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People’s Lives Are at Stake: Since the Constitutional Court Has Still Not Made a Decision on the Recovered/Vaccinated Rule, We Find Ourselves in a Very Unenviable Position

“When will the Constitutional Court finally make a decision on the recovered/vaccinated rule? If this decree had not been temporarily suspended, our hospitals would not be facing this difficult situation today. It is horrifying that the matter of the recovered/vaccinated rule has still not been resolved. At the very least, the Constitutional Court is at risk of being sued by those who became seriously ill because of the court’s (non) work,” Uroš Urbanija, Director of the Government Communication Office, pointed out. It is true that certain anti-corona legislative measures encroach on various rights of the individual – but are the rights of the individual really so very inviolable, regardless of the circumstances? For example, the Austrian Constitutional Court has a rather different opinion on this matter than ours does – it seems that our neighbours’ court believes that people’s health comes first – and not unreasonable opposition and reasons that are completely wrong in their core.

“Leadership of the Trade Union of Police Officers of Slovenia, along with its legal representative Nataša Pirc Musar, has filed a request to suspend the implementation of the RV (recovered/vaccinated) rule. Because of them and the Constitutional Court, we have not been able to implement this measure for weeks now,” Minister of the Interior, Aleš Hojs, pointed out. At Tuesday’s regular session of the National Assembly, Prime Minister Janez Janša called on the Constitutional Court to decide in a case related to the introduction of the RV rule in the state administration. Namely, in September, the court temporarily suspended the implementation of the provisions of the decree in question – but to date, the court has still not ruled on this matter. The content of the decree is the same as what is accepted elsewhere in Europe, despite the fact that many of the other countries currently have a much better epidemiological situation than Slovenia and are therefore much more successful in fighting the epidemic.

“It is high time for the judges to make up their minds. Because at the moment, the government does not know whether it can continue in a certain direction, similar to that of the countries that are much more successful in fighting the epidemic than us – like Austria, for example – or if we should just come to terms with the current situation and let it run its course,” the Prime Minister said at Monday’s session, adding that if the trend of interest in vaccination, which arose before the decision of the Constitutional Court, continued, we would currently be at a point, similar to the EU average. As a result, there would have been several hundred fewer patients in hospitals and intensive care units, which would not be at the limit of their capacities.
Lawyer Blaž Kovačič Mlinar also agrees that the Constitutional Court needs to make a decision on this matter as soon as possible. “I myself have no concerns about this measure not being in line with the Constitution,” he pointed out.  

The Austrian Constitutional Court also had to rule on certain measures – by the end of June, it had made decisions in 75 cases related to the measures or the virus. For example, when access to cultural institutions was restricted in Austria, and live events were banned, cultural figures, in general, saw the measure as an encroachment on the freedom of the arts. However, the Constitutional Court in Austria ruled that such a measure was necessary and proportionate with the intention of achieving the goal – as few personal contacts as possible. Maria Škof, a lawyer that works in Austria and Slovenia, mentioned an interesting case in an article in the magazine Pravna praksa (Legal Practice) – the complaint of a high schooler who believed that the use of masks, regular testing, and lessons in two shifts were encroaching on her right to education. The Constitutional Court did not agree with her and made a similar ruling in a complaint regarding distance learning – that is, that it was a proportionate measure. The Austrian Constitutional Court did not find mandatory testing when leaving a place with a high number of infections or the mandatory wearing of masks indoors problematic at all.

“In assessing individual measures, the Austrian Constitutional Court paid a lot of attention to the proportionality of measures and weighing between two or more individual rights, as these are limited by the rights of others. The rights of an individual can be encroached upon with a measure that is necessary, appropriate and proportionate, in order to achieve a certain goal,” Škof wrote, adding that the appropriate justification of the measures ensures the lawful conduct of the authorities. The justifications are always done very precisely in Austria, and the measures are no longer being repealed simply due to a lack of justification.

These days, the measure of self-testing of schoolchildren has been causing quite a stir in Slovenia, as some parents strongly oppose this, as well as the mandatory use of masks in schools. However, some teachers or principals worry that students would need up to 14 days to learn how to test themselves with the help of their parents. In all likelihood, this decree will also soon have to be assessed by the Constitutional Court, and the question is whether they will have the same opinion as their Austrian colleagues, meaning if they will find the measure to be appropriate, especially if we want to limit the spread of infections and protect human health.

Sara Bertoncelj

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