Was the OTP regime unconstitutional?


During the previous year, a group of deputies of the NRSR formulated their reservations against the provision of § 48 par. 4 letter z) of Act no. 355/2007 Coll. on the protection, support and development of public health and on the amendment of certain laws as amended, which introduced the OTP regime, in the form of a proposal to declare the provision inconsistent with the Constitution of the Slovak Republic, which was addressed to the Constitutional Court.

The petitioners justified the non-compliance with the Constitution of the Slovak Republic by violating:

a) the principle of separation of powers (restriction of fundamental rights by secondary legal acts, which are issued on the basis of a power of attorney b) non-discrimination (unjustified favoring of persons who have been vaccinated or have survived the disease over persons who do not fulfill these conditions) c) the principle of generality of legal norms (the contested legislation does not regulate pandemic situations in general, but only in relation to a specific disease).

On October 27, the Constitutional Court accepted the motion for further proceedings, but did not comply with the request to suspend the challenged provision, as the provision itself is only a blanket legal norm, and therefore assessed the fear that fundamental human rights and freedoms would be jeopardized.

We did not find out the final decision in the case until 16 February 2022, when the Constitutional Court did not uphold the motion at a closed session, which means that the conditionality of entry into operations and mass events under the OTP regime is in accordance with the Constitution of the Slovak Republic.

As part of the objection of violation of the principle of separation of powers, the Constitutional Court stated that the challenged provision is sufficiently precise, comprehensible and certain, the implementing normative act must be temporary and provisions to act within the legal capacity and not to make it impossible to meet basic needs.

The constitutional judges also disagreed with the claim that persons meeting the criteria of the OTP regime are unjustifiably favored over non-vaccinated persons on the basis of their own choice. In their view, the freedom of the individual is linked to his responsibility in the sense that it is necessary to take into account the protection of the health of others within the framework of personal freedom. The reduction of the unvaccinated can be justified in particular by the higher incidence of the disease in these persons, which in turn causes congestion in the health system, which endangers the provision of health care to all persons, and therefore the contested legislation pursues a legitimate aim through legislation to help achieve this goal.

Finally, the Constitutional Court also dealt with the questioning of the generality of the legal norm, on the grounds that the legal norm applies to an indefinite number of unvaccinated persons within individually unspecified facilities, resp. unspecified mass events.

It should also be noted that the compliance of a statutory provision with the Constitution does not mean that the non-compliance of a particular decree with constitutional norms or norms of international law cannot be objected to in the future.