—Tomáš Ľalík, Associate Professor of Constitutional Law, Comenius University, Bratislava
The following piece describes a legal regime limiting fundamental rights and freedoms in Slovakia during the fight against pandemic with the emphasis on the rule of law and legality. In particular, I analyse the system of rules put in place that touch on human rights. Next, I underscore the total absence of judicial (or external) review of the acts by directly affected individuals. In the end, I argue that disregard of the rule of law by the Slovak authorities could delegitimize the effort to rage a war against the pandemic.
Rule by the Chief Hygienist
In general, in Slovakia there are three types of acts that limit human rights during the pandemic outside the state of emergency: Act on Public Health, internal resolutions of the Government and measures by the Public Health Authority (PHA).
The system works in the following way. The most important legal document has been the so-called Covid automat. It contains methods and methodologies of various epidemiological criteria and regulates Slovak regions into different legal regimes based on data. The problem with the Covid automat is that it is in the form of internal resolution adopted by the Government and as such does not have any legal effect outside the Government. Despite this, in the operative part of the resolution it recommends the Chief Hygienist (head of the PHA) to issue measures that would transform results from the Covid automat into practice. Although the Chief Hygienist is not formally required to obey, in practice he follows “advice” and on weekly basis issues the measure. He cannot refuse since he is subordinated to the Minister of Health and subject to dismissal at any time.
When the Chief Hygienist issues pandemic measures, although he formally invokes legal basis of the Act on Public Health, de facto is acting on the basis of executive internal resolution. The measures issued by the Chief Hygienist regulate a legal situation of everybody in a very detailed manner for last 20 months.
There are at least three problems with the measures of the Chief Hygienist from constitutional perspective. Firstly, the measures are not accompanied by any explanatory memoranda. Why such measures and not others were adopted are completely absent from the picture. There is no standard how to judge neither rationality nor necessity of such measures.
Secondly, the measures are not officially published in the official Collection of Laws equipped with ignorantia legis non excusat. Instead, they have been “published” in the Governmental Journal established by the Government itself by the internal resolution (again). As such the Journal: (i) does not contain ignorantia legis notion; (ii) is intended for internal and technical acts of various executive agencies (in fact, the measures by the Hygienist are the only generally binding acts published in the Journal).
The third problem with the measures concerns discretion for delegated legislation. The Act on Public Health (and the governmental resolution) grants too much discretion to the PHA on issuing measures without any limits for secondary legislative-making activity of executive agency. The Act gives some 62 powers to the PHA allowing limit every single aspect of human behaviour for indefinite time (meeting with friends/family, travel within country/county, compulsory isolation, controlling employees by employers, limiting political rights, shutting down businesses, schools and religious activities). The Act does not contain any criteria, measures, risks, check-lists, facts, guidance for the Chief Hygienist to take into account what would set limits to his powers. There are provisions in the Act that even allow to adopt any further measure that the executive deems necessary.
The situation constitutes blatant violation of the Slovak Constitution stipulating that human rights limitations shall be regulated by statute only. Addressee of a statutory norm should foresee implications for his/her legal situations solely on the basis of a statute, while details of the regulations may be provided in delegated legislation. In this case, the limitations on human rights are not set in the primary legislation (the Act on Public Health) but in the secondary legislation that has gained practically unlimited powers to infringe rights in time and space.
The Lack of External Control
It is truism to say that the rule of law protects an individual against an abuse and arbitrariness of state power. The legality criterion (e.g. in the case-law of the ECtHR) often translates into protection of an individual by procedural safeguards against possible misuse of state power. Going back to the Slovak context, it is problematic that such giant power of rather unimportant bureaucrat as the Chief Hygienist is, does not go hand in hand with any effective control what leaves ordinary people without any effective protection.
It has been mentioned that the measures issued by the Hygienist constantly limit human rights of all the population. The Slovak Constitutional Court (SCC) is infamously known for its extremely formalistic approach when it comes to protect human rights in constitutional complaint procedure. One may recall its doctrine that the courts of general jurisdiction when handling cases cannot violate other rights or freedoms but the right to fair trial – the conclusion heavily criticised in the scholarship and the ECtHR (recently in the M.L. v. Slovakia judgment at § 57). Or the fact that the most violations found by the SCC are the excessive length of proceedings by general courts (focus on unimportant agenda).
As part of its approach, the SCC refused to hear any complaint lodged by individuals challenging measures of the Hygienist. According to the SCC, an individual cannot claim violation of human rights by the mere existence of a legal norm, but by its application only (i.e. decision based on normative content). Moreover, in the constitutional complaint procedure the SCC cannot review the validity of a legal norm and there are different procedural rules in place for abstract review of legislation and concrete control. As a result, the SCC declined its jurisdiction to hear any constitutional complaint against the measures of the Chief Hygienist.
Such approach can be subject to critique for several reasons. Firstly, the approach disrespects the role of the international law that has been incorporated into the national legal order. Namely, the ECHR and its Article 13 is a vital part of the Slovak legal system (when offers higher protection of human rights) and as such could be invoked by the SCC even in the situation when the national law does not give clear guidance on jurisdiction. Alternatively, the SCC could invoke the right to court and fair trial that would establish its jurisdiction. Next, in the constitutional complaint procedure the SCC does not need to invalidate a legal norm but can only declare that the mere existence of the norm violates human rights of an applicant. Finally, the SCC should abandon its doctrine on separation between normativity and applicability of legal norms and adopt more flexible approach that is more friendlier towards applicants (again the ECtHR and its direct/indirect/potential victim approach can be followed): the mere existence of law with sufficient particularity (concreteness) blurs distinction between normative status of a norm and its applicability (e.g. decision). Given the very detailed nature of the measures, what is distilled for the applicability stage is exactly the same what is found in the normative status. In short, normative level of a norm and its applicability level coincides. And, yes the SCC can be the first instance hearing all cases when there is no other available remedy. However, the SCC declined its jurisdiction and so did the administrative courts.
The only possibility to challenge the constitutionality of the measures is by political actors – MPs, President, Government, General Prosecutor and Ombudsperson. The second possibility for individuals is to directly approach the ECtHR. Put bluntly, individuals cannot prompt any effective procedure to review possible misuse or arbitrariness of state power.
It is no surprise that ordinary citizens are confused and feel oppressed in the situation (i) where they do not have any procedural safeguards that would provide quick and reasoned answers; (ii) are heavily affected by the measures and (iii) there are reasonable doubts about legality and legitimacy of many measures. As a result, many people openly or covertly disregard the measures, refuse vaccination (one of the highest rate in the EU), confront police officers and medical staff with slurs and fighting words and mistrust the government whose popularity went down from constitutional majority in February 2020 to some 20% in recent pools.
How this status quo will be addressed remains unclear. But one should not be fooled here: an effective fight against the Covid 19 goes hand in hand with effective judicial oversight and protection of rights and freedoms. This is the cost of having the rule of law and honour it even during the most dramatic situations. When a crisis situation looms, our true values reveal. In the case of Slovakia and its pandemic times, it is certainly not the rule of law nor its offshoots (legality and effective safeguards against abuse of state power), that have been cherished.
Suggested citation: Tomáš Ľalík, Leaving the Rule of Law Behind: How Slovakia is fighting against COVID-19 without Legality, Int’l J. Const. L. Blog, Dec. 9, 2021, at: http://www.iconnectblog.com/2021/12/leaving-the-rule-of-law-behind-how-slovakia-is-fighting-against-covid-19-without-legality/