U-I-83/20

 

 

The Constitutional Court reviewed the consistency of two ordinances adopted by the Government in order to contain and manage the risk of the COVID-19 epidemic, namely the Ordinance on the Temporary General Prohibition of Movement and Gatherings in Public Places and Areas in the Republic of Slovenia and the Prohibition of Movement outside the Municipality of One’s Permanent or Temporary Residence (so-called Ordinance/38) and the Ordinance on the Temporary General Prohibition of Movement and Gatherings in Public Places and Areas in the Republic of Slovenia and the Prohibition of Movement outside the Municipality of One’s Permanent or Temporary Residence (so-called Ordinance/52).  

 

It carried out the review despite the fact that during the proceedings before the Constitutional Court the ordinances ceased to be in force as it assessed that the petition raises a particularly important precedential constitutional question of a systemic nature on which the Constitutional Court had not yet had the opportunity to take a position and which could also arise in connection with possible future acts of the same nature and with comparable subject matter. The question at issue is whether the prohibition of movement outside the municipality of one’s permanent or temporary residence determined by the challenged ordinances was consistent with the first paragraph of Article 32 of the Constitution, which guarantees freedom of movement to everyone.

 

The Constitutional Court conducted the review on the basis of the test of legitimacy, which entails an assessment of whether the legislature pursued a constitutionally admissible objective, and on the basis of the strict test of proportionality, which comprises an assessment of whether the interference was appropriate, necessary, and proportionate in the narrower sense.

 

The Constitutional Court assessed that by restricting movement to the municipality of one’s residence the Government pursued a constitutionally admissible objective, i.e. containment of the spread of the contagious disease COVID-19 and thus the protection of human health and life, which this disease puts at risk. It emphasised that striving to achieve this goal is also a constitutional obligation of state authorities; a slow and inadequate response to the emergence of a contagious disease that could put human health or even life at risk 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). While the Constitutional Court stressed that in the event of a contagious disease particular emphasis must be placed on the positive obligations of the state, it also underlined the duty of every individual to protect other people’s health, particularly the health of vulnerable groups, which may also affect restrictions of freedom of movement.

 

In the introductory part of its assessment of the proportionality of the interference with freedom of movement, the Constitutional Court underlined as an important circumstance of its review the fact that state authorities were inevitably faced with considerable uncertainty when introducing the measures at issue, since, particularly at the beginning of its spread, there existed almost no scientific or medical research on COVID-19. This does not mean that when drafting the measures at issue the state authorities were not required to take into account the already existing scientific findings and actively obtain, in collaboration with medical experts, expert opinions and forecasts that would have minimised such uncertainty to the greatest extent possible. Despite such uncertainty, these measures have to be based on verifiable grounds and forecasts that could be taken into consideration at the time of their adoption. In this framework, however, the deciding authorities responsible for epidemic risk management have wide discretion regarding the choice of measures.

 

The Constitutional Court assessed that the prohibition of movement outside the municipality of one’s permanent or temporary residence was an appropriate measure for achieving the pursued objective since there existed the requisite probability that – according to the data available at the time of the adoption of the challenged ordinances – it could have contributed towards reducing or slowing down the spread of COVID-19, primarily by reducing the number of actual contacts between persons living in areas with a higher number of infections and consequently at a higher risk of transmission of the infection, and persons living in areas with a lower number of infections or even no infections at all.

 

In the review of the necessity of the interference, the Constitutional Court deemed it crucial that the previously adopted measures (i.e. the closure of educational institutions, the suspension of public transport, the general prohibition of movement and gatherings in public places and areas, including exhaustively determined exceptions) did not in themselves enable, at the time of the adoption of the challenged ordinances, the assessment that they would prevent the spread of infection to such an extent that – with regard to the actual systemic capacity – adequate health care could be provided to every patient. In such conditions, further measures to prevent the spread of infection and thereby the collapse of the health care system were necessary.

 

The Constitutional Court assessed that the measure restricting movement to the municipality of one's residence was also proportionate in the narrower sense, which means that the demonstrated level of probability of a positive impact of the measure on the protection of human health and life outweighed the interference with the freedom of movement. In this assessment, the Constitutional Court deemed it important that the measure included several exceptions to the prohibition of movement outside the municipality of one’s residence.

 

In the framework of the review of proportionality in the narrower sense, the Constitutional Court also assessed the limitations of the measure as regards the time and territory of its application. It emphasised that the longer such a measure lasts, the more invasive the interference becomes. Regular review of the situation and adjustments of the restrictive measures for the future (made with reasonable cautiousness) are therefore required. At the time of their entry into force, the challenged ordinances did not contain an explicit prior limitation of their temporal validity; however, this does not in itself entail that they regulated such invasive interferences with the right to freedom of movement that they were disproportionate in the narrower sense in light of their temporal dimension. The Constitutional Court emphasised that the regulations were in force for a relatively short period of time and that in the days of their validity their original invasiveness could by no means have been exceeded. With regard to the territorial limitation of the measures, it stated that such measures can apply to the territory of the whole country if it is ascertained, on the basis of existing scientific information, that the areas where there is a risk of infection  are scattered all over the country and if the constitutionally admissible objective cannot be achieved in any other manner.

 

Due to the stated reasons, the Constitutional Court decided that the prohibition of movement outside the municipality of one’s residence did not disproportionately interfere with freedom of movement as determined by the first paragraph of Article 32 of the Constitution.

 

As the remaining allegations stated in the petition did not raise any particularly important precedential constitutional questions and the petitioner failed to demonstrate legal interest for a constitutional review regarding certain allegations, the Constitutional Court rejected the petition in the remaining part.

 

The Constitutional Court also stressed that in addition to the petition at issue a number of other petitions were lodged before the Constitutional Court alleging the inconsistency of the challenged ordinances with the Constitution and the Communicable Diseases Act, as well as the inconsistency with the Constitution of certain statutory provisions on which the challenged ordinances were based; however, the Constitutional Court has not yet decided thereon. It emphasised that in the case at issue it did not take a position on the constitutional consistency of the statutory bases for the adoption of the challenged ordinances. In the case at issue, the decision on the merits only includes a review of the consistency of the measure of the prohibition of movement outside the municipality of one’s residence with those requirements of the Constitution regarding which such measure was challenged in the petition.