Constitutional Court: COVID certificates in the public sector are constitutional and legal

The Constitutional Court on Tuesday rejected a request by 35 opposition lawmakers and the proposals of 28 other applicants who argued that the introduction of COVID certificates in the public sector was not constitutional and legal.

However, the Constitutional Court partially adopted the request and proposals for the assessment of compliance with the Constitution and the law for the decision to introduce COVID certificates in the public sector in the part prescribing exceptions to the application of students when in institutions of higher education. Thus, it abolished the possibility for an individual higher education institution to decide otherwise, i.e. to oblige students to present an EU digital COVID certificate or other appropriate evidence of testing, vaccination or recovery from COVID when entering the premises of higher education institutions, said the court.

The disputed decision, issued by the Civil Protection Headquarters on 12 November 2021 and amended on 25 January 2022, introduced special measures for testing or presenting a COVID certificate or other appropriate evidence of testing, vaccination or recovery from COVID-19 for entry of officials and employees into the premises of a public body, as well as all other persons who intend to enter those premises on any grounds.

The Constitutional Court reiterated its views on the relationship between Articles 16 and 17 of the Constitution and the exclusive competence of Croatian Parliament to "activate" Article 17 of the Constitution on the powers of the Headquarters to adopt measures or decisions prescribed by the Law on Protection of the Population from Infectious Diseases, on the legal nature of such decisions and principles on the basis of which it examines the constitutionality and legality of the decisions of the Headquarters in each individual case.

The Constitutional Court also ruled on the applicant's complaints about the violation of the principle of separation of powers, stating that in this particular case there was no violation of that principle as well as the principle of mutual cooperation and mutual verification of incumbents of authority prescribed by the Constitution and law.

The goal is to protect health and life and combat the pandemic

In relation to the legitimacy of the goal, the Constitutional Court found that the challenged decision at the general level has the same goal - to protect the health and lives of citizens in order to prevent and combat a pandemic.

In this particular case, its goal is to enable the smooth functioning of the public sector in the conditions of the COVID pandemic with increased security of employees and visitors in order for their work and official environment to be protected from the possibility of coronavirus infection, they said in a statement.

Applying its principled positions from the decision of 21 December 2021 in relation to the proportionality of the obligation to test employees in the health care and social welfare system, the Constitutional Court found that the disputed measure is appropriate, necessary to achieve the goal it sought to achieve and does not impose an excessive burden on those it is applied to. The Constitutional Court reiterated that citizens have a choice between vaccination and testing.

The statement also points out that the Constitutional Court did not accept the objections related to the inequality of the position of the public and private sectors.

Four dissenting opinions of judges who were against were also announced

The court assessed as constitutionally acceptable reasons for which this measure was introduced only in relation to the public sector - for the sustainability of state and public administration systems and regional and local self-government systems and continuity in public services, with the scope and intensity depending on the current epidemiological situation, an assessment that is within the competence of the Headquarters.

In addition, it is the workplace of public sector employees and they are obliged to come to work every day, while users of public services do so less often, they do not use these services every day, but occasionally, depending on the nature of the service. Unlike the public sector, departures and activities in the private sector (for example shopping malls, restaurants, cafes, cinemas, etc.) generally depend on the free choice of citizens and are subject to other epidemiological measures (wearing masks, mandatory disinfection, airing out premises, maintaining a distance, limitation of the number of persons in facilities, etc.).

The Constitutional Court states that in connection with the applicant's complaints they have asked the Croatian government for a special explanation for all exceptions to the application of the disputed decision and accepted the reasons given by the government in the supplementary statement, except in the portion related to students while they are in institutions of higher education.

The Constitutional Court passed the decision with four votes against. After the deadline prescribed by the Rules of Procedure of the Constitutional Court for drafting dissenting opinions of judges, this decision and ruling, together with dissenting opinions, will be available to the public via the Constitutional Court's website, the statement concluded.

Source: HRT