On Thursday, the Constitutional Court stayed the implementation of the provisions of the decree, which introduced the recovered or vaccinated rule for employees in the public administration sector, starting Friday. With the decree in question, the Government determined that from the 1st of October, employees in the state administration who want to work at the workplace premises will have to meet the condition of either having previously recovered from covid-19 or having been vaccinated against it, meaning that the “T” – testing has been eliminated from the RVT condition (recovered, vaccinated, tested). “I am not convinced by the court’s explanation; I do not see how the implementation of the decree could cause harmful consequences that would be difficult to rectify,” former Constitutional Court Judge Jan Zobec commented on the court’s decision. We could also add that there is a greater likelihood of consequences that are difficult to rectify appearing precisely because the implementation of the decree is being delayed.
Professor Dr Leon Cizelj from the Jožef Stefan Institute announced that in the upcoming days, the race between the seasonal increase in respiratory infections and vaccination and recovery from these diseases will continue. We are currently on a plateau, where the number of patients due to the epidemic is not rising but also not falling. The numbers are expected to increase in October and possibly early November. Seasonal infections will therefore predominate. In November, the number of recovered people and those who have already vaccinated might already start to turn the number downward, he said, adding: “Until then, at today’s rate of around 3,000 infections a day – we add two people who have not been tested to each confirmed infection – we will have about 100 thousand people more who have already been infected with the novel coronavirus.” However, the question is, if the predictions will really come true – will the epidemic actually start to slow down in November if the Government continues to be obstructed in its work every step of the way?
The argument in point 21 of the explanation of the Constitutional Court is completely senseless, the former Constitutional Court Judge Jan Zobec believes. Namely, the point in question states that according to the Constitutional Court’s assessment, the applicant’s claim that harmful consequences could also appear if individuals were deliberately exposed to the virus in order to meet the condition of already having recovered from covid – which, in view of the strict labour sanctions, which threaten employees if they do not comply with the recovered/vaccinated condition – and these possible harmful consequences cannot be ruled out. “In this case, we can only wonder whether the Constitutional Court really considers civil servants to be the type of people who, in order to meet the recovered/vaccinated condition, would rather be exposed to the covid-19 virus than get vaccinated – and with all of the vaccines we now have available. Pardon me, but I believe this is offensive to common sense. I do not believe that the majority really thinks that could be the case – there was probably a misunderstanding here,” Zobec said and then added a few more arguments on why he was not convinced by the Constitutional Court’s explanation.
The party using the legal remedy is usually the one who has to provide proof for its claims
Just like with any other case of a motion for temporary suspension of a decree, the Constitutional Court had to weigh between the irreparable consequences that would arise if the impugned general act or, in this case, the decree were enforced and the irreparable consequences that would arise if the act in question was withheld. For starters, the question arises here as to who bears the burden of having to provide proof. Namely, from the explanation of the court’s decision, it seems as if, in this case, the party responsible for providing proof is the Government. For example, in point 20, the Constitutional Court writes: “The Constitutional Court takes into account that the Government has not substantiated that the SARS-CoV-2 virus would spread significantly faster and more intensely among employees in state administration bodies than it would among the rest of the population/…/” and then in several other sentences in point 20, the court points to the Government as the party that should substantiate, explain, concretise. “Such a position is problematic because the burden of proof is usually borne by the party using the legal remedy, in this case, a motion for suspension. The proposer should prove or convince the court that the potential damage from the execution of the decree is greater than the potential damage that would occur if the decree is withheld,” the former Constitutional Court Judge explained.
Zobec does not believe that the execution of the decree in question could lead to irreparable consequences
It does not seem convincing that the execution of the decree would really cause difficult, irreparable consequences to those who refuse to get vaccinated. The Constitutional Court could or even should give the matter absolute priority. Zobec went on to explain: “Therefore, I do not see a serious possibility of employment contracts being terminated during the decision-making process – and even if this happens (which is a more theoretical possibility), the abolition of the decree would have a retroactive effect. What would that mean? It would mean that none of those whose employment contracts would be terminated would actually lose their jobs – and the same goes for any possible disciplinary proceedings.” Therefore, the former Constitutional Court Judge finds it very unconvincing to argue that “if the impugned provisions were enforced, but later turned out to be unconstitutional or illegal and the Constitutional Court annulled or repealed them, there could be irreparable harmful consequences for the employees in the state administration who do not meet the recovered/vaccinated condition and for and for whom the third or fourth paragraph of Article 10 a of the decree would not be taken into account.” Because “It cannot be ruled out that the employer will carry out disciplinary proceedings, as well as proceedings for termination of employment contracts.” If the Constitutional Court found that the decree was unconstitutional, it would repeal it and order the manner of execution in the decision, as well as establish the employment situation as it was before any possible terminations of employment contracts and the introductions of disciplinary proceedings. “Therefore, I really do not see how the implementation of the decree could lead to harmful consequences that are difficult to repair,” he reiterated.
And finally, even if we accept the argument that “it cannot be overlooked that any vaccination is by its very nature a permanent and irreversible measure which, in the event of a recovered/vaccinated rule, may occur against an individual’s will,” (point 21 of the court’s explanation), the decision to get vaccinated is still in the exclusive sphere of each individual who decides on such a measure according to a number of circumstances – primarily to protect him or herself and others, perhaps also to be able to cross the border, go to concerts, socialise, spend time with others, move freely, avoid unpleasant testing – that is, to exercise his human rights to the fullest. Should the recovered-vaccinated-tested condition always be considered as something that forces the individual to get vaccinated and thus forces him into something that is a “permanent and irreversible measure” for him? Life is made up of decisions – and when people make decisions, we always have to decide between different options, weigh and compare them, add up the pros and cons. The recovered/vaccinated condition is one of the circumstances that can influence our decision to get vaccinated or not. But this does not mean that the decision is forced, that it was made against the will of the individual, as the Constitutional Court says.
Sara Bertoncelj
