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Constitutional judge Klemen Jaklič: “I do not know such a constitutional court that would decide on so many covid cases as is happening in our country!”

Constitutional judge Klemen Jaklič spoke for Radio Ognjišče about his separate opinions on the anti-corona decisions we have witnessed recently. Initially, the judge touched on one of the most pressing topics in recent times, namely the latest decision of the constitutional court, which withheld the restriction of rallies due to a pandemic. He announced that separate opinions would follow only a few days later. “This is not a good practice, because it would be right, of course, for all sides of the matter to come to light at once, so that it can judge the strength of arguments from all sides at the same time,” he stressed critically.

According to the constitutional judge Klemen Jaklič, it is not right for the public to hear one truth first, and then a few days later the other side, when they already forget the first thing. “It is not a good rule. It is true, however, that this is provided for in the Constitutional Court Act as one of the exceptional possibilities. If we are in a hurry, this is also possible. Although, I wonder if we were really in such a hurry in this case? I do not think so. It could come out two days later. In two days, as well as in one day, it is possible to write a quality separate opinion,” he stressed critically.

Deadline for separate opinions is Tuesday at midnight
According to Jaklič, the deadline for separate opinions on the topic of maintaining the restriction on rallies is until midnight today. “Then the procedure is such that we wait for the comments of other judges until ten in the morning. This is the case if the deadlines are shortened, otherwise these deadlines are three days. Here it goes for a few hours, and then the judge gets a clean copy, confirms it, and signs it. Then this separate opinion is presented to the public. When presented, it appears on our website. Soon after, also on my Twitter profile,” he explained.

As is already known, Jaklič was not even convinced by the decision of the majority, which decided to keep travel restrictions to countries on the red list. “There it was more justified to wait for separate opinions, a day, two, or three. Namely, there were three days, until the end of the validity of this decree. So I understand the majority who decided to get the matter out right away. Because if they waited for opinions for longer, it would no longer make sense as the decree would no longer apply at all. In terms of content, I was not convinced by the decision,” he emphasised, adding that he had written a longer separate opinion in which he presented the problem in detail.

According to him, the problem starts with the three initiators, who state different but similar allegations. One of the initiators says that such a ban on traveling from the country infringes on his right to move. “He only explains this and explains that such a system establishes a quasi-prison system within the country and the like. So, he is not more specific about his personal actual situation. The second initiator states more specifically that he owns land in Croatia and that he would like to enjoy this land to the fullest. I did not go into more detail to see if it was a house or land. It does not matter. The second initiator also says that you could not engage in filming for three days. The third initiator, former Justice Minister Zalar, wanted to visit his extramarital partner in Austria. He further stated a personal circumstance – the death of his partner’s mother. It was a matter of three days, because the decree was still in force for so long.”

On the other hand, according to Jaklič, it was a question of principle whether it is possible to arrange that a way out is not possible for a shorter period because it protects the lives of fellow citizens. He says that this was at the core of the balancing act because on the issue of temporary detention, the constitutional court always weighs the harmful consequences on the one hand and on the other. “On the one hand, you could not leave the country for three days, you could not enjoy your property in Croatia for three days, you could not do filming for three days, you had to wait three days if you wanted to visit your extramarital partner. On the other hand, there was the risk of infection and the risk of introducing other variants of the virus despite the existence of measures, but no measure is watertight and thus a potential burden on the health system to the extent that the lives and health of fellow citizens suffer. When the constitutional court weighs in the context of temporary detention according to the doctrine, it takes for granted that these harmful consequences will occur, and only assesses which would be more severe and more irreparable.”

He pointed out that there is no question for him here if you could not enjoy your property for a few days, etc., or the loss of life and health. “So there was no constitutional dilemma at all. But the majority in the constitutional court still acted differently,” he said critically, adding that the majority’s arguments certainly did not convince him. “I found out that augmentative reasoning involves several logical errors. I also listed these in a 10 page long separate post. The point is that we cannot create a system where we are closed to the regions within the country (it is still considered that the passage is not free), and in relation to other countries everything is open at once. This is not logical, because it increases the risk of infections,” he stressed, adding that this issue could otherwise be resolved by the administrative court, which has already ruled in a similar case (holidays in Turkey).

He noted that it is clearly not thinking ahead. What happens in case a person who goes on a trip gets sick and wants to go home. “The state cannot deny him entry into the country. That is a fact. Whoever would have argued otherwise would be very much mistaken. Such a patient, of course, burdens the health system. Through various versions of the virus in particular. If you are traveling to Brazil, there is quite a chance that you will bring the Brazilian version of the virus. In Slovenia, this version is practically non-existent. Such things are quite serious, so the decision is, in my opinion, ill-considered. The constitutional court did not go as far as the administrative court, but it hinted that there was nothing wrong with the way out.”

The administrative court has formal jurisdiction to decide
On the question whether it was possible to draw a parallel between the corona decisions of the constitutional judges, he replied that, of course, there were a few. “There are a lot of specifics and similarities that bind these similar cases. First, the question of the fulfilment of the procedural preconditions for admission arises. Should such cases be accepted for consideration by the constitutional court or should regular proceedings be allowed to take place? So far, I have defended the latter because I think it is dangerous to overturn the constitutional court.” He notes that regular courts deal with this abroad, but are slowly coming to the constitutional court. “Here and there, something is taken transiently, but I do not know such a constitutional court that would decide on so many covid cases as is happening in our country.

The administrative court has formal jurisdiction to decide, he added. He also sees the fact that most of the decisions were withheld and not final decisions as difficult. “One of the constants is also weighing life and health on the one hand and weighing other freedoms on the other, either the right to gathering, political rallies to freedom of movement to family life, if you want to visit someone abroad these rights are weighed in relation to life and health of people. If you open a commentary on the constitution, it indicates the hierarchy of constitutional values and, in the case of the right to life, says that it is the very top of the hierarchy of constitutional rights,” he emphasised.

Nina Žoher

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