The decision of the Constitutional Court on invalidity of the Government’s measures

The decision of the Constitutional Court on invalidity of the Government’s measures

Author: Petra Zvržina

As a consequence of the Government’s decision on prolongation of the validity of measures aimed at limiting the spread of the new corona virus, yesterday’s decision of the Constitutional Court of the Republic of Slovenia (hereinafter: the Constitutional Court) no. U-I-445/20-13 gave rise to a strong public response. The Constitutional Court found that three decisions of the Government and the decision of the minister for education, representing temporary measures banning the gathering of people at educational establishments, have not come into effect. The Constitutional Court also accepted for examination the petition for initiation of procedure for the review of the constitutionality of two points of the Ordinance temporarily prohibiting gatherings of people in educational establishments and universities and independent higher education establishments (hereinafter: the Ordinance).

The petitioners were minors (represented by the parents as their statutory representatives) attending primary school for children with special needs. Due to the closure of schools, they were deprived of access to education with special programs, to additional professional assistance and additional special treatment that are available to them in school. Namely, they need specific assistance at studying, an individualised approach and significantly more adaptions in comparison to their peers, and their parents do not have such knowledge. Moreover, both petitioners have each at least one healthy sibling in primary school also needing assistance with schoolwork and surveillance by the parents, who also take care of necessary housework activities. Referring to professional findings, (i) proportion of children among all infected is very low, (ii) children get infected more rarely than adults, (iii) and have in general milder symptoms and are only exceptionally the carriers of the disease, (iv) educational establishments for children with special needs represent a low percentage of all primary schools, and children that go to such establishments also represent a low percentage of all children, and (v) even in individual school departments, there is a low number of children. In this light, the petitioners are of the opinion that closure of schools for children with special needs hinders the progress in their development and training for independent living, and both educational and therapeutic work mean preservation of their vital functions for living.

The Constitutional Court found the following:

  1. Prior to enforcement of a new legal act, it shall be, in line with the Constitution, published in the official gazette, and shall come into force the 15th day since it is published, unless determined other Measures banning the gathering of people at educational establishments on the basis of the Ordinance were valid only for the first 7 days since it had begun to apply, and from there on their validity was dependent on the validity of the Government’s decisions on their prolongation. Since the respective Government’s decisions were not published in the Official Gazette of the Republic of Slovenia, they could not have come into force. Therefore, there is no legal basis for closure of school that the petitioners attend.
  2. The decision of the minister for education on temporary distance learning is also invalid. It is based on the Act Determining Interim Measures for Mitigation and Remedy the Consequences of the COVID-19 (hereinafter: ZZUOOP), which, among other, determines that, in case it is needed for mitigation and remedy of the consequences of the COVID-19, the educational work may be carried out in a form of distance learning, and such decision is adopted by the minister for education. The challenged decision determines that due to worsening of the epidemiological situation in educational facilities, learning in primary schools and musical schools is temporarily being carried out as distance learning. The general wording “primary school” in this decision is to be interpreted in a way that it is used for all primary schools, including those that are adapted to special programs. Since the challenged decision of the minister for education represents an original decision on distance learning, the decision should have also been officially published, which it was not; therefore, it could not have come into force.

Given that there was no appropriate legal basis for the listed measures, prolonged by ineffective Government’s decisions, such establishments should reopen immediately. The Constitutional Court takes into account a possibility that the epidemiological situation in the state does not enable gatherings of people in such big number in all educational establishments and that there might exist certain challenges with respect to adaption and organisation; therefore, it decided that the adopted decision takes effect after 3 days since its publication in the Official Gazette of the Republic of Slovenia. Doing so, the Constitutional Court gave to competent authorities enough time to once again weigh the professional justification of such measures, to appropriately respond and to do everything necessary for the new beginning of carrying out education in the relevant establishments.

The Constitutional Court additionally explained that, taking into account the current situation, conditions to temporarily hold enforcement of the Ordinance provisions relating to prohibition of education in schools and establishments for children with special needs until the review of its constitutionality are fulfilled. The reason is that the number of school children with special needs is so low that the ban of their gathering and carrying out of educational activities cannot mean an essential contribution to prevent the spread of the virus and handling of epidemics. The continuous enforcement of a possible unconstitutional law could have (hard to reverse) detrimental consequences for children with special needs for reasons, elaborated above. After weighing by the competent authorities, we can therefore expect additional decisions of the Constitutional Court, both on a possible hold of enforcement of the relevant Ordinance provisions, as well as on its constitutionality.