“At this point, we should ask ourselves whether the Constitutional Court really believes that public administration employees are the type of people that would rather be exposed to a Covid-19 infection than get vaccinated – with the abundance of vaccines we currently have available – in order to satisfy the recovered/vaccinated rule. I’m sorry, but this is simply offensive to common sense,” judge Jan Zobec commented on the Constitutional Court’s September decision to temporarily suspend the implementation of the provisions of the decree, which introduces the recovered/vaccinated rule for employees in public administration. However, on Monday, the Constitutional Court also ruled that implementing the recovered/vaccinated rule in the state administration would not be in line with the Constitution because the rule allegedly has no basis in any of the laws. “It is more than obvious that the legal bases for the actions of the government and the ministers in this case, when we are facing the threat of losing 20 lives a day due to the changed circumstances of the health crisis, are abundant,” Constitutional Court judge Dr Dr Klemen Jaklič wrote in a dissenting opinion.
When the court temporarily suspended the implementation of the provision of the decree on the recovered/vaccinated rule, former Constitutional Court judge Jan Zobec even expressed his belief that some sort of misunderstanding had to have happened, as he did not believe that the majority really agreed to temporarily suspend the decree. The argument in point 21 of the explanation of the Constitutional Court seemed completely unreasonable to him, and he even provided several more arguments as to why he did not find the reasoning of the Constitutional Court convincing. At the end of September, the Constitutional Court suspended the implementation of the provisions of the decree, which introduced the recovered/vaccinated rule for employees in the state administration (thus eliminating the option of testing) but had not ruled on the matter until this week. When it comes to a decision like that in the middle of an epidemic, procrastination is, to put it mildly, quite irresponsible. And meanwhile, compulsory vaccination is being introduced for virtually everyone in Austria, and high fines will follow for those who will not comply.
So, after more than two months, it finally became clear on Monday that there was no misunderstanding in the suspension of the decree. Namely, the Constitutional Court ruled that the government decree in question was not in line with the Constitution. “Today, with six to three votes, the constitutional court decided that the recovered/vaccinated rule in the state administration is not in line with the Constitution, because it supposedly does not have a legal basis in any of our laws (Constitutional Court decision U-I-210/21-25),” wrote Constitutional Court judge Dr Dr Klemen Jaklič, who also added a link to all of the dissenting opinions. In his separate dissenting opinion, Jaklič wrote, among other things, that there are many legal bases for promoting the vaccination of employees in the state administration, where the government and its ministers act as an employer in relation to the workers. Article 5 of the Government of the Republic of Slovenia Act already stipulates that the government “adopts organisational and other measures for the work of the government and its ministers,” meaning the measures for work in the state administration. “On the one hand, this legal basis establishes the government as the umbrella employer of the state administration employees, and on the other hand, it explicitly authorises the government in its aforementioned role to adopt measures for the work of its administration and to also supervise the said measures. The legal basis for the government’s actions in the role of the umbrella employer for the state administration sector therefore undoubtedly exists,” Jaklič pointed out.
The legal basis is completely sound, legally speaking – or even ideal
“I myself do not have the slightest doubt that in the circumstances of saving the lives and health of employees and also trying to enable the normal functioning of the state administration, the described legal basis for these measures is completely sound, legally speaking – or even ideal,” the Constitutional Court judge said, adding that, in addition to this general law, Slovenian legislation provides even more detailed legal bases, which explicitly order the employer, in this case, the government and its ministers, to adopt measures to protect the life and health within the work process and to ensure its smooth operation.
Furthermore, Article 9 of the same Act explicitly stipulates that the employer should implement the measures referred to in Article 5 of this Act in such a way as to take into account the basic principle of “managing hazards at their source” and should thus give the “appropriate instructions” to the employees. And what else is vaccination than managing a health hazard “at the source”? And what is the vaccination rule provided for the workers, if not an instruction that asks the workers to get vaccinated due to the health crisis, in order to ensure the functioning of the work process and help protect the health and lives of himself and the others in the work environment, or else be dealt with in accordance with applicable employment regulations? “What else is this, I ask you, other than the explicit legal basis for the thought-out actions of the government and ministers, as the employer in the state administration?” Jaklič wondered.
Furthermore, this same Health and Safety at Work Act also stipulates that every worker must also “respect and implement [the employer’s] measures to ensure […] health in the workplace” and that the employee must perform the work in such a way “as to protect his life and health and the lives and health of others.” Then in accordance with this additional explicit basis, the Employment Relationships Act further stipulates that the reason for termination of the employment contract is exactly this, namely, the “breach of a contractual obligation or other obligations arising from the employment relationship” (culpable reason for regular termination of the employment contract) or “non-fulfilment of conditions for performing work, determined by laws and other regulations issued on the basis of law, due to which the employee does not fulfil or cannot fulfil contractual or other obligations from the employment relationship” (reason for incapacity to perform work).
The legal basis for such decrees is already provided in the Constitution itself
In addition to the fact that the legal basis for the measures that are being assessed clearly exists – and that there are, in fact, several – the legal basis is not even necessary, strictly speaking, when it comes to protecting life and health in exceptional circumstances of imminent danger. Such a basis for the conduct of just about everyone, let alone state authorities, who are the first to be called upon to protect these highest values, is already offered by the Constitution itself. The first paragraph of Article 15 of the Constitution explicitly states: “Human rights and fundamental freedoms shall be exercised directly on the basis of the Constitution.” The right to life and health is a fundamental human right, which corresponds exactly to the text of the cited provision of the Constitution. And if these two rights are exercised directly on the basis of the Constitution, this means at least that every individual whose health or life is seriously endangered in a crisis situation, has the right to expect that the people in whose power it is to prevent such a threat, will do what they can to actually prevent it.
The decision that has been made is difficult to understand
Dr Rok Svetlič, who was recently confirmed as a Constitutional Court judge, also gave his dissenting opinion. He wrote that if we take into account the position of the decision, 1) that there is a legal basis for vaccination, 2) that human rights are exercised directly on the basis of the Constitution (Article 15), 3) that we are facing a catastrophic threat to the fundamental constitutional value – life, 4) that the impugned decree does not recognise the authoritarian expansionism of the executive branch of power, 5) that the case was taken into consideration because the Constitutional Court recognised in it “a particularly important precedent constitutional issue of a systemic nature” (point 11 of the decision); then the decision that has been made, is difficult to understand. It sends the message that the legal order of the Republic of Slovenia does not currently offer any possibility of dealing with the double-digit number of victims per day. The question is whether such an interpretation of the Constitution shows our law “in the best light.”
It is wrong to decide in advance – it is wrong for a Constitutional Court judge to know in advance what his decision will be
Former Constitutional Court judge Dr Ernest Petrič also recently addressed the essence of acting and decision-making in the Constitutional Court. Namely, the essence of the court’s operating is that the Constitutional Court is supposed to assess a measure, a law, a government decision, or a violation of human rights in the context of the Constitution. In the case of two rights, the principle of concordance is observed, weighing between these two rights. In a specific context, it is determined whether interference in the “right b”, in order to protect the “right a”, is acceptable, if it is necessary, or perhaps even urgent; whether it is proportionate, whether the same effect could be achieved by milder means, and so on. Petrič emphasised that two things are currently very wrong in the Constitutional Court. It is wrong if decisions are made in advance, meaning that it is wrong if a Constitutional Court judge decides in advance what his decision will be, simply because of his ideological or political preferences, and then later tries to find the arguments for his decision in literature. And the second thing that is wrong is that things are being decided on without deeper consideration. Namely, a Constitutional Court judge must also be a thinker, a wise man who understands the collision of two human rights in the broader context of what is happening. “In the current situation, the human right to health and protection of life is certainly very endangered – and therefore worthy of all possible protection – because it probably also has a justified advantage when it is weighed against other rights,” Petrič pointed out. But unfortunately, it seems that the majority of Constitutional Court judges do not agree with him.