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. 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,
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.
