- Supplement: Another Decree and Obviously Illegal and Unconstitutional Sanctions
I feel strongly obliged to point to another aspect or fact that has become more than obvious in Slovenia, which unites and which culminates in the problem of fear on the one hand and the problem of legal errors in government action on the other, in relation to the – claimed and presumable – protection of people from the virus and a new pandemic. Or, in other words, it is a problem of the people’s ruthless and voluntary obedience, their respect for the government’s actions and demands on the one hand and the legal shortcomings of these actions and demands on the other. Or, in other words, it is a problem of manipulating the people: Slovenian government is increasingly (in terms of scope) and arrogantly (in terms of severity) using the law as a “technique” of subjugating and intimidating the people.
The Decree on Temporary Measures to Reduce the Risk of Infection and the Spread of the SARS-CoV-2 Virus (Official Gazette of the Republic of Slovenia, No. 90/20, hereinafter: Decree), which entered into force on 25th of June 2020, stipulates that the prevention of the recurrence of the infectious disease COVID-19 is provisionally determined by the compulsory wearing of a protective mask or other form of protection of the mouth and nose area of the face in a closed public space and the compulsory disinfection of the hands.
The Government adopted the aforementioned Decree on the basis of Article 4(1) of the Infectious Diseases Act. This is not only about the s c. “general regulation,” according to which everyone has the right to protection against infectious diseases and nosocomial infections, but at the same time the duty to protect their own health and the health of others against these diseases. It is also what I call a “psychological ploy.” Why? Provisions in Chapter II of this Act which define the possible legal bases for various measures for the prevention and control of infectious diseases and which are legally decisive also provide SANCTIONS for breaches of such legal duty. According to this Act, only non-compliance with the provisions based on Chapter II of this Act determine a fine for an offense. However, the mask-wearing duty, determined in the Decree is only verbally marked as “duty,” since it was not issued on the basis of these provisions of the Act, but on the section of this Act which doesn’t determine any sanctions! Therefore, a person who fails to comply with the obligation to wear masks in enclosed public places as laid down in the Decree cannot be punished for an offense at all. In legal terminology, it is therefore a s. c. incomplete legal norm (lex imperfecta). A violation of this norm is not sanctioned! Therefore, the inspection body cannot impose sanctions on the infringer!
Such an interpretation is also consistent with the decision taken by the Republic Constitutional Court of Slovenia in decision No. U-I-181/93 (20th of January 1994). As I published this fact on my Facebook website on Wednesday, 22nd of July 2020, I drew attention to this fact, and perhaps this Decree will also be reflected in the Constitutional Court and its illegality will be reviewed before the Constitutional Court.
However, the Slovenian public is not aware of this. Not even journalists know about it. And most security officers, supervisors, and police officers do not know this fact. Therefore, people are punished for “misdemeanors” when they are caught wearing no mask in a closed public space or even for the improper wearing of protective masks – under the nose. And people pay these fines without knowing and without having been publicly warned by the media, the Ombudsman or the parliamentary opposition that the imposition of these fines has no valid legal basis at all: the fines are imposed on the basis of those provisions of the Act which do not provide for sanctions!
To date (Monday, July 26, 2020) I have received 21 emails or messages from people who have been fined for a misdemeanor for being "caught" without a mask in a closed public space, and five people have informed me who have been fined for “improper” wearing a mask right under their noses. People do not know that they are not obliged to pay fines under this title. And security officers, supervisors and police probably do not know that either. What about the members of parliament? And the journalists?
At the same time, I am still waiting for the official answer from the Slovenain National Institute for Public Health (NIJZ) to the questions: is wearing a mask recommended or not; has the government taken measures on the recommendation and instruction of the NIJZ and the Slovenian epidemiological community; is wearing a mask at work for several hours harmful or not; is wearing a mask at work for several hours particularly harmful to people with various respiratory diseases, and what should a worker do if his employer obliges him to always wear a mask at work?
In the media I have also sought the official position of the NIJZ, or the representative of the University Clinical Centre (UKC), and for the unified position of the Community of Epidemiologists or the unified position of the representative body of Slovenian doctors on these issues. It is nowhere to be found in the media.
At the same time, I have publicly informed the Slovenian public about another, legally very important fact. All of the people who have paid a fine for not wearing a mask or for wearing it wrongly have the right RIGHT to demand reimbursement from the state! Even if they have missed the appeal deadline. After all, they have paid something they were not obliged to do at all, and they did not know that they were not obliged to pay it. So they should refer to Article 190 of the Code of Obligations: "Anyone who has enriched himself at the expense of another without a legal basis is obliged to return the receipt if possible, otherwise the value of the service received must be reimbursed". And the "other injured party" is the person who paid the fine.
At the same time, another, perhaps more important question arises: does the state fill the state budget in such a “tricky” way consciously, deliberately and systematically by imposing fines for which there is no valid legal basis? This may be a mistake made in good faith, but it may also be a civil offense, and even a crime of those responsible is not excluded. However, this question should really be made public, both by the Ombudsman and by the criminal investigators, the public prosecutor ...
The rule of law in Slovenia is falling apart before our eyes like a pile of dice that someone has kicked hard. I wonder what’s next. And I don’t believe anything good follows.
It has become apparent in the EU Member States and in the Council of Europe, particularly in Slovenia, that a large, giant wave or snowball has broken loose, rolling through space and increasingly threatening and crushing fundamental human rights and freedoms underneath. That is why, in my recent articles published in Slovenia and in another article published on ECHRCASELAW.com blog, edited by Mr. Vassilis Chirdaris, I expressed my concern about where all this political development at the expense of fundamental human rights is leading, what it will bring and where or how it will end. It is clear that EU and Council of Europe Member States are introducing measures that are strong and grossly encroaching on people's fundamental rights, increasingly, and doing so in the name and in the s. c. function of “measures to prevent a pandemic and to deal with the effects of the first wave of the pandemic.”
But it is becoming increasingly obvious that this is not the case! Such rhetoric is increasingly becoming a "recurring mantra" and a pretext for establishing increasing control over people (if I only mention the ideas already introduced in some places, about tracking mobile phones, etc.), for more frequent, more obvious and more serious violations of fundamental human rights and freedoms.
Increasingly it seems that the fundamental rights and freedoms that were fought for in the past, and in the run-up to the 2020 pandemic, will have to be fought for again. Even for their “minimal standards.” Effectively and decisively. And only the ECHR can enable this fight and stop the strength and power with which the governments of states are increasingly undermining the fundamental postulates of democracy, the rule of law and fundamental human rights.
Last but not least, people are more anxious and not just confused from day to day. And very, seriously frightened. It seems, as I have recently written in several published articles, that fear is becoming a new epidemic. But people also have a basic human right to protection from fear!
People, their fundamental rights and freedoms, democracy, rule of law and Welfare State MUST BE PROTECTED! SOCIAL CONSTITUTIONAL DEMOCRACY AND RULE OF LAW NOW!