Softlocking Slovakia: New Pandemic Lockdown and State of Emergency

The Slovak government declared a new state of emergency at the end of November 2021, combined with a two-week soft lockdown.[1] The state of emergency has been declared for 90 days, starting on November 25, on the whole territory of the republic. The lockdown should last until December 9. Both measures can be potentially extended if the pandemic situation so requires, although the government has signalled a preference for not keeping restrictive measures in place.

The Slovak constitutional framework[2] for crisis management newly permits the government to extend the duration of a pandemic emergency by 40 days, even repeatedly.[3] It is, therefore, possible that the state of emergency will be extended next year. The state of emergency adopted this time last year was extended twice.[4] Every extension of a pandemic emergency necessitates a subsequent parliamentary approval within 20 days. Without approval, the state of emergency expires by default.

The government declared the emergency after intense criticism from its expert advisory body and the head of state. President Čaputová urged the PM and his cabinet to act on the pandemic to avoid the loss of life the country had experienced last year after the holiday season.[5] Slovakia thus follows Austria as the second country in Europe to reintroduce state lockdown before holidays. That is due to a critical increase in the number of new Covid19 cases and hospitalisations –currently over 3000 patients.[6]

The emergency declaration provides for a two-week lockdown, consisting of a curfew between 5AM to 1AM on the following day (until December 9) and restrictions on the freedom of assembly (maximum of six people). The government also requests citizens to limit contact with others, keep contact primarily within a single household and prioritise online communication to keep in contact with close relatives. Finally, employers are requested to enable their employees to work from home, if possible.

The curfew order has been criticised for the numerous exceptions it permits. People are, of course, allowed to leave their homes for work (with proof of vaccination or a test), to shop for essentials, visit their doctor, go to the hospital or take the vaccination, but also for worship services, church or state weddings, funeral ceremonies and baptism without restriction on the number of churchgoers. Likewise, people can still attend mass sporting events, such as football, hockey, and basketball. The exemptions for worship services and sporting events contradict the limitations imposed on the freedom of assembly.

Executive Underreach?

Although the government’s response to the first pandemic wave in early 2020 was successful, its more recent attempts to tackle the subsequent waves mostly failed due to indecisiveness, coalition in-fighting, and preference for populist measures over science-based policy. Take, for example, the vaccination lottery that was supposed to incentivise senior citizens. The government spent 27mil EUR to increase the low vaccination rate, especially among vulnerable groups, but with little to no effect.[7] Instead, more than half of the population remains unvaccinated, despite the lottery or proposed financial incentives.[8]

Why has been the government failing? The conventional understanding in the field is that the executive might use the uncertainty and moral panic conditioned by emergencies to overreach – e.g. unduly limit the citizens’ rights, curb checking institutions and stack the deck against their political opponent. However, in a select few cases, we can observe the opposite tendency. David Pozen and Kim Lane Scheppelle term this behaviour an “underreach,” which they define as the “executive’s willful failure to address a significant public problem that the executive is legally and functionally equipped (though not necessarily legally required) to address.”[9] More specifically, they argue that the concept best describes situations where the political actors “sees a significant threat coming, has access to information about what might mitigate or avert the threat along with the power to set a potentially effective plan in motion,” but does not act.[10]

Slovakia arguably fits the description of an executive underreach. Political actors had access to information about the pandemic and a recent experience with the negative effects of slow response to the onset of the pandemic.[11] Yet, despite this, the government again shows passivity and unwillingness to introduce restrictive measures due to a fear of alienating their constituencies. The risk is that if the situation does not improve, the public health sector might collapse due to a shortage of hospital beds and ventilators.[12] The government’s failure to adequately respond to the crisis in 2020 ultimately led to the resignation of the PM and a cabinet reshuffle.[13] It remains to be seen if the current government survives its lacklustre response to the pandemic.

Suggested citation: Šimon Drugda, “Softlocking Slovakia: New Pandemic Lockdown and State of Emergency” (slovakconlaw, 4 December 2021) <https://slovakconlaw.blogspot.com/2021/12/softlocking-slovakia-new-lockdown.html>

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[1] Government Resolution no. 695, on the Declaration of the State of Emergency no. 428/2021 Coll. <https://www.slov-lex.sk/pravne-predpisy/SK/ZZ/2021/428/20211125>

[2] Constitutional Act on State Security in the Time of War, State of War, State of Emergency, and Crisis No. 227/2002 Coll. <https://www.slov-lex.sk/pravne-predpisy/SK/ZZ/2002/227/20201229>

[3] The option to extend the state of emergency applies only to pandemic emergencies to the exclusion of all other emergencies caused by natural disasters, catastrophes, industrial or nuclear accidents, which is a peculiar choice. The amendment to the CA on the state of emergency and other crises, adopted in late December 2020, was supposed to bring the legal framework in line with expert knowledge on the nature of emergencies, which can take longer than the constitutionally permitted maximum of 90 days. The response to the nuclear disaster in Japan, for example, took the better part of a year, during which the state of emergency remained in place in the prefecture. Sarah Fecht, “1 Year Later: A Fukushima Nuclear Disaster Timeline” (Scientific American, 8 March 2012) <https://www.scientificamerican.com/article/one-year-later-fukushima-nuclear-disaster/>

[4] “State of Emergency in Slovakia to Be Extended by Another 40 Days” (TASR, 5 February 2021) <https://newsnow.tasr.sk/policy/state-of-emergency-in-slovakia-to-be-extended-by-another-40-days/>

[5] Michal Hudec, “Lockdown on the horizon for Slovakia after president’s emotional appeal” (Euractive, 24 November 2021) <https://www.euractiv.com/section/politics/short_news/lockdown-on-the-horizon-for-slovakia-after-presidents-emotional-appeal/>

[6] “Slovakia becomes the second European country to go into lockdown as COVID cases surge” (Euronews, 24 November 2021) <https://www.euronews.com/2021/11/24/slovakia-becomes-the-second-european-country-to-go-into-lockdown-as-covid-cases-surge>

[7] Michal Katuška, “Lottery worth €27 million did not help. It should have persuaded the elderly but lured the youth” (The Slovak Spectator, 3 November 2021) <https://spectator.sme.sk/c/22776193/lottery-worth-27-million-did-not-help-it-should-have-persuaded-the-elderly-but-lured-the-youth.html>

[8] “Coronavirus in Slovakia: 15,278 new cases confirmed (graphs)” (The Slovak Spectator, 3 December 2021) <https://spectator.sme.sk/c/22365153/coronavirus-in-slovakia-statistics-and-graphs.html>

[9] David E. Pozen and Kim Lane Scheppele, “Executive Underreach, in Pandemics and Otherwise” (2020) 114 American Journal of International Law 4, 609

[10] Ibid., 10

[11] Keno Verseck, “COVID-19: Slovakia mired in chaos” (Deutsche Welle, 1 March 2021) <https://www.dw.com/en/covid-19-slovakia-mired-in-chaos/a-56740390>

[12] Michal Hudec, “Slovak government finally takes action as hospitals verging on collapse” (Euractive, 17 November 2021) <https://www.euractiv.com/section/politics/short_news/slovak-government-finally-takes-action-as-hospitals-verging-on-collapse/>

[13] Matthew Holroyd, “Slovakia’s prime minister steps down amid Sputnik V vaccine scandal” (Euronews, 30 March 2021) <https://www.euronews.com/2021/03/28/slovakia-s-prime-minister-to-step-down-amid-sputnik-v-vaccine-scandal>

Extended Curfew and Nationwide Covid-19 Testing in Slovakia

After a successful pilot in four hotspots in the North of the country, the Slovak government greenlighted plans for the nationwide Covid-19 testing. The pilot took place on October 23-26, with a total turnout of nearly 141000 people, which represents roughly 91 percent of the expected participation estimated by the Ministry of Defense. According to the official data, 5500 people tested positive. 

The testing was conducted using antigen test kits administered by health professionals, military and volunteers. Antigen tests are faster but ostensibly less reliable than alternative means. Citizens also had the option to purchase testing in a private clinic at their own costs. Private clinics and testing labs usually use PCR tests, which are more reliable but are not free, unlike the government-administered tests.

The nationwide testing was confirmed for the weekend of October 31-November 1. It will be carried out with the assistance of the military under the code name "Shared Responsibility." On October 28, the government modified the curfew order so that citizens in the whole country are generally required to stay at home until November 8.[1] A negative result from the nationwide testing, however, will enable citizens to enjoy their freedom of movement without restrictions. Although, they still must wear a facemask when travelling in public transport, in the interior and even outside if they find themselves close to other people (5m), and most public events, cultural institutions, and other establishments continue to be closed. Those who test positive will be required to isolate for 10 days and inform their contacts of the test result.

If one refuses or is unable to take part in the nationwide testing, there are few other exceptions: travel to shop for basic necessities; to get a medical examination; attend a funeral, marriage or baptism; care for a dependent; take a pet out for a daily walk or care of livestock; take children to and from school. In addition to these activities, select groups of citizens are also exempt from the curfew without the need to have proof of a negative test: children under 10 years of age; severely sick (such as cancer patients) and mentally challenged individuals; and people who recovered from Covid-19 within three months before the testing. Citizens who refuse testing will be, therefore, unable to travel to work and have to either work in the home office regime or take sick leave. In addition, employers have the authority to require their employees to document that they had been tested negative.

Even though the government seems to be dead set on the nationwide testing, there remain questions if the country has the collective capacity to successfully carry out the exercise. The President has asked the PM to reconsider strict curfew for people who do not test it risks further dividing society. 

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[1] The curfew applies during the daytime, so citizens are technically free to leave their residence between 1-5 AM. Because these are early morning hours, however, the ability of citizens to enjoy their freedom of movement outside of curfew is severely limited.

Suggested citation: Šimon Drugda, "Extended Curfew and Nationwide Covid-19 Testing in Slovakia" (slovakconlaw, 30 October 2020) <https://slovakconlaw.blogspot.com/2020/10/extended-curfew-and-nationwide-covid-19.html> 

Nationwide Covid-19 Testing in Slovakia: Government Response to the 2nd Wave of the Pandemic

The PM of Slovakia last week floated the idea of nationwide testing for the coronavirus over two weekends in November. The testing should be voluntary and carried out with the assistance of the military because few municipalities have the capacity to organise the testing on their own. The Government has acquired three million antigen-testing kits in preparation for the testing and requested the Ministry of Defence to supply as many as 8000 soldiers so that the exercise runs smoothly. A pilot testing will take place in four regions in the North of the country, which are virus hotspots, on October 23-25, before it is extended to the whole of the country. The success of the project will ultimately depend on the turnout for the pilot.

In his latest public appearance, however, the PM also spoke about the possibility of a forced stay of 10 days for citizens who refuse to test. There are at least two problems with the suggestion. First, the testing cannot be meaningfully described as “voluntary” if it is backed with a sanction. The introduction of a sanction to the equation means, to quote HLA Hart, “that certain kinds of human conduct are no longer optional, but in some sense obligatory” [emphasis in the original]. Understandably, the government wishes for a high turnout because the utility of the exercise would decrease if a critical number of citizens refused to test. Forcing people to participate, however, runs the risk of a further decrease in the trust of the government, which is a crucial determinant in the management of the Covid-19 crisis response. Researchers have found that “high-trust regions decrease their mobility-related to non-necessary activities significantly more than low-trust regions,” based on comparing location data and surveys on trust in politicians in the country.[1] A high trust may reduce the monitoring costs of a government and the necessity for sanctions. Whereas low trust in government is likely to contribute to the opposite. 

The Slovak government had shortly benefited from the high trust on the back of a landslide in general elections in March 2020. Most recent opinion polls, however, show that the PM and key representatives of the government are rapidly losing trust due to personal scandals. Diminishing trust in the government will undermine its effectivity, and lead to non-compliance with its measures. A similar intuition was voiced by the Ombudswoman, who noted that “if we resort to sanctions, aversion to measures increases.”

Second, there is a consensus among lawyers that the government lacks powers to sanction citizens who refuse to test with a forced stay. The Government declared a state of emergency on October 1, 2020, for the second time this year. The state of emergency is to last for 45 days,[2] based on the Constitutional Act No. 227/2002 Coll., on State Security at the Time of War, State of War, State of Emergency and State of Crisis (Act on State Security), which regulates state response these four types of extraordinary situations. Thus, for the next month and a half, the government received access to extensive powers unavailable under conditions of normal politics. But even in an emergency, there are restrictions on the government exercise of power. 

Thes framework for crisis management allows the government to respond to emergencies through means proportional to the perceived level of threat. The permissible level of government restriction on human rights increases in proportion to the gravity of the situation. This is also the case of a curfew or a forced stay.

Under the declaration of emergency, the government may prohibit entry to an area or limit freedom of movement and residence through a curfew order, but the curfew must have limited duration and location (Article 5.3g of the Constitutional Act on State Security). Consider the following example. A permissible limitation on the right of freedom of movement would be a curfew between 4pm in the afternoon and 7am on the morning of the next day. Such a tailored restriction enables citizens, who work alone, so the risk of them spreading the infection is low, to travel to their place of work or go shopping for essentials during the daytime. The restriction, however, decreases the circulation of citizens in the city during the nighttime and effectively results in the closure of cafes and social establishments during curfew hours.

Unlike curfew, which is limited in duration, a forced stay order applies generally. Citizens are expected to stay at the place of their residence and may not leave unless exceptional circumstance occurs. Only in a state of crisis can the government limit the freedom of movement through a forced stay (Article 4.4a of the Constitutional Act on State Security). A ten-day continuous prohibition to leave one’s residence, as suggested by the PM, amounts to a forced stay. Such a measure is not available to the government during the state of emergency.

Suppose the government decides to impose forced stay against a portion of the population that does not wish to participate in nationwide testing. In that case, it is highly probable that the measure will be challenged in the Constitutional Court. The Court had already an opportunity to review the state of emergency declaration in a first-of-its-kind decision on the constitutionality of state of emergency. However, the proposed sanctions against individuals who refuse to participate in the nationwide testing are a significant change in the facts of the case.

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[1] Olivier Bargain and Ulugbek Aminjonov, Trust and Compliance to Public Health Policies in Times of Covid-19, Bordeaux Economics Working Papers, 3-5

[2] The Constitutional Act on State Security limits the duration of the state of emergency to a maximum of 90 days, without the possibility of extension. Unlike in response to the first domestic outbreak of the Covid-19 pandemic in Slovakia, this time, the government declared the emergency for a limited duration, seemingly learning from the previous experience. For an account of the government response to the first wave of the pandemic see, Slavomíra Henčeková and Šimon Drugda, Slovakia: Change of Government under COVID-19 Emergency, VerfassungsBlog

Suggested citation: Šimon Drugda, "Nationwide Covid-19 Testing in Slovakia: Government Response to the 2nd Wave of the Pandemic" (slovakconlaw, 26 October 2020) <https://slovakconlaw.blogspot.com/2020/10/nationwide-covid-19-testing-in-slovakia.html>