“Certain slip-ups are happening, for example, the cases in which Constitutional Court judge Čeferin should have eliminated himself from the proceedings, but he did not do that, as they tried to somehow save those cases. The problem was that they did it in a way that made them even worse. Things were aggravated with the subsequent changes or subsequent decisions after the original decisions had already been made. I was also very surprised by the decision regarding the decree on renaming Tito’s Street in Radenci,” former Constitutional Court judge Jan Zobec commented on the recent decisions of the Constitutional Court. And former Constitutional Court judge Dr Boštjan M. Zupančič believes that current members of the Constitutional Court are obviously politically contaminated.
The Constitutional Court has recently made several decisions, some of which have even shocked the public. As the lay public is not supposed to comment on the decisions of the Constitutional Court, we asked two legal experts, both former judges of the Constitutional Court, for their opinion on the matter.
Regarding the latest decision on the constitutionality of the Communicable Diseases Act, Jan Zobec said the following: “The finding of inconsistency with the Constitution in points 2 and 3, paragraph 1 of Article 39 of the Communicable Diseases Act, surprised me. I was surprised by the legalistic, very formal approach to resolving, interpreting the enforcement clause, which is defined in these two points of the Communicable Diseases Act. Two things need to be known: the executive has the constitutional authority to restrict personal liberty and the power to restrict movement.”
“And in my opinion, given the abnormal circumstances of the pandemic, the unpredictability of this situation, the Government of the Republic of Slovenia had to act in accordance with this unpredictability, which the legislators could not have foreseen. The government had to respond quickly. During the development of the pandemic itself, it had to quickly respond to the changing epidemiological situation, according to the opinions of the medical profession, and that is what it did. Laws, all these nuances that dictated these measures, cannot be foreseen.” As Zobec pointed out, the legislator could not actually have foreseen all of the circumstances. Other countries have also found themselves in this difficult situation, in the grip of unpredictable and unimaginable epidemiological conditions. If we can clearly see the effort, the duty of the state to ensure or protect the health and lives of people, this is the supreme constitutional value. “Therefore, the law does not seem problematic to me in this context, from this point of view – from the point of view of the principle of legality and accuracy of pre-determined restrictions on freedom of movement,” Zobec said.
The impression that the reader gets when reading the decision is that there was a preconceived desire to establish the unconstitutionality of this provision
The Constitutional Court placed the principle of legality, which is only a principle after all, above the human right to life and health, which the government was trying to protect in this case. “And to demand from the legislator that he be able to predict such circumstances, in such an incredible and unimaginable situation as we have witnessed in the last year – that is why I find such a measure very problematic,” Zobec said, but at the same time pointed out that he also finds it problematic that the Court only imposed a two-month deadline for the appropriate change or implementation, the implementation of this constitutional decision. The time before the deadline is absolutely too short. He believes it will be very difficult to carry out the legislative procedure and anticipate, as well as thoroughly investigate (together with the epidemiological experts) what measures can be prescribed and recorded in the Communicable Diseases Act. “And when I read point 99 of the decision, the Constitutional Court somehow gets lost in the embarrassment of this matter. The point says, ‘it is not possible to prescribe by law in advance all the possible modalities of the various measures that would suit all specific epidemiological situations, but this must be confirmed to some extent.’”
Zobec pointed out that the impression that the reader gets when reading the decision is that there was a preconceived desire to establish the unconstitutionality of this provision. “I regret that such a decision was even made, and I agree with certain opinions, namely, those of the judges Jadek Pensa and Šorli. In my opinion, this decision is significantly excessive.”
The conscious preservation of the name, which symbolises massacres and totalitarian violence, is unconstitutional
Regarding the general professional functioning of the Constitutional Court in recent months, Zobec said: “Given the composition of the Constitutional Court, and given the situation in our country, and our reality, the Court is probably doing its best. But of course, the powers are what they are. You can clearly see this from the separate opinion of judge Klemen Jaklič.” In addition to this, certain slip-ups are happening, for example, the cases in which Constitutional Court judge Rok Čeferin should have eliminated himself from the proceedings, but he did not do that, as they tried to somehow save those cases. The problem was that they did it in a way that made them even worse. “Things were aggravated with the subsequent changes or subsequent decisions after the original decisions had already been made.”
Zobec was also very surprised by the decision regarding the decree on renaming Tito’s Street in Radenci. In this case, there was a legalistic demand for a 15-day deadline and the right to a referendum, which could be realised within these 15 days, thus giving it priority over human dignity. The Court’s decision on this was already made ten years ago, in the decision on Tito’s Street. “The referendum, in this case, is, in my opinion, unconstitutional, especially if the referendum meant that we would have to keep the name of the road, which is currently named after a dictator, instead of Slovenian independence.” The conscious decision to preserve the name, which symbolises the massacres and totalitarian violence and thus also the violation of human dignity, is unconstitutional. Failure to comply with the 15-day deadline, the only meaning of which is to make sure that a request for a referendum is made (within these 15 days), cannot be problematic, as such a referendum would not be in accordance with the Constitution. Namely, it could mean that the previous name would have to be kept.
Cases related to Covid clearly take precedence over more serious legal issues, and court proceedings have been halted
The delay of the Constitutional Court is also a surprise for Zobec. “I do not really know what the priority is for resolving cases in the Constitutional Court. As it turns out, the “Covid cases” have absolute priority over anything else, even the cases that were initiated in the Supreme Court. I know of a case which has been waiting for a very long time for a decision at the Constitutional Court, which is also why the court proceedings have been halted.” Zobec doubts that this is in line with the right to a trial within a reasonable time period. When he was a Constitutional Court judge himself, cases submitted by other courts to the Constitutional Court were always a priority. Priority was also given to matters related to school enrolment. He remembers a case in which the matter was related to a student – it was a question of enrolment. They made sure that they dealt with the case as soon as possible and made an effort to make their decision before the start of the school year. “Now I have learned from the media that the procedure in a similar case has been going on for several years, and the student has already missed several opportunities to enrol. This surprises me and also seems strange to me. I don’t understand what the reason for such strange priority of certain matters is.”
Boštjan M. Zupančič: Members of the Constitutional Court are politically contaminated
We also asked former Constitutional Court judge Boštjan M. Zupančič for his opinion on the recent work and the current composition of the Constitutional Court, who explained to us: “The Constitutional Court operates through its female professional associates. There is only one male professional associate there, but the rest of the staff are basically legal nurses. As is the case in other law institutions in Slovenia, the epidemic of going on and on about things is also happening here. I find that very difficult to swallow. Even if you read the decision, you will not understand anything. This is being read by those who are paid for it. They have to get through every such “decision,” even though they cannot understand anything. And such texts are also difficult to analyse. And these professional associates, who come from the Faculty of Law, where practically anyone can get their bachelor’s degree (or their doctorate), diligently process everything in detail. But they have no insight into the whole matter. Leaves and twigs, perhaps a tree here or there, but no forest. A good example of this are the recent decisions on the Anti-Corona Legislative Packages.”
And as for the members of the Constitutional Court, the former judge of the European Court of Human Rights believes that it is clear that they are politically contaminated. On one side, you have Klemen Jaklič and Marko Šorli. Rajko Knez is somewhere in the middle as president. Katja Šugman Stubbs and Rok Čeferin, on the other hand, are definitely part of the continuity.
Finally, Zupančič suggested that everyone should read his latest book on the European Court of Human Rights (which is unfortunately only available in Slovenian).