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Zbornik znanstvenih razprav – LXXXII. letnik, 2022
LjubLjana Law Review, voL. LXXXii, 2022
Professional article
UDK / UDC: 342.565.2:616(497.4)(094.9)
DOI: 10.51940/2022.1.365-379
Marjan Kos*
Reasserting the Principle of Legality  
in the Wake of the COVID-19 Pandemic:  
A Case Note on the Decision U-I-79/21  
of the Constitutional Court of the  
Republic of Slovenia
13
1. Introduction
Just like other constitutional democ-
racies around the world, Slovenia faced 
the arduous task of having to reconcile 
public health and civil and political lib-
erties during the COVID-19 pandemic. 
It challenged the Government to find 
a proper balance, and, in simple terms, 
the Government responded by adopting 
measures generally comparable to those of 
other states.1
* Magister prava, teaching assistant at the Law 
Faculty, the University of Ljubljana, marjan.
kos@pf.uni-lj.si.
1 These measures included: restrictions on the 
freedom of movement in public spaces (be-
tween municipalities, regions, at certain times 
of the day), restrictions and bans on the free-
dom of assembly in public and private spaces 
(schools, theatres, cinemas, stadiums, parks, 
Considering the broad application of 
the restrictive measures and their impli-
cations for the general population, it was 
apparent that they would challenge the 
constitutional balance. The Constitutional 
Court (hereinafter: the Court or CC) was 
expected to play a significant role. The 
Court issued the first major substantive 
decision in August 2020 and was quickly 
perceived as a major thorn in the side of 
the Government.2 Some saw its decisions 
but also in nature including for recreational 
purposes) and restrictions on the general free-
dom to act (obligatory testing, the wearing 
of masks). For an overview of key measures 
adopted in 2020 see, Bardutzky, 2020, pp. 
21–26.
2 When, for example, the Court ruled on the 
unconstitutionality of the vaccinated or recov-
ered (excluding tested) requirement for public 
service employees on 30 September 2021, the 
366
Zbornik znanstvenih razprav – LXXXII. letnik, 2022
as an important safeguard against poten-
tial abuse of power, while for others, the 
Court was only hindering the efforts made 
by the Government to tackle the pandemic 
effectively. Although the Court issued sev-
eral important substantive decisions con-
cerning restrictive measures,3 the Decision 
U-I-79/20 of 13 May 2021 was the one 
that crucially defined the constitutional 
narrative of dealing with the pandemic in 
Slovenia, which would subsequently pre-
dominantly revolve around the principle 
of legality.4 The premise of several of the 
Prime Minister reacted (via Twitter) that from 
that point on, for every COVID-19 related 
illness or death, due to the continuing spread 
of the virus linked with low vaccination rates, 
the majority at the Constitutional Court bore 
part of the responsibility.
3 In total, the Court received around 900 in-
dividual petitions. The key substantive deci-
sions on restrictive measures are the following: 
U-I-83/20 of 27 August 2020 (restriction of 
movement to municipalities); U-I-50/21 of 
17 June 2021 (ban on protests, assemblies); 
U-I-445/20, U-I-473/20 and U-I-8/21 of 
16 September 2021 (closing of public educa-
tional institutions); U-I-155/20 of 7 October 
2021 (restrictions on sales of goods, servic-
es); U-I-210/21 of 29 November 2021 (RV 
status of public servants); U-I-793/21, U-I-
822/21 of 17 February 2022 (general RVT 
condition); U-I-180/21 of 14 April 2022 
(data processing for the purpose of RVT); 
U-I-132/21 of 2 June 2022 (mandatory 
wearing of masks, hand disinfection).
 For an overview of decisions issued already 
in 2020, see: Avbelj and Vatovec, 2020, pp. 
275–278.
4 In the first substantive Decision U-I-83/20 of 
27 August 2020, the Court explicitly left this 
question open and only assessed the validity 
Court’s decisions that have followed so far 
was the one put forward in this decision.5
The purpose of this case note is to dis-
cuss Decision U-I-79/20.6 After provid-
ing an overview of the general regulatory 
approach to the pandemic, I move to an 
overview of the Decision itself. A short 
discussion on the role of the principle of 
legality within the Slovenian constitution-
al system follows, and the paper concludes 
with a summary of the attempts to reme-
of the challenged Ordinances, already caus-
ing a split in the vote amongst the judges.
5 (1) In U-I-50/20, the Court expressly re-
ferred to Decision U-I-79/20 regarding the 
finding that Article 39(1)(3) CDA was also 
unconstitutional due to a violation of the 
principle of legality, insofar as it referred to 
the limitations on public gatherings (includ-
ing public protests). (2) In U-I-445/20, U-I-
473/20, the Court also reiterated the position 
from Decision U-I-79/20, finding a violation 
of the principle of legality, but proceeded 
with an evaluation of proportionality because 
of the systemic importance of the questions 
raised. (3) In U-I-8/21, the Court again ap-
plied the standards reaffirmed in U-I-79/20 
in relation to a law that regulated perfor-
mance of educational work at distance, find-
ing a violation of the principle of legality. (4) 
In U-I-155/20, the Court once more referred 
to the general principles from U-I-79/20 and 
applied them to Article 39(1)(4) CDA, also 
establishing a violation of the principle of 
legality. (5) In U-I-132/21, the Court again 
referred to Decision U-I-79/20 when evalu-
ating the respect of the principle of legality 
related to obligatory wearing of masks and 
disinfection of hands.
6 For case notes on the Decision in Slovene, 
see: Nerad, 2021, pp. I–XI; and Vuksanovič, 
2021, pp. 13–17.
367
Marjan Kos – Reasserting the Principle of Legality in the Wake of the COVID Pandemic: 
A Case Note on the Decision U-I-79/21 of the Constitutional Court of the RS
dy the unconstitutionalities established in 
this Decision.
2. The General Regulatory 
Approach to the Pandemic  
in Slovenia7
The overarching statute regulating the 
framework for combating infectious dis-
eases in Slovenia is the Communicable 
Diseases Act (hereinafter: the CDA).8 
It dates back to 1995 and has not—es-
pecially when it comes to matters that 
would concern the COVID-19 pan-
demic9—been changed significantly. The 
CDA served as the backbone and basis 
for adopting restrictive measures to com-
bat the COVID-19 pandemic. As the 
Government decided not to put forward 
a motion for a declaration of a state of 
emergency, this was never declared.10 The 
7 For an overview of the broader regulatory 
context and ensuing comment, see, for exam-
ple: Zagorc and Bardutzky, 2020; Bardutzky 
and Zagorc, 2021. For early warnings with 
respect to the Governmental approach, see: 
Kukavica, 2020.
8 Zakon o nalezljivih boleznih (ZNB), Official 
Gazette of the RS, Nos. 33/06 – official 
con solidated version, 49/20 – ZIUZEOP, 
142/20, 175/20 – ZIUOPDVE, 15/21 – 
ZDUOP, 82/21 and 178/21 – CC Dec.
9 On this, see the last section below.
10 See: Articles 16 and 92 of the Constitution. 
Ustava Republike Slovenije, Official Gazette 
of the RS, Nos. 33/91-I, 42/97 – UZS68, 
66/00 – UZ80, 24/03 – UZ3a, 47, 68, 69/04 
– UZ14, 69/04 – UZ43, 69/04 – UZ50, 
68/06 – UZ121,140,143, 47/13 – UZ148, 
47/13 – UZ90,97,99, 75/16 – UZ70a and 
92/21 – UZ62a.
Government declared an epidemic in 
Slovenia twice: first between 12 March 
and 30 May 2020 and again between 19 
October 2020 and 15 June 2021.
When talking specifically about the 
restrictive measures, the overarching ap-
proach of the Government was to adopt 
governmental ordinances based on the 
CDA. These acts of general application 
adopted by the executive contained var-
ious measures restricting the rights and 
freedoms of individuals to serve the aim 
of combating the pandemic. They were 
adopted and changed almost daily during 
the peaks of the pandemic, at times late at 
night and published immediately so that 
they were already in force the next day. 
Although the National Assembly adopted 
several legislative packages (“anti-Coro-
na packages”) that contained across-the-
board measures to combat the pandemic 
in different policy areas, the balance of 
power regarding restrictive measures tilted 
strongly to the Governmental side.
3. The Constitutional Court of 
Slovenia’s Decision U-I-79/20 
of 13 May 2021
3.1. Arguments of Petitioners
In the specific case, a petition for re-
view of the constitutionality and legality 
of the CDA and several ordinances issued 
on its basis was made before the CC by 
several individuals.
They challenged ordinances imple-
menting measures regarding the prohibi-
tions and limitations on the movement 
368
Zbornik znanstvenih razprav – LXXXII. letnik, 2022
and the gathering of people in public plac-
es, the use of hand sanitisers in apartment 
buildings, the Order declaring the epidem-
ic, the CDA as well as the Government of 
the Republic of Slovenia Act. Key argu-
ments of the petitioners may be grouped 
into the following claims:
1. The ordinances interfered with the human 
rights of individuals with such intensity, 
that they could only be adopted in the 
event of war or a state of emergency.
2. The measures restricting free movement 
were disproportionate.
3. Measures restricting constitutionally 
protected human rights could (in line 
with Article 87 of the Constitution) 
only be determined by a law adopted 
by the National Assembly. Additionally, 
the ordinances overstepped the boun-
daries of Article 39 CDA in violation of 
the principle of legality (Article 120 of 
the Constitution).
4. The wording of Article 39 CDA was 
not specific enough, clear and precise, 
lacking the conditions and criteria for 
adopting restrictive measures, leaving 
the executive with a blanket authorisa-
tion to choose among the measures.
5. The measures lacked legal certainty and 
violated the principle of the rule of law 
(Article 2 of the Constitution).
3.2. Arguments by the National 
Assembly and the Government
The National Assembly argued that the 
CDA implements the principle of propor-
tionality, requiring first the adoption of 
more lenient measures, followed by strict-
er measures, if necessary, the restriction 
of movement being the strictest measure. 
The same mechanism applied with respect 
to the freedom of assembly. In the view of 
the Assembly, Article 39 CDA contained 
all the necessary elements to enable a con-
stitutionally consistent application.
The Government argued that it issued 
all the ordinances by referring to Article 
39 CDA and, therefore, did not regulate 
questions reserved for a law (statute). The 
principle of proportionality following 
from Article 39 CDA was observed. It 
pleaded that this was an exceptional situa-
tion, where very little information existed 
in the initial stage of the pandemic. An in-
troduction of a state of emergency was not 
required since the existence of the state 
was not in jeopardy, and such limitations 
of rights as the ones adopted were allowed 
in times of peace. It adopted measures to 
avoid the collapse of the health system.
3.3. Substantive Issues: Reasserting 
the Principle of Legality11
Among the many legal problems raised 
by the challenged acts, the key question 
was whether Article 39 CDA, especially 
11 For reasons of brevity, procedural issues are 
omitted here. It should, however, be noted 
that the Court decided to admit the case, al-
though the general procedural requirements 
for the assessment of an act, whose validity 
already expired, were not met. The Court held 
that in cases of periodically adopted time-lim-
ited acts, a specifically expressed public interest 
may warrant an exception to the mentioned 
procedural rule, when it comes to “important 
precedential constitutional questions of a sys-
temic nature”. Decision U-I-79/20, para. 61.
369
Marjan Kos – Reasserting the Principle of Legality in the Wake of the COVID Pandemic: 
A Case Note on the Decision U-I-79/21 of the Constitutional Court of the RS
points 2 and 3 of paragraph 1, were suffi-
ciently clear and precise to regulate the in-
terferences with human rights as provided 
by the ordinances.
The substance of the provision at the 
time read as follows:
“When the measures determined by 
this Act cannot prevent the introdu-
ction of certain communicable disea-
ses into the Republic of Slovenia and 
the spread thereof, the Government 
of the Republic of Slovenia can also 
impose the following measures:
(1) the determination of the conditi-
ons for travelling to a state in which 
there exists a possibility of infection 
with a dangerous communicable dise-
ase and for arriving from these states;
(2) the prohibition or limitation of 
the movement of the population in 
infected or directly jeopardised areas;
(3) the prohibition of the gathering 
of people in schools, cinemas, bars, 
and other public places until the 
threat of the spread of the communi-
cable disease passes;
(4) the limitation or prohibition of 
the sale of individual types of mer-
chandise and products.
The Government of the Republic 
of Slovenia must immediately no-
tify the National Assembly of the 
Republic of Slovenia and the public 
of the measures determined by the 
previous paragraph.”12
The Decision first extensively lays out 
the general principles, following the al-
ready existing case law of the Court. In line 
12 Translation from: U-I-79/20, para. 67.
with the principle of legality, the Court 
relies on Article 120 of the Constitution, 
which binds the administrative authori-
ties—including the Government—to act 
within the framework and based on the 
Constitution and laws.13 It ties the princi-
ple of legality to the principles of democ-
racy, the rule of law and the separation of 
powers. According to the Court, the prin-
ciple sets out two key requirements:
1. implementing regulations and indivi-
dual acts of the executive branch can 
only be adopted on the basis of the law, 
which means that they must be based 
on a (sufficiently precise) substantive 
basis in the law, and
2. they must also be within the framework of 
the law, which means that they must not 
exceed the possible meaning thereof.14
Accordingly, the executive needs a suf-
ficiently clear and precise statutory regu-
lation of those matters that fall within the 
exclusive competence of the legislature; 
all such matters may only be regulated by 
the legislature by law, and the legislature 
may only let the executive to technically 
supplement, break down, and determine 
in more detail the statutory subject mat-
ter. The intention of the legislature and 
the value criteria for implementing the 
13 Terminologically, it would be more correct to 
use the English word “statute” to more pre-
cisely define what the Court demanded in the 
Decision; however, since the English transla-
tion of the Decision consistently speaks of 
a “law”, I also use this term throughout the 
article.
14 Ibid., para. 69. In the present case, the first 
requirement was relevant according to the 
Court.
370
Zbornik znanstvenih razprav – LXXXII. letnik, 2022
law must be clearly expressed in the law or 
undoubtedly evident therefrom.
When it comes to the regulation of 
rights and obligations, Article 87 of the 
Constitution affords exclusive compe-
tence to the legislature. While predom-
inantly expert and technical regulation 
may be transferred to the executive with 
a broad margin of appreciation, questions 
of the regulation of the fundamental con-
tent and scope of rights and obligations, as 
well as the conditions and procedure for 
acquiring rights and for obligations, must 
be regulated by law.15 Regulation by the 
executive may only further break down 
the statutory subject matter such that it 
does not determine additional rights and 
obligations and broaden or narrow a right 
or obligation regulated by law.
An important factor determining the 
strictness of the demands of the principle 
of legality is whether the measure adopt-
ed determines only the manner in which 
human rights and fundamental freedoms 
are exercised or whether it restricts human 
rights protected by the Constitution.16 In 
the latter case, the requirement of the pre-
cision of the statutory basis is even stricter: 
human rights limitations can only be reg-
ulated by law, which must determine suf-
ficiently precise criteria for any additional 
regulation by the executive.17 The degree 
to which the statutory authorisation is 
precise and accurate can vary depending 
on the subject matter and the intensity of 
15 Ibid., para. 70.
16 On the distinction, see: Bardutzky, 2020, pp. 
11–13.
17 U-I-79/20, paras. 71–72.
the interference. Statutory authorisation 
must be all the more restrictive and precise 
the greater the interference with or effect 
of the law on individual human rights. 
The executive can, therefore, never adopt 
original human rights limitations. In the 
view of the Court, this is “a key safeguard 
against arbitrary interferences by the exec-
utive power with human rights and funda-
mental freedoms.”18
Articles 32(2) and 42(3) of the 
Constitution expressly determine that 
freedom of movement and the right of as-
sembly and association, respectively, may 
be limited by law, including to pursue the 
goal of protection from the spread of com-
municable diseases and the prevention of 
communicable diseases. Accordingly, the 
Court stipulated that the state has a pos-
itive obligation to protect human rights; 
these obligations are all the more em-
phasised, the higher the protected value 
is positioned in the hierarchy of human 
rights. Too slow or inadequate response of 
state authorities to an epidemic would be 
inconsistent with the positive obligations 
required by the Constitution.19 However, 
even such measures must be determined in 
the law, and the possible authorisation to 
the executive branch must be sufficiently 
precise.20
18 Ibid., para. 72.
19 On the understanding of the positive ob-
ligations with respect to the right to life in 
Slovenia, see: Kos, 2022, pp. 21–26.
20 To substantiate the latter stance, the Court 
draws from the case law of the European 
Court of Human Rights (ECtHR) on the 
demand for any limitations to be “prescribed 
by law”, specifically referencing De Tommaso 
371
Marjan Kos – Reasserting the Principle of Legality in the Wake of the COVID Pandemic: 
A Case Note on the Decision U-I-79/21 of the Constitutional Court of the RS
Applying the settled general prin-
ciples to points 2 and 3 of Article 39(1) 
CDA, the Court outright established that 
the legislature decided to authorise the 
Government to adopt a regulation that 
prohibits or limits the movement and/or 
the gathering of people. By doing so, it left 
it to the Government not only to adopt the 
more detailed regulation of already adopt-
ed limitations concerning movement and 
gathering but also to decide whether, upon 
the occurrence of a certain communicable 
disease, the freedom of movement and the 
right of assembly and association of an in-
determinate number of individuals would 
even be interfered with. Considering the 
general principles described above, the 
Court found that in ordinary circumstanc-
es, this would have already violated Articles 
32 and 42 of the Constitution.
The Court, however, established an 
exception to the general principles set 
out before. It deemed that in the specif-
ic situation, it was not possible to deny 
the National Assembly the possibility of 
exceptionally leaving it to the executive 
branch to prescribe such measures to en-
sure the fulfilment of the positive obli-
gations that stem from the Constitution. 
However, even then, the law must never-
theless determine: (1) the purpose of these 
measures; it must also determine with suf-
ficient precision the admissible (2) types, 
(3) scope, and (4) conditions regarding the 
restriction of free movement and the right 
of assembly and association, as well as (5) 
other appropriate safeguards against the 
v. Italy [GC], Application no. 43395/09, 23 
February 2017.
arbitrary restriction of human rights and 
fundamental freedoms.21
The Court confirmed that the CDA 
clearly states the intention (purpose) of 
the limitations.22 Furthermore, it sided 
with the National Assembly in recognis-
ing, that an element of proportionality, 
namely urgency (necessity), is included in 
the text of the CDA.23
The first major issue was the definition 
of “infected or directly jeopardised areas” 
in point 2 of Article 39(1) CDA. It held 
that the law fails to define the term “area”, 
nor does it provide anchors that could be 
of help in defining this term more precise-
ly; the same holds for the terms “a jeop-
ardised area” or “directly jeopardised area”. 
The loose definition of these terms meant 
that the law granted the Government un-
limited discretion in determining the scope 
of the territory in which a prohibition or 
limitation of movement is declared.24
As regards the precision of the man-
ner (i.e. types) of permissible interferences 
with the freedom of movement, point 2 of 
Article 39(1) CDA only determines that 
the Government may prohibit or limit 
the movement of persons in infected and 
directly jeopardised areas, without further 
concretising such limitation. This provi-
sion does not expand the text of Article 
32 of the Constitution in any way. The 
law does not expressly regulate any of the 
numerous and possibly very intensive in-
terferences with free movement rights en-
21 U-I-79/20, para. 83.
22 Ibid., para. 84.
23 Ibid., para. 85.
24 Ibid., para. 88.
372
Zbornik znanstvenih razprav – LXXXII. letnik, 2022
abled by the exceptionally broad diction, 
and as a result, also does not determine the 
conditions for imposing them. It, there-
fore, fails to determine either the substan-
tive basis for exceptions or other safeguards 
against excessive interferences with the 
rights. It leaves it up to the Government 
to assess which methods of limiting the 
rights are appropriate, necessary, and pro-
portionate, while this assessment should 
be reserved for the legislature.25 The CDA 
also fails to impose time limits on adopt-
ed acts or require periodical checks, which 
allows disproportionate interferences with 
the freedom of movement.26
Turning to point 3 of Article 39(1) 
CDA, the Act was considered more pre-
cise in determining the manner of limita-
tion of rights, as the authorisation to the 
Government was limited to public places, 
together with a non-exhaustive list of ex-
amples. However, since the prohibition of 
gatherings in different public places may 
have a differential effect on human rights, 
the law should determine the substantive 
criteria to choose between the measures, 
which it fails to do, leaving the discretion 
to the government.27 The area in which 
such measures may be adopted is not spec-
ified.28 A clear limitation on the duration 
of the measures is also lacking, again leav-
ing the Government with too broad dis-
cretion. Other safeguards, such as oblig-
atory consultation and cooperation with 
25 Ibid., para. 89.
26 In view of the Court, “the longer a measure 
lasts, the more invasive the interference be-
comes.” Ibid., para. 90.
27 Ibid., para. 91.
28 Ibid., para. 92.
experts, are not provided.29 The Court 
reiterated that to guard against arbitrary 
interferences with human rights, clear, 
precise, and comprehensive informing of 
the public with the (expert) findings and 
opinions is crucial.30
In conclusion, the Court opined that 
points 2 and 3 of Article 39(1) CDA gave 
the Government a “significantly too wide 
margin of appreciation in deciding on the 
measures”, because of the “substantive 
emptiness” of:
– The instructions as to the spatial limita-
tion of measures,
– The determination of the types of re-
sponse (i.e. methods),
– The criteria for the determination of 
the duration of measures,
– The duty to consult and cooperate with 
the expert community,
– The appropriate informing of the pu-
blic.31
Accordingly, issuing a declaratory deci-
sion,32 the Court found that the provisions 
were inconsistent with Article 32(2) and 
Article 42(3) of the Constitution.33
29 Ibid., para. 94.
30 Ibid., para. 95.
31 Ibid., para. 96.
32 The Court obliged the National Assembly to 
remedy the established inconsistency within 
two months; until the established inconsis-
tency is remedied, points 2 and 3 of Article 
39(1) CDA continue to apply to enable the 
Government to adopt the necessary measures.
33 Since the Ordonnances were adopted based 
on points 2 and 3 of Article 39(1) CDA, the 
Court found that they were also inconsistent 
with the Constitution without assessing their 
proportionality. Decision U-I-79/20, para. 106.
373
Marjan Kos – Reasserting the Principle of Legality in the Wake of the COVID Pandemic: 
A Case Note on the Decision U-I-79/21 of the Constitutional Court of the RS
4. Reassessing the Principle 
of Legality and some 
Methodological Quandaries
The Decision, as almost all of the oth-
er substantive ones adopted in relation to 
COVID-19-related restrictive measures, 
divided the Court. The substantive parts 
of the Decision were adopted by a vote of 
5 to 3.34 Accordingly, attached to the de-
cision were no less than six separate opin-
ions. This part addresses some of the most 
pronounced criticisms.
Firstly, concerning the general princi-
ples regarding the substance and role of 
the principle of legality in the Slovenian 
constitutional system, the Decision, bar 
for the newly introduced exception, fol-
lows the Court’s previous case law. The use 
of these standards in the particular case 
was, however, questioned.
In academic discussions, some authors 
built on the separate opinion of Judge 
Šorli,35 who pleaded for a “contextual” ap-
proach.36 He argued that the Court over-
looked the fact that the right to life was at 
stake and that it failed to balance the rights 
in conflict.37 In fact, one of the consequenc-
es of the Court’s understanding of the 
34 Judge Jaklič, who in most other COVID-
related cases dealing with restrictive measures 
supported the Government’s position, did 
not partake in the adoption of the Decision 
for unspecified reasons.
35 E.g., Zobec, 2021; Letnar Černič, 2021.
36 For additional explanations on his initial 
position, see his dissenting opinion in U-I-
135/21.
37 Dissenting opinion of Judge Marko Šorli in 
U-I-79/20.
principle of legality was that it did not deal 
with the subsequent question of whether 
or not the measures were proportionate to 
the pursued aims.38 Following the consti-
tutional doctrine, any restriction on hu-
man rights has to be (1) prescribed by law, 
(2) pursue a legitimate aim and (3) pass the 
proportionality assessment (proportionali-
ty test).39 These must be met cumulatively. 
Therefore, if a measure lacks sufficient legal 
basis, the question of its proportionality, 
insofar as it is even possible to assess due to 
a lack of substantive elements, is irrelevant 
to the final decision.40 To put it different-
ly, even if all the measures adopted by the 
Government during the pandemic were 
proportionate, they would still be uncon-
stitutional, insomuch as they were based 
on legislation that does not comply with 
the principle of legality. This approach was 
followed in subsequent decisions.41 To the 
extent that the criticisms mentioned above 
38 Concurring opinion of Judge Šugman Stubbs 
in U-I-79/20, joined by Judge Čeferin. 
Similarly, Nerad (2021, p. III) states that the 
principle of legality, as a rule, precedes the 
question of proportionality.
39 Cf. Bardutzky, 2020, pp. 14–17.
40 This, for example, follows from U-I-445/20, 
U-I-473/20, paras. 30 and 35.
41 In some cases, the Court nevertheless de-
cided to provide answers to the question of 
proportionality since they opened important 
systemic questions:
– U-I-50/21 since the case opened an import-
ant constitutional question (ban on public 
gatherings and protests, since there has not 
been any constitutional case law that refers 
precisely to public protests as a form of the 
collective expression of opinion on public 
matters. (para. 16);
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Zbornik znanstvenih razprav – LXXXII. letnik, 2022
called for a performance of the proportion-
ality test after the Court had found that the 
principle of legality was not satisfied, this 
would, therefore, not be methodologically 
justified and could not have led to a dif-
ferent outcome.42 However, this argument 
could also be understood as a proposition 
that the Court should consider the aims of 
the legislation when setting the constitu-
tional standards of the principle of legality. 
This is linked to the second line of the crit-
ical assessment of the Decision, tackling 
the strictness of the adopted standard of 
legality itself.
The COVID-19 pandemic is indeed 
specific. However, as seen above, the 
Court already considered this, providing 
an exception to the otherwise applicable 
standards under the principle of legality. 
Nevertheless, the criticism was directed 
toward such an approach, arguing that 
the established principles are still too strict 
and do not sufficiently consider that the 
measures adopted aimed to protect one of 
the most fundamental constitutional val-
– U-I-445/20, U-I-473/20 since it opened a 
precedential question (closing of schools for 
children with special needs);
42 Arguing that if the Court balanced between 
the freedom of movement and assembly on 
the one hand and the protection of the right 
to life and health on the other, the final result 
would be obvious and in favour of the pro-
tection of the latter two rights, is therefore in 
my view inconsistent with the existing meth-
odological approaches in constitutional adju-
dication. The principle of legality necessarily 
precedes the principle of proportionality. Cf. 
Batagelj, 2021.
ues,43 namely human life, in a situation of 
significant uncertainty.44, 45 The most dis-
cernible criticism follows from the separate 
opinions of Judges Knez and Jadek Pensa. 
Essentially, they argued that the Court 
should have taken more seriously its posi-
tion that the level of specificity and accura-
cy of the legislation might vary, depending 
on the subject matter of the regulation. 
Specifically, they stressed that the stand-
ards set out in the Decision might be un-
reasonably high for the legislature,46 which 
would, including for objective reasons tied 
to factual uncertainties connected with the 
pandemic, not be able to comply. From 
the opposite perspective of the principle of 
separation of powers, problems concern-
ing undue interference by the legislature 
with the powers of the executive, possibly 
43 Former Constitutional Court Judge Zobec, 
for example, argued, that the judgment’s 
approach was misguided: »The right to life, 
the highest constitutional value, should be 
at the centre of the assessment. The Court 
could then play with the principle of legality 
and combine it with freedom of movement 
and freedom of assembly and association.« 
(Translation by M.K.) See: Zobec, 2021.
 Similarly, Letnar Černič wrote that “the 
Court failed to ask the question whether the 
value of human dignity overrides the prin-
ciple of legality, or the other way around.” 
(Translation by M.K.) Letnar Černič, 2021, 
p. 15.
44 Cf. Partially concurring, partially dissenting 
opinion of Judge Knez in U-I-79/20; partial-
ly dissenting opinion of Judge Jadek Pensa in 
U-I-79/20.
45 Cf. Partially concurring, partially dissenting 
opinion of Judge Šorli in U-I-79/20.
46 Partially dissenting opinion of Judge Jadek 
Pensa in U-I-79/20. Cf. Avbelj, 2021.
375
Marjan Kos – Reasserting the Principle of Legality in the Wake of the COVID Pandemic: 
A Case Note on the Decision U-I-79/21 of the Constitutional Court of the RS
demanded by the Court in this Decision, 
were also raised.47 In more technical terms, 
the Court was faulted for not even trying 
to remedy the vagueness of the statutory 
regulation by appropriate methods of in-
terpretation of legal acts (i.e., constitu-
tionally consistent interpretation).48 This 
line of argumentation can also be tied to 
another proposition, namely that such an 
approach leads to over-legislating to le-
gal hypertrophy, causing the system to be 
even less effective.49 Essentially, the stand-
ard under the principle of legality should, 
therefore, be looser.50
47 Triller Vrtovec, 2021, pp. I–VII.
48 Avbelj, for example, writes that »the legal 
standards of points 2 and 3 of Article 39(1) 
CDA are too indeterminate and, therefore, 
unconstitutional, because the Constitutional 
Court itself made them such.« (Translated by 
M.K.) Avbelj, 2021. Cf. Partially concurring, 
partially dissenting opinion of Judge Šorli in 
U-I-79/20.
 In my understanding of the Decision, while 
it is true, that by applying general constitu-
tional principles (in good faith), the constitu-
tionally consistent interpretation of the CDA 
may be possible, the Court took the position 
that the principle of legality simply sets a 
higher standard than that in cases of interfer-
ences with human rights. Only a possibility 
of constitutionally consistent interpretation 
of a law is not enough to comply with the 
demands of the principle of legality, when 
evaluating measures interfering with hu-
man rights. Cf. Dissenting opinion of Judge 
Pavčnik in U-I-79/20.
49 Avbelj, 2021.
50 Recently, in his concurring opinion in U-I-
132/21, Judge Knez explained that the tem-
poral dimension is also important. If the 
standards of the principle of legality should 
be looser at the beginning of the pandemic, 
In general, the sentiment among the 
critics was that the Court had been over-
ly formalistic. This is best exemplified 
by a statement of the Minister of the 
Interior, who, defending his work before 
the National Assembly, stated that “[t]
his Government always took the position 
that substance matters more than some 
legal formalities.”51 In a way, this position 
expresses the sentiment that the ends may 
justify the means. As explained by some of 
the judges,52 as well as in some comments 
on the Decision,53 this position, of course, 
overlooks the fact that the principle of le-
gality is not, as it may seem to someone not 
versed in constitutional doctrine, a mere 
formality but an essential feature of the rule 
of law in any constitutional democracy.
In support of the stricter position by 
the Court, a systemic and pragmatic ar-
gument could additionally be put for-
ward. In systemic terms, the relatively 
rigorous approach to the principle of le-
gality maintained in the Decision could 
be traced back to the relative distrust to-
wards the executive, expressed by the 1991 
(post-communist) Constitution. As noted 
in some of the Court’s early decisions, the 
key purpose of the principle of the separa-
with time, this flexibility should be tightened 
as more information about the proper ways 
to combat the pandemic become known.
51 See: Transcript of the 28th regular session of 
the National Assembly, 20 December 2021.
52 Concurring opinion of Judge Šugman Stubbs 
in U-I-79/20, joined by Judge Čeferin; 
Concurring opinion of Judge Mežnar in U-I-
79/20. Also see: Concurring opinion of Judge 
Knez in U-I-132/21.
53 Vodičar, 2021, pp. 16–17.
376
Zbornik znanstvenih razprav – LXXXII. letnik, 2022
tion of powers in the Slovenian system is, 
through strong mechanisms of checks and 
balances, to prevent a totalitarian system 
from ever being re-established.54 In that 
sense, the Constitution, as interpreted by 
the Court, conforms to the “never again” 
principle. The strict understanding of the 
principle of legality could hence be under-
stood as an extension of this idea of strict 
control over the powers of the executive 
branch to prevent arbitrary use (or abuse) 
of power as a specific and pronounced fea-
ture of the Slovenian Constitution.
In pragmatic terms, but also close-
ly connected to the systemic argument, 
one can not rip the Decision out of its 
socio-political context. As discussed else-
where,55 examples of perceived and actu-
al misuse (if not abuse) of power by the 
Government in other areas, not directly re-
lated to the pandemic, raised unfavourable 
sentiments in the public.56 To add insult 
to injury, one could again quote from an 
54 See, for example, U-I-158/94 of 9 March 
1995: “16. This is why the historical mission 
of Slovenian Constitution has also been made 
to comprise the basic objective of preventing 
any attempt of reestablishment of a totalitar-
ian system; and its most important direct ob-
jective remains to be the protection of funda-
mental human rights and freedoms of every 
person here and now.”
55 Bardutzky, Bugarič and Zagorc, 2021; 
Vidmar, 2021.
56 This did not go unnoticed by the EU institu-
tions; see for example: European Parliament 
resolution of 16 December 2021 on funda-
mental rights and the rule of law in Slovenia, 
in particular the delayed nomination of 
EPPO prosecutors, OJ C 251, 30 June 2022, 
pp. 127–133.
official submission of the Minister of the 
Interior in U-I-50/21, where the Minister 
audaciously proposed that politically mo-
tivated protests did not enjoy the protec-
tion under the Constitution.57 It is hard 
not to see how perhaps one of the latent 
messages of the Court was to also reaffirm 
the strict observance of the rule of law in 
this specific case, by reaffirming its strict 
stance on the principle of legality.
5. Follow-up on the CDA:  
The Civil Society Steps up
The declared unconstitutionality of the 
CDA is primarily directed towards the legis-
lature, namely the National Assembly. Since 
it is competent (and responsible) to pass 
legislative acts, it is also to blame for omis-
sions to do so when necessary. Considering 
the division of powers and the role of the 
Government in the Slovenian constitution-
al system, the latter also bears part of the 
responsibility. Although any MP can pro-
pose the adoption of a law to the National 
Assembly, it is usually the Government who 
57 Decision U-I-50/21, para. 9: »The Minister 
of the Interior also submitted his opinion on 
the petition, which was accepted for consid-
eration by Order No. U I 50/21, dated 15 
April 2021. He opines that Articles 39 and 
42 of the constitution do not protect free-
dom of expression and the right of assembly 
and association if the exercise of these rights 
is politically motivated. The motive for filing 
the petition at issue was allegedly the political 
orientation of the petitioners, which is dis-
puted. The expression of political positions at 
public protests allegedly does not have greater 
weight than the health of citizens.”
377
Marjan Kos – Reasserting the Principle of Legality in the Wake of the COVID Pandemic: 
A Case Note on the Decision U-I-79/21 of the Constitutional Court of the RS
sets the legislative agenda, since it ordinari-
ly also possesses an absolute majority of the 
votes in the National Assembly. Especially 
where a legislative failure disabled the 
Government from legally and effectively 
implementing its responsibilities, it should 
be expected to do everything in its power to 
remedy the situation to be able to comply 
with the state’s positive obligations under 
the Constitution.
The Court set a very short two-month 
deadline for the legislature to remedy the 
situation. The Government accordingly 
proposed a legislative amendment to the 
CDA on 28 June 2021.58 The bill was first 
adopted by a vote of 44 in favour and 42 
against. However, the National Council 
vetoed it. In a re-vote in the National 
Assembly on 17 July 2021, curiously, 
the amendment was almost unanimous-
ly rejected by a vote of 1 in favour, and 
78 against; all MPs from coalition parties 
voted against the bill proposed by the 
Government.59 After that, the Government 
failed to produce another proposal, as did 
all the other eligible subjects. This meant 
that the Decision of the Court remained 
unaddressed in the following months.
However, a reaction followed from 
the civil society (Legal Network for the 
Protection of Democracy), which, in co-
58 The Legal Service of the National Assembly 
and the Human Rights Ombudsman criti-
cized the proposal as not in compliance with 
the Decision of the Constitutional Court. 
For the text of the bill and opinions, see: doc-
umentation of the General Assembly under 
EPA: 1975-VIII.
59 See: voting results of the National Assembly 
under EPA: 1975-VIII.
operation with constitutional experts, pre-
pared a new legislative proposal. This pro-
posal aims to comply with the demand for 
the precision of the legislative framework 
while also setting very strict standards 
concerning the proportionality require-
ment, providing for regular parliamentary 
scrutiny of governmental measures and a 
thorough informing of the public, includ-
ing the publication of expert opinions, on 
which governmental decisions are based, 
in the Official Gazette. This proposal was 
picked up by a number of MPs, who in-
itiated the amendment procedure on 14 
December 2021;60 However, with the gen-
eral elections, the mandate of the National 
Assembly was concluded, and the amend-
ment procedure was discontinued on 15 
May 2022. The MPs, however, again put 
the proposal into the legislative procedure 
after the election, and the newly formed 
National Assembly voted in favour of the 
amendment on 29 June 2022.61 Two pro-
posals to call a referendum on the newly 
adopted act had been filed. However, the 
National Assembly rejected the call in line 
with Article 90 of the Constitution. After 
the Court had rejected the appeals, lodged 
against the National Assembly’s decision,62 
the revised Act entered into force.63
60 See: documentation of the National Assembly 
under EPA 2366–VIII.
61 See: documentation of the National Assembly 
under EPA: 129–IX.
62 Order U-I-328/22 of 15 September 2022; 
Order U-I-330/22 of 15 September 2022; 
Order U-I-321/22 of 15 September 2022.
63 Zakon o spremembah in dopolnitvah Zakona 
o nalezljivih boleznih (ZNB-D), Official 
Gazette of the RS, No. 125/22.
378
Zbornik znanstvenih razprav – LXXXII. letnik, 2022
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