U-I-445/20, U-I-473/20

Reference no.:
U-I-445/20, U-I-473/20
Objavljeno:
Official Gazette RS, No. 195/20, Official Gazette RS, No. 179/20, Official Gazette RS, No. 167/21 and OdlUS XXV, 25 | 16.09.2021
ECLI:
ECLI:SI:USRS:2021:U.I.445.20
Act:
Ordinance on the Temporary Prohibition of the Gathering of People in Educational Institutions and Universities and Independent Higher Education Institutions (Official Gazette RS, No. 152/20), points 3 and 5 of the 1st para. of Art. 1

Ordinance on the Temporary Prohibition of the Gathering of People in Educational Institutions and Universities and Independent Higher Education Institutions (Official Gazette RS, No. 181/20), points 3 and 5 of the 1st para. of Art. 1

Ordinance on the Temporary Prohibition of the Gathering of People in Educational Institutions and Universities and Independent Higher Education Institutions (Official Gazette RS, Nos. 183/20 and 190/20), points 3 and 5 of the 1st para. of Art. 1

Order on the Temporary Form of Performing Educational Work in Educational Institutions (Official Gazette of the Republic of Slovenia, No. 181/20)
Operative provisions:
The following were inconsistent with the Constitution:
–  Points 3 and 5 of the first paragraph of Article 1 of the Ordinance on the Temporary Prohibition of the Gathering of People in Educational Institutions and Universities and Independent Higher Education Institutions (Official Gazette of the Republic of Slovenia, No. 152/20);
–  Points 3 and 5 of the first paragraph of Article 1 of the Ordinance on the Temporary Prohibition of the Gathering of People in Educational Institutions and Universities and Independent Higher Education Institutions (Official Gazette of the Republic of Slovenia, No. 181/20);
–  Points 3 and 5 of the first paragraph of Article 1 of the Ordinance on the Temporary Prohibition of the Gathering of People in Educational Institutions and Universities and Independent Higher Education Institutions (Official Gazette of the Republic of Slovenia, Nos. 183/20 and 190/20); and
– Order on the Temporary Form of Performing Educational Work in Educational Institutions (Official Gazette of the Republic of Slovenia, No. 181/20), insofar as it applied to schools and educational institutions for children with special needs.
 
The finding from the preceding Point of the operative provisions shall have the effect of abrogation.
 
Abstract:
»Publisher's Note: This is a summary that has been prepared for informational purposes only.«
 
The Validity of Regulations and Their Publication during the COVID-19 Epidemic
 
In partial Decision and Order No. U-I-445/20, dated 3 December 2020 (Official Gazette RS, No. 179/20), the Constitutional Court decided on the petition of two minor children attending primary school for children with special needs. They challenged the regulation that, during the COVID-19 epidemic, prohibited gatherings in educational institutions and determined that educational work be temporarily carried out at a distance. The petitioners disputed that, on the basis of the mentioned regulation, educational work was to be carried out at a distance also for children with special needs.
 
The measures in question were adopted by the challenged Ordinance Temporarily Prohibiting Gatherings of People in Educational Institutions and Universities and Independent Higher Education Institutions. Its validity was limited to seven days following its publication. The Government decided to extend the validity of the measures determined by the relevant Ordinance three times. The Constitutional Court established that by adopting the orders the Government determined in an original manner the extended validity of the measures referred to in the Ordinance. By so doing, it regulated in an abstract manner the legal position of an indefinite number of the legal entities and natural persons to whom such measures applied (educational institutions, and particularly the pupils attending them). This entails that, in terms of content, the mentioned orders of the Government were regulations. The Constitutional Court namely considers any act that contains general and abstract legal norms regulating the rights and obligations of legal entities or any act that contains norms that cause external legal consequences (so-called external effects) to be a regulation.
 
The Constitutional Court emphasised that, in accordance with the Constitution, regulations must be published before they enter into force. A regulation enters into force on the fifteenth day after its publication, unless otherwise determined in the regulation itself. State regulations are to be published in the official gazette of the state. The Constitutional Court established that the orders of the Government in question were not published in the Official Gazette of the Republic of Slovenia and decided that as a consequence they could not have entered into force. This circumstance also affected the validity of the measures determined by the Ordinance.
 
Due to the closure of schools, an order of the minister competent for education was also adopted which determined that, in light of the deteriorated epidemiological situation, educational work in primary and music schools was to be temporarily carried out at a distance. The Constitutional Court explained that the legislature left it to the minister competent for education to decide whether educational work was to be carried out at a distance. The contested order of the minister therefore entailed an original decision of the minister regarding carrying out education at a distance. By so doing, it regulated in an abstract manner the legal position of an indefinite number of the legal entities and natural persons to whom such measures applied. The contested order of the minister was thus by its nature a regulation as well. The Constitutional Court noted that a regulation can enter into force only if it is published in an appropriate manner. Since the contested order of the minister was not published in an appropriate manner, the Constitutional Court held that it had not entered into force and its application was not allowed.
 
In view of the fact that the Constitutional Court established that there was no appropriate legal basis for the temporary prohibition of gatherings in educational institutions in which such measures were deemed to be extended by invalid government orders, such organisations should have been reopened immediately. As the Constitutional Court was aware that the epidemiological situation in the country might not yet permit gatherings in such large numbers and that certain guidelines and organisational adaptations might be necessary for these organisations to reopen, it determined the manner of implementation of its decision. It decided that the adopted decision would apply only after the expiry of a three-day period following its publication in the Official Gazette of the Republic of Slovenia.  By so doing, it allowed sufficient time for the authorities competent to decide on the closure of educational institutions and competent to order that education be carried out at a distance to once again assess whether such measures are scientifically justified and on the basis of such assessment respond in an appropriate manner and order whatever might be necessary for educational work to resume in the relevant institutions.
 
 
The Temporary Prohibition of the Gathering of People in Primary Schools and Educational Institutions for Children with Special Needs and the Performance of Educational Work at a Distance
 
In Case No. U-I-445/20, U-I-473/20 (Decision dated 16 September 2021, Official Gazette RS, No. 167/21), upon petitions of children with special needs, the Constitutional Court reviewed several ordinances of the Government and an order of the Minister of Education by which, during the COVID-19 epidemic in the period from the end of October 2020 until the beginning of January 2021, the gathering of people in primary schools and educational institutions for children with special needs was temporarily prohibited, and the performance of educational work at a distance was ordered in these institutions.
 
The Constitutional Court established that the challenged regulation, even though it also included the measure of distance learning, entailed an interference with the right of children with special needs to education and training for an active life in society (the second paragraph of Article 52 of the Constitution). The Constitutional Court specifically underlined that during the validity of the challenged regulation children with special needs were, as a general rule, completely deprived of special, i.e. therapeutic, treatments and of social contacts, which they are otherwise provided in educational institutions.
 
The Constitutional Court reviewed the challenged regulation from the perspective of its conformity with the principle of legality determined by the second paragraph of Article 120 of the Constitution. In the case at issue, implementing regulations interfered in an originary manner with the right of children with special needs to education and training determined by the second paragraph of Article 52 of the Constitution. The Constitutional Court established that the challenged implementing regulations were based on a statutory regulation (point 3 of the first paragraph of Article 39 of the Communicable Diseases Act and the first paragraph of Article 104 of the Act Determining Temporary Measures to Mitigate and Remedy the Consequences of COVID-19) that did not entail a sufficient substantive basis for the adoption thereof and is inconsistent with the second paragraph of Article 120 of the Constitution. Consequently, the Constitutional Court decided that also the challenged implementing regulations were inconsistent with the second paragraph of Article 120 of the Constitution.
 
The Constitutional Court further reviewed the challenged regulation from the perspective of its consistency with the second paragraph of Article 52 of the Constitution, which is a special provision in relation to the right to education and schooling determined by Article 57 of the Constitution and regulates the right of children with special needs to education and training.
 
It stressed that this right guarantees children with special needs special protection in the field of education, which also applies during a time of crisis in society, such as the period of the COVID-19 communicable disease epidemic. Also in such circumstances, the state must take special care to ensure that the right of children with special needs to education and training is not disproportionately affected. The Constitutional Court clarified that the scope of the right determined by the second paragraph of Article 52 of the Constitution includes not only ensuring the education of children with special needs in the strictest meaning of the word, namely in the sense of acquiring the classical knowledge set out in school curricula. The right of children with special needs to the provision of various complementary activities to basic education, which, according to the opinion of experts, are indispensable for their fullest possible development or for the retention of the skills and abilities they have already acquired, must also be considered as part of the right determined by the second paragraph of Article 52 of the Constitution. Such includes different types of therapy or special treatment, such as physiotherapy, occupational therapy, speech therapy, and psychological treatments, which can be even more important for these children than the learning process itself. In addition, the right of children with disabilities to social and emotional learning, in the sense of developing their social skills or learning to cope effectively with peer situations, which is achieved by ensuring that these children have social contact with other persons and, in particular, with their peers, must also be included in the scope of the second paragraph of Article 52 of the Constitution. The development of their full potential, which is the purpose of their right to education and training, is also ensured in such manner.
 
In the assessment of the Constitutional Court, the challenged measures of the prohibition of the gathering of people in educational institutions for children with special needs and the distance learning and training of these children pursued the constitutionally admissible goal of protecting the health and lives of people who are threatened by the COVID-19 communicable disease. The two measures were also appropriate and necessary.  However, they were not proportionate in the narrower sense. In fact, in the assessment of the Constitutional Court, the negative effects of the general closure of educational institutions for children with special needs on the exercise of the right of these children to education and training were greater than the benefits that the performance of these measures could have on protection of the health and lives of people who are threatened by the COVID-19 communicable disease. The challenged regulation thus entailed a disproportionate interference with the right of children with special needs determined by the second paragraph of Article 52 of the Constitution. In that context, the Constitutional Court underlined that such can only hold true under the assumption that, had these educational institutions remained opened, measures by which the negative effects of the continued operation of these institutions on the spread of the epidemic could be mitigated would have been sufficiently observed, and that, as the educational institutions would have remained opened, the individuals for whom or for whose family members an infection with the SARS-CoV-2 virus could be expected to entail a heightened risk of the occurrence of severe health complications would have been appropriately protected.
Password:
1.5.51.1.21 - Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - In abstract review proceedings - Finding that a regulation.
1.5.51.1.21.2.1 - Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - In abstract review proceedings - Finding that a regulation - Was not in conformity with the Constitution/treaty/statute - Effect of annulment.
5.4.54 - Fundamental Rights - Economic, social and cultural rights - Rights of Disabled Persons (52).
3.9 - General Principles - Rule of law.
3.13 - General Principles - Legality.
3.16 - General Principles - Proportionality.
4.6 - Institutions - Executive bodies.
1.5.5.1 - Constitutional Justice - Decisions - Individual opinions of members - Concurring opinions.
1.5.5.2 - Constitutional Justice - Decisions - Individual opinions of members - Dissenting opinions.
Legal basis:
Arts. 52.2, 120, Constitution [CRS]
Art. 47, Constitutional Court Act [CCA]
Note:
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Document in PDF:
The full text:
U-I-445/20
U-I-473/20
16 September 2021
 
 
 

DECISION

 
At a session held on 16 September 2021 in proceedings to review constitutionality and legality initiated upon the petition of A. B., from C., a minor, represented by his legal representative Č. D., from C., and E. F., from C., a minor, represented by his legal representatives G. H. and I. J., both from C., the Constitutional Court
 
 

decided as follows:

 
 
1. The following were inconsistent with the Constitution:
 Points 3 and 5 of the first paragraph of Article 1 of the Ordinance on the Temporary Prohibition of the Gathering of People in Educational Institutions and Universities and Independent Higher Education Institutions (Official Gazette of the Republic of Slovenia, No. 152/20);
 Points 3 and 5 of the first paragraph of Article 1 of the Ordinance on the Temporary Prohibition of the Gathering of People in Educational Institutions and Universities and Independent Higher Education Institutions (Official Gazette of the Republic of Slovenia, No. 181/20);
 Points 3 and 5 of the first paragraph of Article 1 of the Ordinance on the Temporary Prohibition of the Gathering of People in Educational Institutions and Universities and Independent Higher Education Institutions (Official Gazette of the Republic of Slovenia, Nos. 183/20 and 190/20); and
– Order on the Temporary Form of Performing Educational Work in Educational Institutions (Official Gazette of the Republic of Slovenia, No. 181/20), insofar as it applied to schools and educational institutions for children with special needs.
 
2. The finding from the preceding Point of the operative provisions shall have the effect of abrogation.
 
 

REASONING

 
 
A
 
Summary of the allegations in the petitions
 
1. The petitioners, who attend a primary school for children with special needs, filed a petition dated 10 November 2020 (the first petition) and a petition dated 9 December 2020 (the second petition) challenging the regulation in force at different times on the temporary prohibition of gathering in schools and educational institutions for children with special needs and on the temporary performance of educational work in these institutions at a distance. The first petition was filed against points 3 and 5 of the first paragraph of Article 1 of the Ordinance on the Temporary Prohibition of the Gathering of People in Educational Institutions and Universities and Independent Higher Education Institutions (Official Gazette RS, No. 152/20 – hereinafter referred to as Ordinance/152) in relation to Government Order No. 00717-49/2020/4, dated 5 November 2020, on the extension of the application of the measures and limitations determined by Ordinance/152 (hereinafter referred to as the Government Order of 5 November 2020) and against the Order of the minister responsible for education, No. 603-33/2020/4, dated 5 November 2020, on the temporary performance of educational work in elementary and music schools at a distance (hereinafter referred to as the Order of the Minister) in the part in which it refers to organisations for the upbringing and education of children with special needs. With the second petition, they challenge points 3 and 5 of the first paragraph of Article 1 of the Ordinance on the Temporary Prohibition of the Gathering of People in Educational Institutions and Universities and Independent Higher Education Institutions (Official Gazette of the Republic of Slovenia, No. 181/20 – hereinafter referred to as Ordinance/181) and the Order of the minister responsible for education on the temporary form of the implementation of educational work in educational institutions (Official Gazette of the Republic of Slovenia, No. 181/20 – hereinafter referred to as Order of the Minister/181) in the part that refers to organisations for the upbringing and education of children with special needs.
 
2. The content of both petitions is essentially equal. The petitioners allege that, due to the closure of the schools, they are denied access to upbringing and education in accordance with the programmes that they attend, as well as to additional professional assistance and all other special treatments (physiotherapy, occupational therapy, therapy in a swimming pool, speech therapy, and psychological treatment) that they are provided at school and which they absolutely need for their development, for the maintenance of already acquired skills and abilities, and to prevent regression in development. They were also allegedly deprived of social contacts. In the second petition, the initiators specifically describe the visible negative consequences that arise for them due to the long-term absence of educational work and any form of special therapy in a form that is appropriate for them (the complete loss of internal motivation for any work and play, demand for constant parental attention, loss of independence, deterioration or complete loss of graphomotor skills, marked changes in behaviour, and self-aggressive and aggressive behaviour of the second petitioner). They allege that not only is their developmental progress prevented, but that they are even regressing in terms of development and that it will be extremely difficult to make up for what they have missed. The initiators allege that for them the performance of educational work at a distance entails a complete hollowing out of their rights to protection and education and training for active work in society. They explain that they need specific assistance in learning, an individualised approach, special professional work methods with more adaptations and examples, appropriate teaching aids, and significantly more adaptations than other peers. They allege that their parents have neither the appropriate special skills nor the teaching materials and aids needed to adapt learning to their specific needs and deficits. The individual treatment that the petitioners are supposed to receive at school is allegedly not possible at home also because each of the two petitioners has one healthy sibling in elementary school who also needs assistance and supervision from their parents in their schoolwork, who must also take care of the necessary household chores. They oppose the position of the Ministry of Education, Science, and Sport (hereinafter referred to as the MESS) that special attention is paid to vulnerable groups within the framework of distance education, and claim that such arguments are substantively completely empty.
 
3. According to the petitioners, the challenged regulation is inconsistent with Articles 2, 14, 52, 56, and 57 of the Constitution. In addition to the inconsistency with the provisions of the Constitution mentioned above, the petitioners also allege that the orders of the Minister of Education are inconsistent with Article 104 of the Act Determining Temporary Measures to Mitigate and Remedy the Consequences of COVID-19 (Official Gazette of the Republic of Slovenia No. 152/20 – hereinafter referred to as the ADTMMRC). The challenged regulation is allegedly inconsistent with Article 2 of the Constitution due to an inconsistency with the general principle of proportionality, as it allegedly excessively interferes with the constitutional rights of the petitioners. With regard to the alleged inconsistency of the challenged regulation with Article 14 of the Constitution, the petitioners emphasise that they are not provided the special services (e.g. special education, physiotherapy, speech therapy, occupational therapy, psychological treatment) that are supposed to be provided to children with special needs who are, for example, enrolled in training, work, and care centres that provide such treatment themselves, and to children who are provided such treatment in health care institutions. As regards the alleged inconsistency of the challenged regulation with Articles 52, 56, and 57 of the Constitution, the petitioners opine that the measure of the closure of schools for children with special needs is neither necessary nor proportionate in the narrower sense. As regards absolute necessity, the petitioners refer to expert findings that show that the proportion of children among all persons infected is very low, that children are less likely to fall ill than adults, that they generally have milder symptoms of the disease, and that they are only exceptionally carriers of the disease. From that perspective, the question of the appropriateness of the challenged measures is allegedly also raised. The closure of schools is allegedly not necessary also because the percentage of educational institutions for children with special needs is very small compared to all primary schools and also the percentage of children who attend these institutions compared to all children attending school is very small. The number of children in classes is allegedly also very low. According to the petitioners, the same objectives as those of the challenged measures could be achieved by substantially milder measures (e.g. social distancing, wearing masks, hand and cough hygiene, disinfecting the premises). From the perspective of the absolute necessity of the measures, the petitioners in the first petition also stress that on 5 November 2020, the Government prolonged the measure of the temporary prohibition of the gathering of people in educational institutions and universities and independent higher education institutions and concurrently eased the measures that applied to certain service activities (shops selling mainly technical goods, specialised children's shops, specialised shops for the sale of motor vehicles and bicycles, shops selling mainly furniture, pedicure services, photography services, photocopying, watchmaking, and jewellery shops), and in the second petition they refer to the December 2020 plan on the easing of measures, from which it allegedly follows that in balancing which areas of life are so essential that their functioning should be ensured as soon as possible, the Government prioritised hairdressing, manicures and pedicures, museums, libraries, and galleries over children with special needs (and other children). This allegedly indicates that the Government tipped the balance in favour of the economy when balancing the demands of health care, on the one hand, and the plight of entrepreneurs, on the other, but failed to do so when balancing the demands of health care against the interests of children with special needs, where the petitioners believe that returning children to school, especially children with special needs, should be the highest priority of the state. In the second petition, the petitioners also draw attention to the fact that from a brief summary of the opinion of the expert advisory group of the Ministry of Health on the COVID-19 epidemic on the return of children with special needs to schools and educational institutions, which was published by the MESS on its website, it follows that even the expert group advocated the opening of schools for children with special needs. The petitioners believe that the closure of schools for children with special needs is manifestly disproportionate to the expected benefits in terms of the spread of the epidemic. In this connection, they refer to the above-mentioned adverse consequences which they claim to be suffering from as a result of the closure of the educational institutions and draw attention to the limited benefits of the closure of schools and educational establishments for children with special needs allegedly in terms of halting the epidemic. In the second petition, the petitioners also state in this respect that ever since the first day of school (1 September 2020), parents have not had access to the school premises and have only been able to drop off and pick up their children within a specific time window and at a specific location for each class. They also draw attention to the fact that in educational establishments the gathering of employees is admissible.
 
Summary of the replies of the Government and the MESS
 
4. The two petitions were sent to the Government and the minister responsible for education for a reply. The Government and the MESS have replied thereto. The answers as regards the first petition and the second petition are essentially the same. The Government and the MESS opine that the two petitions are unfounded. They state that the temporary prohibition of the gathering of people in educational institutions is a necessary and effective measure to control the epidemic and to protect public health. In their opinion, when balancing the risk to public health posed by the opening of schools against the right to education on school premises, it is necessary, given the state of the epidemic, to temporarily prohibit the gathering of people in schools and to put the right to health first. Allegedly, the Slovene health care system is on the brink of collapse, and Slovenia is allegedly among the leaders in Europe in terms of the number of deaths [per capita]. The Government and the MESS allege that there are also employees at schools, that parents come there, and that pupils and students use public transport, all of which are circumstances that have a distinctly negative impact on limiting the spread of the epidemic. In its reply to the second petition, the Government also alleges that prior to deciding on the measures determined by Ordinance/181, it studied the report of the expert advisory group of the Ministry of Health and the opinion of paediatric experts. It also took into account the arguments of the expert community. All these documents are attached to its reply. Due to the efficient and rapid introduction of distance learning, the closure of schools has not excessively interfered with the right of children to education, according to the Government and MESS. The Government and the MESS state that the transition to distance education is certainly associated with certain difficulties and concerns, which also the petitioners and their families are faced with, but which are not disproportionate to the risk of the spread of COVID-19. Distance education allegedly does not mean excluding a certain segment of children from the educational process. Teachers and counsellors allegedly devote special attention to the most vulnerable groups of children, which include children with special needs. In this regard, the Government and the MESS explain that schools providing adapted educational programmes with a lower educational standard and special programmes for children with moderate, severe, and profound intellectual disabilities, as well as adapted programmes with an equivalent educational standard have been instructed to carry out their educational work within the framework of their possibilities, which are additionally conditional upon the health status of individual pupils. They allege that the MESS has called on schools to prepare adapted learning materials for pupils with special needs, to individualise and adapt instruction to the pupils’ deficits, and, mutatis mutandis, to take the pupils' individualised programmes into account. They add that schools have also been issued instructions to engage as much as possible with the parents of these children, urging them to keep the school up to date with the child's needs and problems and any difficulties, and to help the parents find an optimal solution. The MESS and the Government also allege that also other professionals, even health care professionals, are involved in assisting children with distance learning. The Government opines that it is infection with the virus, and not temporary distance learning, that can cause irreversible consequences for children with special needs. It also draws attention to the fact that the strict observance of measures to prevent the spread of the virus among adults has not limited transmission, and that children with special needs are even less likely to be able to adhere to all strict measures. The Government opines that citizens can safely exercise their right to education through distance learning.
 
The statement of the petitioners as to the replies of the Government and the MESS
 
5. The petitioners replied to the replies of the Government and the MESS to their second petition. In their reply, they first described in detail the difficult situation in which their families found themselves as a result of the closure of schools. They draw attention to the fact that the Government and the MESS only maintain the general position that opening schools for children with special needs would be detrimental to public health and the health of individuals without adopting a position as to the allegations about the relatively low number of children with special needs attending schools and the failure to provide children with special needs the necessary therapeutic work, which also experts and even principals concur with. Further on, the petitioners focus on the reply of the principals, from which it allegedly follows that they are not in favour of opening educational institutions for children, and the petitioners state that they do not believe that this is the common opinion of all principals; the sample of principals interviewed is allegedly not representative. They stress that the possible personnel issues, which there was enough time to resolve in anticipation of the epidemic, cannot entail a reason for closing schools. In this respect, they add that, given the current epidemiological situation, schools do not need to be opened immediately for all activities (e.g. clubs, morning care, and extended stay), as children would be in a much better situation even without this than if no activities are performed. As regards the possible difficulties in organising transport, the petitioners believe that at least some parents would be willing to drive their children to school. They also believe that the fact that some children would perhaps stay at home due to health restrictions should not entail an impediment to opening schools. They allege that during seasonal infections, a certain percentage of children stayed at home even before the epidemic, but schools were not closed as a result. Allegedly, the fact that a certain percentage of pupils is more likely to be at risk of having a severe course of the disease should not lead to the closure of schools for all. The petitioners also stress that the opinion of the paediatrician does not provide information on the number of children with a more severe course of the disease. Finally, they stress that the vast majority of children with disabilities will recover from a possible COVID-19 infection without complications, whereas closing schools and failing to provide specialist treatment may cause irreversible damage to the quality of their future lives. They stress that it is certainly absolutely necessary to immediately open at least the schools that perform special treatments and therapies. They also draw attention to the fact that numerous activities are being restarted.
 
The hitherto course of proceedings
 
6. By Partial Decision and Order No. U-I-445/20, dated 3 December 2020 (Official Gazette RS, No. 179/20), the Constitutional Court accepted for consideration the petition to initiate proceedings to review the constitutionality of points 3 and 5 of the first paragraph of Article 1 of Ordinance/152 (Point 3 of the operative provisions). It established that the measures referred to in that Ordinance ceased to be in force because they were not validly prolonged and deemed that due to the precedential nature of the questions raised by the two petitions, the conditions for a review of a regulation no longer in force are fulfilled (paragraphs 15 through 17 of the reasoning). With respect to the Order of the Government dated 5 November 2020 and the Order of the Minister, the Constitutional Court decided that, as they had not been published in the Official Gazette of the Republic of Slovenia, they had not entered into force (Points 1 and 4 of the operative provisions and paragraphs 14 and 21 of the reasoning). It also adopted an equivalent decision with respect to the subsequently adopted Orders of the Government No. 00717-49/2020/6, dated 12 November 2020, and No. 18100-24/2020/4, dated 26 November 2020 (Points 1 and 2 of the operative provisions and paragraph 14 of the Partial Decision and Order No. U-I-445/20), with respect to which, on the basis of Article 30 of the Constitutional Court Act (Official Gazette RS, Nos. 64/07 – official consolidated text, 109/12, 23/20, and 92/21 – hereinafter referred to as the CCA), it initiated by itself proceedings for a review of the constitutionality thereof. By Order No. U-I-473/20, dated 21 December 2020 (Official Gazette RS, No. 195/20), the Constitutional Court also accepted for consideration the petition to initiate proceedings to review the constitutionality of points 3 and 5 of the first paragraph of Article 1 of Ordinance/181 and the petition to initiate proceedings to review the constitutionality and legality of Order of the Minister/181, insofar as it applied to schools and educational institutions for children with special needs (Points 1 and 3 of the operative provisions). Concurrently, on the basis of Article 30 of the CCA, the Constitutional Court initiated proceedings to review the constitutionality of points 3 and 5 of the first paragraph of Article 1 of the Ordinance on the Temporary Prohibition of the Gathering of People in Educational Institutions and Universities and Independent Higher Education Institutions (Official Gazette of the Republic of Slovenia, Nos. 183/20 and 190/20 – hereinafter referred to as Ordinance/183) (Point 2 of the operative provisions). In that part, it suspended the enforcement of Ordinance/183 (Point 4 of the operative provisions).
 
 
B – I
 
Introductory highlights
 
7. The two petitioners in this case are children with special needs.[1] At the time of filing the petition, the petitioners were 6 and 9 years old. The first petitioner, a child with a mild mental disability, was placed in an adapted nine-year primary school programme with a lower educational standard, while the second petitioner, a child with a moderate mental disability, was placed in a special educational programme.[2] Due to the temporary prohibition of the gathering of people in educational institutions as a consequence of the epidemic of the COVID-19 communicable disease, the petitioners were prevented from attending the primary school in which they receive their education and training, namely the primary school for the education of children with special educational needs, for a part of the 2020/21 school year.[3] During this period, their education and training were provided in the form of distance learning.
 
8. The petitioners challenge the regulation which, in order to manage the COVID-19 epidemic, temporarily prohibited (inter alia) the gathering of people in schools and institutions for children with special needs and ordered that educational work in these organisations be carried out remotely. While these are two different measures, the second measure (ordering distance learning) was only a consequence of the first measure (the temporary prohibition of gathering in educational institutions). Therefore, the Constitutional Court will consider them below as a whole or as two connected measures.
 
9. The temporary prohibition of the gathering of people in educational establishments, including schools with an adapted programme and institutions for the education of children and adolescents with special needs (hereinafter referred to as schools and educational institutions for children with special needs), and the ordering of carrying out educational work in these institutions at a distance were already in force during the COVID-19 epidemic in spring 2020 (the first wave of the COVID-19 epidemic in the territory of the Republic of Slovenia).[4] Such a regulation re-entered into force following the repeated declaration of an epidemic of this disease in the territory of the Republic of Slovenia in October 2020 (hereinafter referred to as the autumn-winter wave of the COVID-19 epidemic).[5] The only two disputable issues in this case are the closure of schools and educational institutions for children with special needs and the ordering of carrying out educational work at a distance in these organisations during the autumn-winter wave of the COVID-19 epidemic.
 
10. During the autumn-winter wave of the COVID-19 epidemic, the temporary prohibition of the gathering of people in schools and educational institutions for children with special needs was regulated by multiple ordinances. First, it was determined by points 3 and 5 of the first paragraph of Article 1 of Ordinance/152, which became applicable on 26 October 2020.[6] As the Constitutional Court already explained in the Partial Decision and Order of the Constitutional Court No. U-I-445/20, due to the formal deficiencies of the orders on the extension of the measures provided for in this Ordinance, the Ordinance formally ceased to be in force already after the first seven days of its application (paragraph 15 of the reasoning), but in fact schools and educational institutions for children with special needs were closed on its basis until 6 December 2020, when Ordinance/181 entered into force. By points 3 and 5 of the first paragraph of Article 1 of Ordinance/181, the temporary prohibition of the gathering of people in schools and educational institutions for children with special needs was reinstated. This Ordinance was in force in the period from 6 to 11 December 2020;[7] thereafter, the prohibition of the gathering of people in schools and educational institutions for children with special needs was further determined by points 3 and 5 of the first paragraph of Article 1 of Ordinance/183, which was in force from 12 December 2020 to 4 January 2021. From 5 January 2021 onwards, the prohibition of the gathering of people in schools and institutions for children with special needs was no longer in force.[8]
 
11. The performance of educational work at a distance during the autumn-winter period of the COVID-19 epidemic was ordered for the petitioner by two orders of the Minister for Education, namely the Order of the Minister dated 5 November 2020 and Order of the Minister/181.[9] On the basis of the Order of the Minister, which formally never entered into force,[10] the educational work for the petitioner at a distance was actually performed from 9 November until 6 December 2020,[11] and on the basis of Order of the Minister/181 it was performed during the remaining period of the temporary prohibition of the gathering of people in schools and institutions for children with special needs, except for the New Year holidays.
 
12. The Constitutional Court has already decided on the petition for a review of the constitutionality and legality of the Order of the Minister, as stated above. In view thereof, the subject of the review in the case at issue are points 3 and 5 of the first paragraph of Ordinance/152, points 3 and 5 of the first paragraph of Ordinance/181, points 3 and 5 of the first paragraph of Ordinance/183, and Order of the Minister/181 on the consequent performance of educational work at a distance, insofar as it applied to schools and educational institutions for children with special needs. Since, as stated above, Ordinance/152 was formally in force for only a short period of time following its adoption, the question could be raised as to whether the Constitutional Court should limit its review of the constitutionality of the challenged provisions of this Ordinance to only that period of time. However, since on 3 December 2020 the Constitutional Court adopted its Partial Decision and Order No. U-I-445/20, by which it established that Ordinance/152 had formally ceased to be in force, and since schools and institutions for children with special needs were effectively closed until 6 December 2020 on the basis of Ordinance/152, even after the Partial Decision and Order of the Constitutional Court had been adopted, when Ordinance/181, which reintroduced the temporary prohibition of the gathering of people in schools and institutions for children with special needs, entered into force, Ordinance/152 must be deemed to have been in force throughout that time. Such entails that the Constitutional Court must take into account the entire period of its applicability when reviewing its constitutionality.
 
13. Point 3 of the first paragraph of Article 1 of the aforementioned ordinances temporarily prohibited the gathering of people in primary schools with an adapted programme, and point 5 of the first paragraph of Article 1 of the aforementioned ordinances prohibited the gathering of people in institutions for the education of children and adolescents with special needs, except for those established to work with children with emotional and behavioural disorders. Point I) of Order of the Minister/181 determined the temporary performance of educational work at a distance in educational institutions in order to mitigate and remedy the consequences of COVID-19. In the first petition, the two petitioners expressed doubts as to whether Ordinance/152 applied to the second petitioner, who attends a special primary education programme, and whether Order of the Minister/181, which merely generally mentions primary schools, applied to them at all. In its Partial Decision and Order No. U-I-445/20, the Constitutional Court adopted the position that the challenged provisions of Ordinance/152 and Order of the Minister/181 apply to both petitioners (paragraphs 10 and 19 of the reasoning). The same also holds true as regards the challenged provisions of Ordinance/181 and Ordinance/183, and Order of the Minister/181.
 
14. The Constitutional Court preliminarily explains that, with regard to point 5 of the first paragraph of Article 1 of Ordinance/183, it has already adopted the position that, although the petitioners do not have a legal interest for its review in the part where it refers to other educational institutions for children with special needs, such as the one attended by the petitioners, it will review, taking into account the interconnectedness of the issue of the closure of all institutions for the education of children with special needs to which point 5 of the first paragraph of Article 1 of Ordinance/183 refers, on the basis of Article 30 of the CCA, the constitutionality of this provision in its entirety (see paragraph 11 of the reasoning of Order No. U-I-473/20). The same applies to point 5 of the first paragraph of Article 1 of Ordinance/152 and point 5 of the first paragraph of Article 1 of Ordinance/181.
 
As regards the legal interest to continue the proceedings despite the cessation of the validity of the ordinances and Order of the Minister/181
 
15. The challenged provisions of the ordinances on the temporary prohibition of the gathering of people in educational institutions and Order of the Minister/181 are no longer in force. Points 3 and 5 of the first paragraph of Article 1 of Ordinance/152 and points 3 and 5 of the first paragraph of Article 1 of Ordinance/181 had already ceased to be in force before the Constitutional Court decided to accept the petitions in this part,[12] while points 3 and 5 of the first paragraph of Article 1 of Ordinance/183 and Order of the Minister/181 ceased to be in force after the Constitutional Court decided to accept the petition for a review of the constitutionality of Order of the Minister/181 and to initiate proceedings to review the constitutionality of points 3 and 5 of the first paragraph of Article 1 of Ordinance/183.[13]
 
16. In the event a regulation is invalid, in accordance with the second paragraph of Article 47 of the CCA the Constitutional Court decides on its conformity with the Constitution if the requirements determined by the first paragraph of Article 47 of the CCA are fulfilled, i.e. if the petitioner demonstrates that the consequences of its unconstitutionality have not been remedied. This is a procedural impediment that limits the possibility of the Constitutional Court reviewing invalid regulations. However, 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 subsequent decisions, first in paragraph 27 of the reasoning of Decision No. U-I-83/20, dated 27 August 2020 (Official Gazette RS, No. 128/20), that in the event of a review of regulations adopted periodically and for a limited period of time, specifically expressed – according to the substantive judgment of the Constitutional Court – public interest may justify an exception to the procedural impediment referred to in 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.
 
17. The Constitutional Court has already adopted the position that the above-mentioned conditions for an exceptional review of a regulation that is no longer in force are fulfilled with regard to points 3 and 5 of the first paragraph of Article 1 of Ordinance/152 and points 3 and 5 of the first paragraph of Article 1 of Ordinance/181 in its Partial Decision and Order No. U-I-445/20 (paragraphs 15 through 17 of the reasoning) and in Order No. U-I-473/20 (paragraph 10 of the reasoning). An equivalent decision must also be made with regard to points 3 and 5 of the first paragraph of Article 1 of Ordinance/183 and Order of the Minister/181, insofar as the latter applied to schools and educational establishments for children with special needs. Given that the SARS-CoV-2 virus has not yet been fully contained, either in the Republic of Slovenia or elsewhere in the world, it is reasonable to expect that the measure temporarily prohibiting the gathering of people in primary schools and in educational institutions for children with special needs and the measure ordering educational work in these institutions to be performed at a distance, as determined by the above-mentioned regulations, could be reimposed at some point in the future. The time-limited nature of the measure of closing these institutions and the consequent measure ordering that educational work be performed at a distance, which is a necessary consequence of the fact that these measures interfere with human rights only temporarily due to the epidemic, could result in the Constitutional Court never being able to carry out a substantive review of the constitutionality of such measures. Given that the challenged regulation may entail limitations of the human rights or fundamental freedoms of such a vulnerable group of persons as are children with special needs, in particular limitations of the right of children with special needs to education and training (the second paragraph of Article 52 of the Constitution), a decision on the constitutionality of these measures also entails a decision on a particularly important precedential question of constitutional law. Therefore, there exists a particularly strong public interest in the Constitutional Court substantively reviewing also the no longer in force points 3 and 5 of the first paragraph of Article 1 of Ordinance/183 and Order of the Minister/181, insofar as the latter applied to schools and educational institutions for children with special needs.
 
 
B – II
 
The upper premise for the assessment
 
18. The petitioners allege that the challenged regulation is inconsistent with Articles 2, 14, 52, 56, and 57 of the Constitution. The challenged regulation temporarily prohibited gathering in primary schools and educational institutions for children with special needs and ordered that these institutions temporarily perform educational work at a distance. As such, this regulation primarily concerns the field of education. The allegations of the petitioners concerning the violation of human rights and fundamental freedoms in this field are therefore particularly essential. The right to education and schooling is already generally determined by Article 57 of the Constitution. The second paragraph of Article 52 of the Constitution entails a special provision in relation to Article 57 of the Constitution and regulates in particular the right of children with special needs to education and training. Therefore, the Constitutional Court focused on assessing the conformity of the challenged regulation with this provision of the Constitution.
 
 
On the content of the right determined by the second paragraph of Article 52 of the Constitution
 
19. Under the second paragraph of Article 52 of the Constitution, children with mental and physical disabilities (hereinafter referred to as children with special needs) have the right to education and training for an active life in society. The content of this human right is not determined in detail in the Constitution. Its nature requires that the law determine the manner in which it is to be exercised (the second paragraph of Article 15 of the Constitution).[14] The legislature (or, in the present case, the Government and the Minister of Education, who have been authorised by the legislature to adopt measures that limit this right) is not entirely unrestricted in this respect. It must observe the constitutionally guaranteed core of this human right.[15] In doing so, it must proceed from the specific purpose of this right. The purpose of the special provision of the second paragraph of Article 52 of the Constitution is the recognition that it is indeed more difficult for children with special needs to access goods, benefits, as well as rights that are otherwise formally and legally guaranteed to all. As children with special needs are disadvantaged, the state must take active measures to neutralise barriers that make it difficult or even impossible for them to have equal access to public goods and services or to equally exercise their human rights and fundamental freedoms, including the right to education and training.[16] Children with special needs must (also) be ensured special protection in this field.
 
20. In determining the constitutional meaning of the second paragraph of Article 52 of the Constitution, one must also proceed from international instruments that regulate this right.[17] It follows therefrom that children with special needs are protected twice in the field of education: as children and, in particular, as persons with disabilities. The Convention on the Rights of the Child (Official Gazette SFRY, MP, No. 15/90; the Act Concerning the Notification of Succession to the United Nations Conventions and Conventions Adopted within the International Atomic Energy Agency, Official Gazette RS, No. 35/92, and MP, No. 9/92 – hereinafter referred to as the CRC) regulates the right to education in Article 28. This Article determines, inter alia, that States Parties recognise the right of children to education, and, with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular (also) make primary education compulsory and available free to all. While this provision of the CRC does not explicitly refer to children with special needs, Article 2 of the CRC nevertheless determines that States Parties shall respect and ensure the rights set forth in the Convention to each child within their jurisdiction without discrimination of any kind, including on the basis of disability. The position of children with special needs in the field of education is specifically regulated by Article 23 of the CRC. Under this provision, States Parties recognise the right of children with special needs to special care and shall encourage and ensure the extension, subject to available resources, to the eligible children and those responsible for their care, of assistance. Such assistance shall be provided free of charge, whenever possible, and shall be designed to ensure that a child with special needs has effective access to and receives education and training in a manner conducive to the child achieving the fullest possible social integration and his or her spiritual development (paragraphs 2 and 3). In this respect, in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration (the first paragraph of Article 3 of the CRC).
 
21. The right to education is also regulated by the United Nations Convention on the Rights of Persons with Disabilities (Official Gazette RS, No. 37/08, and MP, No. 10/08 – hereinafter referred to as the CRPD), namely by Article 24. The inclusion of this provision in the CRPD specifically emphasises that persons with disabilities and children with special needs also have the right to education. States Parties to the CRPD must ensure that persons with disabilities are not excluded from the general education system on grounds of their disability and that they can access an inclusive, quality, and free primary education and secondary education on an equal basis with others (points a and b of the second paragraph). States Parties must ensure that persons with disabilities are also provided reasonable accommodation in the education system (point c of the second paragraph) and offer them the support required, within the general education system, to facilitate their effective education (points d and e of the second paragraph). As a general provision relevant to children with special needs, Article 7 of the CRPD must also be taken into account, in accordance with which States Parties shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children, with respect to which the best interests of the child shall be a primary consideration in all actions concerning children with disabilities.
 
22. The European Social Charter – amended (Official Gazette RS, No. 24/99, MP, No. 7/99 – hereinafter referred to as the ESC) is another international instrument binding on the Republic of Slovenia that specifically mentions the right of persons with disabilities to education. Article 15 of the CRPD enshrines the right of persons with disabilities to independence, social integration, and participation in the life of the community. It provides, inter alia, that the Parties undertake to take the necessary measures to provide persons with disabilities with education (point 1 of the first paragraph of Article 15 of the ESC).
 
23. In the current situation of the COVID-19 epidemic in the Republic of Slovenia, which may also have a threatening impact on the right to education due to the adoption of various measures aimed at containing the epidemic, Article 11 of the CRPD is also worth mentioning. Under this provision, States Parties shall take, in accordance with their obligations under international law, including international humanitarian law and international human rights law, all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk. This provision refers to situations of armed conflict, humanitarian emergencies, and natural disasters as situations of danger, but they are only listed in a non-exhaustive manner.[18] The right to education is mentioned as one of the fundamental rights of children that is often under threat in such situations.[19] The UN Committee on the Rights of the Child also adopted the position that primary education must be effectively provided also in emergency situations and must be inclusive of children from marginalised groups, including children with disabilities.[20] The need in such cases to pay particular attention to ensuring that children with disabilities receive the same education as other children is also highlighted in the general comment of the UN Committee on the Rights of Persons with Disabilities (CRPD).[21] The Constitutional Court will not adopt a position at this point as to the question of whether the situation of the COVID-19 epidemic can also be included within the scope of Article 11 of the CRPD, but notes that it follows from this provision that, even in very difficult and unusual circumstances, efforts must be made to implement the right of children with special needs to education.
 
24. The second paragraph of Article 52 of the Constitution therefore guarantees special protection for children with special needs in the field of education. The state must ensure that also these children have effective access to education and training. To the extent necessary, the state must also adopt certain positive measures to this end. This means that the state must exercise particular care in regulating issues that may jeopardise or affect the rights of children with special needs in this field and seek solutions that ensure the special protection of these children to the greatest extent possible.[22] Given the importance of education and training for the development of children with special needs, the above must also apply during a time of crisis in society, such as the period of the COVID-19 communicable disease epidemic. The second paragraph of Article 52 of the Constitution thus requires that, even in such a situation, which necessitates the adoption of a number of measures aimed at containing an epidemic, the state must take special care to ensure that the right of children with special needs to education and training is not disproportionately affected.
 
25. The Constitutional Court clarifies that the scope of the right determined by the second paragraph of Article 52 of the Constitution includes not only ensuring the education of children with special needs in the strictest meaning of the word, namely in the sense of acquiring the classical knowledge set out in school curricula. This is indicated already by the wording of the provision itself, which implies that it also ensures a right to training, and that it therefore refers to more than mere education.[23] The right of children with special needs to the provision of various complementary activities to basic education, which, in the opinion of experts, are indispensable for their fullest possible development or for the retention of the skills and abilities they have already acquired, must thus also be considered to be part of the right determined by the second paragraph of Article 52 of the Constitution. Such includes different types of therapy or special treatment, such as physiotherapy, occupational therapy, speech therapy, and psychological treatments, which can be even more important for these children than the learning process itself. In addition, the right of children with disabilities to social and emotional learning, in the sense of developing their social skills or learning to cope effectively with peer situations, which is achieved by ensuring that these children have social contact with other persons and, in particular, with their peers, must also be included in the scope of the provision of the second paragraph of Article 52 of the Constitution. The development of their full potential, which is the purpose of the right of children with special needs to education and training, is also ensured in such manner.
 
On the interference with the right determined by the second paragraph of Article 52 of the Constitution
 
26. The challenged measures in the case at issue are the measure of the temporary prohibition of the gathering of people in schools and educational institutions for children with special needs and the consequent measure of the temporary performance of educational work with those children at a distance. The measure prohibiting the gathering of people in schools and educational institutions, in itself, without ordering the performance of educational activity at a distance, constitutes a manifest interference with the right determined by the second paragraph of Article 52 of the Constitution. In such an instance, educational work with children with special needs is namely not performed at all. This was the case from 2 to 8 November 2020, when the Minister for Education unexpectedly extended the autumn holidays for primary school pupils by Order No. 603-33/2020/2, dated 30 October 2020, due to the worsening epidemiological situation and in order to prevent the transmission of SARS-CoV-2.
 
27. With regard to the periods when the measure of the provision of educational work at a distance was also implemented during the periods of the prohibition of the gathering of people in educational institutions, the Constitutional Court had to adopt a position as to what was meant by the fact that the education of children with special needs was not completely interrupted during this period, but rather took a different form, from the perspective of an interference with the aforementioned human right. In their replies to the petition, the Government and the MESS state that distance learning did not mean excluding a certain number of children from the educational process and that special care was provided to the most vulnerable groups of children, which include children with special needs. Schools were allegedly specifically instructed as to how to organise distance learning for children with special needs (the performance of educational work to the extent possible, the preparation of adapted learning materials, individualising instructions), and other professionals and even health care professionals were allegedly also involved in helping children with special needs to learn at a distance.
 
28. In the assessment of the Constitutional Court, the mentioned endeavours of the MESS to carry out the distance learning process for children with special needs as effectively as possible were in fact able to mitigate to some degree the consequences that the measure of the temporary prohibition of the gathering of people in schools and educational institutions for children with special needs had for the exercise of the rights of children with special needs. However, that does not mean that the education and training of children with special needs in such form entailed an equally effective form of education or training as is ensured if education is provided in educational institutions. Distance learning can be carried out in different forms, but in any event, it means that the educational process is carried out without the physical presence of teachers and pupils at the same place, i.e. without direct contact between the teacher and pupils.[24] That also holds true as regards distance learning by means of computer technology, as was the situation with the petitioners. The technology by means of which distance learning is carried out can namely entail an important tool that enables such form of learning, but can absolutely not fully substitute for learning in educational institutions and the priceless direct contact between teacher and pupils, which especially holds true for educational work with children with special needs.[25] This means that the challenged regulation, although it also included a measure of distance learning, entailed an interference with the right determined by the second paragraph of Article 52 of the Constitution. In this respect, it should also be specifically stressed that children with special needs who are provided certain special or therapeutic treatments in educational institutions that are absolutely necessary for their development were, as a rule, completely deprived of these treatments during the period of the prohibition of the gathering of people in these institutions, or the provision of these treatments, insofar as they could be carried out at a distance, could not be as effective. Furthermore, these children were also deprived of the social contacts they would otherwise have had in an educational institution.
 
 
B – III
 
The review of the conformity of the challenged regulation with the second paragraph of Article 120 of the Constitution
 
29. In the case at issue, implementing regulations interfere in an originary manner with the right of children with special needs to education and training determined by the second paragraph of Article 52 of the Constitution. In fact, these acts are based on a law, namely, the ordinances on point 3 of the first paragraph of Article 39 of the Communicable Diseases Act (Official Gazette RS, No. 33/06 – official consolidated text, 142/20, and 82/21 – hereinafter referred to as the CDA),[26] and Order of the Minister/181 on the first paragraph of Article 104 of the ADTMMRC. However, in the above-mentioned legal provisions the legislator did not provide that it would decide itself when the conditions for the temporary prohibition of the gathering of people in educational institutions and for performing educational work at a distance are fulfilled, but left such decision to the Government and the minister responsible for education.[27][28] Such a statutory regulation, and consequently also the implementing regulations based thereon, are, as will be explained below, objectionable from the perspective of the principle of legality determined by the second paragraph of Article 120 of the Constitution. This principle is an important element of a state governed by the rule of law determined by Article 2 of the Constitution.
 
30. In fact, the petitioners do not claim that the challenged implementing regulations are inconsistent with the principle of legality. They (only) claim that the challenged regulation is substantively inconsistent with (disproportionate to) the provision of the second paragraph of Article 52 of the Constitution. Nevertheless, the Constitutional Court reviewed the challenged regulation on its own motion also from this perspective. It is only sensible to carry out a review of the conformity of measures adopted by implementing regulations with the substantive provision of the Constitution if they are based on a sufficient legal basis. Namely, a measure adopted by an implementing regulation that interferes with an individual human right and is not based on a sufficient legal basis cannot be in conformity with the Constitution. This means, however, that at least in instances when manifest doubt arises as to the conformity of a statutory regulation and the implementing regulation based thereon with the principle of legality, which, as will be seen below, is also the case in the case at issue, the Constitutional Court, in view of the nature of the matter, cannot avoid such a review, even if the petition does not provide any arguments for such an assessment.
 
31. It follows from the principle of legality, which means that the actions of administrative authorities are bound by the constitutional and legal basis and framework, that a regulation by which human rights and fundamental freedoms are regulated in an originary manner must be a law. Therefore, in normal circumstances, the legislature may only leave to the executive the power to regulate in greater detail limitations on human rights that it has previously prescribed, and the power of the executive to regulate these limitations in greater detail must be sufficiently precise. The response to the emergence of the COVID-19 communicable disease is a special situation in which the National Assembly may, exceptionally, leave the prescription of such measures to the executive, because the circumstances relevant to their prescription may change rapidly and require a very rapid response and the adaptation of the adopted measures, and the legislative procedure is not adapted thereto. However, the legislature must first determine sufficiently precise substantive criteria in the law that the executive must take into consideration when doing so.[29]
 
32. By Decision No. U-I-79/20, the Constitutional Court held that point 3 of the first paragraph of Article 39 of the CDA, which empowers the Government to adopt measures that interfere in an originary manner with the human right to assembly and association determined by the first and second paragraphs of Article 42 of the Constitution, is inconsistent with the third paragraph of Article 42 of the Constitution because it does not determine a sufficient substantive basis for the exercise of such power (Point 1 of the operative provisions and paragraphs 91 through 96 of the reasoning). In fact, such an assessment (also) entailed an assessment of the consistency of point 3 of the first paragraph of Article 39 of the CDA with the principle of legality determined by the second paragraph of Article 120 of the Constitution. The third paragraph of Article 42 of the Constitution is namely only a special provision in relation to the second paragraph of Article 120 of the Constitution, and[30] the criteria used for the assessment are identical in both cases. In the present case, the question of whether point 3 of the first paragraph of Article 39 of the CDA, insofar as it refers to the prohibition of the gathering of people in schools and institutions for children with special needs, constitutes a sufficient legal basis for limiting human rights and fundamental freedoms is raised from the perspective of an interference with the human right determined by the second paragraph of Article 52 of the Constitution, and not from the perspective of an interference with the human right determined by the first and second paragraphs of Article 42 of the Constitution, as was the case in case No. U-I-79/20. However, the Constitutional Court, relying on the reasons set out in Decision No. U-I-79/20, concludes that point 3 of the first paragraph of Article 39 of the CDA also does not constitute a sufficient substantive basis for granting the Government the power to adopt measures interfering with the human right determined by the second paragraph of Article 52 of the Constitution, and is therefore (also) inconsistent with the second paragraph of Article 120 of the Constitution.
 
33. By decision of the Constitutional Court No. U-I-8/21, the Constitutional Court found that Article 104 of the ADTMMRC is also inconsistent with the second paragraph of Article 120 of the Constitution because it does not constitute a sufficient substantive basis for granting the minister responsible for education the power to order distance learning, thereby interfering with the human right determined by the second paragraph of Article 52 of the Constitution (Point 1 of the operative provisions and paragraphs 26 through 34 of the reasoning).
 
34. The reviewed ordinances of the Government and Order of the Minister/181 under review, which interfere in an originary manner with the rights of children with special needs determined by the second paragraph of Article 52 of the Constitution, are therefore based on a statutory regulation that does not constitute a sufficient substantive basis for their adoption and is as such inconsistent with the second paragraph of Article 120 of the Constitution. Consequently, also the challenged implementing regulations are inconsistent with the second paragraph of Article 120 of the Constitution.
 
 
B – IV
 
The review of the challenged regulation from the perspective of the proportionality of the interferences with the right determined by the second paragraph of Article 52 of the Constitution
 
35. Since the provisions of the ordinances of the Government and Order of the Minister/181 in question were inconsistent with the Constitution already because these regulations were based on a deficient legal basis (inconsistency with the second paragraph of Article 120 of the Constitution), the Constitutional Court did not even have to address the petitioners' allegation that the closure of schools and educational institutions for children with special needs and the consequent performance of educational work at a distance entailed a disproportionate interference with the constitutional right of children with special needs to education and training determined by the second paragraph of Article 52 of the Constitution. Nevertheless, the Constitutional Court decided to review the consistency of the challenged regulation with the Constitution from this perspective as well. This is the very question that the Constitutional Court had in mind as a precedential issue when, in its Partial Decision and Order No. U-I-445/20 (paragraph 17 of the reasoning) and No. U-I-473/20 (paragraph 10 of the reasoning), it adopted the position that there exists a specifically expressed public interest in reviewing the substance of points 3 and 5 of the first paragraph of Article 1 of Ordinance/152 and of points 3 and 5 of the first paragraph of Article 1 of Ordinance/181, which were no longer in force. As stated above, the same also holds true as regards points 3 and 5 of the first paragraph of Article 1 of Ordinance/183 and Order of the Minister/181, which ceased to be in force during the proceedings before the Constitutional Court.
 
36. A human right may only be limited in instances determined by the Constitution in order for the rights of others to be protected (the third paragraph of Article 15 of the Constitution). Under the established constitutional case law, the limitation of a human right is admissible if the legislature pursues a constitutionally admissible objective and if the limitation is consistent with the principles of a state governed by the rule of law (Article 2 of the Constitution), i.e. with those principles that prohibit excessive measures of the state (the general principle of proportionality). The Constitutional Court carries out an assessment of whether the interference at issue is not perhaps excessive on the basis of the so-called strict test of proportionality, which encompasses an assessment of the appropriateness, necessity, and proportionality of the interference.[31] All of the above also applies in a case such as the present one, where a human right of children with special needs has been interfered with by implementing regulations.
 
A constitutionally admissible objective
 
37. It follows from Article 1 of each of the challenged ordinances that the Government adopted the measure of the temporary prohibition of the gathering of people in educational institutions in order to contain and manage the COVID-19 epidemic. This clearly means that the aim of this measure was to protect the health and lives of people threatened by the COVID-19 communicable disease. The wording of Article 1 of Order of the Minister/181 is slightly different. This article provides that the measure of the temporary performance of educational work at a distance was adopted to mitigate and remedy the consequences of COVID-19. One of the consequences of the COVID-19 epidemic was the adoption of the temporary prohibition of the gathering of people in educational institutions. The aim of the measure ordering distance learning can therefore be seen as mitigating the consequences that the closure of educational institutions had on the exercise of the right to education. However, since, as already indicated, the measure of the temporary prohibition of the gathering of people in educational institutions and the measure of the temporary performance of educational work at a distance are closely connected – the latter being merely a consequence of the former – it must be deemed that the measure of the temporary performance of educational work at a distance was also aimed at protecting the health and lives of people at risk from the COVID-19 communicable disease. Therefore, the Constitutional Court proceeded by taking this objective into account as the central purpose of both challenged measures.
 
38. The protection of the health and lives of people constitutes a constitutionally admissible objective for interfering with the right determined by the second paragraph of Article 52 of the Constitution. Namely, The Constitutional Court has already stressed in its Decision No. U-I-83/20 (paragraph 42 of the reasoning) that in the event of the outbreak of a communicable disease, state authorities have a duty under the Constitution to adequately 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 the protection of 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 outbreak 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). Hence, in accordance with the Constitution, state authorities have the duty to appropriately protect the health and life of people in the event of an outbreak of a communicable disease and to adopt the necessary measures to this end, even if they entail an interference with certain human rights. However, it must take into account that such a measure must not be excessive. In view of the above, the Constitutional Court proceeded by assessing whether the limitation of the right determined by the second paragraph of Article 52 of the Constitution caused by the challenged measures was consistent with the general principle of proportionality, i.e. whether the challenged measures were appropriate, necessary, and proportionate in the narrower sense.
 
The assessment of the appropriateness
 
39. The assessment of the appropriateness of the measure encompasses establishing whether the pursued objective can be attained by the measure, i.e. whether the measure alone or in combination with other measures can contribute to attaining that objective. By prohibiting the gathering of people in schools and institutions for children with special needs, and the consequent performance of educational work at a distance, the spread of the COVID-19 communicable disease can be prevented because in such way the possibility of contact between individuals and thus the possibility of the transmission of the disease from infected to healthy people is reduced. Expert findings show that children of all ages are susceptible to infection with SARS-CoV-2 and can also transmit the virus. Infections can also be transmitted within educational institutions. In this context, the closure of schools, although not an isolated measure, can also contribute to reducing the transmission of infections in society.[32] This is sufficient for the assessment of the appropriateness of the challenged measures. The petitioners allege that they have doubts about the appropriateness of the challenged measures because the proportion of infected children (especially in the age group of the petitioners) among all persons proven to be infected with SARS-CoV-2 is small and because children are less likely to become ill from COVID-19 or the disease they develop is milder, and they are only seldom carriers of infection. According to the petitioners, the challenged two measures of the temporary prohibition of the gathering of people in educational institutions for children with special needs and the performance of educational activity for those children at a distance are therefore inappropriate because they allegedly do not substantially contribute to containing the epidemic. However, without delving into the question of whether the allegations of the petitioners are substantiated, the Constitutional Court stresses that these are two of several measures which have been adopted with the aim of containing and managing the epidemic and which may (each in part) contribute to attaining the objective of protecting the health and life of people. The possibly merely minor contribution of an individual measure to achieving this objective does not in itself imply that it is inappropriate, but this fact may be taken into account when assessing the proportionality of the measure in the narrower sense.
 
The assessment of absolute necessity
 
40. An interference with a human right or fundamental freedom is necessary if the aim pursued cannot be achieved without interference (of any kind) in general, or cannot be achieved (to the same extent) by a milder but equally effective measure such as the one under review. The petitioners also substantiate their allegation that the challenged measures were not absolutely necessary by referring to circumstances that allegedly indicate that the closure of schools and educational institutions for children with special needs and the performance of educational activity at a distance have been unable to significantly contribute to containing and managing the COVID-19 epidemic. In addition to referring to the above-mentioned circumstances, which allegedly indicate that the challenged measures are inappropriate, the petitioners also allege, in relation to the lack of the absolute necessity of the measures, that educational institutions for children with special needs represent only a very narrow segment of all such institutions, that the number of children in classrooms in such institutions is small, and that the proportion of infections in such institutions is negligibly small. However, these allegations of the petitioners cannot affect the assessment of the absolute necessity of the interference. The adoption of various measures in response to the epidemic of the COVID-19 communicable disease was absolutely necessary, and the state had a wide margin of appreciation in choosing those measures, and it also chose the challenged measures. The possibly merely minor contribution of an individual measure to achieving this objective does not in itself imply that such a measure could not be deemed absolutely necessary, but this fact may be taken into account when assessing the proportionality of the measure in the narrower sense.
 
41. In light of the petitioners' allegation that the measures were not necessary, what could be relevant is the petitioners' allegation that, instead of the measures temporarily prohibiting the gathering of people in educational institutions for children with special needs and the performance of educational activity for these children at a distance, the Government had at its disposal more lenient measures which allegedly could achieve equivalent effects as the closure of those institutions (e.g. social distancing, wearing masks, taking care of hand hygiene, coughing and sneezing hygiene, and disinfecting the premises). However, taking into account, in particular, the fact that such education is carried out in closed spaces, where the possibility of the transmission of the virus is greater, and the fact that it is not always possible to expect that all the mentioned measures will be implemented fully consistently,[33] it is not possible to state that the implementation of those measures could have had the same effect on containing the epidemic as the challenged measures, which prevented all instances of direct contact between the participants in the educational process.
 
The assessment of proportionality in the narrower sense
 
42. An interference with a human right is proportionate in the narrower sense if the gravity of its consequences (in this case, the gravity of the consequences of the interference with the right to education and training of children with special needs) is proportionate to the value of the aim pursued and to the expected benefits resulting from the interference (in this case, the benefits that the closure of educational institutions for children with special needs has had on the protection of the health and lives of people).
 
43. The opposing parties state that at the time when the challenged measures were adopted, given the state of the epidemic at that time, the right to health had to be given priority when balancing the risk to public health posed by the opening of schools against the right to education on school premises. They opine that the challenged regulation did not excessively interfere with the right of children with special needs to education and training, since a system for the provision of educational work at a distance was quickly and efficiently put in place. As the Constitutional Court already explained in paragraph 28 of the reasoning of this Decision, although the establishment of a distance learning system was to a certain extent able to mitigate the consequences of the closure of educational institutions, such form of education was not in any way able to replace the education and training of children with special needs in educational institutions.
 
44. In this respect, the Constitutional Court notes at the outset that distance learning, which in the disputed period was organised by means of computer technology, could not be effective for some children with special needs already because they did not have (appropriate) computer equipment or internet access at home. For some of them, not having a suitable space at home for distance learning may have been an obstacle to effectively carrying out distance learning. The challenged regulation did not even address these issues and did not provide solutions to them. In the part where it also applied to such children, the gravity of the consequences of the interference with the right determined by the second paragraph of Article 52 of the Constitution that occurred on its basis was great already for this reason.
 
45. Even if the above-mentioned basic conditions for the distance learning of children with special needs have been met, the Constitutional Court, as it already did in Decision No. U-I-473/20 (paragraph 18 of the reasoning), stresses that children with special needs, taking their specificities and limitations into account, need education and training adapted especially to them which, as a general rule, they can only obtain in institutions in which specially trained professionals interact with them all the time, which is something they are not ensured at home. Parents may not be able or even know how to provide adequate assistance in the education and training of these children.[34] It should also be mentioned that the parents also did not have at their disposal the appropriate aids and materials used in the education of these children in schools and institutions for children with special needs. In addition, the performance of educational work at a distance also meant that it deprived children with special needs of direct contact with their peers in educational institutions, while ensuring such contact is important for the social and emotional development of (also these) children. It should also be pointed out that, as a rule, during the period of the closure of educational institutions, children with special needs were completely deprived of therapies and special treatments that they are otherwise provided in these institutions and that are essential for their development, and which cannot be carried out at a distance at all, or, to the extent that that was possible, could not be carried out in an equally effective manner. Also according to the opinion of a paediatric specialist, which was submitted by the Government itself, the provision of these treatments and therapies is as important, if not more important, to the educational process of these children than the teaching in the classroom itself. All of the above means that the severity of the consequences of the interference with the human right of children with special needs to education and training, which was the result of the measures of the closure of educational institutions for children with special needs and their consequent distance learning and training, was undoubtedly very high.
 
46. The Constitutional Court emphasises that the gravity of the consequences of the challenged interferences with the right determined by the second paragraph of Article 52 of the Constitution is certainly less severe insofar as such interferences last for a certain – indeed shorter – period of time during which children with special needs are provided the special therapies and treatments that they urgently need. If that condition were met, a separate question could therefore arise as to the gravity of the consequences of the interference of the challenged measures with the right of children with special needs to education and training during the initial period of the operation of the measures. Given that, as already stated, the condition of providing special treatment and therapies was generally not met at the time of the closure of these organisations, the Constitutional Court did not need to further address this question. In this respect, it should not be overlooked that children with special needs are as a rule not entitled to these treatments during holidays. Moreover, this was already the second closure of the above-mentioned institutions in a short period of time; in fact, educational institutions had already been closed for a long time in spring 2020 due to the COVID-19 epidemic.
 
47. With regard to the alleged benefits of the challenged two measures for the protection of the health and lives of people during the period at issue, the Constitutional Court first stresses (as similarly already stated in paragraph 16 of Order No. U-I-473/20) that given the small number of children in schools and institutions for children with special needs, as well as the small number of children in classes in these institutions, the closure of educational institutions for children with special needs cannot be considered to have contributed significantly to the management of the epidemic.[35] It should also be borne in mind that the Government has not at all explained what the actual role of educational institutions for children with special needs was, in the context of the spread of the epidemic, at the time the disputed measures were adopted. With regard to the reference of the Government and the MESS to the fact that when adopting Ordinance/181 and Order of the Minister/181 the Government also took into account the opinion of the expert community, the Constitutional Court reiterates its position already adopted in Decision No. U-I-473/20 (paragraph 16 of the reasoning) that from the opinion of the expert advisory group of the Ministry of Health on the COVID-19 epidemic submitted by the Government, it does not follow that institutions for the education of children with special needs should not be opened at all, but only that they should be opened individually, depending on the diagnoses of the children with special needs in the specific school, on whether they are in schools where children are in institutions, and on the children's and the parents' expectations. Furthermore, not even the paediatric specialist whose opinion was submitted by the Government did not object in principle to the opening of organisations for the education of children with special needs, taking into account the recommendations for safe opening even while the epidemic was ongoing.
 
48. The Government's reference to the issue of providing public transport for children to institutions and schools and to the fact that the opening of schools would not only mean the arrival of pupils at schools, but also the arrival of all employees and parents is unfounded as well. As the Constitutional Court already explained in Order No. U-I-473/20 (para. 17), the Government had already decided to ease to a certain extent the measures referring to public transport during the time of the epidemic, which shows that it was possible to operate public transport under certain conditions at least during part of the period at issue (Decree on Limitations on and the Methods of Operation of Public Passenger Transport on the Territory of the Republic of Slovenia, Official Gazette RS, No 188/20). Moreover, the petitioners allege that most parents would be willing to drive their children to educational institutions themselves. As regards employees and parents coming to schools and institutions, the petitioners rightly draw attention to the fact that the prohibition of gathering in these institutions did not apply to employees (the first indent of the first paragraph of Article 2 of Ordinance/152, Ordinance/181, and Ordinance/183), and that it was not necessary to enable parents to enter into educational institutions because it was possible to organise that they drop off and pick up children at assembly points outside those institutions.
 
49. Moreover, as the Constitutional Court also explained in Order No. U-I-473/20 (see paragraphs 16 and 21 of the reasoning), a number of measures were available to mitigate the negative effects of the functioning of these institutions on the spread of the epidemic. Also in these institutions, every effort should have been made to apply the measures recommended by the expert community to prevent the spread of infections with the virus (e.g. hand hygiene, coughing and sneezing hygiene, the ventilation of premises, measures for dropping off and picking up children at schools and institutions, etc.). These institutions could also have operated only partially, if necessary. In order to prevent contact between people outside classrooms, educational work directly in schools and institutions for children with special needs could perhaps have been carried out on a smaller scale than usual (e.g. without extramural clubs and extra activities, or even morning care or extended stay). However, due to the potential increased risk of spreading infections within certain institutions for children with special needs, it would have been possible to temporarily close only these institutions or only individual classes thereof, and not all schools and institutions for children with special needs. It would also have been possible to limit the disputed measures at issue to only specific spatial areas (e.g. statistical regions) where the epidemiological situation was worse.
 
50. Last but not least, in addition to the functioning of these institutions, it would also have been possible to provide special protection to those participants in the educational process whose infection with the virus would have been expected to increase the likelihood of serious health complications for them or their family members. They should have been allowed to continue to participate in educational processes without direct contact with other participants. This too could namely have significantly mitigated the serious consequences that the functioning of schools and institutions for children with special needs could have had on the health and lives of people.
 
51. In view of the above, the Constitutional Court, while acknowledging that the opening of schools and institutions for children with special needs could have entailed an increased risk of the transmission of SARS-CoV-2 virus infections and that the Government, when adopting measures to manage the epidemic, had to take into account its worsening state during the period at issue and the existing capacities of the health care system, considers that the negative effects of the general closure of educational institutions for children with special needs on the exercise of the right of these children to education and training were greater than the benefits that the performance of these measures could have had on the protection of the health and lives of people. When ordering the challenged measures for children with special needs, it was not taken into account that the second paragraph of Article 52 of the Constitution provides special protection to children with special needs in the field of education and training, which means that the state, when regulating issues that may jeopardise the exercise of these rights, must act with particular care, even in a crisis situation, and seek solutions that ensure the rights of these children to the greatest extent possible.
 
52. The challenged regulation thus entailed a disproportionate interference with the right of children with special needs determined by the second paragraph of Article 52 of the Constitution. In that context, the Constitutional Court stresses once again that such can only hold true under the assumption that, had these educational institutions remained opened, the measures listed in the preceding paragraphs of the reasoning by which the negative effects of the continued operation of educational institutions on the spread of the epidemic could have been mitigated would have been sufficiently observed, and that, as the educational institutions would have remained opened, the individuals for whom or for whose family members an infection with the SARS-CoV-2 virus would have increased the likelihood of serious health complications would have been appropriately protected.
 
 
B – V
 
The decision
 
53. The challenged provisions of Ordinance/152, Ordinance/181, Ordinance/183, and Order of the Minister/181 were inconsistent with the second paragraph of Article 120 and the second paragraph of Article 52 of the Constitution (Point 1 of the operative provisions). Since these regulations are no longer in force, the Constitutional Court had to determine, in accordance with the first paragraph of Article 47 of the CCA, whether such a finding has the effect of abrogation or annulment. The decision depends on whether and how the harmful consequences of the unconstitutional regulations can be remedied. As follows from the second paragraph of Article 45 of the CCA, the Constitutional Court annuls an unconstitutional implementing regulation if it establishes that it is necessary to eliminate the harmful consequences that have arisen as a result of the unconstitutionality. The petitioners do not even propose annulment. As regards the consequences that they have allegedly sustained as a result of the unconstitutional regulations, they describe how the closure of their school and the cessation of educational activities allegedly affected their development and refer to the difficult situation in which their families found themselves during the period at issue. These consequences cannot, by their very nature, be remedied by annulling the unconstitutional regulations. Therefore, the Constitutional Court decided that the finding that the reviewed Ordinances and Order of the Minister/181 are inconsistent with the second paragraph of Article 120 and the second paragraph of Article 52 of the Constitution shall have the effect of abrogation (Point 2 of the operative provisions).
 
54. In view of the adopted decision on the inconsistency of the challenged ordinances and Order of the Minister/181 with the second paragraph of Article 120 and the second paragraph of Article 52 of the Constitution, the Constitutional Court did not examine the petitioners' other allegations relating to these regulations.
 
 
C
 
55. The Constitutional Court adopted this Decision on the basis of Article 47 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. Dr. Klemen Jaklič (Oxford, UK; Harvard, USA), Dr Špelca Mežnar, Dr Marijan Pavčnik, Marko Šorli, and Dr Katja Šugman Stubbs. The Decision was adopted by five votes against four. Judges Jadek Pensa, Jaklič, Knez, and Šorli voted against. Judges Accetto, Mežnar, Pavčnik, and Šugman Stubbs submitted concurring opinions. Judges Jadek Pensa and Knez submitted dissenting opinions.
 
 
 
 
 
 
Dr Rajko Knez
President
 
 
[1] In accordance with Article 2 of the Placement of Children with Special Needs Act (Official Gazette of the Republic of Slovenia, Nos. 58/11 and 90/12 – hereinafter referred to as the PCSNA-1), children with mental disabilities, blind and partially sighted or visually impaired children, deaf and hearing-impaired children, children with speech and language impairments, children with physical disabilities, children with long-lasting diseases, children with deficits in particular areas of learning, children with autistic disorders, and children with emotional and behavioural disorders who require adapted educational programmes with additional professional assistance or adapted educational programmes, i.e. special educational programmes, classify as children with special needs.
[2] In accordance with Article 5 of the PCSNA-1, after the end of the preschool period, children with special needs are educated according to the following educational programmes: educational programmes with adapted delivery and additional professional assistance; adapted educational programmes with an equivalent educational standard; adapted educational programmes with a lower educational standard; special educational programmes for children with moderate, severe, and profound mental disabilities; other special programmes; and developmental programmes.
[3] It is one type of institution where children with special needs are raised and educated. Namely, from Article 18 of the PCSNA-1 it follows that, in addition to public schools or branches of schools established or organised to carry out adapted programmes and special programmes for children with special needs, or individual programmes thereof, are also carried out by public schools in regular classes, public schools in special classes with an adapted programme, public institutions for raising and educating children with special needs, and public social care institutions.
[4] See the Order on the Prohibition of the Gathering of People in Educational Institutions, Universities, and Independent Higher Education Institutions (Official Gazette RS, Nos. 19/20 and 22/20), the Ordinance on the Temporary Prohibition of the Gathering of People in Educational Institutions, Universities, and Independent Higher Education Institutions (Official Gazette of the Republic of Slovenia, Nos. 25/20, 29/20, and 65/20), the Ordinance on the Temporary Prohibition of the Gathering of People in Educational Institutions (Official Gazette of the Republic of Slovenia, No. 67/20), and the Ordinance on the Temporary Prohibition of the Gathering of People in Educational Institutions (Official Gazette of the Republic of Slovenia, No. 78/20).
[5] The epidemic was declared by the Ordinance on the Declaration of the COVID-19 Epidemic in the Territory of the Republic of Slovenia (Official Gazette RS, No. 146/20), which entered into force on 19 October 2020, and was then prolonged by new ordinances.
[6] As regards the date from which it was applicable, see Article 5 of Ordinance/152.
[7] See Article 5 of Ordinance/183.
[8] See Article 5 of the Ordinance on the Temporary Prohibition of the Gathering of People in Educational Institutions and Universities and Independent Higher Education Institutions (Official Gazette of the Republic of Slovenia, Nos. 204/20, 2/21, and 5/21 – hereinafter referred to as Ordinance/204) in conjunction with Article 6 of Ordinance/183.
[9] It should be explained that distance learning for pupils in Years 6 to 9 of primary school, on the basis of Order No. 603-33/2020/1 of the Minister of Education, dated 16 October 2020, which is not the subject of review in the case at issue, was organised even before the autumn holidays, namely in the period from 19 to 23 October 2020.
[10] See Point 4 of the operative provisions and para. 21 of the reasoning of Partial Decision and Order No. U-I-445/20.
[11] In the period from 26 October to 1 November 2020, the two petitioners had autumn holidays, and from 2 to 8 November 2020 they had extended autumn holidays.
[12] With respect to the cessation of the validity of Ordinance/152, see para. 15 of the Partial Decision and of Order No. U-I-445/20. Ordinance/181, however, ceased to be in force on the basis of Article 5 of Ordinance/183.
[13] Ordinance/183 ceased to be in force on the basis of Article 5 of Ordinance/204 in relation to Article 6 of Ordinance/183. The formal basis for the termination of the validity of Order of the Minister/181 is Point III of the Order on the Performance of Educational Work at a Distance (Official Gazette RS, No. 32/21 – hereinafter referred to as Order of the Minister/32), which entered into force on 9 March 2021. In fact, the general obligation to perform distance education for children with special needs already ceased to be in force with the expiry of the last ordinance that determined the temporary prohibition of the gathering of people in schools and institutions for children with special needs. As already stated, the prohibition of the gathering of people in schools and institutions for children with disabilities was no longer in force from 5 January 2021 onwards.
[14] The Constitutional Court stated such already in Decision No. U-I-118/09, dated 10 June 2010 (Official Gazette RS, No. 52/10, and OdlUS XIX, 6), para. 11 of the reasoning.
[15] Cf. Decision No. U-I-11/07, dated 13 December 2007 (Official Gazette RS, No. 122/07, and OdlUS XVI, 86), para. 18 of the reasoning, in which the Constitutional Court adopted this position with regard to the first para. of Article 52 of the Constitution.
[16] See Decision of the Constitutional Court No. U-I-118/09, para. 17 of the reasoning. See also B. Kresal 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. 559, where she discusses the meaning of Article 52 of the Constitution.
[17] See B. Kresal, op. cit., p. 560.
[18] See I. Bantekas, M.A. Stein, and D. Anastasiou, The UN Convention on the Rights of Persons with Disabilities, A Commentary, Oxford University Press, Oxford 2018, p. 334.
[19] Ibidem, p. 326.
[20] UN Committee on the Rights of the Child, Day of General Discussion on “The Right of the Child to Education in Emergency Situations”, Recommendations, 19 September 2008, paras. 23 and 36.
[21] UN Committee on the Rights of Persons with Disabilities, General Comment No. 4 (2016), para. 14.
[22] See Decision of the Constitutional Court No. U-I-118/09, para. 17 of the reasoning.
[23] The fact that children with special needs must also be assisted within the framework of the right to education through the provision of a wide range of additional measures also follows from the comment of the Committee on the Rights of Persons with Disabilities on point (d) of the second para. of Article 24 of the CRPD (General Comment No. 4 (2016), para. 31).
[24] For example, by obtaining written documents and instructions at a certain place or by sending such to pupils by post or via electronic means of communication, and by the possibility of electronic access to certain learning content that is prepared or recorded in advance or by playing recordings of educational content on radio or television, and, last but not least, also by conducting lessons via various electronic applications.
[25] In this respect, attention must be drawn to the position of the United Nations Sustainable Development Group that was included in the “Influence of COVID-19 on Children” report – in accordance with which it is children with special needs who are the least likely to benefit from distance learning, p. 12, accessible at:
[26] While in the introductory part of the ordinances also the third para. of Article 21 of the Government of the Republic of Slovenia Act (Official Gazette RS, Nos. 24/05 – official consolidated text, 109/08, 8/12, 21/13, 65/14, and 55/17 – hereinafter referred to as the Act on the GRSA) is stated as their legal basis, it only determines the type of act by which the Government regulates issues of general interest and as such does not constitute a substantive basis for adopting measures by implementing regulations that with a view to preventing the spread of a communicable disease interferes with human rights and fundamental freedoms. Namely, the third para. of Article 21 of the GRSA determines that the 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.
[27] By point 3 of the first para. of Article 39 of the CDA, the legislature authorised the Government, when the measures determined by this Act cannot prevent the introduction of certain communicable diseases into the Republic of Slovenia and the spread thereof, to also adopt a measure prohibiting the gathering of people in schools, cinemas, bars, restaurants, and other public places until the threat of the spread of the communicable disease ceases.
[28] The first para. of Article 104 of the ADTMMRC reads as follows: “Educational work (lessons and other forms of organised work) with pupils and students in primary schools, primary schools with an adapted programme, institutions for educating children and adolescents with special needs, music schools, secondary schools, and higher vocational schools may be carried out in the form of distance learning if such is necessary to mitigate and remedy the consequences of COVID-19. The minister competent for education shall decide thereon by an order.”
[29] See Decision of the Constitutional Court No.  U-I-79/20, dated 13 May 2021 (Official Gazette RS, No. 88/21), paras. 72 and 83 of the reasoning. See also Decision of the Constitutional Court No. U-I-8/21, dated 16 September 2021, paras. 17 and 18 of the reasoning.
[30] The second para. of Article 120 of the Constitution is a fundamental provision of the Constitution in this field. From the constitutional case law, it follows that this provision is also reflected in a special manner in some other provisions of the Constitution from which follows the requirement that individual issues must be regulated by law. See, e.g., Decision No. U-I-178/10, dated 3 February 2011 (Official Gazette RS, No. 12/11, and OdlUS XIX, 17), para. 19 of the reasoning, as regards Article 149 of the Constitution; Decision No. U-I-156/08, dated 14 April 2011 (Official Gazette RS, No. 34/11), para. 42 of the reasoning, as regards the second para. of Article 58 of the Constitution; Decision No. U-I-215/11, Up-1128/11, dated 10 January 2013 (Official Gazette RS, No. 14/13), paras. 7 and 8 of the reasoning, as regards Article 147 of the Constitution; Decision No.  Up-459/17, U-I-307/19, dated 21 January 2021 (Official Gazette RS, No. 42/21), para. 14 of the reasoning, as regards the first para. of Article 51 of the Constitution in conjunction with the second para. of Article 50 of the Constitution.
[31] 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).
[32] See the European Centre for Disease Prevention and Control (hereinafter referred to as the ECDC) report on the transmission of infections among children in educational institutions, dated 23 December 2020 (COVID-19 and Children and the Role of School Settings in Transmission), accessible at: https://www.ecdc.europa.eu/en/publications-data/children-and-school-settings-covid-19-transmission), pp. 1–2 and 10.
As regards the possibility of children becoming infected with and being carriers of SARS-CoV-2, see also B. Lee, MD, W. V. Raszka, Jr. MD, Covid-19 in Children: Looking Forward, Not Back, accessible at: https://pediatrics.aappublications.org/content/147/1/e2020029736.
[33] For example, wearing masks, insofar as this is even a proportionate measure, is not possible at least during mealtimes. Indoor ventilation can also be less consistently carried out in some weather conditions, and schools do not (yet) have adequate ventilation systems.
[34] There can be various reasons for this. Taking into account at the outset that the parents of these children are generally not professionally qualified to perform educational activities for children with special needs, there could also have been various other obstacles, e.g. the burden of other domestic obligations that the parents faced at the time of the closure of the educational institutions (e.g. dealing with the siblings of children with special needs, ensuring the provision of all meals throughout the day), and, understandably, also the burden of work obligations, which, despite the principled possibility of absence from work for childcare purposes during the period of the closure of educational institutions (the second and third paras. of Article 57 of the ADTMMRC), could not be avoided by many of the parents. It is also worth noting that some parents (foreigners) do not have a good command of the language in which education is provided.
[35] In December 2020, this message was also published in the media by experts who are also members of the Ministry of Health's expert advisory group on the COVID-19 epidemic. See, e.g., https://www.rtvslo.si/slovenija/beoviceva-proti-sproscanju-ukrepov-odprtje-trgovin-bi-pomenilo-dodatno-srecevanje/544896.
 
 
U-I-445/20
U-I-473/20
11 October 2021
 
 
 
CONCURRING OPINION OF JUDGE DR MATEJ ACCETTO REGARDING DECISION NO. U-I-445/20, U-I-473/20, DATED 16 SEPTEMBER 2021
 
1. I concur with the operative provisions and was able to support the Decision. However, I have strong reservations regarding the assessment carried out in Part B – III of the reasoning of the Decision. Since the disagreement with my colleagues forming the majority over this part of the reasoning does not affect my decision regarding the operative provisions, I was able to support the Decision. However, I feel obliged to draw attention to this divergence of positions and to explain it briefly.
 
2. In Part B – III, the assessment of the conformity of the challenged implementing regulations with the principle of legality was carried out, i.e. that the functioning of the administration is based on laws, as determined by the second paragraph of Article 120 of the Constitution, even though, as is also stated in the Decision (in paragraph 30 of the reasoning), the petitioners do not allege such inconsistency, but only substantive inconsistency of the challenged implementing regulations with the second paragraph of Article 120 of the Constitution. In the Decision, this is explained with the argumentation that a substantive assessment of measures is only sensible if the measures are based on a sufficient statutory basis and that, therefore, even before a substantive assessment is carried out, an assessment of consistency with the principle of legality must also be carried out, at least in instances where "a manifest doubt arises" regarding the latter, even if there are no arguments for that in the petition.
 
3. Such an approach to assessing legality is, in my view, erroneous or deficient. In its most extreme logical derivation, it means that the Constitutional Court, while assessing the constitutionality or legality of implementing regulations, should regularly, as a sort of a "preliminary question", also carry out the assessment of the constitutionality of their statutory basis, regardless of whether the application contains any allegations as to a presumed unconstitutionality of a specific statutory provision. In such instance, the same would perhaps also apply to any alleged disproportionality of an interference with a human right by a law – even there, the Constitutional Court would then always be required to carry out the assessment of the constitutionality of the statutory provisions regulating that measure even before carrying out the assessment of whether the objective is constitutionally admissible and the strict test of proportionality, again irrespective of whether there was any basis for such an assessment in the specific application.
 
4. In my view, the Decision also at this point appropriately determines the order of reasoning or assessment when the court carries out the complete assessment. In such an instance, the assessment of the appropriate statutory basis or the appropriate chain of legal bases that are directly or indirectly based on the Constitution[1] must certainly be carried out before the substantive assessment of the proportionality of the measure. If a measure interfering with fundamental rights has no appropriate legal (statutory) basis, the question of its proportionality in practical terms does not even arise.[2] However, in my view, the Court must not disregard the applicant's burden of allegation in this respect and assess the constitutionality of the statutory basis even if the latter is not disputed by the applicant.[3] The applicant's allegation that the measure is substantively disproportionate does not in itself include an allegation that the (sub)statutory basis is inconsistent with the principle of legality, nor is the assessment of the latter in itself an inevitable part of the strict test of proportionality or the test of the constitutional admissibility of the objective of the measure as its prerequisite. Insofar as the latter at least indirectly touches upon the question of statutory basis, it is in my assessment not possible to state that the requirement of the existence of a statutory basis automatically also entails a requirement that its constitutional consistency must be substantively assessed.
 
5. The fact that the emphases made in the preceding paragraph of this opinion hold true is, after all, confirmed by the Decision itself where it states that, even in the absence of proper arguments in the petition, an assessment of consistency with the principle of legality must be carried out even prior to the substantive review, at least in instances where a “manifest doubt arises” as to such consistency. Hence, also in accordance with the reasoning of the Decision, the allegations of substantive inconsistency do not in themselves also include an allegation of inconsistency with the principle of legality, nor is this assessment inextricably connected with the substantive assessment of proportionality, since the assessment from the perspective of the principle of legality is not necessarily carried out in all instances, but only (or at least) in those instances in which a manifest doubt arises as to the consistency of the challenged measure with the Constitution. The chosen criterion (where "a manifest doubt arises”) can also be understood as an attempt to limit the far-reaching nature of the position adopted in the Decision – however, in my assessment, it is neither substantively justified nor sufficiently procedurally defined to be able to justify a departure from the normal requirement that the applicant's burden of allegation be observed.
 
6. From a somewhat distant systemic perspective of constitutional review, the question of the appropriate order of hearing cases may arise, at least pragmatically, when several applicants challenge the same (sub)statutory regulation, and (only) some of them do so also from the perspective of the principle of legality. In such circumstances, I am prompted to consider that the assessment of applications that (also) include allegations of an inconsistency with the principle of legality should be carried out before the assessment of those applications in which the allegations made are limited to claims of substantive inconsistency of the measures with the requirements of proportionality, in particular if the assessment of the latter alone would lead to a finding of the constitutional conformity of the challenged measures, as was the case in Decision No. U-I-83/20.[4] For a similar reason, I had no difficulty this time in supporting the approach whereby the Constitutional Court first ruled in Case No. U-I-8/21 and only then in the present case. However, I remain strongly reserved towards the approach according to which the Constitutional Court would carry out an assessment of conformity with the principle of legality even in cases where there are no appropriate arguments for such an assessment in the application, but where, according to the Constitutional Court, a manifest doubt arises as to the constitutional conformity of the challenged regulation from this perspective.
 
7. I would therefore delete Part B – III in its entirety from the reasoning, notwithstanding the fact that substantively, I would otherwise concur with the Court's reasoning in that part. In my view, the Constitutional Court should namely not have carried out at all such an assessment in the absence of appropriate arguments. Since my disagreement with the reasons provided in the Decision does not change my decision regarding the operative provisions, I was nevertheless able to vote in favour thereof, despite the strong reservations described above.
 
 
                                                                                   Dr Matej Accetto
                                                                                            Judge
 
 
[1] See, e.g., A. Barak, Proportionality: Constitutional Rights and Their Limitations, Cambridge University Press, Cambridge 2012, pp. 108–110.
[2] Similarly, I have long advocated the observance of the order of assessment when applying the strict test of proportionality – see concurring opinion of judge Accetto regarding Decision of the Constitutional Court No. Up-320/14, U-I-5/17, dated 14 September 2017 (Official Gazette RS, No. 59/17, and OdlUS XXII, 9).
[3] The situation is to some extent different when constitutional complaints are considered if the Constitutional Court, once it concludes that the procedural requirements have been fulfilled and once it takes into account the allegations of the complainant, establishes that the challenged individual act is based on a potentially unconstitutional regulation and carries out a review of its constitutionality ex officio in accordance with the second paragraph of Article 59 of the CCA.
[4] Decision of the Constitutional Court No. U-I-83/20, dated 27 August 2020 (Official Gazette RS, No. 128/20).
 
U-I-445/20
U-I-473/20
11 October 2021
 
 
 
SEPARATE OPINION OF JUDGE DR. DUNJA JADEK PENSA REGARDING DECISION NO. U-I-445/20, U-I-473/20, DATED 16 SEPTEMBER 2021
 
 
 
I concur with Point 1 of the operative provisions of the Decision – insofar as it is based on a substantive review of the challenged regulation. I voted against because I could not concur with such decision insofar as it was based on a reproach of a formal nature. The reproach concerned the inconsistency of the challenged regulation with the second paragraph of Article 120 of the Constitution (cf. paragraphs 29–34 of the reasoning of the majority Decision). I share the view of the majority that the principle of legality, derived from the second paragraph of Article 120 of the Constitution, is an important element of the rule of law determined by Article 2 of the Constitution (paragraph 29 of the reasoning). However, it should not remain the only important element on the path to the ideal of a state governed by the rule of law.
 
 
The reasons for an allegation of an inconsistency with the second paragraph of Article 120 of the Constitution
 
Let me stress that this allegation, which is addressed to the ordinances of the Government, is an automatic consequence of the established inconsistency of point 3 of the first paragraph of Article 39 of the Communicable Diseases Act (Official Gazette RS, No. 33/06 – official consolidated text and 142/20 – hereinafter referred to as the "CDA") with the second paragraph of Article 52 of the Constitution. Therefore, I call it an allegation of a formal nature. Hence, it would not be possible to address this allegation before first assessing the unconstitutionality of the CDA. However, (1) the unconstitutionality of the CDA from the viewpoint of the second paragraph of Article 52 of the Constitution, as understood from the perspective of the requirements of the second paragraph of Article 120 of the Constitution, is mentioned merely in the reasoning of the Decision,[1] (2) it was established through an ex officio intervention by the Constitutional Court, without the Constitutional Court having constitutional or statutory powers to do so, and (3) without the National Assembly being given an opportunity to be heard – as the National Assembly did not have the position of an opposing party.[2]
 
I will add the following: Not even in the constitutional dispute in which the Constitutional Court adopted Decision No. U-I-79/20, dated 13 May 2021 (Official Gazette of the Republic of Slovenia, No. 88/21), was the National Assembly informed of the constitutional review at issue of point 3 of the first paragraph of Article 39 of the CDA. In fact, the subject of that Decision was not the constitutional review of the CDA at issue. This clearly also follows from paragraph 32 of the reasoning of the majority Decision.
 
The position in the majority Decision that “[...] at least in instances when manifest doubt arises as to the conformity of a statutory regulation and the implementing regulation based thereon with the principle of legality, [...] the Constitutional Court, in view of the nature of the matter, cannot avoid such a review, even if the petition does not provide any arguments for such an assessment” (paragraph 30 of the reasoning) is not placed in a context of a constitutionally and statutorily regulated power of the Constitutional Court to intervene of its own motion. So it is not derived from these bases either. The only substantiation of this position is, to my understanding, the position itself.
 
I opine that the constitutionally and statutorily regulated power of the Constitutional Court to intervene of its own motion outlines an important aspect of the relationship between constitutional authorities in a state governed by the rule of law. The nuance of the constitutional dispute is therefore not irrelevant. The same applies to the possibility of the authority to adopt a position as to the allegation of unconstitutionality of a regulation that it has adopted and that is the subject of constitutional review; and also to the requirement that the circle of the addressees of a decision of the Constitutional Court be unambiguously defined. In particular, if the allegation of an unconstitutionality of a law suggests that the National Assembly should remedy the established unconstitutionality.
 
I have not overlooked that the constitutional issue related to the principle of legality was resolved more quickly in such way. However, the principle of legality should not remain the only important element on the path to the ideal of a state governed by the rule of law. In my view, the pursuit of efficiency in the resolution of a constitutional question must not obscure the requirements of the constitutionality and legality of the proceedings in which this question can be addressed. From the perspective of our duty that we as judges have to (inter alia) implement and safeguard the constitutionality and legality of proceedings that we conduct, I could not agree with the procedural framework in which the allegation that the challenged ordinances of the Government were inconsistent with the principle of legality was made.
 
Therefore, I voted against Point 1 of the operative provisions;[3],[4] although I concur with this decision insofar as it is based on an allegation of a substantive nature, i.e. from the perspective of the right determined by the second paragraph of Article 52 of the Constitution.
 
 
The review of the challenged regulation from the perspective of the second paragraph of Article 52 of the Constitution
 
The right determined by the second paragraph of Article 52 of the Constitution is a positive right. The answer to the question of when the state has fulfilled its positive obligations is inseparably connected to the determination of the required standards in this field. Therefore, the following position in the majority Decision is crucial: When fulfilling positive obligations, the state must exercise particular care in seeking solutions that ensure, to the greatest extent possible, the right of children with special needs to education and training for independent work in life (paragraphs 24 and 51 of the reasoning of the majority Decision). The right determined by the second paragraph of Article 52 of the Constitution protects (in a concise manner) against the failure to provide special care to ensure that these children receive professional treatment, and thus against the failure to provide treatment that should, as far as possible, ensure that these children are provided education and training for an active life in society, but which should not impose a disproportionate burden on the state.[5] The requirements imposed on the state are indeed strict, but not unlimited. When an interference with a right is caused by the state's failure to fulfil a positive obligation, the assessments of the interference and its (in)admissibility are closely connected.[6] Below, I will explain how the specific features of the assessment I have described have played out in the circumstances of this case. The assessment of the majority is, to my understanding, based on a different concept.
 
Combatting the spread of a serious communicable disease in epidemic conditions raises a number of technical questions in terms of protecting the lives and health of people. Without answering these technical questions, it is not possible, in my view, to assess either whether the benefits of the hitherto ordinary treatment of children with special needs may be outweighed by the risk to life and health from the possibility of transmission of the virus between contacts, or whether the provision of ordinary treatment in the context of combating a communicable disease may entail a disproportionate burden for the state. In order to resolve these questions, the involvement of experts is required, as we, the judges, do not have the expertise in these areas.
 
The opinion of the expert group dated 4 and 5 December 2020 was therefore crucial for my decision-making process. The experts involved were Prof. Dr Marko Noč, MD, Mag. Marko Bitenc, MD, Assoc. Prof. Dr Nina Gorišek Miksić, MD, Assoc. Prof. Dr Tatjana Lejko Zupanc, MD, Simona Repar Bornšek, MD, Mario Fafangel, MD, Prof. Dr Bojana Beović, MD, and Milan Krek, MD, as well as the expert paediatric specialist Prof. Dr Damijan Osredkar, MD. The majority Decision refers to this opinion in paragraph 47 of the reasoning. In my opinion, it was precisely the expert assessments contained in this opinion that were of key importance; therefore, I will summarise them below. It follows therefrom that "schools for children with special needs should be opened individually, depending on the diagnoses of the children with special needs in the specific school, on whether they are in schools where children are in institutions, and on the children's and the parents' expectations;" and that in this context, it is necessary that the schools are well prepared to receive the pupils, "and that they will do everything possible to prevent contact with the virus and to immediately contain the outbreak if it occurs." Prof. Dr Damijan Osredkar, MD, also stressed that the safety of children with special needs is "more important than their academic progress", but "the default attitude that children with special needs should stay at home" is not appropriate in his view. Despite all the issues associated with the COVID-19 pandemic, from these opinions there does not follow, to my understanding, an assessment that, in order to protect life and health, gatherings should (categorically) also be prohibited in these schools; it is understood that this assessment presupposes that these institutions are thoroughly prepared to prevent the intrusion of the virus and to contain it should an outbreak of the disease occur.
 
I have not found any explanation in the Government's allegations as to why it has failed to respond to such opinion of the expert group, nor any explanation of possible obstacles to its efforts to open schools for children with special needs in line with the expert recommendations. I have therefore not found any substantiation as to why the burden of the recommended opening of schools for children with special needs in the epidemiological situation at the time of the adoption of the challenged ordinances would have been a disproportionate burden for the state, proceeding from the duty to provide special treatment to children with special needs, on the one hand, and the duty to protect the lives and health of people, on the other. That being the case, I had to assume that the possibilities mentioned by the expert group in this field of regulation had not been exhausted. I can deduce therefrom that the positive obligations of the state in this field of its activities have been abandoned, contrary to the explained standards of protection of the right determined by the second paragraph of Article 52 of the Constitution.
 
It does not seem to me that the protection of life and health is the central goal of the measure of distance learning during a prohibition of gatherings in schools. As I understand it, this objective has already been achieved by the prohibition of gatherings in schools. The protection of life and health is certainly the actual effect of distance learning, because logically there is no physical proximity between pupils and between pupils and teachers, which is important for the spread of the virus; however, in a situation where schools are closed, this cannot be its main objective. I am more inclined towards the understanding that during the prohibition of gatherings in schools, the central goal and purpose of this measure is to create conditions for education. But creating the conditions for education means fulfilling the positive obligations of the state. Hence, it is not a question of abandoning its positive obligations. And fulfilling the positive obligations imposed by a positive right does not in itself entail a limitation of that right.[7] However, I could not ignore that the possibilities of the state in terms of the treatment of children with special needs in schools have not been exhausted (cf. above). Therefore, by providing distance education to children with special needs, the state has not been able to fulfil its obligation, i.e. it has not achieved the standards of protection imposed by the right determined by the second paragraph of Article 52 of the Constitution. The close connection between the measures contained in the challenged ordinances and the Order is also underlined by the majority.
 
 
As regards the effect of abrogation of the challenged measure (Point 2 of the operative provisions)
 
The majority justified this part of the Decision by reference to the first paragraph of Article 47 of the CCA (paragraph 54 of the reasoning). However, the Constitutional Court has stated elsewhere in the same case (cf., for example, paragraph 10 of the reasoning of the order accepting for consideration petition No. U-I-473/20, dated 21 December 2020, Official Gazette RS, No. 195/20) that it does not decide in the situation regulated in Article 47 of the CCA.[8] Nevertheless, the majority, in paragraph 54 of the reasoning, refers precisely to this provision as the relevant assessment criterion.  Unfortunately, they do not explain the meaning of and purpose for the conclusion that the finding of the challenged regulation being unconstitutional has the effect of abrogation. I am therefore not convinced by the sole reason for this decision, i.e. the reference to the first paragraph of Article 47 of the CCA.[9] Let me remind that the Constitutional Court decided in a situation where the challenged implementing regulations were no longer in force and there was no legal interest for their review as regulated by Article 47 of the CCA.
 
 
 
 
 
                                                                                   Dr Dunja Jadek Pensa
                                                                                              Judge
 
 
[1] I will not address the reasons for the allegation that the CDA is unconstitutional. I opine that the procedural conditions for such assessment have not been fulfilled.
[2] The importance of a statement of the authority that adopted the reviewed regulation is recognised in a constitutional dispute and observance of the possibility of making a statement is required (cf. Article 28 of the Constitutional Court Act, Official Gazette of the Republic of Slovenia, No. 64/07 – official consolidated text, 109/12, 23/20, and 92/21 – hereinafter referred to as the CCA).
[3] From these often-repeated positions it follows: (1) that in the event of a constitutional review of a regulation, the operative provisions and reasoning of a decision entail a whole, due to which not only are the operative provisions binding, but also the reasons and positions contained in the reasoning (from Decision of the Constitutional Court No. Up-2597/07, dated 4 October 2007, Official Gazette RS, No. 94/07, and OdlUS XVI, 108, paragraph 6 of the reasoning), and (2) that with respect to declaratory decisions this also applies if the operative provisions of the decision do not expressly refer to the reasons stated in the reasoning (cf. Decision No. U-I-92/96, dated 21 March 2002, Official Gazette RS, No. 32/02, and OdlUS XI, 45, and Order No. U-I-168/97, dated 3 July 1997, OdlUS VI, 103).
[4] A formal criticism addressed to the Order of the minister responsible for education is an automatic consequence of the established unconstitutionality of Article 104 of the Act Determining Temporary Measures to Mitigate and Remedy the Consequences of COVID-19 (Official Gazette of the Republic of Slovenia No 152/20 – hereinafter referred to as the ADTMMRC) by Decision of the Constitutional Court No. U-I-8/21, also adopted on 16 September 2021. Since I was unable to support the mentioned Decision (the reasons for my disagreement are described in my separate opinion regarding that Decision), I cannot concur with the reproach of a formal nature that arises from its automatic effect on the challenged Order at issue.
[5] Cf. Decision No. U-I-156/11, Up-861/11, dated 10 April 2014 (Official Gazette RS, No. 35/14, and OdlUS XX, 24), paragraph 23 of the reasoning.
[6] Cf. H. D. Jarass and B. Pieroth, Grundgesetz für die Bundesrepublik Deutschland, 11th Edition, Beck Verlag, Munich 2011, p. 36.
[7] C. Bumke and A. Voßkuhle, German Constitutional Law, Introduction, Cases, and Principles, Oxford University Press, Oxford 2019, p. 77.
[8] The distinction between the situations referred to in the first and second paragraphs of Article 47 of the CCA is irrelevant in this respect, because the condition of the existence of the consequences of the unconstitutional regulation no longer in force is the same in both instances. In this respect, the second paragraph refers to the first paragraph of Article 47 of the CCA.
[9] The obligation of the Constitutional Court to state reasons for its decision is determined by the second sentence of the second paragraph of Article 40 of the CCA.
 
U-I-445/20
U-I-473/20
13 October 2020
 
 
 
DISSENTING OPINION OF JUDGE DR RAJKO KNEZ REGARDING DECISION NO. U-I-445/20, U-I-473/20, DATED 16 SEPTEMBER 2021
 
 
The constitutionality of the closure of schools for children with special needs during the epidemic
 
 
I
 
1. Although I supported the Partial Decision and Order in the present case,[1] which, inter alia, accepted for consideration the petition concerning the constitutional review of the prohibition of gatherings in schools, i.e. the closure of schools, and although I consider that the measure of the closure of schools violated the right of children with special needs determined by the second paragraph of Article 52 of the Constitution, I could not support the decision of the majority. The reasons for refusing support are (i) the reference to the assessment in Decision No. U-I-79/20, which resulted in finding an unconstitutionality of the challenged provisions in relation to the second premise above; (ii) the question of whether the adversarial proceedings were appropriately carried out; (iii) the proportionality test as regards the assessment of the interference, and (iv) the legal effect of the abrogation of the challenged provisions that are no longer in force. 
 
 
II 1
 
2. As regards the various premises above and the carried out adversarial proceedings. The unconstitutionality of the Ordinances is established for two reasons: first, because the principle of legality (the second paragraph of Article 120 of the Constitution) was violated,[2] and second, because the Ordinances entail an unjustified interference with the second paragraph of Article 52 of the Constitution.[3] Below, I will first focus on the first reason. When accepting the petition for consideration, the Constitutional Court did not announce it would carry out a review for this reason[4] and the petitioners do not allege that either. Notwithstanding the above, the Constitutional Court, unlike in case No. U-I-83/20, also carried out ex officio a review from this perspective.[5] In this respect, this review comes as a surprise to the Government, but also to the legislature, which was not involved in these proceedings. It is true that the Constitutional Court carried out this assessment by making a reference to a previous decision and did not carry it out anew. But I see a problem with that. The Constitutional Court refers to case No. U-I-79/20, in which it found that point 3 of the first paragraph of Article 39 of the Communicable Diseases Act was unconstitutional,[6] namely from the perspective of Article 42 of the Constitution. That was the upper premise. This provision of the Constitution regulates the right to assembly and association. The aforementioned point of the first paragraph of Article 39 of the CDA, however, not only regulates gatherings in general, in public areas, etc., but actually also covers the educational process in schools ("[...] prohibit the gathering of people in schools [...] until the threat of the spread of a communicable disease has ceased"). This is, in my view, part of the other upper premises, namely the third paragraph of Article 57,[7] the first sentence of the first paragraph of Article 56,[8] and, above all, the second paragraph of Article 52 of the Constitution.[9] However, the legislature was not given the opportunity to adopt a position as to the possible unconstitutionality of the part of this provision of the CDA relating to the limitation of gatherings in schools from the perspective of the mentioned upper premises of the Constitution.[10] Especially not when it comes to children with special needs, who have a positive right under the Constitution, to which strict standards of protection apply in this context.[11] I became really reserved at this point because due to the various upper premises and part of the lower premise, which in Decision No. U-I-79/20 has not been specifically addressed (gatherings in schools), the contradictory nature of proceedings should have been ensured. However, it's not that simple. The mentioned lower premise has namely already been judged unconstitutional in its entirety. But not in terms of the issues raised by the prohibition of gatherings in schools.
 
3. This quandary is, in my view, not only a consequence of the approach to the interpretation of both the upper premise (the second paragraph of Article 120 and Article 42 of the Constitution), but also of the interpretation of the lower premise, i.e. the aforementioned point of this Article of the CDA and the context, namely the epidemic. In order for the reader to be able to better understand my view, reference should be made to my dissenting opinion in case No. U-I-79/20. Namely, I did not support that Decision due to the main reasons, inter alia the comparison of the strictness of the assessment of the principle of legality with cases that do not sufficiently take into account the epidemic (the clash between the human rights to freedom of movement and assembly and the positive obligation of the state to protect public health and the functioning of the health system). Consequently, also the established unconstitutionality of the entire point 3 of the first paragraph of Article 39 of the CDA transpires to be problematic, without that provision being broken down and classified in a legal syllogism under various upper premises. This would allow for a different treatment of the individual elements of the lower premise, and thus also for a distinction between the reasons for or against the finding of an (un)constitutionality (e.g. different findings for the closure of schools and for gatherings in general). However, the chosen approach of the majority suggests the automatic finding of the unconstitutionality of all implementing regulations based on this point, even though the circumstances may be significantly different from those in case No. U-I-79/20 and may refer to various gatherings or gatherings that are non-exhaustively listed by the law (but with negative enumeration, i.e. not definitively).[12] The majority thus communicates that it will no longer be possible to interpret and break down the lower premise – and hence ensure adversarial proceedings – in future cases where a review would prove to be necessary (because it will no longer be carried out). Nor will a review any longer be made available in the case of the other upper premises, including such as the second paragraph of Article 52 of the Constitution, which requires the exercise of a positive obligation towards children with special needs or disabilities.[13] In paragraph 32 of the reasoning, the Constitutional Court states that the criteria used for the assessment are identical and that those that were applied for the assessment of the lower premise when the upper premises were Article 42 and the second paragraph of Article 120 of the Constitution shall be applied. I do not concur with that.
 
4. Especially in the event of a declaratory decision, it must be explained to the addressee (i.e. the Government and the National Assembly) where the reason for the unconstitutionality is in the lower premise (if that premise addresses and regulates different situations, which ones), and in relation to which aspects of each or several of the upper premises (constitutional provisions) it exists, if they are to be applied separately or simultaneously. The reliance only on the grounds of the already established unconstitutionality, which did not concern schools and the treatment of children with special needs, where the positive role of the state is emphasised and where other upper premises are at stake, meant that I disagreed with the majority even before I was able to address the substance (i.e. the proportionality test in assessing the interference with the second paragraph of Article 52 of the Constitution).
 
 
II 2
 
5. As regards the substantive assessment. In Part B IV, the Decision continues with the assessment of measures regarding which it has previously found that they do not fulfil the conditions of the principle of legality. Understandably, it is not disputable that the Constitutional Court also carries out a substantive review on the second grounds (which it announced when accepting the petition for consideration[14]), even if it has already established an unconstitutionality on the first grounds. Without delving into what I consider to be far-reaching reasons with which the Constitutional Court explained in particular the proportionality in the narrow sense in the first place,[15] I consider that it is not clear from the challenged provisions of the ordinances and the reply of the Government how the positive right arising under the second paragraph of Article 52 of the Constitution is being exercised. From the reply of the Government it follows that the Ministry has called on to schools to prepare adapted learning materials for pupils with special needs, to individualise and adapt the instructions to their deficit, and to take into account, mutatis mutandis, the individualised programmes for pupils. Hence, from the challenged provisions of the ordinances there does not follow a binding distinction between pupils and pupils with special needs. By the challenged ordinances, the Government did not enact individual treatment proposed by the expert community.[16] The Government did not explain in its reply whether or not this satisfies the positive right referred to in the mentioned upper premise[17] during the period of an epidemic and where the limits of such measures are (taking into account that the longer a measure lasts, the more invasive it becomes[18]). This alone would be sufficient for the Constitutional Court to consider that it is not in a position to assess whether the interference is justified.
 
 
III
 
6. With respect to the unconstitutional legal basis for the Order of the Minister (the introduction of distance learning), the Constitutional Court refers to Decision No. U-I-8/21, in which the majority established an unconstitutionality of Article 104 of the Act Determining Temporary Measures to Mitigate and Remedy the Consequences of COVID-19. This provision provides a basis for distance learning and authorises the Minister to order such manner of providing education. I did not support the Decision in case No U-I-8/21,[19] and consequently also not the last indent of Point 1 of the operative provisions of the present Decision, regarding which I am submitting a separate opinion.
 
 
IV
 
7. I also disagreed with Point 2 of the operative provisions stating that the established unconstitutionality of the challenged provisions and the Order of the Minister shall have the effect of abrogation. I have already encountered this issue in Decision No. U-I-79/20. When the Constitutional Court accepts for consideration challenged provisions that are no longer in force in order to answer a particularly important precedential question of a systemic nature that may arise in the future,[20] the ratio of the substantive review lies in the effects for the future and is not based on the first paragraph of Article 47 of the CCA (remedying the consequences of an unconstitutionality, i.e. ex post effects that still last). Namely, the first paragraph of this provision of the CCA namely determines that the Constitutional Court shall decide what effect the established unconstitutionality of an implementing regulation shall have if the consequences of its unconstitutionality have not been remedied. When the reason for substantive consideration is not to produce any effect for the past (as in the case at issue, as I understand it, and also the acceptance of the case for consideration was not based on this reason), the first paragraph of Article 47 of the CCA also cannot be applied.
 
 
 
 
                                                                                   Dr Rajko Knez
                                                                                          Judge
 
[1] Partial Decision and Order No. U-I-445/20, dated 3 December 2020 (Official Gazette RS, No 179/20).
[2] Paras. 29–32 of the reasoning of the Decision.
[3] Paras. 35–52 of the reasoning of the Decision (part B – IV).
[4] The petition was adopted due to a particularly important precedential question of a systemic nature, which may recur periodically in the future. See para. 16 of the reasoning of the Partial Decision and Order No. U-I-445/20.
[5] See para. 30 of the reasoning of the Decision.
[6] The Communicable Diseases Act (Official Gazette RS, Nos. 33/06 – official consolidated text, et seq. – hereinafter referred to as the CDA).
[7] It reads: “The state shall create the opportunities for citizens to obtain a proper education.”
[8] It reads: “Children shall enjoy special protection and care.”
[9] It reads: “Physically or mentally handicapped children and other severely disabled persons have the right to education and training for an active life in society.”
[10] The legislature did not participate in these proceedings. In paragraph 30 of the reasoning of the Decision it is stated that the petitioners do not allege that the principle of legality has been violated and that the Constitutional Court reviewed the challenged regulation of its own motion also from this perspective. The Decision then refers to Decision No. U-I-79/20. While in the latter Decision, as I mentioned, the Constitutional Court found that the entire challenged point 3 of the first paragraph of Article 39 of the CDA was unconstitutional (due to a violation of the principle of legality) because it was placed under the upper premise of Article 42 of the Constitution, in the present case there were other upper premises as well as part of the lower premise that only refers to schools. The actual circumstances refer to schools and educational institutions for children with special needs.
[11] The mentioned constitutional provision protects the rights of persons with disabilities, who, because of their vulnerability, need special treatment as the subjects of rights. Prioritising people with disabilities is essential to their self-fulfilment and to effectively protecting their mental and physical integrity. It is required due to the value of human dignity, which requires that every individual can live a decent life and is able to self-realise in life. The provision contains the phrase “disabled persons", although its second paragraph contains the more appropriate phrase “physically or mentally handicapped children and other severely disabled persons". Such is stated by J. Letnar Černič in: M. Avbelj (Ed.), Komentar Ustave Republike Slovenije [Commentary on the Constitution of the Republic of Slovenia], Part 1: Human rights and fundamental freedoms, Nova Univerza, Evropska pravna fakulteta, Ljubljana 2019, p. 464.
[12] Point 3 of the first paragraph of Article 39 of the CDA reads as follows: “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 [...]”.
[13] The state must take comprehensive measures to ensure the human dignity of children with special needs. In legal theory, priority education and facilitated access to public institutions are listed as a reasonable core of all rights of persons with disabilities, referring to constitutional and international human rights doctrine. Special protection of children with special needs means that the state must act with particular care when regulating issues that may jeopardise or affect their rights, and seek solutions to ensure special protection to the maximum extent possible. For more on this, see J. Letnar Černič, op. cit., pp. 465–467, and Decision of the Constitutional Court in case No. U-I-118/09.    
[14] See footnote 4 above.
[15] In paras. 44 and 45 of the reasoning of the Decision.
[16] Which is summarised in para. 47 of the reasoning of the Decision.
[17] See also footnotes 11 and 13 of this separate opinion.
[18] Decision No. U-I-83/20, dated 27 August 2020, para. 56 of the reasoning.
[19] See the separate opinion regarding that Decision.
[20] The Constitutional Court first formulated this criterion in paragraph 43 of the reasoning of Decision No. U-I-129/19, dated 1 July 2020 (Official Gazette RS, No. 108/20).
 
 
U-I-445/20
U-I-473/20
U-I-8/21
11 October 2021
 
 
CONCURRING OPINION OF
JUDGE DR ŠPELCA MEŽNAR REGARDING DECISION
NO. U-I-445/20, U-I-473/20 AND PARTIAL DECISION NO. U-I-8/21, BOTH DATED 16 SEPTEMBER 2021
 
 
The Constitutional Court decided on three closely substantively connected cases. In the first one (No. U-I-8/21), the statutory provision (Article 104 of the ADTMMRC) that entailed the statutory basis for introducing distance learning during the COVID-19 epidemic was challenged. The constitutional question was whether the statutory regulation is substantively sufficiently precise such that it did not leave it to administrative authorities (the Minister of Education) to regulate by themselves questions that in accordance with the Constitution may only be regulated by the legislature. In this part, our review concerned both children who attend primary school and children who attend institutions and schools for children with special needs.
 
In the other two cases (No. U-I-445/20, U-I-473/20), the review only focused on children with special needs. The Constitutional Court reviewed implementing acts by which distance learning for children with special needs was imposed during the COVID-19 epidemic. In so doing, the Constitutional Court did not repeat the methodological mistake from case No. U-I-83/20.[1] Before it (also) carried out a substantive review of the challenged implementing measures, it first ex officio carried out a review thereof from the perspective of whether they are based on a sufficient statutory basis, which is a requirement for their consistency with the principle of legality determined by the second paragraph of Article 120 of the Constitution. In fact, it adopted the position that at least when manifest doubt arises as to the conformity of a statutory regulation and the implementing regulation based thereon with the principle of legality, the Constitutional Court cannot avoid such assessment – regardless of whether the petitioners invoke it or not (Part B – III, paragraph 30 of the reasoning of the Decision).[2] Since the review of the statutory basis was carried out already in cases No. U-I-79/20 (regarding the prohibition of gathering in schools) and No. U-I-8/21 (regarding the introduction of distance learning), the review of the implementing acts (i.e. the governmental ordinances and the order of the Minister) by which the temporary prohibition of gathering in educational institutions for children with special needs and their distance learning were ordered, could have stopped at that point. It is namely clear that implementing acts based on an unconstitutional statutory basis (i.e. an insufficiently precise implementing clause) cannot be valid. However, the Constitutional Court proceeded to review the proportionality of the measure (Part B – IV of the Decision) from the perspective of Article 52 of the Constitution, which specifically safeguards the rights of children with special needs as regards education and training.
 
Below, I will only add several emphases from both decisions that decisively contributed to me deciding to vote in favour thereof.
 
Decision No. U-I-8/21
 
In Slovenia, the legislature has exclusive power to regulate human rights and obligations. The executive branch of power must never (except in a state of emergency) regulate in an originary manner the exercise of human rights and fundamental freedoms (Article 15 of the Constitution). This holds all the more true as regards interferences with human rights.
 
The rights to education as well as to education and training are fundamental human rights (Article 57 and the second paragraph of Article 52 of the Constitution). The Constitution does not provide a clear answer to the question of whether these two rights (in circumstances that are not a state of emergency) encompass merely classes in schools (in “live” form), i.e. with the physical presence of teachers and pupils in schools, or also distance learning. If the constitutional right to education only encompasses classes in the presence of teachers and pupils on the premises of a school, then ordering distance learning entails an interference with that right. If distance learning only entails one modality of exercising the constitutional right to education, ordering distance learning does not entail an interference with that right, but merely a manner of the exercise thereof.
 
I concur with the majority, which assessed that distance learning, in comparison with lessons in schools, signifies significantly worse schooling conditions for primary school children, and in particular for children with special needs, due to which it entails an interference with the mentioned two constitutional rights. However, the constitutional review of the statutory provision that enables the Minister to order distance learning does not depend on the question of whether such entails an interference or “merely” a modality of that right. Namely, in both instances Article 15 of the Constitution and the principle of legality (Article 120 of the Constitution) require that the legislature regulate fundamental questions regarding schooling.
 
As a general rule, the legislature really acts so. In the Primary School Act (hereinafter referred to as the PSA), the legislature (only) envisaged two modalities of the right to education – carrying out lessons in schools and distance learning[3] (see Article 1 of the PSA). The Act regulates in detail, for both forms of education, the organisation of lessons in schools, the rights and obligations of pupils, the educational functioning of schools, and the manner of grading and assessing knowledge. The PSA does not mention distance learning and does not envisage it. Furthermore, no other law in our legal system provides an answer to the question of how distance learning is carried out and what the differences are in comparison to lessons in schools. This is precisely where the fundamental issue of the challenged provision lies. The legislature introduced the possibility of distance learning without defining what it even means.[4] For instance, distance learning can mean visiting pupils at home (the teacher comes to the pupil’s home), sending materials with instructions for work by mail (post or e-mail), the use of all forms of computer technology (video recordings, video conferences, video channels, virtual classrooms), or telephone conversations between pupils and teachers. Precisely the determination of the manners of distance learning is a matter in the (exclusive) competence of the legislature. In fact, if distance learning requires the use of computer technology (e.g. email, video conferences, online classrooms), the question of the positive obligation of the state is necessarily raised: in such case, the state must ensure that every pupil who participates in distance learning must have appropriate equipment and space available.
 
The fact that the Act did not substantively define distance learning is not its sole deficiency. The Constitutional Court drew attention in a well-reasoned way to the fact that the legislature must also prescribe the criteria and circumstances in which the executive branch of power may introduce distance learning. In such context, the message that prior to the introduction of distance learning (i.e. before lessons in schools are completely discontinued), it is urgently necessary to ascertain whether already milder measures (e.g. classes in smaller groups, shifts, periodical live classes) can attain the objective of limiting the epidemic at issue. Hence, the legislature must not only choose between normal classes in schools for everyone (which is what the PSA envisages) and the complete discontinuation of classes in schools (which is what the challenged provision of the ADTMMRC envisages), but must already at the statutory level envisage and then request from the executive branch of power the adoption of the mildest form of the limitation of the right to education. It is also imperative that the legislature take into consideration that the limitation of fundamental constitutional rights cannot be arbitrary; it is namely not admissible to completely discontinue lessons in schools and concurrently allow the normal functioning of the state in other fields. In other words: already the law must prevent a situation wherein the executive branch of power substitutes lessons in schools with distance learning, while concurrently allowing the gathering of people in shops, shopping centres, restaurants, bars, tourist facilities, etc.
 
The Constitutional Court also drew attention to the criteria referred to in Decision No.  U-I-79/20. When interfering with rights as fundamental as freedom of movement, education, and assembly and association, the legislature must take into consideration the possibility that measures be territorially limited, limited in time, and the duty to consult the expert community and appropriately inform the public.
 
Decision No. U-I-445/20, U-I-473/20
 
In this part, what should be underlined is the message that the constitutional protection of children with special needs requires not only the special attention of the executive branch of power as regards their education, but also as regards ensuring all those (complementary) activities that such children urgently need in order to be able to live a quality (independent) life. Hence, not even during an epidemic may the executive branch of power neglect the fact that by introducing distance learning it abolishes not only live lessons in schools, but also special treatments, physiotherapy, work therapies, speech therapies, psychological treatment, and, not least of all, the possibility of social and emotional development, which necessitates social contacts with peers and is of significant importance for children with special needs. Distance learning, however, does not represent a good supplement for children with special needs even as regards education. In a school environment (class, teacher, attendants assistants, peers), it is certainly significantly easier to maintain the attention of children with special needs than in a home environment (home, parents, a computer screen).
 
By deciding that the rights of an especially vulnerable group of the population of Slovenia, which is very small in numeric terms, were disproportionally limited, the Constitutional Court sent an important message: children with special needs deserve special care even during times of a severe epidemic. Such does not entail that schools and institutions must never close for them. It only entails that the protection of public health and the obligation to protect the lives of people from a communicable disease have a limit. In the concrete circumstances, the Minister overstepped this limit also by ordering distance learning for children with special needs at the same time and in completely the same way as for regular primary schools, without taking into consideration and without contemplating the specificities of this group of children and the consequences this would have on their development.
 
Finally, it should be underlined that the review of the implementing acts by which during the COVID-19 epidemic distance learning for children in regular primary schools was ordered has yet to be carried out by the Constitutional Court. This is a “remainder” of the allegations from case No. U-I-8/21, which has until now only been partially decided (the review of the constitutionality of the law at issue). The operative provisions are already clear. Undoubtedly, also these parts of the ordinances are unconstitutional, as they are based on an unconstitutional statutory basis. However, since the Constitutional Court left this part to be decided on in the future, it will probably (as it has done with regard to children with special needs) also review it from the perspective of the principle of proportionality.
 
 
 
 
                                                                                        Dr Špelca Mežnar
                                                                                                Judge
 
 
[1] By Decision No. U-I-83/20, the Constitutional Court assessed that the implementing measure of limiting a human right (freedom of movement) is proportionate without having beforehand ex officio carried out a constitutional review of a law (Article 39 of the CDA) that was at first glance manifestly insufficiently precise from the viewpoint of the principle of legality. This assessment was in fact also required in other (earlier) cases.
[2] See the dissenting opinion of judge Mežnar regarding Decision No. U-I-83/20.
[3] Learning at home cannot be equated with distance learning.
[4] See note No. 15 in the Decision.
 
 
U-I-445/20
U-I-473/20
U-I-8/21
7 October 2021
 
 
 
CONCURRING OPINION OF
JUDGE DR MARIJAN PAVČNIK REGARDING DECISIONS
NO. U-I-445/20, U-I-473/20, AND U-I-8/21, DATED 16 SEPTEMBER 2021
 
 
THE VULNERABILITY OF CHILDREN WITH SPECIAL NEEDS AND A STATE GOVERNED BY THE RULE OF LAW
 
1. In my concurring opinion entitled “The Hierarchy of the Legal Order" (regarding case No. U-I-79/20) I stressed that during the time of the COVID-19 communicable disease the central legal value is the protection of life and health.[1] This also holds true and perhaps even more so as regards vulnerable social groups (such as children with special needs) and everyone who deals with these groups in schools and educational institutions.
 
If it is possible to protect oneself from contracting COVID-19 [in other ways], children with special needs should only exceptionally participate in distance learning. If it is not possible to ensure protection therefrom, distance learning is inevitable. Protection also refers to family members of educational workers and the environment in which the staff of schools and educational institutions live.[2]
 
2. In case No. U-I-79/20 it was necessary to abrogate point 3 of the first paragraph of Article 39 of the Communicable Diseases Act because it violated a constitutional principle and the rule that implementing acts must be based on a relatively determinate statutory implementing clause that outlines the content, objective, and scope of regulation by implementing acts. German theory mentions the so-called programme of an implementing act (e.g. a decree) that the implementing act should normatively concretise.[3] 
 
A similar limitation is also contained in the Government of the Republic of Slovenia Act. A decree is a general legal act of the Government that “regulates in detail certain relations laid down by an Act or other legal act of the National Assembly in compliance with the purpose and criteria of an Act or other regulation.”[4] The Act specifically stresses (i.e. enacts the limitation) that a decree “for implementing the rights and obligations of citizens and other persons may only be issued on the basis of an express authorisation in a law”.[5]
 
The fundamental task of a statutory implementing clause is to formulate the concept and to state typical examples that are to be regulated by implementing acts. If such clause is lacking in a law or if it is excessively vague, such entails a violation of the principle of a state governed by the rule of law.[6] In the already mentioned concurring opinion entitled “The Hierarchy of the Legal Order”, it was specifically stressed that implementing acts must not regulate that which is in the competence of the legislature. The legislature is the authority that must determine the hard substantive centres of rights and obligations insofar as they are not already regulated by the Constitution. Fundamental questions are in the domain of constitutional regulation and then also statutory regulation.
 
3. The Constitutional Court also established that the first paragraph of Article 104 of the Act Determining Temporary Measures to Mitigate and Remedy the Consequences of COVID-19 (Official Gazette RS, No. 152/20), insofar as it refers to schools and educational institutions for children with special needs, is inconsistent with the Constitution. The mentioned paragraph states that distance learning lessons shall be carried out when “such is necessary to mitigate and remedy the consequences of COVID-19. The minister competent for education shall decide thereon by an order.”
 
The Act does not provide guidelines that the Minister or the Government should be allowed to adopt a position as regards distance learning. The constitutional principles of a state governed by the rule of law (together with at least relatively predictable legal regulation) and the lawful functioning of the executive and administrative authorities (referred to in the second paragraph of Article 120 of the Constitution) require that a law must determine the purpose, criteria, and measures by which laws should be normatively concretised by implementing acts.
 
4. In my concurring opinion entitled “The Hierarchy of the Legal Order" I already drew attention to the temporal aspect. I stressed, inter alia, that also when COVID-19 emerged, legal measures had to be adopted insofar as and in the manner that they were already envisaged by law. Then, the interpretation attempted to resolve what could be resolved.[7] The ADTMMRC was adopted on 23 October 2020, at a time when we already had some experience with COVID-19, and also when the Constitutional Court had already adopted the principled Decision No. U-I-83/20, which was accompanied by a number of separate opinions. Knowing this, it is not acceptable that the second paragraph of Article 104 of the ADTMMRC is conceptualised as a blanket (bianco) authorisation granted to the Minister and (or) the Government, which decide on [mandating] distance learning for a group as vulnerable as children with special needs.
 
5. In paragraph 29 of the reasoning (in case No. U-I-445/20, U-I-473/20) it is stressed, last but not least of all, that the principle of legality is an important aspect of a state governed by the rule of law as determined by Article 2 of the Constitution. This perspective encompasses the realisation that the principle of the rule of law has a number of procedural and substantive faces.[8] If possible and if procedural possibilities for such exist, it is correct that we consider a state governed by the rule of law as holistically as possible. If we act in such a manner, we deepen the theory of the hierarchy of the legal order. Every state authority is bound to a certain level of the legal order, i.e. to the level to which it must give meaning in accordance with the principles and rules of the levels of law to which it is subordinated. If the superior levels of the legal order do not provide the relevant state authority a firm substantive guideline as regards how it should normatively concretise rights and obligations, that state authority has already gone beyond what is deemed a state governed by the rule of law. 
 
 
                                                                                                
                                                                                        Dr Marijan Pavčnik  
                                                                                                   Judge
 
 
[1] See and cf. point 4 of my concurring opinion: “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.”
[2] See the reasoning in Para. 52 (of case No. U-I-445/20, U-I-473/20). The Constitutional Court specifically stressed that the partial or complete opening of schools and educational institutions requires appropriate safety measures. Such entails that “the individuals for whom or for whose family members an infection with the SARS-CoV-2 virus could be expected to entail a heightened risk of the occurrence of severe health complications” must be appropriately protected.
[3] See the first paragraph of Article 80 of the Basic Law for the Federal Republic of Germany. See also P. Badura, Staatsrecht. Systematische Erläuterung des Grundgesetzes, 6th Edition, C. H. Beck, Munich 2015, pp. 666−667. See also A. Igličar, Zakonodajna dejavnost [Legislative Activity], GV Založba, Ljubljana 2011, pp. 109 et seq.
[4] The first paragraph of Article 21 of the Government of the Republic of Slovenia Act, Official Gazette RS, Nos. 24/05 (official consolidated text), 109/08, 8/12, 21/13, 65/14, and 55/17. 
[5] The second paragraph of Article 21 of the Government of the Republic of Slovenia Act.
[6] See M. Pavčnik, Teorija prava, Prispevek k razumevanju prava [Theory of Law: A Contribution to Understanding Law], 6th revised edition (with a chapter by A. Novak), Lexpera, GV Založba, Ljubljana 2020, pp. 260−263, and the literature and decisions of the Constitutional Court of the Republic of Slovenia cited therein.
[7] See Para. 7 of the mentioned separate opinion.
[8] See and cf. M. Pavčnik (Ed.), Pravna država [A State Governed by the Rule of Law], GV Založba, Ljubljana 2009. Individual essays are authored by M. Cerar, A. Igličar, E. Kerševan, M. Pavčnik, V. Simič. M. Škrk, F. Testen, and D. Wedam Lukić.
 
U-I-445/20
U-I-473/20
11 October 2021
 
 
 
CONCURRING OPINION OF
JUDGE DR KATJA ŠUGMAN STUBBS REGARDING DECISION
NO. U-I-445/20, U-I-473/20, DATED 16 SEPTEMBER 2021
 
 
INTRODUCTION
 
Since the first session, at which we discussed the constitutional issues regarding the ordinances adopted during the COVID-19 epidemic,[1] I have advocated for two positions:
 
  1. that points 2 and 3 of the first paragraph of Article 39 of the CDA are prima facie insufficiently precise to such an extent that they cannot in any way entail a sufficient basis for the adoption of constitutionally consistent implementing regulations;[2]
  2. that it is not possible to assess the constitutionality of individual implementing regulations (in our case, Ordinances) without also assessing their statutory basis.
 
The first position has since been reaffirmed in our decisions on several occasions,[3] and it is also reiterated (from the perspective of the second right) in the underlying reasons for the decision regarding which I am writing this separate opinion.[4] Much more interesting is the second question, which is answered in Part B – III of the Decision. Since in the case regarding which I am writing this dissenting opinion this was the most disputable point among the judges (who were potentially prepared to support the operative provisions of the Decision), I would like to elaborate on my understanding of this issue in the present opinion. I also find this question interesting from a theoretical perspective, as it opens a new field, one that the Constitutional Court has thus far not yet encountered.
 
The key question can also be paraphrased as follows: Can the Constitutional Court directly assess the conformity with the Constitution of a specific implementing regulation without also taking into account the constitutionality of the statutory basis of this implementing regulation?[5]
 
 
THE HIERARCHY OF THE LEGAL ORDER AND ITS CONNECTION WITH THE PRINCIPLE OF THE SEPARATION OF POWERS
 
According to the theory of the hierarchy of law, legal acts are classified into three levels: constitutional, statutory, and implementing [i.e. sub-statutory].[6] These levels are regulated in a hierarchical manner; therefore, the rule is that lower acts must be in conformity with higher acts. Not only must implementing regulations be in conformity with laws (and the Constitution), they also derive their existence from laws,[7] which means that they can only be adopted on the basis and within the framework of laws. This dependence of implementing regulations on their source, i.e. laws, is so strong that when a law is inconsistent with the Constitution, the implementing regulation adopted on the basis of that law is automatically inconsistent as well. Such an act does not and cannot exist in the legal order.
 
Thus, the Constitutional Court has on numerous occasions abrogated implementing regulations because it established that the statutory basis was inconsistent with the Constitution due to the imprecision of the former.[8] These instances generally concerned significantly less invasive interferences with human rights than the so-called COVID-19 ordinances, or were even not such interferences at all.
 
This logic may seem formalistic at first sight, but it is not. It is deeply substantive and represents the very essence of a democratic state governed by the rule of law. At this point, the hierarchy of the legal order is intertwined with the principle of the separation of powers (the second sentence of the second paragraph of Article 3 of the Constitution), on which the idea of a modern state governed by the rule of law is constructed. To prevent arbitrariness and the centralisation of power in a particular branch of government, each branch has specifically determined and limited powers. The legislative branch of powers (the National Assembly) is the only one with the power to adopt laws (Articles 86 through 89 of the Constitution), while other state authorities are not allowed to amend or independently regulate the statutory subject matter.[9] On the basis of the second paragraph of Article 120 of the Constitution, administrative authorities perform their work independently, but under clearly determined conditions: within the framework and on the basis of the Constitution and laws (the second paragraph of Article 120 of the Constitution).
 
This limitation, which determines that the actions of administrative authorities are bound by the constitutional and statutory basis, is called the principle of legality.[10] The hierarchical nature of the legal order is thus tightly intertwined with other fundamental constitutional principles, such as the principle of democracy (Article 1 of the Constitution), the principle of the rule of law (Article 2 of the Constitution), and, as stated, the principle of the separation of powers (the second sentence of the second paragraph of Article 3 of the Constitution).
 
 
CAN THE CONSTITUTIONAL COURT REVIEW AN IMPLEMENTING REGULATION WITHOUT ALSO TAKING INTO ACCOUNT ITS STATUTORY BASIS?
 
The principle of legality 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. The very content of these two postulates makes it logically impossible to review an implementing regulation without also taking into account the review of the law. How will we be able to assess whether a particular ordinance is in conformity with the Constitution if we do not include the above criteria in our assessment? Any assessment of the constitutionality of an implementing regulation must necessarily include an assessment of at least one of the above questions.[11] Both inherently cover the content of the law: whether a particular implementing regulation is adopted on the basis of the law and whether it is adopted within the substantive framework of the law. Conceptually, it is not possible to assess constitutionality without taking into account the statutory basis and the legal framework.
 
At the same time, our consideration is further complicated by the fact that one of the criteria for assessing whether implementing regulations are adopted on the basis of a law is the precision of the statutory basis. If the law is not sufficiently precise, it is not even possible to assess whether an implementing regulation is substantively within the scope of the law. The statutory basis must namely contain sufficiently clear criteria on the basis of which the executive branch of power can adopt implementing regulations within the framework of the law. If these frameworks are not sufficiently clear, then it may well happen that the executive branch of power regulates the content of human rights in an originary manner and independently.[12] This is contrary to the idea of a democratic state. Thus, any review of the constitutionality of an implementing regulation must necessarily also include an examination of the precision of the statutory basis. And again: it is hence imperative that it takes into account the law as well. How, then, can it even be argued that the constitutionality of an implementing regulation can be reviewed directly, without reviewing its statutory basis?
 
It could be argued that the Constitution itself contains the criteria that the law must or should contain. For some of the criteria, this may be true. For example, the Constitution requires all regulations, (including implementing regulations,) to be proportionate. However, it is impossible to imagine that the Constitutional Court would review the constitutionality of an implementing regulation directly on the basis of the Constitution, because the Constitution cannot contain all the more specific substantive criteria (also crucial for the assessment of proportionality) that a law would have to provide. It clearly follows from the constitutional case law that the intention of the legislature and the value criteria for implementing the law must be clearly expressed in the law or undoubtedly evident therefrom.[13] The law must fundamentally by itself regulate 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.[14] All of this, which is also a substantive criterion for assessing proportionality, is certainly not directly derivable from the Constitution.
 
The debate could, understandably, be further extended to the question of what are the criteria that can (perhaps) be applied directly under the Constitution to directly review an implementing regulation. Even if such criteria may exist (without also covering the law), it is certainly not possible to carry out a comprehensive analysis of a certain implementing regulation on the basis thereof. As mentioned above, the key content, framework, and guidelines for the more detailed regulation of an implementing regulation must be prescribed precisely, in a law. If the law is not taken into account when assessing the constitutionality of an implementing regulation, then these criteria cannot be included in the assessment of the implementing regulation. Such an analysis (even if some of the direct criteria for assessing an implementing regulation were derived from the Constitution) is therefore certainly so incomplete that without a further analysis of the law it can never lead to the conclusion that a certain implementing regulation is in conformity with the Constitution. How could it, if we have not assessed certain criteria?
 
Therefore, if there exist directly applicable constitutional criteria for assessing implementing regulations, they certainly do not allow for a comprehensive assessment of an implementing regulation. On the basis of such criteria (if they exist) it is therefore impossible to conclude that a certain implementing regulation is in conformity with the Constitution. The only theoretical possibility would be to find that, on the basis of these criteria alone, the implementing regulation is inconsistent with the Constitution.[15] It can therefore be established that it is not possible to carry out a detailed assessment of the constitutionality of an implementing regulation without taking into account its statutory basis. In fact, if a law is deficient or flawed to such a degree that it does not contain clear limits and guidance for the executive branch of power, then we simply cannot directly review the implementing regulation adopted on its basis.
 
 
CAN A "PERFECT" IMPLEMENTING REGULATION COMPENSATE FOR THE SHORTCOMINGS OF THE STATUTORY BASIS?
 
I have demonstrated above why without statutory content it is not possible to assess an implementing regulation. This raises a further question: can an implementing regulation, despite the shortcomings of the statutory regulation, fully meet all the criteria that a law that is completely in conformity with the Constitution should require therefrom (leaving aside the question of how this could even be established in the absence of the statutory basis)? The answer to this question in our system must surely be: no. Such an act cannot exist independently if the statutory basis is deficient. In other words: since implementing regulations derive their existence from a law, they fail without a law, even if they are (or could be) otherwise perfect in terms of their content. The reason for this is clear: the executive branch of power cannot compensate for the failures of the legislative branch of power, especially when it comes to interfering with fundamental human rights. If it could do so, it would be regulating in an originary manner a field that is reserved by the Constitution exclusively to the legislative branch of power.
 
The analogy with the so-called Schumann formula is more than obviously not applicable with respect to this question. The Constitutional Court is sometimes uses the Schumann formula when it examines constitutional complaints and ascertains whether courts (or administrative authorities) interpreted the law in a constitutionally consistent manner. In doing so, it helps itself by playing a mind game in which it imagines a certain disputable position as the content of a law and asks itself whether, were it written in a law, the position of the court would be inconsistent with the Constitution. The view that emerged in our discussions was that perhaps we could imagine the content of an implementing regulation as the content of a law and assess it, by analogy with Schumann's formula, as the content of a law. An analogy was hence established between a position in a judicial decision and the content of an implementing regulation. In both instances, we would first imagine that the content of the law is at issue, and then ascertain whether such statutory content would pass the test of constitutionality.
 
This analogy is not applicable for several reasons, the most crucial of which is precisely the hierarchy of the legal order. I have explained above why even a substantively perfect implementing regulation cannot compensate for the damage it does to the principles of democracy, the separation of powers, and the rule of law. Regardless of the content of provisions, the executive branch of power simply must not circumvent the requirement that the fundamental criteria for limiting human rights are determined by law. If it did, it would be regulating the matter in an originary manner, which is not allowed in our system. Therefore, if the Constitutional Court directly examines the constitutionality of an implementing regulation, using the Schumann formula, pretending that it is the content of a law, it becomes complicit in a violation of the separation of powers: in an interference of the executive branch with the legislative branch of power. Hence, it accepts that, in ordinary circumstances, the Government can prescribe interferences with human rights through "perfect" ordinances. This is completely unacceptable.
 
Understandably, the analogy between the arguments of a court decision and the content of an implementing regulation is not tenable either. That is precisely why the Schumann formula is used exclusively in the assessment of constitutional complaints and not in the assessment of the constitutionality of general acts. Both the nature of the authorities adopting judgments or regulations and their powers are incomparable. Courts have the task to interpret and substantively fill in the law, whereas the conduct of the executive branch of power, as shown above, is merely an executive concretisation of clearly determined statutory powers.
 
 
CONCLUSION
 
On the basis of all this, two things are completely clear.
 
Firstly: in a legal order there cannot exist a constitutionally consistent implementing regulation –­ even if substantively perfect (whatever that means) – if its statutory basis is inconsistent with the Constitution. This would mean that the executive branch of power determined that which should be in the law. Such conduct would be even more unacceptable with respect to implementing regulations that interfere with human rights, because in such an instance not only is the principle of legality violated, but also the principles of democracy, the rule of law, and the separation of powers. Virtually all so-called COVID-19 ordinances are such. Allowing such subject-matter to be regulated by implementing regulations without respect to the statutory basis or without a statutory basis would de facto mean that the executive branch regulates interferences with fundamental human rights by implementing regulations. In normal circumstances, a democratic state would not allow this, even if the executive branch of power (the Government) were to do so in a substantively complete and proportionate way, because such regulation is only allowed to be made by democratically elected representatives who serve in the National Assembly.[16]
 
Secondly: The Constitutional Court should never make an assessment that a certain implementing regulation is in conformity with the Constitution without taking into account the statutory basis of that implementing regulation. As shown above, in the absence of a review of the law, the key criteria by which the conformity with the Constitution of a particular implementing regulation should be comprehensively assessed are absent as well. Unfortunately, the Constitutional Court has already made this mistake once, in Decision No. U-I-83/20. By that Decision, the Court found that certain articles of the ordinances[17] under review at the time were not inconsistent with the Constitution, without examining their statutory basis. More precisely, the majority at the time delved into assessing their proportionality without carrying out the assessment of the constitutionality of their statutory basis.
 
It is precisely this slip of the majority at the time that shows how theoretically and methodologically erroneous the approach was at the time. In fact, in a later case No. U-I-79/20, the same Court found that the statutory basis on which also the ordinances under review at the time were adopted was unconstitutional. Hence, conceptually, Decision No. U-I-83/20 was erroneous, because the ordinances, which were adopted on an unconstitutional basis (which was later reviewed), could not have been in conformity with the Constitution at that time. As we know: implementing regulations must share the fate of the law on the basis of which they were adopted. Hence, it is completely clear that the first decision was erroneous, particularly because the majority insisted on not reviewing the constitutionality of the statutory basis of the ordinances under review.
 
It is therefore extremely important that the Constitutional Court, in the case regarding which I am writing this separate opinion, also considered the question of legality of its own motion, because otherwise it would not have been able to assess the implementing regulation in a methodologically correct manner. The position expressed in paragraph 30 of the reasoning of the Decision is therefore decisive for future assessments, namely: It is only sensible to carry out a review of the conformity of measures adopted by implementing regulations with the substantive provision of the Constitution if they are based on a sufficient statutory basis. Namely, a measure adopted by an implementing regulation that interferes with an individual human right and is not based on a sufficient statutory basis cannot be in conformity with the Constitution. This means, however, that at least in instances when manifest doubt arises as to the conformity of a statutory regulation and the implementing regulation based thereon with the principle of legality, the Constitutional Court, in view of the nature of the matter, cannot avoid such a review, even if the petition does not provide any arguments for such an assessment.
 
Only such an approach is consistent, logically coherent, and in line with theoretical foundations of constitutional law. And only such an approach will ensure that the system of constitutional review will no longer be characterised by such contradictory decisions as were Decision No. U-I-83/20 and the underlying Decision No. U-I-79/20, which sets a strong precedent in reviewing so-called COVID-19 ordinances.
 
 
 
 
                                                                                   Dr Katja Šugman Stubbs
                                                                                              Judge
 
[1] These issues were raised for the first time in case No. U-I-83/20.
[2] In thinking along these lines, I was guided in particular by the analogy with the Constitutional Court's leading decision concerning the review of the provisions on detention, namely Decision No. U-I-18/93. See also K. Šugman, Kazenskoprocesna doktrina v luči odločb Ustavnega sodišča [Criminal Procedure Doctrine in Light of Decisions of the Constitutional Court], Collection of Legal Research Papers, Vol. 63 (2003), pp. 469–502.
[3] See, e.g., Decision of the Constitutional Court No. U-I-79/20.
[4] See para. 32 of the reasoning of the Decision.
[5] In this part of the discussion, I partially refer to my concurring separate opinion in case No. U-I-79/20.
[6] M. Pavčnik, Teorija prava: Prispevek k razumevanju prava [Theory of Law: A Contribution to Understanding Law], Cankarjeva založba, Ljubljana 1997.
[7] Rupko Godec, Upravne norme in upravni akti [Administrative Norms and Administrative Acts], Upravni zbornik, Univerza v Ljubljani, Pravna fakulteta, Inštitut za javno upravo, 1993, pp. 155–232.
[8] See, e.g., Decision No. U-I-287/95, dated 14 November 1996, by which the Constitutional Court (inter alia) abrogated part of the second paragraph of Article 48 of the Securities Market Act because “the legislature gave the Agency mutatis mutandis the power to determine the conditions for withdrawing the licence of stock brokers to conduct transactions in 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 regulations.” By Decision No. U-I-123/92, dated 18 November 1993, the Constitutional Court abrogated 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. By Decision No. U-I-16/98, dated 5 July 2001, the Constitutional Court abrogated 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 determines the criteria for setting the timetable of the working hours of shops. See also Decision No. U-I-58/98, dated 14 January 1999, by which the Constitutional Court found Article 33 of the Road Transport Act to be inconsistent with the Constitution and abrogated the rules based thereon, because the challenged article provided that the ministry [responsible for transport] grants permits in accordance with the criteria, procedure, and manner determined by the rules adopted by the minister responsible for transport. By Decision No. U-I-60/06, U-I-214/06, U-I-228/06, dated 7 December 2006, the Constitutional Court found the fourth paragraph of Article 30 of the State Prosecution Service Act to be inconsistent with the Constitution. That Article determined 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. See also Decision No. U-I-390/02, dated 16 June 2005, by which the Constitutional Court established that Article 57 of the Health Care and Health Insurance Act is inconsistent with the Constitution and abrogated the order based thereon. The law 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.
[9] Decision of the Constitutional Court No. U-I-73/94, para. 19 of the reasoning.
[10] For more on the principle of legality, see G. 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, No. 3, 1999, pp. 467–488.
[11] If an unconstitutionality is established, the review may, understandably, stop already at the first criterion, but otherwise a decision must be adopted regarding both of them.
[12] The executive branch of power needs 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 to the specific legal system but that are also not so important as to be regulated already by the Constitution. The executive branch of power must not regulate these questions in an originary manner. 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. See also 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.
[13] Decision of the Constitutional Court No. U-I-50/00, para. 6 of the reasoning.
[14] 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. 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.
[15] Such claims have also been made in our discussions. Such a finding could entail a sort of preliminary assessment of the implementing regulation.
[16] All comparisons with US presidential decrees with the force of law are therefore irrelevant: the US presidential system has a completely different system of checks and balances; therefore their solutions cannot be transposed into our legal system.
[17] 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).
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
executive regulation
Applicant:
A. B., C.
Date of application:
13.11.2020
Date of decision:
16.09.2021
Type of decision adopted:
decision
Outcome of proceedings:
establishment – it is inconsistent with the Constitution/statute
Document:
AN04050