UPDATE – 13 May 2020: On 15th April 2021, the Constitutional Court declared that a new decree should be adopted with due consideration for the right to gatherings being a fundamental human right. The Court stated that from 18th April 2021, new regulations should be adopted to consider not only the human rights aspect but also the fact that gatherings are an important means of expressing political positions
3 March 2020: When Slovenia entered the orange phase of the pandemic, some restrictions were softened. Thus, gatherings, that were previously completely forbidden, are now allowed up to 10 people. However, gatherings are not allowed for public celebrations, public demonstrations and weddings. In other words, even though up to 10 people can gather, they can not gather for protesting. In opinion of many, such restrictions breach the right to assembly and expression. The Legal Network for Democracy filed a constitutional complaint in the name of the two anonymous initiators.
Unofficial translation of analysis by Pravna mreža Za Varstvo Demokracije (Legal Network for Protection of Democracy), originally published on 02 March 2021, accessible here.
Initiative for CONSTITUTIONAL CONSIDERATION
An initiative has been submitted to the Constitutional Court of the Republic of Slovenia to review the constitutionality of a decree banning protests
Today, two initiators, with the expert support of the Legal Network for the Protection of Democracy (PMVD), filed an initiative to start proceedings to assess the constitutionality or the legality of the ordinance on the temporary partial restriction of the movement of persons and the prohibition of the gathering of persons for the prevention of SARS-CoV-2 infections.
The PMVD decided to support the initiator because of the events of the last year, when the right to protest was curtailed in Slovenia by restricting rallies, but also because of the threat of a new wave of epidemics. From this point of view, it is necessary to examine valid decrees from the point of view of their conformity with the Constitution and to clearly define the conditions under which constitutionally protected rights can be restricted and in what way, if at all.
The PMVD provided professional support in filing the initiative, and several law firms, university teachers and other experts in the field of constitutional law contributed to the argumentation with their legal knowledge.
“Peaceful protests, freedom of expression and assembly are constitutionally protected rights, so it is permissible to restrict them only by a strict test of necessity, proportionality and appropriateness. Even during an epidemic, rallies should not be completely banned; any such gathering should be assessed on a case-by-case basis, and restrictions can only be imposed for as long as and to the extent necessary to limit the spread of the disease”, the initiative said, stated Katarina Bervar Sternad, director of the Legal Information Center of Non-Governmental Organizations – PIC.
She added that in the event of a total ban on rallies, none of this had been done. This shows that the purpose of such a ban is primarily to limit criticism of the government and to severely punish all those who violate the ban. High fines are an effective way to discipline people; only a few can risk paying high fines, so many do not exercise these rights at all.
This is in contrast to both democratic and optimal functioning of the state, which is possible only through a system of checks and balances, and with the realization of direct democracy, warned Barbara Rajgelj from the Open Institute. “Democracy cannot be reduced to representative democracy. According to the Constitution, the people have the power, and the citizens exercise it “directly and through elections”. The form of direct exercise of people’s power is undoubtedly the right to protest, which also represents an opportunity to warn and criticize the government’s measures to prevent the epidemic, which are insufficient or ineffective from the point of view of protecting people’s health and lives. In the light of this, the constitutional initiative was filed not despite the epidemic, but because of it.”
The great need for people to be involved in democratic processes is also evidenced by the response of people who have applied to the Legal Network for the Protection of Democracy for legal knowledge and free assistance since its inception on 21 January this year. Nearly 40 percent found themselves in legal proceedings for exercising their right to peaceful assembly.
Regarding the restriction of the right to assembly, lawyer Jasna Zakonjšek explained that the restrictions must be determined by law and reasonably and convincingly justified by the views of the medical profession, especially the epidemiological profession. The burden of proving that the measures taken are in accordance with the principles of legitimacy and proportionality must be borne by the person taking the measures, in this case the Slovenian Government.
Freedom of peaceful assembly and freedom of expression are also rights under international law, which binds Slovenia, said Nataša Posel, director of Amnesty International Slovenia. In accordance with Article 21 of the International Covenant on Civil and Political Rights, which guarantees the right to peaceful assembly, States are not only expected to passively allow peaceful assembly, but to actively facilitate such assembly.
“The right to protest allows citizens to express themselves collectively, thus strengthening their voice and participating in the formation of their society. The UN Human Rights Committee, which monitors the implementation of the Covenant on Civil and Political Rights, also draws attention to the importance of this collective dimension of the right to peaceful assembly. ”
“It is important for the European space to point out that freedom of assembly and freedom of speech are also defined in the European Convention on Human Rights. According to the European Court of Human Rights, freedom of assembly is the foundation of a democratic society,” said Nataša Posel.
About the Legal Network for the Protection of Democracy
The Legal Network for the Protection of Democracy (PMVD) was set up to provide legal support to people who find themselves in proceedings for non-violent public action. The network consists of two parts – the online platform (pravna-mreza.si) and currently more than 20 lawyers who pro bono provide legal support.