- public, usually solemn declaration, a proclamation: to issue a manifesto; to write enthusiastically May Day rallies / to sign a manifesto / expr. The “Toast” is the political manifesto of France Prešeren (Note: the famous Slovenian poet, the seventh stanza of his Toast is the Slovenian anthem).
♦ History. The Communist Manifesto is a manifesto of the communist movement written by Marx and Engels.
2. legally, a document indicating the cargo carried by a ship or aircraft in international traffic: make a manifest; ship, aviation manifest (FRAN. Fran Ramovš Institute dictionaries for the Slovenian Language ZRC SAZU).
I have already written about the problem of (un)constitutionality of the Communicable Diseases Act (in Slovene: ZNB – Zakon o nalezljivih boleznih), the ZNB-B amendment and the ZNB-C amendment. Several times. Very extensive. Also for the Constitutional Court. I participated in the preparation of three initiatives for the review of the constitutionality of selected provisions of this Act. I will repeat a part of what has already been written and made public. Article 19 of the ZNB stipulates:
“Quarantine is a measure that restricts free movement and determines mandatory medical examinations for healthy persons who have been or are suspected of having been in contact with someone who has contracted the plague, viral hemorrhagic fever (Ebola, Lassa, Marburg) or an infectious disease for which the Minister responsible for the health or the Government of the Republic of Slovenia has declared an epidemic on the basis of the fourth paragraph of Article 7 of this Act, at the time of its contagion. Quarantine is ordered by the minister responsible for health at the proposal of the Institute of Public Health of the Republic of Slovenia. There is no appeal against the decision to order quarantine.”
2. Classification problem
As of March 2020, it was clear that the QUARANTINE measure applied exclusively to COVID. Thus, the essential questions that condition and determine any “anti-corona-virus-covid-19” legal policy arise:
1. Why did the government, with the decision on the application of the measures of the Communicable Diseases Act (ZNB) to the pandemic COVID-19 of March 13, 2020, determine that the pandemic was subject to the general and special measures established by the ZNB for plague or viral hemorrhagic fever, according to the pathogens of group 1 (Ebola, dengue, Lassa, Marburg)? Does the government have scientific arguments and evidence to support such a classification? To date (July 2021), the government, government expert advisory group, and the medical community have not provided scientific arguments and evidence for such a classification. Many scientists have publicly expressed their belief that such a classification is scientifically unfounded over the past year and a half. Back in the spring of 2020, we talked about this with Anton Komat and dr. Gorazd Pretnar – and agreed that such a classification is scientifically unfounded. Nothing has changed since then.
2. When is a person healthy: when he or she has the disease, or when he or she has the disease Covid? Politicians act, the medical profession speaks, and the media reports as if everyone and only people who have or do not have the Covid disease but have not been vaccinated with the Covid disease vaccine are labeled as representing the danger to others. The finger points at people who don’t get vaccinated because they still have reasonable doubt that vaccination against Covid disease (since I’m not a doctor, I won’t get into a controversy about whether or not it’s actually a “disease,” but even scientists polemicize on this issue) is urgent, safe, and effective. There are sweeping and inaccurate accusations up front that people who have not been vaccinated, especially young people, will be directly responsible and »quilty« for the new wave of the pandemic already predicted for late summer and early fall 2021 and subsequently for the new lockdown and even harsher measures on freedom of movement and personal liberty. I will not deal with such certainly vile and highly offensive accusations here.
3. What scientific arguments determine and inform the policy decision and hypothesis that any suspicion of covid disease requires the quarantine of a person? Or, to put it another way, what scientific evidence justifies the assumption that any covid infection is more dangerous than any other communicable disease and therefore requires special, particularly stringent measures such as deprivation of personal liberty through quarantine? There is no scientific support for this hypothesis. We do not know of it. But we do know many scientific denials of this hypothesis. The media is also silent on it. All influential media and almost all Slovenian media. All members of National Assembly are also silent. We also know the dissenting opinion of the judge of the Constitutional Court, Dr. Špelca Mežnar, in which she states that the measures we have already experienced, especially the so-called “police-hour” is not only an interference with the right to freedom of movement, but also a constitutional problem that interferes with the basic human and constitutional right to personal freedom.
3. ZNB-D became a political manifesto, did not remain a health law
The amendment to the ZNB-C introduced a modified quarantine measure intended for all diseases for which the Minister of Health, that is, the government, the executive branch, the daily-politics, so decides. The measure is written in the Act in such a way that it is primarily a political decision, not a technical medical and epidemiological one. It is written in such a way that it can only mean a political decision. It will be decided by the government, not by the medical profession, and not by Parliament. It is a very clear, transparent example of an unchecked desire for political arbitrariness and caprice, which by definition means an act of tyranny. With the necessary emphasis that this is not just a restriction on freedom of movement, but deprivation of personal liberty.
But the Constitution does not permit this – not in the sense as it is written and regulated in the above-mentioned Act.
Epidemics (occasionally called “pandemics”), with all the attendant measures, can also be declared for common seasonal respiratory infections, colds, flu… …where the possibility of transmission is high and mortality is very low. That is how the Act has been written. Factually and literally, they can be officially declared at any time. Politically, not scientifically. Under the new law, authorities will be able to declare an epidemic simply by pointing to »prevention interest«. And to the simple personal opinions – of the government’s expert advisory group. And to the mere opinion of the minister and to the scientifically unconfirmed hypothesis. The government’s professional and scientific findings, beliefs, and recommendations are not binding. Outrageous – from the perspective of law and medicine.
The admission to domestic quarantine and supervision of its implementation shall be ordered not by the National Institute of Public Health (in Slovene: NIJZ-Nacionalni inštitut za javno zdravje) (it should also be noted that the government still does not try to write the new name of the Institute into the Act and rather keeping the former name instead), which is a state institution, but rather and even by the police. Outrageous – from the point of view of modern constitutional democracy, the rule of law, and fundamental human rights and freedoms. Also, of course, from the point of view of the constitutional principle of separation of powers. And, as I said, without any commitment to the convictions and proposals of the medical profession and medical science.
The concerning provision of the Act even says that quarantine may be ordered “by other means.” Such a provision is a mockery of constitutionalism and legal doctrine. It introduces an unprecedented police power, which I call »severe policism«: a healthy citizen can easily be reported to the police by a bona fide or a lying “neighbor” claiming he or she had a “high-risk contact” with a particular person, or claiming that particular person has had such contact with another person. One can also do so anonymously. It is legally egregious and indefensible.
Nowhere is it even defined what those terms even mean. This not only opens the door but also tears down the wall that protects people from politically motivated deprivation of personal liberty – otherwise healthy people.
Sabina Senčar, MD, was the only doctor present at the debate on ZNB-C in the National Assembly and who was not allowed to discuss professionally at all, as she wrote in her public response, publicly claiming that politicians talked about everything but disease prevention. “The political debate was in no way reminiscent of a professional, evidence-based discussion. It was more about measuring power, whose dogma or religion is more persuasive,” she wrote in a public letter. She added: “A doctor will no longer be needed or important in diagnosing a disease. Politics will determine which will be the disease to which all other diseases will be subjected,” or “which virus is the biggest player right now. When it suits them, politicians, the virus will jump, float, stick to coffee cups, or be transmitted by the nature of sexual contact. The doctor won’t need to know anything more than what the government tells him to.” Senčar is right that the ignorance of doctors and politicians does not absolve them of responsibility. Her conclusion says it all: “We doctors were not the richest in the past, but we were respected. Today we have sold respect for a little more money in our pockets. No one cares about our opinions and professionalism anymore. We just become enforcers of the orders of the authorities.“
And how do Slovenian doctors, better the Medical Chamber, as a representative institution, react to such and similar statements and warnings, or to the actions of those who publicly seek the truth, think and do not close their eyes to it, who want to be, can be and are critical? Either by silence or by considering or initiating disciplinary proceedings, supported by public disqualification ad personam in the media.
- 4. ZNB-D: anti-political manifesto of the distorted authority
ZNB-B, ZNB-C, and ZNB-D Acts should be torn apart by lawyers. Doctors should condemn them and actively oppose them. The Ombudsman should be too worried to go to sleep peacefully. The media should… perform their social function! The political opposition should… oppose, as the opposition has 24/7 access to parliament.
In the case of the ZNB-D amendment, the part of the roof that may have remained intact during the first two hurricanes over constitutionality should also be opened to them.
But all is quiet. More or less, with the exception of lone wolves, all is quiet.
The amendment, the lawyer would write “de facto and de jure,” not only “interferes” with fundamental human and constitutional rights and liberties – it abolishes them! At the level of the law, it normatively abolishes them – by giving the government (the executive branch) the opportunities it gives. Legally untenable and outrageous – if there is anything left of constitutional democracy, rule of law, and human rights.
In blatantly unconstitutional fashion, it gives the executive branch a blank check to do with people as it pleases, when it pleases, and for how long it pleases. With their freedom of movement, personal liberty, right to privacy, intimacy, and family life…, with all constitutional rights and freedoms. Physically and mentally, alternately more one or the other, but most importantly both at the same time. This egregious amendment, which anti-politically characterizes the unconstitutional abuse of the law as a form of the anti-democratic and unlawful political manifesto that legitimizes not only the possibility but the fact of total political abuse of the legislative process, completes the ZNB Act and its three amendments into one illegal and total political regulation. It transforms the law into a political manifesto. The content of that manifesto is the content of that paragraph. That is the philosophy, the attitude, the character of this – residing – government pseudo-coalition (which does not even have a reliable absolute majority in parliament). Of the executive, with individuals as PM’s satellites, allowing the authorities to make legislative decisions. Of the executive branch, which governs with the by-laws and enacts Statutes/Acts to govern simply with the by-laws. Here there is no further overlap with the concept and value of constitutional democracy.
This week (5-9 July 2021), the ZNB-D amendment will be passed by the National Assembly. It will be passed by legal solutions that have absolutely nothing to do with medicine and epidemiology. They will be replaced by party politics, daily politics, the ruling party, and party butlers.
It even legalizes the deprivation of personal liberty within a few feet of one’s home! This is to be decided by the minister – personal liberty will either be allowed or taken away. Under this amendment, the political authorities can also lock us up in an isolation camp. A slight cold will be enough for that. Sorry, that is not true, the political authorities can do that to a healthy person even without a slight cold! It will be enough for someone to “report” someone by claiming that he or she had “risky contact” with someone else!
That is what the executive branch is doing daily, even though the March 2020 – July 2021 period was a political fiasco, a political collapse, including a somersault of science and medicine, a display of breathtaking political incompetence and health irresponsibility, indifference, and systemic violence. The executive branch, which rules by the mostly unconstitutional ordinances, by-laws, and passing the statutes making the ordinances an easy and the usual way of governing, as new legislative normality, interfering with measures and further tightens them even though they have been shown to be not only completely wrong, ineffective, non-vital, unnecessary, useless, but also catastrophically harmful, and have been labeled post festum by the medical profession and academia as “unnecessary“, “ineffective“, “wrong“, and “in no way related to epidemiology.” (I repeat: read the records of the expert meetings of the advisory groups and the individual opinions – from all involved and from the beginning, in March 2020). So it’s not a law anymore, certainly not a health law, so it’s a political manifesto of a certain executive – … (insert adjective(s) and noun(s) of your choice)…
The possibility of deprivation of liberty as enshrined in the ZNB-D amendment is not a health measure but a political stance. The health system doesn’t need this measure, neither do the people, but party politics do.
The Constitutional Court should not spend more than a week on this political manifesto.
5. European regulation – clear and clearly ignored
Yes, the European Parliament and the European Council adopted REGULATION (EU) 2021/953 on 14 June 2021. The Regulation regulates “the framework for the issuance, verification and acceptance of interoperable vaccination, testing and disease certificates in relation to COVID -19 (digital COVID EU certificate) to facilitate free movement during the COVID -19 pandemic.« Article 36 of the Regulation states:
“Direct or indirect discrimination against persons who have not been vaccinated, for example for health reasons or because they do not belong to the target group for which COVID -19 is currently used or allowed to be used, such as children, must be prevented, or because they have not yet had the opportunity to be vaccinated or have chosen not to be vaccinated. Therefore, possession of a vaccination certificate or possession of a vaccination certificate specifying the vaccine against COVID -19 should not be a precondition for exercising the right of free movement or for using cross-border passenger transport services such as air, rail, bus, ferry, or other means of transport. Moreover, this regulation cannot be interpreted as establishing the right or obligation to vaccinate.”
It is a piece of legislation that PROHIBITS (also and primarily) DISCRIMINATION, LABELING, STIGMATIZATION, DISCRIMINATION, SOCIAL ISOLATION AND SOCIAL LIQUIDATION based on Covid disease and vaccines for that (vascular, not respiratory!) disease.
The Slovenian executive whistles about it. But the media also whistles about it. What the opposition does, I don’t know. The pod is whistling. All pods. Also medical. What’s to prove it’s any different?
Of course, not only will the ZNB-D amendment be passed in the National Assembly. A ban on a referendum on this and other amendments will be passed also.
From this point on, to speak of real democracy and to speak of a functioning constitutional democracy is mere dramaturgical evasion.
It is obvious that this time the government had considerable professional help in drafting the text of the amendment. The amendment is well written in formal legal terms. According to it, the third paragraph of Article 8 of the ZNB is to be amended as follows:
»If there is a risk of other contagious diseases that may endanger the health of the population, the Government of the Republic of Slovenia may, on the proposal of the Institute for Public Health, decide on measures under this Act. It shall immediately notify the decision to the National Assembly of the Republic of Slovenia.”
The decision-maker is the government and only the government, the executive, the coalition of parties!
The famous, unconstitutional (as finally evaluated by the Slovenian Constitutional Court also) Article 39 of the ZNB is also amended:
“If the Government of the Republic of Slovenia, after considering the opinion of the medical and epidemiological profession, comes to the conclusion that the measures provided for in this Act are insufficient or insufficient to ensure adequate protection against the spread of infectious diseases, health, and human life, it may also order the following measures:
1.restrict entry from countries where there is a possibility of contracting a dangerous contagious disease, in particular by requiring the presentation of appropriate proof of immunity or non-infection or other relevant evidence, or by making the transmission of personal data a condition of entry; paragraph 3 or a partial or total ban on the entry from such countries of persons who do not have permanent or temporary residence in Slovenia shall be ordered for a specified period;
2. restricting or prohibiting the freedom of movement, in particular by: – restricting movement for the entire population or individual population groups to a statistical region, municipality, or another territorial unit; – prohibiting access to a specific place; – restricting or prohibiting movement at a specific distance from a person’s place of residence; – restricting or prohibiting movement at specific times of the day;
3. restricting or prohibiting collection, in particular by: – restricting or prohibiting the teaching or conduct of an educational program on the premises of educational institutions and universities and independent colleges; – restricting or prohibiting the collection of persons in cinemas, theaters, museums, libraries and other establishments for cultural activities; – restricting or prohibiting the collection of persons in restaurants and lodging establishments; – restricting or prohibiting the collection of persons in religious buildings; – restricting or prohibiting the collection of persons at sporting events or exercises; prohibiting the collection of persons at other public events, public meetings and other public places;
4. restrict the circulation of particular types of goods and the provision of services, in particular by: – determining the characteristics of the premises where trade in individual types of goods or services takes place;
5. the transfer, collection, transport of goods or the provision of services shall be conditioned in particular by: consideration of hygienic safety and other specific protective measures depending on the nature of the transmission of the contagious disease; Transmission of personal data to the responsible person under public or private law who organizes the collection or provides the services referred to in paragraph 3 of this Article, predlož by presenting appropriate proof of immunity or non-infection or other relevant evidence to the responsible person referred to in the preceding indent.”
The requirement to wear face masks and the definition of wearing face masks as a form of “free movement” is still not prescribed as a measure in the law. Despite this fact, and despite the fact that this issue has already been decided by many ordinary courts, both at first instance and on appeal (with a clear ruling that it is not permissible to simply assume that wearing a face mask is a way of restricting free movement and that nowhere in Slovenian law does the failure to wear a protective face mask constitute an administrative offense), people in real life are still asked to wear face masks, claiming that it is a legal obligation, and public authorities still punish people who do not want to wear masks, even though the courts clearly ruled months ago that people cannot be punished for this reason, because it is not an administrative offense under the law. Go figure!
However, a ban on crossing municipal and regional borders, »police-hour« and a possibility to order the entire public to remain in “house arrest” (deprivation of personal freedom) have now been written in the Act as legal and legitimate »anti-coronavirus« measures.
It is also stipulated that “before issuing the decree referred to in the previous paragraph, the Government of the Republic of Slovenia shall obtain an expert opinion prepared by the Institute Public Health of the Republic of Slovenia. The expert opinion shall cover the epidemiological, medical, and social aspects of the proposed measures.” But the Government decides, regardless of those opinions, or better, with legalized right to disregard such opinions.
»The measures referred to in items 1, 2 and 3 of the first paragraph of this article shall be ordered for the shortest time necessary to achieve the purpose referred to in the first paragraph of this article, but each time for a maximum of fifteen days. During the duration of an individual measure, the Government of the Republic of Slovenia shall examine its appropriateness and the necessity of prolonging or amending or repealing or introducing a new measure. If the Government of the Republic of Slovenia prolongs, amends or repeals a measure or introduces a new measure, it shall obtain an amended technical assessment in accordance with paragraph 2 of this Article before issuing the decree in accordance with paragraph 1 of this Article. The measures referred to in the first and fourth indents of paragraph 1( 2) of this Article may be ordered only at the time of the declared epidemic.”
However, basic measures such as the required social distance, the wearing of a face mask and a quarantine measure are still “valid” and are being implemented on the ground, in real life, even if an official pandemic is currently canceled. To be reintroduced on August 15 – so it was announced and decided only a few days after the official cancelation of the pandemic. Go figure.
The executive can do anything, decide anything – science and medicine can only offer “advise” in a non-binding manner. And the government can extend the measures indefinitely. Yes, indefinitely!
In Article 46.a of the ZNB, the second paragraph is amended as follows:
»In exercising control over the measures referred to in Article 39(1) of this Law, which fall within the competence of other ministries, the competent inspector shall have the right and the duty to: – restrict or prohibit the movement of persons diagnosed with or suspected of having contracted a particular infectious disease; – restrict or prohibit the collection referred to in Article 39(1)( 3) until there is no longer a risk of spreading an infectious disease; – restrict or prohibit the movement of certain types of goods and the provision of services; – order such other measures and perform such other acts as he is empowered to do by law or other regulations.“
If “found or suspected“?! Sapienti sat!
6. When the Constitutional Court “legalizes” a violation of two fundamental constitutional principles
In ZNB-D there is also an article on all previous misdemeanor proceedings harmonized with the decision of the Constitutional Court. The latter (to my great disappointment) legalized previous misdemeanor proceedings and approved on a constitutional level the violation of equality before the law and legal discrimination. On the other hand, all proceedings which were started by June 3, 2021, and have not yet been legally terminated, will be terminated on the day this law comes into force. But only those and such proceedings!
I have no further comment. I hope and expect the Constitutional Court to strike down this Act as clearly unconstitutional. Soon. Because we are not at war. Are we?
 See Communicable Diseases Act. Official Gazette of the RS, no. 33/06 – official consolidated text, 49/20 – ZIUZEOP, 142/20, 175/20 – ZIUOPDVE, 15/21 – ZDUOP and 82/21). Available at: http://www.pisrs.si/Pis.web/pregledPredpisa?id=ZAKO433
 See my professional e-monograph entitled CONSTITUTIONAL LAW ANALYSIS (Fall, 2020) OF THE PROPOSAL FOR AMENDMENTS TO THE ZNB DISEASES LAW (ZNB) AND THE ADOPTED ZNB-B is available at: https://andraz-tersek.si/ uploads / 2021/06/znb-capture-analysis-oct-2020-strok-mon.pdf
 Available at: https://eur-lex.europa.eu/legal-content/ EN /TXT/PDF/?uri=CELEX% 3A32021R0953 & from = EN & fbclid = IwAR30um5KuSAzMDGeh-aHhNwloJ2Jm5f9ncSMni8YL8uUEPCuXbqKNRFiGT0
 See scientific articles, available at: https://physoc.onlinelibrary.wiley.com/doi/10.14814/phy2.14726 ; https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30937-5/fulltext; https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8091897/
 See Slovenian Constitutional Court decision No. U-I-79/20. Available at: https://www.us-rs.si/odlocba-ustavnega-sodisca-st-u-i-79-20-z-dne-13-5-2021/. Also published in: Official Gazette of the RS, No. 33/06 – official consolidated text, 49/20 – ZIUZEOP, 142/20, 175/20 – ZIUOPDVE, 15/21 – ZDUOP and 82/21.