasoning of a decision always entail a whole, due to which not only the operative provisions are binding, but also the reasons and positions contained in the reasoning. Cf. Decision of the Constitutional Court No. Up-2597/07, dated 4 October 2007 (Official Gazette RS, No. 94/07, and OdlUS V, 108, Para. 6 of the reasoning).
[2] This requirement was imposed on the legislature in paragraph 83 of the reasoning of the Decision.
[3] Cf. Para. 101 of the reasoning of the majority Decision.
[4] Cf. Para. 106 of the reasoning of the majority Decision.
[5] The challenged ordinances were not assessed from the viewpoint of the constitutional requirement as to the proportionality of the limitations of rights, their possible arbitrariness, or the [Government] overstepping [its] powers on an otherwise deficient legal basis. Hence, the position is not comparable with the position from the instances considered by the Austrian Constitutional Court (Verfassungsgerichtshof – hereinafter referred to as the VfGH), which I will list below. In those cases, the VfGH abrogated implementing regulations of the Minister of Health or the provincial governor and declared them unlawful, because the Minister or the provincial governor overstepped the powers granted by the law, because the principle of equality was not observed, or because the statutory requirement that the circumstances important for the challenged decision must be stated was missing. See the decisions in cases No. V 411/2020, dated 14 July 2020; No. V 363/2020, dated 14 July 2020; No. V 530/2020, dated 9 March 2021; No. V 512/2020, dated 10 December 2020; No. V 535/2020, dated 10 December 2020; No. V 405/2020, dated 1 October 2020; and No. V 392/2020, dated 1 October 2020.
[6] In the case at issue, a declaratory decision was adopted because immediate abrogation would cause a much worse unconstitutional situation – the state would be unable to exercise its obligation to protect the life and health of people (paragraph 101 of the reasoning of the majority Decision). Hence, this is a position that is included in the first paragraph of Article 161 of the Constitution as the possibility to abrogate a law with suspensive effect. For more regarding a declaratory decision of the Constitutional Court adopted in such a situation, see S. Nerad, Interpretativne odločbe Ustavnega sodišča [Interpretative Decisions of the Constitutional Court], Založba Uradni list Republike Slovenije, Ljubljana 2007, pp. 267 et seq.
[7] From Para. 108 of the reasoning of the majority Decision.
[8] I derived my line of thought from the novel All The Light We Cannot See by A. Doerr (translation by A. Moder Saje), Mladinska knjiga, Ljubljana 2014, p. 263: “Each story [he] hears contains its own flaws and contradictions, as though the truth is a machine whose gears are not meshing.”
[9] See Para. 97 of the reasoning of the majority Decision.
[10] Taken from Para. 72 of the reasoning of the majority Decision.
[11] A different position is expressed in A. Barak, Proportionality, Constitutional Rights and Their Limitations, Cambridge University Press, Cambridge 2012, pp. 110 et seq. As regards the territory of the Federal Republic of Germany, a different position is expressed in C. Bumke and A. Voßkuhle, German Constitutional Law, Oxford University Press, Oxford 2019, p. 349; and H. D. Jarass and B. Pieroth, Grundgesetz für die Bundesrepublik Deutschland, 11th edition, Beck Verlag, Munich 2011, p. 32.
[12] This provision regulates the elements of the admissibility of the limitation of freedom of movement. It reads as follows: “This right may be limited by law, but only where this is necessary to ensure the course of criminal proceedings, to prevent the spread of infectious diseases, to protect public order, or if the defence of the state so demands.”
[13] This provision introduces the elements of the admissibility of the right of assembly and association. It reads as follows: “Legal restrictions of these rights shall be permissible where so required for national security or public safety and for protection against the spread of infectious diseases.”
[14] Taken from Para. 82 of the reasoning of the majority Decision. Highlighted by DJP.
[15] This position is taken from Para. 83 of the reasoning of the majority Decision.
[16] In Decision No. U-I-54/09, dated 14 April 2011 (Official Gazette RS, No. 34/11; Paras. 23 and 24 of the reasoning), the Constitutional Court explained that (1) the principle of the separation of powers is a fundamental principle of the organisation of state power and a constitutional principle par excellence; therefore, the fundamental rules that regulate the position and relations between the holders of individual functions of state power are determined already by the Constitution; and (2) it is only possible to more precisely delineate this constitutional subject matter by laws, but it is not admissible to introduce rules that interfere with constitutionally determined competences.
[17] “The legal system as a whole, however, is a more nuanced and complex creature.” A. Barak, Proportionality, Constitutional Rights and Their Limitations, Cambridge University Press, Cambridge 2012, p. 117.
[18] Cf., e.g., H. D. Jarass and B. Pieroth, op. cit., p. 32.
[19] Cf. in relation thereto A. Barak, op. cit., p. 111.
[20] Also the 2020 [annual] report of the German Federal Constitutional Court stresses, as regards COVID-19 cases, that in its assessment the Court took into consideration the objective of the measures – i.e. the protection of life and health. In proceedings for deciding on the temporary suspension [of the challenged regulation], the threat to life and health, which was the objective of the measures limiting freedom of movement and gathering, was attributed greater weight.
[21] Exactly the same purpose is stated in the legislative file concerning the latest amendment of the German law on the protection of the population in an epidemic, which was adopted in April 2021. In particular, it stressed the duty of the state to protect life, health, and the sustainability of the health care system as particularly important values.
[22] As regards the importance of the limitation clause, which is included in the majority of modern catalogues of human rights and which follows (in simplified terms) from the fact that in certain instances rights must be limited, see M. Klatt and M. Meister, The Constitutional Structure of Proportionality, Oxford University Press, Oxford 2012, pp. 18 et seq.
[23] As regards the positive obligations of the state during the COVID-19 pandemic in the field of the protection of life and health, see M. Bošnjak, Varstvo človekovih pravic v času pandemije, [Protection of Human Rights during a Pandemic], Dignitas, Nos. 87/88 (2021), pp. 9 et seq.
[24] In relation thereto, cf., e.g., A. Barak, pp. 38 et seq.
[25] With respect to the difficulties regarding the statutory regulation of preventive measures that should manage the future threat, cf. Judgment of the First Panel of the German Federal Constitutional Court No. 1 BvR 357/05, dated 15 February 2006 (Luftsicherheitsgesetz).
[26] For a comparison: § 28 of the German Prevention and Control of Communicable Diseases Act (Gesetz zur Verhütung und Bekämpfung von Infektionskrankheiten beim Menschen - Infektionsschutzgesetz – IfSG), which is applicable as regards all communicable diseases, determines (inter alia) that in the event infected persons are found or if there is suspicion that people are infected or transmitters of a disease, or if it is confirmed that a deceased person was either ill with or the transmitter of an infection, the competent authorities must adopt necessary measures, in particular those listed in § 28a and §§ 29 through 31, namely in such scope and duration as are necessary for the prevention of the spread of communicable diseases. Translation by DJP.
[27] “The clarity required is relative to the complexity at the issue at hand.” A, Barak, op. cit. p. 116.
[28] As regards the doctrines developed by the German Federal Constitutional Court in this field, cf. C. Bumke and A. Voßkuhle, German Constitutional Law, Oxford University Press, Oxford 2019, pp. 349 et seq.
[29] A. Barak, op. cit., p. 116.
[30] From the Judgment of the European Court of Human Rights in Sunday Times v. The United Kingdom, dated 26 April 1979, Para. 49 of the reasoning.
[31] Ibidem.
[32] Such is stated in Decision of the Constitutional Court No. U-I-73/94, dated 25 May 1995 (Official Gazette RS, No. 37/95, and OdlUS IC, 51), Para. 19 of the reasoning.
[33] This was stated in Decision of the Constitutional Court No. U-I-84/09, dated 2 July 2009 (Official Gazette RS, No. 55/09, and OdlUS XVIII, 31), Para. 8 of the reasoning.
[34] Cf. Decision of the Constitutional Court No. U-I-71/98, dated 28 May 1998 (Official Gazette RS, No. 45/98, and OdlUS VII, 95), Para. 17 of the reasoning.
[35] Decision of the Constitutional Court No. U-I-92/07, Para. 150 of the reasoning.
[36]Wesentlichkeitstheorie” – C. Bumke, H. C. Voßkuhle, op. cit., p. 350.
[37] Cf. C. Bumke, H. C. Voßkuhle, op. cit., p. 353. The authors refer to the judgment of the German Federal Court in Kalkar I.
[38] Dealing with the COVID-19 communicable disease is such an instance.
[39] The general principle of proportionality, which is immanent in a state governed by the rule of law, is binding on all state authorities. Cf. L. Šturm in: L. Šturm (Ed.), Komentar Ustave Republike Slovenije [Commentary on the Constitution of the Republic of Slovenia], Fakulteta za podiplomske državne in evropske študije, Ljubljana 2002, p. 55.
 
U-I-79/20
25 May 2021
 
 
 
CONCURRING OPINION OF JUDGE DR ŠPELCA MEŽNAR REGARDING DECISION NO. U-I-79/20, DATED 13 MAY 2021
 
 
 
The Decision on the (un)constitutionality of Points 2 and 3 of the first paragraph of Article 39 of the CDA is groundbreaking. Not due to the content (which was expected), but to the long-lasting and strenuous decision-making process that led thereto.
 
It is no secret that as early as last year the Constitutional Court was divided regarding the review of the CDA in case No. U-I-83/20. At that time, it decided (by a majority) that it would directly assess the substance (the proportionality) of two governmental ordinances that prohibited movement between municipalities. In doing so, it intentionaly left open the question of whether Article 39 of the CDA, on which the challenged measure was based, was in conformity with the basic principle of legality.[1] In the present Decision, the Constitutional Court admitted that the approach applied then was methodologically faulty. In fact, one of the consequences of that approach is that the two ordinances that the Constitutional Court declared consistent with the Constitution last year are no longer consistent with the Constitution, as they are based on (the unconstitutional) Article 39 of the CDA.
 
Due to its effects,[2] the Decision will trigger strong reactions. Justifiably, a question will be raised as to why the Constitutional Court has only now carried out a review of the constitutionality of the statutory provision that served as the basis for the vast majority of the ordinances adopted by Government in the last year.[3] Non-lawyers will perhaps ask themselves why all implementing regulations are also automatically invalid due to the bad law, regardless of how logical and beneficial the measures they regulated are from the viewpoint of the protection of public health. Some lawyers will criticise the fact that the Constitutional Court did not annul the challenged ordinances, which means that the persons who had been fined on the basis thereof but did not file legal remedies will not benefit from the Decision.
 
In this separate opinion, I would like to explain in more detail my positions with respect to some of the considerations mentioned above.
 
 
1. The question of the correct methodology or why the Constitutional Court did not first assess the constitutionality of Article 39 of the CDA in Covid cases
 
The simple answer to the question of why the Constitutional Court did not carry out a review of the CDA already last year, before (or at the latest together with) case U-I-83/20, is that the necessary majority to do so could not be reached at the time. The more complex answer reveals that the decision was such as it was because the Constitutional Court applied the wrong method for reviewing implementing acts by which the Government interferes with human rights. It simply subordinated the substance of the implementing act/ordinance (the lower premise) to the content of Article 32 of the Constitution (the upper premise) and carried out a test of proportionality. This means that it completely disregarded the importance and the role of the statutory basis in between (Article 39 of the CDA)[4] and consequently ignored a series of constitutional axioms:
 
  • Implementing acts are never based directly on the Constitution;[5]
  • Every implementing act has to have a direct basis in a law;[6]
  • The Constitution exclusively authorises the legislature to regulate human rights;[7]
  • A law that does not determine for the executive branch of power the substantive framework for the regulation of human rights violates the principle of legality and is unconstitutional;[8]
  • An implementing act based on such an unconstitutional law is unlawful and ceases to be in force;[9]
  • An unlawful (unconstitutional) implementing act does not produce legal effects;[10]
  • Logically and conceptually, it is impossible for an implementing act to be unlawful (because it is based on an unconstitutional law), while the content thereof is consistent with the constitutional principle of proportionality.[11]
 
In the Slovene constitutional order, the exercise of human rights may only be regulated by laws (and not by implementing acts).[12] The Constitutional Court assesses the appropriateness of the substantive regulation of statutory interferences with human rights by means of the test of proportionality. In order for the Constitutional Court to even be able to carry out such a substantive assessment, the law must first have some minimal content.[13] An Act that authorises the Government to limit human rights without determining the substantive criteria for admissible interferences violates the principle of legality.[14] There exists ample and established constitutional case law as regards both legality and proportionality.
 
Article 32 of the Constitution authorises the legislature to limit freedom of movement in order to protect [people] from the spread of communicable diseases. Hence, limiting freedom of movement in order to protect [the population] from COVID-19 is undoubtedly constitutionally admissible. The principle of legality answers the question of whether in Article 39 of the CDA the legislature sufficiently precisely (in an originary manner) determined the conditions and criteria for limiting freedom of movement. Only if a law passes the legality test (Article 120 of the Constitution) can the question of its substantive appropriateness be raised and an assessment of the proportionality of the statutory regulation carried out. It is inherently impossible to substantively assess a law that does not fulfil the principle of legality – because it does not even have (sufficient) content. Until the legislature adopts a better statutory regulation, the Constitutional Court is unable to assess whether the limitation of freedom of movement determined by Article 39 of the CDA is consistent with the general principle of proportionality (i.e. whether it has an appropriate relation to the protection of public health).
 
In my opinion, a substantive assessment of an implementing measure by which human rights are interfered with can only be carried out after the Constitutional Court resolves the question of its legality, i.e. whether it was adopted on the basis of a law and within its limits.[15] An affirmative answer entails that the Constitutional Court does not have any reservations as to the conformity of the statutory norm with the principle of legality and that the implementing act does not exceed the framework of the statutory norm. If the statutory basis is suspect (such as is manifest at first sight with respect to the substantively empty Article 39 of the CDA), the Constitutional Court is obliged to carry out (ex officio) a review of the constitutionality of the law from the viewpoint of the principle of legality. Only if the statutory provision successfully passes such a review may the Constitutional Court further assess whether the implementing act remains within the limits of the law – and if it successfully passes this review too, then also a review of its content in concrete circumstances may be carried out. However, if the Constitutional Court assesses that the statutory provision violates the principle of legality, then a subsequent substantive review of the implementing act is no longer possible. In fact, an unlawful implementing act cannot produce any legal effects. Hence, when carrying out a review of the constitutionality of an implementing measure by which human rights are interfered with, the Constitutional Court must not and cannot in any case avoid the statutory norm on which the implementing act is based.[16]
 
The requirement that a review of an implementing measure cannot be carried out without taking into consideration the statutory norm on which the measure is based is not merely a formality. Since the legislature must impose limits on the executive branch of power when regulating interferences with human rights, the statutory framework plays a key role in the review of the legality of the implementing act. If the legislature for instance prescribed that a curfew must last no longer than one month[17] and a curfew introduced by an implementing regulation is to last two months, the Government would certainly thereby exceed the statutory limits. The measure would be unlawful (and thus also unconstitutional) irrespective of the fact that the two-month duration of the curfew might be proportionate “in the constitutional sense” (if it was prescribed by a law).
 
The methodology of constitutional review is not interesting merely as a subject of theoretical discussions. It is proof of an understanding of and respect for the hierarchy of legal acts, their effect on one another, and respect for basic constitutional principles.[18] Hence, a well-thought out and correct methodological approach is one of key safeguards against the arbitrary decision-making of the Constitutional Court.
 
 
2. What the unconstitutionality of the CDA means for other ordinances of the Government and why it is correct that the implementing acts share the same fate as the CDA
 
The vast majority of the measures in force during the epidemic were based on points 2 and 3 of the first paragraph of Article 39 of the CDA: the prohibition of movement in public areas during the first wave [of infections], the prohibition of travel between municipalities, the prohibition of travel between regions, a curfew, the prohibition of schooling in schools, the prohibition of visiting theatres, cinemas, and all other cultural and sporting performances, the prohibition of protests, etc. The unconstitutionality of a statutory provision (Point 1 of the operative provisions) has an effect on all implementing acts adopted on its basis. It is not only the challenged ordinances that are unlawful (and consequently unconstitutional) (Point 6 of the operative provisions). As regards the latter, the finding of unconstitutionality has erga omnes effect due to the Decision of the Constitutional Court, whereas in other instances the consequences will only arise in concrete judicial proceedings as a result of the exceptio illegalis. In fact, this does not entail that everyone who was fined on the basis of the unconstitutional implementing acts will be entitled to restitution of their fine. Due to the abrogation of the challenged ordinances (Point 7 of the operative provisions, Para. 108 of the reasoning), only those who challenged by ordinary or extraordinary legal remedies a fine (or other punitive measure) that they were possibly imposed will benefit from the exceptio illegalis. In fact, regular courts will halt [all] pending proceedings (due to the exceptio illegalis). Those who have paid the fine without filing a legal remedy do not have a legal basis to obtain restitution.[19] There was not a sufficient majority to support annulment.[20]
 
At the sessions, the idea of the excessive power of the principle of legality was expressed if the matter concerns urgent measures in the struggle against the virus. In simple terms: it was repellent to our inner feeling of justice that the ordinances of the Government adopted on the basis of points 2 and 3 of Article 39 of the CDA are unconstitutional just because they were based on a deficient Act. Namely, the majority of the measures adopted by the Government were allegedly urgent, necessary, and substantively appropriate. If we naively presuppose[21] that the measures adopted by the Government were urgent and beneficial, the key question remains: is it right that completely sensible, urgent, and beneficial implementing measures “fall flat” just because the legislature failed to do its task? Thus, is it fair that (also) the Government is punished for the negligence of the legislature, in particular in a situation wherein it had to react and had no time to wait for the legislature to appropriately correct the CDA?
 
While at the beginning of last year, when COVID-19 appeared, it was still true that the Government had to take action regardless of the (im)perfection of the statutory basis, the weight of this argument has decreased with every passing week. After more than a year since the beginning of the crisis, it certainly cannot be argued that the Government, one of whose fundamental constitutional powers is also preparing draft laws, is hostage to deficient legislation. Ever since the onset of the crisis, numerous legal experts have been drawing attention to the insufficient precision of Article 39 of the CDA; it became increasingly evident also because some states that we like to model ourselves on (Germany, Austria) quickly adapted[22] their (at the beginning of the crisis equally deficient) laws to the new circumstances.
 
However, this is not the most important reason for maintaining the existing constitutional standards. The constitutional requirement that it is exclusively the legislature that decides on limiting human rights, i.e. the directly elected representatives of the people, is a reflection of the principle of the separation of powers, of democracy, and of a state governed by the rule of law. The transfer of this competence to the Government is problematic in and of itself (see paragraphs 82 and 83 of the reasoning), and it is all the more so when the Government enjoys virtually unlimited freedom in prescribing measures. In fact, on the basis of Article 39 of the CDA, the Government was able to introduce any measure, determine its content and duration, and decided by itself whether and whom it will consult thereon, whether it will take such an opinion into consideration, and how, if at all, it will inform the public thereof and of its reasons. Such unlimited discretion of the executive branch of power when interfering with fundamental human rights – i.e. freedom of movement and [the right of] association – is undoubtedly inconsistent with the Slovene Constitution.
 
The finding that the governmental measures are unconstitutional because they were based on a substantively completely empty law (paragraph 106 of the reasoning) is a (necessary) reflection of the functioning of a state governed by the rule of law in which the transfer of (unlimited) legislative power to the Government is – even during an epidemic – inadmissible. Implementing acts cannot exist without a valid statutory basis. Any other decision would not only entail departing from clear and unambiguous constitutional case law. It would also entail deciding contrary to the Constitution.
 
 
3. The victory of law over precaution
 
The COVID-19 epidemic has changed and will continue to change society. Its effect will be particularly strong in the states in the West, which entered the 21st century with powerful human rights and one’s freedom as the fundamental value. In the last year, mass and intensive interferences with basic human rights have become acceptable more than ever since the Second World War. This twist happened suddenly (but not unexpectedly). The decomposition (disintegration) of human rights is not primarily connected with ideological (political) reasons. It is connected with the universal fear of an unknown illness. In the last year, constitutions, international conventions, and the content of fundamental human rights did not change. It is the psychological attitude of people towards their own freedom. We are ready to renounce it, just to be safe and sound.[23] Sooner or later, this trend will also be reflected at constitutional courts.
 
In the case at issue, this did not happen. After a long time, I again have the feeling that the Constitutional Court implemented the Constitution fearlessly, without making bad compromises, without a bad conscience, and without excuses. The reasoning is frank, understandable, and consistent. It does not hide behind complex linguistic acrobatics. I am proud to be among the five judges who supported this historic decision.
 
 
 
 
 
                                                                                       Dr Špelca Mežnar
                                                                                                Judge
 
 
[1] Then, there had already been several (older, i.e. previously filed) petitions by which the provision of Article 39 of the CDA was challenged. Furthermore, the content of Article 39 of the CDA was at first sight constitutionally “suspect” – which means that the Constitutional Court should also have carried out a review thereof ex officio. For more on this, see my dissenting opinion http://www.us-rs.si/documents/2e/ab/u-i-83-20-odklonilno-lm-dr-meznar4.pdf.
[2] Although in the case at issue the Constitutional Court established the unconstitutionality of merely five (challenged, mentioned in Point 6 of the operative provisions) ordinances, the Decision will have an effect also on all other implementing regulations adopted on the basis of points 2 and 3 of Article 39 of the CDA due to Point 1 of the operative provisions (the finding that the CDA is inconsistent with the Constitution).
[3] See, e.g., Šipec Miha, Strahopetno sodišče [A Cowardly Court], Pravna praksa, No. 13, 2021, p. 23.
[4] The methodological approach of the Austrian (and also Croatian) Constitutional Court was different (and correct): first, it carried out a review of the law, and then assessed whether the implementing regulation exceeded the statutory framework. In some parts, the unlawfulness of the implementing regulations was established. The decision of the Austrian Constitutional Court (one of many) is published at:
[5] Cf. Pirnat in Komentar Ustave RS [Commentary on the Constitution of the Republic of Slovenia] (Ed. Matej Avbelj), Part II, Nova Univerza, Evropska pravna fakulteta, Ljubljana, 2019, p. 253: “An implementing regulation of the [state] administration is always adopted in order to implement a law; that is why it is called an implementing regulation.”
[6] Cf. Virant, Gregor: Načelo zakonitosti delovanja uprave in širina (ohlapnost, nedoločnost) zakonskih pooblastil [The Principle of the Legality of the Functioning of the State Administration and the Breadth (Looseness, Indeterminacy) of Statutory Authorisations], Javna uprava, 1999/3, p. 469: “authoritative acts and the actions of executive authorities must be based on a law. There can be no doubt about it; this rule can only be “abolished” by amending the Constitution.”
[7] Cf. the second paragraph of Article 15 of the Constitution and Decisions of the Constitutional Court No. U-I-25/95, dated 27 November 1997 (Official Gazette RS, No. 5/98, and OdlUS VI, 158), Paras. 30 and 31 of the reasoning; No. U-I-287/95, dated 14 November 1996 (Official Gazette RS, No. 68/96, and OdlUS V, 155, Para. 8 of the reasoning); No. U-I-346/02, dated 10 July 2003 (Official Gazette RS, No. 73/03, and OdlUS XII, 70), Para. 10 of the reasoning; and No. Up-1303/11, U-I-25/14, dated 21 March 2014 (Official Gazette RS, No. 25/14, and OdlUS XX, 21), Para. 10 of the reasoning.
[8] An equivalent approach is used by the ECtHR: a measure must be lawful (in accordance with the law, i.e. the legality test), legitimate (the legitimacy test), and proportionate (necessary in a democratic society).
[9] Cf. Godec, Rupko: Upravne norme in upravni akti [Administrative Norms and Administrative Acts], Administrative Collection, Univerza v Ljubljani, Pravna fakulteta, Inštitut za javno upravo, 1993, pp. 206, 207: “The creation of an administrative regulation depends on the higher legal norm, just as any other norm, but this dependency does not cease with its creation, but remains in place throughout its legal existence. This is a real existential dependency where the administrative regulation is completely connected with the legal fate of the higher legal norm and also shares its end therewith. Hence, if some originary norm ceases to be a part of positive law, also the abstract legal norm derived therefrom will lose its legal validity, as well as all other hierarchically connected abstract administrative norms, in accordance with the chain reaction rule.”
[10] This follows, inter alia, from the exception illegalis constitutional institute (Article 125 of the Constitution), which imposes on courts the obligation to not apply an unlawful and/or unconstitutional implementing act. In such manner, it is already regular courts that exclude unlawful implementing regulations from the legal order and thus reduce the need for their constitutional assessment.
A different rule applies for final individual legal acts, which can produce legal effects in the legal order even if they are based on an unconstitutional law. Godec, R., p. 206: “A concrete legal norm is existentially dependent on higher legal norms only during its creation, and not in its further existence.”
[11] This is precisely the situation that results from the simultaneous effect of Decision No. U-I-83/20 and the current Decision No. U-I-79/20. From the former, it follows that the measure of the prohibition of movement between municipalities was consistent with the principle of proportionality (and thus in conformity with the Constitution), and from the latter it follows that it was unlawful (and thus unconstitutional) because it is based on an unconstitutional law.
[12] See Article 87 of the Constitution. The purpose of this provision is to ensure that all legal norms that regulate rights and obligations of legal entities in an originary manner are created in the form of laws. This holds all the more true for the regulation of human rights and fundamental freedoms. See Decision of the Constitutional Court No. U-I-40/96, dated 3 April 1997 (Official Gazette RS, No. 24/97, and OdlUS VI, 46), Para. 13 of the reasoning.
[13] See Para. 69 of the reasoning of the Decision.
[14] For more on the principle of legality and its importance for the functioning of a state governed by the rule of law, see Virant, Gregor: Načelo zakonitosti delovanja uprave in širina (ohlapnost, nedoločnost) zakonskih pooblastil [The Principle of the Legality of the Functioning of the State Administration and the Breadth (Looseness, Indeterminacy) of Statutory Authorisations], Javna uprava, 1999/3, pp. 467 et seq.
[15] Cf. Godec, Rupko: Upravne norme in upravni akti [Administrative Norms and Administrative Acts], p. 202.
[16] In the case at issue, the Constitutional Court followed the described (i.e. correct) path. First it carried out a review of the Act. When it became apparent that the Act is unconstitutional, the formal finding that the challenged ordinances were unconstitutional followed (Para. 106 of the reasoning).
Cf. Para. 58 of the reasoning in case No. U-I-83/20, where the Constitutional Court “skipped” a review of the Act and thus completely avoided a review of the constitutionality of the ordinances that were challenged.
[17] Another question is whether such a statutory limitation would be in conformity with the public interest (i.e. to ensure public health) – the question of the proportionality of the statutory regulation.
[18] Cf. Pirnat in Komentar Ustave RS [Commentary on the Constitution of the Republic of Slovenia] (Ed. Matej Avbelj), Nova Univerza, Evropska pravna fakulteta, Ljubljana 2019, p. 252.
[19] I opine that the positions that appear in public and in accordance with which everyone who paid a fine (on the basis of the unconstitutional ordinances) is entitled to restitution on the basis of Article 190 of the Code of Obligations or on the basis of the liability of the state for damages are misleading and ill-considered.
[20] The effect of annulment would open the possibility of a special (“sui generis”) legal remedy (Article 46 of the Constitutional Court Act). Such a possibility would also benefit all those who did not file a legal remedy against [the imposed] fines.
[21] With the exception of the prohibition of movement between municipalities, which was the subject of review in case No. U-I-83/20, the Constitutional Court did not substantively review any of the measures. Given the Decision at issue, it is unlikely it ever will.
[22] Germany by amending the general law on communicable diseases, and Austria by adopting a special COVID-19 law.
[23] This occurrence is in fact not new. In a keynote address in 2006, Dr Dragica Wedam Lukić, former Constitutional Court Judge and President, stated: “After September 11, due to the threat of terrorism, the requirement as to ensuring general safety increased, due to the appearance of new communicable diseases, the requirement as to ensuring protection from epidemics increased, and the requirement as to ensuring protection of the living environment is ever more pronounced. These reasons can certainly lead to a different answer to the question of how to establish an appropriate balance between the rights of an individual and the interests of the general community. Despite this fact, it is necessary to avoid excessive oscillations and to stick to the planned path; every deviation therefrom must be well thought out and convincingly reasoned. Above all, the requirements as to ensuring greater general safety that have already begun to manifest in the legislation of individual states should not lead to the excessive limitation of the rights of individuals.”
 
 
 
                                                                     
U-I-79/20
27 May 2021
 
 
 
CONCURRING OPINION OF
JUDGE DR KATJA ŠUGMAN STUBBS
REGARDING DECISION NO. U-I-79/20, DATED 13 MAY 2021,
JOINED BY JUDGE DR. ROK ČEFERIN
 
 
In front of us is a groundbreaking decision, actually the uber-decision of all COVID-19 cases. It is a decision by which we decided that, due to the insufficient substantive basis for exercising the authorisation given to the Government (the principle of legality), the part of Article 39 of the Communicable Diseases Act (hereinafter referred to as the CDA) on the basis of which ordinances that limited the movement and gathering [of people] during the first wave of the COVID-19 epidemic (see paragraph 100 of the reasoning) is inconsistent with the Constitution. In my separate opinion I wish to explain the key reasons that guided me in deciding in this case and some of the circumstances that accompanied the adoption of the decision.
 
I
 
A lawyer could see at first sight that the reviewed part of Article 39 of the CDA is insufficiently precise. It is substantively empty to such a degree that the reviewed part of the provision could serve as a textbook example for first-year law students of a virtually completely blank statutory authorisation given to the executive branch of power, like an example by which a professor could show the issues that such violations of the principle of legality represent for the basis of a democratic state. It is true that the reviewed provision was adopted in 1994 and that from then until the first wave of the epidemic it was never subject to review or application in judicial proceedings and thus escaped critical examination. Since 1994 also the requirements for a review of the constitutionality of similar norms have become stricter.
 
In the meantime, the Constitutional Court relatively often abrogated implementing acts that were based on an insufficiently precise legal basis. Thus far, the following statutory provisions were found to be insufficiently precise, and due to violations of the principle of legality all led to the abrogation (or the finding of inconsistency with the Constitution) of both the statutory provisions and the implementing acts based thereon:
 
- A part of Article 162 of the Pension and Disability Insurance Act, which authorised the Pension and Disability Insurance Institute to carry out, by itself, in instances and in a manner it determines itself, the balancing of pensions on the basis of the differences that arise with regard to the levels of pensions that apply in individual periods.[1]
 
- A part of the second paragraph of Article 48 of the Securities Market Act, because the legislature thereby “granted, mutatis mutandis, the Securities Market Agency the authorisation to determine the conditions for revoking brokers’ permit to carry out transactions with securities. In such manner, it transferred thereon in its entirety the right to regulate questions that are statutory subject matter and which the legislature should have regulated by itself or at least determined the basis and framework for regulation by implementing acts.”[2]
 
- Article 33 of the Road Transport Act and the rules based thereon. The challenged Article determined that the ministry [responsible for traffic] grants permits in accordance with the criteria, procedure, and manner determined by the rules adopted by the minister responsible for traffic.[3]
 
- Article 17 of the Trade Act and the rules of the competent minister based thereon. The abrogated Article provided that the minister responsible for trade determine the criteria for setting the timetable of the working hours of shops.[4]
 
- The second paragraph of Article 74 of the Gaming Act and a decree based thereon. The challenged paragraph stipulates that the minister competent for tourism shall determine limited tourist areas in accord with local communities in individual areas.[5]
 
- The fourth paragraph of Article 30 of the State Prosecution Act, which stipulated that the Government shall determine, by a decree, the conditions, criteria, and amount of payment for an increased amount of work or additional workload for individual state prosecutors or assistants to state prosecutors.[6]
 
- Article 57 of the Health Care and Health Insurance Act, by which the Act transferred to the Health Insurance Institute of Slovenia the authorisation to determine lump sum contributions without providing guidelines, directions, or a framework for determining them.[7]
 
- The first paragraph of Article 11 of the Financing of Municipalities Act because the second paragraph of the mentioned Article transferred to the Government the competence to determine in more detail tasks whose costs are taken into account when determining the amount of funds for funding the tasks of municipalities and the methodology for calculating such lump sum, and in doing so the first paragraph only determined the individual fields in the competence of municipalities with regard to which the tasks and expenses of their financing will be taken into account when establishing the appropriate amount of funds, but failed to substantively determine these tasks in more detail and thus did not ensure the decree a sufficient, clear, and substantive statutory basis for determining the tasks regarding which costs are taken into account and the methodology for calculating such lump sum.[8]
 
The list is relatively long and boring on purpose. It is long because I want to demonstrate how numerous these (non-exhaustively listed) cases are, and boring because I want to illustrate that the situations concerned are very diverse and that significantly less important competences were transferred to the executive branch of power than in the case at issue. Furthermore, the mentioned instances mostly did not concern the regulation of interferences with human rights or fundamental freedoms, or the interferences were significantly less invasive than in the case at issue. So, a minori ad maius it is impossible to overlook the comparative specificities of the case at issue: both the intensity of the interferences with freedom of movement and freedom of association (e.g. the prohibition on leaving one’s municipality), as well as the long-lasting nature and mass character thereof (the ordinances applied to all residents in the Republic of Slovenia).
 
In all the other mentioned instances, the Constitutional Court, when carrying out similar reviews, encountered incomparably milder interferences, which, as a general rule, applied to a smaller circle of people.[9] In other words: since the Second World War we have not encountered such intense, long-lasting, all-encompassing, and mass limitations of the freedom of movement and freedom of assembly and association than precisely during the COVID-19 epidemic. It seems that, in view of the hitherto case law, all these factors should lead to a relatively quick and simple review of the question before us. The statutory basis is so evidently under-normed that it simply has to lead to the finding that the Act is inconsistent with the Constitution due to a violation of the principle of legality. The fate of ordinances is sealed by the self-evident consequence of such a finding – the finding of inconsistency with the Constitution.[10]
 
II
 
Whoever would think that it is unusual that ordinances “which save lives, after all” are abrogated “merely” because of some sort of formality such as the principle of legality does not understand the principle of the separation of powers, on which the functioning of the modern democratic state is based.[11] In a democratic state, interferences with human rights may only be adopted by directly elected representatives of the people.[12] This automatically entails that such interferences may only be regulated by laws and absolutely not by hierarchically lower legal acts, such as ordinances. The competence to interfere with human rights must never be transferred to the executive branch of power, which may only operate on a substantive basis and within the framework of laws.[13]
 
All of this follows from the principle of the separation of powers, as the competence to legislate is exclusively in the hands of the National Assembly (Articles 86 through 89 of the Constitution), and no other state authority may regulate statutory subject matter. [14] It is precisely this that the reviewed points 2 and 3 of Article 39 of the CDA enable the executive branch of power to do. A substantively void norm such as the one at issue namely causes that interferences with human rights are no longer decided on by a democratically elected legislative branch of power, but by the executive branch. In a state governed by the rule of law conceived on the idea of the separation of powers,[15] which is also tightly connected with the idea of a state governed by the rule of law,[16],[17] this is unacceptable.[18]
 
In this context, the warnings in the Decision that “the degree to which the statutory authorisation is precise and accurate can vary depending on the subject matter of the regulation and the envisaged intensity of the interference with human rights or fundamental freedoms” (see paragraph 72 of the reasoning) are of particular significance. However, the statutory authorisation granted to the executive branch of power must be more restrictive and precise the greater the interference or effect of a law on the human rights and fundamental freedoms of an individual.[19] The statutory authorisation must be so precise that it does not allow the executive branch of power to regulate human rights and fundamental freedoms in an originary manner. Thereby, predictability and legal certainty with respect to the exercise of human rights and fundamental freedoms are ensured, and concurrently the threat of the arbitrary limitation thereof by the authorities in power is reduced. Namely, only such precision entails a safeguard against arbitrary interferences by the executive branch of power with human rights and fundamental freedoms.
 
Hence, the Decision merely follows the established case law as regards the required substantive basis in the law which should prevent the executive branch of power from taking on the functions of the legislative branch, which would lead the state away from democratic regulation towards an arbitrary executive branch of power.
 
III
 
The decision finding that the ordinances are inconsistent with the Constitution due to a violation of the principle of legality says nothing about their content. In fact, the Decision at issue did not even have to address their content because implementing acts derive their existence from a law.[20] If the law is inconsistent with the Constitution, then the ordinances adopted on the basis of such a law cannot remain in force, regardless of their content. Even if such ordinances completely fulfilled all criteria that a complete law would have to require therefrom, they would still not have an independent legal life. In other words: since implementing acts derive their existence from a law, they fail without a law, even if they are otherwise perfect in terms of their content.[21] The legal logic behind this is not in any way formalistic: it is deeply substantive.
 
The principle of legality determined by the second paragraph of Article 120 of the Constitution contains two requirements: (1) implementing regulations and individual acts must be adopted on the basis of law, and (2) they must also be substantively within the framework of law.[22] The requirement that they be adopted on the basis of a law is primary – if they are not, one cannot even assess whether they are substantively within the framework of law. The question of whether an implementing act is adopted on the basis of law also includes an assessment of whether the statutory basis itself is precise enough to ensure that the essence of the legislative competence to regulate the substance of human rights is not transferred to the executive branch of power.
 
So, the Decision does not provide an answer to the question of whether the challenged ordinances were urgent, necessary, and proportionate. A positive answer to these questions could only be obtained if it was demonstrated that the law from which the ordinances derive their existence gives the latter a sufficiently clear, substantively determinate, and thus predictable substantive basis. In other words: when assessing an implementing act, the only methodologically correct path is the one where first the question of an appropriate substantive statutory basis for its adoption is assessed and only then the question of whether the act is within the framework of the law and whether it is proportionate.
 
Therefore, the adopted Decision exposes the severe methodological mistake of the tight majority of the Constitutional Court from the thus far only substantively adjudged case concerning the limitation of freedom of movement and gathering, namely Decision No. U‑I‑83/20, adopted in August of last year.[23] With that Decision, the Constitutional Court namely established that certain articles of the then assessed ordinances[24] – which were two almost identical ordinances that were (inter alia) assessed also in the case at issue – were not inconsistent with the Constitution. Hence, the majority reviewed their proportionality without first reviewing their statutory basis. This means that from Decision No. U-I-83/20 it follows that the majority directly reviewed the proportionality of ordinances as such, as if their existence did not depend on the constitutionality of the statutory norm on the basis of which they were adopted. In retrospect, now it is becoming apparent that also the ordinances that were reviewed then are inconsistent with the Constitution due to their inconsistency with the principle of legality. Indeed, the Decision adopted at the time leaves an even more bitter taste today.
 
The requirement that there has to exist an appropriate substantive basis in a law for the functioning of the executive branch of power (the principle of legality), and the requirement that both the statutory basis that regulates interferences with human rights and the functioning of the executive branch of power based thereon, must be in conformity with the principle of proportionality are two separate constitutional requirements. If it becomes apparent that the law limited the functioning of the executive branch of power with sufficient precision, that does not entail in and of itself that the statutory basis and the implementing act based thereon proportionately interfere with human rights. And vice versa. If the statutory basis is too loose, both the law and the implementing act based thereon are inconsistent with the Constitution even if perhaps the measures of the executive branch of power are proportionate: constitutionally, it is unacceptable that legislative duties are transferred to the executive branch of power. It is hence extremely important to strictly distinguish between these two institutes and to apply them consecutively: first the review of legality, and then the review of proportionality.[25]
 
In this manner, the executive branch of power can never remedy an insufficiently precise statutory basis by introducing, for instance, proportionate measures. Such a position is intolerable due to the principle of the separation of powers and the anti-authoritarian motive from which it is derived. That does not mean that the principle of proportionality does not bind the executive branch of power, but it certainly means that the proportionality of an ordinance cannot compensate for the mistakes made by the legislative branch of power. If that were possible, it would mean that the principle of legality is devoid of substance, and the separation of powers unnecessary. In a democratic state we must not wish this to be so.[26]
 
IV
 
The adopted Decision naturally has some deficiencies that cannot be overlooked. Since we only decided to abrogate the ordinances due to their inconsistency with the Constitution and did not annul them, the Decision introduced a differentiation between those who violated the unconstitutional ordinances, who paid the fines based thereon, and whose cases became final, on the one hand, and those whose minor offence cases have not yet become final for various reasons, on the other.
 
Concurrently, the Decision introduced a distinction, which is at first sight unusual, in the legal validity of past ordinances, on the one hand, and of ordinances that will either be in force at the time of the publication of our Decision or will be adopted after its publication on the same legal basis, on the other. Due to an inconsistency with the Constitution, we abrogated the challenged ordinances, which all ceased to be in force before the Decision at issue was adopted, which means that in pending cases these ordinances must not be applied. Conversely, we allowed that the challenged statutory regulation continues to apply despite its unconstitutionality for a short period of time (i.e. until the established unconstitutionality is remedied). Such entails that thus also the adoption of new implementing acts on this unconstitutional [legal] basis is enabled; acts which we, by our Decision, ensured will be in force, despite remaining unconstitutional in their essence.
 
The reason for the mentioned distinction is the fact that for specific reasons (paragraph 101 of the reasoning) we were unable to abrogate the Act and by the manner of implementation determine a constitutionally consistent transitory statutory regulation that would enable new ordinances to be adopted on a constitutionally consistent legal basis. We were also unable to abrogate the Act without such a manner of implementation because the absence of any legal basis would create an even worse unconstitutional situation for the future. In fact, the epidemic is still going on and the state also has a positive obligation to protect the lives and health of people. Hence, in such manner, we “created” a distinction between ordinances that are all based on the same legal basis.
 
Despite this fact, there exist weighty substantive reasons for such a distinction. In fact, future ordinances can attain their purpose of protecting the health and lives of people, whereas the ordinances that in the meantime ceased to be in force are a matter of the past, as is their effect as regards protecting the health and life of people. By abrogating ordinances that are no longer in force we merely abrogated their punitive-financial effect in pending cases.[27] I see no reason why the state should have financial benefits from unconstitutional ordinances that can no longer protect the health and life of people. At this moment, the argument against the abrogation of ordinances that in the meantime ceased to be in force can certainly not be the fact that these ordinances protected the health and life of people in the past.
 
As for our further decision-making, numerous questions remain open. One of them, for instance, is whether following our decision we will still assess some reproaches concerning the proportionality of the challenged ordinances. For instance, is it possible to nevertheless establish that an ordinance that was abrogated due to a violation of the principle of legality was also disproportionate?[28] It is certain that as regards new ordinances based on the unconstitutional part of Article 39 of the CDA it will not be possible to establish a violation of the principle of legality, but new questions will probably be opened with respect thereto, e.g. the principle of proportionality.[29]
 
***
 
To come to a conclusion, I will repeat the words I stated in my last separate opinion concerning the temporary suspension of the prohibition of assembly and association in case No. U-I-50/21: in the case to which this separate opinion refers, the Constitutional Court did decide independently and with integrity, as well as logically, convincingly, wisely, and in an expert manner. It actually decided in the only possible, legally consistent, and theoretically acceptable manner, one that will not subsequently cause us to blush with shame. In fact, only such a decision is in conformity with the established case law and only such a decision can find convincing support in philosophical and theoretical findings, which are the foundational building blocks of a democratic state.
 
It is, however, downright lamentable that we decided so late: the decision will be published almost 15 months after the first petition was filed,[30] after the third wave of the epidemic has ended, and after tens of ordinances have already been adopted on an unconstitutional statutory basis, and fines worth several million imposed.[31] This is something the Constitutional Court should simply not have allowed itself. As judge rapporteur in these joined cases,[32] I can only assure that this delay did not happen due to a lack of incentive or effort on the side of those of us who prepared, corrected, and harmonised numerous drafts.
 
A part of the responsibility for this delayed decision certainly lies with [the Constitutional Court having] applied the wrong strategy to resolve COVID-19 cases. The time to establish an unconstitutionality was last year, when we were deciding on case No. U-I-83/20. Despite the incessant drawing of attention to the problem concerning the statutory basis by the minority at the time,[33] a tight majority decided that the reviewed ordinances are in conformity with the Constitution (as regards the question of proportionality) without addressing the primary question of whether the statutory basis on which they are based is in conformity with the Constitution: in such manner, not only was the strategy for decision-making on COVID-19 cases methodologically erroneous, but also valuable time was lost as a result. In fact, had we correctly approached the resolution of COVID-19 cases and first addressed the question of the statutory basis, the legislature would have gained the message that the statutory basis was constitutionally disputable already in the summer of last year and it would therefore have been able to adopt a constitutionally consistent law even before the second wave began.[34] At that time, a cleaner (and in my assessment also more correct) decision by which the Act would be abrogated and ordinances annulled would certainly be significantly more acceptable. Alas!
 
During this time, for instance, the Austrian and German legislatures adopted special COVID-19 articles or COVID-19 laws that rendered the statutory authorisations, which formerly had also been more or less blank, more precise.[35] The French legislature also did similar.[36] They adopted these decisions on their own initiative, without interference by the Constitutional Court, which is of course also what the Slovene legislature could and even should have done without restraint. Furthermore, the Austrian Constitutional Court in the meantime substantively decided on tens of COVID-19 cases that refer to various implementing acts. Hence, it answered the questions that arose with respect to the imposed measures.
 
The second part of the answer to the question of why decision-making took so long falls more in the field of the psychology of judicial decision-making. At this point, we cannot avoid the fact that we are nine individuals [adjudicating] at the Constitutional Court with our own capabilities, personality traits, and values, and as such merely humans. The reasons for postponing the decision can be sought in various (rational and irrational) fears, hesitation, doubts, as well as in the unwillingness of several judges to make compromises (who, despite their long-lasting harmonisations, voted against in the end). Making compromises is, however, necessary when addressing a topic that divides[37] not only the public but also Constitutional Court judges and that is strategically – and in these times, unfortunately, also politically – so delicate.
 
As judge rapporteur, I advocated for operative provisions by which we would abrogate the statutory basis (with suspensive effect, of course) and annul the ordinances adopted on such basis. This would entail that we would treat equally all people who violated the ordinances – both those who have already paid the fines and those whose cases have not yet become final for various reasons. Such a decision would appear to me to be the most correct and legally most elegant; it would not create an inequality between different offenders who violated these ordinances. In front of us is a compromise that managed to receive the required five votes. Although the decision is, in my opinion, neither optimal nor timely, I am, considering what I stated above, proud of it and thankful therefor. I am namely convinced that even such a decision nevertheless maintains in its entirety the spirit of the hitherto constitutional case law, places the principle of legality in the right place, and is concurrently not a toothless tiger.
 
Finally, as always, each of the judges is accountable to his or her own conscience and must accept responsibility for his or her decision, in particular since what is at is at issue is probably the most important decision of this year, and perhaps even of our [entire] term of office.
 
 
 
                                                                                   Dr Katja Šugman Stubbs, MP
                                                                                                Judge
 
 
Dr Rok Čeferin, MP
  Judge
 
 
[1] Decision No. U-I-123/92, dated 18 November 1993 (Official Gazette RS, No. 67/93, and OdlUS II, 109).
[2] Decision No. U-I-287/95, dated 14 November 1996 (Official Gazette RS, No. 68/96, and OdlUS V, 155), Para. 10 of the reasoning.
[3] Decision No.  U-I-58/98, dated 14 January 1999 (Official Gazette RS, No. 7/99, and OdlUS VIII, 2).
[4] Decision No. U-I-16/98, dated 5 July 2001 (Official Gazette RS, No. 62/01, and OdlUS X, 144).
[5] Decision No. U-I-50/00, dated 30 May 2002 (Official Gazette RS, No. 54/02, and OdlUS XI, 93). The determination of these areas was important because a part of the concession contribution from gaming belonged to the local communities in a defined tourist area.
[6] Decision No. U-I-60/06, U-I-214/06, U-I-228/06, dated 7 December 2006 (Official Gazette RS, No. 1/07, and OdlUS XV, 84).
[7] Decision No. U-I-390/02, dated 16 June 2005 (Official Gazette RS, No. 62/05, and OdlUS XIV, 58).
[8] Decision No. U-I-24/07, dated 4 October 2007 (Official Gazette RS, No. 101/07, and OdlUS XVI, 74).
[9] By stating this, I, of course, do not wish to underestimate the possible severe consequences that the unconstitutional norms had for the addressees in the above instances.
[10] Courts must not apply implementing acts that are inconsistent with the Constitution – exceptio illegalis (Article 125 of the Constitution).
[11] For the English variant of this principle, see Jason N. E. Varuhas, The Principle of Legality, Cambridge Law Journal, Vol. 79, No. 3, 2020, pp. 578–614.
[12] Decision of the Constitutional Court No. U-I-73/94, dated 25 May 1995 (Official Gazette RS, No. 37/95, and OdlUS IV, 51), Para. 19 of the reasoning.
[13] Decisions of the Constitutional Court No. U-I-123/92 and No. U-I-73/94, Para. 18 of the reasoning.
[14] The only exception is a state of emergency (Articles 92 and 108 of the Constitution). In such an event, when the National Assembly is unable to convene due to a state of emergency or war, the President of the Republic may, on the proposal of the Government, issue decrees with the force of law. Also in such an instance decrees with the force of law cannot be adopted directly by the Government, and even when they are adopted, the President of the Republic must submit them to the National Assembly for confirmation immediately upon it next convening.
[15] The idea of the separation of powers originates in the Age of Enlightenment, beginning with Locke, who was amongst the first to criticise the idea of the king’s power originating from God, and conceptualised the separation of powers (with the power belonging to the people) to the executive and legislative branches. The key idea of the separation of powers was further developed by Montesquieu in his book “Spirit of Laws” (from 1748). Not only did he draw a distinction between the legislative, executive (one can also say administrative), and judicial branches of power, but he also formulated the requirement that these functions must be distributed between different state authorities that are independent of one another. See, e.g., Sharon Krause, The Spirit of Separate Powers in Montesquieu, The Review of Politics, Vol.  62, No. 2, 2000, pp. 231–265, Céline Spector, Montesquieu, Encyclopedia of the Philosophy of Law, Sorbonne, hal-03149778.
[16] The German analogue Rechtsstaat is based on two principles: the principle of legality and the principle of proportionality. See, e.g., Christian Bumke, Andreas Voβkuhle, German Constitutional Law. Introduction, cases and principles. Oxford University Press, New York, 2019.
[17] See, e.g., Jeremy Waldron, Separation of Powers in Thought and Practice?, Boston College Law Review, Vol. 54, No. 2, 2013, pp. 433–468, Richard Bellamy, The Political Form of the Constitution: the Separation of Powers, Rights and Representative Democracy, Political Studies, Vol. XLIV, 1996, pp. 436–456.
[18] As stressed by Marijan Pavčnik (Teorija prava, Prispevek k razumevanju prava [Theory of Law: A Contribution to Understanding Law], 5th revised edition, GV Založba, Ljubljana 2015, p. 79), “[a] state governed by the rule of law is created as a reaction against a state organisation in which the activity of central state authorities is not determined in advance or at least determinable by appropriate general legal acts of the representative body. In continental Europe, the institutions of a state governed by the rule of law were formed as a reaction to a police state (German Polizeistaat). In a police state, the centre of decision-making lies with the state administration, which operates in conformity with the interest of the state (Staatsraison, raison d’état) as the state itself perceives it [...]. Also in a state governed by the rule of law, the state administration can have competences that allow it an appropriate (relatively broad) margin of appreciation, while the condition is that all the essential criteria that enable such appreciation are determined already by a law.”
[19] Decision of the Constitutional Court No. U-I-92/07, dated 15 April 2010 (Official Gazette RS, No. 46/10, and OdlUS XIX, 4), Para. 150 of the reasoning.
[20] Rupko Godec, Upravne norme in upravni akti [Administrative Norms and Administrative Acts], Administrative Collection, Univerza v Ljubljani, Pravna fakulteta, Inštitut za javno upravo, 1993, pp. 155–232.
[21] The question, of course, is whether they can actually be perfect without statutory criteria. In fact, if a law is empty to such a degree that it does not contain clear limitations on and directions for the executive branch of power, it is a question of which criteria could even fill in the assessment of, for instance, the proportionality of an implementing act.
[22] For more on the principle of legality, see Gregor Virant, Načelo zakonitosti delovanja uprave in širina (ohlapnost, nedoločnost) zakonskih pooblastil [The Principle of Legality of the Functioning of the State Administration and the Breadth (Looseness, Indeterminacy) of Statutory Authorisations], Javna uprava, Vol. 35, No. 3, 1999, pp. 467–488.
[23] Decision dated 27 August 2020 (Official Gazette RS, No. 128/20).
[24] What was at issue was Article 1 in the part concerning the prohibition of movement outside the municipality of one’s permanent or temporary residence, the third paragraph of Article 3 in conjunction with the second paragraph of the same Article, the second paragraph of Article 4, and Article 7 of the Ordinance on the Temporary General Prohibition of the Movement and Gathering of People in Public Places and Areas in the Republic of Slovenia and the Prohibition of Movement Outside of One’s Municipality (Official Gazette RS, Nos. 38/20 and 51/20), and Article 1 in the part concerning the prohibition of movement outside the municipality of one’s permanent or temporary residence, the third paragraph of Article 3 in conjunction with the second paragraph of the same Article, the second and third paragraphs of Article 4, and Article 8 of the Ordinance on the Temporary General Prohibition of the Movement and Gathering of People in Public Places and Areas in the Republic of Slovenia and the Prohibition of Movement Outside of One’s Municipality (Official Gazette RS, Nos. 52/20 and 58/20).
[25] This is precisely also how the Austrian Constitutional Court (hereinafter referred to as the VfGH) acted. When reviewing implementing acts, they [i.e. the Austrians] first assessed the question of the constitutionality of the statutory basis, and only once they had established that the act was consistent with the Constitution did they address the question of whether the implementing acts were in conformity with the law. Hence, they were completely aware of the fact that the question of the conformity of the law with the Constitution is primary and that they could only analyse the implementing act after that question had been resolved. See, e.g., the decisions of the VfGH in case No. V 428/2020, dated 1 October 2020, accessible at:
[26] See an interesting discussion on trends that weaken the power of this principle in Nicola Lupo, Giovanni Piccirilli, The Relocation of the Legality Principle by the European Courts’ Case Law: An Italian Perspective, European Constitutional Law Review, 2015, pp. 55–77.
[27] Had we had enough votes for abrogation, we would have also remedied the distinction between those addressees of the legal norm that have already paid fines and those have not (yet) paid them.
[28] Establishing that it was proportionate is conceptually impossible, as demonstrated above.
[29] See the last sentence of paragraph 101 of the Decision: “As a result, courts must not deny the validity of the mentioned implementing regulations as regards relations that arise following the publication of this Decision in the Official Gazette of the Republic of Slovenia due to the unconstitutionality established in this Decision,” [emphasis added by KŠS] from which it logically follows that it will not be possible to claim that the new ordinances violate the principle of legality, yet it will be possible to claim other violations.
[30] The petition of the first petitioner for a review of the constitutionality and legality of the Ordinance on the Temporary General Prohibition of the Movement and Gathering of People in Public Places and Areas in the Republic of Slovenia (Official Gazette RS, No. 30/20) was filed on 24 March 2020. We decided thereon on 13 May 2021.
[31] According to reporting in the daily Dnevnik, during the second wave of the epidemic the Police issued fines worth more than five million euros, see Uroš Škerl Kramberger, Za več kot pet milijonov evrov glob je policija zaračunala v drugem valu epidemije [The Police Have Issued Fines Worth More than Five Million Euros during the Second Wave of the Epidemic], Dnevnik, 25 March 2021, accessible at: https://www.dnevnik.si/1042951889
[32] The joined case No. U-I-79/20 was assigned to me as judge rapporteur on 3 December 2020.
[33] See the dissenting opinion of judge Dr Špelca Mežnar regarding Decision No. U-I-83/20.
[34] In this respect, I concur with those who criticise the work of the Constitutional Court, e.g. Šipec, Miha, Strahopetno sodišče [A Cowardly Court], Pravna praksa, No. 13, 2021, p. 23.
[35] See the Austrian Federal Act on Temporary Measures for the Prevention of the Spread of COVID-19: Bundesgesetz betreffend vorläufige Maßnahmen zur Verhinderung der Verbreitung von COVID-19 (COVID-19-Maßnahmengesetz), accessible at:
https://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=20011073, and the German Federal Act on Protection from Communicable Diseases (hereinafter referred to as the IfSG): Gesetz zur Verhütung und Bekämpfung von Infektionskrankheiten beim Menschen (Infektionsschutzgesetz - IfSG), accessible at:
[36] By an urgent law adopted on 23 March 2020, France declared, in an expedited procedure, a public health state of emergency. The urgent law No. 2020-290 for combating the COVID-19 epidemic (Loi d'urgence pour faire face à l'épidémie de covid-19) amended the Public Health Act, into which a chapter on severe health threats and crises was inserted. This chapter regulated anew that a public health state of emergency (état d'urgence sanitaire) could be declared for the entire state or on a part of its territory if there is a threat to the health of people in view of the nature or degree of severity of the health catastrophe.
[37] “Polarises” would be the wrong word in this context because it would indicate that we are divided into merely two groups. This time, we were divided into at least three groups, if not more. We do know, however, that merely the art of reaching five votes leads to a decision.
 
 
[1] Decision No. U-I-123/92, dated 18 November 1993 (Official Gazette RS, No. 67/93, and OdlUS II, 109).
[2] Decision No. U-I-287/95, dated 14 November 1996 (Official Gazette RS, No. 68/96, and OdlUS V, 155), Para. 10 of the reasoning.
[3] Decision No.  U-I-58/98, dated 14 January 1999 (Official Gazette RS, No. 7/99, and OdlUS VIII, 2).
[4] Decision No. U-I-16/98, dated 5 July 2001 (Official Gazette RS, No. 62/01, and OdlUS X, 144).
[5] Decision No. U-I-50/00, dated 30 May 2002 (Official Gazette RS, No. 54/02, and OdlUS XI, 93). The determination of these areas was important because a part of the concession contribution from gaming belonged to the local communities in a defined tourist area.
[6] Decision No. U-I-60/06, U-I-214/06, U-I-228/06, dated 7 December 2006 (Official Gazette RS, No. 1/07, and OdlUS XV, 84).
[7] Decision No. U-I-390/02, dated 16 June 2005 (Official Gazette RS, No. 62/05, and OdlUS XIV, 58).
[8] Decision No. U-I-24/07, dated 4 October 2007 (Official Gazette RS, No. 101/07, and OdlUS XVI, 74).
[9] By stating this, I, of course, do not wish to underestimate the possible severe consequences that the unconstitutional norms had for the addressees in the above instances.
[10] Courts must not apply implementing acts that are inconsistent with the Constitution – exceptio illegalis (Article 125 of the Constitution).
[11] For the English variant of this principle, see Jason N. E. Varuhas, The Principle of Legality, Cambridge Law Journal, Vol. 79, No. 3, 2020, pp. 578–614.
[12] Decision of the Constitutional Court No. U-I-73/94, dated 25 May 1995 (Official Gazette RS, No. 37/95, and OdlUS IV, 51), Para. 19 of the reasoning.
[13] Decisions of the Constitutional Court No. U-I-123/92 and No. U-I-73/94, Para. 18 of the reasoning.
[14] The only exception is a state of emergency (Articles 92 and 108 of the Constitution). In such an event, when the National Assembly is unable to convene due to a state of emergency or war, the President of the Republic may, on the proposal of the Government, issue decrees with the force of law. Also in such an instance decrees with the force of law cannot be adopted directly by the Government, and even when they are adopted, the President of the Republic must submit them to the National Assembly for confirmation immediately upon it next convening.
[15] The idea of the separation of powers originates in the Age of Enlightenment, beginning with Locke, who was amongst the first to criticise the idea of the king’s power originating from God, and conceptualised the separation of powers (with the power belonging to the people) to the executive and legislative branches. The key idea of the separation of powers was further developed by Montesquieu in his book “Spirit of Laws” (from 1748). Not only did he draw a distinction between the legislative, executive (one can also say administrative), and judicial branches of power, but he also formulated the requirement that these functions must be distributed between different state authorities that are independent of one another. See, e.g., Sharon Krause, The Spirit of Separate Powers in Montesquieu, The Review of Politics, Vol.  62, No. 2, 2000, pp. 231–265, Céline Spector, Montesquieu, Encyclopedia of the Philosophy of Law, Sorbonne, hal-03149778.
[16] The German analogue Rechtsstaat is based on two principles: the principle of legality and the principle of proportionality. See, e.g., Christian Bumke, Andreas Voβkuhle, German Constitutional Law. Introduction, cases and principles. Oxford University Press, New York, 2019.
[17] See, e.g., Jeremy Waldron, Separation of Powers in Thought and Practice?, Boston College Law Review, Vol. 54, No. 2, 2013, pp. 433–468, Richard Bellamy, The Political Form of the Constitution: the Separation of Powers, Rights and Representative Democracy, Political Studies, Vol. XLIV, 1996, pp. 436–456.
[18] As stressed by Marijan Pavčnik (Teorija prava, Prispevek k razumevanju prava [Theory of Law: A Contribution to Understanding Law], 5th revised edition, GV Založba, Ljubljana 2015, p. 79), “[a] state governed by the rule of law is created as a reaction against a state organisation in which the activity of central state authorities is not determined in advance or at least determinable by appropriate general legal acts of the representative body. In continental Europe, the institutions of a state governed by the rule of law were formed as a reaction to a police state (German Polizeistaat). In a police state, the centre of decision-making lies with the state administration, which operates in conformity with the interest of the state (Staatsraison, raison d’état) as the state itself perceives it [...]. Also in a state governed by the rule of law, the state administration can have competences that allow it an appropriate (relatively broad) margin of appreciation, while the condition is that all the essential criteria that enable such appreciation are determined already by a law.”
[19] Decision of the Constitutional Court No. U-I-92/07, dated 15 April 2010 (Official Gazette RS, No. 46/10, and OdlUS XIX, 4), Para. 150 of the reasoning.
[20] Rupko Godec, Upravne norme in upravni akti [Administrative Norms and Administrative Acts], Administrative Collection, Univerza v Ljubljani, Pravna fakulteta, Inštitut za javno upravo, 1993, pp. 155–232.
[21] The question, of course, is whether they can actually be perfect without statutory criteria. In fact, if a law is empty to such a degree that it does not contain clear limitations on and directions for the executive branch of power, it is a question of which criteria could even fill in the assessment of, for instance, the proportionality of an implementing act.
[22] For more on the principle of legality, see Gregor Virant, Načelo zakonitosti delovanja uprave in širina (ohlapnost, nedoločnost) zakonskih pooblastil [The Principle of Legality of the Functioning of the State Administration and the Breadth (Looseness, Indeterminacy) of Statutory Authorisations], Javna uprava, Vol. 35, No. 3, 1999, pp. 467–488.
[23] Decision dated 27 August 2020 (Official Gazette RS, No. 128/20).
[24] What was at issue was Article 1 in the part concerning the prohibition of movement outside the municipality of one’s permanent or temporary residence, the third paragraph of Article 3 in conjunction with the second paragraph of the same Article, the second paragraph of Article 4, and Article 7 of the Ordinance on the Temporary General Prohibition of the Movement and Gathering of People in Public Places and Areas in the Republic of Slovenia and the Prohibition of Movement Outside of One’s Municipality (Official Gazette RS, Nos. 38/20 and 51/20), and Article 1 in the part concerning the prohibition of movement outside the municipality of one’s permanent or temporary residence, the third paragraph of Article 3 in conjunction with the second paragraph of the same Article, the second and third paragraphs of Article 4, and Article 8 of the Ordinance on the Temporary General Prohibition of the Movement and Gathering of People in Public Places and Areas in the Republic of Slovenia and the Prohibition of Movement Outside of One’s Municipality (Official Gazette RS, Nos. 52/20 and 58/20).
[25] This is precisely also how the Austrian Constitutional Court (hereinafter referred to as the VfGH) acted. When reviewing implementing acts, they [i.e. the Austrians] first assessed the question of the constitutionality of the statutory basis, and only once they had established that the act was consistent with the Constitution did they address the question of whether the implementing acts were in conformity with the law. Hence, they were completely aware of the fact that the question of the conformity of the law with the Constitution is primary and that they could only analyse the implementing act after that question had been resolved. See, e.g., the decisions of the VfGH in case No. V 428/2020, dated 1 October 2020, accessible at:
[26] See an interesting discussion on trends that weaken the power of this principle in Nicola Lupo, Giovanni Piccirilli, The Relocation of the Legality Principle by the European Courts’ Case Law: An Italian Perspective, European Constitutional Law Review, 2015, pp. 55–77.
[27] Had we had enough votes for abrogation, we would have also remedied the distinction between those addressees of the legal norm that have already paid fines and those have not (yet) paid them.
[28] Establishing that it was proportionate is conceptually impossible, as demonstrated above.
[29] See the last sentence of paragraph 101 of the Decision: “As a result, courts must not deny the validity of the mentioned implementing regulations as regards relations that arise following the publication of this Decision in the Official Gazette of the Republic of Slovenia due to the unconstitutionality established in this Decision,” [emphasis added by KŠS] from which it logically follows that it will not be possible to claim that the new ordinances violate the principle of legality, yet it will be possible to claim other violations.
[30] The petition of the first petitioner for a review of the constitutionality and legality of the Ordinance on the Temporary General Prohibition of the Movement and Gathering of People in Public Places and Areas in the Republic of Slovenia (Official Gazette RS, No. 30/20) was filed on 24 March 2020. We decided thereon on 13 May 2021.
[31] According to reporting in the daily Dnevnik, during the second wave of the epidemic the Police issued fines worth more than five million euros, see Uroš Škerl Kramberger, Za več kot pet milijonov evrov glob je policija zaračunala v drugem valu epidemije [The Police Have Issued Fines Worth More than Five Million Euros during the Second Wave of the Epidemic], Dnevnik, 25 March 2021, accessible at: https://www.dnevnik.si/1042951889
[32] The joined case No. U-I-79/20 was assigned to me as judge rapporteur on 3 December 2020.
[33] See the dissenting opinion of judge Dr Špelca Mežnar regarding Decision No. U-I-83/20.
[34] In this respect, I concur with those who criticise the work of the Constitutional Court, e.g. Šipec, Miha, Strahopetno sodišče [A Cowardly Court], Pravna praksa, No. 13, 2021, p. 23.
[35] See the Austrian Federal Act on Temporary Measures for the Prevention of the Spread of COVID-19: Bundesgesetz betreffend vorläufige Maßnahmen zur Verhinderung der Verbreitung von COVID-19 (COVID-19-Maßnahmengesetz), accessible at:
https://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=20011073, and the German Federal Act on Protection from Communicable Diseases (hereinafter referred to as the IfSG): Gesetz zur Verhütung und Bekämpfung von Infektionskrankheiten beim Menschen (Infektionsschutzgesetz - IfSG), accessible at:
[36] By an urgent law adopted on 23 March 2020, France declared, in an expedited procedure, a public health state of emergency. The urgent law No. 2020-290 for combating the COVID-19 epidemic (Loi d'urgence pour faire face à l'épidémie de covid-19) amended the Public Health Act, into which a chapter on severe health threats and crises was inserted. This chapter regulated anew that a public health state of emergency (état d'urgence sanitaire) could be declared for the entire state or on a part of its territory if there is a threat to the health of people in view of the nature or degree of severity of the health catastrophe.
[37] “Polarises” would be the wrong word in this context because it would indicate that we are divided into merely two groups. This time, we were divided into at least three groups, if not more. We do know, however, that merely the art of reaching five votes leads to a decision.
 
Number: U-I-79/20
Date: 31 May 2021
 
 
 
 
PARTIALLY CONCURRING, PARTIALLY DISSENTING OPINION OF JUDGE DR RAJKO KNEZ
REGARDING DECISION NO. U-I-79/20, DATED 13 MAY 2021
 
 
 
I Introduction
 
This case, in which the Constitutional Court joined different petitions for the initiation of proceedings to review constitutionality, brought up complex constitutional questions under changing epidemiological conditions. This Decision is groundbreaking. I believe that the Constitutional Court was faced with a difficult and complex task, including questions that were raised for the first time. I see the answers to some of these questions differently than the majority.
 
I did not vote in favour of the main Points of the operative provisions. There are a number of reasons for that. I will address the most important and most complex ones. I focused on three questions: the underlying reasons for establishing the unconstitutionality of two provisions of the Communicable Diseases Act (hereinafter referred to as the CDA),[1] the effect that the mentioned established unconstitutionality of the Act should have on the ordinances that ceased to be in force, and, finally, the constitutional aspects of the issue of informing the public.[2]
 
 
II As regards the underlying reasons for establishing that the Communicable Diseases Act was unconstitutional
 
The Decision established that points 2 and 3 of the first paragraph of Article 39 of the CDA were unconstitutional because the mentioned provisions were not in conformity with the principle of legality.[3] The fact that the executive branch of power (i.e. the state administration) is substantively bound by the Constitution and laws was at the forefront of the decision-making regarding the mentioned provisions of the CDA. The starting points for the assessment in paragraphs 68 through 80 of the Decision were, in my view, the underlying reasons regarding the precision, clarity, and predictability of the statutory provisions that I could not concur with in order to establish an unconstitutionality.
 
Firstly, it is not always easy to answer the question of how precise a law must be in order for it to be impossible to allege that it violates the principle of legality. In legal theory it is also not possible to always give a uniform answer.[4] How precise provisions must be in order to set limitations on the executive branch of power within which the latter can operate such that it does not regulate by itself that which the legislature should regulate (and thereby does not interfere with the separation of powers) depends on, inter alia, the field of regulation and questions as to whether in a certain field of regulation different constitutional rights and fundamental freedoms collide, which rights and freedoms these are, how strong this collision is, and also whether the act regulates situations that are difficult to predict in advance or even unpredictable, and therefore [the act] cannot be precise in predicting the measures. The strictness of the starting points for the assessment regarding at least the mentioned two elements conveys, in my opinion, inappropriate underlying reasons for establishing the unconstitutionality of the Act at issue.
 
At the beginning of the review with reference to the second paragraph of Article 120 of the Constitution, the Decision provides a comparison with decisions of the European Court of Human Rights (hereinafter referred to as the ECtHR) in criminal cases. I can accept that in these cases the rules are stricter, but in the CDA it is not punitive measures that are at issue but measures that arise from a collision of different human rights, including rights with a different status; on the one hand, the positive obligation of the state to protect the lives of people, their health, and the functioning of the health care system[5] is stressed, and on the other, the question of the intensity of an interference with the rights to freedom of movement and association (which include negative and positive dimensions[6]) is at issue. How these human rights and fundamental freedoms collide, when and to what extent the former limit the latter, and how the legislature should determine this limit are questions that I believe we cannot answer with the underlying starting points of the assessment of the principle of legality from criminal law. Only interferences that limit freedom of movement and association are comparable to the interferences known in criminal law, but they are absolutely not the reasons themselves that lead to such interferences. Just because the effect of such measures is similar to criminal measures does not in and of itself entail that they attain the nature of the latter. We have to proceed from the field of regulation as I mentioned above. The nature of these measures is different and they also regulate situations that concern every single inhabitant of Slovenia. They require a response from the community as a whole, not merely of individuals. Above all, the starting point of the measures does not have the strict vertical relation of the precise and emphasised de iure imperii regulation of criminal law, where the state performs criminal prosecution against individuals due to their unlawful conduct.[7] The field of regulation of the CDA is pretty far from what I mentioned, I believe. Therefore, also the starting points for reviewing the measures that limit freedom of movement and association are different. I opine that they should proceed from the mentioned collision of human rights – when the limitation of these rights has a constitutionally admissible objective, i.e. in conformity with the third paragraph of Article 15 of the Constitution, in accordance with which human rights and fundamental freedoms may only be limited by the rights of others and in such cases as are provided by the Constitution.
 
Secondly, in addition to the fact that the source of limitation of both freedoms (of movement and association) follows from the sphere of the exceptionally important human rights to the protection of the life and health of people, including the health care system (which provides a completely different perspective on the justification of an interference with the mentioned two freedoms), the legislature has a second big “problem”, which is reflected in the fact that what is at issue is the regulation of future, unknown, momentary situations concerning communicable diseases that encompass a large number of people and can paralyse the normal functioning of the state and the life therein. Such entails that besides the fact that the field of regulation is delicate in and of itself, the legislature is also facing something unknown. Every time this is so, also the clarity and precision of statutory provisions are difficult to achieve.[8] I opine that there cannot exist identical constitutional criteria for assessing the principle of legality in different fields of regulation.[9]
 
The Constitutional Court has indeed already adopted the position that the statutory authorisation granted to the executive branch of power to adopt an implementing regulation under certain conditions must be all the more restrictive and precise the greater the interference or effect of the law on individual human rights and fundamental freedoms.[10] However, in this respect it must be taken into consideration that from the perspective of the precision of criteria, the requirement imposed on the legislature unavoidably depends on the answer to the question of what the field of regulation is and how tightly connected the field of regulation is with the exercise of other rights that are in collision with the former ones. The legislature must take them into account, and the search for a balance between the colliding rights and thus the determination of the limits at a general and abstract level can transpire to be difficult. This is reflected in particular in instances where unclear future circumstances ([such as] an outbreak of an unknown communicable disease) are concerned and when rights guaranteed directly on the basis of the Constitution are in collision. What must be taken into consideration is precisely what constitutional values require the limitation of an individual human right.[11] The more important these constitutional values are, on the one hand, the more intensive can the limitations of an individual human right be, on the other.
 
Thirdly, I also opine that the length of the epidemic is a special circumstance affecting the review of the constitutionality of the statutory provisions at issue.[12] Not only does a longer-lasting limitation of the rights to freedom of movement and gathering entail an ever more invasive interference with the mentioned rights and with the exercise of other rights, but also the thus far insufficiently clear circumstances in the field of regulation of the protection of the rights determined by Articles 17, 35, and 51 of the Constitution become ever more clarified and known in light of the fact that the disease is, as a general rule, increasingly researched [as time passes]. It is precisely the already recognised characteristics of the field of regulation of the struggle against the spread of a particular disease that enable a greater degree of precision of the regulation of an interference with the rights to freedom of movement and gathering at a general and abstract level of law. Hence, when there are no longer any obstacles to a more determinate regulation of the set of measures and the conditions for their further regulation at the level of implementing regulations, i.e. obstacles that were a result of a gap in how well known the field of regulation was, the constitutional requirements imposed on the legislature in the sense of [the obligation] to precisely determine the mentioned substance and thus to [provide] the executive branch of power a statutory framework for direct interferences with the mentioned two rights are stricter.
 
In fact, a longer lasting communicable disease and the progress of scientific findings thereon change the position of the legislature, which is to regulate in advance on a general and abstract level measures for combating an unknown communicable disease, to the position of regulating an already existing and better known disease.[13] Therefore, the legislature’s duties as regards the requirements concerning the precision of the regulation can be different than before the outbreak of a new and unknown disease and in the initial period of an epidemic or pandemic. Within the framework of a more precise regulation that, in relation to the general regulation, will as a general rule be expressed in the form of a special regulation, in such a situation authorisation can be granted to the executive branch of power to adopt measures that, in conformity with the principle of proportionality,[14] directly limit freedom of movement and gathering. Hence, the role that the National Assembly plays should be more pronounced. It is the National Assembly that must decide on interferences with fundamental rights. We elect deputies and democratic legitimacy proceeds thereafter. Therefore, as the epidemic progresses, the main questions must be regulated by the National Assembly. I could have supported a deficient regulation in the CDA (with the above-mentioned underlying reasons for the Decision),[15] in particular because once the epidemic has lasted for a longer period of time the situation must be looked at differently than at the outbreak of the epidemic.[16] Namely, in such a situation the legislature’s obligations as regards the principle of legality are not identical to those in the initial phase of the appearance of a new communicable disease. In the beginning, greater discretion was possible (by taking into account the general principle of proportionality) and it was urgent to resolve the situation in the first wave directly and by means of practices deemed to be the best at that time (Einschätzungsprärogative – to make a binding decision as regards the appropriateness and necessity of a certain measure to attain a legitimate goal).[17] 
 
With the development [of events] and findings (as I described above), this margin [of appreciation] in the actions of the executive branch of power narrows. It also narrows due to passivity. As stressed in multiple places in Decision No. U-I-83/20, which positioned its assessment in the initial period of an epidemic (in the beginning of the first wave), decision-making after a full year of an epidemic requires the legislature to take into consideration the mentioned development, which enables it to act with greater precision,[18] but what kind of effects are prescribed for the executive regulations adopted in that period of time to implement direct measures also must be taken into account.[19]
 
 
As regards the legal effects of the unconstitutionality of the ordinances
 
One must proceed from the fact that the Act has not been abrogated and remains in force. When a law is abrogated, it no longer has any effect (either immediately or following a time period imposed by the Constitutional Court). At that point, the effect of the nonexistence of the law has consequences for implementing acts. These acts no longer have a legal basis. And vice versa. When a law (still) remains in force, also implementing acts [based thereon] remain in force. Why is this finding not the same with respect to implementing acts that ceased to be in force? At this point, the question of the effects of a declaratory decision is raised.
 
This question has already been addressed in the case law of the Constitutional Court.[20] In the case at issue I advocated that the implementing acts should share the fate of the decision on the Act [i.e. the CDA]. If the Act was not abrogated, why should the legal consequences regarding ordinances (which in fact are no longer in force, but remain applicable) be any different? Since the Act remains in force, such entails that also the (still) existing rules in it that direct implementing acts and pose a framework for them (albeit incompletely; this is why an unconstitutionality was established) remain in force. Such entails that the implementing acts in question still have the same, and valid, legal basis, yet on the basis of this Decision they lost their effect without a substantive assessment. I advocated a position that was different from that of the majority, one that would determine the manner of implementation such that these ordinances remain applicable in procedures.
 
I namely opine that the challenged provisions of the ordinances were implemented for limited periods of time after an epidemic was declared for the first time, regarding a communicable disease that at the time was largely unresearched. On the basis of points 2 and 3 of the first paragraph of Article 39 of the CDA, two human rights were limited in order to fulfil the positive obligations of the state. In such circumstances, protection of the rights determined by Articles 17 and 35 and the first paragraph of Article 51 of the Constitution had to be ensured. Had the Constitutional Court decided on the constitutionality of such implementing regulations while they were in force, it would not have abrogated them merely because the legislature had inadmissibly failed to regulate the substantive statutory framework for limiting freedom of movement and gathering. Immediate abrogation would namely cause the cessation of the validity of perhaps appropriate, necessary, and in the narrower sense proportionate limitations of two human rights by which a constitutionally admissible objective was pursued – to protect the health and lives of people. By immediately abrogating such regulations we would also have caused, due to the described gap in the CDA, i.e. at the level of statutory regulation, the state to be unable to fulfil its positive obligations as regards preventing the spread of a communicable disease, due to which irreparable adverse consequences could arise for these constitutional values, which would entail an even more unconstitutional situation.[21]
 
In such instances, the Constitutional Court decides to abrogate an implementing regulation in force with suspensive effect.[22] These same reasons should have led the Constitutional Court to determine that the unconstitutionality of the challenged provisions of the ordinances (which is limited to the deficiency regarding the principle of legality and does not concern their substantive review) would have an effect comparable to the abrogation of a regulation with suspensive effect. Therefore, in accordance with the principle ad maiorem ad minus, the established unconstitutionality would only have declaratory effect and the manner of implementation would have legal effects comparable to the legal effects of abrogation with suspensive effect. In accordance therewith, in possible individual procedures in which the mentioned provisions of the ordinances would have to be applied, they would be applied regardless of their established unconstitutionality.[23]
 
In such manner, until the established unconstitutionality of the CDA is remedied, in possible pending procedures, invalid implementing regulations – those that are inconsistent with the Constitution as an automatic consequence of a gap at the level of legislative regulation – would not cease to apply. [Instead,] their purpose of protecting an important value would be observed (despite the inconsistency of the Act). In fact, measures had to be adopted in order to prevent the epidemic from spreading. Despite the gap in the CDA, the possibility of further regulation by implementing regulations had to be preserved. I opine that an equivalent deficiency of a law cannot result in different consequences for the implementing regulations based thereon depending on whether this concerns a regulation at the level of implementing regulations [adopted] (i) after or (ii) before the Decision of the Constitutional Court. Hence, the Decision results in two regimes as regards the effects of the ordinances – the ordinances [adopted] before the Decision of the Constitutional Court and the ordinances [adopted] after the Decision of the Constitutional Court, all while the Act substantively remained the same. The first group of ordinances has no effects, and I see no reasons for the second group to not have effects.[24]
 
Such an approach also leads to the different treatment (of perhaps identical or similar content) of the ordinances that have already ceased to be in force and of the ordinances that are still in force, with regard to which, as I stress, the substance of the Act remained identical and was not abrogated. This is also the reason why I cannot concur with the position that these ordinances only had an effect in the past.[25] It is not irrelevant that the above mentioned two groups of ordinances also result in different legal situations and positions of individuals, which does not at all contribute to ensuring trust in the measures, which, however, were necessary to combat the epidemic. 
 
I stress that these measures were intended to protect the health and lives of people, i.e. values that hold a special place in the Constitution. In my opinion, the values that they pursued are also higher than the automatic effect of legality as we know it in ordinary circumstances.[26] In the same breath, it is imperative for me to add that that does not entail denying the importance of the principle of legality as one of the fundamental principles of the regulation of the relationship between the legislative and executive branches of power. It is only a question of the effect of this principle in a situation such as that in the case at issue where the law was not abrogated and where acting in a reserved manner is appropriate in the circumstances of an epidemic (wherein it is necessary to adopt such measures so as to contain the epidemic).[27]
 
The Decision, even such as it is, should not give the public the impression that all the measures of the past year were erroneous. Such would namely mean that the part of the population that has already been reluctant to accept the measures and has been sceptical of them, or that has opposed them, would become even more antagonistic towards them.[28],[29] This is my opinion even though I advocated a different interpretation of the effects of the ordinances that are no longer in force, so that the ordinances would share the fate of the Act, which was found to be unconstitutional (which would weaken the mentioned message of the Decision).
 
However, all the reasons mentioned above in favour of the ordinances continuing to produce effects do not entail that the Constitutional Court would not be able to abrogate, in individual cases, (substantively) unconstitutional provisions by its decisions. Hence, I do not address situations wherein an unconstitutionality of ordinances would be established on the basis of their substantive review. In such situations, the issues regarding abrogation and the effects thereof are different.
 
 
As regards informing the public
 
Also with respect to the question of informing the public, my views are different than those of the majority. It is truly indisputable that the Government must obtain and impart to the public information and scientific data on communicable diseases and to act on the basis thereof. Such enables individuals to promptly adapt their behaviour to the threats that result from the spread of a communicable disease. In contrast to the Decision, I do not classify [the question of] how the Government obtains information and in what manner it organises itself into points 2 and 3 of the first paragraph of Article 39 of the Act (to which the established unconstitutionality refers), but into the second paragraph of Article 39 of the CDA, which determines the obligation to inform the public. In the circumstances of an epidemic, this has great significance and the Act does not determine its substance. Also the statutory regulation of access to public information is not of help in that. By expressly requiring, in the second paragraph of Article 39 of the CDA, that the public be informed of the measures referred to in the first paragraph of that article, the CDA entails a special regulation, but does not require either that the public be regularly informed of the circumstances and expert positions that are important for obtaining information on the characteristics of an individual communicable disease that would enable people to adapt their conduct in advance, or to present more detailed reasons for individual measures based on all necessary data that ensure transparency in adopting measures and on such basis enable general public supervision over the functioning of the executive branch of power. Therefore, I opine that by the second paragraph of Article 39 of the CDA the legislature failed to fulfil the constitutional requirement as to ensuring the effective exercise of the right to obtain information of a public nature when the state has to fulfil the positive obligation to protect the health and lives of people. However, as I have explained herein, my opinion, which contrasts with the position in the Decision, is that the second paragraph of Article 39 of the CDA is thereby inconsistent with the second paragraph of Article 39 of the Constitution.
 
I also add thereto the tight connection between informing the public and the trust of the community – i.e. of all inhabitants – which during an epidemic transpires to be very important. Establishing trust is particularly important with respect to those communicable diseases that are mostly transmitted in manners that individuals cannot easily perceive. When the danger is not directly perceivable, that can result in a lower degree of awareness of a direct threat to life and health, and thus can also affect the degree of trust in limitation measures. An epidemic therefore requires everyone to take action, not only individuals. Due to the infectiousness of a disease, measures obtain appropriate power only when they are commonly accepted, i.e. when the community as such reacts appropriately. In order for this to happen, it is necessary to observe the legal order. That cannot be achieved merely by imposing orders; rules must reflect the collective acceptance of the rules and values on which they are based. The law and legal certainty are necessarily interdependent; trust in the legal system defines this interdependency.[30]
 
Therefore, in order to elicit an appropriate reaction from the public, not only the nature of the measures is important, but also what information the authorities in power impart to the public and how comprehensive such information is. In addition to stating the reasons for measures and explaining the objectives that the measures pursue, the information must also include objective information on the consequences of the measures, in particular when the consequences are expectedly unwelcome due to their limiting effect. The exceptional preventive importance of the measures for combating the spread of a communicable disease imposes on the competent authorities the argumentative burden of explaining the adopted measures and the consequences they cause, be it either the expected consequences that are the objective of the adopted measures, or the consequences that cause discomfort or opposition due to their restrictive nature. Only in such a manner is it possible to substantiate in the public the appropriateness, necessity, and proportionality in the narrower sense of the measures in the given circumstances of the spread of a communicable disease.
 
 
Conclusion
 
Prior to the emergence of the COVID-19 epidemic, numerous questions were unanswered, inter alia, the intensity of the spread of infections was not known, what is needed during treatment, how long a patient stays in hospital, what the limitation of different human rights means also for those individuals who do not get sick, etc. In the initial stage of the epidemic, it was not possible to provide answers to all of these questions, nor did all these questions arise. The exceptional nature of the situation required a swift and effective response from the executive branch of power. It is also not disputable that both the Slovene executive branch of power and the governments of other states found themselves in a situation wherein their respective legislatures did not regulate with precision the measures or the scope of measures that are necessary and appropriate for combating the epidemic. The CDA has a framework that in the initial period of the epidemic indicated the possible directions measures could take. The various measures envisaged in the CDA are partially ranked, which also creates criteria for proportionality. As the epidemic lasts, as the intensity of the long-lasting measures that limit human rights in and of itself increases, and as the scientific findings increase, the role of the legislature is significantly different than its role before the epidemic or in its initial phase. As I am attempting to explain in this separate opinion, had the underlying reasons [for the Decision] been different and closer to the nature of the necessary actions that should have been taken in the field of communicable diseases, I could have supported the finding that the CDA is unconstitutional. Both the operative provisions and the reasoning of the Decision are binding, and the underlying reasons therein differ from the positions presented herein. Due to the described dichotomy, I was unable to vote in favour of the decision to abrogate the ordinances that have already ceased to be in force.
 
 
Dr Rajko Knez
                                                                                   Judge
 
 
                                                                                  
 
[1] Official Gazette RS, No. 33/06 – official consolidated text, 49/20, 142/20, 175/20, and 15/21.
[2] An alternative draft of the Decision was presented to the plenary composition of judges in which also the positions referred to in this separate opinion are advocated. Some paragraphs of the opinion are also (partially) taken from that draft.
[3] For more on this fundamental principle, which is determined in particular by the second paragraph of Article 120 of the Constitution, see: R. Pirnat, in: M. Avbelj, Komentar Ustave Republike Slovenije [Commentary on the Constitution of the Republic of Slovenia], Nova Univerza, Evropska pravna fakulteta, Nova Gorica 2019, pp. 634 et seq.
[4] A. Barak, Proportionality. Constitutional Rights and Their Limitations, Cambridge University Press, Cambridge 2012, pp. 110–113.
[5] In the event of the emergence of an epidemic of a communicable disease that could seriously jeopardise the health or even life of people, the too slow or inadequate response of state authorities would be inconsistent with the positive obligations of the state to protect the right to life (Article 17 of the Constitution), the right to physical and mental integrity (Article 35 of the Constitution), and the right to health care (the first paragraph of Article 51 of the Constitution).
[6] See the commentary on Articles 32 and 42 of the Constitution: J. Letnar Černič (Article 32) and K. Vatovec (Article 42), in: M. Avbelj, op. cit., pp. 309 and 411–412.
[7] This collision is by its nature horizontal and essentially interferes with positions between individuals, while the criminal aspect is by its nature close to a vertical relation between the state and the perpetrator of a criminal offence. The horizontal nature is not completely excluded from this perspective because also criminal offences concern a horizontal relation between the perpetrator and the victim. However, this relation is not at the forefront or the centre; the question concerning the principle of legality is distant from this relation.
[8] As regards the element of an unknown future, see also Judgment of the German Federal Constitutional Court No. 1 BvR 357/05, dated 15 February 2006, which abrogated the provision of the Safety of Airspace Act (Luftsicherheitsgesetz), which enabled an airplane to be shot down in the event of a terrorist act. The topic is not at all connected with the epidemic, rather a position regarding an element of the unknown future was expressed. It namely follows from the reasoning of the Court that the legislature cannot regulate precisely and in advance the types of circumstances that will exist directly on an airplane. Such [predicted circumstances] merely entail speculation that can lead to an erroneous decision. Hence, enabling in advance certain measures that interfere with fundamental human rights in circumstances that are not precisely predictable in advance and which may be speculative is incompatible with the Basic Law (Grundgesetz) [i.e. the constitution].
[9] A. Barak, op. cit., pp. 107 et seq.
[10] Decision of the Constitutional Court No. U-I-92/07, dated 15 April 2010 (Official Gazette RS, No. 46/10, and OdlUS XIX, 4), Para. 150 of the reasoning.
[11] Also the ECtHR does not always consider how something is prescribed by a law in an identical manner. Certainly, the precision of a law regulating, for instance, procedural guarantees in criminal proceedings is different than that of a law regulating, for instance, freedom of expression, where there is an unlimited number of possible situations and circumstances that the legislature cannot predict.
[12] Facing the COVID-19 communicable disease is such an instance. From the past, we know of the example of the epidemic or rather pandemic of the Spanish flu, which lasted several years.
[13] In such light, as time passes and events unfold, an unpredictable, perhaps even completely unknown, and very communicable disease becomes better known, more precise, and also more predictable for the legislature through scientific findings, as well as practical findings on the effectiveness of certain measures and the responsiveness of the population, etc. A great deal of unverified information as regards the characteristics, danger level, infectiousness, etc., can be verified after a certain amount of time.
[14] The general principle of proportionality, which is immanent in a state governed by the rule of law, is binding on all state authorities. Cf. L. Šturm in: L. Šturm (Ed.), Komentar Ustave Republike Slovenije [Commentary on the Constitution of the Republic of Slovenia], Fakulteta za podiplomske državne in evropske študije, Ljubljana 2002, p. 55.
[15] The measures are indeed far-reaching (not only because of how long they last) and would require parliamentary discussion, a parliamentary compromise, and a balance between legitimate interests.
[16] Comparatively, one can assess that soon after the outbreak of the epidemic some legislatures adopted more precise rules within the framework of which the executive branch of power could operate (e.g. in Austria on 15 March 2020). They either regulated such by a general act (such as Germany in Gesetz zur Verhütung und Bekämpfung von Infektionskrankheiten beim Menschen (Infektionsschutzgesetz - IfSG) or they adopted a special law, a lex specialis only for the COVID-19 epidemic (such as the Austrian Bundesgesetz betreffend vorläufige Maßnahmen zur Verhinderung der Verbreitung von COVID-19 (COVID-19-Maßnahmengesetz – COVID-19-MG) StF: BGBl. I No. 12/2020 (NR: GP XXVII IA 396/A AB 102 S. 16. BR: AB 10287, p. 903, with amendments).
[17] As I stated in my separate opinion regarding Decision No. U-I-83/20, dated 27 August 2020 (Official Gazette RS, No. 128/20), in that period it was appropriate to apply the principle of cautiousness.
[18] The Decision in case No. U-I-83/20 stresses in multiple places that it focuses on the temporal dimension, when the disease appeared for the first time and when the beginning of the spread of that disease was concerned (i.e. the first wave, Paras. 46 and 51). In my separate opinion (in Section 2), I explained that the adopted decision of the Constitutional Court must be understood in light of the initial phase of the epidemic and pandemic, and the decision did not constitute a precedent that could be simply and completely reproduced with respect to future measures.
[19] The mentioned characteristics of the field of regulation can, in view of their nature, also require the use of indeterminate legal terms and general clauses. Such a legislative technique is not in and of itself constitutionally disputable. What is key is that the legislature regulate the essential questions concerning the field of regulation that resolve the collision of the positions protected by the rights in collision, and that it does not leave the decision thereon to the executive branch of power. Therefore, the requirements as to precision and consequently more detailed statutory regulation that exceed the mentioned key questions can be milder in view of special characteristics when regulating individual fields. Such a situation is when it is possible to predict – precisely due to the mentioned specificities – that the measures intended to protect the legislative objective can be very diverse, and also when it is expected that the circumstances that are the subject of regulation and that are unknown or largely unknown in advance can also change quickly. Cf. C. Bumke and A. Voßkuhle, German Constitutional Law. Introduction, Cases, and Principles. Oxford University Press, Oxford 2019, p. 353.
The above-mentioned in particular holds true in the field of the prevention of communicable diseases, which are not always known in advance, when it is not known what type of concrete measures are necessary, and when it is also not possible to overlook the fact that the circumstances can change very quickly, due to which also the measures must be rapidly adjusted in order for the objective of protecting health and lives to even be attainable, nor the fact that a completely new, very communicable disease can also appear whose characteristics and manner of spreading are at the very beginning virtually unresearched both scientifically and medically. Irrespective of that, the legislature must adopt in advance an abstract and general regulation that will fulfil the obligation of the state to also in such circumstances respond quickly, effectively, and operatively by exercising its positive obligation to protect the rights determined by Articles 17 and 35 and the first paragraph of Article 51 of the Constitution.
[20] Declaratory decisions of the Constitutional Court are not regulated by the Constitution but by Article 48 of the Constitutional Court Act, which is modelled on the German regulation (Official Gazette RS, Nos. 64/07 – official consolidated text, 109/12, and 23/20). However, the Constitutional Court Act does not regulate their effects. As regards this question, see the Decision in case No. U-I-313/98 (Decision dated 16 March 2000, Official Gazette RS, No. 33/2000, and OdlUS IX, 60), and the separate opinions of judges Testen and Čebulj. See also Decision No. U-I-90/05, dated 7 July 2005 (Official Gazette RS, No. 75/05, and OdlUS XIV, 66), and the separate opinion of judge Ribičič. Prior to that, in case No. U-I-168/97 (Decision dated 2 July 1997) the Constitutional Court decided that the previous declaratory decision (No. U-I-18/93, dated 11 April 1996 (Official Gazette RS, No. 25/96, and OdlUS V, 40), with regard to which the time limit for remedying the unconstitutionality at issue was not observed, does not entail that the law ceased to be in force as a result (and added that it could not abrogate the provisions at issue because abrogation would excessively interfere with the constitutionally protected rights of others, due to which, in accordance with the constitutional principle of proportionality, it was necessary to decide to temporarily keep the unconstitutional norms in force). In case No. Up-624/11, dated 3 July 2014 (Official Gazette RS, No. 55/14, and OdlUS XX, 36), the Constitutional Court also explained the meaning of the manner of implementation with respect to declaratory decisions: The Constitutional Court Act does not determine what legal effects the manner of implementation by which a certain question is temporarily legally regulated should have in concrete (judicial) proceedings. The manner of implementation undoubtedly has an effect on the legal relations that will only arise after the decision of the Constitutional Court becomes applicable. Whether and how the manner of implementation has an effect on pending judicial proceedings (either non-final or final) depends on the factual and legal circumstances of concrete proceedings. In accordance with the established position of the Constitutional Court, a regulation determined by the manner of implementation has the same legal power as a law. Such entails that the interpretation and the implementation of such regulation are subject to the established methods of legal interpretation that otherwise apply to the interpretation and implementation of laws, and also to certain fundamental constitutional principles that represent constitutional limitations with regard to the interpretation of laws (e.g. the prohibition of retroactive effects determined by Article 155 of the Constitution). Failure to observe a determined manner of implementation can thus primarily entail a violation of “statutory” law, but can also reach the level of a violation of the Constitution.
For more on the effects of declaratory decisions, see also S. Nerad, Interpretativne odločbe Ustavnega sodišča [Interpretative Decisions of the Constitutional Court], Uradni list Republike Slovenije, Ljubljana 2007, pp. 271. et seq.
[21] Also the German Federal Constitutional Court has known for decades the possibility of merely establishing the unconstitutionality of implementing acts. For example, the decision in case No. 1 BvR 1137/59, 278/60, dated 13 December 1961, (BVerfGE 13, 248) merely established that an implementing decree that in the meantime had ceased to be in force was unconstitutional, but did not have an abrogating effect because otherwise the legal objective that the filed legal remedy pursued would not be attained. The [German] Constitutional Court merely decided how a situation in conformity with the Basic Law (Grundgesetz) should be established.
[22] Cf. Decisions No. U-I-146/01, dated 25 September 2003 (Official Gazette RS, No. 97/03, and OdlUS XII, 78), Point 4 of the operative provisions and Para. 14 of the reasoning; No. U-I-245/05, dated 7 February 2007 (Official Gazette RS, No. 15/07, and OdlUS XVI, 12, Point 2 of the operative provisions and Para. 10 of the reasoning); No. U-I-37/10, dated 18 April 2013 (Official Gazette RS, No. 39/13, Point 2 of the operative provisions and Para. 24 of the reasoning); and No. U-I-150/15, dated 10 November 2016 (Official Gazette RS, No. 76/16 and OdlUS XXI, 29, Point 6 of the operative provisions and Para. 47 of the reasoning). 
[23] In this respect, I do not think the question of exceptio illegalis is pertinent. By deciding that a certain implementing act is unconstitutional, the Constitutional Court resolves the doubt that courts would otherwise have. If the Constitutional Court also decides that the implementing act shall continue to apply (and until when), courts shall continue to apply this implementing act (in conformity with the reasons on which the decision of the Constitutional Court is based).
[24] This is how I understand paragraph 108 of the Decision.
[25] In paragraph 108, the Decision states: “The sole effect that these ordinances still have is that they apply for disputes concerning the questions that they regulated when they were in force. However, such application has no effect on the spread of COVID-19 and cannot contribute to the protection of the health and lives of people. Hence, the Constitutional Court had no reason to not abrogate or annul the challenged ordinances due to the finding that they were inconsistent with the Constitution.”
[26] The Constitution must be flexible enough for the automatic nature of the consequences and the rigidity of a violation of the principle of legality to not always attain the legally completely substantiated (necessary and higher) objective. Quite the contrary.
[27] This is one of the biggest challenges for humanity since the Second World War. Similar is stated by M. Bošnjak, Varstvo človekovih pravic v času pandemije [Protection of Human Rights during a Pandemic], Dignitas: revija za človekove pravice, No. 87/88 (2021), p. 10.
The measures were urgently necessary. They pursued an exceptionally important objective, namely the protection of the life and health of people and ensuring the functioning of the health care system. To date, more than 14 million cases have been confirmed in total, more than 3 million deaths, and 223 affected states. In addition to these exceptionally tragic data, a consequence of the pandemic and the measures for combating the pandemic adopted by governments all over the world is a social and economic crisis. For the European Union, this is the second big social and economic crisis in ten years, with the first financial crisis of the euro area (2010) eventually also causing a change in its institutional manner of functioning.
[28] As the Constitutional Court has already stressed in the reasoning of Decision No. U-I-83/20 (Para. 43), individuals also have a duty towards each other and the community they are a part of. When a person renounces his or her freedom by observing limitations, he or she at the same time, precisely proceeding from responsibility towards other people, protects other particularly vulnerable groups of people whom a communicable disease could severely threaten.
[29] My opinion is that it is not true that the ordinances have already attained their objective. The consequences of the abrogation are still connected with the ordinances that are in force at this moment or that will still be adopted. In this respect, I do not merely think of the mentioned negative message and how the public will understand that it must observe, for instance, a measure equal to that that the majority abrogated, albeit in a valid ordinance and in ordinances adopted in the future. What effect this will have on the trust of the community [in the authorities] (because communicable diseases cannot be overcome only by [actions of] individuals, but collectively) is one of the questions that indicate that the effects are not limited merely to the past.
[30] Trust is also affected by the decency of public communication. This is also an aspect of communication, which is in fact not a constitutional category and cannot be imposed by law; instead, it is a subjective characteristic of every [communicating] individual.
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
statute executive regulation
Applicant:
Žan Pajtler, Maribor and others
Date of application:
24.03.2020
Date of decision:
13.05.2021
Type of decision adopted:
decision
Outcome of proceedings:
establishment – it is inconsistent with the Constitution/statute rejection
Document:
AN04042