In the constitutional order of the Republic of Slovenia CHILDREN, FAMILY and PARENTHOOD represent special constitutional categories. And these are not the usual constitutional categories. These are (similar to “disability”, or “disabled persons”, also “disabled workers” and “children with special needs” etc.) SPECIALLY PROTECTED CONSTITUTIONAL CATEGORIES. They contain, establish and deal with specific rights, freedoms and duties (obligations). These are regulated in more detail by legislation. However, they must always remain within the framework of the Constitution and its constitutional interpretation. The rights and duties that directly or indirectly affect these constitutional categories under the Constitution further emphasize the importance of negative and positive nature of these rights and duties (not only of the above mentioned, this is generally established constitutional doctrine, but in this piece I focus on the categories mentioned).
The negative character of these rights means that nobody, especially not the state and public institutions, may interfere with these rights, unless this is explicitly required by law, and unless there are urgent or compelling reasons, which are convincingly substantiated by the so-called “public interest.” At the same time, “necessary and compulsive” means that a legitimate, important and convincing “public interest,” defined by the state as “more important,” as something that has “priority” over these rights, cannot be achieved otherwise than precisely and exactly as prescribed by the state in the form of law – Act.
Any interference with these rights must therefore be judged legally according to the strictest examination (strictest scrutiny test) of their constitutional admissibility and legal correctness. It is not sufficient for the state to state the reasons for the interference with these rights as merely “appropriate.” The state must substantiate the reason(s) which justify the interference in rights and freedoms as “necessary.” For the constitutionally allowed interference with these rights (e.g. a certain “measure” which implies an interference with these rights) there must be a direct link between the “measures” and the legitimate (and “prevailing”, since the “measures” interfere with the rights, duties and freedoms) public interest. Between the two there must be a so-called proportionality in the narrower sense: the public interest is so important that these rights must necessarily be interfered with, and the interference can and must be done exactly as determined by the public authority – the state. BY LAW. By legislation. In an ACT.
Therefore, the State, public bodies, public institutions, public corporations, but also private legal persons can only interfere with (affect, restrict in any way) these rights, duties and freedoms if the condition in the previous paragraph is fulfilled.
Constitutional rights and freedoms have also the so-called “radiation effect”: they also concern relations between private individuals, between private legal persons and private legal entities. Therefore, the holders of constitutional rights and freedoms have these rights and freedoms both against the State (which violates them most often and frequently) and against other legal persons and entities: public and private. In other words, people also have constitutional rights, duties and freedoms in their relations with one another.
Constitutional rights and freedoms also have a positive character. From this follows the so-called constitutional doctrine of the positive obligations of the state. This means that the state must do everything it can do and what can reasonably be expected of it so that the holders of these rights and freedoms can exercise these rights and freedoms in practice: efficiently, with quality, safely – legally and institutionally protected.
Parents have parental rights over their children, but also duties. And these duties are similar to rights – because they form a single, inseparable whole. Therefore, by their very nature, they often merge into each other and vice versa. And here, too, the state must do everything possible to ensure that parents fulfill their parental duties in a high-quality, efficient and safe manner, and of course autonomously and freely. This means that the state must enable parents to fulfill their parental duties (negative character), while at the same time providing a social environment (legislation, institutions, social policies…) in which parents can fulfill these duties in the best possible way. And doing so in the (in function of) the best interests of the child. In and for the good of the children. For the “child benefit,” or “child wellbeing/welfare”; doing what is best for the child/children (the safest, the most beneficial, etc.).
It is in the nature of things (also according to “legal logic”) that parents are primarily (first, most, first and foremost…) responsible for the wellbeing of the child/children. And since they are primarily responsible under this title (i.e. their DUTY), the parents’ RIGHTS must be protected to the maximum extent possible.
It is therefore no coincidence that the question of the rights and duties of parents, the question of the family and the question of children’s rights is also regulated in numerous international legal documents – e.g. in a multitude of conventions, resolutions etc.
The issue of the rights and duties of parents is directly related to several other constitutional rights and freedoms. I will mention the most important ones, but I will immediately add that the issues of “parenthood”, “rights,” “security”, and “wellbeing” of children” and family directly affect three of the highly important (I try to avoid the word “most important” to avoid possible and unfortunate misunderstanding) constitutional rights: PRIVACY, DIGNITY and SECURITY.
Recently I have published several articles on the subject of compulsory vaccination. I pointed out that the ECtHR (European Court of Human Rights) has an important task: to finally decide in the case Vavrička and Others v. The Czech Republic. And I added a critical remark that this Court has delayed the final decision too long. I particularly emphasized the constitutional fact that any interference with a person’s body is also an interference with his or her mental and spiritual integrity – and that this is an integral part of the right to privacy, which is already enshrined in the ECHR (European Convention on Human Rights). This decision will perhaps be the most important decision of this Court in recent years, perhaps decades: both because national governments are currently not subject to any control and restrictions on the use of vaccines and because of the expectations regarding the vaccine against the virus that characterizes the 2020 pandemic. With the added problem that studies and analyzes of vaccines are a “secret” under current legislation. In the published article I also mentioned that the legal regulation of this issue is not uniform in each of the individual EU Member States and Council of Europe Member States. I also mentioned statistics… But in order not to pay too much attention to this topic, I kindly invite you to read those articles if you are interested in the subject. Or at least the one I published in English on the ECHRCASELAW.com web portal (Blog).
The following articles in the Constitution of the Republic of Slovenia (but not only these articles) directly address the issues of parenthood, children and family:
(Right to personal dignity and safety)
Everyone has the right to personal dignity and safety.
(Protection of privacy and personal rights)
The inviolability of a person’s physical and mental integrity, privacy and personal rights is guaranteed.
(freedom of conscience)
Parents have the right to provide their children with a religious and moral education appropriate to their beliefs. The guidance of children with regard to religious and moral education must be in accordance with the age and maturity of the child and with his or her freedom of conscience and religion and other definitions or beliefs.
(marriage and family)
The state protects the family, maternity, paternity, children and young people and creates the necessary conditions for this protection.
(Rights and duties of parents)
Parents have the right and duty to provide, educate and bring up their children. This right and duty may be withdrawn or restricted from parents only for reasons determined by law (for Slovene, this linguistically and terminologically means “by ACT”) for the protection of the child’s interests.
Children enjoy special care and attention. Children enjoy human rights and fundamental freedoms according to their age and maturity.
Children enjoy special protection against economic, social, physical, mental or other exploitation and abuse. This protection is regulated by law.
Children and minors who are not looked after by their parents, who have no parents or who do not have adequate family care enjoy special state protection. Their status is regulated by law.
(Education and schooling)
Education is free.
Primary education is compulsory and is financed by public funds.
The state creates opportunities for citizens to receive an adequate education.
It does not seem necessary to explain that, depending on the context of the specific case, these rights and freedoms are also directly affected by freedom of expression, freedom of movement, freedom of association, etc.
These rights, as in general, can only be affected by the LAW (ACT) or on the basis of the law (act). The term “on the basis of the law” means nothing other than the legal presumption that any act of a State which directly affects these rights and freedoms (not only these, this is generally true in constitutional law, but here I am talking about this particular subject) must be regulated by law in a direct, clear, comprehensible, sufficiently precise and foreseeable manner. By-laws may regulate in more detail the matters determined by the law (i.e. their function, their purpose), but this “detail” must not mean that RIGHTS and FREEDOMS get narrowed and DUTIES extended. Not to mention that rights and freedoms may not get considerably restricted and duties may not get considerably strengthened.
The Ombudsman and I have already commented publicly on the question of the legality of “sanctions”, “fines” in connection with the problem of wearing “masks” in enclosed spaces. I have explained this further and very precisely in the text published on my FCB page and on my website. I have also referred to the illegal “shortcuts” used by state repression to punish people for “not wearing” or “incorrectly wearing a mask.” I explained that a conscientious journalist had investigated the matter and confirmed my thesis: security personnel, security guards or the police “orders” people to put on a mask or to “put it on properly”, and if people do not comply, they are punished for “disobeying the order of an official.” I have written that this is illegal practice, abuse of the law and abuse of authority; because the end result is the same, and this is the punishment for “not wearing masks” or “wearing them improperly.”
(Note: of course, certain media and representatives of the journalistic profession made and still make sensationalism out of it, enriched with misleading and twisted contexts, sometimes even with lies; but one cannot successfully fight against it, one cannot prevent it).
Legally, the same applies to everything defined by words (and documents) as “acts”, “policies”, “guidelines”, “recommendations”, “decrees” or any other word. Punishment (a fine) is excluded – because it has no direct basis in applicable law. Not yet – but as far as I know, this too is in preparation.
However, it is not just about “punishing” someone for something that conflicts with a right or freedom, this is not the only way to restrict or even withdraw (take away, disable the exercise of) the rights or freedoms. Encroachment on a right, its restriction, perhaps even actual “deprivation”, is also caused (created) impossibility for the exercise of rights, freedoms and duties. Especially the rights and duties of parents – care for the wellbeing and the greatest benefit for the child: to the best judgment and consciousness of the responsible parents. It is up to the parents to decide what their child will do in kindergarten or school and what will happen to him or her. Parents decide on everything that does not directly concern the program and function of the educational institutions, the implementation of the program and their pedagogical and educational function (work plan, content, discipline and other professional and educational issues). And kindergarten or school are no exception.
What can happen?
Parents can get into conflict or quarrel with the management of the kindergarten or school. They can get into conflict or quarrel with each other. If children see, hear or feel this, it is not good. The state is aware of it (of this problem and possible – more than just – inconvenience) because it is able to be aware of it and because it must be aware of it.
It’s time (it’s long overdue) that pediatricians, immunologists doctors, pedagogues, psychologists, psychiatrists, psychotherapists… Take a public stand. Massively. And on the daily basis, frequently. Not the state, not the government PR.
And about the Slovenian National Institute for Public Health (NIJZ)? Well, we know how – politically – the problem started, how it continued and what led to the existing situation and events. Daily politics. Those who are determined to keep silent about it, or to fake the context or ignore the facts, or simply blink, must confront their conscience.
On the other hand, it is not difficult, however, to understand the “fear” that has become more than obviously a new epidemic. But, once again, there is a conscience (if there is one).
The analysis and evaluation of the effects, consequences, and impacts of “recommended policies” and “legal measures” regarding the wearing of “masks” and other related measures on the organism, on health, on the psyche, especially of the children – is not a question of law. However, the lack of clear, comprehensible, unambiguous and concrete answers to the concrete questions and dilemmas concerning this situation and these events is a legal question. And it already constitutes a violation of constitutional rights and freedoms. The same is true of any “action” of the public authorities, more precise – of the government itself, accompanied by an attitude of “let’s try and see what happens.”
What else can happen?
Similar to disputes between parents and doctors about vaccines or other medical issues; parents who ask questions, demand answers, do not want to submit unconditionally, or even oppose the “system” may face their official report to either the social service in a health facility or to the Social Work Centres, or even face a criminal charge against them – upon the claimed suspicion of having committed the crime of child neglect, of insufficient care for the child.
This is a technique of psychological pressure. Maybe someone would use the word “psychological violence.”
The matter, the questions, the events could be arranged very differently. Reasonable, respectful, legally correct, free from pressure, threats, accusations, free from deception, manipulation, half-truths and lies. Responsible, trustworthy and well-intentioned, professionally irreproachable and convincing. Truthful. Sincere. Human. With respect for the personal dignity of the individual.
But these are not such times.
I am not advocating for anything. I am not sparing anybody for anything. I am just explaining the law, the Constitution, constitutional rights, duties and freedoms. And I end with discomfort at how sad it is when a man finds out at this point that he’s lucky he’s not the parent of a grade-schooler.
It is sad that I have to write this explicitly: to deny a child the right to attend school because he or she does not have a mask, or to send a child home, or perhaps even expel him or her from school, because parents do not want him or her to wear a mask at school or be subjected to related measures would of course be an obvious and shocking violation of the law, Constitution and international law.
And if the answer to the basic question "is it legally and constitutionally permissible to punish someone under this title" NO, then the answer to all subordinate and secondary questions (is it permissible to "punish differently", "prevent something" , "deny something" etc.) is also NO.
I know what follows: whatever usually follows, public and private. But I do not speak or write about it publicly. Not directly, concretely and up-to-date. Only occasionally, and between the lines. And I take that into account from the first day of my public life.