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>

Running list of new scholarship on Slovak constitutional law

Books

• Carol Leff, The Czech And Slovak Republics: Nation Versus State (Routledge 2018)
• David Kosař, Perils of Judicial Self-Government in Transitional Societies (CUP 2016)
• Paul Blokker, New Democracies in Crisis?: A Comparative Constitutional Study of the Czech Republic, Hungary, Poland, Romania and Slovakia (Routledge 2013)
• Michal Bobek, Comparative Reasoning in European Supreme Courts (OUP 2013) Chapter 9
• Nadya Nedelsky, Defining the Sovereign Community: The Czech and Slovak Republics (University of Pennsylvania Press 2012) 
• Radoslav Procházka, Mission Accomplished: On Founding Constitutional Adjudication in Central Europe (Central European University Press 2002)
• Eric Stein, Czecho/Slovakia: Ethnic Conflict, Constitutional Fissure, Negotiated Breakup (University of Michigan Press 2000)
• Michael Kraus and Allison Stanger, Irreconcilable Differences?: Explaining Czechoslovakia's Dissolution (Rowman & Littlefield Publishers 2000)

Papers

• David Kosař and Samuel Spáč, Post-communist Chief Justices in Slovakia: From Transmission Belts to Semi-autonomous Actors? (2021) 13 Hague Journal on the Rule of Law 1
• Lucia Berdisová, Zuzana Dlugošová and Ján Mazúr, Coping with Threema: How do Lawyers Perceive Their Biggest Corruption Scandal? (2020) 103 Právny obzor, Special issue
• Peter Čuroš, On the Missing Discourse Concerning Legal Professions (2020) 103 Právny obzor, Special issue
• Andrej Démuth and Slávka Démuthová, Confidence in Justice as a Moral Emotion and Five Mechanisms That Support Its Renewal or Enhancement (2020) 103 Právny obzor, Special issue
• Samuel Spáč, The Illusion of Merit-Based Judicial Selection in Post-Communist Judiciary: Evidence from Slovakia (2020) Problems of Post-Communism
• Michal Ovádek, “Popular tribunes” and their agendas: topic modelling Slovak presidents’ speeches 1993–2020 (2020) 37 East European Politics 2
• Marek Domin, More votes, but fewer parliamentary seats: Slovak consequences of Delayed Brexit (2020) 10 The Lawyer Quarterly 3
• Šimon Drugda, Changes to Selection and Appointment of Constitutional Court Judges in Slovakia (2019) 102 Právny obzor, Special issue
• Max Steuer, The Guardians and the Watchdogs: The framing of politics, partisanship and qualification by selected newspapers during the 2018–2019 Slovak Constitutional Court appointment process (2019) 102 Právny obzor, Special issue
• Marek Káčer, Judicial Self-restraint and the Super-repealing Power of the Constitutional Court of the Slovak Republic (2019) 102 Právny obzor, Special issue
• Samuel Spáč, Katarína Šipulová and Marína Urbániková, Capturing the Judiciary from Inside: The Story of Judicial Self-Governance in Slovakia (2019) 19 German Law Review 7
• Max Steuer, Militant Democracy on the Rise: Consequences of Legal Restrictions on Extreme Speech in the Czech Republic, Slovakia and Hungary (2019) 44 Review of Central and East European Law 2
• Max Steuer, Constitutional Court of the Slovak Republic (2019) Max Planck Encyclopedia of Comparative Constitutional Law
• James E. Moliterno, Lucia Berdisová, Peter Čuroš, and Ján Mazúr, Independence Without Accountability: The Harmful Consequences of EU Policy Toward Central and Eastern European Entrants (2018) 42 Fordham International Law Journal 2
• Štefan Siskovič and Miriam Laclavíková, Formation of the Czech Republic and Slovakia (2018) 8 The Lawyer Quarterly 3
• Max Steuer, Constitutional Pluralism and the Slovak Constitutional Court: The Challenge of European Union Law (2018) 8 The Lawyer Quarterly 2
• Ján Mazák and Ladislav Orosz, Quashing the decisions on amnesty in the constitutional system of the Slovak Republic: Opening or closing Pandora's box? (2018) 8 The Lawyer Quarterly 1 
• David Kosař and Samuel Spáč, Conceptualizations of Judicial Accountability and Judicial Independence ENCJ (2018) 9 International Journal for Court Administration 3
• Peter Colotka, Towards Breaking up of Czecho-Slovakia 1939: Within the Light of Memorandum by Hans Kelsen (2018) 101 Právny obzor, Special issue
• Tomáš Gábriš, Establishment of legal system of the Czechoslovak Republic (1918) (2018) 101 Právny obzor, Special issue
• Oľga Ovečková, Importance of foundation of the Czechoslovak Republic for the origin and development of Slovak legal science (2018) 101 Právny obzor, Special issue
• Jozef Vozár, Slovak legal science before 1918 (2018) 101 Právny obzor, Special issue
• Lucia Berdisová, International Human Rights Law before Constitutional Court of the Slovak Republic (2017) 100 Právny obzor, Special issue
• Barbora Králičková, 25 Years of the Independent Slovak Republic and 13 Years in the European Union – Lucky Numbers for the Slovak Competition Law (2017) 100 Právny obzor, Special issue
• Jozef Vozár, Some considerations on compensation for non-material loss in protection of personality (2017) 100 Právny obzor, Special issue
• Marián Sekerák, Same-Sex Marriages (or Civil Unions/Registered Partnerships) in Slovak Constitutional Law: Challenges and possibilities (2017) 13 Utrecht Law Review 1
• Samuel Spáč, Better Safe than Sorry: Czech and Slovak Paths to Secure Independent Judiciaries (2015)
• Samuel Spáč, Judging the Judges: Measuring Performance of District Court Judges in Slovakia (2015) 
• Max Steuer, A Subordinate Issue? An Analysis of Parliamentary Discourse on Freedom of Speech in Slovakia (2015) 1 Czech Journal of Political Science
• Max Steuer, Searching for the Fair Balance? The Application of the Principle of Proportionality in Slovak Freedom of Speech Cases (2015) Międzynarodowa ochrona praw człowieka – współczesne problemy na świecie
• Max Steuer, The Influence of the ECtHR on Slovak Courts: The Case of Freedom of Expression (2015) Bratislava Legal Forum: Conference Proceeding
• Daniel Krošlák, The Referendum on the So-Called Traditional Family in the Slovak Republic (2015) 1 Central and Eastern European Legal Studies
• Erik Láštic, Office as an Opportunity: Presidents in Slovakia 1993-2013 (2015)
• Samuel Spáč, Judiciary development after the breakdown of communism in the Czech Republic and Slovakia (2014) 9 CEU Political Science Journal 3-4
• Elżbieta Kużelewska, Referendum in the Czech Republic and Slovakia (2014) 21 Annales UMCS Politologia 1
• Max Steuer, Country Specifics of a Universal Right? Freedom of political speech in the Slovak Republic (2014) 25 Politikon: The IAPSS Journal of Political Science
• Erik Láštic, Opposition's Labour's Lost? Minority Rights in Slovakia, 1994-2012 (2012)
• Erik Láštic, Get the Balance Right: Institutional Change in Slovakia during EU Accession and Membership (2006) 38 Slovak Sociological Review 6
• Marián Belko and Lubomír Kopeček, Referendum in theory and practice: the history of the Slovak referendums and their consequences (2003) 5 Central European Political Studies Review 2-3
• Darina Malová and Marek Rybář, The Troubled Institutionalization of Parliamentary Democracy in Slovakia (2000) 37 Politička misao: časopis za politologiju 5

Contributions to edited books

• Kamil Baraník, Slovakia, in Daniel Moeckli, Anna Forgács and Henri Ibi (eds), The Legal Limits of Direct Democracy A Comparative Analysis of Referendums and Initiatives across Europe (Edward Elgar 2021)
• Ján Štiavnický and Max Steuer, The Constitutional Court of the Slovak Republic: The many faces of law-making by a constitutional court with extensive review powers, in Monika Florczak-Wątor (ed), Judicial Law-Making in European Constitutional Courts (Routledge 2020) 
• Tomáš Ľalík, Human Dignity in Slovakia, in Paolo Becchi and Klaus Mathis, Handbook of Human Dignity in Europe (Springer 2019)
• Katarína Šipulová, Jozef Janovský and Hubert Smekal, Ideology and International Human Rights Commitments in Post-Communist Regimes: The Cases of the Czech Republic and Slovakia, in Marlene Wind (ed), International Courts and Domestic Politics (CUP 2018)
• Erik Láštic and Max Steuer, The Slovak Constitutional Court: The Third Legislator?, in Kálmán Pócza (ed), Constitutional Politics and the Judiciary (Routledge 2018)
• Barbora Moorman-Kimáková, Slovakia, in Anna Fruhstorfer and Michael Hein (eds), Constitutional Politics in Central and Eastern Europe: From Post-Socialist Transition to the Reform of Political Systems (Springer 2016)
• Katarína Staroňová and Erik Láštic, Into the labyrinth: the rewards for high public office in Slovakia, in Marleen Brans and B. Guy Peters (eds), Rewards for High Public Office in Europe and North America (Routledge 2012)
• Erik Láštic, If It Works, Fine, If Not, So What? Initiatives in Slovakia, Maija Setälä and Theo Schiller (eds), Citizens’ Initiatives in Europe Procedures and Consequences of Agenda-Setting by Citizens (Springer 2012)
• Erik Láštic, Slovakia – restricted direct democracy in local politics, in Theo Schiller (ed), Local Direct Democracy in Europe (Springer 2011)
• Ján Svák and Lucia Berdisová, Slovak Republic, in Allan R. Brewer-Carías (ed), Constitutional Courts as Positive Legislators A Comparative Law Study (CUP 2011)
• Michal Bobek and David Kosař, The Application of European Union Law and the Law of the European Convention of Human Rights in the Czech Republic and Slovakia: An Overview, in Giuseppe Martinico and Oreste Pollicino (eds), National Judges and Supranational Law: On the Effective Application of EU Law and the ECHR (Europa Law Publishing 2010)
• Erik Láštic, Referendum experience in Slovakia: a long and winding road, in Zoltán Tibor Pállinger, Bruno Kaufmann, Wilfried Marxer, Theo Schiller (eds), Direct Democracy in Europe: Developments and Prospects (Springer 2007)

Case Notes

• Tomáš Ľalík, The Slovak Constitutional Court on Unconstitutional Constitutional Amendment (PL. ÚS 21/2014) (2020) 16 European Constitutional Law Review 2
• Lucia Mokrá, Slovak Constitutional Court: Citizenship Law in the European Context (Judgment of 24 October 2012, No PL ÚS 11/2012) (2015) 9 ICL Journal 3
• Tomáš Ľalík, Slovak Constitutional Court: Tax and Delegated Legislation from a Constitutional Perspective (Judgment of 22 January 2014, PL ÚS 5/2012) (2014) 8 ICL Journal 4
• Michaela Chládeková, Slovak Constitutional Court: Deprivation of Legal Capacity due to Mental Illness – a legacy of the past? (Judgment of 28 November 2012, I. ÚS 313/2012-52) (2013) 7 ICL Journal 4
• Lucia Mokrá, Slovak Constitutional Court: Interpretation of the Constitutionestablished a new gap in the constitutional system (Judgment of 24 October 2012, No PL ÚS 4/2012) (2013) 7 ICL Journal 3

Blogs 2021

• Tomáš Ľalík, Leaving the Rule of Law Behind: How Slovakia is fighting against COVID-19 without Legality, I·CONnect
• Simon Drugda, The People v Their Representatives: The Slovak Constitutional Court Blocks Referendum on Early Election, Verfassungsblog
• Marek Domin, Can People Ask for Early Elections? Slovak Constitutional Court Says No, IACL-IADC Blog
• Michal Ovádek, General Prosecutor, the Supreme Leader of the Slovak Republic?, Verfassungsblog
• Michal Ovádek, The Impossible Art of Populist Government, Verfassungsblog
• Max Steuer, Slovakia’s Democracy and the COVID-19 Pandemic: When Executive Communication Fails, Verfassungsblog

2020