30 September, 2020

Temporary restriction of movement – inconsistent with the Constitution?

By decision U-I-83/20 of 27 August 2020, the Constitutional Court ruled that the temporary restriction of movement during the first wave of the COVID-19 epidemic was not inconsistent with the Constitution of the Republic of Slovenia. It assessed the constitutionality of two Government ordinances adopted to contain and control the COVID-19 epidemic, namely the Ordinance on the temporary prohibition of the gathering of people at public meetings at public events and other events in public places in the Republic of Slovenia and prohibition of movement outside the municipalities and Ordinance on the temporary prohibition of the gathering of people at public meetings at public events and other events in public places in the Republic of Slovenia and prohibition of movement outside the municipalities (hereinafter both together as: the challenged ordinances). The assessment took place in the context of the question whether the prohibition of movement of persons outside the municipality of permanent or temporary residence, determined by the challenged ordinances, was in accordance with the first paragraph of Article 32 of the Constitution, which guarantees freedom of movement to everyone.

 

The assessment was performed by the Constitutional Court on the basis of the legitimacy test, which means the assessment of whether a certain measure pursues a constitutionally permissible goal, and the proportionality test, which includes an assessment of the appropriateness, necessity and narrower proportionality of the measure.

 

The Constitutional Court ruled that the Government of the Republic of Slovenia pursued a constitutionally permissible goal by introducing a restriction of movement on the municipality of residence, ie. containment and control of the spread of the infectious disease COVID-19, and thus the protection of the health and lives of people at risk. In doing so, the Constitutional Court emphasized that the pursuit of this goal is also a constitutional duty of the state authority, as too slow or insufficient response to the occurrence of an infectious disease that can seriously endanger human health or even life could be inconsistent with the state’s obligation to protect human rights – the right to life, the right to physical and mental integrity and the right to health care.

 

In assessing proportionality, the Constitutional Court first as an important circumstance of the assessment pointed out the fact that the state authorities faced a high level of uncertainty when introducing measures, as COVID-19 disease was scientifically and medically unexplored at the time of the outbreak. Despite the uncertainty, the introduced measures must be based on sound reasons and assumptions that could have been taken into account at the time of their adoption, and in this context the authority responsible for managing epidemic risks has a wide margin of assessment in the choice of measures.

 

The prohibition on movement outside the municipality of residence is, in the opinion of the Constitutional Court, an appropriate measure to achieve the pursued goal, as it was shown that (according to the data existing at the time of the adoption of the challenged ordinances) it could contribute to reducing or slowing the spread of COVID-19, mainly by reducing the number of contacts between persons living in areas with a higher number of infections, ie. with a higher risk of transmission, and persons in areas with a lower number of infections or even without them.

 

In assessing the necessity of the intervention, the Constitutional Court took into account as essential that there was no indication that mere use of the measures adopted so far (closure of schools and kindergartens, suspension of public transport, etc.) would prevent the spread of the infection to the extent that all patients could be provided with adequate medical care. indicate infections to the extent that all patients could be provided with adequate medical care. Under these conditions, further measures that could prevent the spread of the infection while also maintaining the stability of the health system were necessary.

 

Furthermore, the Constitutional Court ruled that the measure of restriction of movement to the municipality of residence was also proportionate in the narrower sense. The latter means that the demonstrated degree of probability of the positive impact of the measure on the protection of human health and life outweighed the severity of the measure with their freedom of movement. As relevant to this assessment, the Constitutional Court considered as an important circumstance that the prohibition of movement outside the municipality of residence provided for several exceptions (eg access to pharmacies, grocery stores, arrival and departure for work, etc. was provided). In addition, the Constitutional Court emphasized that the longer the measure lasts, the more invasive the interference becomes, so it is necessary to periodically check the situation and adapt to it. The challenged ordinances did not set an explicit time limit upon their entry into force, but they were in force for a relatively short time and during the days of their validity they could not (yet) exceed the weight of their original invasiveness. At the same time, the Constitutional Court clarified that measures may cover the entire territory of the country if the areas for which the existence of risks can be established on the basis of existing professional information are scattered throughout the country and the constitutionally permissible goal cannot be achieved in any other way.

 

In accordance with the above, the Constitutional Court ruled that the prohibition of movement outside the municipality of residence did not disproportionately interfere with the freedom of movement from the first paragraph of article 32 of the Constitution.

 

In addition to the above-mentioned initiative for the assessment of constitutionality, several other initiatives were submitted to the Constitutional Court alleging the inconsistency of the challenged ordinances with the Constitution and the Infectious Diseases Act, as well as the inconsistency of certain other provisions on which the challenged ordinances are based with the Constitution, on which the Constitutional Court has not yet ruled.

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