Slovenia is introducing the first so-called curfew after the Second World War, but has such a measure been established at all?
Constitutional lawyer Andraž Teršek is together with a Carniolan lawyer Damijan Pavlin addressed an initiative to the Constitutional Court to review the constitutionality of the latest government decree on temporary partial restrictions on the movement of people and restrictions and the provisions of Article 39 of the Infectious Diseases Act.
As he wrote on his blog, Article 39 offers the state that a citizen should ban movement on the entire territory of Slovenia and not only “limit “.
However, the State may, as stated, in accordance with Article 16 of the Foundation “to prohibit “ movement and determination “curfew “ only if proclaimed “state of emergency or martial law”. If a state of emergency “does not declare and ‘bans’ movement in and around the country“, in his opinion, is unconstitutional.
Article 32 of the Constitution stipulates that everyone has the right to move and choose their place of residence, to leave the country and to return to it at any time.
Article 39 is also allegedly constitutionally disputable, because the state provides unlimited possibilities to adopt even the strictest measures, without being restricted in any way by law.
Although the Constitution gives the state the power to restrict the right to free movement, in Teršek’s opinion it must state convincing reasons that this is necessary, appropriate and proportionate in order to achieve a legitimate aim in the public interest.
“If a milder, different measure is introduced to prevent the spread of infectious diseases, which introduces a minority into a constitutional right or into constitutional rights in liberties (in several rights to liberties), milder measures must be considered. The state cannot just “ban” movement and any movement. So, although you can, legally you shouldn’t, “states.
“Avoid a milder measure that achieves the same goal. The ban on driving from point A to point B, as well as back, cannot in itself prevent the spread of infectious diseases. It is neither a reasonable, nor an appropriate, nor a proportionate prohibition. The same goes for walking, cycling, walking in the woods, visiting a loved one or family members – all of whom are healthy. At the same time, now EVERYONE lives in the “red zone” because the whole country (as I understand from the media, the information coming in about 10 minutes…) is colored in the red epidemic color, “he adds.
Teršek also pointed out that according to Article 23a of the Constitutional Court Act, the Ombudsman could file a complaint with the Constitutional Court. “to request a review of the constitutionality of a law or its individual provisions if it considers that they infringe fundamental constitutional rights and freedoms“.
Draconian penalties for misdemeanors
Head of the Department of Law at the Faculty of Security Sciences Benjamin Flander considers that the Infectious Diseases Act is also problematic because disproportionate (draconian) fines of € 400 to € 4,000 for misdemeanors, which are not necessarily serious misdemeanors, are set for infringement measures adopted by the government pursuant to Articles 39.
“For example, if I walk along a (half) empty street of a city that is probably the greenest city in the world without a protected mask, I am committing a new offense, but I am not potentially endangering the lives and health of others, much less my own. life in health. In addition, according to a government decree, a police officer can set me up, find a violation of the decree and notify the competent inspection body, which fines me no less than 400 euros. In the surrounding general madness, in which the world is missed, this is relatively proportional – in many countries you land in prison, in some you are forced to lie in a coffin, in some places you are exposed to the scorching sun for a day or two, and so on., “Flander is listed for MMC.
“The answer to the question of whether the government can, on the basis of the Infectious Diseases Act, introduce by-laws or announce the curfew or whether this is allowed only to the legislator or exceptionally to the President of the Republic in the event of a previously declared state of emergency is simple. The general ban on movement from 9 pm to 6 am in the country (despite certain exceptions) represents a temporary annulment (!) Of the Constitutional right to freedom of movement. The basis for such a maneuver by the political authorities is neither Article 32 of the Constitution nor the Infectious Diseases Act. The basis for this – humiliating for citizens who feel humiliated – measure is in Article 16 of the Constitution, which temporarily annuls constitutional rights, which allows only in a state of war or emergency, which can be declared by the National Assembly, if it does not meet again, the President republic, “but Flander warns about the introduction of the so-called curfew.
Prohibitions following the example from abroad
“The restriction was adopted on the basis of experience from abroad, especially because in the last two weeks it has been established that many cases of spread of the infection were due to a private family in the initial period, private parties in inns, restaurants, etc.., “the Minister of the Interior explained the introduction of the night traffic ban on Monday Aleš Hojs.
Similar bans on movement at night or. these curfews are currently being introduced in some European countries, especially in major cities of some European countries, such as Belgium (midnight to five in the morning), France (Paris and some other cities from nine to six in the morning), the Spanish capital Madrid and the second largest Italian the city of Milan also wants to reintroduce curfews. Most of these countries have or. had a state of emergency declared.
Banning population movements to prevent the spread of the infection will also be dealt with by the Austrian Constitutional Court in late spring, which ruled in June that some measures taken by the Austrian government to prevent the spread of the new coronavirus would be unconstitutional.
According to the STA, the judges assessed that the Austrian Minister of Health violated the law because the measure was too general. “The New Coronavirus Act does not provide a basis for ordering people to stay in their home,“the court stressed. The minister can restrict access to individual places, but not in general.
The Austrian opposition parties called on the government to return the money to those who were punished for non-compliance with these measures.
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