Constitutional Court: The Government should regularly review eligibility of measures

Constitutional Court withheld a part of the movement prohibition ordinance and ordered the Government to review the eligibility of measures immediately after receiving the decision and then at least every seven days. Considering professional reasons, it must then extend, amend or eliminate the measures and inform the public thereof, the Constitutional Court has announced.

Following the ordinance adoption on 29 March in a response to the epidemic of the new coronavirus, complaints have been raised that the prohibition of movement outside the municipality of permanent or temporary residence is unconstitutional. The Government finds the initiative unfounded and suggested that the Constitutional Court rejects it, as this would cause irreparable consequences for public health.

However, the Constitutional Court judges have taken the initiative for consideration, and the Government will have to regularly review the justification of the measures until the final decision is made. By considering professional reasons, the measures must then be extended, amended or eliminate and the public must be informed accordingly.

The Constitutional Court issued such instruction withholding the implementation of this part of the ordinance. As estimated, both – the further implementation of the ordinance and in the case of its withholding on the whole – could have difficult-to-repair or even irreparably harmful consequences.

However, with a partial withholding of the ordinance that does not interfere with the content of the measures, the possible harmful consequences for the exercise of constitutional rights to movement and socializing can be at least partially limited. On the other hand, the population’s risk of illness is not increased this way, the Constitutional Court estimates.

As they explained in the decision, the interferences with human rights and fundamental freedoms set in the ordinance are of a more lasting nature, as they are not limited in time. The prohibition from the ordinance is valid until the reasons for it cease, which – in the opinion of the Constitutional Court – is not necessary to achieve the purpose pursued by the ordinance.

The same purpose can be achieved by stipulating that the Government will periodically review the proportionality of the measures and extend them only if – in the light of the particular situation and based on the opinion of the professionals – the Government finds that they are still needed to achieve the objectives, the Constitutional Court explains.

The Constitutional Court judges did not vote unanimously on the four points consisting the decision. Eight votes against one adopted the initiative to review the constitutionality of the ordinance. Klemen Jaklič voted against. The second and fourth points of the decision, defining the aforementioned withholding the implementation of a part of the ordinance and the manner of its execution, were adopted by seven votes to two. Judges Jaklič and Marko Šorli voted against.

However, the Constitutional Court adopted the third point of the decision defining the rejection of the proposal to withhold the implementation of the ordinance in the remaining paragraphs by six votes to three. Judges Špelca Mežnar, Katja Šugman Stubbs and Rok Čeferin voted against, all three also announcing partly affirmative and partially adverse opinions. Judges Jaklič and Šorli, however, announced partially adverse opinions.

There were also speculations about who proposed a petition for constitutional review as the Ministry of the Interior received it in an anonymous form. The Constitutional Court explained on Thursday that the petitioner had made a proposal for concealing his / her identity, and today’s order also stated that the conditions for this proposal were fulfilled. Thus, the decision of the Constitutional Court published today does not disclose the petitioner, but the name of the law firm representing that petitioner is indicated. It is a Fincinger law firm.


Source: STA,

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