H o m i n u m

c a u s a

o m n e

i u s

c o n s t i t u t u m

DIGNITAS
Revija za človekove pravice
The Slovenian Journal of Human Rights

Ljubljana, 2024

DIGNITAS
izhaja pod pokroviteljstvom
SLOVENSKE KOMISIJE PRAVNIKOV
in
DRUŠTVA ZA PRIMERJALNO IN USTAVNO PRAVO
DIGNITAS is published under the auspices of
THE SLOVENIAN SECTION OF THE INTERNATIONAL COMMISSION
OF JURISTS
and
THE SLOVENIAN COMPARATIVE CONSTITUTIONAL LAW ASSOCIATION
• • •

Ustanovitelj in izdajatelj revije je
Inštitut za ustavno ureditev in človekove pravice
• • •

Izid publikacije je finančno podprla Javna agencija za raziskovalno dejavnost
Republike Slovenije iz sredstev državnega proračuna iz naslova razpisa za
sofinanciranje domačih znanstvenih periodičnih publikacij.

Contents

Editorial
Peter Jambrek One Hundred Issues of Slovenia’s
Human Rights Journal : The birth of constitutional
democracy and the follow-up start of the academic debate
on human rights .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .

5

Human Rights Law
Aida Gajić Leveraging Slovenian National Space Law
for Sustainable Development and Human Rights Protection
including SWOT Analysis .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .
Ana Ćurčija Temporary protection of displaced persons:
the case of refugees from Ukraine. .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .
Tjaša Pucelj The Right to Life during the Covid-19
Epidemic in Slovenian Society .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .

19
49
79

Constitutional Law
Blaž Marinčič Udvanc Is Freedom of Speech Underrated?
The View from a Perspective of Human Rights .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 115
Andras L. Pap Svoboda govora, nadzor, akademska
svoboda .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 159

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DIGNITAS n One Hundred Issues of Slovenia’s Human Rights Journal: The birth of ...

One Hundred Issues of Slovenia’s
Human Rights Journal: The birth
of constitutional democracy and
the follow-up start of the academic
debate on human rights
Peter Jambrek
Anticipating the publication of the first issue of Dignitas, the
new Slovenian Human Rights Journal, the editor1 and the publisher2 mailed at in January 1999 to the members of the Editorial
Board the following message:
“We proudly announce that the first issue of Dignitas - the Slovenian Human Rights Journal is in print now and will be published
at the beginning of March this year3 at the latest. As you may remember, nearly three years have passed since the inception of
the project in May 19954. The delay may be attributed to mainly
two factors, lack of seed capital to start the project, and the heavy
workload of those editors, who were at that time still judges of the
Slovenian Constitutional Court, including the editor of the publication5. Things have since changed for the better, at least for the
Journal. The publishing house Nova revija provided means to start
the Journal, and support from the Slovenian Ministry of Science appears probable and stable enough to risk the new venture.
You were kind enough to accept membership in the Advisory
Board of the Journal at the time of its initiation. We feel obliged,
given the time that has passed since, to ask you again to continue
Your commitment. We sincerely hope that you will honor us by
1
Peter Jambrek, former President of the Constitutional Court, serving at the time also as justice of the
European Court of Human Rights at Strasbourg.
2
Niko Grafenauer, head of the Slovenian Publishing House Nova revija, in Slovenia well known as the
dissident intelectuals‘ journal which triggered Slovenian independence and democracy movement
in the late eighties.
3
That is, in the year 1999.
4
In May 1995 the Constitutional Court of Slovenia agreed to start publishing the new journal devoted to the law of human rights. At that time its focus was translating and publishing key decisions of
the European Court of Human Rights and selected international Constitutional Courts‘ judgements.
5
The term of his office at the European Court of Human Rights and at the Constitutional Court of
Slovenia ended in 1998.

5

DIGNITAS n Editorial

reaffirming your membership. Almost everything remains same
- the editorial philosophy and design, the Slovenian and the international members of the new Editorial Advisory Board, and the
Nova revija publishing house.
There are two changes, however, which should be noted:
First, the Slovenian Constitutional Court, under whose auspices
the project was initiated, agreed to transfer its responsibilities
to an independent non-for-profit-institution, i.e. Slovenian Human Rights Institute, which will offer editorial services to the
new journal. Secondly, organization of the editorial services was
simplified …
…We thus hope that all members of the former »editorial board«
and of the former »advisory board« will now agree to continue
serving in advisory capacity to the new Slovenian Human Rights
Journal. Upon the condition that all members of the two former
bodies will agree to continue serving, the new Editorial Advisory
Board will be composed of the following members:
Paul Mahoney, Vincent Berger, Rolv Ryssdal, Jadranko Crnić,
Ludwig Adamovitsch, Laszlo Solyom, Sergio Bartole, Franz Matscher, Antonio La Pergola, Helmut Steinberger, Jochen Abr. Frowein, Louis Favoreu, Livio Paladin ( the international members of
the Board), and (from Slovenia) Marijan Pavčnik, Drago Demšar,
Stanko Ojnik, Dušan Ogrizek, Miroslava Geč Korošec, France
Bučar, Peter Jambrek, Mitja Deisinger, Albin Igličar, Arne Mavčič,
Anton Perenič, Lovro Šturm, Lojze Ude and Boštjan M. Zupančič_
(the Slovenian members the Board)…
…It appeared obvious that we dedicated the first issue to the
memory of the late president of the European Court to whom we
all owe so much, to Mr. Rolv Ryssdal.”
New Journal’s application for funding addressed to the responsible Council of Europe body and the Slovenian Ministry of
Justice gave the following explaation of its mission:
“The main purpose of the new law journal is to inform the Slovenian professional readership of the case law and of the scholarly commentaries of the key judgements of the European Court
of Human Rights. Its intent is to follow the development of the
European case law at a close look, i.e., as soon as possible after
the publication of the new judgement. A judgement will be translated and published either in its unabridged form, only partly, or
as a summary, depending on the judgement’s importance. In this
6

DIGNITAS n One Hundred Issues of Slovenia’s Human Rights Journal: The birth of ...

respect the editorial concept of the journal is similar to the concept of the journals published by N.P.Engel Verlag (Europaeische
Grundrechte, Human Rights Law Journal, Droits de l’ Homme), or
the Austrian Institute for Human Rights Newsletter…”
Responsibility for publishing of the Journal switched again
from the Human Rights Institute to the academia, i.e., to the two
private law faculties6 which in 2008 joined in founding the present
day New University. Twenty regular issues of the journal were
published over the ten years period from 1999 till 2008/2009,
added by a number of thematic issues.
Contents of the journal also expanded from its modest initial
aim of publishing key translated European constitutional case
law into a journal aiming in addition at scientific explanation of
human rights issues: Its editorial policies aim to publish original scientific articles and short case notes on constitutional and
international human rights law. It occasionally also publishes
concise translations of critical judgments of the European Court
of Human Rights of the Council of Europe, especially those regarding the claims of Slovene complainants, legal commentaries
on decisions of the European Court of Justice, key documents,
studies, opinions, and conclusions of the European Commission
for Democracy through Law (Venice Commission), and general
information about important events in the area of human rights
protection in Slovenia and internationally.
Peter Jambrek left editorial office transfer editorial responsibility to dr. Jernej Letnar Černič, another professor at the New
University. Under his guidance peer review process was encouraged, publication frequency was increased, while publication
malpractice and plagiarism were prevented and discouraged
by statement on publication ethics and its implementation in
practice.
After the fact-finding introduction to the 100th issue of Dignitas, the main and only Slovenian Human Rights journal, it seems
crucial to point to the Journal’s role in Slovenia’s threefold transition from the three main twentieth century European totalitarian7
They are the Faculty of Government and European Affairs at Brdo pri Kranju (Slovenia) in collaboration with the European Faculty of Law at Nova Gorica (Slovenia). The journal was and still is
published under the auspices of the Slovenian section of the International Commission of Jurists and
the Slovenian Comparative Constitutional Law Association.
7
That is, the political, economic, social and ideological suppression of human rights and fundamental
freedoms.
6

7

DIGNITAS n Editorial

regimes: from its suffering under fascism, national socialism and
communism8.

The lagging law teaching in view
of the democratic transition
Constitutional and other parts of public law in the communist
nations of central and eastern Europe was, until its rebirth9 in the
early 1990s, idiosyncratic, to say the least. It represented a strange
mix of totalitarian ideology and the well known formulae of European constitutionalism. Slovenia, as one of the six constituent
units of the Socialist Federative Republic of Yugoslavia, was a
part of this strange legal development, until it began to fall apart
in June 1991.10
In addition to the federal Constitution, each of the six constituent republics also had its own basic act, a replica of the central
one. The ensuing normative order may best be described as a
set of intertwined constitutional dictatorships. The system was
difficult to understand by a normal legal mind, untrained and inexperienced in the specific legal hypocrisies and inconsistencies
developed by the communist pseudo- legal doctrines.
In its 221-page text divided into five parts, the Constitution of
the Socialist Republic of Slovenia of 197411 also contained a 17page chapter entitled “Freedoms, Rights, and Duties of Men and
Citizens.” This chapter was one of the eight chapters in the part
on “Social Structure” and consisted of Articles 195-251. These articles regulated less known rights, such as the “inalienable right of
each worker to self-management” the “right and duty to participate in social self-defense,”12 or the “right and duty to maintain
and develop physical and mental capacities by means of bodily
activities,” many constitutional duties, and an impressive number
Major parts of Slovenia were suffering under fascism of Mussolini‘s Italy after the First World War,
under national socialism during the Second World War, and under communism the whole period
of the Cold War following the end of the Second World War, that is from 1945 till April 1990 plural
parlamentary elections in Slovenia.
9
For details, see: Council of Europe, The Rebirth of Democracy: 12 Constitutions of Central and Eastern Europe, Strasbourg: Council of Europe Press, 1995.
10
See also: Peter Jambrek, “Constitutional Law Teaching in Slovenia,” in Jean-Francois Plaus (ed.),
L’Enseignement du droit constitutionnel, Brussels: Bruylant (with Institut des Hautes Etudes Europeenes), 2000, 86-94.
11
Promulgated on 28 February 1974 and superceded by the Constitution of the Republic of Slovenia
of 23 December 1991.
12
I.e., inter alia, to spy on others and to collaborate with the Secret Service.
8

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DIGNITAS n One Hundred Issues of Slovenia’s Human Rights Journal: The birth of ...

of social and economic rights of “working people,” and nearly all
basic rights and fundamental freedoms recognized by the European Convention and by other well known international instruments.
The wording of most of these classic rights did not include any
restrictions or limitations such as those enshrined in the second
paragraphs of Articles 8-11 of the European Convention, and of
Article 2 of Protocol No. 4 of the same Convention. However,
articles on specific “freedoms, rights, and duties” were preceded
by general provisions which stated that they could only be implemented “in the mutual solidarity of the people and by the realization of the duties and responsibilities of everyone towards all and
of all towards everyone,” and that they may only [sic] be restricted
by the “equal freedoms and rights of others,” and by “the interests
of the socialist community determined by the Constitution.”
The crucial “interests of the socialist community” were regulated in the 24-page “Introductory Part” on “Fundamental Principles.” These included, inter alia, the “founding power of the
working class,” “social ownership of the means of production,”
“socialist self-managerial democracy as a specific manifestation
of the dictatorship of the proletariat,” “the revolutionary abolishment of class exploitation,” etc. Human rights and freedoms were
also defined as an “inalienable part and manifestation of socialist
self-management democratic relationships.”
Chapter X of the Introductory Part of the Fundamental Principles, however, described the role of the League of Communists
and of the Socialist Alliance of the Working People in, inter alia,
the following terms: “The League of Communists, the initiator and
organizer of the National Liberation Struggle and of the Socialist
Revolution, and the conscious bearer of the endeavors and interests of the working class, became by the law of historic development the organized leading ideological and political force of the
working class and of all working people in the construction of
socialism [...] it is the main initiator and bearer of political activity for the protection and further devel- opment of the socialist
revolution and socialist self-management social relationships, and
especially for the fostering of the socialist social and democratic
consciousness, and is responsible therefore.”
The above quotations may appear a bit tedious and out of
time. It may, however, be remembered that in Slovenia less than
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DIGNITAS n Editorial

thirty-five years ago these same Fundamental Principles were still
vigorously defended not only by the then incumbent members of
the political nomenclature, but also by the then lecturing professors and constitutional law scholars. Typical occasions at which
such constitutional principles were propagated included public
rebuttals of dissident constitutional ideas and models, including
notions of human rights when distinguished and set aside from
the official constitutional ideology.
Furthermore, the above quotations indicate the specific kind
of constitutional, administrative, and judicial protection of basic
rights in Slovenia, and probably elsewhere in Central and Eastern
Europe, before the legal and practical inauguration of democracy
and the rule of law. While human rights may have been found in
books, their protection from the point of view of an individual
potential victim, nevertheless, depended on the two general sets
of restrictions:
First, the legally binding interests of the ‘socialist community’,
‘the dictatorship of the proletariat’, the ‘socialist revolution’, or
the ‘working class’, and secondly on the interpretative efforts of
the two prime avant-garde organizations – the League of Communists and the Socialist Alliance of the Working People. It may be
recalled in this context that the League was not an abstract body
acting mainly on the grounds of its statutory principle of ‘democratic centralism’, or on the grounds of the strict subordination of
lower bodies to the supreme ones, headed by the Central Committee and its Secretary General or, later, President.
The constitutional and the derived legal system for the protection of individual human rights, therefore, provided for a general
and virtually unlimited justification of restrictions. Their specific
‘legitimate aims’ were substituted for by the ideological notions
of ‘socialism’, ‘revolution’, or ‘working class’. The ‘proportionality’
and ‘necessity’ of interferences or the lack of protection, on the
other hand, were, in accordance with the constitutional principles, left to be measured and assessed by the Communist Party
officials. Their role was therefore – at least in the former Yugoslavia – fully legitimate. There also existed various operational ways
their influence was made practical. Here, however, other kinds
of considerations regarding the separation of powers and the independence of the government administration and the judiciary
under the former regime enter the discussion.
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DIGNITAS n One Hundred Issues of Slovenia’s Human Rights Journal: The birth of ...

On a more general administrative and legislative level, large
segments of society were excluded from public involvement in
the decision process. Intellectuals were branded as being elitist;
managers were portrayed as power and privilege seeking. Religious feelings considered reactionary were excluded a priori on
the grounds of the strictly applied principle of the separation of
the church and state. Loyalty to the primordial, local, and ethnic
identities was labeled separatist, antisocialist, and counterrevolutionary, while class interests were considered to be represented by the ruling proletarian party. Within the ensuing political
vacuum, the ruling party elite was able to manipulate a fictitious
consent, in most cases without the need to resort to force, at least
towards the end of the life of the system.13
Levits observed14 that in the socialist law family, typically represented by the Soviet legal system, legal norms were interpreted in
the case law, by state authorities, and in the legal doctrine mainly
by application of the grammatical method. Other methods, such
as historical, systematic, and teleological, were not applied due to
their specific effect that allowed for an autonomous interpretation of legal norms. In contrast to Western legal systems, where
the rule of law fosters the relative independence of legal professions and institutions, the autonomous interpretation of legal
norms had a contradictory effect in the system of the socialist law
family because it posed a threat to party power’ as a manifestation
of the free will of the subject apply- ing the law.
It would appear at first sight that the former Slovene15 constitutional framework of human rights not only allowed for but
even required a systematic and teleological interpretation of
human rights clauses by means of supreme constitutional principles, which the Constitution itself defined as “the fundamental
principles of socialist self- management society and its progress,
representing the foundation and perspective for interpretation
of the Constitution and of the laws, as well as for the activities
of all and everyone.”16 In this sense the former Slovene system
13
For more on the artificial tranquility of authoritarian rule, see: Peter Jambrek, “Human Rights in a
Multiethnic State: The Case of Yugoslavia,” in Vojtech Mastny, Jan Zielonka (eds.), Human Rights and
Security, Boulder: Westview Press, 1991, 177-201.
14
Egils Levits, “Interpretation of Legal Norms and the Notion of ‘Democracy’ in Article 1 of Satversne,”
in Human Rights in Latvian Legal Theory (Riga: The Institute of Human Rights of the University of
Latvia, 1997).
15
As a part of the Yugoslav constitutional framework of human rights.
16
The last, XII, Principle within the Introductory Part of the Constitution of the Socialist Republic of

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DIGNITAS n Editorial

appears to differ from Soviet legal systems. On the other hand,
it required the ‘autonomy’ of the legal professions and legal institutions only vis-à-vis the common-sense and international interpretation of the human rights provisions – in order to subordinate their understanding and application to the extra-legal assessment of the Communist Party. The former Yugoslav system
in this respect appears more ‘complex’ and ‘developed’ when
measured by the yardstick of its faithfulness to the original revolutionary orthodoxy.
During the pre-democratic period university research and
teaching of constitutional law closely followed the legal texts. It
was devoted to their exegesis, utilized the same ‘terminology’,
and, at least in Slovenia, did not show any signs of critical detachment from the official views and wordings. The pre-1990 textbooks, essays, and re- search reports appear from the present-day
point of view hopelessly useless, written in a pseudo-legal jargon
which, if taken seriously, represents an assault on the established
language of human rights.
An exception to the above was represented by specialized sectors of the legislature, jurisprudence, and doctrine which evolved
in civil, criminal, and administrative law parallel to ‘normal’ European legal thinking. Such enactments and applications of constitutional human rights provisions were to a certain extent able
to ignore other constitutional contexts, and could thereby purify
the otherwise obligatory ideological pollution produced by ‘constitutional principles’. Such developments, of course, were impossible to begin with in the fields covered by the constitutional
norms regulating voting rights, industrial, farming, banking, and
insurance property rights, freedom of association, freedom of
expression and the press, religious freedom, or involvement in
local self-government, the independence of the judiciary, and the
principles of the rule of law.
The first serious rupture with the official constitutional system
on the general level was represented by the publication of the
‘Writers’ Constitution’ in April 1988. By the end of 1987 a group
of lawyers and social scientists, with the moral support of the
Association of Slovene Writers, drafted a ‘Model Constitution’ of
Slovenia. The drafters quite simply informed themselves of the
Slovenia of 1974.

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DIGNITAS n One Hundred Issues of Slovenia’s Human Rights Journal: The birth of ...

main UN instruments regarding human rights and by and large
incorporated human rights provisions from the European Convention into the first part of their constitution. The other part of
the ‘Constitution’, on state organization and the judiciary, reiterated the well known constitutional provisions of European parliamentary democracies, notably those of the Bavarian and German
Federal Constitutions.
None of the established lawyers, judges, parliamentarians, or
constitutional law professors participated in the project. On the
contrary, after its publication, a number of legal authorities criticized the draft from various angles:
The senior professor of constitutional law at the Ljubljana Law
Faculty stated that the draft ignored the “communal” and “delegate” systems, “whose roots are in the basic cells of self-government in the community and in associated labor.” Both are substituted for by the institutions of representative democracy, inter
alia, the multiparty system (Strobl, 1988, pp. 17–18) – the critique
concluded.
The other senior professor was of the opinion that the criticized draft was too ambitious in trying to eliminate “our present system, the assembly system,” while it “offers so casually the
concept of the separation of powers with all its consequences”
(Kristan, 1988, pp. 40–46).
A junior professor of constitutional law pointed out the fact
that the draft represented “an almost total break with the constitutional development of Slovenia, and was therefore almost
certainly inapplicable to the positive constitutional order of the
Socialist Republic of Slovenia.” He also criticized the total break
with the established terminology and the introduced model of the
division of powers (Grad, 1988, pp. 36–38).
Another junior professor of constitutional law, who chaired
the meeting on behalf of the Central Committee of the League
of Communists, in his concluding remarks pointed to elements
in the draft, which invite “sharp political reaction and negation,” invited participants to distinguish “useful” from “harmful”
elements, “progressive” from “reactionary,” and expressed his
personal opinion that the draft would, “if offered as the basis
for the elaboration of a new Slovene constitution, require and
even provoke negative political qualification” (Ribičič, 1988, pp.
54–59).
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DIGNITAS n Editorial

But it so happened that the Berlin Wall fell only one and a half
years later17, that in Slovenia the first free parliamentary elections
after the Second World War took place in April 1990, that the coalition of new democratic parties won the elections and formed its
own government, and that it started immediately the process of
drafting a new Slovene Constitution. Its drafting was entrusted to
a group of lawyers led by those who had also drafted the ‘Writers’ Constitution’. The text from 1988 thus became, contrary to
the Party’s expectations from only two years before, and after
some legal polishing and parliamentary modification, the presently valid Constitution.
After the adoption of the new Slovene Constitution in December 1991, the teaching of constitutional and other branches of
public law in Slovenia followed the new text. In 1992 a textbook
was published written by several authors (Kaučič, 1992), for the
teaching purposes of the basic introductory course at the Law
Faculty in Ljubljana. In 1993 and in 1994 three academic authors
from the Law Faculty in Maribor published another textbook on
Slovene constitutional law, and in 1996 another edition of the
basic Ljubljana Law Faculty textbook authored by four Ljubljanabased university professors was published. Several other treatises
covering specific topics of the new constitutional law were also
authored.
For quite some time the teaching and contents of the respective university textbooks have been restricted to a conceptual
interpretation of the basic constitutional text, added partly by
analyses and descriptions of comparative and historical contexts.
The eighteen and a half years (January 1992 to June 2010) of voluminous Constitutional Court jurisprudence by and large has not
yet entered the outlines and reading lists of the university courses
on constitutional law. Jurisprudence represented an auxiliary instrument for elucidation of selected topics, but was not yet included as the main subject matter and method of interpretation
of the constitutional text. I therefore continue this presentation
with a brief discussion of the evolution of Slovene constitutional
jurisprudence.
The inauguration of democratic transition in Central and Eastern Europe in the early 1990s was as a rule preceded by grass17

The quoted discussion took place on 12 May 1988.

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DIGNITAS n One Hundred Issues of Slovenia’s Human Rights Journal: The birth of ...

roots discontent, the rapid spread of dissident ideas which undermined the legitimacy of the communist system and by mass
movements which evolved into opposition political parties. The
process led to the first democratic elections18 followed by legal-institutional reforms. Constitution drafting in most countries represented the first necessary precondition for systemic legal change.
Completely new constitutional texts and changes in old constitutions by means of constitutional amendments as a rule were
explicitly linked with “the constitutional heritage of Europe19,”
by means of the elaboration of principles such as the rule of law
or Rechtsstaat, the separation or division of powers, the right to
fair trial conducted by an independent judiciary, parliamentary
democracy, and basic human rights provisions.
An important safeguard guaranteeing respect, observance, and
implementation of the new constitutional provisions was provided by the introduction of constitutional courts entrusted with
judicial review of the constitutionality of either legislative and
administrative general acts and/or the concrete government acts
whereby individual constitutional rights were violated according
to Verfassungbeschwerde applicants.
Constitutional reform itself only represented the initial stage
of the transition. Early on after the overthrow of communist regimes in 1989, Ralph Dahrendorf commented that it would take
six months to reform the political systems, six years to change the
economic systems, and sixty years to effect a revolution in the
peoples’ hearts and minds20. The new constitutional courts Central and Eastern Europe thus not only were faced with the difficult
task of elaborating general and abstract constitutional provisions.
They also had to adjudicate cases where the constitutionality of
legislative and other legal acts was challenged with regulated specific processes on institutional and economic transition from dictatorship to democracy.
In Slovenia the first democratic elections to the legislature took place in April199, later than elsewhere in Central and Eastern Europe due to the delay caused by the strain produced by the parallel
process of the disintegration of the former Yugoslav Federation. The central, Belgrade based power
elite curbed the democratic process in the subordinate federal units, mainly by its well founded anticipation of the interaction between the twin processes of national and democratic emancipation.
19
See the papers presented at the Montpellier Unidem Seminar organized in co-operation with the
Faculty of Law and Economics of the University of Montpellier on 22-23 November 1996.
20
Vojtech Cepl suggested that Dahrendorf probably borrowed the part about hearts and minds from
Masaryk, and linked it to Michael Nowack’s concept of moral culture. See Vojtëch Cepl, “Transformation of Hearts and Minds in Eastern Europe,” paper presented to the Committee on Legal Affairs and
Human Rights of the Parliamentary Assembly of the Council of Europe, 4 December 1995.
18

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DIGNITAS n Editorial

Separation from the imperial states of Soviet Union and Yugoslavia and the related nation-building gave rise to human rights
issues of citizens, foreigners, and ethnic majorities and minorities. New foundations of government called for the articulation
of the constitutional principles of democracy, the rule of law and
the separation of powers. The new foundations of the economy
raised the issues of transition from political control over the economy to the ownership rights of legal entities and natural persons.
And retrospective justice triggered cases where the constitutionality of specific processes of restitution, retribution, lustration,
affirmative action, and reverse dis- crimination was challenged.
These issues as a rule are not regulated by constitutions themselves, and only partly by transitional and concluding provisions
on the implementation of the basic constitutional text. Such task
was and still is via facti left to constitutional courts.
The Slovene Constitutional Court is an obvious example. Since
1990 it has repeatedly found itself in the crossfire of the two main
competing social and political forces, each one represented by
an array of ‘their own’ lobbies, parties, intellectual circles, media,
and economic interests and institutions. One of the two blocks is
composed of the various interests rooted in the enduring ‘deep
structures’ of the social system, thus defending the continuity,
status quo, and preservation of vested interests, privileges, and
positions. The other bloc represents the interests of the large social segments and groups which were victims of systematic and
large-scale discrimination under the communist regime, led by
new political and intellectual elites.
Each judgment addressing one of the key issues derived from
this structural conflict is carefully scrutinized and subject to respective criticisms, which as a rule utilize non-legal arguments.
The doctrine of the political question is frequently invoked, mostly in a simplified and barely recognizable form of accusations of
the political bias of individual judges of the court as an institution.
Be that as it may, the jurisprudence of the Constitutional Court,
neatly edited in one or two heavy volumes per year, represents
the only authoritative and legally argued application and interpretation of the Constitution. It represents an obvious and key
element to be incorporated into the academic teaching of constitutional rights and freedoms in Slovenia, and probably also
elsewhere in Central and Eastern Europe.
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DIGNITAS n One Hundred Issues of Slovenia’s Human Rights Journal: The birth of ...

--- --- --Dignitas, in its one hundred issues during the past one quarter
of the century duly reflected the above controversies of legal transition from dictatorship to democracy in the twenty-first century,
resting upon half a century of utter neglect of human rights and
fundamental freedoms from 1940 – 1990, and upon ten years of
starting-up the fragile new order of constitutional democracy during the last decade of the twentieth century.

LITERATURE AND SOURCES
Cepl, V. (1995). “Transformation of Hearts and Minds in Eastern Europe,” paper presented to the
Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of
Europe.
Constitution of the Republic of Slovenia of 23 December 1991.
Constitution of the Socialist Republic of Slovenia of 28. February 1974.
Council of Europe (1995). The Rebirth of Democracy: 12 Constitutions of Central and Eastern Europe,
Strasbourg: Council of Europe Press.
Grad, F. (1988). “Popolna cezura” (“Complete Break”). In Pungartnik, M. (ed.), Kakšno ustavo potrebujemo (“What kind of Constitution we need?”), pp. 36–38. Ljubljana: ČZDO Komunist – TOZD
Komunist.
Jambrek, P. (1991). “Human Rights in a Multiethnic State: The Case of Yugoslavia,” in Mastny, V., Zielonka, J. (eds.), Human Rights and Security, Boulder: Westview Press, pp. 177-201.
Jambrek, P. (2000). “Constitutional Law Teaching in Slovenia,” in L’Enseignement du droit constitutionnel, Plauss, J.-F. (ed.), Brussels: Bruylant (with Institut des Hautes Etudes Europeenes), 86-94.
Kaučič, I. ed. (1992). Nova ustavna ureditev Slovenije, Ljubljana: Uradni list RS.
Kristan, I. (1988). “Zunaj prostora” (“Out of Space”), In Pungartnik, M. (ed.), Kakšno ustavo potrebujemo (“What kind of Constitution we need?”), pp. 40–46. Ljubljana: ČZDO Komunist – TOZD
Komunist.
Levits, E. (1997). “Interpretation of Legal Norms and the Notion of ‘Democracy’ in Article 1 of Satversne,” in Human Rights in Latvian Legal Theory, Riga: The Institute of Human Rights of the
University of Latvia.
Ribičič, C. (1988). “To ni alternativni dokument” (“This is not an alternative document”), In Pungartnik, M. (ed.), Kakšno ustavo potrebujemo (“What kind of Constitution we need?”), pp. 54–59.
Ljubljana: ČZDO Komunist – TOZD Komunist.
Strobl, M. (1988). “Tipični dvotirni sistem” (“Typical Two-Tier System”), In Pungartnik, M. (ed.),
Kakšno ustavo potrebujemo (“What kind of Constitution we need?”), pp. 17–18. Ljubljana: ČZDO
Komunist – TOZD Komunist.

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DIGNITAS n Editorial

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DIGNITAS n Leveraging Slovenian National Space Law for Sustainable Development ...

Leveraging Slovenian National Space
Law for Sustainable Development
and Human Rights Protection
including SWOT Analysis
Aida Gajić*
Abstract
This article offers a comprehensive analysis of Slovenia’s
emerging role in the space sector, underscored by the enactment of the 2022 Space Activities Act. As a new participant in
the international space community, Slovenia has demonstrated
a strategic intent to harness space for national development, innovation, and international cooperation. Central to this analysis
is the scientific question of how space technologies, regulated by
national space law, can be utilized to protect and enhance human
rights. An inductive research approach is employed to present a
case study of a Slovenian private actor developing and launching nanosatellites, aimed at supporting the theory that small satellites can contribute to meeting the Sustainable Development
Goals (SDGs). The research also examines the regulation of space
within the framework of new global governance, with a particular
emphasis on the role of the private sector, and seeks to deepen
understanding of the importance of space in safeguarding basic human rights on Earth. However, significant challenges, such
as technological and financial barriers, as well as intense global
competition, pose threats to Slovenia’s space sector. To assess the
development of this sector, the article applies a SWOT1 analysis.
Space Activities Act from 2022 serves as the foundational legal
framework for regulating all space-related activities within and
beyond Slovenia’s borders. Aligned with international treaties
and standards, the Space Activities Act emphasizes sustainable
practices and space debris mitigation, reflecting Slovenia’s commitment to responsible space exploration. Key provisions of the
*

Aida Gajić is a PhD student at European Faculty of Law.
SWOT analysis stands for strengths, weaknesses, opportunities and threats.

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DIGNITAS n Human Rights Law

law include comprehensive licensing procedures, stringent safety
and environmental regulations, and measures to encourage public and private sector involvement in space activities. The article
concludes with strategic recommendations to leverage Slovenia’s
institutional frameworks and partnerships to enhance its position
in the global space sector. It advocates for adaptive strategies
to navigate the evolving landscape of international space law.
Through this SWOT analysis, the article provides insights into
how Slovenia can maximize the potential of its space sector to
contribute to economic growth, technological advancement, and
the protection of human rights through regulated space technologies.
Keywords: Space Activities Act, Slovenia’s Space Sector, SDGs,
Human Rights protection, SWOT analysis

Slovenska vesoljska zakonodaja za trajnostni
razvoj in varstvo človekovih pravic s SWOT
analizo slovenskega vesoljskega sektorja
Povzetek
Članek ponuja celovito analizo vloge Slovenije v vesoljskem
sektorju, ki je podprta s sprejetjem Zakona o vesoljskih dejavnostih iz leta 2022. Slovenija je kot nova udeleženka v mednarodni vesoljski skupnosti pokazala strateško namero izkoristiti
vesoljski sektor za nacionalni razvoj, inovacije in mednarodno
sodelovanje. V središču analize je raziskovalno vprašanje, na
kakšen način uporabiti vesoljske tehnologije, ki jih ureja nacionalna vesoljska zakonodaja, za zaščito in krepitev človekovih
pravic. Z induktivnim raziskovalnim pristopom je predstavljena študija primera slovenskega privatnega sektorja, ki razvija
nanosatelite in deluje na področji visoke vesoljske tehnologije.
Namen analize je podpreti tezo, da majhni sateliti in vesoljska
tehnologija prispevajo k uresničevanju ciljev trajnostnega razvoja (SDG). Raziskava obravnava tudi ureditev vesolja v okviru
novega globalnega upravljanja s posebnim poudarkom na vlogi
zasebnega sektorja in poskuša poglobiti razumevanje pomena
vesolja pri varovanju temeljnih človekovih pravic na Zemlji.
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DIGNITAS n Leveraging Slovenian National Space Law for Sustainable Development ...

Obenem slovenski vesoljski sektor ogrožajo pomembni izzivi,
kot so tehnološke in finančne ovire ter močna svetovna konkurenca. Za oceno razvoja tega sektorja je v članku uporabljena
SWOT analiza. Zakon o vesoljskih dejavnostih iz leta 2022 služi
kot temeljni pravni okvir za urejanje vseh z vesoljem povezanih
dejavnosti znotraj in zunaj meja Slovenije. Omenjeni ZVDej je
usklajen z mednarodnimi pogodbami in standardi, poudarja
trajnostne prakse in zmanjševanje količine vesoljskih odpadkov, kar odraža zavezanost Slovenije k odgovornemu raziskovanju vesolja. Ključne določbe zakona vključujejo celovite postopke izdaje dovoljenj, stroge varnostne in okoljske predpise
ter ukrepe za spodbujanje vključevanja javnega in zasebnega
sektorja v vesoljske dejavnosti. V zaključku so poudarjena strateška priporočila za uporabo institucionalnih okvirov in partnerstev Slovenije v namen krepitve njenega položaja v vesoljskem sektorju na mednarodni ravni. Zavzema se za prilagodljive strategije , ki so nujno potrebne na področju mednarodnega
vesoljskega prava. S SWOT analizo članek ponuja vpogled v
to, kako lahko Slovenija z regulacijo vesoljskih dejsvnosti čim
bolj izkoristi potencial svojega vesoljskega sektorja ter tako
prispeva h gospodarski rasti na nacionalnem nivoju ter tehnološkemu napredku in varstvu človekovih pravic v globalnem
smislu.
Ključne besede: Zakon o vesoljskih dejavnosti, slovenski vesoljski sektor, cilji trajnsotnega razvoja, varstvo človekovih pravic,
SWOT analiza

1. Introduction
In recent years, Slovenia has demonstrated its ambitions in
the field of space exploration through an increasingly active
engagement with the international community and prominent
players in the space sector. One of the more visible developments in space sector is the establishment of the Slovenian Space
Office within the Ministry of the Economy, Tourism and Sport,
which works closely with other relevant ministries and institutions to promote and raise awareness of space activities. The activities of the Slovenian government include collaboration with
the European Space Agency, the recent signing of the Artemis
Accords with the US government, and the growing visibility of
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DIGNITAS n Human Rights Law

the private space sector. Despite Slovenia’s relatively small size,
these developments have placed the country in the spotlight of
potential major powers in the field of space activities. Slovenian
space activities are under the authority of the Ministry of the
Economy, Tourism and Sport, which closely cooperates with
other relevant ministries and institutions to promote and raise
awareness of space activities. Slovenia’s efforts to become a full
member of the European Space Agency in 2024, reinforced by
the recent signing2 of the understanding regarding its membership and the adoption of the Space Activities Act, provide a robust legal framework for both governmental and private entities to operate in this field, despite some shortcomings. The
exploration and utilisation of space have transcended geopolitical boundaries, offering boundless opportunities for scientific
discovery, technological advancement, and economic growth.
In this context, Slovenia, situated in the heart of Europe, has
demonstrated a keen interest in leveraging space as a strategic
domain for innovation and development. This article proceeds
to examine the evolving role of Slovenia in the space arena. It
considers the legislative framework, strategic partnerships, educational initiatives, and commercial ventures that underpin this
journey through SWOT analysis.

2. Slovenian’s Commitment to International
Space Law
Slovenia is a signatory to four international treaties; OST,
ARRA, LIAB and REG3, but did not accept the MOON Agreement.4
Membership of multilateral international treaties is of paramount
importance for Slovenia, as it confirmed its status as a successor
The Accession Agreement between the Government of the Republic of Slovenia and ESA to the
Convention for the Establishment of a European Space Agency and the related conditions was signed
following the mandate given by the Government at its 105th regular session on 30 May 2024.
3
Agreement on the rescue of astronauts, the return of astronauts and the return of objects launched
into outer space with Succession entered into force in 1992 , Liability Convention with succession
from former SFRJ entered into force in 1992. Outer Space Treaty and Registration Convention were
ratified in 2019.
4
The practice of succession of the Republic of Slovenia is based on the internal legal acts of the Resolution on the Proposal for the Agreed Reunification of the SFRY and the Constitutional Law for the
Implementation of the Fundamental Constitutional Charter on the Independence and Independence
of the Republic of Slovenia. The legal basis at international level is governed by the 1978 Vienna Convention on Succession of States in respect of Treaties and the 1983 Vienna Convention on Succession
of States in respect of State Property, Archives and Debts.
2

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DIGNITAS n Leveraging Slovenian National Space Law for Sustainable Development ...

state (Grašek, 2013) and enabled it to act as a sovereign state in
the international community.
State succession in international law occurs when one state
replaces another in terms of sovereignty over a territory. This
process raises questions about the validity of treaties, membership of international organisations, state property, debts, archives,
the rights of populations and nationality. State succession ensures
stability in international relations by regulating the transition of
the »old state« to the »new state« (Polak Petrič, Pajnkihar, 2024). Article 8(2) of the Constitution of the Republic of Slovenia stipulates
that ratified international treaties are directly applicable5, thereby
obviating the need for their provisions to be transposed into the
laws of the Republic of Slovenia (Petrič, 2019).
2.1. Space Law and Its Connection to General International
Law
While state sovereignty shapes the character of international
law, space law operates as a lex specialis, meaning it consists of
specialized legal principles governing activities in outer space,
distinct from general international law (Von der Dunk, 2020).
However, it is essential to ensure that space law remains connected to general international law to prevent it from becoming
isolated, stagnant, and ineffective. Overemphasizing space law as
a lex specialis could indicate a lack of understanding of general
international law, which must be avoided (Lyall & Larsen, 2018).
Law should be consistent across all domains, including space,
where “we seek the rule of law, not rule by law,“ (Lyall & Larsen,
2018, p. 944) where rules are followed only when convenient for
the powerful and changed at their request.
This leads to Evolving Perspectives on Customary International
Law where a growing body of contemporary literature (Roberts,
2001; Roozbeh, 2010; Petersen & Lepard, 2010) has emerged that
questions the traditional understanding of what constitutes a rule
for the creation of customary international law. As an example,
the essence of Lepard’s theory is the reduction of the two constitutive elements of customary law to one - opinio iuris: »a norm of
The Constitution of the Republic of Slovenia, Article 8:“ Laws and other regulations must comply
with generally accepted principles of international law and with treaties that are binding on Slovenia.
Ratified and published treaties shall be applied directly.”

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DIGNITAS n Human Rights Law

customary international law arises when States generally believe
that it is desirable, now or in the foreseeable future, to have an
authoritative legal principle or rule prescribing, permitting, or
prohibiting a particular course of conduct” (Petersen & Lepard,
2010, p. 795). The practice of states is not perceived as a compulsory requirement, but rather as evidence of this belief. With this
emphasis on opinion juris, Lepard follows a popular trend among
international law scholars.
This approach downplays the importance of state practice,
reflecting a trend towards emphasizing norms with moral effects,
such as human rights law. Despite the discrepancies between official declarations and actual practice, treaties and customary international law remain fundamental to regulating the exploration and use of outer space. “As we often observe discrepancies
between official declarations of states and actual practice in this
field” (Petersen & Lepard, 2010, p. 795), it can be generally concluded that these sources, in particular treaties and customary
international law, play a very important and fundamental role in
the international legal regulation of the exploration and use of
outer space. They provide the framework under which activities
in outer space are carried out. Regarding international conventions, five major United Nations treaties on outer space have been
finalised under the auspices of the United Nations Committee on
the Peaceful Uses of Outer Space (UNCOPUOS).
2.2. Interaction between national and international Space Law
The sources of law can be defined as the systems or processes
that give rise to international law. If a rule or norm is endorsed
by one of the recognised sources, it can be accepted as part of
a system of law. Conversely, if it cannot be confirmed by one of
these sources, it is a mere assertion and cannot be binding on
any international actor. Another unique aspect of international
law is that the “mere violation of the law may lead to the creation
of a new law” (Higgins, 2018, p. 19). Understanding the doctrine
of sources in public international law is therefore essential to
clarify what is binding in space law and what is mere interpretation or assertion. While describing interaction between national and international Space Law, it should be stressed that the
presence or absence of a particular provision in the domestic
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DIGNITAS n Leveraging Slovenian National Space Law for Sustainable Development ...

legal structure of a State, including its constitution, if any, cannot be used to avoid an international obligation. Otherwise, the
basic purpose of the operation of international law would be
defeated, leading to a great deal of uncertainty as to the relationship between the domestic and international legal frameworks
(Shaw, 2008).
It is important to understand the relationship between national space law and the sources of international space law. In
general, space law consists of two levels of laws and regulations
(Ma, 2014). The first level is international law, which governs the
rights and obligations of States and intergovernmental organisations operating in outer space. The second level is the national
level, or the adoption of the formal domestic legal frameworks
that enable a State to operate in space. The fact is that the formal
and legal resources of international space law are not sufficient
for today’s activities and the rapid technological advances in this
field, and therefore the international community seeks to address
this problem, which arises within the activities of States as well as
other international entities, through the channels of soft international law, or so-called soft-law instruments, which are non-binding documents or non-legally binding documnts, and through the
adoption of national laws (Marchisio, 2022; Sancin, Grünfeld &
Ramus Cvetkovic, 2021). The international community is also undergoing drastic changes in which economic, cultural, political
and social relations have become much more interconnected,
particularly in the space sector (Jakhu, Freeland & Chan, 2021).
The concrete example of licensing and authorisation of space
activities at the level of national law is a more straightforward process, as national space laws are applied within the framework of a
country. For example, the Republic of Slovenia, more specifically
the Ministry that is in charge for technology, issues a licence to
carry out space activities on its territory on the basis of the Space
Activities Act.6
On the other hand, it is an irrefutable fact that a significant
proportion of space activities has been privatised, which has led
Space Activities Act, Article 4, Licence:“(1) Space activities shall be conducted on the basis of a
licence issued by the ministry responsible for technology (hereinafter: the ministry) following an
application by the operator. (2) The ministry shall issue the licence within four months of the date of
receipt of a complete application for the issuing of the licence. (3) The Government of the Republic
of Slovenia shall determine, by way of a decree, the contents of the application referred to in paragraph one of this Article.”
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to the involvement of the commercial sector (Jacobson, 2020).
Consequently, the response of national law to space activities is
becoming increasingly important. Furthermore, we are currently
in a period of transition, a period during which formal international law is being complemented by informal forms of new
global governance involving civil society as well as the private
sector. This allows the international community to act more flexibly and to react more quickly to technological developments in
the space sector. While the space sector acknowledges the value
of some regulations, it is essential to strike the right balance. Improving these procedures would benefit both the commercial
and the civil sector, as a loosening of restrictions and a more
flexible legal regulatory environment has proven to be more
economically beneficial for the countries themselves (Jacobson,
2020). To operate and meet the challenges of current developments in the space sector, an ideal mix of international treaties, guidance, standards, national laws, and private sector best
practice is needed. The formula for the optimal relationships
between the various actors in this field is not straightforward to
determine. However, the skeleton that would most appropriately enforce both hard and soft international law must satisfy the
first and foremost principle of international space law, which
is the welfare of all mankind and the preservation of the space
environment for future generations through the prism of justice
infra legem, praeter legem and contra legem (Higgins, 2018).
Consequently, the equal sharing of the benefits of outer space
must be ensured.
2.3. Big steps forward to sustainable use of Space with
signing the Artemis Accords
On 19 April 2024, Slovenia officially signed the Artemis Accords7, a framework for sustainable space exploration. This makes
Slovenia the 39th country to join the accords and the third European country to do so within a span of five days, following Switzerland and Sweden (Foust, 2024). The Artemis Accords, initiated
in 2020, is built upon the Outer Space Treaty of 1967 and em7
The Artemis Accords. Principles for Cooperation in the Civil Exploration and Use of the Moon,
Mars, Comets, and Asteroids for the Peaceful Purposes. United States of America, NASA, introduced
on 13.10.2020.

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DIGNITAS n Leveraging Slovenian National Space Law for Sustainable Development ...

phasise principles such as transparency, interoperability, and the
preservation of space heritage. This move aligns with Slovenia’s
commitment to the peaceful use of space. Slovenia, which has
been an associate member of the European Space Agency since
2016, views this as a strategic step to enhance its role in global
space exploration and to develop its space sector.
The Artemis Accords is the basic basis for international cooperation with other space agencies and has the pre-legislative character of a bilateral agreement (Von der Dunk, 2022). Also classified
as a Memorandum of Understanding (Von der Dunk, 2022) this
document has more significance than a geneticist’s agreement
but is still less binding than a treaty would be.
The document is divided into thirteen sections, each representing one of the principles of the implementation of space activities and the functioning of inter-parties in the space sector. The
Artemis Accords aim to establish best practices of conduct and,
over time, to become part of customary international space law
by adhering to basic legal principles, which are also the source of
international law. The importance of respecting the principles set
out in existing international agreements is stressed »with a view to
implementing the provisions of the Outer Space Treaty and other
relevant international instruments, thereby establishing a political
consensus on mutually beneficial practices for the future exploration and use of outer space, with a focus on activities carried
out in support of the Artemis programme« (The Artemis Accords,
2020, p.1).
It is notable that the Artemis Accords act as an alternative
to the failed Moon Treaty but in a non-legally binding manner.
Of particular significance is the section dealing with resource
exploitation and the redistributive regime relating to benefits
derived from space resources.8 The document states that the
The Artemis Accords, section 10:“ 1. The Signatories note that the utilization of space resources can
benefit humankind by providing critical support for safe and sustainable operations. 2. The Signatories emphasize that the extraction and utilization of space resources, including any recovery from
the surface or subsurface of the Moon, Mars, comets, or asteroids, should be executed in a manner
that complies with the Outer Space Treaty and in support of safe and sustainable space activities.
The Signatories affirm that the extraction of space resources does not inherently constitute national
appropriation under Article II of the Outer Space Treaty, and that contracts and other legal instruments relating to space resources should be consistent with that Treaty. 3. The Signatories commit
to informing the Secretary-General of the United Nations as well as the public and the international
scientific community of their space resource extraction activities in accordance with the Outer Space
Treaty. 4. The Signatories intend to use their experience under the Accords to contribute to multilateral efforts to further develop international practices and rules applicable to the extraction andutilization of space resources, including through ongoing efforts at the COPUOS.”
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DIGNITAS n Human Rights Law

exploitation of space resources does not in itself constitute national appropriation under Article II of the Outer Space Treaty.
It will be of interest to observe how Slovenia will decide to utilise space resources in the future. As a signatory to the Artemis
Accord, it is likely that Slovenia will be in favour of the use and
exploitation of resources, but it must be borne in mind that the
resources of space are for the benefit of humanity as a whole.
Furthermore, it asserts that the safety zones defined in Section
11, are necessary for the transparency of information and coordination, and thus for the prevention of harmful interference
and the fulfilment of the obligations of due diligence. While
the Artemis Accords promote the extraction and exploitation
of resources, they do not provide for an international regime,
as provided for in the Moon Treaty in Article 11. Time and the
practice of States and opinio juris will determine whether the
AA document is a solution in the right direction and whether
it offers consistent rules of conduct for all actors. It is true that
the solutions offered in the AA are innovative and represent a
certain progress, but to what extent they do so remains to be
seen and determined by the practice of all the subjects of international law. If one understands international law as a process,
the Accords may be seen as a good way of bringing together the
public and private sectors at international level.

3. Going further with Slovenia’s Space
Activities Act
The most obvious way to make international space law work
coherently is to introduce national laws governing space activities. Much practical space law is being developed in the various
legal systems of the world, particularly in the legal systems of
space-active States. The development of space law is thus taking
place in three directions (Steer, 2017). Firstly, the domestic legal
order is responding with new national laws dedicated to space activities, i.e., the establishment of new structures and procedures to
deal with space activities. Secondly, by applying the existing rules
of the national legal system to space activities or, in the third case,
by applying the international law theory of »self-executing treaties« and achieving a direct transposition of international agreements into the national normative system.
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DIGNITAS n Leveraging Slovenian National Space Law for Sustainable Development ...

The peculiarity of space law is that “in addition to sovereign
states, non-state structures such as private entities, international
organisations, and even individuals” (Steer, 2017, p. 4) have
been increasingly involved in recent decades and play a key
role in the development of this sector. Given the rapid progress
and interdisciplinary nature of the space sector, this branch of
international law needs flexible rules, including in the form
of non-binding legal instruments, which will support its longterm objectives and allow it to grow in different directions. The
regulatory environment for space law is rudimentary and in
need of updating, if not revision since it was conceived thirty
to forty years ago. It was envisaged that we would have about
ten commercial launches a year, launching about twelve to fifteen satellites, but we are now doing ten times more in all areas
(Jacobson, 2020). Thus, today, the term transnational law is also
in use, and includes relations and relationships between states.
Non-state actors are involved in shaping the processes of international law (Steer, 2017). The relationship between transnational and national law is leading to new forms of global
governance which, to be more flexible and to respond more
quickly to a rapidly changing global world, uses soft law approaches and can become a binding legal norm through national legislation.
National legislation guided by international space treaties
should be tailored to align with the specific interests, socioeconomic development, legal traditions, and current and planned
space activities of each country. One of the key motivations for
adopting national legislation is to create a competitive regulatory
framework that will enhance the opportunities for private entities to engage in space activities within the country’s territory.
Historical evidence suggests that many countries have established
national space legislation as the most effective means of implementing international obligations under space treaties (Tapio &
Soucek, 2022).
Slovenia has opted for the first path, adopting the Space Activities Act in April 2022 with the intention of facilitating more
effective participation in space activities. The Act allows for a
more precise, transparent, and authentic engagement within the
international community. The primary motivation for the enactment of the national legislation was the aspiration to facilitate
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the full operationalisation of the European Space Agency within
the internal space sector, as well as the operation of research and
educational institutions engaged in space activities.9 In light of the
obligations imposed by international treaties, such as the State’s
liability for damages to third countries, the legislation introduced
oversight of space activities and established a national register
of space objects. In the case of Slovenia, the national law fulfils
the commutative subjective condition, that is, the legal consciousness of the State, which shapes customary international law. The
practice of the Slovenian State, the objective condition, is in the
making and will certainly be better formulated with the creation
of the Space Activities Act.
Slovenian Space Activities Act is primarily concerned with personal and territorial jurisdiction. Through the Act, the State implements certain international legal obligations arising from ratified
treaties. Through the law, the State implements certain international legal obligations arising from ratified treaties. For example,
Art. VI of OST; “international responsibility for national activities
in outer space, including the moon and other celestial bodies,
whether such activities are carried on by governmental agencies
or by non-governmental entities... shall require authorization and
continuing supervision”.10 Article 2 of Space Activities Act defines
the scope of application and, in line with the OST, establishes
control also over space activities outside the territory of Slovenia
carried out by Slovenian citizens and legal entities established
in Slovenia. Thus, it can be noted that the Act, in establishing a
real connection with legal persons, is based on the seat theory
and thus deviates from the internationally established theory of
incorporation, which is used to determine the nationality of legal
persons in the light of the provision of diplomatic protection
(Sancin, 2021).
An example of the implementation of guidelines for the longterm sustainability of space activities is Article 5 of the Space Activities Act, which fully supports the preservation of the space environment for future generations. Even if it is not explicitly stated
that »environment« also refers to the space environment, this can
be inferred from the individual points of the article. Point (b) calls
9
Predlog zakona o nadzoru vesoljskih dejavnosti – Proposition of Space Activities Act, 2018-21300005, p. 1.
10
OST, art. VI.

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DIGNITAS n Leveraging Slovenian National Space Law for Sustainable Development ...

for compliance with international standards; »space activities are
conducted in accordance with the international standards and
guidelines of internationally recognised standardisation organisations on the safety and technology of space activities;«. Similarly,
point (c)11 mentions the need to protect the environment. The
most illustrative reference to the space environment is Article
5(e), which lists the limitation of the generation of space debris as
one of the conditions for licensing.12 It thus also fulfils one of the
guidelines13 of UNGA Resolution 68/74 on Recommendations on
National Legislation Relevant to the Peaceful Exploration and Use
of Outer Space. Article 5(e) also provides mitigation of space debris as one of the conditions for licensing “with the applicable UN
Space Debris Mitigation Guidelines and for limiting adverse environmental effects on Earth or in outer space or adverse changes
in the atmosphere”.14
Slovenia thus follows and promotes the sustainable development of outer space and implements the LTS guidelines as a
non-legally binding document. However, the definition of space
debris in Article 3 of the Space Activities Act, is inadequate and
lacks precision. It describes space debris as »space objects remaining in space after the cessation of space activities or as a
consequence of space activities, or space objects that return to
Earth uncontrolled«.15 It does not mention that space debris also
includes particles of these space objects that are separated from
the main source, whether controlled or uncontrolled. There is
also no mention of the non-functionality of the facility being in
space. The linguistic interpretation of the word »termination«
does not cover the intention of termination and the consequence
that follows. Termination can be intentional or unintentional. In
the practice of States, waste is defined as those objects that are
no longer able to perform their function. They are not necessarily valueless to the State exercising jurisdiction over them. It
Space Activities Act, article 5(c): “space activities do not pose a threat to national defence, public
order, the safety of people or their property, national intelligence and security operations, and protection against natural or other disasters and do not negatively affect public health, the environment
or aviation.”
12
Space Activities Act, article 5(e): “space activities envisage measures for limiting the generation of
space debris in accordance with the applicable UN Space Debris Mitigation Guidelines and for limiting adverse environmental effects on Earth or in outer space or adverse changes in the atmosphere.”
13
Recommendations on national legislation relevant to the peaceful exploration and use of outer
space, UN General Assembly, A/RES/68/74, 16.12.2013.
14
Space Activities Act, 5(e).
15
Space Activities Act, article 3.
11

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has been suggested that it is the same State, and only that State,
which can determine whether its facility is functional. Although
a space object might be perceived by others as completely useless, it may in fact still have some value. For example, an inactive
space object may be held in reserve for future activities, may
carry valuable classified information, or may otherwise be of
interest to other States (Viikari, 2007). Therefore, the criterion of
»functionality«, at least if understood in a purely technical sense,
may not be the most useful linguistic interpretation as set out in
the Slovenian law, namely »cessation of activities«. To distinguish
space debris from other space objects, it should be noted that
even apparently non-functional - inactive space objects can be
valuable assets.
The Government of the Republic of Slovenia shall determine,
by way of a decree, the educational, technical, financial, safety
and environmental criteria to establish the meeting of criteria
referred to in paragraph one of Article 5, which is highly progressive for small countries like Slovenia. To these criteria, Article 6 of the Space Activities Act adds insurance of the minimum
amount of EUR 60,000,000 per loss event for the duration of
space activities.
Space Activities Act provides the basis for access to the premises and installations of licence holders and for inspection of documentation.16 The operator is also obliged to report events or facts
that may affect the validity of the licence and the existence of an
accident or hazard.17 However, this does not include reporting
irregularities that could cause danger or damage. It also includes
the revocation of the licence18 and the imposition of a fine19 in the
event of an offence, which is relatively low, but does not include
the suspension of the licence or the modification of the duration of the licence. However, there is an option for the Ministry
responsible for technology to set a deadline for the operator to
remedy the irregularities before revoking the licence, which shall
not exceed one year.20
Article 13 of the Space Activities Act provides that the operation of a space facility, for which a licence has been issued may
Space Activities Act, article 17.
Space Activities Act, article 15.
Space Activities Act, article 12.
19
Space Activities Act, article 18.
20
Space Activities Act, article 12(3).
16
17

18

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DIGNITAS n Leveraging Slovenian National Space Law for Sustainable Development ...

be transferred to another operator who is a citizen of the Republic of Slovenia or a legal entity established in the Republic
of Slovenia only with the authorisation of the Ministry responsible for technology,21 provided that the new operator meets
certain legal conditions issuing a licence and has insurance in
place. If the management of a space facility is transferred to an
operator of another country, the Ministry shall give its consent
to the transfer only if the RS has concluded an international
agreement with that country on the regulation of liability for
damages.22 Such a regime thus provides the possibility of concluding international treaties establishing responsibility for a
particular space object. This has implications for the regulation of the increasingly common on-orbit transfers in practice,
whereby there is a transfer of ownership, but not necessarily
an explicit transfer of responsibility by the launching State.
There are differences of opinion in theory regarding this issue
(Sancin, 2021).
Under the Registration Convention, when a launching state
launches a space object into space, the launching state must record the launch in its national register and provide information
about the object to the Secretary-General of the United Nations
for inclusion in the international register. This State of Registry
then has »jurisdiction and control« over the object in accordance
with Article VIII of the Outer Space Treaty. One interpretation of
Article VIII is that “the State of registry has exclusive jurisdiction
to regulate the space object, its personnel, and any related disputes” (Sundahl, 2017, p. 43). Starting from Article I of the Convention on Registration of Objects Launched into Outer Space,
such a State may be the State that launches or commissions the
launch of a space object, the State from whose territory or platform the space object is launched23. As stated, there are four possibilities for naming and identifying a State Party as a launching
State, namely it can be the State that launches the space object, the
State that commissions the launch of the space object, the State
Space Activities Act, article 13(1).
Space Activities Act, article 13(2).
The Convention on the Registration of Objects Launched into Outer Space, Article I, defines the launching or launching State as follows: »For the purposes of this Convention, the term ‘launching State’
means [...]« (i) The State which launches or commissions the launch of a space object; (ii) The State
from whose territory or facility the space object is launched; (b) The term ‘space object’ includes the
components of a space object and its launch vehicle and its components; (c) The term »State of Registry« means the State of launch in whose registry the space object is held in accordance with Article II.
21

22
23

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that launches the space object from its territory or the State that
launches the space object from its platform. It is precisely because
of the different possibilities of determining the launcher’s auction
that it is necessary to keep a register at international level, where
it is clearly stated who owns the space object and who thus also
assumes responsibility for the damage caused and the other consequences that may follow.
For this reason, the maintenance of a national register, as
provided for in Article 14 of the Space Activities Act, is of paramount importance. Article 14 of the Space Activities Act outlines
provisions for the establishment and maintenance of a register
by the Ministry for the purpose of collecting data on space objects launched into outer space. This register is intended to be
public and maintained as an electronic database. The Republic
of Slovenia is designated as the state of registration for space objects entered into its register. Objects eligible for entry include
those for which the ministry has issued a license for space activities or those covered by international agreements regarding liability for damage. Operators are required to provide necessary
data for entry within 30 days of launch or transfer to another
operator. Data to be entered in the register include details such
as license number, object name, launch information, orbital parameters, purpose, operator and owner information, and status
of the object. Operators must notify the ministry of any changes
to the registered data within eight days. Personal data collected
in the register is used to identity verification and is kept permanently. The ministry is responsible for notifying the United
Nations Secretary-General of entries, changes, and amendments
to the register in accordance with international conventions.
The government is tasked with issuing detailed regulations for
maintaining the register.
Article 16 establishes a clear framework for assigning liability
and ensuring compensation for damages caused by space objects,
while also outlining conditions under which the state can seek reimbursement from operators. This article has certain limitations
on reimbursement: which is limited by the total sum insured, except in specific circumstances which refers to intentional damage,
damage caused due to gross negligence or if the damage results
from non-compliance with licensing conditions or contravention
of the Act.
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DIGNITAS n Leveraging Slovenian National Space Law for Sustainable Development ...

In general, the biggest shortcoming of the Space Activities
Act is the lack of clearly defined terms such as space object,
space debris, space activities manager, and environment, which
is mentioned in Article 5. Clearly defined authorisation and licensing implementing the LTS guidelines are of utmost importance for the sustainable development of space activities both
in Slovenia and internationally. Relatively low sums of sanctions
could lead to abuses, where foreign entities would lease Slovenia’s low penalties and carry out illegal space activities here that
would not be possible abroad due to the higher penalties. This
could even lead to a kind of space shopping (Sancin, 2021).

4. Slovenian Space Strategy: a step towards
STEM education and collaboration with
ESA
The strategy presented by Slovenia was developed after the law
was adopted. It is based on five pillars, which highlight the importance of promoting and developing space activities, broadening
participation in space exploration, promoting the development
and use of space applications, securing the next generation of
scientists, and promoting entrepreneurship.24 During the public
hearing on the strategy25, the several proposals were presented.26
These included the integration of the LTS guidelines into national
best practices and legislative frameworks, with an emphasis on
enhancing awareness of their importance for stakeholders in the
space sector. Additionally, the establishment of a space sustainability rating for private entities was proposed to promote more
sustainable practices across the global space industry. In this way,
Slovenia could serve as a model, following the lead of other similar countries like Austria.
Central to Slovenia’s space aspirations is its strategic partnership with the European Space Agency, a collaboration that
opens doors to a wealth of resources, expertise and opportunities in space exploration and technology development. Through
its membership in ESA, Slovenia gains access to cutting-edge
projects and initiatives ranging from Earth observation and satFurther reading in the Slovenian Space Strategy from year 2023.
Public haering took palce in April, 2023.
26
The proposals outlined were put forward by the author during the public hearing on the strategy.
24

25

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ellite navigation to human spaceflight and exploration missions.
Slovenia’s commitment to space education is also reflected in
the establishment of ESERO Slovenia, a dedicated platform
aimed at promoting STEM (Science, Technology, Engineering
and Mathematics) education and fostering a culture of space
literacy among students and educators alike. Through its collaboration with ESA and ESERO Slovenia, Slovenia aims to create
a new generation of space enthusiasts and professionals with
the skills and knowledge to drive future advances in space science and technology. ESERO supports the European formal primary and secondary education community. From 2023/2024, it
started a gradual expansion into different forms of non-formal
education, involving pre-school children and families.27 By encouraging young people to pursue technological and scientific
studies, ESERO will help in the long term not only the development of the space sector, but of all high-tech industries, which
are already suffering from a lack of adequate human resources.
Although the project is well designed for the younger generations and provides a basic introduction to the space sector, it
lacks specificity and focus on the education of young people
who are about to make decisions on higher education. There is
a perceived lack of projects aimed at students in social or natural sciences in higher education that are feasible in Slovenia by
Slovenian staff. This is assumed to be due to the lack of professional staff in the space sector. Nevertheless, Slovenia provides
assistance in establishing connections with European and global
organisations and in integrating with them. As an example of
collaboration, we would also like to mention the multidisciplinary student research group SpaceDent, which operates in the
Open Laboratory of the Faculty of Mechanical Engineering in
Ljubljana and participates in the ESA Academy PETRI. It involves
students of mechanical engineering, dental medicine and electrical engineering who are preparing dentistry for long-term
missions to the Moon and Mars.28

Further reading about the project in O projektu ESERO, ESERO, e-source.
Further informations availabe in “Priložnosti za inštitucije, podjetja in študente na področju vesoljskih tehnologij” which was published online by The Ministry of the Economy, Tourism and Sport,
e-source.
27

28

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DIGNITAS n Leveraging Slovenian National Space Law for Sustainable Development ...

5. Slovenian space sector in achieving SDGs –
case studies
In addition to the five pillars that the office already has in the
proposed strategy, this article is stressing the importance of implementing policies that would promote the sustainable development of the space sector and that would take care of the use
of space applications for the achievement of the Sustainable Development Goals set by the United Nations (Space4SDGs). In the
study provided by United Nations Office for Outer Space Affairs
it is clearly presented the positive impact of GNSS and EO, with
special focus on European GNSS and Copernicus, in achieving
sustainable development and specific SDGs (UNOOSA, 2018)
and they “could be used to support the achievement of the SDGs
not only in Europe but worldwide” (UNOOSA, 2018, p. 1). The
best results will be achieved when telecommunications, global
navigation satellite systems (GNSS) and Earth observation (EO)
satellites and services collaborate to achieve common goals and
meet clear user requirements (UNOOSA, 2018). Two European
flagship projects; European GNSS and Copernicus in synergy
can lead to great support for achieving SDGs for the benefit
of all humankind (Gajić, 2023). “These services are supporting
a continuously increasing number of users in many different
market application domains: from transport related services (for
example aviation, road, maritime and rail) and consumer solutions to professional applications; for example, agriculture,
construction and infrastructure monitoring” (UNOOSA, 2018,
p.1.). Therefore, the use of space applications and the expertise
of Slovenian companies is crucial for the achievement of the
SDGs (Gajić, 2023). A well-defined strategy that leverages space
technologies and knowledge to address the Earth’s most pressing problems is crucial, as it highlights the direct connection
between each Sustainable Development Goal (SDG) and space
applications (Gajić, 2023).
Slovenian companies like Sinergise and Space.si exemplify this approach by contributing to the fight against poverty
through the use of satellite imagery and advanced data processing techniques. The case study of Sinergise, with its extensive
earth observation data archive, demonstrates how such resources can significantly advance the achievement of SDGs on a glob37

DIGNITAS n Human Rights Law

al scale, reinforcing the role of space technology in sustainable
development.
Sinergise can use machine learning to find patterns in the
data, further enhancing its use. Recorded satellite imaginary
provide further important information about the processed
zones for their customers coming from the field of agriculture,
real-estate, GIS-tools, remote sensing, and machine learning. Organization Sinergise and their service Sentinel-hub is supporting Sustainable Development Goal 2 with their space technologies that can help increasing productivity of agricultural cultivation through informed management processes, improving the
efficiency of the utilization of existing assets, (including land,
seeds, fertilizers, plant protection agents and water). Decisions
are supported by software services based on data generated by
space systems, GNSS and EO, as well as by terrestrial technologies. Sinergise has developed several integrated applications
for administration and control, such as: farm Registry, Land Parcel Identification System, On-the-spot controls, Animal controls.
Components of the applications can handle, for example, land
consolidation, meliorations, disease outbreak, forestry, and others. Services can be used within the institution, government, or
general public.
Referring to this case study it is obvious that the use of space
technologies is working in positive correlation to ending hunger
more accurately, is in intersection with SDG 2 which is Zero Hunger to end hunger, achieve food security, improved nutrition, and
promote sustainable agriculture. Human Rights that are related to
this exact SDG are Right to adequate food [UDHR art. 25; ICESCR
art. 11; CRC art. 24(2)(c)] and international cooperation, including
ensuring equitable distribution of world food supplies [UDHR
art. 28; ICESCR arts. 2(1), 11(2)].
Another example led by a company Space–SI, Slovenian Centre of Excellence for Space Sciences and Technologies, has developed several successful technology demonstration cases utilising
the Nemo-HD microsatellite for the Soča, Sava, Drina and Danube rivers in the Alpine, Ionian-Adriatic and Danube EU macroregions. The new technologies are now being transferred and
tested in India in collaboration with the cGanga Centre for Ganga
River Basin Management and Studies and the Indian Institute of
Technology Kanpur as part of the Ganga and Sava River Twinning
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DIGNITAS n Leveraging Slovenian National Space Law for Sustainable Development ...

initiative. The space industry is no longer the exclusive domain
of major countries and industrial conglomerates. It has become
democratised both geopolitically and financially, with the costs of
developing, launching, and deploying micro and nanosatellites
being significantly reduced.29
The Space-SI Centre of Excellence was established with the
objective of uniting the academic, scientific, and technological
potential within Slovenia. This initiative offers Slovenian scientists and engineers the opportunity to participate competitively
in space research and missions. Furthermore, it seeks to connect
the Slovenian public with these processes, which are of great
importance to society as a whole and are often invisible. The
objective is to enable more sustainable management of water
resources (SDG 6). This is achieved by implementing satellite
data and digital twin models into integrated water resources and
river basin management at all levels, including through transboundary cooperation. Furthermore, international cooperation
and capacity-building support will be expanded through River
Twinning approaches.
SDG 6 aims to ensure the availability and sustainable management of water and sanitation for all, with specific targets including universal and equitable access to safe and affordable drinking
water, sanitation, and hygiene for everyone. It also focuses on reducing pollution, increasing water-use efficiency, and promoting
participatory management of water and sanitation services. This
goal aligns with the right to safe drinking water and sanitation as
recognized in ICESCR Article 11, and the right to health as outlined in UDHR Article 25 and ICESCR Article 12. Additionally, it
emphasizes equal access to water and sanitation for rural women,
as stated in CEDAW Article 14(2)(h).
The second objective of this private actor is to improve actions to combat climate change and its impacts (SDG 13). This
is achieved by strengthening resilience and adaptive capacity to
climate change. Integration of satellite data and digital twin models to optimise climate change measures into national policies,
strategies, and planning. Improved education, awareness-raising
and human and institutional capacity for adaptation to climate
change as well as impact reduction and early warning. SDG 13
Satellite Data and Digital Twin Models to Support River Basin Managment, United Nations, Department of Economic and Social Affairs Sustainable Development, e-source.

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calls for urgent action to combat climate change and its impacts,
with specific targets that include strengthening resilience and
adaptation to climate change and natural disasters, particularly
in marginalized communities, as well as the implementation of
the Green Climate Fund. This goal is closely linked to the right
to health, which includes the right to a safe, clean, healthy, and
sustainable environment, as recognized in various international
human rights instruments such as UDHR Article 25(1), ICESCR
Article 12, CRC Article 24, CEDAW Article 12, and CMW Article
28. Additionally, SDG 13 supports the right to adequate food
and safe drinking water, as outlined in UDHR Article 25(1) and
ICESCR Article 11. Furthermore, it upholds the right of all peoples to freely dispose of their natural wealth and resources, as
stated in ICCPR and ICESCR Article 1(2).
Another goal is SDG 15 which is to enable sustainable use of
terrestrial ecosystems, combat desertification as well as halt land
degradation and biodiversity loss.30 SDG 15 focuses on protecting, restoring, and promoting the sustainable use of terrestrial
ecosystems, including the sustainable management of forests,
combating desertification, halting, and reversing land degradation, and stopping biodiversity loss. The specific targets include
the sustainable management of freshwater, mountain ecosystems,
and forests, combating desertification, halting biodiversity loss,
and fighting against poaching and trafficking of protected species. This goal supports the right to health, which encompasses
the right to a safe, clean, healthy, and sustainable environment, as
recognized in UDHR Article 25(1), ICESCR Article 12, CRC Article
24, CEDAW Article 12, and CMW Article 28. It also aligns with
the right to adequate food and safe drinking water, as stated in
UDHR Article 25(1) and ICESCR Article 11. Furthermore, SDG 15
upholds the right of all peoples to freely dispose of their natural
wealth and resources, as articulated in ICCPR and ICESCR Article
1(2).
There are many similar practical examples31 all leading directly or indirectly to the achievement of the Sustainable Development Goals (SDGs) set by the international community.
Satellite Data and Digital Twin Models to Support River Basin Managment, United Nations, Department of Economic and Social Affairs Sustainable Development, e-source.
For a more detailed information and more case studies see the appendix in European Global
Navigation Satellite System and Copernicus titeled Supporting the Sustainable Development Goals;
Building Blocks towards the 2030 Agenda presented by UNOOSA in 2018.
30

31

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Moreover, “GlobalNavigation Satellite Systems and satellite
communications can be of use in the context of an 8 billion
world” (UNOOSA, 2023, p. X). At the same time, the SDGs directly fulfil and protect the human rights enshrined in binding
international treaties and agreements. As the population reaches 8 billion, tackling the global challenges facing humanity as a
whole is all the more important. Under current scenarios, the
population will continue to grow in the coming years, peaking at between 9 and 11 billion between 2050 and the end of
the century. This population increase creates challenges and
opportunities that need to be addressed through appropriate
policies to ensure development while addressing the sustainability of humanity’s activities. Space data and services can help
to address the challenges of the »8 billion world« and the successful implementation of global agendas.32 In fact, the space
sector, activities and space technologies can make a significant
contribution to solving some of the key problems of the international community.
It is necessary to acknowledge that all SDGs are interrelated
and that all together bring to common goods in the benefit of
all humankind, where the main subject is an individual and his/
her dignity in correlation to basic principles of Human Rights
and their protection. Satellite imagery and space application
are indispensable tool of today and future for governmental
organizations, non-governmental organizations, and society
for protection of Human Rights (Gajić, 2023). Constitutional
democracy and the rule of law have been under stress in Slovenia and when speaking about Human Rights there is a lack
of holistic, balanced, and pluralistic approach to Human Rights
protection (Avbelj & Letnar Černič, 2020). It is believed that
companies and other private entities, operating independently
of governmental financial support, could serve as an effective
support system for achieving a comprehensive path toward Human Rights protection. Although a positive approach is maintained regarding the intersections between Space Law and International Humanitarian Law, many more questions remain to
be addressed. The central challenge here is to make sure that
space is used in a safe, secure, and sustainable manner by an
Further information about the EU Space in support of a world of 8 billion people available in the
»Space2030« agenda published by UN in year 2023.

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ever-increasing number of actors. Complicating this is the fact
that almost all space technology can be used for military as
well as civilian purposes. Although it is a novel area of global
governance, this strategic importance of space means that its
regulation is still mainly done through traditional instruments
and institutions of global governance that are dominated by
States (Introduction to Global Governance, 2023). The protection of human rights is, therefore, an important objective for
global governance. A variety of actors, institutions, and instruments work towards the protection of human rights around the
globe. In other words, they contribute to the global governance
of human rights - sometimes called the global human rights regime.

6. SWOT (strengths, weaknesses,
opportunities, and threats) Analysis
The Slovenian space sector is analyzed through a SWOT framework to identify the strengths, weaknesses, opportunities, and
threats associated with its development. This analysis provides
insights into the current state of the sector and offers strategic
directions for its future growth and sustainability.
One of the key strengths of the Slovenian space sector is its
highly proactive regulatory framework, established by the Space
Activities Act of 2022. This legislation provides a solid foundation for regulating space activities, ensuring compliance with international standards, and facilitating the smooth operation of
space-related initiatives within the country. The Act mandates the
registration of space objects and ensures that space activities are
safe and environmentally sustainable, positioning Slovenia as a
leader in environmental stewardship within the space industry.
Additionally, Slovenia’s strategic partnerships with organizations
such as the European Space Agency and its participation in international agreements like the Artemis Accords enhance its credibility and capabilities on the global stage. These partnerships,
coupled with initiatives to promote STEM education and collaboration with research institutions, further strengthen the sector’s
innovation potential.
Despite its strengths, the Slovenian space sector faces significant challenges. The industry is relatively small, and Slovenia’s
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DIGNITAS n Leveraging Slovenian National Space Law for Sustainable Development ...

limited domestic market size and investment capabilities may
hinder its expansion. A major weakness is the shortage of highprofile professionals in space law, making the country heavily
dependent on international collaboration. This reliance on external partnerships could pose risks if geopolitical relations or
strategic priorities shift. Additionally, while the Space Activities
Act is comprehensive, there are regulatory gaps that need to be
addressed, particularly in defining critical terms such as »space
object« and »space debris,« to keep pace with the rapid evolution
of space technologies and activities. Also, one may ask whether
the stringent requirements and high standards presented in Slovenian Space Activities Act are not the result of the small number
of Slovenian satellites.
The Slovenian space sector has substantial opportunities, particularly in emerging technologies. Participation in next-generation space projects, such as satellite technology, space exploration, and sustainable space practices, presents significant growth
potential. The expansion of educational programs in space studies could position Slovenia as a regional hub for space education,
further enhancing its innovation capacity. Moreover, the increasing privatization of space activities offers opportunities for Slovenian start-ups and businesses to innovate and enter new market
segments, thereby contributing to the growth of a circular space
economy.
The potential threats to the Slovenian space sector’s success
are rooted in technological and financial barriers. The high costs
and complexity of space ventures pose significant challenges for
a smaller nation with limited resources. Furthermore, while international regulatory changes may not be imminent, any future
alterations to space law and policy could impact Slovenia’s activities and partnerships. The global space sector is marked by
intense competition, with major players investing heavily in technology and market expansion, which could overshadow the efforts of smaller countries like Slovenia. To remain competitive, it
is crucial for Slovenia to maintain flexibility in its national legislation, allowing space for all actors in the space sector and ensuring the development of a highly educated workforce to support
future generations.

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Picture 1: SWOT Analysis of Slovenian Space Sector
Threats

Strengths

-

-

Technological barriers
High costs of space ventures
Alternations in international law
Competitive global landscape

Proactive regulatory framework
Supervision and state registry
Sustainability
Environmental leadership
International partnership
Education and research focus

Opportunities

Weaknesses

- Emerging technologies
- Expansion of educational
programmes
- Supporting start-ups and circular
space economy

- Small industry
- Depending on international
cooperation
- Regulatory gaps
- Lack of high-profile
professionals; etc: space law

Source: the author’s own work.

7. Conclusion: searching for an answer
in pursuing a holistic approach
The development of international space law is moving from
traditional governance to a new global governance of the international community that considers actors other than states. The
sustainable development of space and activities on Earth using
space applications leads to the achievement of the SDGs, which
are the foundation for the establishment of inter-national relations based on justice, trust, and solidarity. At the same time, such
conduct promotes the protection of human rights and the preservation of the space environment for future generations. The
application of soft law forms of international law in the space
domain is of paramount importance and allows global challenges
to be met more quickly, both on Earth and in outer space. Where
there are challenges, there are also opportunities. But opportunities usually require acting with a certain degree of responsibility.
And it is the responsibility of international law actors to preserve
the environment of outer space and to use its resources responsibly that constitutes one of the missing components of the legal
and normative regulation of outer space. This statement opens
another important question which needs to be answered. The
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DIGNITAS n Leveraging Slovenian National Space Law for Sustainable Development ...

legal regulation of outer space must be seen from a broader perspective, one that is much more adapted to today’s developments,
both technological and in terms of raising collective consciousness. Given the technical complexity of space law and its scientific research development, there is a need to shift towards New
Global Governance, where standards, declarations, and guidelines are integrated into domestic law, directly influencing actors
such as the private sector and society. The central challenge lies
in ensuring that space is used in a safe, secure, and sustainable
manner by an ever-increasing number of actors.
SWOT analysis reveals that while Slovenia has established a
promising foundation in the space sector through robust legislation, strategic partnerships, and educational initiatives, it must
navigate challenges related to its size, dependency on international cooperation, and dynamic global competition. To maintain and enhance its space sector, Slovenia must capitalise on its
strengths, address its weaknesses, seize emerging opportunities,
and mitigate potential threats. Since international space law requires a holistic approach, the importance of a defined national
law on space activities is even more important. Given the developed private sector in Slovenia, it is crucial to follow the state’s
transparent and precise operational guidelines from the state is
critical, if not essential.

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Marchisio, S. (2022). The Law of Outer Space Activities. Rome, Edizioni Nuova Cultura.
O projektu ESERO. ESERO Slovenija. URL: https://projekti.csod.si/esero/gradiva-esero/, 9.5.2024.
Oxford, UK: Hart Publishing.
Petersen, N., Lepard, B. N. (2010). Customary International Law. A New Theory with Practical Applications, European Journal of International Law, Volume 21(3), p. 795 – 797, https://doi.org/10.1093/
ejil/chq051.
Petrič, E. (2019). 8. člen: Opredelitev člena in razmerje do drugih ustavih institutov. V: Komentar
Ustave Republike Slovevnije / Avbelj, M. (ed.).Nova Gorica: Nova univerza, Evropska pravna fakulteta. URL: https://e-kurs.si/komentar/opredelitev-clena-in-razmerje-do-drugih-ustavnih-institutov-2019-02-7/, 8.5.2024.
Polak Petrič, A., Pajnkihar., G. (2024). Nasledstvo držav v mednarodnem pravu; Razpad in nasledstvo
po Jugoslaviji. Ljubljana, Založba FDV, Ljubljana, in Ministrstvo za zunanje in evropske zadeve
Republike Slovenije.
Predlog zakona o urejanju vesoljskih dejavnosti. – Proposition of Space Activities Act, 2018-2130-0005.
Priložnosti za inštitucije, podjetja in študente na področju vesoljskih tehnologij. Ministrstvo za gospodarstvo, turizem in šport in Ministrstvo za visoko šolstvo, znanost in inovacije. Vlada republike
Slovenije. 11.10.2023. URL: https://www.gov.si/novice/2023-10-11-priloznosti-za-institucije-podjetja-in-studente-na-podrocju-vesoljskih-tehnologij/, 9.5.2024.
Recommendations on national legislation relevant to the peaceful exploration and use of outer space,
UN Resolution adopted by the General Assembly on 11 December 2013, A/RES/68/74, 16.12.2013.
Roberts, A. E. (2001). Traditional and Modern Approaches to Customary International Law: A
Reconciliation. The American Journal of International Law, 95(4), p. 757–791. https://doi.
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Roozbeh, R. B. B. (2010). Customary International Law in the 21st Century: Old Challenges and
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Sancin, V. (2021). Priprave prvega slovenskega Zakona o nadzoru vesoljskih dejavnosti. TFL glasnik, 12, 13.4.2021. URL: https://www.tax-fin-lex.si/Dokument/Podrobnosti?rootEntityId=5902fd
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DIGNITAS n Temporary protection of displaced persons: the case of refugees from ...

Temporary protection of displaced
persons: the case of refugees from
Ukraine
Ana Ćurčija*

Abstract
Whilst armed conflict of the Russian Federation against
Ukraine threatens global stability and security, it has also caused
a humanitarian crisis and a mass influx of displaced persons
from Ukraine to Europe. The European Union’s responded to
this migration crisis by activating the Temporary Protection
Directive, an instrument adopted within the framework of the
Common European Asylum System, that regulates the status of
temporary protection. Temporary protection exists separately
from the regime of international protection, as it is a pragmatic
mechanism, that is activated only in emergency crisis situations.
The role of temporary protection is twofold, as it namely ensures immediate reception and protection of a large number of
asylum seekers with the aim of respecting the principle of nonrefoulement, all while preventing the overload and breakdown
of the asylum systems of the receiving countries, as it is also a
shortened procedure for granting protection to refugees. In this
article, we will present the mechanism of temporary protection
and its application in practice, on the example of the mass arrival of refugees from Ukraine.
Keywords: international protection, temporary protection,
mass influx, displaced persons, solidarity mechanism

Ana Ćurčija, New University, Faculty of Government and European Studies, Žanova ulica 3, 4000
Kranj, Slovenia, e-mail: Ana.curcija@student.nova-uni.si.

*

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DIGNITAS n Human Rights Law

Začasna zaščita razseljenih oseb: primer
beguncev iz Ukrajine
Povzetek
Napad Ruske federacije na Ukrajino je ogrozil svetovno stabilnost in varnost, povzročil humanitarno krizo ter množični prihod
razseljenih oseb iz Ukrajine v Evropo. Evropska unija se je na to
migracijsko krizo odzvala z aktivacijo Direktive o začasni zaščiti,
instrumenta, ki je sprejet znotraj skupnega evropskega azilnega
sistema in ureja status začasne zaščite. Posebnost začasne zaščite
je v tem, da ta obstaja ločeno od režima mednarodne zaščite, saj je
to pragmatičen mehanizem, ki se aktivira le v izrednih kriznih razmerah. Vloga začasne zaščite je dvojna, in sicer zagotoviti takojšen sprejem in zaščito velikemu številu prosilcev za azil s ciljem
spoštovanja načela nevračanja, hkrati je to tudi skrajšan postopek
za podelitev zaščite zaradi preprečevanja preobremenjenosti in
zloma azilnih sistemov držav sprejemnic. V tem prispevku bomo
predstavili mehanizem začasne zaščite in njeno uporabo v praksi,
na primeru množičnega prihoda beguncev iz Ukrajine.
Ključne besede: mednarodna zaščita, začasna zaščita, množičen prihod, razseljene osebe, solidarnostni mehanizem

1. Introduction
On 24 February 2022, Russia invades Ukraine, which is the first
armed attack on an independent and sovereign European country since the Second World War. Since then, we have watched the
Russian Federation deny and violate the international legal order
and threaten world peace. International law exists for the solidarity of the countries of the world, as an instrument to ensure peace
and to protect human rights and fundamental freedoms, democracy and the doctrine of the rule of law. Therefore, solidarity, (especially) between European countries and with Ukraine, is (also)
crucial to mitigate the war and to rehabilitate its consequences.
In this situation, the institutions of the European Union (hereinafter EU) and its Member States have a multifaceted role to
play in safeguarding the values on which the EU is founded. In
this paper, we focus on the EU’s response in order to protect
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DIGNITAS n Temporary protection of displaced persons: the case of refugees from ...

those who, in addition to those who remain in Ukraine, suffer
the consequences of this war. Since the beginning of the war
until the end of December 2023, almost six million people have
fled Ukraine for Europe (Operational data portal, 2023, e-source),
which is the biggest refugee crisis since the Second World War
(Koo, 2022, e-source). This massive and sudden influx of refugees
from Ukraine posed a risk to the functioning of asylum systems
in EU Member States (Scissa, 2022, e-source), whilst the refugees
had to be guaranteed a prompt and dignified reception in an
EU Member State and certain rights under international law. This
is why the Council of the EU (hereinafter the Council) activated Council Directive 2001/55/EC of 20 July 2001 on minimum
standards for giving temporary protection in the event of a mass
influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons
and bearing the consequences thereof (hereinafter referred to
as Directive 2001/55/EC or the Temporary Protection Directive),
which regulates temporary protection status. Directive 2001/55/
EC defines temporary protection as an exceptional procedure
which provides immediate and temporary protection in the event
of mass arrivals of persons from third world countries who are
unable to return to their country because of armed conflict or
systematic and human rights violations (Temporary Protection
Directive, Article 2, para. 1).
Given that the Directive has been activated for the first time
in 21 years after its adoption and represents one of the EU’s responses to the first armed conflict by a sovereign state in Europe
since the Second World War, it seems important to analyse its
application in practice. We are therefore interested in the use of
temporary protection for displaced persons in the case of refugees from Ukraine.
After an introductory chapter, we introduce the concept of
temporary protection and, in addition to the definition, highlight
its legal regulation, i.e. Directive 2001/55/EC. We first summarise
the historical factors that have contributed to the legal regulation
of this status in the EU. We then present the provisions of this Directive. We review its strengths and weaknesses and, on the basis
of an analysis of selected theoretical works, we try to disclose
why it has never been activated until 2022, after twenty-one years
and numerous migration crises in the EU Member States. In the
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third part, we examine the Russian invasion of Ukraine. We present the response of the EU institutions to the massive influx of
people from Ukraine and the Implementing Decision 2022/382,
which activated the Temporary Protection Directive. We examine
the response of doctrine and international organisations to this
decision. Then we illustrate the application of the Directive in
practice, focusing on the response of the EU Member States. In
the concluding chapter, we summarise the facts and relevant findings and critically evaluate the situation.

2. Temporary protection mechanism
2.1. Temporary protection
Temporary protection is a mechanism to cope with mass arrivals of people fleeing armed conflict, violence, climate change or
disasters from their countries of origin (Coles in, Lambert, 2021,
p. 249). It provides refugees with minimum standards of protection and refoulement (Guidelines on Temporary Protection or
Stay Arrangements, 2014, point 4). This is a pragmatic way of providing international protection in emergency situations (Note on
international protection, 1994, para. 45).
The concept is based on the assumption that if voluntary return to the country of origin is not possible, a way will be found
to resettle the refugees permanently in the receiving countries
(Greig, in Lambert, 2021, p. 249). The majority doctrinal view is
that temporary protection has become part of customary international law (for a more detailed argument, see: Greig, in Lambert,
2021, p. 252).
Lambert explains and justifies, with reference to the profession, that temporary protection imposes an obligation on states
to respect the principle of non-refoulement and requires states
and international organisations to cooperate and find durable
solutions (Greig, in Lambert, 2021, p. 250). The link between the
obligation to receive and protect large numbers of persons and
the obligation to find durable solutions for their continued stay
in the receiving countries in the event of an inability to return to
their country of origin is a positive aspect of temporary protection. The doctrine points out a number of shortcomings of this
protection, including the fact that while beneficiaries of tempo52

DIGNITAS n Temporary protection of displaced persons: the case of refugees from ...

rary protection are initially granted reception and basic rights,
after a certain period of time they should be guaranteed full rights
set out in the Convention relating to the Status of Refugees (hereinafter also the Geneva Convention) and its Protocol relating to
the Status of Refugees (hereinafter also the New York Protocol).
Integration of beneficiaries of temporary protection in receiving
countries is often the durable solution, as they face contemporary
challenges such as natural disasters, armed conflicts and cooperation between countries to find durable solutions is often lacking
Greig, in Lambert, 2021, p. 250).
Premature return of asylum seekers to their country of origin,
which is no longer safe for them, would violate the principle of
non-refoulement. As a result, beneficiaries of international protection reside legally in the receiving countries and are guaranteed
rights under both the provisions of the Geneva Convention and
human rights standards. This leads to an almost inevitable integration of these persons in the receiving countries, as the stabilisation process in the refugees’ countries of origin takes longer
or occurs slowly or not at all (Durieux, 2021, pp. 678-679). This,
Durieux explains, is the problem with the Geneva Convention’s
arrangements for the mass arrival of displaced persons. It does
not define the extent of the principle of non-refoulement when
the mass arrival of displaced persons threatens the internal security of the receiving State and it does not define the strain on its
resources, nor does it define the legal situation of persons in the
event of their mass arrival and, lastly, it does not define the extent
of the international community’s solidarity in receiving these persons and providing durable solutions for their continued stay in
the receiving States (Durieux, 2021, p. 679).
At EU level, the European Commission (hereinafter the Commission) has clarified in its proposal for a Temporary Protection
Directive that temporary protection is not a third form of protection alongside refugee and subsidiary protection status, but a tool
serving the Common European Asylum System, (Proposal for a
Council Directive on minimum standards for giving temporary
protection in the event of mass influx of displaced persons and
on measures promoting a balance of efforts between Member
States in receiving such persons and bearing the consequences
thereof, 2000, p. 3, 1.5 point) and that the temporary protection
mechanism should not prejudge the approval of refugee status
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DIGNITAS n Human Rights Law

(Ibid, p. 27, recital 10). Temporary protection therefore does not
fall within the scope of international protection under Directive
2011/95/EU.
2.2. Temporary Protection Directive
2.2.1. Historical background
The concept of temporary protection has its origins in Australasia, and its understanding and regulation in international law is
mainly based on European practice and European law (Durieux,
2021, p. 686). Temporary protection came into focus in the 1990s
(Durieux, 2021, p. 686) when the war in the countries of the former Yugoslavia, which caused a humanitarian and migration crisis, made it necessary to provide protection to 1.8 million refugees
and displaced persons who had fled Bosnia and Herzegovina for
Europe (A Comprehensive Response to the Humanitarian Crisis
in the former Yugoslavia, 1992, pt. 1). At the time, the United
Nations High Commissioner for Refugees (hereinafter UNHCR)
proposed temporary protection, considering that it would not be
practical to deal with such a large number of displaced persons
from third countries on an individual basis. It also envisaged that
temporary protection should ensure reception, respect for basic
human rights and the return of displaced persons to their countries of origin when the situation in those countries becomes suitable for return (A Comprehensive Response to the Humanitarian
Crisis in the former Yugoslavia, 1992, pt. 5).
The creation of the institution of temporary protection had to
be in line with the standards of protection of the rights of refugees guaranteed by the Geneva Convention and the European
Convention on Human Rights, as the European countries receiving refugees from the former Yugoslavia are all signatories
to both conventions (Kälin, in Durieux, 2021, p. 687). The UNHCR took on the position that the migration crisis of the mass
influx of displaced persons from the former Yugoslavia could
be solved with its help and with the help of European countries
(Ogata stresses need for solutions to refugee plight, 1996, esource. The UN High Commissioner stated that conditions must
be created to allow refugees to return to Bosnia). This position, as Durieux explains, meant that countries could provide a
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DIGNITAS n Temporary protection of displaced persons: the case of refugees from ...

lower level of protection in the form of temporary protection,
because their help would ensure the return of those persons to
their home countries. Temporary protection in the international
community comes into play in crisis situations where, as already
explained, it is assessed that the displaced persons will be able
to return to their country of origin after a reasonable period of
time (Durieux, 2021, p. 688).
During the migration crisis of refugees from the former Yugoslavia, EU Member States had their own national legal frameworks for regulating temporary protection (Beirens et al., 2016,
p. 4). As mass arrivals continued until the late 1990s, especially in
1999 due to the Kosovo crisis, different national regimes led to
secondary movements, with uneven burdens on certain Member
States with large numbers of asylum seekers (Akram, Rempel, in:
Beirens et al., 2016, p. 5). The need for harmonisation of temporary protection status in EU Member States has become apparent
(Muriel Guin, in: Beirens et al., 2016, p. 5). The Commission has
played a key role, having been given the power to harmonise the
migration and asylum policies of EU Member States following the
adoption of the Maastricht Treaty (Durieux, 2021, pp. 688-689).
When the Tampere Conclusions also set the objective of reaching agreement on temporary protection on the basis of solidarity between EU Member States in the event of a mass influx of
displaced persons (Presidency Conclusions, Tampere European
Council, 1999, point 16), the Commission proposed the adoption
of a Directive on Temporary Protection in October 2000, which
was subsequently adopted in July 2001 (Durieux, 2021, p. 689).
The Directive binds all Member States except Denmark (Directive
2001/55/EC, 2001, recital 26).
2.2.2. Selected provisions
The Temporary Protection Directive is the first instrument
adopted within the Common European Asylum System to harmonise EU Member States’ asylum systems (Beirens et al., 2016,
p. 8). The two main purposes of this Directive are to establish
minimum standards for temporary protection in the event of
a mass influx of displaced persons from third countries and to
support the balancing of reception efforts and the consequences of reception between Member States (Directive 2001/55/EC,
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DIGNITAS n Human Rights Law

2001, Article 1). In its proposal for a Temporary Protection Directive, the Commission outlined its objectives: to ensure the
immediate protection and rights of beneficiaries of temporary
protection; to prevent the collapse of national asylum systems
in the event of a mass influx of displaced persons; to clarify the
relationship between temporary protection and the protection
provided for in the Geneva Convention; and to ensure that there
is a balance of efforts and a practical implementation of the
principle of solidarity between Member States in the reception
of beneficiaries of temporary protection (Proposal for a Council
Directive on minimum standards for giving temporary protection in the event of mass influx of displaced persons, 2000, pp.
6-7, point 5.1).
According to Article 2.a of the Temporary Protection Directive,
temporary protection is an exceptional procedure to be triggered
in the event of a mass or imminent arrival of displaced persons
and to provide immediate and temporary protection to these persons, in particular where there is also a risk that, as a result of the
mass arrival, the asylum system will not be able to process the arrival without adverse effects on its effective functioning.
The Directive defines displaced persons as third-country nationals or stateless persons who, as a result of armed conflict, endemic violence, or because they are at high risk or because they
have already been the victims of systematic or generalised human
rights violations, have been forced to leave their country of origin
or have been evacuated, and are unable to return to a safe and durable situation because of the situation in their country of origin
(Directive 2001/55/EC, 2001, Article 2(c)).
Mass arrival is defined as the spontaneous arrival or arrival by
evacuation programme of a large number of displaced persons
from a particular country or a particular geographical area (Directive 2001/55/EC, 2001, Article 2(d)). Mass arrival is the main criterion for activation of temporary protection, which must include
the following elements: (1) the arrival of an extremely large number of persons; (2) the displaced persons come from a particular
third country or geographical area; (3) the displaced persons cannot return to their country of origin; (4) such arrival threatens to
cause adverse effects on the asylum systems of the Member States
(Beirens et al., 2016, p. 38).
The Directive also stipulates that when applying temporary
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DIGNITAS n Temporary protection of displaced persons: the case of refugees from ...

protection, Member States respect human rights and fundamental
freedoms and the principle of non-refoulement, and have the specific right to provide more favourable conditions for beneficiaries
of temporary protection than those laid down in the Temporary
Protection Directive (Directive 2001/55/EC, 2001, Article 3, points
2 and 5). Temporary protection shall be granted, implemented
and terminated after regular consultation with UNHCR and other
relevant international organisations (Directive 2001/55/EC, 2001,
Articla 3, para. 3).
The existence of a mass influx of displaced persons is established by a Council implementing decision adopted by qualified
majority. The Council Decision activates or establishes temporary
protection in all EU Member States for the displaced persons to
whom it applies. The Council adopts the decision on the basis of a
proposal from the Commission. In addition, Member States have
the right to request the Commission to propose that the Council
adopt the decision. The European Parliament is informed of the
adoption of the decision (Directive 2001/55/EC, 2001, Article 5).
Temporary protection lasts for one year, with the possibility of
automatic renewal for up to one more year. Where the grounds
for protection are of a longer duration, the Council, acting on a
proposal from the Commission, shall decide to extend the temporary protection for a further year. Member States shall have
the right to address a request to the Commission to submit to the
Council an extension of the temporary protection. The European
Parliament shall be informed of the Council’s decision (Directive
2001/55/EC, 2001, Article 4).
Temporary protection ends when the maximum duration is
reached or when the Council adopts a decision on a proposal
from the Commission, which also examines any request by Member States to end temporary protection after finding that the situation in the displaced persons’ country of origin has become safe
and durable for their return to that country. The European Parliament is to be informed of the decision (Directive 2001/55/EC,
2001, Article 6).
EU Member States have funding from the European Refugee
Fund to implement the measures set out in the Temporary Protection Directive (Directive 2001/55/EC, 2001, Article 24). They
take in persons eligible for temporary protection on the basis of
mutual solidarity, with an indication of their reception capacity,
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which is then specified in the Council implementing decision activating temporary protection (Directive 2001/55/EC, 2001, Article
25, para. 1).
The Temporary Protection Directive also contains a so-called
solidarity mechanism. Member States ensure that persons who
have not yet arrived on their territory but who meet the conditions for temporary protection have expressed their willingness
to be admitted to their territory. Where the number of displaced
persons exceeds the reception capacity of a Member State, the
Member State concerned is provided with appropriate support
(Directive 2001/55/EC, 2001, Article 25, para. 2 and 3). The Solidarity Mechanism also provides for cooperation between Member States on the relocation of beneficiaries of temporary protection, taking into account their consent to relocation. When
a Member State is overwhelmed, it can send a request for the
transfer of beneficiaries of temporary protection to all Member
States, informing the Commission and the UNHCR, which will
then inform the Member States of their reception capacities to
transfer beneficiaries of temporary protection to their territory.
Once the transfer has taken place, the residence permit and
the obligations arising from the temporary protection status
shall cease in the Member State of departure, which shall be
obliged to provide the new receiving State with information on
the temporary protection status. The obligations arising from
the temporary protection status are then transferred to the new
receiving State (Directive 2001/55/EC, 2001, Article 26).
2.2.3. Advantages and disadvantages of the Temporary
Protection Directive
The Temporary Protection Directive has its advantages and
disadvantages. It has the advantage of a shortened procedure
which provides immediate protection against refoulement, while
avoiding overburdening Member States’ asylum systems. Another
positive aspect of the Temporary Protection Directive is that it allows beneficiaries of temporary protection to apply for asylum at
any time during the period of protection (Directive 2001/55/EC,
2001, Article 17, para. 1).
Furthermore, the Temporary Protection Directive provides
for a comprehensive set of rights for beneficiaries of tempo58

DIGNITAS n Temporary protection of displaced persons: the case of refugees from ...

rary protection, which, while less than that granted to persons
with refugee status, is greater than that granted to applicants
for international protection (Durieux, Hurtwitz, in Durieux,
2021, p. 690). This advantage also proves to be a certain disadvantage since providing such range of rights can be financially
burdensome for certain Member States, which may make temporary protection an unattractive solution (Beirens et al., 2016,
p. 25).
Mass arrival is defined broadly in the Temporary Protection Directive, allowing temporary protection to be activated in different
cases of mass arrivals and in different situations of pressure on
Member States. This means that the grounds for activating temporary protection depend on an assessment of each individual mass
arrival case (Beirens et al., 2016, p. 15). However, the generality
of this definition makes it difficult to apply in practice, as there
are no criteria to determine in advance when there is a large-scale
arrival of displaced persons. This leads to dilemmas and different
understandings on when it is appropriate to activate temporary
protection.
The side effects referred to in Article 2a of the Temporary
Protection Directive and the criteria for determining side effects
should be clarified, given that there are differences between
Member States’ capacities to cope with a mass influx of displaced
persons. The generality of the provisions of the Directive results
in the activation of temporary protection being at the discretion
of EU Member States, making the activation process itself lengthy
and politicised and the likelihood of activation actually taking
place very low (Beirens et al., 2016, pp. 17-19).
The question arises whether it is not a weakness of this Directive that the Commission is the sole initiator of the procedure and
that the Member States do not have the power to propose directly
to the Council the activation of temporary protection (Beirens et
al., 2016, p. 17). The European Parliament does not have a prominent role in the decision-making process. For this reason, and
because of the generality of the definitions of the key concepts,
the procedure of activation of temporary protection itself may
become the subject of political debates in the Council, rather than
the subject of a judgement on whether the conditions for activation of temporary protection are met (Beirens et al., 2016, pp.
20-22).
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DIGNITAS n Human Rights Law

The Temporary Protection Directive is the first and still the
only legally binding instrument that allows for the sharing of
the efforts to admit large numbers of persons between Member States. However, it is precisely voluntary solidarity that has
proved to be the biggest weakness of the Temporary Protection Directive. Indeed, the objective of the Directive to ensure
a balance of efforts between Member States has been found to
be undermined by the absence of clearly defined rules on fair
burden sharing and relocation and by the absence of common
criteria for calculating the reception capacity of each Member
State (Beirens et al., 2016, p. 23). Another thing that complicates
fair burden-sharing is the provision in Article 25(2) of the Directive that beneficiaries of temporary protection may declare their
wish before they arrive in the EU that they wish to be admitted
to the territory of a particular Member State (Directive 2001/55/
EC, 2001, Article 25, para. 2). Although this provision is not in
itself a negative aspect of the Directive, it may be problematic in
practice, as it may lead to a disproportionate number of persons
expressing their willingness to reside in the territory of only
those Member States which provide higher standards of benefits. This is due to the fact that in practice common standards of
temporary protection are not ensured in all EU Member States
(Beirens et al., 2016, p. 24).
These weaknesses are the main reasons why the Temporary
Protection Directive was not activated before 2022. When migration flows put pressure on Member States’ asylum systems
in 2011-2014 due to the arrival of large numbers of people from
Tunisia, Libya and Syria in Europe, the Italian and Maltese governments proposed to activate this mechanism. The response of the
Council (Justice and Home Affairs) at the time was that the criteria
for activation were not met. The Directive was not activated even
in 2015, when around one million displaced persons from Syria
entered the EU illegally (Ciğer, 2022, e-source), which at the time
was considered as a larger influx of asylum seekers at one time
than in the whole period 2001-2014 combined (Beirens et al.,
2016, p. 33). As such an influx put severe pressure on the asylum
systems of Greece and Italy, Council Decision (EU) 2015/1601
was adopted in 2015, ordering the relocation of a number of
refugees from Italy and Greece to other EU Member States. Hungary and Slovakia opposed the decision and brought proceedings
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before the CJEU in the joined cases of Slovakia v. Council and
Hungary v. Council. Recitals 225-227 show that Slovakia pleaded
that activating temporary protection would be a better way to
deal with the migration crisis in Italy and Greece (CJEU Slovakia v. Council and Hungary v. Council, C643/15 and C-647/15,
26.7.2017).
The CJEU agreed with the Council when it took the view that
the temporary protection mechanism would not provide an effective response to the crisis situation in Italy and Greece in the
specific case at hand, since the Temporary Protection Directive
provides that persons are entitled to temporary protection in the
Member State in which they are located, which would not relieve
Italy and Greece of the large number of migrants who have already arrived on their territory. On Slovakia’s argument regarding the decision to grant international protection status by Implementing Decision 2015/1601 instead of temporary protection
status, which confers a lesser range of rights on its beneficiaries,
the CJEU stated that this was a political decision, the appropriateness of which it could not judge (CJEU Slovakia v Council and
Hungary v Council, C643/15 and C-647/15, 26.7.2017, points 256
and 257 of the Explanatory Memorandum).
Based on the EU’s responses to migration crises in the past,
there has been a general consensus among experts that the Temporary Protection Directive has not been applied, mainly due
to political disagreement between Member States. Some experts
consider that the use of temporary protection depends mainly
on political will, as its activation initially requires a proposal from
the Commission and then the approval of a qualified majority
in the Council (Schultz et al., 2022, e-source). Garlick notes that
the behaviour of some Member States during the 2015 migration crisis shows that they were concerned that activating the
Directive would encourage more refugees to come from Syria
(Garlick, 2016, pp. 116-119). Garlick’s opinion is confirmed by a
study carried out on temporary protection. This study states that
some Member States are reluctant to apply temporary protection
because activating this mechanism would be proof that their asylum systems are not functioning. On the other hand, some Member States consider that the activation of temporary protection
is unjust, since it would work to the advantage of those Member
States that are unable to process the increased number of asylum
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applications because they have long ignored the need to reform
their asylum systems. Moreover, the study shows that some Member States find temporary protection an unattractive option because, by introducing it, they would not be able to have sufficient
control over which persons they allow to enter their territory
(Beirens et al., 2016, p. 35).

3. Temporary protection in the case
of refugees from Ukraine
3.1. Russian Federation attack on Ukraine
The invasion of Ukraine by the Russian Federation began on
24 February 2022. Although Russian President Vladimir Putin
initially defiantly declared that it is not an armed conflict but a
»special military operation« (Clark, et. al., 2022, p. 1), the Russian
army’s attacks aimed at occupying cities across Ukraine (The
Russian Invasion of Ukraine, 2022) show the motive for Russia’s
military aggression - the drive to occupy and change the regime
in Ukraine, a former member of the USSR (Clark, et. al., 2022, p.
1). The President of Ukraine, Volodymyr Zelensky, immediately
declared martial law and called for a general mobilisation of
the militarily capable population of Ukraine, while the armed
conflict itself has caused millions of people to flee Ukraine, especially when the Russian army started targeting civilians with
rockets and artillery in its ‘special military operation’. One of
the first attacks on civilians took place in Mariupol, twenty days
into the war, when the Russian army bombed a theatre where
hundreds of people, mostly women, children and the elderly,
were sheltered (The Russian Invasion of Ukraine, 2022).
Such unprovoked attack has been widely condemned by the
international community. The United Nations High Commissioner for Refugees, Filippo Grandi, condemned Russia’s actions
and called for cooperation on the first day of the armed conflict
to provide humanitarian assistance to those fleeing the war and
seeking protection in neighbouring countries. In his statement, he
also called on neighbouring countries to keep their borders open
to refugees from Ukraine and expressed support for all those
who will be able to cope with the arrival of the forcibly displaced
Ukrainian population (Statement on the situation in Ukraine at62

DIGNITAS n Temporary protection of displaced persons: the case of refugees from ...

tributed to UN High Commissioner for Refugees Filippo Grandi,
UNHCR, 2022, e-source).
3.2. The European Union’s response
On 24 February 2022, the European Council held an extraordinary meeting in Brussels and in its conclusions expressed support for Ukraine and strongly condemned the military aggression by the Russian Federation, which it described as a flagrant
violation of international law and the United Nations Charter,
and a threat to European and global stability (European Council Conclusions on unprovoked and unjustified military aggression by Russia against Ukraine, 2022, point 1). The conclusions
also announced the adoption of additional restrictive measures
against Russia and Belarus (European Council Conclusions on
unprovoked and unjustified military aggression by Russia against
Ukraine, 2022, point 5).
3.2.1. Preparation of Implementing Decision 2022/382
In this light, on 2 March 2022, the Commission made a proposal for the adoption of an implementing Decision on the
determination of the existence of a mass influx of displaced
persons from Ukraine with the effect of imposing temporary
protection for the first time since 2001, when the Temporary
Protection Directive was adopted. In its proposal, the Commission predicted that the EU would face a mass influx of displaced
persons from Ukraine, given that more than 650,000 displaced
persons arrived in the EU via Poland, Slovakia, Hungary and
Romania between 24 February and 2 March, and that this number is set to increase. In the light of the situation, it concluded
that activation of temporary protection is an appropriate way to
provide immediate protection to persons from Ukraine and to
enable them to have access to the same rights in all EU Member
States. On the other hand, Commission pointed out that temporary protection is also a way to avoid straining the asylum
systems of Member States, which would undoubtedly be under
extreme pressure due to such a large-scale mass influx (Proposal
for a Council Implementing Decision establishing the existence
of a mass influx of displaced persons from Ukraine within the
meaning of Article 5 of Council Directive 2001/55/EC of 20 July
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2001 and having the effect of introducing temporary protection,
2022, pp. 1-2).
In addition, Ukrainian citizens can enter and stay legally in the
EU for 90 days without a visa. Those Ukrainian nationals who resided in the EU before the outbreak of the war will be able to apply for international protection after the expiry of their period of
legal residence in an EU Member State. In this case, the Commission estimates, temporary protection will further relieve the burden on Member States’ asylum systems to process asylum applications (Proposal for a Council Implementing Decision establishing
the existence of a mass influx of displaced persons from Ukraine
within the meaning of Article 5 of Council Directive 2001/55/EC
of 20 July 2001 and having the effect of introducing temporary
protection, 2022, p. 2). The Commission notes that the right of
citizens of Ukraine to move freely within the EU without a visa allows persons to choose the Member State in which to enjoy their
temporary protection rights and to join their family or friends in
the extensive diasporas that exist across the EU, which will facilitate the balancing of efforts in managing mass arrivals between
Member States. In such cases, the Commission does not rule out
the possibility for these persons to take advantage of the possibility of legal migration. Temporary protection, as explained by
the Commission, will allow Member States to effectively manage
and control the flow of displaced persons from Ukraine, with additional support for those Member States that are overburdened.
To this end, Member States will communicate to each other and
to the Commission, through the Solidarity Platform, their reception capacities and the number of persons enjoying temporary
protection on their territories, as provided for in Article 27 of the
Temporary Protection Directive, with the Commission playing a
coordinating role (Proposal for a Council Implementing Decision
establishing the existence of a mass influx of displaced persons
from Ukraine within the meaning of Article 5 of Council Directive
2001/55/EC of 20 July 2001 and having the effect of introducing
temporary protection, 2022, p. 3).
3.2.2. Adoption of Implementing Decision 2022/382
The Council acted swiftly on the Commission’s proposal and
unanimously adopted Council Implementing Decision (EU)
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2022/382 of 4 March 2022 establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC and having the effect of imposing
temporary protection (Implementing Decision 2022/382), which
entered into force on the day of its publication, i.e. on 4 March
2022 (Council Implementing Decision 2022/382, 2022). This swift
EU response to the humanitarian and migration crisis was praised
by the United Nations High Commissioner, Filippo Grandi, immediately after the activation of the Temporary Protection, and was
considered an appropriate way to provide protection and stability to refugees from Ukraine (Grandi, 2022, e-source).
As mentioned earlier, Ukrainian nationals have the right to move
freely within the EU for 90 days during a 180-day period. This does
not affect their ability to be issued with a residence permit at any
time during that period. Implementing Decision 2022/382 also clarifies that beneficiaries of temporary protection can only enjoy the
rights of temporary protection status in the territory of the Member
State which issued the residence permit (Council Implementing
Decision 2022/382, 2022, seventeenth recital).
Beneficiaries of temporary protection are persons who left
Ukraine on or after 24 February 2022 because of the military invasion by the Russian armed forces. According to Council Implementing Decision 2022/382, these are: (1) Ukrainian nationals who
resided in Ukraine before 24 February 2022 and their close family
members; (2) stateless persons or nationals of third countries other
than Ukraine who enjoyed international protection or equivalent
national protection in Ukraine and their close family members
(Council Implementing Decision 2022/382, 2022, Article 2).
It is further provided that either this Decision or protection
under national law may be applied to third-country nationals and
stateless persons who have proved that they were lawfully residing in Ukraine on the basis of a permanent residence permit before 24 February, if they are unable to return to a safe and durable
situation in their countries of origin (Council Implementing Decision 2022/382, 2022, Article 2, para. 2). If they cannot produce
the relevant documents, Member States must propose another appropriate procedure (Council Implementing Decision 2022/382,
2022, recital 12).
The Commission subsequently clarified that temporary protection does not, in principle, apply to the following categories
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of persons: (1) Ukrainian nationals and stateless persons or nationals of third countries other than Ukraine who have enjoyed
international or equivalent protection in Ukraine, and that have,
before 24 February 2022, been displaced from Ukraine or left
Ukraine before that date for reasons such as work, study, vacation, family or medical visits or for other reasons; (2) stateless persons or third-country nationals, other than nationals of Ukraine,
who can prove that they have, before 24 February 2022, had a
valid permanent residence permit in Ukraine, but who may be
able to return to their country or region of origin in a safe and
durable manner; and (3) stateless persons or third-country nationals other than Ukraine who were temporarily lawfully residing
in Ukraine prior to 24 February 2022 for the purpose of work or
study, both in the event that they are able to return to their country or region of origin, and in the event that they are not able to
return to a safe and durable situation in their country or region
of origin (Commission Communication on operational guidelines
for the implementation of Council Implementing Decision (EU)
2022/382 establishing the existence of a mass influx of displaced
persons from Ukraine within the meaning of Article 5 of Directive
2001/55/EC and having the effect of imposing temporary protection 2022/C 126 I/01, 2022).
Implementing Decision 2022/382 provides that Member States
may extend the protection provided for in that Decision to the
above categories of persons (Implementing Decision 2022/382,
2022, Article 2, paragraph 3). The Decision therefore leaves Member States free to decide whether to grant temporary protection,
while advising them to at least admit such persons to their territory on humanitarian grounds, without requiring them to present
a valid visa or evidence of sufficient means of subsistence or valid
travel documents, in order to ensure their safe passage with a
view to their return to their countries of origin (Implementing
Decision 2022/382, 2022, thirteenth recital).
3.2.3. Reactions of the professional public to the adoption of
Implementing Decision 2022/382
We would also like to add the reaction of some experts who
were surprised by the activation of temporary protection for refugees from Ukraine in the EU, as they considered the Tempo66

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rary Protection Directive to be a dead letter. McAdam estimated
that temporary protection will save millions of people who have
fled Ukraine, while also pointing out that this form of protection
should not be an excuse to grant fewer rights than those guaranteed by the Geneva Convention and the New York Protocol (McAdam, 2022, e-source). Goodwin-Gill believes that the activation
of the Temporary Protection Directive is undoubtedly a positive
response by the EU, revealing that the scale of mass arrivals is not
an obstacle to the provision of protection when Member States
cooperate with each other. He suggests that the reason for the use
of temporary protection is the inevitability of the situation, the immediate need for protection and the fact that the war is so close
to Europe. Although there are uncertainties about finding durable
solutions, he believes that temporary protection is the most appropriate way to comply with the principle of non-refoulement
at this time, given the situation (Goodwin-Gill, 2022, e-source).
Uncertainty about what will happen to persons with temporary
protection if they are unable to return to Ukraine and what the
EU’s approach will be in this case was also highlighted by other
experts. Enríquez considers that temporary protection is an appropriate response to the current situation, but notes that if the
situation in Ukraine does not stabilise after the end of temporary
protection, the integration of refugees from Ukraine who will apply for asylum will be even more challenging for Member States,
whose administrative and financial resources will be strained, and
for the refugees from Ukraine themselves, as it is difficult to find
job and accommodation stability in some Member States (Enríquez, 2022, e-source). In this context, Koo also warns that temporary protection is not a permanent solution and that EU values
and solidarity will be tested if the situation in Ukraine becomes
a long-term situation. Koo further points out that there are differences in the treatment of temporary protection between thirdcountry nationals and citizens of Ukraine (Koo, 2022, e-source),
as it is clear from Implementing Decision 2022/382 that not everyone is eligible for temporary protection unless Member States
themselves decide to extend temporary protection (Council Implementing Decision 2022/382, 2022, Article 2, para. 3).
Experts are trying to find out what is the reason for the EU’s
solidarity with refugees from Ukraine, as in the past the EU has
been strongly criticised precisely for the lack of cooperation be67

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tween EU Member States in dealing with migration crises. Ciğer
assessed that the activation of temporary protection depends on
the political will of the Commission and the Council. This now exists in the case of refugees from Ukraine, because of the rapid and
large-scale displacement of people from a European country as
a result of unjustified Russian aggression (Ciğer, 2022, e-source).
Karageorgiou and Noll argue that the lack of solidarity in past
migration crises shows that the EU is united only when it is politically appropriate to do so, which is why solidarity in the EU as
such does not refer to refugee protection (Karageorgiou, Noll,
2022, e-source). The dilemmas regarding the reasons for solidarity in the mass influx of refugees from Ukraine are best explained
by van Selm’s assesment. She notes that the reason for activating
temporary protection is that the EU had to respond not only to
a humanitarian crisis, but also to Russian aggression, which risks
destabilising Europe and the entire regional security architecture.
The fact that the EU activated the Temporary Protection Directive
in the wake of the war in Ukraine shows that the solidarity of the
EU Member States is demonstrated when they have to be united
for reasons that go beyond the issue of forms of protection for
displaced persons. The second reason van Selm points out is that
Ukraine borders four EU Member States and the rapid and imminent arrival of large numbers of refugees at their borders has
left the EU with virtually no alternative but to activate temporary
protection (Van Selm, 2022, e-source).
3.3. Temporary protection in practice
According to the Commission, it should not be a barrier to entry to the EU if displaced people do not carry travel documents,
as all Member States are obliged to admit them on humanitarian
grounds (Information for people fleeing the war in Ukraine, European Commission, 2022, e-source). All Member States in principle allow the entry of nationals of Ukraine who do not have
travel documents (European Union/Ukraine: EU member states
start implementing Temporary protection directive, Fragomen,
2022, e-source) on the basis of other identity documents such as
an identity card, an expired driving licence or passport or a birth
certificate, if they have applied for temporary protection. In addition, Member States bordering Ukraine allow all displaced per68

DIGNITAS n Temporary protection of displaced persons: the case of refugees from ...

sons from Ukraine to enter on humanitarian grounds, regardless
of whether they are in possession of travel documents (Information for people fleeing the war in Ukraine, European Commission, 2022, e-source). Poland, which faces the highest migration
pressure, in practice allows entry to any person coming from
Ukraine, even if they do not have any documents (Information
for new Arrivals From Ukraine - Arrival to Poland, UNHCR Help
Poland, 2022, e-source). In Hungary all displaced persons from
Ukraine are allowed entry, even without a passport or visa (Information Sheet - Measures in response to the arrival of displaced
people fleeing the war in Ukraine, 2022, p. 20). Slovakia as well
allows entry without a passport or visa (Information Sheet - Measures in response to the arrival of displaced people fleeing the
war in Ukraine, 2022, p. 36). Romania allows entry to all persons
who have come from Ukraine, but if they have no documents to
enter its territory, they must apply for asylum (Information Sheet
- Measures in response to the arrival of displaced people fleeing
the war in Ukraine, 2022, p. 33).
In practice, temporary protection is intended to ensure simplified entry into EU countries by allowing border guards to partially
waive border checks (Ukrajina: Komisija predlaga začasno zaščito
za ljudi, ki bežijo pred vojno v Ukrajini in smernice za mejne kontrole, Evropska komisija, 2022, e-source). Once admitted, the competent authorities of the Member States should inform the person
that he/she is eligible for temporary protection and give him/her
guidance on how to obtain this status (Informacije za osebe, ki
bežijo pred vojno v Ukrajini, Evropska komisija, 2022, e-source).
The European Council on Refugees and Exiles ( hereinafter
ECRE) fact sheet, which provides an overview of the application
of temporary protection in the Member States for the period up to
June 2022, shows that in practice, persons have to lodge an application with the designated competent authority of each Member
State in which they wish to benefit from temporary protection. If
a person is eligible for temporary protection, after a certain period of time he/she obtains a residence permit and, on that basis,
the rights deriving from the temporary protection status (Information Sheet - Measures in response to the arrival of displaced
people fleeing the war in Ukraine, 2022), which is undoubtedly a
faster process compared to the international protection application procedure, which takes, according to Halpin, approximately
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nine to fifteen months (Halpin, 2022, p. 12).
When extending temporary protection to categories of persons
other than those listed in Article 2(1) of Implementing Decision
2022/382, Member States are competent to regulate their own
rules in this area. This discretionary power leads to significant differences in the Member States’ arrangements in this area (Information for new Arrivals From Ukraine - Arrival to Poland, UNHCR
Help Poland, 2022, e-source). For example, almost all Member
States, except Austria, Estonia, Greece and Hungary, grant the
right to temporary protection to stateless persons or third-country
nationals who were permanently resident in Ukraine before 24
February and are unable to return to a safe and durable situation in their countries of origin (Information Sheet - Measures
in response to the arrival of displaced people fleeing the war
in Ukraine, 2022, pp. 7, 14, 16 and 20). The Netherlands grants
temporary protection only to third-country nationals, not to stateless persons (Information Sheet - Measures in response to the arrival of displaced people fleeing the war in Ukraine, 2022, p. 29).
France and Finland offer temporary protection to immediate family members of stateless persons or third-country nationals who
were permanently resident in Ukraine before 24 February and
who are unable to return to a safe and durable situation in their
countries of origin (Information Sheet - Measures in response to
the arrival of displaced people fleeing the war in Ukraine, 2022,
pp. 15 and 17). In Slovenia, Luxembourg and Portugal, all stateless persons or third-country nationals who are unable to return
to a safe and durable situation in their countries of origin, even
if they have been temporarily residing in Ukraine, are entitled to
temporary protection (The EU Temporary Protection Directive
in practice, 2022, p. 2). Finland has the same arrangement as the
states mentioned in the previous sentence (Information Sheet
- Measures in response to the arrival of displaced people fleeing the war in Ukraine, 2022, p.17). In Bulgaria, all stateless persons or third-country nationals who have expressed a wish to be
granted temporary protection before 31 March 2022 are entitled
to temporary protection. Germany also grants temporary protection to third-country nationals who are unable to return to their
countries of origin and who have been legally residing on the territory of Ukraine for durable reasons (e.g. to study or work), even
if they do not have a permanent residence permit (Information
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DIGNITAS n Temporary protection of displaced persons: the case of refugees from ...

Sheet - Measures in response to the arrival of displaced people
fleeing the war in Ukraine, 2022, p. 4).
Austria and Germany also grant temporary protection status to
those citizens of Ukraine who, before 24 February, resided in the
territory of those Member States on the basis of a residence permit which is about to expire or which they cannot renew for any
reason if they cannot return to Ukraine (Information Sheet - Measures in response to the arrival of displaced people fleeing the war
in Ukraine, 2022, pp. 7 and 18). Spain shall also grant temporary
protection status to those citizens of Ukraine who were legally
residing on its territory before 24 February (Information Sheet
- Measures in response to the arrival of displaced people fleeing
the war in Ukraine, 2022, p. 40). The Czech Republic grants temporary protection to citizens of Ukraine who were temporarily
residing on its territory without a visa or on the basis of a temporary visa before 24 February (Information Sheet - Measures
in response to the arrival of displaced people fleeing the war in
Ukraine, 2022, p. 12). Finland, the Netherlands and Ireland grant
temporary protection to citizens of Ukraine if they were already
residing on their territories before 24 February, albeit under different conditions. France grants temporary protection to Ukrainians who were temporarily residing in Europe before 24 February
and who cannot safely return to Ukraine. Ukrainian nationals
who fled just before 24 February are entitled to temporary protection in Finland, Croatia, Luxembourg and Germany. Belgium
grants them temporary protection if they left Ukraine after 24 November 2021, Sweden after 30 October 2021 and the Netherlands
if they fled Ukraine after 27 November 2021 (Information Sheet
- Measures in response to the arrival of displaced people fleeing
the war in Ukraine, 2022, pp. 5-6).
Based on the ECRE Information sheet, it is worth pointing out
that in regards to the rights granted to displaced persons who
are beneficiaries of temporary protection, all EU countries offer access to housing, social protection, education for children
and young people, the labour market and health care, to varying degrees. All Member States have introduced the possibility
of free public transport, reception centres, border counselling,
information centres, psychological support and mental distress
call centres. Furthermore, all Member States provide assistance
in finding private accommodation, including a social allowance.
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Persons with temporary protection are entitled to pocket money
in all Member States. The amount and duration of the cash assistance depends on the individual Member State and the personal
circumstances of the person with temporary protection. Member
States provide assistance in finding employment and, in principle,
all Member States have stated that they are committed to supporting the employment of persons with temporary protection and to
providing them with vocational training. Most Member States provide free courses in their official languages (Information Sheet
- Measures in response to the arrival of displaced people fleeing
the war in Ukraine, 2022).
The EU supports Member States’ solidarity with Ukraine in
several ways. It provides financial assistance to Member States for
measures to be taken in the context of the implementation of temporary protection rights, and it also provides financial assistance
to Ukraine and Moldova. The Commission provides operational
guidance for the efficient, rapid and safe crossing of borders by
displaced persons, while EU agencies ensure the presence of
their technical assistance staff at Member States’ borders. In addition, through its Solidarity Platform, the EU ensures the exchange
of information on Member States’ reception capacities and coordinates their cooperation (Ukraine: EU steps up solidarity with
those fleeing war, European Commission, 2022, e-source). At the
beginning of the migration crisis, six Member States committed to
accept refugees from Ukraine via Moldova in March 2022 through
coordination and participation in this platform. The first transfer
was made on 19 March 2022 from Moldova to Austria (Ukraine
situation flash update #5, 2022, pp. 4-5). The relocation of Ukrainian refugees from Moldova to the territory of the Member States
has continued uninterrupted. Finally, in September 2022, Austria,
France, Germany, Ireland, Italy, Latvia, the Netherlands, Norway,
Portugal, Spain and Switzerland transferred Ukrainian refugees to
their territory from Moldova (Ukraine situation flash update #28,
2022, p. 5).
Seeing as there is still no end in sight to the war in Ukraine,
the Council adopted a Council Implementing Decision (EU)
2024/1836 of 25 June 2024 extending temporary protection as
introduced by Implementing Decision 2022/382. In the Implementing decision 2024/1836 the Council states that the current
situation in Ukraine does not allow the return of displaced per72

DIGNITAS n Temporary protection of displaced persons: the case of refugees from ...

sons to Ukraine in safe and durable conditions. Moreover, the
Council noted that the number of Ukrainian refugees in the EU is
not likely to decrease anytime soon. With this in mind, the temporary protection for Ukrainian refugees has been extended until 4
March 2026. (Council Implementing decision (EU) 2024/1836 of
25 June 2024 extending temporary protection as introduced by
Implementing Decision 2022/382).

4. Conclusion
The main focus of this article is the temporary protection
mechanism and its application in practice. The international community was positively surprised when the EU activated the Temporary Protection Directive for the first time in 21 years after its
adoption, when Russia’s aggression against Ukraine triggered the
largest mass influx of asylum seekers in recent history. It is particularly commendable that the response of the EU institutions
and Member States was extremely swift. The Temporary Protection Directive allows Member States to dispense with complex
administrative procedures for entry, which is allowed to all refugees from Ukraine on humanitarian grounds, and for the granting
of residence permits, which then give rise to rights for beneficiaries of temporary protection that are the same in all Member
States. For citizens of Ukraine and persons who have benefited
from international protection in Ukraine, as well as third-country
nationals or stateless persons who have resided permanently in
Ukraine, the only condition for obtaining temporary protection is
that they prove, on the basis of any identification document, that
they have fled from Ukraine after 24 February 2022.
Although Member States’ approaches are harmonised as regards entry and the rights they grant, we believe that temporary
protection should be regulated by a Regulation. The case of protection of refugees from Ukraine has shown that regulation by
a Directive cannot create common standards in all EU Member
States. Standards in Member States differ drastically with regard to
the granting of temporary protection to other categories of thirdcountry nationals and stateless persons, as well as to persons who
fled Ukraine before 24 February. It could be argued that these
differences are not too much of a problem in the given situation, given that the categories of persons eligible for temporary
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protection under Implementing Decision 2022/382 are entitled
to temporary protection in all or most Member States. Moreover,
these persons may benefit from the possibility of legal migration
or international protection if they left Ukraine before 24 February. If third-country nationals or stateless persons who were not
permanently resident in Ukraine or who left Ukraine before 24
February are not eligible for temporary protection in a particular
Member State, they are allowed to enter Member States to apply
for international protection, but only if they are unable to return
to their countries of origin. The flexibility and options available,
although not the same standards of benefits in all Member States,
nevertheless allow for more protection options and for the distribution of displaced persons on the territory of EU Member
States, which in particular relieves the burden on Member States
bordering Ukraine. Setting aside concerns about what would be
an ideal approach, it can be concluded that such an approach
provides immediate protection to all displaced persons from the
risk of war in Ukraine.
According to experts, based on past EU responses to migration
crises, the activation of temporary protection for refugees from
Ukraine has shown that the reason for the non-application of the
Temporary Protection Directive is due to the political unwillingness of Member States. We do not condone or argue that temporary protection has not been needed in the past or that there
are not possible double standards in some Member States with
regard to refugees. Temporary protection or voluntary solidarity
in the form of relocation were certainly necessary when one million refugees from Syria arrived in Europe in 2015, with Greece
facing thousands of refugees per day. Some EU Member States,
such as Hungary, which has closed its borders to Syrian refugees
(Reid, 2022, e-source), have flagrantly violated the principles of
international humanitarian law. The lack of solidarity in this situation with the burdened Member States and with the refugees
really shows that the EU needs a compulsory solidarity mechanism. The EU’s inadequate response to the migration crises has
confirmed the need to reform the legal regime of the European
Common Asylum System.
The activation of temporary protection requires political will
and solidarity among Member States. This situation needs to be
understood more broadly in the case of the massive influx of
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DIGNITAS n Temporary protection of displaced persons: the case of refugees from ...

refugees from Ukraine. First of all, it should be stressed that such
a large-scale influx left no room for any doubt that it was a massive influx of displaced persons, which would certainly lead to
the collapse of the Member States’ asylum systems and endanger
their internal security, while at the same time, as a consequence,
would make it impossible to provide adequate protection to the
displaced persons. This influx has been rapid, sudden, abrupt and
directly on the borders of Poland, Hungary, Romania and Slovakia. These Member States had no choice but to accept the refugees. Moreover, there is another reason for introducing temporary protection - the hope that, with the help of the EU and other
international organisations, the need to protect refugees will be
temporary. The launch of the temporary protection mechanism
is one of the EU’s responses to the unjustified armed conflict
in Ukraine, and providing adequate protection to refugees from
Ukraine is one of the ways for liberal democracy to maintain stability in Europe and the world, to show solidarity and support for
Ukraine, and to prevent Russia from possibly taking advantage of
the EU’s moment of weakness. Such a rush directly to the borders
of EU Member States did not leave too much room and time to
deliberate on whether or not it was appropriate to activate the
Temporary Protection Directive, but was the only instrument that
could be used to contain such an influx, while at the same time
protecting the refugees from Ukraine and creating a united front
in the face of the threat to European and world peace.

LITERATURE AND SOURCES
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High Commissioner for Refugees (UNHCR), HCR/IMFY/1992/2, 24 July 1992.
Beirens, H., et al. (2016). Study on the Temporary Protection Directive: Final report. Luxembourg:
Publications Office of the European Union.
Ciğer, M. I. 5 Reasons Why: Understanding the reasons behind the activation of the Temporary
Protection Directive in 2022. Odysseus network, 7.3.2022. ULR: https://eumigrationlawblog.eu/5-reasons-why-understanding-the-reasons-behind-the-activation-of-the-temporary-protection-directive-in-2022/, 12. 9. 2024.
CJEU Slovakia v Council and Hungary v Council, C643/15 and C-647/15, Court of Justice of the European Union, 26 July 2017, ECLI:EU:C:2017:618.
Clark, M., Barros, G., Stepanenko, K. (2022). Russia-Ukraine Warning Update: Initial Russian Offensive
Campaign Assessment. Washington D.C.: Institute for the Study of War.
Commission Communication on operational guidelines for the implementation of Council Implementing Decision (EU) 2022/382 establishing the existence of a mass influx of displaced persons

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DIGNITAS n Human Rights Law
from Ukraine within the meaning of Article 5 of Directive 2001/55/EC and having the effect of
imposing temporary protection 2022/C 126 I/01, 2022. Official Journal of the European Union, C
126, 21.3.2022, pp. 1-16.
Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of
efforts between Member States in receiving such persons and bearing the consequences thereof
(hereinafter referred to as Directive 2001/55/EC or the Temporary Protection Directive). Official
Journal of the European Union, L 212, 7.8.2001, p. 12-23.
Council Implementing Decision (EU) 2022/382 of 4 March 2022 establishing the existence of a mass
influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/
EC, and having the effect of introducing temporary protection. Official Journal of the European
Union, L 71, 4. 3. 2022, p. 1-6.
Council Implementing Decision (EU) 2024/1836 of 25 June 2024 extending temporary protection as
introduced by Implementing Decision (EU) 2022/382. Official Journal of the European Union, L,
2024/1836, 3. 7. 2024.
Durieux, J.-F. (2021). Temporary Protection and Temporary Refuge. In: The Oxford Handbook of
International Refugee Law / Costello, C., Forster, M., McAdam, J. (eds.). Oxford: Oxford University
Press, pp. 678-694.
Enríquez, C. The welcome given to Ukrainian refugees: some challenges and uncertainties. Elcano,
18.4.2022. URL: https://www.realinstitutoelcano.org/en/analyses/the-welcome-given-to-ukrainian-refugees-some-challenges-and-uncertainties/, 12. 9. 2024.
European Council conclusions on unprovoked and unjustified military aggression by Russia against
Ukraine. European Council, EUCO 18/22, Brussels, 24 February 2022.
European Union/Ukraine: EU member states start implementing Temporary protection directive.
Fragomen, 7.9.2022. URL: https://www.fragomen.com/insights/european-unionukraine-eu-member-states-start-implementing-temporary-protection-directive.html, 12. 9. 2024.
Garlick, M. (2016). Solidarity Under Strain. Solidarity and Fair Sharing of the Responsibility for the
International Protection of Refugees in the European Union (Doctoral dissertation). Nijmegen:
Radboud University, Faculty of Law.
Goodwin-Gill, G. 5 Questions: Guy S Goodwin-Gill on the response to Ukraine’s refugees. Andrew
& Renata Kaldor Centre for International Refugee Law, 21.3.2022. URL: https://www.unsw.edu.au/
search/unsw?kw=5%20Questions:%20Guy%20S%20Goodwin-Gill%20on%20the%20response%20
to%20Ukraine%27s%20refugees, 12. 9. 2024.
Grandi, F. News Comment: UNHCR’s Grandi praises Europe’s welcome for Refugees fleeing
Ukraine. UNHCR, 8. 3. 2022. URL: https://www.unhcr.org/news/press/2022/3/62278f8e4/
news-comment-unhcrs-grandi-praises-europes-welcome-refugees-f leeing-ukraine.html#_
ga=2.173188580.678162676.1662335755-2061032538.1650725291&_gac=1.47642069.1661212494.
Cj0KCQjw0oyYBhDGARIsAMZEuMtDVWmG3wqUyPg6F7doOnV69rP8-3T_5SXWZXOC1X_
m6q2aRNXyZe4aAnw4EALw_wcB, 12. 9. 2024.
Guidelines on Temporary Protection or Stay Arrangements (2014) Geneva: UN High Commissioner
for Refugees (UNHCR).
Halpin, R. (2022). The activation of the Temporary Protection Directive in response to the crisis in
Ukraine. Dublin: Houses of the Oireachtas.
Informacije za osebe, ki bežijo pred vojno v Ukrajini. Evropska komisija. 2022. URL: https://eu-solidarity-ukraine.ec.europa.eu/information-people-fleeing-war-ukraine_sl, 12. 9. 2024.
Information for new Arrivals From Ukraine - Arrival to Poland. UNHCR Help Poland. URL: https://
help.unhcr.org/poland/information-for-new-arrivals-from-ukraine/, 12. 9. 2024.
Information Sheet - Measures in response to the arrival of displaced people fleeing the war in Ukraine
(2022). European Council on Refugees and Exiles (ECRE). Brussels: European Council on Refugees and Exiles.
Karageorgiou, E., Noll, G. Receiving Ukrainian Refugees in the EU: A Case of Solidarity? Asile, 7.6.2022.
URL: https://www.asileproject.eu/receiving-ukrainian-refugees-in-the-eu-a-case-of-solidarity/, 12.
9. 2024.
Koo, J. Protecting Ukrainians fleeing to the EU ... but for how long? European law blog, 10.3.2022.
URL: https://www.europeanlawblog.eu/pub/protecting-ukrainians-fleeing-to-the-eu-but-for-how-long/release/1, 12. 9. 2024.
Lambert, H. (2021). Customary Refugee Law. In: The Oxford Handbook of International Refugee Law
/ Costello, C., Forster, M., McAdam, J. (eds.). Oxford: Oxford University Press, pp. 240-257.
McAdam, J. Europe triggers »temporary protection« for Ukraine war refugees. Theinterpreter, 4.3.2022.
URL: https://www.lowyinstitute.org/the-interpreter/europe-triggers-temporary-protection-ukraine-war-refugees, 12. 9. 2024.

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Note on International Protection. Executive Committee of the High Commissioner’s Programme.
General Assembly, United Nations A/AC.96/830, 7.9.1994.
Ogata stresses need for solutions to refugee plight. UN High Commissioner for Refugees (UNHCR),
7.10.1996. URL: https://www.unhcr.org/news/press/1996/10/3ae6b8184c/ogata-stresses-need-solutions-refugee-plight.html, 12. 9. 2024.
Presidency Conclusions. Tampere European Council, 15-16 October 1999, 16 October 1999.
Proposal for a Council Directive on minimum standards for giving temporary protection in the event
of mass influx of displaced persons and on measures promoting a balance of efforts between
Member States in receiving such persons and bearing the consequences thereof. European Commission, COM(2000) 303 final; 2000/0127 (CNS). Brussels, 24.5.2000.
Proposal for a Council Implementing Decision establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Council Directive 2001/55/EC of
20 July 2001 and having the effect of introducing temporary protection. European Commission,
COM(2022) 91 final. Brussels, 2.3.2022.
Reid, K. Syrian refugee crisis: Facts, FAQs, and how to help. World Vision, 12 July 2022. URL: https://
www.worldvision.org/refugees-news-stories/syrian-refugee-crisis-facts, 12. 9. 2024.
Schultz, J., et al. Collective Protection as a short-term solution: European responses to the protection
needs of refugees from the war in Ukraine. Odysseus Network, 7.3.2022. URL: https://eumigrationlawblog.eu/collective-protection-as-a-short-term-solution-european-responses-to-the-protection-needs-of-refugees-from-the-war-in-ukraine/, 12. 9. 2024.
Scissa, C. On the State’s duty to protect anyone fleeing Ukraine (and other conflict zones). EUblog.
eu, 22.3.2022. URL: https://eublog.eu/articolo/34962/On-the-State%27s-duty-to-protect-anyone-fleeing-Ukraine-(and-other-conflict-zones)/Scissa, 12. 9. 2024.
Statement on the situation in Ukraine attributed to UN High Commissioner for Refugees Filippo
Grandi. UNHCR, 24 FEBRUARY 2022. URL: https://www.unhcr.org/news/press/2022/2/621770524/
statement-situation-ukraine-attributed-un-high-commissioner-refugees-filippo.html, 12. 9. 2024.
The EU Temporary Protection Directive in practice (2022) Geneva: UN High Commissioner for Refugees (UNHCR), Regional Bureau for Europe.
The Russian invasion of Ukraine (2022). In: Encyclopaedia Britannica / Gaur, A., et al. (eds.). Illinois:
Encyclopaedia Britannica, Inc.
Ukraine refugee situation. Operational data portal, 13.9.2022. URL: https://data.unhcr.org/en/situations/ukraine, 12. 9. 2024.
Ukraine situation flash update #28. (2022). Geneva: UN High Commissioner for Refugees (UNHCR),
Regional Bureau for Europe.
Ukraine situation flash update #5. (2022). Geneva: UN High Commissioner for Refugees (UNHCR),
Regional Bureau for Europe.
Ukraine: EU steps up solidarity with those fleeing war. European Commission, 8.3.2022. URL: https://
ec.europa.eu/commission/presscorner/detail/en/ip_22_1610, 12. 9. 2024.
Ukrajina: Komisija predlaga začasno zaščito za ljudi, ki bežijo pred vojno v Ukrajini, in smernice za
mejne kontrole. Evropska komisija, 2. 3. 2022. URL: https://ec.europa.eu/commission/presscorner/
detail/sl/ip_22_1469, 12. 9. 2024.
URL: https://www.britannica.com/place/Ukraine/The-Russian-invasion-of-Ukraine, 12. 9. 2024.
van Selm, J. Temporary Protection for Ukrainians: learning the lessons of the 1990s? Asile, 11.4.2022.
URL: https://www.asileproject.eu/temporary-protection-for-ukrainians-learning-the-lessons-of-the-1990s/, 12. 9. 2024.

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The Right to Life During the Covid-19 Epidemic in Slovenian Society

The Right to Life During the Covid-19
Epidemic in Slovenian Society
Tjaša Pucelj*

Abstract
The outbreak of the COVID-19 epidemic led to a state of
emergency and put countries around the world to the test. In this
regard, Slovenia was no exception. As a response to the rapid
spread of infection, countries introduced containment measures
to prevent the spread of the new virus as quickly and effectively
as possible, to prevent the collapse of healthcare systems and,
above all, to save as many lives as possible. Human rights were
at the heart of all this, especially the right to life, as it was the
most at risk. The measures adopted by countries during the state
of emergency had to have a relevant legal basis and had to be
proportionate and limited in duration, as any interference negatively affects human rights and fundamental freedoms relative to
its duration. This article focuses on the situation in Slovenia and
the right to life during the epidemic, as well as presenting statutory options for the adoption of containment measures. The final
chapter focuses on three of the most high-profile decisions of the
Slovenian Constitutional Court, which had been adopted during
the COVID-19 epidemic.
Keywords: epidemic, COVID-19, right to life, Slovenian Constitutional Court, proportionality, principle of legality

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Pravica do življenja v času epidemije
v slovenski družbi
Povzetek
Izbruh epidemije koronavirusa je prinesel izredno stanje in
države po svetu postavil pred velik preizkus. Slovenija pri tem ni
bila nikakršna izjema. Na hitro širjenje okužb so se države odzvale
z uvedbo zajezitvenih ukrepov, katerih namen je bil čim hitreje in
čim učinkoviteje preprečiti širjenje novega virusa, preprečiti razpad zdravstvenih sistemov, predvsem pa rešiti čim več življenj. V
središču so bile človekove pravice, še posebej pravica do življenja,
saj je bila ta najbolj ogrožena. Ukrepi, ki so jih v času izrednega
stanja sprejele države, so morali imeti ustrezno pravno podlago,
poleg tega pa so morali biti sorazmerni in časovno omejeni, saj
se negativni učinki kateregakoli posega v človekove pravice in
temeljne svoboščine stopnjujejo glede na čas trajanja. Članek
se osredotoča na situacijo v Sloveniji in na pravico do življenja
v času epidemije. Predstavljene so tudi zakonske možnosti, ki
omogočajo sprejemanje zajezitvenih ukrepov. Zadnje poglavje
se osredotoča na tri odmevnejše odločitve Ustavnega sodišča Republike Slovenije, ki so bile sprejete v času epidemije koronavirusa.
Ključne besede: epidemija, koronavirus, pravica do življenja,
Ustavno sodišče Republike Slovenije, sorazmernost, načelo legalitete

1. Introduction
Life and health are the most important values of a human being. In the modern world, these values are protected by laws
(Czechowicz, 2021), with the right to life being among the highest or most protected constitutional rights and fundamental freedoms hierarchically. Its special position also arises from the fact
that without its effective protection, the enjoyment of other rights
and fundamental freedoms is not possible. The Constitution of
the Republic of Slovenia commands an equal valuation of the
life of all individuals and opposes the conception of a human
being as an object. A human being is the subject of rights and
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fundamental freedoms and must not be reduced to the level of
an object or thing (Ivanc, 2011a).
However, diseases have been threatening the lives and health
of people for centuries and, consequently, their existence as
well. The high mortality rate is mainly due to a lack of knowledge
about numerous new diseases and poor early detection systems
(Czechowicz, 2021). Precisely because of the uncertainty about
what the new virus will bring, the COVID-19 epidemic has deeply
impacted our lives and society over the past four years. It has
caused many hardships and led to various problems. It has shown
us that COVID-19 is not only a medical problem but has also challenged our legislation. (Zorčič, 2021).
By declaring an epidemic, the state faced the challenge of finding appropriate measures to contain the spread of COVID-19,
while also having to deal with the lack of adherence to the most
basic preventive measures and the low level of vaccination coverage among the adult population (Letnar Černič, 2021). Similarly,
the courts faced a challenging task regarding measures to limit
COVID-19, as they had to balance between the right to life, human dignity, and health protection on one hand and the right to
freedom and security, protection of personal data, freedom of
assembly, equality before the law, prohibition of discrimination,
consumer protection, and freedom of economic initiative on the
other (Jerak, 2021).
The aim of this article is to examine the legal legislation and
the legal basis for the state to take measures, as well as the decisions of the Constitutional Court of the Republic of Slovenia, in
order to determine how the right to life was protected in the Slovenian society at the time of the epidemic.

2. Right to Life
Human rights can be seen as a fundamental global agreement
on rights and freedoms. They apply to every human being and
reach shared values, morals, and principles.
The right to life is one of the most fundamental human rights.
It is the right that guarantees every individual the right to existence, security, and dignity. It is based on a universal belief that
every human life is inviolable and worthy of respect. It holds a
special position primarily because, without its effective protec81

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tion, the enjoyment of other rights and fundamental freedoms is
not possible (Ivanc, 2019a).
The right to life is protected in both Slovenian and international legal acts, including the Universal Declaration of Human
Rights, the International Covenant on Civil and Political Rights,
the European Convention on Human Rights, and the Charter
of Fundamental Rights of the European Union. All these documents aim to protect the fundamental rights of every individual
regardless of their social, economic, or political background (Ivanc, 2019b).
The right to life encompasses multiple aspects. Primarily, it
represents a right of negative status, as it ensures protection
against arbitrary deprivation of life. This means that no individual,
organisation, or state has the right to arbitrarily take away someone’s life, excluding exceptional cases. Additionally, it includes
ensuring safety and protection against violence. States and institutions have a responsibility to take measures to prevent violence,
crimes, and conflicts that could jeopardise people’s lives. This
includes establishing an effective legal system that punishes those
who violate the right to life (Equality and human rights commission, 2021).
The right to life also demands granting decent living conditions for each individual. This includes access to food, water,
healthcare, housing, and other basic goods necessary for survival
and dignified life. States and other institutions are obliged to create conditions that enable people to live a worthy life. However,
the right to life does not only encompass physical security and
material goods but also respect for human dignity, equality, and
freedom. Every individual has the right to equal treatment before
the law, freedom of expression, religious freedom, and privacy.
Therefore, the right to life is closely linked to other fundamental
human rights that ensure the full realisation and development of
the individual (Ivanc, 2019b).
Despite the classification of the right to life as an absolute right,
interference with it is permitted, but only under the most severe
conditions, by the proportionality test, when necessary to protect
a hierarchically equivalent right (Ivanc, 2019b).
The COVID-19 pandemic has made the right to life particularly
important worldwide, as millions of lives have been lost and the
impact is still felt today. During this period, life and health were
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at the forefront, but the constitutional values of coexistence, mutual respect, human dignity, freedom, and solidarity were also
under pressure as a result of the measures taken to protect and
safeguard them (Letnar Černič, 2022).

3. Legal Regulation of the Right to Life
The importance of the right is evident from the fact that effective protection of human life has been one of the central demands
of international humanitarian law since its inception. Today, the
provision protecting the inviolability of human life and prohibiting the death penalty is well established both in the international
and Slovenian legal systems.
3.1. Regulation in Slovenian Legal System
In the Slovenian legal system, the right to life is regulated by
Article 17 of the Constitution of the Republic of Slovenia and is
classified among the fundamental human rights. In the case of
an epidemic, the right to life is safeguarded through the right to
healthcare, which is also regulated in the Constitution, as well as
in the Communicable Diseases Act, the Patients’ Rights Act, the
Health Services Act and the Health Care and Health Insurance
Act. Additionally, we must not forget about the Criminal Code,
which includes criminal offences related to endangering life due
to communicable diseases.
3.2.1. Constitution of the Republic of Slovenia
Article 17 of the Constitution of the Republic of Slovenia
guarantees the right to inviolability of human life. This right is
classified among the constitutionally most strongly protected
rights and fundamental freedoms (Ivanc, 2011a). However, it
holds a special place among these rights and freedoms. Its special position arises from the fact that without its effective protection, the enjoyment of other human rights and fundamental
freedoms is not possible (Ivanc, 2019a). The content of Article
17 clearly implies the requirement for a positive valuation of
human life since the right to life is an inherent right of every
human being, which is not transferable and cannot be waived
(Ivanc, 2011a).
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The permissibility of interventions or limitations of the right to
life must be interpreted extremely restrictively, and it is generally
allowed only in cases in which its protection conflicts with the
protection of another individual’s life. Limitations on the right are
permitted by the provisions of the Constitution of the Republic of
Slovenia only while considering the principle of proportionality,
and any interference must be absolutely necessary (Ivanc, 2011a).
This means that the limitation of the right must be necessary to
achieve a significant objective and must be proportionate to that
objective.
The right to life is closely associated with the right to healthcare, as defined in Article 51 of the Constitution of the Republic
of Slovenia. In situations in which the exercise or provision of
the right to healthcare is threatened, consequently endangering
the right to life, which includes situations such as the COVID-19
epidemic, the Constitution of the Republic of Slovenia allows
or permits the possibility for the law, through the principle of
proportionality, to limit the enjoyment of the right to freedom
of movement (Letnar Černič, 2019) and the right to assembly
and association in order to prevent the spread of communicable diseases. While these rights are not absolute, interference
with them is only possible in specifically defined cases (Vatovec,
2019).
3.1.2. Communicable Diseases Act
The Communicable Diseases Act safeguards the right to life in
connection with Article 51 of the Constitution of the Republic of
Slovenia, which defines the right to health care (Communicable
Diseases Act, 1995). The law comes to the forefront, especially in
situations with a high prevalence of communicable diseases. Such
a situation arose during the COVID-19 epidemic.
Article 18 defines isolation, Article 19 defines quarantine, Articles 20 and 21 define treatment in cases of infections where
the omission of treatment would endanger the health of other
people or cause the spread of communicable diseases and Articles 22 through 25 cover mandatory vaccination (Communicable
Diseases Act, 1995).
One of the special measures is defined by Article 37, which stipulates that during a severe epidemic of a communicable disease,
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the minister responsible for public health may order healthcare
workers and collaborators to work under special conditions and
limit their right to strike. They may also allocate certain premises,
equipment, medicines, and transportation means for the needs of
healthcare activities and assign specific tasks to both natural and
legal persons engaged in healthcare activities. (Communicable
Diseases Act, 1995).
In recent years, the most significant change occurred in Article
39, to which Articles 39.a and 39.b were added. This change was
the result of the decision U-I-79/20 of the Constitutional Court of
Slovenia, dated May 13, 2021, which will be discussed further in
this article. In this decision, the Constitutional Court found that
the second and third points of the first paragraph of Article 39 of
the Communicable Diseases Act were in conflict with the second
paragraph of Article 32 and the third paragraph of Article 42 of
the Constitution of the Republic of Slovenia (Constitutional Court
of Republic of Slovenia, 2021a).
The purpose of the changes was to limit the Government of
the Republic of Slovenia from excessively infringing on the rights
of individuals during times when an epidemic is declared to prevent the spread of a dangerous disease.
3.1.3. Patients’ Rights Act
The Patients’ Rights Act adds quality to the existing healthcare
system and places patients in a more favourable position compared to healthcare service providers (Brulc, 2008).
Article 6 defines the right of access to healthcare and the provision of preventive services. In this context, preventive services
represent a high standard of the healthcare system. Together
with the right of access to healthcare services, as defined in Article 51 of the Constitution of the Republic of Slovenia, which
is particularly important during epidemics for protecting the
right to life, these are typical declaratory or programmatic rights
(Brulc, 2008). Furthermore, we can even say that the right to access healthcare does not actually differ from the right to healthcare recognised and defined in the Constitution of the Republic
of Slovenia.

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3.1.4. Health Care and Health Insurance Act
The Health Care and Health Insurance Act, in the first paragraph of Article 2, stipulates that everyone, meaning every person with compulsory medical insurance or other person who
asserts rights from compulsory health insurance, has the right to
the highest possible level of health and, at the same time, has an
obligation to take care of their health. The first paragraph also
specifies that no one may endanger the health of others. The second and third paragraphs further establish that everyone has the
right to healthcare and the duty to contribute to its realisation
(Health Care and Health Insurance Act, 1992).
3.1.5. Health Services Act
The Health Services Act regulates the content and provision of
healthcare services, public healthcare services, as well as the association of healthcare organisations and healthcare workers into
chambers and associations (Health Services Act, 1992).
Article 22 defines the scope of public health activities. Furthermore, the first paragraph of Article 23 states that the National Institute of Public Health is responsible for carrying out tasks in the
field of public health. Its tasks are defined by Article 23a (Health
Services Act, 1992).
In safeguarding the right to life during an epidemic, tasks that
primarily involve monitoring communicable diseases, including
healthcare-associated infections (Health Services Act, 1992).
3.1.6. Criminal Code
For the protection of the constitutionally guaranteed right to
life, especially during an epidemic, Article 177 of the Criminal
Code is particularly important, as it criminalises the act of transmitting or spreading communicable diseases (Criminal Code,
2008). Although this concerns an extremely important good, this
criminal offence appears very rarely in judicial practice.
Certainly, the intentional spreading of communicable diseases
is not only criminalised in Article 177 but also in the criminal offence of causing minor bodily harm (Article 122), causing serious
bodily harm (Article 123), or causing grievous bodily harm (Article 124). Additionally, for the protection of the right to life, Arti86

The Right to Life During the Covid-19 Epidemic in Slovenian Society

cle 178 is also important, which addresses the failure to provide
medical assistance (Criminal Code, 2008).
We must also not forget to mention Article 314, which criminalises causing general danger and indirectly protects the right to
life as well (Criminal Code, 2008).
3.2. Regulation in International Legal Order
Standards of international legal protection of the right to life
are defined in the Universal Declaration of Human Rights, the
International Covenant on Civil and Political Rights, the European Convention on Human Rights, the Charter of Fundamental
Rights of the European Union, the American Convention on
Human Rights and the African Charter on Human and Peoples’
Rights.
3.2.1. Universal Declaration of Human Rights
The right to life is defined in Article 3. The right to health or
healthcare is not specifically addressed as an independent right in
the declaration; however, certain aspects related to the health or
well-being of individuals are highlighted. In the first paragraph of
Article 25, it is stipulated that everyone has the right to a standard
of living adequate for their health and well-being and that of their
family (United Nations, 1948).
3.2.2. International Covenant On Civil and Political Rights
The right to life is recognised and regulated by Article 6, which
stipulates that every individual has the right to life, which must be
protected by law, and any arbitrary deprivation of life is prohibited. In countries where the death penalty is still permitted, it may
only be imposed for the most serious crimes, by a final judgment.
When the deprivation of life constitutes the crime of genocide, it
is understood that contracting states cannot evade any obligation
to prevent and punish the crime of genocide (United Nations
(General Assembly), 1996).
The Covenant does not contain a specific provision explicitly
recognising the right to health. However, Article 7 defines an individual’s right to physical, mental, and moral integrity (United
Nations (General Assembly), 1996).
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3.2.3. European Convention on Human Rights
The right to life is defined in Article 2 of the ECHR, which
states that everyone’s right to life shall be protected by law and
that no one shall be deprived of their life intentionally except in
the execution of a sentence of a court following conviction for a
crime for which this penalty is provided by law (Council of Europe, 1950).
The provision abolishing the death penalty was subsequently
introduced by Protocol No. 6, which entered into force on March
1, 1985, and later amended by Protocol No. 11 (Gogala, 2015).
The right to healthcare is not explicitly included as an independent right in the ECHR. However, the ECHR has ruled in cases
related to the right to life (Article 2), the prohibition of torture
(Article 3), the right to liberty and security (Article 5), and the
right to respect for private and family life (Article 8) that the violation of the right to healthcare can be considered a violation of
other human rights if an individual suffers torture or inhuman or
degrading treatment due to a lack of health care (Ivanc, 2011b).
3.2.4. Charter of Fundamental Rights of the European Union
The right to life in the Charter is defined in Article 2, which
states that everyone has the right to respect for their physical and
mental integrity and that no one shall be condemned to the death
penalty or executed (European Union, 2010).
The Charter also defines health protection in Article 35, which
grants everyone the right to preventive health care and medical
treatment under the conditions established by national laws and
practices (European Union, 2010).
Additionally, it is important to note that health protection is
also covered in the primary law treaties, with particular emphasis
on the extensive provisions of Article 168 of the Treaty on the
Functioning of the European Union (Terstenjak, 2020).
3.2.5. American Convention on Human Rights
The right to life is defined in Article 4, stating that every individual has the right to have their life respected, and this right shall
be protected by law from the moment of conception onwards
(Organization of American States, 1969).
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The Convention does not regulate the right to health or healthcare.
3.2.6. African Charter on Human and Peoples’ Rights
The right to life is defined in Article 4, which stipulates that
human life is inviolable and that every individual has the right
to respect for life and integrity. It also states that the right to life
must not be arbitrarily taken away from anyone (African Union,
African Charter on Human and Peoples’ Rights, 1981). Additionally, the Protocol on the Rights of Women in Africa was later
adopted as an adjunct to the charter, which, in Article 4, further
regulates the right to life, integrity, and security (African Union,
2003).
Both the African Charter on Human and Peoples’ Rights and
the Protocol on the Rights of Women in Africa include the right
to health.
The right to life is thoroughly regulated in both Slovenian and
international legal systems, as it is a right essential for the realization of other human rights and fundamental freedoms. It is
important that states respect and protect the right to life without
any distinction or discrimination and take measures to punish
violations.
In the connection between the right to life and the right to
health or healthcare, discrepancies can be observed between
Slovenian and international legal systems. The right to health is
not established as an independent right in all international documents (e.g., the ICCPR, the ECHR). However, this right is indirectly
included in these documents through provisions that protect the
life and physical integrity of individuals. By ensuring these protections, states are obliged to provide appropriate healthcare and
safeguard health.
The right to life and the right to health are internationally recognized human rights that states are obligated to respect and
protect. The right to life is a fundamental right essential for the
realization of other rights, while the right to health involves ensuring adequate healthcare and safeguarding individuals’ health.
However, since these rights are not absolute, limitations are possible but only under certain circumstances, and such limitations
must comply with international legal standards.
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4. Course of the Covid-19 Epidemic
and Measures Taken in Slovenia
Of the external factors that can influence the situation in a
country, an epidemic or pandemic are the most dangerous, as
communicable diseases spread rapidly and do not recognise national borders. The problem also lies in the fact that an epidemic
of a communicable disease affects not only the health situation of
an individual country but also its political circumstances, as well
as its economic and social conditions, with the impact depending
on the overall economic development, democratic traditions, and
the rule of law (Zajc, 2022).
Due to the rapid spread of the COVID-19 infection, most
European countries declared an epidemic as a special form of
emergency in the spring of 2020. As the situation rapidly deteriorated across Europe, with a sharp increase in the number of
deaths, governments responded to the emerging circumstances
by introducing measures aimed at containing the transmission
of infections and safeguarding the health and lives of people.
These measures, more or less, restricted the human rights and
fundamental freedoms of citizens and other residents (Flander,
2021).
The outbreak of COVID-19 caught European countries off
guard despite warnings from experts for some time. Slovenia was
no exception in this regard. As mentioned earlier, the COVID-19
epidemic affected not only health but also economic and social
conditions. Particularly affected was the balance of power between the executive and parliamentary branches of government
(Flander, 2021).

5. Legal Basis of Adopted Measures
5.1. Limitation of Rights Due to the State’s Positive Obligations
The right to life is one of the rights and freedoms that represent a fundamental condition for the existence and realisation
of all other rights and freedoms. These are rights that have an
erga omnes effect, meaning they apply to anyone. These rights
have a negative status, as they are rights where the state or any
other entity must not interfere. Exceptions only apply when
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interference is permissible for state security, criminal proceedings, or preventing the spread of communicable diseases, as
was the case during the COVID-19 epidemic. Furthermore, these
rights also have a positive status, meaning that states have a
duty of active engagement to protect individual rights. (Kovač,
2022).
The relationship between security and freedom entails a balance between two human rights. In the context of combating the
COVID-19 pandemic, it primarily concerned the need to adopt
measures whereby the state had to protect the lives and health of
people while simultaneously encroaching on some other constitutionally protected rights of individuals. Thus, in the event of an
epidemic, the state is obliged to adequately safeguard the health
and lives of people. Article 5 of the Constitution of the Republic
of Slovenia stipulates that the state must protect human rights and
fundamental freedoms. The obligations of the state are greater,
and the protected value or right in the hierarchy of human rights
is higher. In the case of an epidemic seriously threatening the
health and consequently the lives of people, the values that the
state must safeguard are the right to life, the right to health care,
and the right to physical and mental integrity. Therefore, it involves a balancing act between safeguarding the health and lives
of people during a deadly disease on the one hand and restrictions on movement on the other, with these limitations being
temporary during the peak period of the epidemic (Velkavrh,
2020).
If we take the main distinction between negative and positive obligations that the state has as a measure of whether the
right to life requires action or omission from the state, it is clear
that in the case of the COVID-19 pandemic, we are talking about
positive obligations that the state had. It was expected from the
state and will be expected in similar situations in the future to
actively protect the constitutionally guaranteed good of human
health and life in relation to third parties who pose a risk due
to the transmission of the virus. Furthermore, the state, in such
situations, has an operational obligation to ensure access to lifesaving healthcare services while also taking measures to prevent
the spread of communicable diseases that endanger lives (Kos,
2022).

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5.2. Limitation of Rights Due to Declaration of State
of Emergency
In Article 16 of the Constitution, the state is granted discretionary power to temporarily suspend and limit certain human rights
and fundamental freedoms in exceptional situations. This article
specifies that human rights and fundamental freedoms may be
limited or even suspended for the duration of a state of war or
emergency (Turk, 2020).
Furthermore, the second paragraph of Article 16 stipulates that
despite the provision of the first paragraph of Article 16, no revocation or limitation of rights from Articles 17, 18, 21, 27, 28, 29,
and 41 of the Constitution is allowed, as any such restriction or
revocation would constitute an attack on the value system upon
which human rights and fundamental freedoms are based (Kos,
2022).
It is important to mention Article 92 of the Constitution, which
states that a state of emergency is declared when the existence of
the state is endangered due to a significant and widespread threat,
although the Constitution does not define what exactly constitutes a threat (Constitution of the Republic of Slovenia, 1991).
Typically, in foreign legal systems and legal doctrine, this concept
is interpreted to include various natural or human-made phenomena. Natural phenomena may include earthquakes, floods, epidemics, such as the situation with COVID-19, etc., while humanmade phenomena may include wars, economic crises, extensive
migrations, etc. However, the actual existence of extraordinary
circumstances does not necessarily imply that we are already in a
state of emergency in a normative sense (Žgur, 2020). Therefore,
according to the Constitution, a formal declaration is required,
which is detailed in Articles 92 and 108 of the Constitution (Constitution of the Republic of Slovenia, 1991).
5.3. Restricting Rights During the Covid-19 Epidemic
Since a state of emergency was not declared in Slovenia during the COVID-19 epidemic, the legal basis for the adoption of
measures was provided by the Communicable Diseases Act. It
is also important to mention Articles 32 and 42 of the Constitution of the Republic of Slovenia, which allow for the possibility
of restricting the right to freedom of movement and the right to
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assembly and association in situations where the provision of
healthcare is endangered, consequently jeopardising the right to
life (Ivanc, 2011c).
During the COVID-19 epidemic, the Government of the Republic of Slovenia conducted its intensive legislative activity by
Article 39 of the Communicable Diseases Act, which was in force
at that time in the following form:
‘When measures prescribed by this Act are insufficient to prevent the spread of certain communicable diseases in the Republic
of Slovenia, the Government of the Republic of Slovenia may also
order the following measures:
1. Establish conditions for travel to countries where there is a
risk of infection with a dangerous communicable disease and for
entry from those countries;
2. Prohibit or restrict the movement of the population is infected or directly threatened areas;
3. Prohibit gatherings of people in schools, cinemas, public establishments, and other public places until the danger of
spreading the communicable disease ceases;
4. Restrict or prohibit the movement of certain types of goods
and products.
The Government of the Republic of Slovenia must immediately inform the National Assembly of the Republic of Slovenia
and the public about the measures from the previous paragraph.’
It is important to note that the content of Article 39 changed
with Article 7 of the Act Determining the Intervention Measures
to Contain the COVID-19 Epidemic and Mitigate its Consequences
for Citizens and the Economy (Act Amending the Communicable
Diseases Act, 2020). Prior to this change, the introductory clause
referred to the minister responsible for health, and the second
paragraph stipulated that the minister responsible for health must
immediately inform the Government of the Republic of Slovenia,
the National Assembly of the Republic of Slovenia, and the public
about the measures outlined in the first paragraph (Act Determining the Intervention Measures to Contain the COVID-19 Epidemic and Mitigate its Consequences for Citizens and the Economy,
2020)
This was found to be unconstitutional, as the Constitutional
Court of Slovenia, in decision U-I-79/20 dated May 13, 2021,
which will be further analysed later, determined that the second
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and third points of the first paragraph of Article 39 of the Communicable Diseases Act were inconsistent with the Constitution
of the Republic of Slovenia due to a violation of the principle
of legality (Constitutional Court of Republic of Slovenia, 2021a).
Subsequently, in decision U-I-155/20 dated October 7, 2021, the
Court found the inconsistency of the fourth point of the first
paragraph of Article 39 of the Communicable Diseases Act for
the same reason (Constitutional Court of Republic of Slovenia,
2021b).
To understand why the Constitutional Court reached such conclusions, we need to comprehend how the principle of legality
is regulated in the Slovenian legal system and what the consequent relationship is between laws and subordinate regulations,
including ordinances, which was well presented in Terzić’s article, which is summarised below.
The law enacted by the National Assembly of the Republic
of Slovenia is the only one that can originally introduce and
regulate the rights and obligations of legal entities, provided
that these rights and obligations are not already determined in
the Constitution of the Republic of Slovenia. In this context, the
term ‘originally’ means that rights and obligations can also be
regulated by subordinate regulations issued by the Government
of the Republic of Slovenia, but only based on the authorisation
in the law. Regulations or ordinances issued by the Government
of the Republic of Slovenia are considered delegated acts and
must be based on or derived from an act. This principle, known
as the principle of legality, is found in Article 153 of the Constitution. The principle of legality is also found in Article 120 of
the Constitution, whose second paragraph specifies that administrative authorities perform their tasks independently, within
the framework, and based on the Constitution and laws (Terzić,
2022).
In accordance with this, we can say that the relationship between a law and an ordinance is a relationship of authorisation, as
the law authorises, while the ordinance regulates the details that
change so rapidly that the legislator cannot timely address them
through legislation (Terzić, 2022).
Although the ordinances issued by the Government of the Republic of Slovenia during the COVID-19 epidemic regulated a
significant part of our lives and encroached upon many consti94

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tutional rights, there would be nothing wrong if the ordinances
were in line with the law, and the law with the Constitution of
the Republic of Slovenia. Unfortunately, this was not the case, as
confirmed by the Constitutional Court of the Republic of Slovenia
with decision U-I-79/20 dated May 13, 2021, and decision U-I155/20 dated October 7, 2021 (Terzić, 2022).
In the decision U-I-79/20 dated May 13, the Constitutional
Court found that, by reason of the incompatibility of points 2
and 3 of the first paragraph of Article 39 of the Communicable
Diseases Act with the second paragraph of Article 32 and the
third paragraph of Article 42 of the Constitution of the Republic
of Slovenia, five government ordinances were also found to be inconsistent with the Constitution (Constitutional Court of Republic
of Slovenia, 2021a).
In the decision U-I-155/20 dated October 7, 2021, the Constitutional Court found that due to the inconsistency of point 4 of
Article 39 of the Communicable Diseases Act with Articles 49 and
74 of the Constitution, another ordinance was found to be inconsistent with the Constitution (Constitutional Court of Republic of
Slovenia, 2021b).
It is important to emphasise as constitutional Judge Dr. Šugman
Štubbs did in her concurring opinion regarding decision no.
U-I-79/20, dated 13 May 2021, joined by Judge Dr Rok Čeferin,
wrote that decision U-I-79/20, dated May 13, 2021, and decision
U-I-155/20, dated October 7, 2021, do not provide an answer to
the question of whether the challenged ordinances were urgent,
necessary, and proportionate. A positive answer to these questions could only be obtained if it was demonstrated that the law
from which the ordinances derive their existence gives the latter a
sufficiently clear, substantively determinate, and thus predictable
substantive basis (Šugman Stubbs, 2021a).
5.4. Response to Adopted Measures
The fact is that the COVID-19 epidemic has strongly affected
not only Slovenia but also other countries across Europe and the
world, as the number of deaths in all countries has been significant. Although countries, including Slovenia, initially sought to
limit the spread of the COVID-19 epidemic by closing international, regional, and municipal borders, minimising interference with
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human dignity and freedom as much as possible, unfortunately, it
did not go without tightening measures, which also intruded into
people’s private lives (Letnar Černič, 2022).
However, responses across Europe varied from country to
country despite comparable restrictive measures. It can be said
that in Slovenia, the responses were not handled optimally. Additionally, the majority of the population had already eased their
adherence to preventive measures long before their official lifting. Even the high mortality rate did not bring people together;
instead, it created new conflicts or fuelled existing ones regarding
constitutional values. Consequently, a significant societal division
began in the country, leading to growing tensions in the socioeconomic and political spheres and widespread resistance to restrictive and preventive measures, including vaccination. It is difficult to assess whether this was influenced by historical factors,
opposition to the government at the time, or different interpretations of human rights, especially dignity and freedom. However,
it is clear that the epidemic has shown us that we must not take
values in our society for granted, as their existence depends not
only on how the state understands and protects them but also on
society itself (Letnar Černič, 2022).

6. Constitutional Court Decisions
During the COVID-19 epidemic, life was largely regulated by
subordinate regulations adopted by the Government of the Republic of Slovenia since March 2020, as the legislator, through
the Communicable Diseases Act, delegated the fight against communicable diseases to the executive branch of government. This
is generally appropriate due to the need for rapid and constant
responses to new evolving circumstances. However, entirely different questions arise regarding whether the legal basis granting
the Government of the Republic of Slovenia the authority to issue
ordinances was clear, specific, and sufficient by the principles of
legality and whether the measures adopted were proportionate
or unduly encroached upon human rights and fundamental freedoms. It is worth mentioning that the Constitutional Court has
repeatedly emphasised in its decisions that the state authorities
faced a difficult task in adopting measures to contain the spread
of COVID-19 infections due to a high degree of uncertainty, par96

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ticularly in the early stages of the virus, when it was scientifically
and medically unexplored (Nerad, 2021).
6.1. Decision of the Constitutional Court Regarding the
Prohibition of Movement Outside the Municipality Area
of Temporary or Permanent Residence
The Constitutional Court reviewed the consistency of two ordinances adopted by the Government in order to contain and manage the risk of the COVID-19 epidemic, namely the Ordinance
on the Temporary General Prohibition of Movement and Gatherings in Public Places and Areas in the Republic of Slovenia and
the Prohibition of Movement outside the Municipality of One’s
Permanent or Temporary Residence and the Ordinance on the
Temporary General Prohibition of Movement and Gatherings in
Public Places and Areas in the Republic of Slovenia and the Prohibition of Movement outside the Municipality of One’s Permanent or Temporary Residence (Constitutional Court of Republic
of Slovenia, 2020).
The Constitutional Court conducted the review based on the
test of legitimacy, which entails an assessment of whether the
legislature pursued a constitutionally admissible objective, and on
the basis of the strict test of proportionality, which comprises an
assessment of whether the interference was appropriate, necessary, and proportionate in the narrower sense. The Constitutional
Court assessed that by restricting movement to the municipality
of one’s residence, the Government pursued a constitutionally
admissible objective, i.e., containment of the spread of the contagious disease and thus the protection of human health and life,
which this disease puts at risk (Constitutional Court of Republic
of Slovenia, 2020).
In the decision U-I-83/20 dated August 27, 2020, there is much
summarizing of the positions of the Government of the Republic
of Slovenia and little constitutional legal reasoning. The Constitutional Court, otherwise, carried out the review despite the fact
that during the proceedings before the Constitutional Court, the
ordinances ceased to be in force as it assessed that the petition
raised a particularly important presidential constitutional question of a systemic nature on which the Constitutional Court had
not yet had the opportunity to take a position and which could
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also arise in connection with possible future acts of the same nature and with comparable subject matter.
Nevertheless, the judges were not unified in their decision.
The lack of consensus within the Constitutional Court is reflected
in the split between judges who supported the decision and those
who disagreed with it. Despite this divergence of opinions, the
Constitutional Court ultimately decided, by majority, decided to
directly assess the content, namely, the proportionality of two ordinances issued by the Government of the Republic of Slovenia
regarding the prohibition of movement between municipalities.
In doing so, it deliberately left open the question of whether Article 39 of the Communicable Diseases Act, on which the contested
ordinances were based, was in line with the principle of legality.
As it later turned out, this decision involved a methodologically flawed approach, which the Constitutional Court acknowledged in decision U-I-79/20 dated May 13, 2021, where it found
that the ordinances were not in accordance with the Constitution because they were based on the unconstitutional Article 39
of the Communicable Diseases Act. The substantive assessment
of subordinate acts that affect human rights and fundamental
freedoms can only be carried out by the Constitutional Court
after resolving the question of the legality of such an act. If there
is doubt about the constitutionality of the law upon which the
subordinate act relies concerning compliance with the principle
of legality, the Constitutional Court is obliged to examine the
constitutionality of the law. Only if the law is legally valid can the
assessment proceed to determine whether the subordinate act
remains within the framework of the law, and then with an assessment of its content in the specific case. If the Constitutional
Court finds that the law violates the principle of legality, a substantive assessment of the subordinate act is not possible, as an
illegal subordinate act has no legal effects. Therefore, the Constitutional Court should never avoid the legal norm on which the
subordinate act is based.
6.1.1. Legal Experts’ Responses to The Decision
Constitutional Judge Dr Mežnar, in her concurring opinion
regarding decision no. U-I-79/20, dated 13 May 2021, wrote that
in the decision U-I-83/20, dated August 27, 2020, the Constituti98

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onal Court completely disregarded the significance and role of
the legal basis, namely Article 39, and thereby ignored a series of
constitutional legal axioms:
÷ regulations, ordinances, and other subordinate acts issued by
executive bodies are not allowed to contradict the Constitution of
the Republic of Slovenia or directly stem from it;
÷ subordinate acts are subordinate to laws, meaning they must
derive from the provisions of existing laws. Executive bodies cannot adopt subordinate acts that exceed or contradict existing laws;
÷ the Constitution of the Republic of Slovenia empowers the
legislator to regulate laws governing human rights and fundamental freedoms. Executive bodies do not have the appropriate
authority to independently regulate human rights through the use
of subordinate acts.
÷ laws must clearly define the frameworks and methods for
regulating human rights and fundamental freedoms. Otherwise,
such laws are unconstitutional and illegal.
÷ if subordinate acts are based on unconstitutional laws, they
are unconstitutional or illegal. Such subordinate acts have no legal
effect and must not be considered or executed (Mežnar, 2021).
Judge Mežnar also pointed out that, accordingly, it is difficult
to assert that the content of a subordinate act, which is illegal because it is based on an unconstitutional law, is consistent with the
constitutional principle of proportionality (Mežnar, 2021).
Dr Nerad, in his article wrote that it is important to emphasise that if a measure by the Government of the Republic of
Slovenia is unconstitutional because it lacks a clear and specific
legal basis or exceeds the legal framework, and therefore does
not comply with the principle of legality, it does not necessarily
mean that it is also excessive or disproportionate and therefore
unconstitutional in terms of encroaching on human rights and
fundamental freedoms. Conversely, a completely lawful subordinate measure may be impermissible due to its excessiveness
or disproportionality in terms of encroaching on human rights
and fundamental freedoms. In this case, questions regarding
the constitutional compatibility of the legislative framework that
envisages certain measures can be raised in terms of proportionality (Nerad, 2021).
At this juncture, it is appropriate to note that even the European Court of Human Rights in Strasbourg could not evade deci99

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sions regarding movement restrictions imposed by the COVID-19
pandemic, about which Skubic wrote in his article. In the case of
Terhes v. Romania, the court addressed an issue, namely whether
the fact that almost the entire population was subjected to strict
movement restrictions could be considered a deprivation of liberty within the meaning of the European Convention on Human
Rights (Skubic, 2021).
The European Court of Human Rights underscored in its assessment the need to initially determine whether the complainant
is indeed subjected to measures that can be defined as a deprivation of liberty within the meaning of the first paragraph of Article
5 of the European Convention on Human Rights or merely as a restriction on freedom of movement within the meaning of Article
2, Protocol No. 4 to the European Convention on Human Rights.
The difference between deprivation and restriction of individual
freedom lies primarily in the degree or intensity of the measure
rather than solely in its content (Skubic, 2021).
In the case of Terhes v. Romania, the European Court of Human Rights had to consider that the disputed restrictive measure
was applied within the framework of the state of emergency declared in Romania for health reasons. It noted that there was no
doubt that the COVID-19 pandemic has serious consequences not
only for the health but also for the society, the economy and the
functioning of the state (Skubic, 2021).
In light of this, the ECHR determined that the complainant
was not subjected to an individualised restriction of movement,
as it constituted a measure of general applicability. This measure,
enacted based on legislation promulgated by various authorities
in Romania, applied uniformly to the entire population (Skubic,
2021).
6.2. D
 ecision of the Constitutional Court Regarding
the Unconstitutionality and Illegality of the
Communicable Diseases Act
The Constitutional Court reviewed, upon a petition submitted by multiple petitioners, points 2 and 3 of the first paragraph of Article 39 of the Communicable Diseases Act, which
authorises the Government to ban or restrict the movement
and gathering of people to prevent the introduction or spread
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of a communicable disease in the state. It also reviewed several ordinances that were adopted by the Government based
on the mentioned statutory provisions from April through October 2020 in order to contain and manage the threat of the
COVID-19 epidemic (Constitutional Court of Republic of Slovenia, 2021a).
The Constitutional Court decided that the challenged statutory regulation does not fulfil constitutional requirements, as
it allows the Government to choose, at its discretion, the types,
scope, and duration of restrictions, which means that points 2
and 3 of the first paragraph of Article 39 of the Communicable
Diseases Act are inconsistent with the second paragraph of Article 32 and the third paragraph of Article 42 of the Constitution.
The challenged ordinances adopted by the Government were
also inconsistent with the two mentioned provisions of the Constitution, namely, in the part where they were adopted based on
an unconstitutional statutory regulation. The established unconstitutionality requires that the challenged statutory regulation be
abrogated. Since the rights to health and life are fundamental
constitutional values, the abrogation of the challenged statutory
regulation could lead to an even worse unconstitutional situation than in the event the unconstitutional regulation remains
in force for a certain period. Therefore, the Constitutional Court
merely established that the challenged statutory provisions are
inconsistent with the Constitution and that the National Assembly shall remedy this inconsistency within two months following
the publication of this decision in the Official Gazette of the Republic of Slovenia (Constitutional Court of Republic of Slovenia,
2021a).
Although the Constitutional Court issued several important
substantive decisions concerning restrictive measures, decision
U-I-79/20 dated May 13, 2021 was the one that crucially defined
the constitutional way of dealing with COVID-19 epidemic in Slovenia, which would subsequently predominantly revolve around
the principle of legality.
In decision U-I-79/20 dated May 13, 2021, the Constitutional
Court determined, namely, that points 2 and 3 of the first paragraph of Article 39 of the Communicable Diseases Act are inconsistent with the Constitution due to violations of the principle
of legality , since, in the Constitutional Court’s assessment, the
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Communicable Diseases Act does not provide sufficient, clear,
and specific substantive basis for the adoption of government
ordinances that restrict the right to movement and assembly. Nevertheless, even though the Constitutional Court did not annul the
provisions, we can assert that it unequivocally established the unconstitutionality of points 2 and 3 of the first paragraph of Article
39 of the Communicable Diseases Act.
It is important to note that in decision U-I-79/20, dated May 13,
2021, the Constitutional Court focused solely on the principle of
legality without addressing the substantive adequacy, necessity,
and proportionality of the measures prescribed by the challenged
ordinances.
6.2.1. Legal Experts’ Responses to The Decision
In addition to the aforementioned provisions of the Communicable Diseases Act, the Constitutional Court also ruled on the
constitutionality of five ordinances issued by the government,
which pertained to prohibitions and restrictions on movement
and assembly in public places and areas, as well as the prohibition of crossing between municipalities. Regarding these ordinances, which had all ceased to be in force during the proceedings, the Constitutional Court found them to be inconsistent
with the Constitution, specifically in the part where they were
adopted based on points 2 and 3 of the first paragraph of Article
39 of the Communicable Diseases Act. It is important to emphasise that the Constitutional Court did not conduct a separate
and independent substantive assessment of the constitutionality and legality of the ordinances; rather, their unconstitutionality followed from the finding of unconstitutionality of the law
that served as the legal basis for their adoption (Nerad, 2021),
which is the subject of Dr Nerad’s article, the content of which is
presented below. In decision U-I-79/20, dated May 13, 2021, the
Constitutional Court focused solely on the principle of legality,
which is the subject of Dr Nerad’s article, the content of which is
presented below. It is important to note that the legality of subordinate regulations is not merely a technical constitutional law
issue; rather, it constitutes a significant substantive concern, as
legality is crucial for the rule of law and the principle of separation of powers (Nerad, 2021).
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Following this, we can say that legality and substantive adequacy, necessity, and proportionality constitute two distinct constitutional considerations, where the issue of legality precedes
that of excessiveness. Therefore, only if the measure in our case
has a legal basis should its permissibility be assessed in terms of
proportionate encroachment on human rights and fundamental
freedoms (Nerad, 2021).
As previously mentioned, the decision U-I-79/20, dated May
13, 2021, was declaratory, as the Constitutional Court merely established the unconstitutionality of points 2 and 3 of Article 39 of
the Communicable Diseases Act without annulling them. However, such a decision is not without legal consequences. The Constitutional Court Act provides for determination in two cases:
1. if a law or other regulation is unconstitutional or unlawful
because it fails to regulate an issue that it should regulate (unconstitutional regulatory gap) or
2. if a law or other regulation is unconstitutional or unlawful
because it regulates an issue in a manner that prevents its annulment or correction.
In this regard, the court has interpreted the second option
from the outset in a manner that allows for the preservation of
the law if there are obstacles to its annulment due to linguistic or
nomotechnical reasons and if annulment would result in an even
more unconstitutional state (Nerad, 2021).
This is somewhat similar to annulment with a suspensive effect, but there are several significant differences between these
types of decisions (Nerad, 2021).
A declaratory decision declaring a law unconstitutional does
not automatically invalidate the law itself. Similarly, the expiration
of the deadline set for rectifying the identified unconstitutionality
does not affect the formal validity of the law. The legislature has
a specific timeframe within which it must respond to the identified unconstitutionality and appropriately amend the law. Furthermore, the determination of the unconstitutionality of a law
itself does not affect the validity of subordinate regulations, nor
do they become unlawful as a result. The deadline for rectifying
the identified unconstitutionality is intended for the legislature,
which must respond within it and amend the law accordingly.
Failure by the legislature to take action or comply with the deadline constitutes a serious violation of the principles of the rule of
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law and the principle of separation of powers, as established in
the jurisprudence of the Constitutional Court (Nerad, 2021).
Accordingly, the unconstitutionality in the decision U-I-79/20
dated May 13, 2021, does not imply that points 2 and 3 of Article
39 of the Communicable Diseases Act were annulled or ceased
to be valid. In this regard, the Constitutional Court conducted a
balancing of various options regarding the legality of measures
during the COVID-19 epidemic, emphasising the protection of
important constitutional values such as life and health, which justified the declaratory decision (Nerad, 2021).
The choice of a declaratory decision is also sensible because
the Communicable Diseases Act deals with a legal vacuum, which,
according to the first paragraph of Article 48 of the Constitutional
Court Act, is the first reason justifying the determination of unconstitutionality. The problem lies not in what points 2 and 3 of
Article 39 of the Communicable Diseases Act stipulate but rather
in the detailed content that is missing from the law. What is lacking in the law cannot be annulled (Nerad, 2021).
The essence of the declaratory decision in this matter is, therefore, that the unconstitutionality did not cause the content existing in the law, albeit insufficient and indeterminate, to cease to be
valid. Therefore, the Communicable Diseases Act will continue to
be valid in its incomplete content until legislative intervention by
the National Assembly (Nerad, 2021).
On the other hand, Jurič claimed in his article that in the decision U-I-79/20 of May 13, 2021, the legislator was asked to establish a certain legal room for manoeuvre, without clear scientific
guidelines. Namely, the Constitutional Court added a supplementary condition to the law. This condition requires that when granting legal powers to the executive authority to issue regulations,
the law must define »sufficiently precisely« the permissible methods or types, scope and conditions for restricting freedom of
movement and the right to assemble and assemble (Jurič, 2023).
The introduced imperative presents two significant flaws. First,
it requires the legislator to adhere to a commitment that presupposes prior knowledge of entirely undetermined circumstances,
effectively making the legality of executive acts contingent on this
foresight. Second, it renders the issuance of by-laws redundant, as
the full consideration of relevant factual bases is already embedded in the statutory provisions (Jurič, 2023).
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Nevertheless, Jurič emphasized that Slovenian constitutional
jurisprudence clearly establishes a direct correlation between the
severity of the intrusion into human rights and the degree of diligence required from the legislator in prescribing statutory guidelines for the issuance of restrictive regulations. Thus, the more
significant the imposition by means of an executive act, the more
precisely defined the statutory provisions must be to confer the
authority for its issuance (Jurič, 2023).
6.3. Decision of the Constitutional Court Regarding the
Unconstitutionality and Illegality of Implementing the
Condition of Recovery and Vaccination in the State
Administration
By decision U-I-210/21, dated 29 November 2021 the Constitutional Court decided on a request for constitutionality and legality
of Article 10.a of the Ordinance on the Manners of Complying
with the Recovered-Vaccinated-Tested Requirement to Contain
the Spread of Infection with the SARS-CoV-2 Virus, which determined that to perform tasks at their workplace on the premises
of their employer or the premises of another body of the state
administration employees in the bodies of the state administration must fulfil the recovered-vaccinated requirement, with the alternative possibility of fulfilling the tested requirement no longer
applying to them (Constitutional Court of Republic of Slovenia,
2021c).
The Constitutional Court emphasised that the determination of
the recovered-vaccinated requirement entailed a condition under
labour law to perform work in the state administration, and thus,
the situation was essentially comparable to situations wherein
a vaccination is determined as a condition under labour law to
perform various types of work and professions. The legal basis
for regulating such vaccination is Article 22, in conjunction with
Article 25 of the Communicable Diseases Act, which regulates different types of mandatory vaccinations. However, this law does
not prescribe vaccination against COVID-19 as a condition for
performing the work of a certain group or groups of employees
who are exposed to communicable diseases while performing
their work and persons liable to transmit an infection to other
persons while working. Therefore, it decided that Article 10.a of
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the ordinance was inconsistent with the second paragraph of Article 120 of the Constitution (Constitutional Court of Republic of
Slovenia, 2021c).
In Slovenia, there are no issues with mandatory vaccination.
The measure of mandatory vaccination is permissible under Slovenian law and the Constitutional Court has always generally supported it. Even though mandatory vaccination constitutes an interference with the individual’s right, the Constitutional Court has
so far determined that the measure is appropriate as the benefits
it brings to the individual and the community outweigh the harm
that possible side effects might cause.
With decision U-I-210/21 dated November 29, 2021, the Constitutional Court found that the ordinance on the Manners of
Complying with the Recovered-Vaccinated-Tested Requirement
to Contain the Spread of Infection with the SARS-CoV-2 Virus
was inconsistent with the Constitution due to a violation of the
principle of legality. Unlike previous cases, it was not due to an
insufficiently specified legal basis but rather because the existing
legal basis, which allows for mandatory vaccination for certain
professional groups, was not utilised.
It is important to mention that in its decision, the Constitutional Court did not address the question of whether the measure would be constitutionally permissible if it were imposed on
an appropriate legal basis and in accordance with the principles
of proportionality and equality before the law. The Court also
emphasized that the decision does not imply that vaccination of
employees as a condition for performing certain activities or professions is a disproportionate measure; rather, the purpose of the
decision is to ensure that the measure is regulated in accordance
with the Communicable Diseases Act, which already establishes
the rules and procedures for vaccination.
6.3.1. Legal Experts’ Responses to the Decision
Although the issue of mandatory vaccination has been pertinent for many years, recent years have seen a particular focus on
COVID-19 vaccination. In Slovenia, however, mandatory vaccination against COVID-19 was never implemented. Nonetheless, the
legal framework, specifically the second paragraph of Article 22
of the Communicable Diseases Act, grants the legislator the au106

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thority to mandate vaccination during an epidemic, in line with
the annual vaccination program, for communicable diseases that
pose a significant threat to human life.
At this juncture, it is relevant to reference Dr. Novak’s column,
written prior to the Constitutional Court’s decision, which addresses the intense anticipation surrounding the COVID-19 vaccine. Dr. Novak’s column explores the anticipation surrounding
the COVID-19 vaccine, which was viewed as a necessary measure
for restoring normalcy. During the height of the pandemic, the
vaccine, namely, was widely regarded as the only viable solution
for returning to pre-pandemic conditions (Novak, 2020).
Tekavc M.Phil., in his article, pointed out that with the adoption
of the ordinance and subsequent decision of the Constitutional
Court, the issue of mandatory vaccination was indeed brought
into question, as efforts in this direction were quite apparent.
In the case of Vavrička and Others v. Czech Republic, the European Court of Human Rights ruled that sanctioning the refusal of
mandatory vaccination under a child vaccination program does
not constitute an interference with individual rights under the
European Convention on Human Rights. This is because vaccination is standard and well-known to the medical community and
because it protects individuals through so-called herd immunity,
safeguarding those who, for health reasons, cannot or should not
be vaccinated. Accordingly, it can be argued that in the case under
consideration, the European Court of Human Rights emphasised
the finding that the subject of assessment is standard and routine
childhood vaccination against diseases well known to the medical science. In contrast, we have vaccination against COVID-19,
which is not standard vaccination against a disease well known to
the medical community. Because COVID-19 is relatively new, vaccines used in the European Union have only conditional marketing authorisations, as their development and approval have been
faster and less extensive compared to other vaccines (Tekavc,
2021).
On the other hand, Bauk, in his article, discusses that there is
no right not to vaccinate. The main aspects of the article are represented below The Republic of Slovenia, concerning individuals, not only has negative obligations, meaning to refrain from
encroaching upon their human rights and fundamental freedoms,
but it also has positive obligations toward its citizens, among
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which is ensuring health or a healthy living environment, This
positive obligation of the state is defined in the Constitution of the
Republic of Slovenia, particularly in Article 72. In connection with
controlling and preventing the spread of communicable diseases,
the constitutionally defined right to a healthy living environment
is legislatively derived in the Communicable Diseases Act. The
Communicable Diseases Act lists measures for the prevention
and control of communicable diseases, known as epidemiological measures, among which vaccination is listed. (Bauk, 2021).
It is a fact that no one from the scientific or medical community has ever claimed that vaccines against coronavirus will not
have side effects or adverse reactions, meaning that individuals
cannot experience health issues after vaccination. The possibility
of health issues in individuals after vaccination is undisputed, and
in some cases, it can even lead to death. This possibility is also
presupposed at the regulatory level by the Communicable Diseases Act, which in Article 53.a specifies that every individual who
suffers serious and permanent impairment of life functions due
to mandatory vaccination has the right to compensation (Bauk,
2021).It is not a matter of whether compensation represents sufficient financial compensation for permanent health consequences
or death, but it is important to note that the Slovenian legal system, concerning mandatory vaccination, does not pretend and
acknowledges that vaccines are not miraculous in the sense that
they are absolutely and only beneficial and harmless (Bauk, 2021).
However, it is important to emphasise as constitutional Judge
Dr Šugman Štubbs in her concurring opinion regarding decision
no. U-I-210/21, dated 29 November 2021, wrote that the consideration of weighing the benefits and risks of individual vaccines,
including those against COVID-19, is not left to the individual but
to the system and processes of vaccine approval led by competent institutions (Šugman Stubbs, 2021b).

7. Conclusion
The COVID-19 epidemic has brought numerous challenges
regarding the realisation of human rights and fundamental freedoms, particularly the right to life and the right to health or healthcare. The right to life was most obviously affected during the
epidemic, as COVID-19 claimed the lives of over six million peo108

The Right to Life During the Covid-19 Epidemic in Slovenian Society

ple worldwide. In situations of such extraordinary circumstances,
countries are obliged to provide adequate protection against the
danger posed by communicable diseases, including, undoubtedly, COVID-19. Similarly, it is the duty and responsibility of states
to take appropriate measures for the prevention and treatment of
communicable diseases and to ensure access to adequate healthcare for all people. Consequently, countries faced the difficult
task of striking a balance between fundamental freedoms and
the principles of democratic decision-making on one hand and
healthcare policy and the positive obligations arising from ensuring the right to life on the other (Spadaro, 2020).
The epidemic has also shown us how interdependent and,
at the same time, contradictory human rights and fundamental
freedoms can be, which can present a challenge in their realisation, as individual and collective interests may oppose each other.
Public health measures, such as social distancing to prevent the
spread of infections, primarily restrict freedom of movement, as
well as other rights and freedoms of individuals. For instance, the
prohibition of international travel and restrictions on movement
within national or municipal borders, which may be perceived as
an infringement on the right to personal freedom by individuals,
clearly illustrates the challenge that countries faced in striking a
balance between safeguarding the right to life and the right to
health while respecting other constitutionally guaranteed human
rights and fundamental freedoms (Spadaro, 2020).
The epidemic has also highlighted the strong connection between the right to life and the right to health or healthcare, as the
spread of communicable diseases jeopardises not only the lives
of those who become ill with the disease but also affects access
to healthcare services for other patients who require treatment
for other chronic or acute conditions. Accordingly, promoting the
right to health is crucial for safeguarding other human rights and
fundamental freedoms (Spadaro, 2020).
The right to life is well protected in both Slovenian and international legal systems. In the Slovenian legal system, it is found
in the Constitution of the Republic of Slovenia and the Criminal
Code. In connection with the right to health or healthcare, it is
also found in the Communicable Diseases Act, the Patients’ Rights
Act, the Health Services Act and the Health Care and Health Insurance Act. In the international legal system, the right to life as one
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of the fundamental human rights is protected in the Universal
Declaration of Human Rights, the International Covenant on Civil
and Political Rights, the European Convention on Human Rights,
the Charter of Fundamental Rights of the European Union, the
American Convention on Human Rights and the African Charter
on Human and Peoples’ Rights.
While the explicit connection to the right to health or healthcare is not specifically defined in all international legal instruments mentioned, except for the Charter of Fundamental Rights
of the European Union and the African Charter on Human and
Peoples’ Rights, and indirectly in the European Convention on
Human Rights due to decisions of the European Court of Human
Rights in this field, it can still be argued that the right to life is well
established in the international legal order.
As we have seen, countries were not prepared for the epidemic, making the implementation of containment measures a significant challenge, with Slovenia being no exception. The Government of the Republic of Slovenia faced the continuous dilemma
of balancing the right to life, human dignity, and protection of
health on the one hand and the limitations on freedom of movement, assembly, and association, alongside other human rights,
on the other, in adopting measures to prevent the spread of the
new virus. Furthermore, it encountered increasing non-compliance with basic preventive measures and significant resistance to
vaccination, leading to a low level of vaccination coverage among
the adult population (Letnar Černič, 2021).
Similarly, the Constitutional Court faced the task of balancing
various human rights and fundamental freedoms when making
its decisions regarding the adopted measures. However, in many
cases, there was no assessment of the substantive adequacy, necessity, and proportionality because the Government of the Republic of Slovenia violated the principle of legality in adopting
measures. Since the question of legality precedes the question of
adequacy, necessity, and proportionality, there must be a clear
and semantically definable legal basis that is in line with the Constitution if substantive assessment is to take place at all (Nerad,
2021).
In decision U-I-83/20, dated August 27, 2020, the Constitutional
Court decided to directly assess the content and consequently
ruled that the measures under review were proportional. How110

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ever, decision U-I-79/20, dated May 13, 2021, showed that this approach was methodologically flawed because the legal basis for
the measures was unconstitutional. The second and third points
of the first paragraph of Article 39 of the Communicable Diseases
Act were not in line with the Constitution (Mežnar, 2021), and the
issue was not what the points specified but rather the problematic
lack of detailed content in the law (Nerad, 2021). The Constitutional Court made a similar decision regarding Article 39 of the
Communicable Diseases Act in decision U-I-155/20 dated October 7, 2021, but in this case, the fourth point of the first paragraph
was inconsistent with the Constitution (Constitutional Court of
Republic of Slovenia, 2021b).
Furthermore, the violation of the principle of legality was also
addressed by the Constitutional Court in decision U-I-210/20 dated November 29, 2021. However, in this case, it was not due to
an inadequately specified legal basis, as in previously assessed
cases, but rather due to the incorrect choice of legal basis. The
Government of the Republic of Slovenia attempted to introduce
the recovered-vaccinated requirement for employees in state
administration bodies outside the existing legal framework that
regulates various types of mandatory vaccinations, namely, by
passing Articles 22 and 25 of the Communicable Diseases Act
(Constitutional Court of Republic of Slovenia, 2021c).
The Constitutional Court has indeed found, in its decisions,
that fourteen ordinances were inconsistent with the Constitution,
resulting in their annulment:
÷ Five ordinances were annulled in part, where they were
adopted based on the second and third points of the first paragraph of Article 39 of the Communicable Diseases Act (decision
U-I-79/20 dated May 13, 2021).
÷ Five ordinances were annulled in part, where they prohibited or restricted gatherings to up to ten participants (decision
U-I-50/21 dated June 17, 2022).
÷ One ordinance concerning the temporary prohibition of offering and selling goods and services to consumers in the Republic of Slovenia (decision U-I-155/20 dated October 7, 2021).
÷ Three ordinances were annulled in part, where they regulated the mandatory use of protective masks or other forms of
protection for the mouth and nose area, as well as mandatory
hand disinfection (decision U-I-132/21 dated June 2, 2022).
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Among these, eight ordinances were annulled due to violations of the principle of legality (Ministrstvo za pravosodje, 2022).
Although there were setbacks in the fight against the COVID-19
epidemic, it is crucial that the state, during times of emergencies
such as an epidemic, operates in accordance with human rights
as much as possible. This is because respecting human rights as a
central principle in shaping and implementing measures to control the spread of communicable diseases enables the protection
of fundamental rights and freedoms of all individuals (Spadaro,
2020).
The purpose of the article was to analyse the right to life in
both Slovenian and international legal frameworks, providing an
overview of legislation that protects this hierarchically highest
human right in connection with the right to health or healthcare.
The analysis of the legal basis presents possible ways in which the
state can adopt containment measures in the event of fighting an
epidemic, which is particularly important since the Constitutional
Court’s decisions revealed numerous violations of the principle
of legality in the adoption of measures. This meant that the Constitutional Court mostly assessed the legality of the measures without addressing their substance. Therefore, the goal of the article
was to raise awareness and highlight critical decisions and dilemmas faced by constitutional judges in decision-making, aiming to
prevent similar issues from recurring in future situations.

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DIGNITAS n Is Freedom of Speech Underrated? The View from a Perspective of Human ...

Is Freedom of Speech Underrated?
The View from a Perspective of
Human Rights
Blaž Marinčič Udvanc*

Abstract
This research paper tackles the human right aspect of the freedom of speech. It examines the background context of a human
right, and how it evolves through the use in concrete cases. To
determine the limits of legal argumentation in regard to the mentioned context of freedom of speech as a human right, we analyzed cases that revolved around freedom of speech. The analysis
provided us with the insight into the conceptual understanding of
freedom of speech as a human right through the eyes of a judge.
The structure of arguments showed how the background context of a human right of freedom of speech can be determined.
Freedom of speech is not only a human right that is separatated
from the greater legal framework but is, in fact, a human right that
needs to be established again and again through the argumentation of judges and through the applicative use in society. The
balancing through legal argumentation shows how far protection and restriction can go. Freedom of speech as a human right
is no different in this aspect. It is an universal right that can be
observed through the arguments of a court and can be put into a
context behind it.
Keywords: Human Rights, Freedom of Speech, Restriction, Protection, Universal Right

*

PhD (European Faculty of Law, New University).

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Ali je svoboda govora podcenjena?
Perspektiva iz vidika človekovih pravic
Povzetek
Znanstveni prispevek obravnava svobodo govora z vidika človekove pravice. Raziskava je bila usmerjena na osvetlitev ozadja
človekove pravice svobode govora in njen razvoj skozi uporabo
v konkretnih primerih. Z namenom ugotoviti meje pravne argumentacije v zvezi z omenjenim kontekstom svobode govora kot
človekove pravice, smo analizirali primere, katerih skupna rdeča
nit je bila svoboda govora. Analiza nam omogoča vpogled v konceptualno razumevanje svobode govora kot človekove pravice
skozi oči sodnika. Struktura pravnih argumentov znotraj sodnih
odločitev je pokazala, kako je mogoče določiti kontekst v ozadju
človekove pravice svobode govora. Svoboda govora ni le človekova pravica, ki bi bila ločena od širšega pravnega okvirja, ampak
je v svojem bistvu človekova pravica, ki jo je treba vedno znova
interpretirati skozi pravno argumentacijo sodnikov glede na rabo
v družbi. Sodniško tehtanje skozi pravno argumentacijo kaže,
kako daleč lahko sežeta tako varstvo pravice kot njena omejitev.
Pri tem svoboda govora kot človekova pravica ni nič drugačna
kot ostale človekove pravice. Gre za univerzalno pravico, ki jo
je mogoče opazovati skozi argumente sodišča in postaviti v kontekst, ki stoji za njo.
Ključne besede: Človekove pravice, Svoboda govora, Omejitve, Zaščita, Univerzalna pravica

1. Introduction of the topic
Have you ever felt the need to express something but were discouraged by the thought of backlash that your spoken thoughts
would bring? This is not something out of the ordinary, as we
come into such dilemmas more often than not. To question oneself what is appropriate to voice out and what is not may prove to
be a difficult task; a task that is as meaningless as it is meaningful.
If we position ourselves according to the view that every speech
is admissible then it is meaningless to burden oneself with the
task of sorting the thoughts into those that can be voiced out
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loud and those that cannot. A contrasting outcome awaits if we
separate valid thoughts worth voicing out from those that would
be heedless once spoken out loud. In such an approach it would
prove meaningful to choose the thoughts carefully before they
are spoken.
Let us put aside the common decency that should be a part
of our interactions with others and focus solely on the aspect of
speech. Why is this an important factor? When interacting with
others, we tend to follow a basic level of politeness; this also varies depending on the individual, as some follow ethical courtesy
to a further extent than others. Our communications with the
members of society are characterized by a number of factors, but
we will not go deeper into this as we are more interested in the
legal aspect of the content that such communication contains,
rather than the given respectability of the communication itself.
Why is this the case? Some communications can come across as
harsh and incongruous even though they contain valid information and facts. Same goes for discordant communications which
can be perceived as crude while still being completely reasonable
in its content. Sayeed points out that we are fierce advocates of
unhindered freedom of expression when it comes to literature
and works of art, but at the same time, in the cases of ordinary or
common speech, we are inclined to be ambivalent (Sayeed, 2017,
p. 10).
This is where our research starts. By looking through the prism
of legality, we can protect the speech that has purposeful and important ideas behind it. But as we approach the limits of subject
matter, we stumble upon another problem: who decides what is
an important idea contained in the speech that must be upheld?
The easy way out would be to allow all speech no matter the contained idea in it. But at what cost and with what consequences?
To outline the central idea behind the analysis in this research
paper, we must first find out how the legal aspects behind speech
and communications deal with this breaking point. To find this
legal aspect we must focus on freedom of speech. But not only
on freedom of speech as an instrument of lawmakers and part
of the legal system but freedom of speech as a human right. This
research paper is structured in two parts, with each being a research study on its own and not related. Both parts are devoted
to the research of case law and finding the relevant patterns in the
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argumentation of the decisions made by judges.
The first part analyzes the historical views of freedom of
speech and is centered around the caselaw of the United States of
America. The second, final part revolves around modern caselaw
from the courts in the Caribbean region, more specifically, from
the Bahamas and Jamaica. The posed research question tackles
the predicament of the background behind freedom of speech as
a human right; if it is contingent on the perception or the context.

2. Freedom of speech as a human right
The question of how highly we value freedom of speech as a
human right is not as perplexing as it might seem. International
law and constitutions of countries all around the world prove
that freedom of speech is a fundamental human right that offers
protection of the liberties that an individual has. It is an aspect of
individual liberty and thus a good unto itself (Stevens, 1993, p.
1312). The aim of this research paper is to enlighten the position
of the freedom of speech as a crucial human right for society to
function. When we delve deeper into the context of this human
right, we can quickly discover that it encompasses all the corners
of our waking life. To provide proof of this statement, we can
name one clear example: the perpetuation of knowledge and
furthering science. If there was a ban on speech or a censorship
of sorts that would prohibit sharing knowledge, there would
be no advancements in any field or profession. The interest in
expressing our thoughts, beliefs and commitments is not solely
based on the results that may follow from their articulation as
persuading others of our view but also on the very role such
expression plays in developing and discovering the content of
those thoughts and beliefs (Gilmore, 2011, p. 518). Let us connect this thought with something very important for individuals:
the ability to voice concerns, criticism and opinions of issues
that cause controversy and doubt. It is a common denominative
that doubt was the precursor for some of the most advanced innovations and scientific breakthroughs in human history. Those
who doubted the dominant narrative sought answers that would
prove their doubts were justified. This is why the right to free
speech is seen as essential for the discovery of truth (Dawood,
2013, p. 293).
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Even though freedom of speech as a human right can bring
positive societal change, it can also bring unrest when it clashes
with other human rights. This is even more clear in the digital
age where lowering costs of transmitting, distributing, creating
and modifying information has important democratising and
decentalising effects which have all contributed to the change
in social conditions of freedom of speech (Balkin, 2004, p. 3). It
is true that freedom of speech is recognized as a human right by
several legal documents, but so are other human rights that may
come into conflict with it. As was presented beforehand, this
research paper tackles the position that freedom of speech has
as a human right. This not only means that it is safeguarding the
individual's right to speak their mind but also to express oneself
and be able to gather new knowledge, new ideas and different
points of view from others who also utilize this same human
right. This context that we have just provided offers an insight
into what this human right really encompasses. It offers one the
chance to articulate diverse political, cultural and philosophical
views and at the same time be confounded by the same philosophical, cultural and political views that serve the individual as
a slightly different reflection of the views they have themselves.
This should not be a reason of concern in any democratic society. Even more so, when the legal system encourages such
liberties.
We can go back in history to see, that even ancient Athenians
boasted how they were unique people as they had freedom of
speech (Radin, 1927, p. 215). Furthermore, even children of all
ages show high levels of endorsement of freedom of speech,
as this greatly refers to societal progress and democratic principles (Helwig, 1998, p. 528). All ideas that might be socially
acceptable should be free from any inhibition; same goes for
controversial and unpopular ideas, due to the fact that once
such ideas are suppressed, they will simmer underground and
cause instability (Schlag, 1983, p. 729). For example, political
arguments are on the constitutionally protected side of the line
(Laycock, 1996, p. 813) and freedom of speech is of great value
in the political process (Redish, 1982, p. 592) due to the fact
that free speech rights serve an overarching interest in political
equality (Sullivan, 2010, p. 144). The remedy for bad speech is
said to be more speech and not enforced silence, which also
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means that governments are not required to, or more importantly, not permitted to make decisions about what idea may be
expressed and what idea may not be expressed (Sedler, 2006, p.
384). Those in society who assert their autonomy through participation, free thought and self-expression are also opposed
to the thought of any governmental or community constraint
(Powell, 1996, p. 16).
Constitutions and their accompanying national legal systems
set out the legal framework for the practise of freedom of speech
which means that free speech is directly correlated to the law.
This, in term, means that each country decides by law how much
autonomy an individual has when it comes to expressing themselves. When governments set up governmental structures, be it
a court or an administrative agency, an individual who chooses
to become enmeshed must accept the restrictions on autonomy
(Baker, 2011, p. 280). Other than that, the regime of autonomy
has an agreeable by-product which is the enrichment of public
debate (Fiss, 1986, p. 1423). In reality, the autonomous behaviour
of an individual is technically bordered by the courts of each
country and the judges who determine how the law is applied.
Rest assured, this is not solely done how the judges see fit but is
built upon many precedent cases that created a foundation upon
which every case is adjourned. That is why we should look into
the jurisprudence of courts, but not so much for specific doctrinal
rules because overarching doctrinal themes are equally as important due to the fact that courts sometimes direct attention to such
relevant themes (Coenen, 2017, p. 1605). We can now see that
apart from law we need to also know how this law is applied in
concrete situations.
The United States Supreme Court was adamant about the fact
that freedom of speech was a value so integral to the democratic
way of life as to withstand any form of legal balancing. When the
law is applied in such a manner the scholarly discourse monitors
a number of reccurring observations such as the need for unrestrained speech as a necessary condition of self-development and
self-fulfillment, the need for a robust democratic discourse which
is essential for achieving political truth and last but not least, that
allowing substantive limits on speech even in extreme circumstances would open the door to further restrictions (Mailland,
2001, p. 1183).
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3. Democracy and freedom of speech
Through the years, we have become accustomed to the belief that freedom of speech, like many other human rights, is essential for a democratic state. Freedom of speech is one of the
cornerstones of democracy (Vance, 1918, p. 239). Not only because it gives a theoretical layout for the ability to ensure political participation but also to cater to the needs and requirements
of informed public debate. If one is not informed, they may not
provide constructive feedback in a debate. The same goes for
misinformation and censorship of targeted minority views. The
quote about censorship being paternalistic and counterspeech
being empowering finds itself based on the idea that laws that
punish hate speech also undermine the equality rights of minority group members by treating them paternalistically as helpless
victims who need the intervention of higher authorities on their
behalf (Strossen, 2016, p. 218).
3.1 The obstacles
Free speech is beneficial for each individual as their ideas and
opinions can be debated openly and without any limitation, offering concise feedback to the individual regarding their ideas,
which are tested in such a way. People have the right to accept or
reject points of view and only informed people are ultimately best
equipped to make decisions concerning their interests (Haskins,
1996, p. 88). In addition to that, people will not be able to develop intellectually and spiritually, unless they are free to formulate
their beliefs and political attitudes through public discussion and
in response to criticisms that others may express (Yong, 2011, p.
7). We want to protect speech not because it causes no harm, but
despite the harm it may cause (Schauer, 1983, p. 1295).
This brings us to the next problem that we can observe through
the lens of human rights when we discuss freedom of speech: the
discovery of truth. It is difficult to logically argue about the existence of multiple truths as it is commonly accepted that the truth
based on available facts is only one. We might add that there
can always be more than one perception of truth but that does
not impact truth as an observed fact. If a voice is given to a wide
variety of views over the long run, true views are more likely to
emerge than if the government suppresses what it deems false
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(Greenawalt, 1989, p. 131). Factual truth can be, in all senses of
logic, only one, and the view that truth means nothing more than
consensus is a very inadequate view, which is why it cannot serve
as the basis for a coherent theory of free speech (Solum, 1989, p.
72).
This is one of numerous challenges that eat away at the shield
that the status of a human right offers to free speech. But is this
an imminent threat to the status of a human right? Later on in
this research paper, we will see how the court tackles such an
obstacle. To further explain this, not only hate speech, but also
government-bound restrictions and misinformation all contribute to this erosion. If banning hate speech is morally misguided,
counter-speech is the only morally permissible remedy (Howard,
2019, p. 105). Any restriction of access to information or censorship of it can give rise to authoritarian tendencies of a government which should be a red flag on its own. The same goes
for suppressing dissenting opinions. The dilemma arises when it
comes to misinformation. Through the years, this phenomenon
has been colloquially dubbed fake news and it frequently spikes
feverous public debates and outrage, which provides a reason
for concern. The tedious fact of it all is that it can often lead to
tainted social interactions and cohesion as well as provide serious
questions in regard to public safety. However, this does not mean
that the purpose of the speaker affects the value of the speech to
listeners or public debate (Volokh, 2016, p. 1370). For now, the
enigma remains unsolved: how far can unrestricted speech go
and how much harm does restricted freedom of speech cause?
We will look into this later on.
3.2 The solutions
The aforementioned question has, as implied, two reasonable
sides to discuss. The first one is to gauge the unrestricted free
speech and the consequences that such a lack of control brings.
Second is the culpability that follows restrictions bestowed upon
freedom of speech. The latter carries with it the implications for
society which coincide with the risk of influencing political discourse and wreak havoc on the individuals when it comes to their
freedom of expression. Should such a scenario unfold, there is
no doubt that it would have a significant effect on society, espe122

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cially for the openness of society to diversity. This is actually a
logical aftermath as freedom of speech more or less enables the
coexistence of diversity in society. Speech constructs social reality
(Volokh, 1996, p. 2433) and if one particular group in society is
denied the human right of free speech, this means it will not have
a voice and will not be heard which eliminates a certain aspect
of cultural diversity amongst the members of society. It is easy to
speculate whether such a condition would lead to increased intolerance of society to such a group, especially when this group
would try to make their voices heard. And this is one of many
reasons why freedom of speech is needed. All the individuals in
society should at least feel free to express themselves and state
their opinions without the threat of backlash. This backlash need
not be associated only with coming from other members of society but also from the state, in particular government agencies for
example. Expression deserves extensive governmental immunity,
which is strongly tied to the relationship between expression and
individual autonomy (Wellington, 1979, p. 1106). The suppression of ideas is illegitimate because it is inconsistent with the
presupposition that a democratic society bases its decisions on
full and open discussion of all points of view and on top of that
it is also illegitimate because of the possibility that the government may wrongly decide that something poses an unacceptable
danger to the expression of valuable ideas and that is why suppression of ideas is not a legitimate government function (Bogen,
1983, p. 464).
Should we follow this argument, we find ourselves head on
with the threat of governmental influence on society through
limitations of free speech. This is not something unknown, as
there have been multiple historical cases where it was not in the
best interest of the government if the individuals revealed certain
information that held the government responsible for wrongdoings. To put it in simpler terms, free speech is decisive in keeping the government accountable for its actions. The detrimental
limitation of free speech can lead to a loss of the option to hold
a government accountable. For example, the constitutional crisis
eventuating in the resignation of President Richard Nixon in the
United States of America had a profound effect on the degree of
valuation of a free communication market as first hand experience shows that attempts by officials to suppress information
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only strengthens belief in freedom of speech and press among
those who already subscribe to these beliefs and also converts
some to a new belief in the value of freedom of speech (Wilson,
1975, p. 75).

4. The limits of free speech
After describing all of this, it is a difficult endeavour to imagine
when does limiting free speech causes more good than it does
harm. If we try to solicit a clear reply to such an inquiry, we can
start by asking ourselves if a human right can be abused. If the answer is yes, then it is the responsibility of the law to prevent abusing freedom of speech in order to protect other human rights. But
if the answer is no, it becomes comprehensible that a human right
cannot be abused since it can be bordered solely by the rights
and dignity of others. If we follow the idea that we have constructed here, it is self-explanatory that freedom of speech provides
meaningful standards of communication which can only birth
dialogue in a constructive and nonillicit manner circumscribed
by candour. Let us give a plain example of this. The lack of mutual understanding cannot be a reason to label something as hate
speech but should be treated as a way to express differentiating
opinions. Allegedly harmful speech is commonly labeled as hate
speech (Strossen, 1996, p. 449). As friends agree to disagree, the
freedom of speech provides those who participate in a dialogue
a discerning way to be heard. As soon as something is labeled as
hate speech and excluded from public debate, the elegance of
the dialogue diminishes and gives place to the brute force of dejecting one from the dialogue based on a label. For example, the
government cannot prohibit hate speech on the grounds that it
expresses a bad idea and is inconsistent with democratic values
(Sedler, 2006, p. 383). Of course, it can be said that there needs to
be a recourse to act accordingly, for example against those who
instigate or opress. But even in this case, a more well-developed
test is needed to better distinguish between speech that implies
a true threat and speech that, no matter how inflammatory it may
be, is not a threat at all (Rothman, 2001, p. 367).
The same goes for decisions made by courts. If the courts are
allowed to treat otherwise protected speech as being less valuable
than other speech, the more calls there will be for creating new
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zones of diminished protection (Volokh, 2004, p. 924). The main
point here is not to allow individualistic arbitrariness to enter
into the realm of limiting freedom of speech. It is always better to
harbour a chance of dialogue than to prevent this dialogue from
happening.
The aforementioned perception of hate speech can allow for
a non-uniform approach to it. The first approach is to allow hate
speech in order to maximize opportunities for individual expression and cultural regeneration while the second approach is
highly controversial due to the fact that it represses hate speech
through sanctions ranging from official and private reprimands
to criminal prosecution (Massaro, 1991, p. 213). A third approach
combines the first two. It is also important to note, that people
can understand the gravity of hate speech while still supporting
freedom of speech because those who defend free speech may
recognize the harm of hate speech, but firmly believe that freedom of speech is more essential than censoring speech content
(Downs, Cowan, 2012, p. 20). This is why speech is sufficiently
distinctive enough to form a basis for a special right of freedom
of speech which in turn means that skeptics are incorrect to say
that speech cannot be the basis of a special right just because
it cannot be distinguished from other phenomena in the world
(Kendrick, 2018, p. 703).

5. The values behind a human right
The complexity of this human right far exceeds the speculative
objections of the need to diminish its reach. This is confirmed
by many constitutions of the countries around the world and by
the case law of their courts. The duty of the courts is to weigh
the circumstances and appraise the substantiality of the reasons
advanced in support of the regulation of the free enjoyment of
the right to speech (Bogen, 1979, p. 387). Perpetuating an environment in which individuals feel free to speak their minds
and protecting their right to express themselves opens the gates
of democracy and keeps authoritarianism out at the same time.
Upholding the values of freedom strengthens democracy as well
since free speech should always be seen through the lens of democracy (Sunstein, 1992, p. 316). Speech that matters is less free
if a person must pick their words with exquisite care, not to men125

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tion the fact that if communications had to meet strict standards of
correct formulation, people would be far more hesitant to speak
their minds and what they did say would be less an expression of
their personality (Greenawalt, 1989, p. 155).
There have been many works where there was an attempt
to explain freedom of speech through the legal documents that
frame it. There is no shame in such a venture, but to try and elicit
the meaning of the human right part in the freedom of speech
it is best to turn to the application of law and not only the documents that frame it. We could go on about the legislation which
defines freedom of speech as a human right, but it would be far
more pragmatic to look at it from the perspective of the judge
who uses such law in an actual court case. This is the reason why
the methodology behind this research paper focuses on analyzing the court verdicts that give us a glimpse of how the freedom
of speech fragments itself into a human right as we know it today.
By doing so we will aspire to crystalize freedom of speech as a
human right with a particular background that characterizes it as
a fundamental human right in a democratic society.
Getting to know the deliberation of the court before coming
to a definitive conclusion, we set out to firstly analyze the legal
argumentation on top of which the judge reached a decision. By
knowing how the argument is structured we get an insight into
how the freedom of speech is properly exercized in accordance
with the human right principles. Each human right has a background context into which it is set. Freedom of speech is no different. This is the main research question of this paper.

6. Historical analysis from the perspective
of the United States
Let's start with the cradle of freedoms, the United States of
America. The Supreme Court of the United States has a rich history when it comes to defining the freedom of speech as a human right and we will begin right at the start, in 1919. On March
3rd of that year the Supreme Court of the United States reached
a verdict in Schenk v. United States in a case of a conspiracy to
circulate among men who were called and accepted for military
service a circular which intended to influence them to obstruct
the draft. The Court decided that words that would be ordinarily
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and in many places within the freedom of speech protected by
the First Amendment, may become subject to prohibition when
of such nature and used in such circumstances as to create a clear
and present danger that they will bring about the substantive
evils which Congress has a right to prevent and the character of
every act should depend on the circumstances in which it is done
(Schenk v. United States, 249 U.S. 47, 1919, p. 48.). In this legal argumentation, we can see that the Court emphasized the condition
of clear and present danger. This means that it needs to be proven beforehand that the act registers a danger that is both clear and
present. Acts that are not set forth to become such danger cannot
be subject to the limitations of free speech. Such materialized
danger can then serve as a prerequisite that free speech can be
limited. This limitation that we found and presented here brings
us to another standard which was created by the Supreme Court
of the United States in the case Abrams v. United States.
The Abrams v. United States case was decided on November
10th, 1919, by the Court, explaining the standard set forth in the
Schenk v. United States even further. It stated that only present
danger of immediate evil or intent to bring it about warrants Congress to set a limit to the expression of opinion where private
rights are not concerned and that Congress cannot forbid all efforts to change the mind of the country (Abrams v. United States,
250 U.S. 616, 1919, p. 628.). Here we can see that the Court gave
to the Congress the option to set a limit to free speech if this limit
prevents present danger of immediate evil. We emphasize the
wording of immediate evil as this shows how serious the danger
needs to be to have free speech limited as a fundamental freedom
and human right. To understand this, we need to look deeper into
the case and what it was about. The facts of the case which were
undisputed were of a conspiracy to violate the Espionage Act
by uttering the circulars that were intended to provoke and encourage resistance to the United States in the war with Germany,
especially by inciting and advocating through such circulars a
resort to a general strike of workers in ammunition factories for
the purpose of curtailing production of ammunition essential for
the war (Abrams v. United States, 250 U.S. 616, 1919, p. 616.). One
might ask what was in these circulars or pamphlets that was so
dangerous as to cause immediate evil. It contained war propaganda aimed at destabilizing the efforts of the United States. A lot of
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five thousand pamphlets were distributed in one day, on the 22nd
of August 1918. Let's explain that further; the pamphlets which
circulated in the New York City stated: »The Russian Revolution
cries: Workers of the World! Awake! Rise! Put down your enemy
and mine! Yes! Friends, there is only one enemy of the workers of
the world and that is Capitalism. Workers, Russian emigrants, you
who had the least belief in the honesty of our Government must
throw away all confidence, must spit in the face the false, hypocritic, military propaganda which has fooled you so relentlessly,
calling forth your sympathy, your help to the prosecution of the
war.« (Abrams v. United States, 250 U.S. 616, 1919, p. 620.). One
might see how this would provoke a hasty response from society,
not the least from those who were not at ease with the Government. This is more so true when we realize that the conclusion
of the pamphlet included a direct call to action: »With the money
which you have loaned, or are going to loan them, they will make
bullets not only for the Germans, but also for the Workers Soviets
of Russia. Workers in the ammunition factories, you are producing bullets, bayonets, cannon, to murder not only the Germans,
but also your dearest, best, who are in Russia, and are fighting for
freedom.« (Abrams v. United States, 250 U.S. 616, 1919, p. 621.).
The Court decided that the spirit becomes even more bitter as the
pamphlet declares that America and her Allies have betrayed the
workers and that the reply of all workers to the barbaric intervention has to be a general strike.
Judge Oliver Wendell Holmes Jr. Dissented. His argument was
that when words are used exactly, a deed is not done with the
intent to produce a consequence unless that consequence is the
aim of the deed (Abrams v. United States, 250 U.S. 616, 1919, p.
627.). His creative take on free trade ideas is summed up in his explanation of the best truth which is in the power of the thought to
get itself accepted in the competition of the market and that truth
is according to Judge Oliver Wendell Holmes Jr. the only ground
upon which wishes can be safely carried out to which he adds that
we have to wager our salvation upon some prophecy based upon
imperfect knowledge and for that reason, we should, as Judge
Oliver Wendell Holmes Jr. puts it, be eternally vigilant against
attempts to check the expression of opinions that we loathe and
believe to be fraught with death, unless so imminently threaten
immediate interference with the lawful (Abrams v. United States,
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250 U.S. 616, 1919, p. 630.). What makes his dissenting opinion so
persuasive is not only the grace of his legal writing but also the articulate thought that he expressed in regard to opinions that some
consider grisly and frightful to their own. We may speculate that
this is the reason why Judge Louis Dembitz Brandeis concurred
with this opinion. Judge Louis Dembitz Brandeis also authored
the concurrence in the Whitney v. California case which we are
going to present next.
The Whitney v. California case was decided on May 16th 1927.
This case revolved around the question of whether joining and
assisting in the organization of a Communist Labor Party contravened the California Criminal Syndicalism Act. The opinion
of the Court was delivered by Judge Edward Terry Sanford. The
opinion of the Court was that freedom of speech does not confer
an absolute right to speak, without responsibility whatever one
may choose, neither does it give an unrestricted and unbridled
license of immunity for every possible language, neither does it
prevent the punishment of those who abuse this freedom, which
coincides with the fact that State can in the exercise of its police
power punish those who abuse this freedom by utterances inimical to the public welfare, which incite to crime, disturb the
public peace or endanger the foundations of organized government if it is threatened of being overthrown by unlawful means
(Whitney v. California, 274 U.S. 357, 1927, p. 357.). Judge Louis
Dembitz Brandeis stated in his concurrence that the »Court has
not yet fixed the standard by which to determine when a danger
shall be deemed clear, how remote the danger may be and yet
be deemed present and what degree of evil shall be deemed sufficiently substantial to justify resort to abridgment of free speech
and assembly as the means of protection (Whitney v. California,
274 U.S. 357, 1927, p. 374.).
Nonetheless, the background of this case remains clear; Miss
Anita Whitney was convicted of the felony of assisting in organizing the Communist Labor Party of California, by being a member
of it and assembling with it. The mentioned acts were enough to
constitute a crime, which was based on a prerequisite that the
Communist Labor Party of California was formed to teach criminal syndicalism. The statute that made these acts a crime restricted the right of free speech and of assembly theretofore existing
(Whitney v. California, 274 U.S. 357, 1927, p. 374.). Should this be
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a reasonable ground for concern? While the majority of justices
on the Supreme Court of the United States upheld the verdict
against Anita Whitney, this also had a fairly negative impact on
the freedom of speech. Let us now explain this effect which was
a residual aftermath of the verdict. Anita Whitney was arrested in
November of 1919 after giving a speech in Oakland, which was
part of a fundraiser for the Communist Labor Party of California.
Although she denied that the speech she gave was meant to incite violence, she was found guilty of criminal syndicalism and
sentenced accordingly. When she turned to the Supreme Court of
the United States she claimed that her speech was treated differently than the speech of others and that this discrepancy in equality stemmed from the fact that the subject matter was parlous to
some. This might as well be the reason that Judge Louis Dembitz
Brandeis possibly had in his mind when he wrote that the prohibition which was newly introduced means that the statute no
longer solely aims at the practise of criminal syndicalism but now
also at associating with those who propose to preach it, although
he still sees the right of free speech, the right to teach and the
right of assembly as fundamental rights even though they are not
absolute and subject to restrictions in order to protect the State
(Whitney v. California, 274 U.S. 357, 1927, p. 373).
What constitutes a serious threat to the State and where does
free speech wander into the territory from which it can cause
irreparable damage to the State? Judge Louis Dembitz Brandeis
gave us an insight into how to answer this question when he
wrote that fear of serious injury cannot alone justify suppression
of free speech and assembly by using the historical anecdote of
men who feared witches and burnt women, to which he added
the description of the function of free speech to free men from
the bondage of irrational fears. In addition to this, he pointed out
how there must be reasonable ground to fear that serious evil
will result if free speech is practiced in order for it to be justifiably suppressed. In his opinion, there must also be reasonable
ground to believe that the evil which needs to be prevented is
a serious one. It can be logically believed that this point of view
garnered his opinion of the fact that even advocacy of violation,
however morally reprehensible, is not automatically a justification
for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be
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immediately acted on, to which he added the dilemma of wide
differences between advocacy and incitement, analog to preparation and attempt, similarly to the difference of assembling and
conspiracy (Whitney v. California, 274 U.S. 357, 1927, p. 373.).
How to act upon clear and present danger depends on the
notion of finding it in the first place. Surely one can quote the
famous Judge Potter Stewart and say that they will know it when
they see it but this approach seems to fall short of the gravitas that
comes with immediate serious violence that is expected upon
being advocated for. Should there be any prior reason extending out to past behaviour which would lead us to believe things
would stir up, we might think things through or maybe not. According to the position that Judge Louis Dembitz Brandeis took
in this case only an emergency can justify repression. He grandiosely wrote that those who won the independence by revolution
were not cowards and did not fear political change, which meant
that no danger from flowing speech could be deemed clear and
present unless the incidence of evil apprehended was so imminent that, according to his opinion, may befall before there is an
opportunity for full discussion, leading to the fact that evil can be
averted by the process of education (Whitney v. California, 274
U.S. 357, 1927, p. 377.) and this means more speech, which is a
remedy needed to be applied in accordance to the fact that enforced silence cannot do as much as education and speech.
From this analysis which we made, the reader can further understand why imminent danger does not automatically justify a
legislator's ban or prohibition just to cater to the functions of an
effective democracy. Unless, of course, the apprehended evil causes serious problems. We saw that Judge Louis Dembitz Brandeis
feels how stringent the measure of prohibiting free speech is. He
even structured his argument on the Founding Fathers and their
courage to act freely. This position can be attributed to the fact
that he held a view on how it is not enough to justify suppression
of free speech if it is likely to result in some violence or in the destruction of property, but there needs to be a probability of serious injury to the State instead (Whitney v. California, 274 U.S. 357,
1927, p. 378.). His remarks were observed in the next case that we
are going to analyze and that is the Terminiello v. Chicago case.
The aforementioned case of Terminiello v. Chicago was decided on the 16th of May 1949. To give a time perspective to the
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reader, more than two decades later the doctrine of clear and
present danger was again further elaborated. The undisputed
facts of the case and its background are as follows: »In a meeting which attracted considerable public attention, petitioner addressed a large audience in an auditorium outside of which was
an angry and turbulent crowd protesting against the meeting.
The petitioner condemned the conduct of the crowd outside
but also at the same time started to vigourously criticize various
political and racial groups. Notwithstanding efforts of a cordon
of police to maintain the order, there were several disturbances
in the crowd. Petitioner was charged with violation of an ordinance forbidding any breach of peace and the trial court instructed the jury that any misbehaviour which stirs the public to
anger, invites dispute, brings a condition of unrest or creates a
disturbance, violates the ordinance (Terminiello v. Chicago, 337
U.S. 1, 1949, p. 1).
Reverend Father Arthur Terminiello delivered a crude and
harsh speech that fired up the crowd of protestors who were held
at bay by the police. There was an estimate of 800 people at the
event. The number of people at the spot later on was 1500 (Terminiello v. Chicago, 337 U.S. 1, 1949, p. 16). It was clear to all that
the speech would invite dispute and stir the emotions of all who
were involved. People were not at ease and many became angry. But does unrest and dissatisfaction with what someone says
cause the suppression of free speech? Do such circumstances allow for the prohibition of freedom of speech? We will present to
the reader whether this situation constituted a clear and present
danger or was it just a seldom invective occasion which brought
slight public annoyance and inconvenience for the individuals
involved.
With no intention of spoiling the final outcome to the reader
we must explain that Father Arthur Terminiello was convicted,
the Illinois Appellate Court and the Supreme Court of Illinois affirmed but the Supreme Court of the United States granted certiorari and reversed. Continuing on we will explain why through the
analysis of the argumentation that was delivered by Judge William
Orville Douglas, a successor of Judge Louis Dembitz Brandeis.
The Court decided that the vitality of civil and political institutions in society depends on free discussion and accordingly the
function of free speech is to invite dispute as it may only serve
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its high purpose when it induces a condition of unrest, creates
dissatisfaction with present conditions and also stirs people to
anger, because speech is often provocative and challenging, so it
may strike at prejudices and preconceptions with profound unsettling effects as it presses for an acceptance of an idea (Terminiello v. Chicago, 337 U.S. 1, 1949, p. 4.). This is why the trial court
failed as it permitted the conviction of Father Arthur Terminiello
on the grounds of his speech inviting public dispute, making people angry and at unrest. That is why free speech is protected as
a human right in the first place. It should not be decreased just
so we can achieve the absence of anger and public dispute. If
we lessen the reach of free speech due to the fact it may unsettle
people we at the same time deny the ability to discuss any issue
freely without the angst of making someone angry with your personal views. We need not bind free speech with subjective emotions which can be stirred by opposing views. Such an approach
is flawed. Let's explain in detail the reasons for this by analyzing
the case at hand. The Court had tremendous candor when delivering this decision as is shown in the fact that it noticed how
Illinois courts convicted Rev. Fr. Arthur Terminiello based on the
fact of inviting dispute and bringing about a condition of unrest.
The Court explained that those courts merely measured Rev. Fr.
Arthur W. Terminiello´s conduct and not the ordinance against
the Constitution, which is worrisome as the petitioner raised both
points, that his speech was protected by the Constitution and that
the inclusion of his speech within the ordinance was a violation
of the Constitution (Terminiello v. Chicago, 337 U.S. 1, 1949, p. 6.).
This should not be a nuisance to any court as they are the ones
applying the law so they should be able to check the aforementioned points.
A similar case to the one we presented before was the Cantwell
et al v. Connecticut which was decided on May 20th 1940. In that
case, the Court stated that when a clear and present danger of riot,
disorder, interference with traffic upon the public street or other
immediate threat to public safety, peace, or order appears, the
power of the State to prevent or punish is obvious, as is equally
obvious that the State may not unduly suppress free communication of views, religious or others, under the guise of conserving
desirable conditions (Cantwell v. Connecticut, 310 U.S. 296, 1940,
p. 308.).
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The question bestowed upon us is how to draw the line between a speech that is meant to provoke certain feelings and
force the individuals to peruse thought-provoking facts and on
the other hand speech that is only meant to incite violence and
cause unrest amongst the public.
We can find the answer in the Feiner v. New York case. The
facts of the case are rather concerning but also extremely straightforward. The Supreme Court of the United States stated the following facts of the case: »Petitioner made an inflammatory speech
to a mixed crowd of 75 or 80 Negroes and white people on a
city street. He made derogatory remarks about President Truman,
the American Legion, and local political officials; endeavoured to
arouse the Negroes against the whites and urged that Negroes rise
up in arms and fight for equal rights. The crowd, which blocked
the sidewalk and overflowed into the street, became restless, its
feelings for and against the speaker were rising and there was at
least one threat of violence. After observing the situation for some
time without interference, police officers, in order to prevent a
fight, thrice requested the petitioner to get off the box and stop
speaking. After his third refusal, and after he had been speaking
for over 30 minutes, they arrested him and he was convicted of
violating section 722 of the Penal Code of New York, which in
effect, forbids incitement of a breach of peace« (Feiner v. New
York, 340 U.S. 315, 1951, p. 315.).
The Court reached a decision on the 15th of January 1951. The
opinion was delivered by Judge Frederick Moore Vinson. Petitioner was convicted of the offense of disorderly conduct and the
conviction was affirmed by the Onondaga County Court and the
New York Court of Appeals. The Court held the conviction, while
petitioner Irving Feiner claimed that the conviction was in violation of his right of free speech. Let's explain the reason behind
it. The court noticed that the exercise of the discretionary power
that police officers had was used to prevent the breach of the
peace and that the same notion was approved by the trial court
and two courts on review. Those same courts also recognized
the right of the petitioner to hold a street meeting, to make use
of loud speakers and to make derogatory remarks concerning
public officials. This was not contested as it was within the realm
of legality. When making the arrest, the police officers were solely
motivated by a concern for the preservation of order and protec134

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tion of the general welfare and not by the suppression of political
views that Irving Feiner had (Feiner v. New York , 340 U.S. 315,
1951, p. 319).
In reaching the decision, the Court stated that it was mindful
of the possible danger of giving overzealous police officials complete discretion to break up otherwise lawful public meetings and
that it is aware that the ordinary objections of a hostile audience
cannot be allowed to silence a speaker (Feiner v. New York, 340
U.S. 315, 1951, p. 320). It, therefore, decided that police officials
are not powerless to prevent a breach of peace when the speaker
passes the bounds of argumentative persuasion and starts to incite a riot. In the case we presented, this was exactly what happened and, as such, could not be protected as free speech.
Judge Hugo Lafayette Black dissented and wrote that such a
conviction is a mockery of the free speech guarantees as it subjects all similar speeches to the supervision and censorship of
the local police and views it as a long step toward totalitarian
authority (Feiner v. New York, 340 U.S. 315, 1951, p. 323). Due to
this legal argument that he presented he made clear in his dissent
that he does not want to take part in such a thing. His staunch approach to free speech would definitely go more in line with what
we have presented so far. He concluded with a remark that he understands that people in authoritarian countries must obey arbitrary orders but hoped that there was no such duty in the United
States because due to this minority speakers in every city can be
silenced (Feiner v. New York, 340 U.S. 315, 1951, p. 328). We can
see the reasoning in the background of all of this. The erosion of
free speech as a human right can happen slowly but when these
incremental steps surmount to a large enough chunk the entire
intent of the human right erodes. The gradual slide that can happen to human rights of this type need not happen through years
it can happen in decades before it becomes perspicuous that
the right is almost gone. We have shown to the reader how free
speech functions in the light of the intent that this human right
has. Free speech is one of those human rights that can potentially
be in danger by the perilous erosion that takes place through
many years before one even becomes moderately aware of it.
The analyzed case can raise some worries especially due to
the fact that judge William Orville Douglas wrote in his dissenting opinion, with whom judge Sherman Minton concurred, that
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there were no fights and no disorder even by the standards of the
police, no one was even heckling the speaker, there was only the
testimony of the police that there was some pushing and shoving
in the crowd (Feiner v. New York, 340 U.S. 315, 1951, p. 330). Sure
enough, the topic was ill-mannered and in bad taste, especially
due to the fact that unpopular opinions often gather heckling
from the crowd if not just cause unrest to the individuals present
there. But the police should, according to judge William Orville
Douglas, protect these lawful gatherings so that speakers may exercise their constitutional rights as long as there is no incitement
of riots.
In the same year, there was another similar case in front of the
Supreme Court of the United States. The Dennis et al vs. United
States case was about petitioners who were leaders of the Communist Party in the United States. They were indicted in a federal
district court for willfuly and knowingly conspiring to organize
as the Communist Party a group of people to teach and advocate
the overthrow and destruction of the government by force and
violence. They were convicted.
The Court, through the delivered opinion by Judge Fred Moore
Vinson, stated that it has adopted as a rule the statement made by
Judge Billings Learned Hand who phrased that courts must in
each case ask whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary
to avoid the danger (Feiner v. New York, 341 U.S. 494, 1951, p.
510). Here, we can see why the petitioners were denied the right
to exercise free speech, as such exercise would mean the creation
of a plot to overthrow the government. The gravity of evil in this
case is an overthrown government and the suppression of free
speech would prevent this from happening. This is the reason
why the right to exercise free speech was denied. Later on, as
time passed, both Schenk v. United States and Abrams v. United
States were overturned and also Dennis et al v. United States was
overturned as well, while Whitney v. California was overruled as
later decisions set up a newer standard to guarantee free speech.
By the end of the sixties the clear and present danger doctrine
was replaced by the imminent lawless action test brought by the
Brandenburg v. Ohio case (Brandenburg v. Ohio, 395 U.S. 444,
1969, p. 447). To this day the caselaw in the United States seems to
use the imminence of a targeted threat as one of the most impor136

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tant thresholds to decide whether a restriction must be imposed
on a given statement or act, although more recently the Court has
moved away from this doctrine, if you threaten violence against a
specific target, you might find your right to speech restricted, but
in the same light, religious practices and speech that has hateful
content may not be regulated, however, if the victim can prove
targeted intent to intimidate, the Court will not intervene in a restriction (Lamson, de Souza Lehfeld, Martinez Perez Filho, 2022,
p. 50).

7. Synthesis of the results for the historical
analysis
We chose the historical caselaw of the United States for a reason; the United States of America has always been a cornerstone
for liberties and human rights. It was clear that in order to find applicable elucidation it was unavoidable to include such a stronghold. Especially from the historical view point of how it all began.
The main point was to show the changing dynamics of the freedom of speech as a human right. We feel that a time period of 50
years from 1919 up to 1969 was enough to showcase the relevant
approaches and how they change with time. The background of
each human right can be traced in the same manner that we presented so it would not be pivotal for this research to extend it to
a broader timeframe. Free speech and the interpretation of what
constitutes it can sometimes heavily depend on the circumstances
that are taken into account by the court before issuing a verdict.
It was shown that no case is really identical to other cases, yet we
can undoubtedly find similarities in precedent that help. It was
demonstrated that a human right such as free speech can be as
fragile as it can be strong. The constant development around it
means that it can go from overwhelmingly perceptible to almost
non-existent. It was also apparent that free speech as a right on its
own is always subject to judicial evaluation.
Most importantly, it was evident that even from a historical
point of view, there was a sense of context put into this evaluation, rather than just the sheer perception of judges when it
comes to each case. The context of free speech was always put
into consideration, rather than just considering the perception of
such speech. Be it in regards to communism or religion, or even
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espionage and racial topics, the speech was assessed from the
context in which the ideas were shared or promoted. The judges
were conscientious of the implications that a judgment based on
perceived implication would have; that is why they put the whole
situation in perspective. They looked at the bigger picture.
Why was this important? The importance of evaluating the
context in matters of limiting free speech gives an additional safeguard to help uphold this human right. To put it plainly, would
the situation be different if Rev. Fr. Arthur W. Terminiello gave
the heated speech in a church rather than at the meeting in an
auditorium or if Irving Feiner tried to commove a non-hostile and
non-mixed crowd? The answer is simple, the context in which the
speech is given and the context in which the idea is conveyed
matters. The same goes for Anita Whitney and her speech she
gave at the fundraiser for the Communist Labor Party of California in Oakland. The context in which the judges would ponder
the case is without a doubt different if it was not given at a fundraiser for a communist party. This shows the importance of context behind free speech.

8. Modern developments from a Caribbean
legal perspective
To further elaborate the research question of this research paper regarding the background context into which freedom of
speech as a human right is set, we need to provide additional
balance to this research, since it is needed to provide us with the
insight into how courts structure the arguments around the common human rights and principles surrounding them. In our case,
we are researching the context of free speech.
Additional balance to this research comes in the form of judicial decisions from two of the highest courts in the Caribbean
region. We chose the Supreme Court of the Bahamas and the
Supreme Court of Jamaica. The standards of legal argumentation
in the verdicts of the mentioned courts are on the same level of
quality as any other court in the world and often exceed it. Oftentimes this fact is wrongfully overlooked as it can provide valuable
insight into the perception of free speech as a human right.
Let's start in the Bahamas. The first case we are going to analyze is between Coalition to protect Clifton Bay as the first appli138

DIGNITAS n Is Freedom of Speech Underrated? The View from a Perspective of Human ...

cant and the second applicant Zachary Hampton Bacon III versus
the Hon. Frederick A. Mitchell as the first respondent and Minister
of Foreign Affairs and immigration and second respondent the
Hon. Jerome Fitzgerald as the Minister of Education, Science and
Technology. Before we go into details, let's present the relevant
context of the case. The first applicant is a non-profit environmental group popularly called Save the Bays and the second applicant
is affiliated with them. They brought a constitutional motion challenging the disclosure of private and confidential emails said to
belong to them. They sued the first and second respondent but
also sued the third respondent which was the Attorney General
in her capacity. The emails were disclosed in Parliamentary Proceedings by the second respondent and refered to the financial
information of the Coalition to Protect Clifton Bay. The source
of emails was never disclosed or fully explained. The Applicants
claimed that the disclosure of the emails violated their Constitutional rights, including Article 23 which is Freedom of Expression
(Coalition to protect Clifton Bay, Zachary Hampton Bacon III v.
The Hon. Frederick A. Mitchell MP, The Hon. Jerome Fitzgerald
MP, The Attorney General of the Commonwealth of the Bahamas,
2016/PUB/con/00016, p. 3).
The Respondents on the other hand challenged the constitutional motion on number of grounds. For our research paper the
most relevant claim seems to be the fact that they stated that Court
does not have jurisdiction to adjudicate on matters within the sacred walls of Parliament or to make orders purporting to impinge
on the conduct or speech of Members of Parliament. (Coalition
to protect Clifton Bay, Zachary Hampton Bacon III v. The Hon.
Frederick A. Mitchell MP, The Hon. Jerome Fitzgerald MP, The
Attorney General of the Commonwealth of the Bahamas, 2016/
PUB/con/00016, p. 7). The Court decided that it will decide in
the issue whether or not this is a case in which the Court will adjudicate on matters occurring within Parliament or make orders
affecting the conduct of Members of Parliament or controlling the
speech of Members of Parliament inside the Parliament and on
top of that the Court decided to resolve the issue of the question
should the Court make any order which places further restrictions
on the constitutional rights and the freedom of speech (Coalition
to protect Clifton Bay, Zachary Hampton Bacon III v. The Hon.
Frederick A. Mitchell MP, The Hon. Jerome Fitzgerald MP, The
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Attorney General of the Commonwealth of the Bahamas, 2016/
PUB/con/00016, p. 19).
There was a restriction that the Court addressed immediately.
We shall explain it in detail; there exists a statutory basis of parliamentary privilege which states that the freedom of speech and
debates or proceedings in Parliament ought not to be impeached
or questioned in any court or place outside of parliament. The
privileges enjoyed included freedom of speech in parliament.
The Court presented a limitation to this doctrine which included
the Buchanan v. Jennings case which held that the need to protect
freedom of speech in parliament and the right of parliament to
govern its own proceedings did not preclude a claimant from relying on such a record as evidence in support of an action against
a Member of the Parliament based on what was said outside the
House (Coalition to protect Clifton Bay, Zachary Hampton Bacon III v. The Hon. Frederick A. Mitchell MP, The Hon. Jerome
Fitzgerald MP, The Attorney General of the Commonwealth of
the Bahamas, 2016/PUB/con/00016, p. 32). Regarding this, the
Court decided that it is well established that parliamentary privilege even in its absolute form cannot apply to what a Member of
Parliament says outside of Parliament.
The Court found that the Government, through one of its Cabinet Ministers, breached the Constitution and the Applicants were
therefore entitled to vindicatory damages (Coalition to protect
Clifton Bay, Zachary Hampton Bacon III v. The Hon. Frederick A.
Mitchell MP, The Hon. Jerome Fitzgerald MP, The Attorney General of the Commonwealth of the Bahamas, 2016/PUB/con/00016,
p. 88). What persuaded the Court? The answer lies in the argumentation that the Court used. It said that it is axiomatic that a
man's private and confidential correspondence, precious to his
heart, should not be the subject of public discussion and scrutiny.
The second respondent made unsubstantiated allegations about
the first applicant which he portrayed as a money-laundering organization. According to the Court these statements are regrettable since it had nothing to do with the Mid-term Budget debates
(Coalition to protect Clifton Bay, Zachary Hampton Bacon III v.
The Hon. Frederick A. Mitchell MP, The Hon. Jerome Fitzgerald
MP, The Attorney General of the Commonwealth of the Bahamas,
2016/PUB/con/00016, p. 90). This ruling showed us that there are
limits to free speech even when it comes to parliamentary privi140

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lege. Freedom of speech as the constraint on the Government in
this case constitutes an exception to parliamentary privilege. The
verdict was presented by the honourable Madam Senior Justice
Indra H. Charles on 2nd of August in 2016.
The second and final case we are going to analyze from the
Supreme Court of the Bahamas is monumental in its own right.
The case of Omar Archer, Senior as the plaintiff versus Commissioner of Police and the Attorney-General of the Commonwealth
of the Bahamas as the defendants brings us another interesting
take on the freedom of speech. Before we dig into the fundamentals of freedom of speech let's present to the reader some facts of
the case first; over the course of several days in April of 2015 the
plaintiff became embroiled in an acrimonious exchange on Facebook with a female, who is referred to as the virtual complainant. She first called the plaintiff amongst other things, a »pathetic
turd«, said that a »cockroach could beat you in an election«, and
that his mother may have tried to induce abortion which made
him »retarded instead«. The plaintiff responded back personal
and offensive allegations, the most stinging of which were that
she had »had a baby in a bucket in a Rasta camp and left it to die«
and that she had HIV/AIDS and was spreading it. She complained
to the police and the plaintiff was subsequently arrested, charged
with intentional libel and summarily tried before a magistrate.
Midstream that trial, he asserted that the law under which he was
charged was unconstitutional and that is how the whole thing
ended up in the Supreme Court (Omar Archer Sr. v. Commissioner of Police, The Attorney General of the Commonwealth
of the Bahamas, 2017/PUB/con/0024, p. 2). Justice Loren Klein
made sure to point out the fact that this was the first time that
the constitutionality of criminal libel is being questioned in this
jurisdiction as this offence is considered anachronistic in many
Western democracies and in a handful of Caribbean countries.
To this he added, that any opportunity for reform through courts
comes up firmly against the savings clause which paradoxically
preserves laws that pre-date the Constitution even if repugnant
to constitutional guarantees.
The plaintiff in his affidavit from 20.2.2018 states that he is a
political activist and an advocate for freedom of expression and
his lead counsel described him as a well-known publicly outspoken figure with a big political profile. The plaintiff alleged in the
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aforementioned affidavit that his prosecution was politically motivated. The woman with whom he had a virtual altercation is a
newspaper reporter and according to the plaintiff a ghost writer
for a tabloid; she and the plaintiff were Facebook friends until the
unfortunate exchange when he unfriended her but are otherwise
not socially acquainted. She inboxed the plaintiff on 16.4.2015
(Omar Archer Sr. v. Commissioner of Police, The Attorney General of the Commonwealth of the Bahamas, 2017/PUB/con/0024,
p. 5). She became aware of his public post which said she had
Human Immunodeficiency Virus on the 16.4.2015 and made the
screenshots on 19.4.2015 and made the complaint to police on
that same day (Omar Archer Sr. v. Commissioner of Police, The
Attorney General of the Commonwealth of the Bahamas, 2017/
PUB/con/0024, p. 7).
The main issue that arose later was the alleged violation of
Article 23 of the Constitution which protects the rights to freedom of expression. Not only that but the plaintiff argued that
criminal libel law was unconstitutional, and even if it is saved by
the clause of existing law it is not reasonably required to protect
private reputation for any public policy interests (Omar Archer
Sr. v. Commissioner of Police, The Attorney General of the Commonwealth of the Bahamas, 2017/PUB/con/0024, p. 17). When
deciding whether criminal libel is an interference with freedom
of expression Justice Loren Klein pointed out that the right to
freedom of expression is interfered with by the offence of intentional libel but the law equally pursues a legitimate aim in
protecting the rights, reputations and freedoms of others (Omar
Archer Sr. v. Commissioner of Police, The Attorney General of
the Commonwealth of the Bahamas, 2017/PUB/con/0024, p. 24).
So this means that the question actually comes down to whether
the interference is proportionate. Is it necessary and proportionate to have the means to criminally punish people for publishing
intentionally libelous material? Justice Loren Klein hinted that
he would be prepared to hold that criminal libel was a prima
facie interference with the right of free speech. He based this
thought on the fact that there has been universal acceptance that
freedom of speech is a sine qua non in a democratic society. In
doing so he reminded of the Guyanese case Jagan v. Burham
where it was said that the facets of freedom of expression were
cherished rights and that the article of the Guyanese constitu142

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tion protecting freedom of expression seeks to preserve what
is vital in a free society wherein the right to speak, to propagate
and to circulate ideas belong to everyone and will be protected
for everyone. This means that the chief commodity of freedom
of expression lies in its role in fostering free political discussion (Omar Archer Sr. v. Commissioner of Police, The Attorney
General of the Commonwealth of the Bahamas, 2017/PUB/
con/0024, p. 25).
In this aspect Justice Loren Klein built his argumentation on
European jurisprudence where the courts developed the concept that defamation laws, civil and especially criminal, can have
a chilling effect on freedom of expression and the free flow of
ideas. His perception was that civil remedy ought to be the first
port of call to redress defamation, but this does not necessarily
mean that the criminal law has no role in defamation as there
are cases where a civil claim may not be feasible and may not
punish, which is in the case where the defendant is a person of
straw and unable to pay damages, or the defamer might be very
wealthy and takes the calculated risk of paying damages. That is
why they coexist (Omar Archer Sr. v. Commissioner of Police, The
Attorney General of the Commonwealth of the Bahamas, 2017/
PUB/con/0024, p. 28).
On the question whether the legislative objective is sufficiently
important to justify limiting freedom of speech the Court decided
after performing the first element of the proportionality test, that
the provision which penalizes defamation and limits the right
to free speech with the objective of protecting reputation is a
sufficiently laudable goal in a democratic society to warrant a
limitation of freedom of expression. The Court ruled that this
condition is not only satisfied because of the inherent value and
dignity attached to personal reputation but also because the core
substance of the right to freedom of expression is not necessarily
impaired by such restrictions (Omar Archer Sr. v. Commissioner
of Police, The Attorney General of the Commonwealth of the
Bahamas, 2017/PUB/con/0024, p. 34). Counsel for the plaintiff
argued that the comment in the context in which it was made
was not really likely to have caused significant or serious harm
which is why it was unnecessary and disproportionate for the
state to intervene. The Court did not follow this. The words of
the plaintiff were public, while she on the other hand messaged
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him privately. His statement had the potential to cause significant
harm as it was posted on Facebook where it can reach millions
of people. The seriousness of his action is confirmed by the fact
that the plaintiff committed several serious crimes against her,
from concealing the body of a child and infanticide to knowingly
spreading HIV. Challenged provisions were not unconstitutional
on the grounds of proportionality (Omar Archer Sr. v. Commissioner of Police, The Attorney General of the Commonwealth
of the Bahamas, 2017/PUB/con/0024, p. 41). The Court did not
find the act of prosecuting the plaintiff unconstitutional (Omar
Archer Sr. v. Commissioner of Police, The Attorney General of the
Commonwealth of the Bahamas, 2017/PUB/con/0024, p. 49). The
verdict is dated to 29.6.2020.
The main point we can observe from the analyzed decisions
from the Court is how the limitations of free speech are argued by
the judges. There is an implied border where free speech cannot
overflow and as we saw the two examples given, free speech as
a human right is contested by other human rights. Parliamentary
privilege for one does not provide full grounds for unlimited
upkeep of the freedom of speech, same goes for the aspects of
serious defamation. The second case showed that free speech can
be potentially limited by another person´s reputation and protection of it. We saw how there is an intricate line of balancing the
decision, which is usually tightly linked with the facts of the case.
Final case analysis comes from the decisions made by The Supreme Court of Jamaica. The cases were chosen according to the
subject matter of free speech.
The first case is between Roy K. Anderson as the claimant and
Dwight Clacken as the defendant. Before digging into the legal
arguments behind the case we must provide the background of
it: Dwight Clacken authored the book titled »No Justice in Jamaica – How the Jamaican Judicial System Destroyed My Life and
My Business and How It Can Happen to You«, Roy K. Anderson
alleged that certain statements in the book were defamatory in
reference to him as a judicial officer and his actions in the capacity as a judicial officer. Roy K. Anderson is an Arbitrator and and
Associate tutor in the Faculty of law, University of West Indies as
well as a retired judge of the Supreme Court of Jamaica (Roy K.
Anderson v. Dwight Clacken, 2016 HCV 05224, 2023 JMSC Civ 42,
p. 3).
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The statutory framework for this case was The Defamation
Act of 2013 whose one of the principles is to ensure that the law
relating to the tort of defamation does not place unreasonable
limits on freedom of expression (Roy K. Anderson v. Dwight
Clacken, 2016 HCV 05224, 2023 JMSC Civ 42, p. 17). The Court
in this decision looked into case-law and cited The Jamaican Observer Ltd v. Orville Mattis where the Court of Appeal stated the
position that it takes years to build a good name and reputation
but it takes only a few reckless lines in a newspaper to destroy
or seriously damage that name or reputation; Section 22 of the
Constitution gives a right to free speech but it does not permit
defamation of one´s good character (Roy K. Anderson v. Dwight
Clacken, 2016 HCV 05224, 2023 JMSC Civ 42, p. 38). The Court
found that the claimant successfully proved malice on the part
of the defendant for the reasons that the defamatory statements
were published with an indirect motive, which is other than a
duty to publish material of public interest regarding the administration of justice and that the evidence of intrinsic malice can
be detected in the words and statements themselves as according to the Court, the language used by the defendant was disproportionate to the facts (Roy K. Anderson v. Dwight Clacken,
2016 HCV 05224, 2023 JMSC Civ 42, p. 36). The Court also found
that the defendant did not establish his defence of fair comment
because the statements in the book were not honestly made and
were not based on true representation of the facts but were actuated by malice (Roy K. Anderson v. Dwight Clacken, 2016 HCV
05224, 2023 JMSC Civ 42, p. 37).
The problem of such viewing of free speech lies in the context
of applying this human right. We saw that the Court structured a
position in which it decided firstly that statements were published
with an indirect motive. Malice intent was a presupposition to
build an argument around it. Without this, it would be impossible
to hold a limitation to free speech. To understand the words in a
certain way, especially in intrinsic malice, it depends on how the
Court views each case by the claims made by both parties. This
means that, regrettably, even if the defendant did not have such
an outcome in mind, but the affected claimant perceived it as
such, it constitutes a limit of freedom of speech with the goal of
protecting the good name and reputation. This approach can be
problematic if left unmonitored.
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We can see the same issue in the next case that we are going to
analyse. The case of Michael Troupe as the claimant versus Leon
Clunis as the first defendant, Owen Wellington as the second
defendant, Television Jamaica Ltd as the third defendant, CVM
Television Ltd as the fourth defendant and Attorney General for
Jamaica as the fifth defendant is an interesting one when it comes
to assessing the protection of good name and reputation in the
relation to freedom of expression and free speech in particular.
To understand the case more thoroughly we need to present
the facts of it: On July 18th of 2012 at 5:30 in the morning a search
and seizure operation was carried out by the Jamaica Constabulary Force and its Anti-Lottery Scam Task Force of the Major
Organised Crime and Anti-Corruption Agency and the Jamaica
Defence Force under the command of Superintendant Leon Clunis. It took place in the parish of Saint James at the residence of
Michael Troupe, a businessman, Justice of Peace, Parish Councillor and Deputy Mayor for Montego Bay who resided at Pitfour,
Granville in the parish. Troupe and his son were arrested. An
illegal pistol was found at the residence. His son pleaded guilty
to the offences of illegal possession of firearm and illegal possession of ammunition. The charges against Michael Troupe were
dropped (Michael Troupe v. Leon Clunis, Owen Ellington, Television Jamaica LTD, CVM Television LTD, Attorney General for
Jamaica, 2012 HCV 06037, 2019 JMSC Civ 240, p. 3).
The operation conducted at the residence was video recorded
by Television Jamaica and CVM television and broadcast on the
day the operation took place. Statements relating to the operation were made by Superintendant Clunis and Commissioner of
Police Owen Ellington during the course of police operations
which were broadcast by the same television stations during
Midday news (Michael Troupe v. Leon Clunis, Owen Ellington,
Television Jamaica LTD, CVM Television LTD, Attorney General
for Jamaica, 2012 HCV 06037, 2019 JMSC Civ 240, p. 4). Michael
Troupe claimed that he suffered severe embarrasment and sustained damage by defamatory words of the defendants. The first
two defendants stated that the publication of the statements was
not defamatory as the published words were true and substantially true or in the alternative they were fair comments on matters of
public interest and the circumstances of publication were protected by qualified privilege while the fourth defendant admitted that
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its videographer was alerted to the raid, attended it and learned
of the operation at Pitfour where the recording of the arrest was
made (Michael Troupe v. Leon Clunis, Owen Ellington, Television
Jamaica LTD, CVM Television LTD, Attorney General for Jamaica,
2012 HCV 06037, 2019 JMSC Civ 240,p. 6). The Court stated that
if it decides that words are capable of defamatory meaning, it
must determine whether an ordinary intelligent and unbiased
person would understand them as words of disparagement and
as an allegation of dishonest and dishonourable conduct (Michael
Troupe v. Leon Clunis, Owen Ellington, Television Jamaica LTD,
CVM Television LTD, Attorney General for Jamaica, 2012 HCV
06037, 2019 JMSC Civ 240, p. 18). The Court found the words given their plain and ordinary meaning, are imputing criminal action
on the part of the claimant (Michael Troupe v. Leon Clunis, Owen
Ellington, Television Jamaica LTD, CVM Television LTD, Attorney
General for Jamaica, 2012 HCV 06037, 2019 JMSC Civ 240, p. 20).
The words »key actors« and »top-tier actors within the scamming
operations« connote involvement in criminality, when considered
in the ordinary sense according to the Court, which means that
the average Jamaican would infer guilt upon the claimant (Michael Troupe v. Leon Clunis, Owen Ellington, Television Jamaica
LTD, CVM Television LTD, Attorney General for Jamaica, 2012
HCV 06037, 2019 JMSC Civ 240, p. 22).
Comments made by the reporters would show, to a reasonable person viewing the newscasts, that the claimant is involved
in lottery scamming and was arrested because there was a strong
case against him. That is why the Court found the words in their
natural and ordinary meaning to be defamatory of the claimant
as it had an effect of lowering the esteem that the claimant had
in public due to the fact that the statements ascribe to the claimant criminal conduct (Michael Troupe v. Leon Clunis, Owen Ellington, Television Jamaica LTD, CVM Television LTD, Attorney
General for Jamaica, 2012 HCV 06037, 2019 JMSC Civ 240, p. 25).
For the argument of fair comment that the defendants used,
the Court stated that such words must be stated as a comment on
some fact, which means that there must beforehand be a statement with foundation of fact which is a basis for the comment
given on this fact. If the facts on which the comments purport to
be made are not proven to be true or published on an occasion
of privilege, the defence of fair comment is not available (Michael
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Troupe v. Leon Clunis, Owen Ellington, Television Jamaica LTD,
CVM Television LTD, Attorney General for Jamaica, 2012 HCV
06037, 2019 JMSC Civ 240, p. 27). The Court made it clear that
fair comment does not extend to misstatements of facts however
bona fide they may be. In regard to the argument of qualified
privilege, the Court stated that a proper balance must be struck
between freedom of expression and the right of an individual to
protect his reputation, which is relevant for freedom of speech
(Michael Troupe v. Leon Clunis, Owen Ellington, Television Jamaica LTD, CVM Television LTD, Attorney General for Jamaica,
2012 HCV 06037, 2019 JMSC Civ 240, p. 31). The reasonable television viewer would understand the serious allegations when
the reporter stated that the claimant was caught in the lotto scam
dragnet. The Court concluded that the tone of publications was
not investigative and thus fell below the threshold of responsible
journalism as the reasonable man would be convinced from the
reports that the claimant was involved in lottery scamming activities (Michael Troupe v. Leon Clunis, Owen Ellington, Television
Jamaica LTD, CVM Television LTD, Attorney General for Jamaica,
2012 HCV 06037, 2019 JMSC Civ 240, p. 32).
It was the opinion of the Court that no public interest is served
by publishing misinformation as the public was clearly misinformed as the claimant was not charged for any offences related
to lottery scamming. The claimant was an elected representative
which means that any allegation of criminal conduct on the part
of such person is serious (Michael Troupe v. Leon Clunis, Owen
Ellington, Television Jamaica LTD, CVM Television LTD, Attorney General for Jamaica, 2012 HCV 06037, 2019 JMSC Civ 240, p.
34). The Court concluded that although the subject matter was of
public interest, there was no need to hastily broadcast it without
first verifying the accuracy (Michael Troupe v. Leon Clunis, Owen
Ellington, Television Jamaica LTD, CVM Television LTD, Attorney
General for Jamaica, 2012 HCV 06037, 2019 JMSC Civ 240, p. 36).
On top of that, the excuse that the claimant was in custody is not
sufficient but only shows, according to the Court, that there was
no real effort made to get his side of the story. The Defendants
failed to show any justification for the words spoken or broadcast (Michael Troupe v. Leon Clunis, Owen Ellington, Television
Jamaica LTD, CVM Television LTD, Attorney General for Jamaica,
2012 HCV 06037, 2019 JMSC Civ 240, p. 54).
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This case that we have analyzed showed how the relation between publishing information in public interest and the right of
a person to protect their reputation and good name can have
an impact on free speech. The argument of responsible journalism when it comes to investigating matters in public interest still
holds a high threshold for eliminating any misinformation before
a certain broadcast reaches the audience. In this case the free
speech aspect of journalism only comes to play when the information does not base on something that is not true. It is debatable
what can be proven to be true as investigative journalism often
relies on information that is only the tip of the iceberg. In the case
mentioned above this was not such an occasion as the broadcast
was made of statements by officials who took part in the operation. The reporters added their own connotation to the story
which breached the human right aspect of free speech. We must
distinguish between hard facts and embellished facts that can
sometimes not even resemble the facts that they were based on.
The final case we are going to analyze from Jamaica also touches the subject of free speech in the media. The case between Maurice Arnold Tomlinson as the claimant and Television Jamaica Ltd
as the first defendant, CVM Television Ltd as the second defendant and The Public Broadcasting Corporation of Jamaica as the
third defendant is an interesting legal issue. Let us start, as we do,
with the facts of the case: the claimant Maurice Arnold Tomlinson,
sought to have his message aired at a time and in a manner of his
choosing. His inability to achieve this has led him to allege that
there has been a breach of his rights (Maurice Arnold Tomlinson
v. Television Jamaica LTD, CVM Television, The Public Broadcasting Corporation of Jamaica, 2012 HCV 05676, 2013 JMCF Full 5, p.
3). The claimant is an attorney-at-law and a homosexual man. He
is a citizen of Jamaica but became a landed immigrant of Canada
in 2012, he was at the time of commencing the quest to have his
message aired, employed as legal advisor for the international
NGO Aids-Free World. He describes himself as an activist and
as such he has organized several public events in an attempt to
bring about changes in the attitude towards homosexuals in Jamaica and further to draw attention to the need for tolerance
of minority groups as an effective tool to counter the spread of
HIV and AIDS. The message he had sought to be aired was presented in what he describes as the »Love and Respect PA« video,
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a 30 second video which was produced as a part of his advocacy
campaign. He acts in it, portraying a homosexual man whose aunt
reassures him when he complains of trying to get Jamaicans to
respect his human rights as a gay man, that she respects and loves
him (Maurice Arnold Tomlinson v. Television Jamaica LTD, CVM
Television, The Public Broadcasting Corporation of Jamaica, 2012
HCV 05676, 2013 JMCF Full 5, p. 5). The refusal to air occurred in
Jamaica (Maurice Arnold Tomlinson v. Television Jamaica LTD,
CVM Television, The Public Broadcasting Corporation of Jamaica,
2012 HCV 05676, 2013 JMCF Full 5, p. 12).
The Court, when structuring the arguments, used the reasoning from a 1989 case of Trieger versus Canadian Broadcasting
Corp: As to free speech, the right to speak does not necessarily carry with it the right to make someone listen or the right to
make someone else carry that message to the public (Maurice Arnold Tomlinson v. Television Jamaica LTD, CVM Television, The
Public Broadcasting Corporation of Jamaica, 2012 HCV 05676,
2013 JMCF Full 5, p. 18) and the reasoning from a 1985 case of
Re New Brunswick Broadcasting Co. Ltd. versus Canadian Radio
Television and Telecommunications Commission: The freedom
guaranteed by the Charter is a freedom to express and communicate ideas without restraint, whether orally or in print or by
other means of communication. It is not a freedom to use someone else's property to do so. It gives no right to anyone to use
someone's land or platform to make a speech, or someone else's
printing press to publish his ideas. It gives no right to anyone
to enter or use a public building for such purposes. And it gives
no right to anyone to use the radio frequencies (Maurice Arnold
Tomlinson v. Television Jamaica LTD, CVM Television, The Public Broadcasting Corporation of Jamaica, 2012 HCV 05676, 2013
JMCF Full 5, p. 19). The Court added the reasoning from a 1983
case of Haider versus Austria that in Europe under the Article 10
of the European Convention on Human Rights the freedom of
expression guarantee does not confer an unfettered right on any
citizen to have access to radio or television to air his views except
under exceptional circumstances (Maurice Arnold Tomlinson v.
Television Jamaica LTD, CVM Television, The Public Broadcasting Corporation of Jamaica, 2012 HCV 05676, 2013 JMCF Full
5, p. 98). The Court also addressed editorial discretion, which it
described in the context of licensed broadcasters, which does
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not mean the editor can exclude views he does not like or does
not agree with as the grant of licenses is not about the privatization of censorship but rather about regulating a public resource
such as airwaves so that citizens derive the greatest benefit in
order for them to play an effective role in democracy due to the
fact that access to reliable and accurate information is vital to the
functioning of a democratic state (Maurice Arnold Tomlinson v.
Television Jamaica LTD, CVM Television, The Public Broadcasting
Corporation of Jamaica, 2012 HCV 05676, 2013 JMCF Full 5, p.
109). Through such argumentation the Court found that licensed
broadcasters are under an obligation to use the public domain
in the public interest which is stated in their licence, furthermore
this coincides with the duty of the broadcaster to provide information on important public issues for the benefit of the public
having accurate and reliable information about the matter. This
argumentation leads the Court to accept the approach that no
person can dictate to a private broadcaster that he should accept
a particular advertisement advocating any particular position because the issue is not whether or not to accept the advertisement
but rather whether the private broadcaster has carried out his
obligation in the public interest, which is to inform the public
on the particular issue (Maurice Arnold Tomlinson v. Television
Jamaica LTD, CVM Television, The Public Broadcasting Corporation of Jamaica, 2012 HCV 05676, 2013 JMCF Full 5, p. 112). In the
light of the mentioned legal position, the Court decided that were
it to accept the proposition of the claimant, it would mean the
Court would now be getting into the business of telling editors
what advertisements or events to broadcast but the regulation of
broadcasters has not been given to the courts and it is not a job
that any court would even contemplate accepting as that job is in
Jamaica given to the Broadcasting Commission (Maurice Arnold
Tomlinson v. Television Jamaica LTD, CVM Television, The Public Broadcasting Corporation of Jamaica, 2012 HCV 05676, 2013
JMCF Full 5, p. 113). On the contrary, it was not even suggested
that the defendants would fail to give a full, fair and adequate
coverage of the issue of Homosexuality in Jamaica. The Court
decided that the defendants have the editorial rights to decide
how an issue is to be covered, which logically means that such
an approach constitutes that it cannot be said that all who wish
to speak on the issue must be allowed to do so by the defend151

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ants (Maurice Arnold Tomlinson v. Television Jamaica LTD, CVM
Television, The Public Broadcasting Corporation of Jamaica, 2012
HCV 05676, 2013 JMCF Full 5, p. 115).
We can see in this decision that a part of the right to free speech
is also the editorial power to decide how they will deal with a specific issue in the society that needs to be informed on the issue
of public interest. The Court dismissed in its entirety the claim
because the freedom of expression and freedom to receive and
disseminate information or ideas includes the right not to speak
and not to receive or disseminate information, or as the Court put
it, why should Mr Tomlinson's wish to exercise his right be more
important than TVJ's or CVM's desire to exercise their right not to
broadcast (Maurice Arnold Tomlinson v. Television Jamaica LTD,
CVM Television, The Public Broadcasting Corporation of Jamaica,
2012 HCV 05676, 2013 JMCF Full 5, p. 123). This was not the only
insightful legal argument that we could find in this verdict as the
Court also used a comparison in its legal argumentation: One cannot shift the stumps while the bowler is running in and the batsman has assumed his batting stance in order to give the bowler
a greater opportunity at dismissing the batsman (Maurice Arnold
Tomlinson v. Television Jamaica LTD, CVM Television, The Public Broadcasting Corporation of Jamaica, 2012 HCV 05676, 2013
JMCF Full 5, p. 121).

9. Findings and key notion
We proposed a reasearch question at the beginning of this paper, regarding the background of freedom of speech as a human
right, whether it is contingent on the perception or on the context. The cases analyzed both in the historical part of this paper
and the modern part of this paper showed that context is more
important than perception of speech, when it comes to the argumentation of a judge. This research paper, according to its findings, advocates the importance of the context in which certain
speech was made. We should avoid the use of perception to limit
free speech as it may prove to be a wrong thing to do, especially
given the nature of this human right. If we were to deem some
speech as off limits in advance, based on the perception of it, we
would find ourselves denying core democratic values and drifting
towards authoritarian ideas.
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To put it more bluntly, if someone perceives a certain fact to
be offensive to them, their perception cannot be a valid reason
to limit free speech as a human right. The fact exists no matter
the perception of it in society, this is why our research paper
proposes a solution in the way of a safeguard in the form of
context. Courts have been proven to resort to context but more
in a practical course of action. We believe it is time for a more
doctrinal method to theoretically strenghten this practical approach. Advocating for the context behind speech as a human
right gives us an additional safeguard that can help determine
how far can free speech reach and what can be encapsulated
in it.
Furthermore, context is already the reason why the majority of speech is observed as protected in the form of a human
right. Facts should remain under the protection of this human
right, no matter the perception they cause. For example, public
statements made by Superintendant Clunis and Commisioner
of Police Owen Ellington to Jamaican news stations during and
after a police operation were not a fact, as the charges against
Michael Troupe were dropped. But after the broadcast had aired
all the viewers perceived Michael Troupe as a part of the scamming operation ring and a person of criminal conduct. Jamaican
court put into consideration the context in which the statement
was made, it was during and after the police operation in the
early hours of the morning. Public has the right to know the
facts about political figures but in this case the context was such
that no public interest was served by publishing misinformation
as the public was clearly misinformed. Suffice to say, it would be
ample enough to inform the public that a house was searched
at half past five in the morning regarding the lottery scamming
operation. The perception differs widely from the background
context of the speech. Superintendant and the Commisioner of
Police both had their own perception that was different from
the fact. The only fact was that the charges were dropped.
This brings us to another important conclusion; if something
is a fact, it should be stated as such, but if something is perceived
as a sagacity of certain reality, it should be stated as an opinion.
Opinions differ, but a fact is a fact. To put it in simpler terms,
the prospect of living in a modern democratic society is to hear
speech that one might find inappropriate, offensive or disparag153

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ing. That does not mean one must isolate oneself to avoid situations which cause unrest upon hearing unsettling opinions.
Speech should not be viewed according to its perception and
how it is perceived by each individual but instead should be put
into context of all relevant circumstances. For what is perceived
by some as offensive, can be perceived as complimentary by others. This is a crucial disposition for opinions. Predilection for inclusion of opinions in speech is a completely conventional way
of communication.
Opinions are protected by freedom of speech as a human right
and should be protected in the same manner as stating the facts.
The only difference is the background context, which would in
this case be stating whether it is a personal opinion or a fact. The
difference between the two opted recognitions was clear in the
case of Maurice Arnold Tomlinson as the claimant against Television Jamaica Ltd as the first defendant, CVM Television Ltd as the
second defendant and The Public Broadcasting Corporation of
Jamaica. Maurice Arnold Tomlinson had a perception that as a
homosexual man and a gay rights activist he has a right to air his
message with private broadcasters to advocate for the respect
of gay rights in Jamaica. Jamaican court looked for the context
and found that the background to assessing this practise of the
mentioned human right was tied to the fact that there is no such
thing as the freedom to use someone else's property to do so and
it gives no right to anyone to use someone's land or platform to
make a speech, or someone else's printing press to publish their
own ideas. In the end it all came down to balancing two interests
and it was decided that there is no valid reason why Mr. Tomlinson's wish to exercise his right was more important than TVJ's or
CVM's desire to exercise their right not to broadcast it. This case
also reflected why relying solely on perception of something is
not enough to safeguard a human right.
The whole presented analysis of the verdicts also showed
that free speech as a human right is much more nuanced than it
strikes at first glance. We were able to go through the insides of
the meaning of this human right as it is not straightwforward but
it should, as we have proven, be put into a context. It is clear that
we only touched the surface on the matter but more importantly
we demonstrated that even a human right has its own context in
which it strives or thrives.
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Each of the analyzed cases showed to the reader that the context in which the human right of free speech is put determines
whether it will thrive or strive. Even if the context behind each
case shows that free speech is not an absolute human right we
should not dissuade ourselves from losing the standards to which
free speech is measured and compared. We need this human right
for the normal functioning of a democratic society and should
look after it accordingly.

10. Conclusion
In conclusion, we observed how the context behind the human right of freedom of speech develops through the argumentation of a judge in a certain case. The main research question of
this paper on the background context of the freedom of speech
as a human right was answered through the analysis of judicial
arguments in an array of different cases that all tackled the same
theme; the limits of free speech. The background context was
heavily depended on the case and also on the arguments that
the judge used to solve the legal question. There was no difference observed whether it was a court in the Caribbean or in the
United States. There was always a process of balancing in accordance to the facts of the case. Are these facts the backbone of the
background context for a human right? The research paper affirms this. We have shown that a human right such as freedom of
speech is conditioned not only by the facts of the case but also by
the structure of the arguments that a judge makes.
The distinction whether a human right such as freedom of
speech strives or thrives is not only dependant on the way a judge
sees the case but also about the context of the human right, the
setting it is put into and the factors that influence it. These things
are outside the realm of legal provisions and can be found in
social structures of the relationships in society. The background
context is a framework far more outflanked than we can imagine.
This is due to the fact that each case brings something new into
contest. Sure enough, some cases share a striking resemblance
but none are alike in a way that would enable a judge to mirror
their arguments. Arguments can be structured similarly, but not
mirrored. We saw this clearly when we analyzed five decades
worth of cases brought forth in the United States. Approaches
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change but the background context of a human right remains
the same. This was affirmed by the cases analyzed which were
brought forth in the Bahamas and in Jamaica. The main research
purpose was to add the element of context into the doctrinal
approach of evaluating freedom of speech as a human right. In
this sense, the paper succeeded to show how there is an existant
practical framework already in place where courts implement the
deliberation of context into which a certain speech was said and
put into. Such continued practise prompted this research paper
to commend the addition of context into the evaluation of legality of limits to freedom of speech. Freedom of speech should be
upheld by all means in a democratic society and there is a firm
belief that evaluating the context is a better safeguard than relying on personal perception of speech. There should not be less
free speech but more free speech and puting things into context enables us to differentiate between facts and opinions with
greater results by not imposing authoritarian approaches at the
same time.
The circumstances of the cases around which the argumentation of the court revolved were distinctive but the background
context of a human right was unchanged throughout. Be it through
the use of case law approach or through the use of specific legal
argumentation approach it was observed that a common theme
can be established. Freedom of speech is contextual and not perceived. We have shown in this research paper that speech cannot
have its freedom depend on perception but rather on the context
of it. The perception of speech and how the judge sees it in each
case is not bound by the apprehension of the idea or the notion
of it but by the context in which this idea is set down.

LITERATURE AND SOURCES
Abrams v. United States, 250 U.S. 616, (1919).
Baker, C. E. (2011). Autonomy and Free Speech. Constitutional Commentary, 27, 251–282.
Balkin, J. M. (2004). How Rights Change: Freedom of Speech in the Digital Era. Sydney Law Review,
26, 1–11.
Bogen, D. S. (1979). Balancing Freedom of Speech. Maryland Law Review, 38(3), 387– 479.
Bogen, D. S. (1983). The Origins of Freedom of Speech and Press. Maryland Law Review, 42(3),
429–465.
Brandenburg v. Ohio, 395 U.S. 444, (1969).
Cantwell v. Connecticut, 310 U.S. 296, (1940).

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DIGNITAS n Is Freedom of Speech Underrated? The View from a Perspective of Human ...
Coalition to protect Clifton Bay, Zachary Hampton Bacon III v. The Hon. Frederick A. Mitchell MP, The
Hon. Jerome Fitzgerald MP, The Attorney General of the Commonwealth of the Bahamas, 2016/
PUB/con/00016, (2016).
Coenen, D. T. (2017). Freedom of Speech and the Criminal Law. Boston University Law Review, 97,
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Dawood, Y. (2013). Democracy and the Freedom of Speech: Rethinking the Conflict Between Liberty
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Downs, D. M., Cowan, G. (2012). Predicting the Importance of Freedom of Speech and the Perceived
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Fiss, O. M. (1986). Free Speech and Social Structures. Iowa Law Review, 71, 1405–1425.
Gilmore, J. (2011). Expression as Realization: Speakers' Interests in Freedom of Speech. Law and
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Greenawalt, R. K. (1989). Free Speech Justifications. Columbia Law Review, 89, 119–155.
Haskins, W. A. (1996). Freedom of Speech: Construct for Creating a Culture Which Empowers Organizational Members. The Journal of Business Communication, 33(1), 85–97.
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Howard, J. W. (2019). Free Speech and Hate Speech. Annual Review of Political Science, 22, 93–109.
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Wilson, W. C. (1975). Belief in Freedom of Speech and Press. Journal of Social Issues, 31(2), 69–76.
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Svoboda govora, nadzor,
akademska svoboda
Andras L. Pap*

Povzetek
Članek je namenjen prepoznavanju kontekstualnih razsežnosti akademske svobode kot dozorelega pravnega koncepta.
Projekt je sprožilo dejstvo, da kljub široki uporabi v mednarodnih dokumentih in domačih ustavah ostaja akademska svoboda premalo razvita v smislu konceptualnih orodij, operacionalizacijskih mehanizmov, metod spremljanja in primerjalnih
shem. Obstajajo tudi različna stališča o tem, kako jo najbolje
konceptualizirati: kot individualno pravico, niz zahtev za avtonomno institucionalno zasnovo, področje, ki ga je treba urediti
za ponudnike tržnih storitev ali javnih dobrin, orodje za oblikovanje mednarodne politike ali akademsko rangiranje – da ne
omenjamo izziva, kako vključiti izzive, ki jih prinašajo gibanja za
socialno pravičnost. Vsi ti pomisleki zahtevajo drugačna orodja
politike in pripadajoče pravne ukrepe.
Ključne besede: akademska svoboda, avtoritarizem, podjetniške in človekove pravice, korporativna univerza, iliberalizem,
identitetne politike, nacionalna varnost, vohunstvo

*
Profesor raziskovalec in vodja oddelka za ustavno in upravno pravo (prej Madžarska akademija znanosti) Center za družbene vede Inštitut za pravne študije; Profesor prava, Eötvös University Institute
for Business Economic/Ludovika University of Public Service Faculty of Law Forcement, Budimpešta,
Madžarska; Dodatni (ponavljajoči se gostujoči) profesor, Central European University, Dunaj, Avstrija.
Prispevek je nastal pod okriljem naslednjih štipendij in projektov: Svoboda izražanja v digitalni dobi,
NKFIHTÉT-2020-00243, ter Urada Ministrstva za inovacije in tehnologijo NRDI v okviru programa
odličnosti mladih raziskovalcev FK_21 (138965) in Programa nacionalnega laboratorija za umetno
inteligenco. Deli tega prispevka so bili objavljeni v Pap, A. L., 2021, 105–126.

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DIGNITAS n Constitutional Law

Freedom of speech, surveillance,
academic freedom
Abstract
The paper is aimed at identifying contextual dimensions for
academic freedom as a matured legal concept in the ongoing
process of codifying it in a binding international instrument. The
project is triggered by the fact that despite its widespread usage
in international documents and domestic constitutions, academic
freedom remains underdeveloped in terms of conceptual tools,
operationalizing mechanisms, monitoring methods and benchmarking schemes. There are also competing notions on how to
best conceptualize it: as an individual right, a set of requirements
for autonomous institutional design, a field to be regulated for
market service providers or public commodities, a tool for international policy making, or academic ranking – not to mention the
challenge of how to incorporate challenges brought by social justice movements. These considerations all require different policy
tools and adjacent legal targeting.
Keywords: academic freedom, authoritarianism, business and
human rights, corporate university, illiberalism, identity politics,
national security, espionage

1. Uvod
S posebnim poudarkom na svobodi govora, je ta članek namenjen prepoznavanju kontekstualnih razsežnosti, ki so pomembne in so lahko koristne pri konceptualizaciji akademske
svobode: nastajajoče svoboščine (očitno na dobri poti za kodifikacijo kot zavezujoč instrument) v skladu z mednarodnim
pravom in ustavnimi določbami, ki se običajno pojavljajo. Resolucija parlamentarne skupščine o „grožnjah akademskemu svetu
svobode in avtonomije visokošolskih ustanov v Evropi“, ki jo
je novembra 2020 sprejel Svet Evrope (Coe), na primer poziva
k sprejetju „Evropske konvencije o zaščiti akademske svobode
in institucionalne avtonomije“. Poročilo, ki podpira resolucijo,
poudarja, da je na primer v večini držav članic (SE) zagotovljena neka oblika ustavne ali pravne zaščite akademske svobode.
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Ustave številnih držav EU poleg varstva svobode govora zagotavljajo tudi neposredno zaščito akademske svobode: 11 jih varuje poučevanje, 15 raziskovanje, osem pa varuje institucionalno avtonomijo. Med drugimi državami članicami Sveta Evrope:
pet zagotavlja zaščito poučevanja in avtonomije, štiri pa splošno
akademsko svobodo. Vendar, kot bomo videli, akademska svoboda ostaja kljub splošni značilnosti pravne kodifikacije, da brez
truda definira zapletene koncepte (kot je na primer ‚začetek ali
konec življenja‘ v kontekstu splava ali dednega prava), precej
dvoumna in nerazvita v smislu konceptualnih orodij, mehanizmov operacionalizacije, metod spremljanja in shem primerjalne
analize. Obstajajo nasprotujoče si predstave o tem, kako najbolje
konceptualizirati akademsko svobodo, ali je: pravica posameznika (predavateljev in osebja ter/ali študentov); nabor zahtev
za avtonomno institucionalno zasnovo; področje, ki ga je treba
urediti za ponudnike tržnih storitev ali javnih dobrin; ali orodje
za primerjalno analizo za oblikovanje mednarodne politike ali
akademsko razvrščanje – da ne omenjamo izziva, kako vključiti
»Zeitgeist« gibanj za socialno pravičnost. Projekt, predstavljen v
članku, je torej sprožen zaradi dejstva, da lahko vsi ti premisleki
zahtevajo in zahtevajo različna orodja politike in sosednje pravne cilje. Zato je treba vsebino svobode sui generis (po mednarodnem in ustavnem pravu) šele razviti.
Pomembna značilnost akademske svobode je, da se nahaja med Scilo in Karibdo neoliberalizma in neliberalizma, saj so
analitiki in deležniki zadržani ne zgolj do posegov neliberalnih
vlad, temveč tudi glede trženja visokošolskega in raziskovalnega
sektorja. Kot pravi zgoraj omenjeno poročilo Coe, je v »vzponu
neoliberalne globalne ekonomije znanja … visoko šolstvo […] monetizirana zasebna dobrina (kjer) […] univerzo bolj skrbi maksimiranje denarja kot zagotavljanje učenja.« Vprašanje (na katerega
ni mogoče odgovoriti na splošno) je torej: kdo je na splošno bolj
vreden zaupanja: država ali podjetniški sektor? Madžarski primer
kaže, da se lahko (neo)liberalne in neliberalne grožnje celo kombinirajo in kumulirajo.
Članek povezuje in triangulira tri koncepte in vprašanja: svobodo govora, nadzor in akademsko svobodo. Slednja je v središču pozornosti, prva dva pa bosta obravnavana kot poudarjeni
referenčni točki. Akademska svoboda je pogosto konceptualizirana kot del ali element svobode govora. Ta ocena se zavzema
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za drugačen pogled, pri čemer ga obravnava kot koncept sui generis, ki se pojavlja v skladu z mednarodnim pravom, hkrati pa
priznava, da je vsebina akademske svobode neločljivo povezana
s svobodo izražanja profesorjev in študentov. Pri ocenjevanju
konceptualnih in praktičnih razsežnosti akademske svobode je
običajen pristop pregled potencialnih forumov in razsežnosti
za omejitve in infiltracije. Kot bo prikazano, nadzor postane
medsektorska značilnost, ne glede na to, ali gre za prizadevanja
za nadzor nad študenti ali fakulteto s strani avtokracije (kot tudi
za spremljanje in profiliranje njihove morebitne infiltracije), ali
pregledovanje politično občutljive akademske vsebine in govora. Poleg takšnih neposrednih učinkov so nedavni dogodki, ki
prinašajo širjenje tehnologij nadzora v obdobju Covida za spremljanje zdravstvenega stanja in gostote množice ali sledenje stikom, ter redefiniranje oblike (spletnega in na videu temelječega) poučevanja in izpitov, poslabšali krčenje akademske svobode in svobode govora na kampusih. Pokazalo se bo, da bo imela
svoboda govora različne posledice za fakultete in študente, in
da so si ti lahko celo v nasprotju, ko si študenti prizadevajo izpodbijati prevladujoče doktrine ali podajajo zahteve po varnem
in socialno pravičnem kampusu, pri čemer dejansko pozivajo
k cenzuri, očiščenju, skladno s kulturo prepovedi (ang. cancel
culture). Vendar sta oba (in zlasti iskanje zapletenega ravnovesja med obema) bistvena elementa akademske svobode. Tudi če
je cilj ocene pretežno pravni, morajo biti razprave o akademski
svobodi interdisciplinarne in se ne morejo izogniti filozofiji v
smislu, da je treba konceptualizirati ali vsaj opredeliti samo bistvo akademskega sveta, vlogo visokega šolstva in raziskovanja
(naj bo to humanistika, življenje oz. družbene vede). Na primer,
svoboda govora zahteva posebno in specifično razumevanje v
kontekstu akademskega sveta (kjer so njene omejitve in meje
lahko drugačne od tistih v zunanjem svetu): poslanstvo univerz
je zagotoviti forum za študente, da raziskujejo in uveljavljajo
svojo politično identiteto, med drugim v obliki organiziranja
protestov. Po drugi strani pa mora biti pravica akademskih delavcev do svobode govora v zadevah, ki se nanašajo na njihovo
delo, očitno na nekaterih področjih veliko širša kot v drugih
poklicih. Sama narava izobraževanja in raziskovanja kot javne
službe ter prispevek akademikov k javnemu dobremu v tej funkciji zato zahteva drugačne standarde (čeprav večina akademi162

DIGNITAS n Svoboda govora, nadzor, akademska svoboda

kov ni javnih intelektualcev ali medijskih zvezdnikov). Čeprav
obstaja očitna razlika med tem, kako akademska svoboda (in
njen demon) prihaja na površje v družbenih, humanističnih in
naravoslovnih vedah, je prav tako pomembno, da poskušamo
uporabiti, kot to počne ta članek, vseobsegajoč koncept svobode in groženj njej.
Osrednji problem in raziskovalno vprašanje je, kako konceptualizirati akademsko svobodo, glede na njeno večplastno naravo.
Ta raziskava je nujna zaradi dejstva, da bodo pravni in politični instrumenti, ki operacionalizirajo koncept, morali odražati in ustrezati tej konceptualizaciji. Kratka ocena ne more dati normativnega, celovitega odgovora, temveč bo opozorila na kompleksnost
izzivov in varnostnih mehanizmov, ki morajo biti v igri. Razprava je strukturirana na naslednji način: prvi del podaja pregled
tega, kako je akademska svoboda konceptualizirana v ustavnem
in mednarodnem pravnem prostoru. Naslednji odseki drugega
dela članka pojasnjujejo nekatere najpomembnejše kontekstualne in politične dimenzije akademske svobode, in sicer to, kako
na akademsko svobodo vplivajo (i) prizadevanja za neliberalni
avtoritarizem, (ii) korporativni interesi, (iii) nacionalna varnost in
mednarodno industrijsko vohunjenje, (iv) identitetna politika in
razprave o socialni pravičnosti. Zaključni, sklepni odsek ponavlja
omejitve analize in nakaže na smernice za nadaljnje raziskave,
analize in zakonodajno urejanje.

2. Akademska svoboda in pravo (in politika)
Čeprav je akademska svoboda že del kanona človekovih pravic/ustavnih svoboščin, so njeni obrisi večinoma nejasni in se
pogosto prepleta s svobodo izražanja oziroma pravico do izobraževanja. Občasno najdemo tudi izjave, ki se nanašajo na avtonomijo določenih institucij, čeprav je pojem le redko podrobno
definiran (Združenje evropskih univerz na primer razlikuje med
organizacijsko, finančno, kadrovsko in akademsko avtonomijo),
(Orosz, 2018, 639–618).
Kar zadeva zavezujoče mednarodne zaveze (trdo pravo): Listina EU o temeljnih pravicah (Listina je bila vključena v 2008 EU Revision Treaty) v 13. členu določa, da sta »umetnost in znanstveno
raziskovanje brez omejitev. Akademsko svobodo je treba spoštovati.« 13. in 15. člen Mednarodnega pakta o ekonomskih, socialnih
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in kulturnih pravicah iz leta 1966 določata, da države pogodbenice tega pakta »priznavajo vsakomur pravico do izobraževanja« in
»se zavezujejo, da bodo spoštovale svobodo, ki je nepogrešljiva
za znanstveno raziskovanje in ustvarjalnost. dejavnost.« Pogodba
ima 170 držav pogodbenic, Odbor ZN za ekonomske, socialne
in kulturne pravice pa pripravlja splošni komentar na 15. člen, ki
bo verjetno podrobneje opredelil posebne obveznosti držav po
tem členu. Ta je že v prejšnjem splošnem komentarju o pravici
do izobraževanja (13. člen) določala upravičenost izobraževalnih
delavcev in študentov do akademske svobode in avtonomije visokošolskih zavodov. Navaja:
»Avtonomija je tista stopnja samoupravljanja, ki je potrebna
za učinkovito odločanje visokošolskih institucij v zvezi z njihovim akademskim delom, standardi, upravljanjem in povezanimi
dejavnostmi. Samoupravljanje pa mora biti skladno s sistemi javne odgovornosti, zlasti v zvezi s financiranjem, ki ga zagotavlja
država ... institucionalne ureditve bi morale biti poštene, pravične in enakopravne ter čim bolj pregledne in participativne ...
člani akademske skupnosti, posamično ali kolektivno, svobodno
sledijo, razvijajo in prenašajo znanje in ideje z raziskavami, poučevanjem, študijem, razpravami, dokumentiranjem, produkcijo,
ustvarjanjem ali pisanjem. Akademska svoboda vključuje svobodo posameznikov, da svobodno izražajo mnenja o instituciji
ali sistemu, v katerem delajo, da opravljajo svoje funkcije brez
diskriminacije ali strahu pred represijo s strani države ali katerega koli drugega akterja, da sodelujejo v strokovnih ali predstavniških akademskih telesih in da uživajo vse mednarodno
priznane človekove pravice, ki veljajo za druge posameznike v
isti jurisdikciji«. (Spannagel, 2020).1
Pravico do izobraževanja zagotavlja tudi 2. člen Protokola št. 1
k Evropski konvenciji o človekovih pravicah (EKČP), akademska
svoboda pa v njem ni izrecno opredeljena. Vendar pa je Evropsko
sodišče za človekove pravice zadeve, povezane z akademsko svobodo, že večkrat spravilo v kontekst Evropske konvencije, večinoma v okviru 10. člena, ki zagotavlja pravico do svobode izražanja.2
Glej European Commission for Democracy Through Law (Venice Commission) Hungary Preliminary Opinion on Act XXV of 4 April 2017 on the Amendment of Act CCIV of 2011 on National Tertiary
Education, Opinion 891/2017 CDL-PI(2017)005, Strasbourg, 11 August 2017 (Venice Commission on
Lex CEU) Para 39.
2
Glej the Venice Commission Report, ki se nanaša na Evropsko sodišče za človekove pravice, Hertel
v. Švica, št. 25181/94, 25. avgust 1998; Evropsko sodišče za človekove pravice, Wille v. Liechtenstein, št.
1

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Sodišče Evropskih skupnosti je v nedavni odločitvi o zadevi CEU
razglasilo, da odvzem avtonomne organizacijske strukture univerzam krši Listino EU o temeljnih pravicah, vendar je svojo sodbo
o dejanju Madžarske opredelilo kot kršitev Splošnega sporazuma
o trgovini in storitvah (GATS), ker CEU ni zagotovil nacionalne
obravnave. (Nagy, 2020).3
Obstajajo tudi številni dokumenti mehkega prava. Verjetno
najobsežnejše je Unescovo priporočilo o statusu visokošolskega
pedagoškega osebja,4 ki zagotavlja smernice na širokem področju
akademskega življenja, vključno z etiko, strokovnim pregledom,
intelektualno lastnino in izjavami (UNESCO Recommendation,
par. 19 and 22), da so države članice dolžne varovati visokošolske
ustanove pred grožnjami njihovi avtonomiji iz katerega koli vira,
države članice in visokošolske ustanove pa bi morale biti odgovorne za učinkovito podporo akademske svobode in temeljnih
človekovih pravic.5 UNESCO je izdal tudi Priporočilo o znanosti
in znanstvenih raziskovalcih (nazadnje posodobljeno leta 2017)
in je vključen v proces oblikovanja novega mehanizma poročanja, ki naj bi bil vključen v postopek univerzalnega rednega pregleda (UPR) v Svetu ZN za človekove pravice (Kinzelbach et al.,
2020). EU6 in Svet Evrope7 imata številne izjave in nezavezujoče
instrumente.
Obstajajo tudi številne pobude poklicnih mrež (in vse proizvajajo nešteto zavez in izjav o akademski svobodi). Na primer Svetovna univerzitetna služba (aktivna od leta 1920), Mednarodno
28396/95, 28. oktober 1999; Evropsko sodišče za človekove pravice, Stambuk v. Nemčija, št. 37928/97,
17. oktober 2002; Evropsko sodišče za človekove pravice, Lombardi Vallauri v. Italija, št. 39128/05, 20.
oktober 2009; Evropsko sodišče za človekove pravice, Sorguç v. Turčija, št. 17089/03, 23. junij 2009;
Evropsko sodišče za človekove pravice, Sapan v. Turčija, št. 44102/04, 6. julij 2010; Evropsko sodišče
za človekove pravice, Mustafa Erdoğan v. Turčija, št. 346/04 and 39779/04, 27. maj 2014.
3
Sodišče Evropske unije, Evropska komisija proti Madžarski, št. C‑286/12, 6. november 2012.
4
Sprejeto 11. novembra 1997.
5
V odstavkih 27-28 je zapisano: “Visokošolsko pedagoško osebje je upravičeno do ohranjanja akademske svobode ... pravic, brez omejitev s predpisano doktrino, do svobode poučevanja in razpravljanja, svobode pri izvajanju raziskav ter razširjanja in objavljanja svojih rezultatov, svobode svobodnega
izražanja svojega mnenja o instituciji ali sistemu, v katerem delajo, svobodo institucionalne cenzure
in svobodo sodelovanja v strokovnih ali predstavniških akademskih telesih. Vse visokošolsko pedagoško osebje bi moralo imeti pravico opravljati svoje funkcije brez … strahu pred represijo s strani
države ali katerega koli drugega vira. … Visokošolsko učiteljsko osebje ne bi smelo biti prisiljeno poučevati proti svojemu najboljšemu znanju in vesti ali biti prisiljeno uporabljati učne načrte in metode,
ki so v nasprotju z nacionalnimi in mednarodnimi standardi človekovih pravic.”
6
Glej na primer omenjeno 2018/2117(INI) priporočilo.
7
Glej na primer Parliamentary Assembly Recommendation 1762 (2006) o “Academic freedom and
university autonomy, Recommendation Rec(2007)6 of the Committee of Ministers to member states
on the public responsibility for higher education and research, Recommendation CM/Rec(2012)7 of
the Committee of Ministers to member States on the responsibility of public authorities for academic
freedom and institutional autonomy.”

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združenje univerz (nevladna organizacija, ustanovljena leta 1950
na pobudo Unesca, deluje od leta 1950, trenutno ima predstavnike iz 130 držav), Svet za razvoj družboslovja Raziskave v Afriki
(CODESRIA, ustanovljena leta 1973), Mednarodni konzorcij za
visoko šolstvo, državljansko odgovornost in demokracijo (aktiven
od leta 1999) itd.
Konkretno v Evropi se je leta 1955 pod predsedovanjem vojvode Edinburškega v Cambridgeu zbralo več kot sto voditeljev
univerz iz 15 evropskih držav, ki so ustanovili Stalno konferenco
rektorjev, predsednikov in prorektorjev evropskih univerz. Leta
1960 je Svet Evrope ustanovil Odbor za visoko šolstvo in raziskave (CHER), ki je združeval univerzitetne in politične voditelje.
Leta 1988, ob 900. obletnici Univerze v Bologni, je 388 rektorjev
in predstojnikov univerz iz vse Evrope in širše podpisalo Magna
Charta Universitatum, ki je kot ključna filozofska koncepta univerze opredelila akademsko svobodo in institucionalno avtonomijo,
leta 1999 29 držav je s tako imenovano Bolonjsko deklaracijo
izrazilo pripravljenost, da se zavežejo k povečanju konkurenčnosti Evropskega visokošolskega prostora (EHEA), pri čemer so
poudarili potrebo po nadaljnjem krepitvi neodvisnosti in avtonomije vseh visokošolskih ustanov. Ob tem je bil leta 2000 podpisan
Observatorij temeljnih univerzitetnih vrednot in pravic, leta 2003
pa je Evropska kulturna konvencija Sveta Evrope (ki ne omenja
akademske svobode) postala okvir bolonjskega procesa, ki se je
s tem geografsko razširil.
Kar zadeva vsebino zavez, večina mednarodnih dokumentov
vključuje izjave o bistveni in neločljivi povezavi med demokracijo in akademsko svobodo. Omenjena resolucija Sveta Evrope
iz leta 2020 poudarja, da »akademska svoboda in institucionalna
avtonomija visokošolskih zavodov nista ključni le za kakovost
izobraževanja in raziskovanja; sta bistvena sestavna dela demokratičnih družb.« Opominja (Council of Europe Parliamentary
Assembly Res. 2352, 2020, par. 3), da je »pandemija Covid-19 pokazala, v kolikšni meri akademska svoboda pomaga raziskovanju
in širjenju zanesljivih informacij v svetovni zdravstveni krizi,« in
opozarja na prejšnja priporočila, ki določajo, da so javni organi
dolžni zaščititi akademsko svobodo in institucionalno avtonomijo ter da morajo vzdržati kakršnih koli dejanj, ki bi jih ogrozila
ali posegla vanje (poudarja pa tudi, da se v odsotnosti redno
spremljanih podatkov in pravno zavezujoče mednarodne po166

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godbe različne oblike zlorab dogajajo neovirano in nesankcionirano). Omenjeno Poročilo, ki je v ozadju resolucije, poudarja, da
(čeprav to ni privilegij, temveč nujen pogoj, ki izhaja iz pravice
do izobraževanja in je tesno povezan s svobodo misli, svobodo
mnenja in svobodo izražanja, da lahko visokošolske ustanove
opravljati svojo javno funkcijo (Council of Europe Parliamentary Assembly Report 15167, 2020, par. 8)) akademska svoboda
in institucionalna avtonomija ostajata večinoma neopredeljena
pojma, kar ima za posledico nizko ozaveščenost akademskega
osebja o njihovih pravicah in otežuje možnost sankcioniranja
kršitev. Poudarja tudi, da so (Council of Europe Parliamentary
Assembly Report 15167, 2020, par. 15) pohvalne definicije v teh
izjavah le redko dovolj podrobne, da bi omogočile operacionalizacijo merila uspešnosti, s katerim bi lahko merili raven (in
spremembe) akademske svobode.
To kaže na vprašanje, kaj je vsebina akademske svobode. Akademska svoboda vključuje poučevanje, raziskovanje in razširjanje idej ter se lahko izvaja v raziskovalnih inštitutih in izobraževalnih ustanovah. Številne mednarodne izjave in poročilo Sveta
Evrope 2020 (Council of Europa Parliamentary Assembly Report
15167, 2020, par 17-21 in 27) opredeljujejo naslednje bistvene
elemente: akademska svoboda je poklicna svoboda, podeljena
posameznim akademikom, vključno s svobodo poučevanja in
raziskovanja (prosto določiti, kaj se bo poučevalo; kako se bo
poučevalo; komu bo dovoljeno študirati; kdo bo poučeval; kako
je delo študentov ocenjeno ter kdo bo prejel akademske nagrade; pravica brez prisile določiti, kaj se bo raziskovalo ali ne;
kako se bo raziskovalo; kdo bo raziskoval, s kom in za kakšen
namen bo raziskoval; svobodna izbira metod in poti, po katerih
se razširjajo izsledki raziskav). Podporni elementi so: habilitacija,
deljeno upravljanje in avtonomija (tako posameznik kot institucija, slednja pa vključuje akademsko osebje, ki ima enako pravico izraziti svoje mnenje o izobraževalni politiki in prednostnih
nalogah ustanove brez vsiljevanja ali grožnje s kaznovanjem),
akademska svoboda pa mora vključevati svobodo študentov
in svobodo učenjakov. Ameriško združenje univerzitetnih profesorjev (aktivno od leta 1915) z nekoliko bolj pragmatičnim
pristopom (zaradi prostorskih omejitev ne navajamo dolgega
seznama definicij iz tega dokumenta) med drugim zagotavlja
seznam, kaj sodi in kaj ne sodi v okvir akademske svobode:
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»akademska svoboda pomeni, da lahko tako člani akademskega
zbora kot tudi študenti sodelujejo v intelektualni razpravi brez
strahu pred cenzuro ali maščevanjem; vključuje pravico člana
fakultete, da ostane zvest svoji pedagoški filozofiji in intelektualnim zavezam.« (Nelson, 2010). Ohranja intelektualno celovitost
izobraževalnega sistema in tako služi javnemu dobremu ter daje
tako študentom kot učiteljem pravico do izražanja svojih stališč
– v govoru, pisni obliki in prek elektronske komunikacije, tako
v kampusu kot zunaj njega – brez strahu pred sankcijami, razen
če način izražanja bistveno škodi pravicam drugih ali, v primeru
članov fakultete, ti pogledi dokazujejo, da so poklicno nevedni,
nesposobni ali nepošteni glede svoje discipline ali strokovnih
področij. Akademska svoboda tudi pomeni, da političnih, verskih ali filozofskih prepričanj politikov, administratorjev in članov javnosti ni mogoče vsiliti študentom ali fakultetam in univerzam, da se te uprejo prizadevanjem sponzorjev podjetij ali
vlade, da bi preprečili širjenje kakršnih koli raziskovalnih ugotovitev. Akademska svoboda daje članom fakultete in študentom
pravico, da zahtevajo odškodnino ali zahtevajo zaslišanje, če menijo, da so bile njihove pravice kršene, in daje članom fakultete
in študentom pravico, da izpodbijajo stališča drug drugega, ne
pa tudi, da jih kaznujejo, ker jih imajo. Akademska svoboda ščiti
pooblastilo člana fakultete za dodeljevanje ocen študentom, dokler ocene niso muhaste ali neupravičeno kaznovalne. Akademska svoboda na drugi strani ne pomeni, da lahko član fakultete
nadleguje, grozi, ustrahuje, zasmehuje ali vsiljuje svoja stališča
študentom. Prav tako akademska svoboda (ali habilitacija) ne
ščiti nesposobnega učitelja pred izgubo službe ali ščiti člane fakultete pred izzivi kolegov ali študentov ali pred nestrinjanjem z
njihovo izobraževalno filozofijo in praksami. Vendar pa je opredelitev akademske svobode, zlasti s pogledom na oblikovanje
mehanizmov spremljanja in učinkovitih pravnih sredstev, precejšnja težava, saj so konceptualna orodja, operacionalizacijski
mehanizmi, metode spremljanja in sheme primerjalne analize
dvoumni in predmet razprave.“
Razlog, zakaj je konceptualizacija akademske svobode problematična, je v tem, da morata biti oblikovanje politik in zakonodaja
(domača ali mednarodna) prilagojena zahtevam, saj sta zgolj pot
do cilja. Da bi lahko umerili meje in morfologijo akademske svobode, je treba obravnavati več perečih vprašanj, na primer, kaj je
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izobraževanje (in tudi: znanost), osrednji in nasprotujoči koncept,
na katerega se nanaša akademska svoboda, kot niz operacionalizirajočih in večinoma postopkovnih jamstev? Je izobraževanje (in
znanost) javno ali zasebno blago? Globalna ali nacionalna/-istična
vrednota?
Zgoraj omenjeno Unescovo priporočilo o statusu visokošolskega pedagoškega osebja na primer razglaša (UNESCO Recommendation, par. 10), da je visoko šolstvo usmerjeno v človeški
razvoj in napredek družbe ter da se financiranje visokega šolstva
obravnava kot oblika javne naložbe, katere donosi so večinoma
nujno dolgoročni, odvisno od prioritet vlade in javnosti. Kljub
temu Magna Charta Universitatum 2020 določa, da so univerze (ki imajo državljansko vlogo in odgovornost) »del globalnih,
kolegialnih mrež znanstvenih raziskav in štipendij, ki gradijo na
skupnih telesih znanja in prispevajo k njihovemu nadaljnjemu
razvoju […] potopljene v in povezane z globalnim razvojem,«
čeprav dodajajo, da so »prav tako vgrajene v lokalne kulture in
so ključnega pomena za njihovo prihodnost in obogatitev […]
(in) v celoti sodelujejo in prevzemajo vodilne vloge v lokalnih
skupnostih in ekosistemih.« Resolucija Sveta Evrope 2020 (Council of Europe Parliamentary Assembly Res. 2352, 2020, par. 6)
»izraža zaskrbljenost zaradi naraščajočega zunanjega financiranja in komodifikacije visokošolskega izobraževanja, ki spodkopava zamisel o visokem šolstvu kot javni dobrini in javni odgovornosti,« ker »lahko komercialni in politični interesi zunanjih
financerjev spodkopajo osredotočenost raziskav na povečanje
dobička in prihodkov« za podjetja, ki sponzorirajo takšne raziskave […] Univerze so ikone intelektualnih dosežkov držav […]
in imajo pomembno vlogo pri ohranjanju kulturne in jezikovne
dediščine.« Pripadajoče priporočilo (Council of Europe Parliamentary Assembly Rec. 2189, 2020, par. 1) poudarja, da morajo
»visokošolske ustanove ponovno okrepiti svojo funkcijo družbenih akterjev za javno dobro«.
Ko smo prikazali stanje pravnih in političnih zavez do podpiranja akademske svobode in skicirali porozne obrise njene
vsebine, se zdaj posvetimo razpravi o nekaterih kontekstualnih
razsežnostih, ki so osrednjega pomena pri konceptualizaciji (in
kodifikaciji ustreznih jamstev in shem spremljanja za) akademsko svobodo.

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3. Kontekstualna razsežnost I.: Akademska
svoboda kot prepovedano območje za
neliberalno avtokracijo
Prva, najbolj očitna razsežnost akademske svobode se nanaša
na prepoved in zaščito posegov v različne oblike akademskega
delovanja s strani vlad – tako rekoč neliberalnih avtokracij, ki običajno cementirajo in utrjujejo neliberalizem, ko je končano zajetje
ustavnih institucij (ali včasih hkrati s tem). Napadi na akademsko
svobodo so lahko usmerjeni na poučevanje, raziskovanje in razširjanje ter so usmerjeni tako na raziskovalne inštitute kot tudi
na univerze. Če vlade prepovedujejo ali zavračajo sodelovanje
ali posredovanje informacij nevladnim organizacijam (»NVO«) in
zagovornikom človekovih pravic, ki so dragoceni viri za raziskave
(Toplak & Boštjan, 2019, str. 1–8) lahko prav tako negativno vplivajo na akademsko svobodo.
Madžarska (Pap, 2021) ponuja živahen primer več načinov,
kako lahko vlada omeji akademsko svobodo, ne da bi zaprla ali
zavrnila izstopne vizume za akademike: Omejitve akademske
svobode na področju raziskovanja so lahko v obliki postavitve
neodvisnih javnih raziskovalnih ustanov pod bolj neposreden vladni nadzor (Halmai, 2019; Vass, 2020), prerazporeditev sredstev
v alternativno mrežo od vlade odvisnih in vladi prijaznih raziskovalnih inštitutov, možganskih trustov in GONGO-jev; ali sprejetje zakonodaje, na podlagi katere lahko vladne agencije zavrnejo
posredovanje informacij nevladnim organizacijam ali previsoko
zaračunajo zahteve po javnih podatkih (Glej na primer Hungarian
NGOs, 2013).
Posegi v akademsko svobodo na pedagoškem področju imajo
še več možnosti. Avtonomijo univerz je mogoče omejiti z zakonodajo, ki reorganizira finančno upravljanje z rektorji, ki jih imenuje
vlada (Ziegler, 2019, str 4–33); krčenjem in dezinvestiranjem nekaterih izdvojenih programov iz državnih ustanov; zavračanjem
akreditacij za določene programe na javnih univerzah (Bajomi,
2020, str. 30–31); zavrnitvijo in odvzemom akreditacije določeni,
izbrani instituciji; prevzemom nacionalne akreditacijske komisije;
privatizacijo javnih univerz v fundacije, ki jih nadzorujejo vladni
pajdaši (Szirtes, 2020); nacionalizacijo javnega šolstva; centralizacijo in prevzemom nadzora nad učnimi načrti javnega izobraževanja; izkrivljanjem akademskega trga dela s preusmerjanjem
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financiranja v neposredno upravljane ali favorizirane ustanove;
in seveda odpuščanjem profesorjev.
Na področju razširjanja in objavljanja raziskovalnih izsledkov
je akademsko svobodo mogoče omejiti z očitnimi ali zelo subtilnimi oblikami cenzure; blokiranjem akademskih dogodkov, ki
bi vključevali nevladne organizacije za človekove pravice s črnega seznama ali disidentske akademike; gostovanjem političnih
ali propagandnih dogodkov v prostorih univerze (spodbujanje
študentov k udeležbi); sprožitvijo medijskih kampanj za ustrahovanje kritičnih akademikov (Körtvélyesi, 2020; Enyedi, 2018;
Búrca et al., 2019); ali maščevanjem ustanovam, kjer profesorji
ali študenti protestirajo proti vladi.
Če povzamemo, ima kršitev akademske svobode veliko obrazov: cenzuro, zavrnitev financiranja ali prepoved akademskih
programov, nadlegovanje, ustrahovanje, davčne napade, eksistenčne grožnje (prenehanje ali zavrnitev napredovanja ali
preprosto izguba dostopa do diskrecijskih potnih štipendij in
drugih subvencij) in zapiranje ustanov ali njihovih enot. Samocenzura je naravna posledica: preudarno in logično je, da vodstvo univerze novači samo konformiste. Tako se lahko akademiki soočajo z najrazličnejšimi zunanjimi in notranjimi pritiski:
psihološkimi, eksistencialnimi in institucionalnimi. Učinek teh
pritiskov je lahko raznovrsten: nadlegovanje in ustrahovanje
vzameta neverjetno veliko energije in časa, podobno kot odgovarjanje na ciljane poizvedbe davčnih organov. Institucionalna
negotovost (v zvezi z univerzitetnimi programi ali celotnimi
institucijami) ohromi strateško načrtovanje, prošnje za nepovratna sredstva in zaposlovanje študentov. Povečana stopnja
stresa in utrujenosti močno zmanjša uspešnost, pa naj gre za
raziskovanje ali poučevanje. Razpad raziskovalnih centrov, akademskih programov ali institucij povzroča nepopravljivo škodo: te skupnosti je težko obnoviti, tudi če bi se politični režim
nenadoma spremenil. Poleg tega so omejitve akademske svobode nesorazmerno usmerjene na mlajše učitelje, saj so starejši
akademiki z delovnim časom, vzpostavljenimi mednarodnimi
mrežami, potencialnim dostopom do štipendij in z nevladnimi
viri manj prizadeti.
Kot odziv so se pred kratkim pojavile pobude za vključitev
akademske svobode v akademsko razvrščanje, s čimer so zainteresirane strani prisiljene, da kršitve jemljejo resno. Resolucija
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Sveta Evrope iz leta 2020 poudarja, da »akademska svoboda
in avtonomija danes nista ustrezno upoštevani na nobeni lestvici univerz, zaradi česar se nekatere visokošolske ustanove
v državah z najnižjimi ocenami AFI zdijo odlične,« (Council
of Europe Parliamentary Assembly Res. 2352, 2020, par. 7) in
skupščina »poziva ustrezne deležnike, vključno z mednarodnimi organizacijami, nacionalnimi organi, akademskimi strokovnimi združenji, univerzami in financerji, da vključijo oceno
akademske svobode v svoje postopke pregleda, institucionalna
partnerstva ter mehanizme razvrščanja in finančne podpore«
(Council of Europe Parliamentary Assembly Res. 2352, 2020,
par. 11).
Poročilo, na podlagi katerega je resolucija temeljila, posebej omenja (Council of Europe Parliamentary Assembly Report
15167, 2020, par. 74) predstavljen nov indeks akademske svobode in globalni nabor podatkov o časovni vrsti, ki so ju razvili
Inštitut za globalno javno politiko (GPPi), Univerza Friedrich-Alexander-Universität Erlangen-Nürnberg (FAU), mreža Scholars at Risk in Inštitut V-Dem marca 2020, ki je sestavljen iz petih
strokovno kodiranih indikatorjev, ki zajemajo ključne elemente
dejanskega uresničevanja akademske svobode (svoboda raziskovanja in poučevanja; akademska izmenjava in razširjanje;
institucionalna avtonomija; celovitost kampusa (Kinzelbach
et al., 2020);8 in svoboda akademskega in kulturnega izražanja.) Indeks dopolnjujejo dodatni, dejanski kazalniki, ki ocenjujejo de jure zaveze držav akademski svobodi na ustavni in
mednarodni ravni, ki vključujejo podatke o dogodkih (Kinzelbach et al, 2020),9 podatki o samoprijavi, podatki anket, pravne analize in podatki, kodirani s strani strokovnjakov. Avtorji
poudarjajo, da formalna pravna analiza verjetno ne bo zgrešila
bistva, leta 2019 je imela na primer skoraj ena tretjina držav z
najslabšimi rezultati na področju akademske svobode vzpostavljeno ustavno zaščito akademske svobode (Kinzelbach et al.,
2020).
Integriteta kampusa pomeni ohranjanje odprtega učnega in raziskovalnega okolja, ki ga zaznamuje
odsotnost namerno, od zunaj povzročene klime negotovosti ali ustrahovanja v kampusu. Primeri kršitev integritete kampusa so politično motiviran (fizični ali digitalni) nadzor, prisotnost obveščevalnih
ali varnostnih sil ali študentskih milic, napadi tretjih oseb z namenom zatiranja akademskega življenja.
9
Podatke o napadih na akademike in študente na podlagi dogodkov je zbiral Scholars at Risk’s Academic Freedom Monitoring Project že od 2013.
8

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4. Kontekstualna razsežnost II.: Akademska
svoboda kot omejitev korporativnih
interesov
Kot je navedeno zgoraj, akademska svoboda v politiki in političnih razpravah pogosto služi kot orodje za globalizacijo in
nadnacionalno povezovanje, pa tudi kot instrument za komercialne vidike. V zadnjih desetletjih je visoko šolstvo, starodavna
in prožna tvorba, doživela pomembne spremembe. Kot pravijo
Aderbach et al. (Aberbach & Christensen, 2018, str. 487–506)
kažejo, da je akademsko vodstvo tako kot pri administraciji vedno bolj profesionalizirano in menedžersko usmerjeno. Študenti so prav tako prešli iz podrejenih v dragocene stranke na
svetovnem trgu, ki lahko vedno »svoj posel prenesejo drugam.«
Še posebej, ker je izobraževanje postalo robustna dejavnost z
raznolikim portfeljem storitev, vključno s stanovanji, programi
otroškega varstva, zdravstvene oskrbe in svetovanja, boljšo in
bolj raznoliko prehrano v dijaških lokalih. Raziskovalne dejavnosti prav tako niso več »povezane z dejavnostmi posameznih
profesorjev, ampak so kolektivna prizadevanja, pri katerih ima
uprava vlogo pri zagotavljanju informacij in podpore za akademsko osebje, ki se prijavlja za raziskovalne štipendije, poroča
in objavlja rezultate raziskav. Zato so univerze vse pogosteje dobivale status podjetij, zaradi česar so formalno bolj avtonomne
od vlad, delno zato, da bi bile bolj konkurenčne na svetovnem
izobraževalnem trgu, skupaj z večjimi zahtevami vlade v skladu z idealom „tržnega financiranja raziskav“, za pridobivanje
virov iz zunanjih virov - javnih in zasebnih. To vodi do paradoksalne dinamike: več institucionalne avtonomije pomeni večjo
odvisnost od zunanjih virov. Večja formalna svoboda pomeni
manj dejanske avtonomije.« (Aberbach & Christensen, 2018,str.
487–506).
Obrazložitev poročila (sestavil jo je poročevalec madžarske
skrajno desničarske stranke Jobbik), na katerem temeljijo omenjeni dokumenti SE 2020, opozarja (Council of Europe Parliamentary Assembly Report 15167, 2020, par. 2)na »tveganja, da
se odločitve o financiranju uporabijo kot orodje za dušenje nasprotujočih si glasov«, in hkrati priznava(Council of Europe Parliamentary Assembly Report 15167, 2020, par. 30)da »zunanje
financiranje pomaga povečati raziskovalne zmogljivosti in daje
173

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[…] institucijam priložnost za opravljanje večjih in bolj zapletenih
raziskovalnih nalog.« Trdi tudi, da „politično“ sprožene raziskave
in komercialni interesi tvegajo, da se daje prednost raziskavam,
ki zadovoljujejo potrebe financerja, in ogroža integriteto raziskovalcev ter neodvisnost, veljavnost in zanesljivost rezultatov
raziskave. Pravzaprav poziva k povečanju »državnega financiranja, namenjenega visokemu šolstvu, da bi zmanjšali tveganja, ki
izhajajo iz vključevanja zunanjih sponzorjev.« Poročilo trdi, da
ima Splošni sporazum o trgovini in storitvah (GATS) možnost,
da »spodkopava lokalne univerze in visoke šole z ustvarjanjem
določb za tujo ponudbo, ki ne zadovoljuje lokalnih potreb, (in)
sistem bi lahko … bil preobremenjen in spodkopan s postopno
liberalizacijo in dotokom tujih ponudnikov.«

5. Kontekstualna razsežnost III.: Akademska
svoboda kot orodje za infiltracijo tujih
agentov
Akademska svoboda ima tudi razsežnost mednarodnih zadev/varnosti. Kinzelbach et al poudarjajo (2020), kako lahko
indeks akademske svobode pomaga diplomatom izraziti zaskrbljenost zaradi kršitev ali celo zagotoviti hitre izdaje vizumov za
ogrožene učenjake ali proaktivno razširjati informacije o razpoložljivih štipendijah za preganjane akademike. Drugi izpostavljajo različne pomisleke, ki jih lahko vključuje akademsko sodelovanje z nedemokratičnimi režimi. Obstajata dva pristopa: zagovarjanje »ideala spremembe z izmenjavo«, ki temelji na predpostavki, da »sodelovanje prispeva k političnemu in družbenemu
napredku« ter da bodo dvostranske izmenjave med ljudmi o
izobraževanju, uveljavile mehko moč v avtokracijah. Drugi argument zahteva umik in ogibanje, ker demokratične spremembe
z angažiranjem niso delovale po pričakovanjih, sodelovanje pa
prinaša celo tveganja, kot so neprostovoljni prenos tehnologije,
kraje intelektualne lastnine, vohunjenje, tehnologija z dvojno
rabo (kar pomeni raziskave, namenjene civilistom, lahko pa imajo tudi vojaške namene). Baykal in Benner (Baykal & Benner,
2020) sta pripravila podrobno poročilo o morebitnih tveganjih,
ki jih prinašajo nedemokratične države, ki ponujajo možnosti
financiranja univerzam in možganskim trustom v demokraci174

DIGNITAS n Svoboda govora, nadzor, akademska svoboda

jah (kot so Konfucijevi inštituti, Kitajsko-ameriška fundacija za
izmenjavo, prokremeljski raziskovalni Inštitut za dialog o civilizacijah ali Nemško-ruski forum), financirane katedre ali financiranje projektov, delno usmerjeno preko državnih ali nominalno
zasebnih podjetij, pa tudi posameznih učenjakov iz demokracij
(kot so donosna mesta gostujočih znanstvenikov v raziskovalnih
ustanovah v nedemokratičnih državah). Skupaj z univerzitetnimi
programi izmenjave, ki se uporabljajo za »izobraževalno diplomacijo«, so te institucije in projekti tako instrumentalizirani za
popularizacijo ali legitimizacijo avtokratskih pripovedi. Baykal
in Benner poudarjata, da je več nacionalnih univerzitetnih sistemov (zlasti v Združenem kraljestvu, Avstraliji in ZDA) vedno bolj
odvisnih od šolnin, ki jih plačujejo študenti iz nedemokratičnih
držav. Vse to ustvarja kanale vpliva iz nedemokracije v odprte
družbe, medtem ko doma nedemokratične države pritiskajo na
tuje nevladne organizacije, fundacije, think tanke in univerze
tako, da jim omejujejo zmožnost izvajanja lastnih programov
in celo lokalni sodelavci zahodnega projekta so lahko izpostavljeni nevarnosti vladne represije. Baykal in Benner trdita, da
so velika sredstva, ki se iz Kitajske, Turčije in Rusije usmerjajo
v think tanke, kot je Atlantic Council, namenjena oblikovanju
zunanjepolitičnih razprav. Sklicujoč se na preiskavo Freedom
House, opozarjajo na vodilne univerze na Zahodu, ki sprejemajo
sponzorstva avtoritarnih režimov v višini sto milijonov za vzpostavitev raziskovalnih centrov in drugih vrst partnerstev.
Vpliv se lahko zlahka spremeni tudi v odvisnost. Baykal in Benner poudarjata, da je v Nemčiji Kitajska država izvora številka ena
za mednarodne študente (42.676 od vseh 394.665 študentov v semestru 2018/2019 je prišlo iz Kitajske), ki ji je tesno sledila Turčija
(39.634 študentov). Rusija se je s 13.968 študenti uvrstila na peto
mesto, kitajski študenti pa so tudi največja skupina tujih študentov v EU, saj so leta 2017 predstavljali 11,2-odstotni delež (ali 1,71
milijona študentov). V Avstraliji je bilo kitajskih študentov 38,3 odstotka (oz. 152.591 študentov) vseh študentov v letu 2018. To je še
posebej pomembno v sistemih, ki temeljijo na šolninah: leta 2017
je šolnina kitajskih študentov predstavljala med 13 in 23 odstotki
celotnega prihodka sedmih ključnih avstralskih univerz, ki »postajajo vse bolj zaskrbljene, da ne dražijo uradne Kitajske.« Tudi (Baykal
& Benner, 2020) ZDA, Združeno kraljestvo, Francija in Avstralija
(poleg Rusije) so največji izvozniki podružničnih kampusov, pr175

DIGNITAS n Constitutional Law

venstveno na Kitajsko in ZAE: ni treba posebej poudarjati, da je stanje akademske svobode v podružničnih kampusih zaskrbljujoče.
Tveganja odvisnosti niso nujno omejena na financiranje: številni raziskovalni inštituti se upirajo opustitvi sodelovanja s partnerji
v nedemokratičnih državah, ker lahko v nekaterih okoliščinah
raziskava zahteva posebne naravne ali demografske pogoje, ki so
prisotni le v nekaj državah, zaradi česar se replikacija izvaja zunaj
teh kontekstov. Taka odvisnost pogosto povzroči samocenzuro.
To ne vpliva samo na študente, ki prihajajo iz nedemokratičnih
držav. Na primer, Združenje kitajskih študentov in učenjakov naj
bi delno z zagotavljanjem sredstev poskrbelo, da študenti ohranjajo tesne vezi s kitajskimi veleposlaništvi, in poskuša vplivati
na razprave v kampusu (Baykal & Benner, 2020). Samocenzura
je razširjena tudi pri regionalnih učenjakih, ki ne morejo tvegati
zavrnjenih prošenj za vizum za delo na terenu (Baykal & Benner,
2020). Thorsten Benner v Washington Postu (Benner, 2019) neposredno nagovori Harvard, MIT, Georgetown in druge vrhunske
univerze ter možganske truste, naj »sprejmejo obljubo demokraciji«, saj njihovo delo temelji na neodvisnosti, integriteti in iskanju
resnice ter »zagovarjajo vse, kar avtoritarci prezirajo: odprto razpravo, neodvisnost.« Za smernice je Human Rights Watch objavil
kodeks ravnanja za fakultete, univerze in akademske ustanove po
vsem svetu (Human Rights Watch, 2020).
Dodati je treba, da sum deluje v obe smeri: Univerza v Arizoni
je za FBI praktično ujela kasneje preverjenega učenjaka in (Fischer, 2021) Univerza v Arizoni, ki je anketirala 2000 profesorjev,
podoktorjev in podiplomskih študentov na več kot 80 raziskovalno intenzivnih univerzah, je odkrila »dosleden vzorec« rasnega
profiliranja med znanstveniki kitajskega porekla, od katerih jih je
več kot 40 odstotkov poročalo, da se počutijo profilirane s strani
vlade ZDA (Kotkamp, 2022).

6. Kontekstualna razsežnost IV.: Akademska
svoboda: izziv za politiko identitete in
razprave o socialni pravičnosti
Akademska svoboda je v središču kulturnih vojn tudi onkraj
neliberalnih avtokracij. Neločljivo je vpletena v trenutne razprave
o socialni pravičnosti in kulturni vojni na področju humanistike
176

DIGNITAS n Svoboda govora, nadzor, akademska svoboda

in družboslovja. Tu se razprave pogosto obrnejo na karierno nevarne bitke med tabori, ki disidente označujejo kot „prebujene
bojevnike socialne pravičnosti za študije pritožb, ki se ukvarjajo z »mesearch« na eni strani, in privilegiranimi paternalističnimi
konservativci, ki nasprotujejo politiki identitete, na drugi strani.
V tem svetu je populacija rednih profesorjev vse manjša in celo
tistim, ki so ostali, grozijo nove oblike samocenzure, pri čemer
se za vsako ceno izogibajo obtožbam »kulturnega prisvajanja«.
Izogibanje trenju v učilnici z nepriljubljenimi mnenji je eksistencialna nuja za pomočnike, inštruktorje in honorarne profesorje z
možnostjo podaljšanja pogodb, ki sestavljajo večino učiteljskega
osebja (Kipnis, 2015a).
Občasna kontroverzna uporaba ali celo, kot trdijo nekateri,
zloraba postopkov nadlegovanja v obdobju #MeToo (Pap, 2019)
je resen vir zaskrbljenosti, čeprav jo lahko razumemo kot nujen
stranski učinek dolgo potrebnega premika v tem, kako so se enakost spolov, spolne vloge in obrisi družbenih interakcij spremenili v zahodnih družbah.
Omenjeno UNESCO-vo priporočilo o statusu visokošolskega pedagoškega osebja poudarja (UNESCO Recommendation
, par. 33) obveznost spoštovanja akademske svobode drugih
članov akademske skupnosti in zagotavljanje poštene razprave
o nasprotnih pogledih. Kljub temu omenjeno poročilo v ozadju
resolucije Sveta Evrope 2020 (Council of Europe Parliamentary Assembly Res. 2352, par. 37 and 41) navaja, da je, glede na
študijo, ki je potekala po vsej EU, 21 % vprašanih izvajalo samocenzuro, 15,5 % pa je poročalo, da jih ustrahujejo drugi člani
akademskega osebja.
Kot pravi Michael Poliakoff, predsednik Ameriškega sveta
skrbnikov in alumnijev (Paliakoff, 2022), »številne univerzitetne
kampuse danes upravljajo orwellovske »skupine za odzivanje na
pristranskost«, pri čemer lahko študenti prijavijo vrstnike ali profesorje upravi fakultete zaradi »žaljivih« izjav, ki so ohlapno definirane. […] z digitalnim zapisom razprav v razredu bi lahko bile
ekipe za odzivanje na pristranskost še toliko bolj prodorne. […]
Zdaj, ko so skoraj vsi visokošolski predmeti objavljeni na spletu,
kjer si jih je mogoče v celoti ogledati, lahko politični oportunisti,
levi in desni, izkoristijo ta trajni, dekontekstualizirani zapis proti
svojim nasprotnikom … Tako študenti kot profesorji potrebujejo
konkretna, verodostojna jamstva da virtualna učilnica ne postane
177

DIGNITAS n Constitutional Law

podobna Twitterju, kjer lahko izjava postane viralna, uniči kariero
in obstaja v trajni evidenci.«
Študija, ki je temeljila na osmih raziskavah akademskega in
podiplomskega študentskega mnenja v anglo-ameriškem svetu, je
preučevala pripravljenost fakultete, da odpove pogodbe kontroverznim akademikom in diskriminira politične manjšine (v ZDA
velja, da je levo usmerjenih akademikov na univerzah bistveno
več, in sicer v razmerju več kot 10 proti ena), (Kaufmann, 2021a;
Kaufmann, 2021b). V ZDA je eden od treh konservativnih podiplomskih študentov in akademikov poročal, da je bil zaradi svojih stališč disciplinsko kaznovan ali so mu grozili z disciplino, 75
odstotkov konservativnih akademikov v družboslovju in humanistiki v ZDA in Veliki Britaniji pa je dejalo, da so njihovi oddelki
sovražna okolja za njihova prepričanja (Council of Europe Parliamentary Assembly Res. 2352, par. 37 and 41). V ZDA je sedem
od 10 konservativnih akademikov v družboslovju ali humanistiki
izjavilo, da se samocenzurirajo (Council of Europe Parliamentary
Assembly Res. 2352, par. 37 and 41). Raziskava iz avgusta 2020
je pokazala, da štirje od 10 ameriških akademikov ne bi zaposlili
znanega Trumpovega podpornika in eden od treh britanskih akademikov bi diskriminiral znanega zagovornika brexita pri zaposlovanju (kjer je 52 odstotkov prebivalstva glasovalo za izstop iz
Evropske unije) (Council of Europe Parliamentary Assembly Res.
2352, par. 37 and 41). Polovica anketiranih akademikov ni bila
prepričana, ali nasprotujejo ali podpirajo ukinitvi konservativcev,
vendar je pri mlajših dvakrat večja verjetnost, da bodo podprli
odpuščanje kot akademiki, starejši od 50 let, doktorski študenti pa
izkazujejo trikrat večjo verjetnost. Učenci družbenih ved in humanistike, stari 30 let in manj, so socialno pravičnost in akademsko
svobodo razvrstili enako, akademiki, starejši od 50 let, so podprli
akademsko svobodo pred socialno pravičnostjo z več kot tri proti
ena (Council of Europe Parliamentary Assembly Res. 2352, par. 37
and 41). Študija je pokazala, da se etos politične monokulture seli
tudi iz kampusa v druge poklicne organizacije, kot so tehnološka
podjetja in uredništva (Council of Europe Parliamentary Assembly Res. 2352, par. 37 and 41). Pojav sicer ni nov: že leta 2006 je 40
% akademikov izrazilo zaskrbljenost zaradi naraščajočih groženj
njihovi svobodi izražanja spornih ali nepriljubljenih mnenj, skoraj
25 % pa jih je poročalo o samocenzuri zaradi skrbi zaradi neodobravanja institucij ali kolegov (Davies, 2015).
178

DIGNITAS n Svoboda govora, nadzor, akademska svoboda

Kultura deplatformiranja in odpovedi tudi ni omejena na humanistiko in družboslovje. Temelj trans-gibanja je, da so spolno
kritični pristopi, ki dvomijo o družbeni konstrukciji tako družbenega spola kot spola, (če uporabimo analogijo zanikanja holokavsta) po definiciji transfobni in kažejo sovražno vedenje, ki bi ga
bilo treba sankcionirati (in ki gre onkraj pravnih definicij sovražnega govora), (Stajnko, Kičin & Tomažič, 2020, str. 31–41; Letnar
Černič, 2015), ki ga znotraj univerz ne bi smeli tolerirati. Nekateri
medicinski in biološki strokovnjaki so pred kratkim izrazili zaskrbljenost glede tega, kako je komercialnim in korporativnim interesom založnikov, ki se zavedajo politike identitete, dovoljeno
neupravičeno vplivati na intelektualni diskurz v zvezi z biološkim
spolom (Hilton, 2021), celo zamolčati medicinske ocene različnih
moških in ženskih telesnih lastnosti, ki imajo lahko pomembne
posledice za zdravljenje številnih različnih stanj, in zamolčati pomembnost teh fizioloških razlik v klinični praksi, raziskavah in
politiki (Marinov, 2020; glej tudi Gender Ideology, 2021).

7. Nadzor in akademska svoboda
Kot je navedeno zgoraj, je nadzor horizontalna značilnost, ki
je očitna v vseh kontekstualnih razsežnostih akademske svobode.
Dve donosni poslovni področji (izobraževanje na »korporacijski
univerzi« in industrija nadzora) sta naravni zaveznici – z dobičkom in širjenjem pod pandemijo Covida. V ZDA je bila leta 2018
izobraževalno-tehnološka industrija ocenjena na 8 milijard dolarjev (Rosen & Santesso, 2018), in velikost svetovnega trga izobraževalne tehnologije je bila leta 2020 ocenjena na 89,49 milijarde
USD ter pričakuje se, da bomo od leta 2021 do 2028 priča skupni
letni stopnji rasti 19,9 % (Education Technology Market Size).
Primeri so številni. Razmislite o programski opremi tehnologije »svetilnik« Bluetooth, ki je bila uporabljena že pred Covid-19 za
sledenje obiskovanja pouka študentov s športnimi štipendijami v
kampusu, da bi lahko trenerji in akademski nadzorniki spremljali
njihove dejavnosti (Jenkins, 2019). Kar zadeva novejšo različico,
je Univerza v Oaklandu od študentov, ki živijo v kampusu, poleg
nošenja mask in socialnega distanciranja pričakovala, da bodo
nosili »BioButton« v velikosti kovanca, pritrjen na prsi z medicinskim lepilom, ki je nenehno meril njihovo temperaturo, dihanje
in srčni utrip ter spremljal, ali so bili v tesnem stiku z uporabni179

DIGNITAS n Constitutional Law

kom gumba, ki je bil pozitiven na Covid-19. Tu je študente poleg
splošnih skrbi glede zasebnosti skrbelo, kaj bi se zgodilo, če bi šli
na protest (recimo Black Lives Matters), kjer bi lahko izbruhnilo
nasilje in bi jih lahko izsledili in disciplinirali. Aplikacija lahko
signalizira tudi, če spijo na nasprotni strani tanke stene študentskega doma od okuženega študenta (Mangan, 2021a).
Ekonomska logika kaže, da bodo tehnologija in prakse, ko
bodo vzpostavljene, verjetno ostale še naprej v uporabi, kljub
potencialnim tveganjem, sporom in ranljivostim. Verjetno najbolj
očiten primer se nanaša na t.i. proctoring programe, ki prevzamejo nadzor nad študentskimi računalniki, zahtevajo pogled na
študentske delovne prostore (ali sobe v študentskih domovih)
in celo sledijo gibanju oči, da odkrijejo morebitno goljufanje. Za
kandidate na strokovnih ali podiplomskih šolah je lahko zelo koristen, saj omogoča opravljanje izpitov brez čakanja na zdravniške preglede ali celo potovanja (Kafka, 2020). Tehnologija je bila
v uporabi že pred pandemijo, vendar se je med pandemijo razširila z množičnim prehodom na spletna predavanja. Nekateri akademski založniki so s svojim digitalnim učbenikom hitro združili
zmožnosti nadzora na daljavo in zaklepanja brskalnika (Mangan,
2021a). Kljub temu so se pomisleki glede diskriminacije povečali:
študije so pokazale, da ima programska oprema za prepoznavanje
obrazov včasih težave pri prepoznavanju obrazov temnopoltih
študentov, študenti s posebnimi potrebami pa so se pritoževali,
da bi lahko zaradi obraznega tika ali drugih nepričakovanih gibov
bili označeni, glede brskalnika pa je bilo ugotovljeno, da lahko
funkcija zaklepanja omeji uporabo orodij, ki pretvorijo besedilo v govor (Mangan, 2021a). Škandal prestižne medicinske šole
Dartmouth, kjer so bili številni študenti lažno obtoženi, je dobil
precejšen medijski odmev (Mangan, 2021b). Na številnih univerzah so študenti razširjali peticije, v katerih so zahtevali opustitev
spletnih sistemov nadzora (Mangan, 2021a). Kar zadeva tveganja,
je treba upoštevati tudi kibernetske napade na programsko opremo Proctorio za spletno skrbništvo, ki jo uporablja tri milijone
ljudi in več kot 2400 ameriških fakultet (plačajo do pol milijona
dolarjev na leto za program).
Po podatkih Microsoft Security Intelligence je bilo »izobraževanje« panoga, ki jo je zlonamerna programska oprema najbolj
ogrožala, saj je leta 2022 predstavljala 82,3 odstotka prijavljenih
primerov (Swaak, 2022). Avgusta 2020 je Univerza v Utahu v na180

DIGNITAS n Svoboda govora, nadzor, akademska svoboda

sprotju z nasvetom FBI plačala več kot 450.000 dolarjev, da bi
preprečila objavo občutljivih informacij na internetu. Zavarovalne
premije za zavarovanje kibernetske varnosti so od začetka pandemije namreč skokovito narasle in v nekaterih primerih bo zavarovalnica povezala kampus s pogajalcem za odkupnino (Mangan,
2021c).
Posledice nadzora za akademsko svobodo pa so bolj daljnosežne. Prisotnost kamere očitno spremeni vedenje opazovanih
(Villasenor, 2020). Srhljiv potencial posnetih ur je bil prisoten
že pred poukom na daljavo (kjer so študenti lahko in so snemali
predavanja na črno), vendar je postal še bolj neizbežen. Medtem
ko divja kulturna vojna, na primer, ameriški profesorji poročajo
o strahu, da bodo za nekaj, kar bodo povedali pri pouku, odgovarjali tako levičarskim radikalcem socialne pravičnosti kot desničarskim vigilantom, ki želijo izkoreniniti kritično rasno teorijo
(McMurtrie, 2021). Takšno ozračje izloča spontanost in strast iz
predavanj in previdni profesorji si bodo prizadevali tudi snemati
ure, da bi lahko odgovorili na obtožbe glede izjav, uporabljenih
izven konteksta (Kafka, 2020).
Presečišče potenciala nadzora v digitalno izboljšanem ali povsem oddaljenem izobraževanju z neliberalnimi režimi predstavlja
nove izzive za akademsko svobodo. Poročila ameriških univerzitetnih programov, ki delujejo na Kitajskem, v Rusiji ali Savdski Arabiji ali preprosto vključujejo študente iz teh držav, ki do
pouka dostopajo na daljavo od doma, kažejo na težave pri zagotavljanju ameriškega izobraževanja, ki temelji na razpravah in
debatah, brez koristi (akademske) svobode (Fischer, 2020). Ko
se dotaknejo širokega nabora politično občutljivih vprašanj, se
študenti umaknejo iz pogovora, ker se bojijo, da bi jim njihova
vlada prisluškovala. Poleg tega, če takšno število „zajetih“ študentov doseže določeno kritično razmerje, lahko spodkoplje prav ta
načela. Poleg tega so na Kitajskem prepovedana spletna mesta,
ki se pogosto uporabljajo v učilnicah, kot so Google, YouTube
in The New York Times (Fischer, 2020). »Člani fakultete se pri
poučevanju v novih globalnih virtualnih učilnicah soočajo s težkimi izbirami: ali spremenijo svoje predemete, da bi odstranili
potencialno sporne teme, ali ustvarijo dva sklopa gradiva, enega
za študente v Združenih državah, drugega za tiste v tujini? Ali
pa se držijo svojih prvotnih učnih načrtov, s čimer potencialno
ogrožajo svoje učence? Ali študentom rečejo: Oprostite, ta tečaj
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je prepovedan, če študirate na Kitajskem? […] Države, vključno z
Rusijo, Turčijo in Savdsko Arabijo, imajo prav tako stroge zakone
o cenzuri in nadzorujejo internet.« (Fischer, 2020). V študijskem
letu 2018/19 je bilo na ameriške univerze vpisanih 370.000 kitajskih študentov, vsak tretji mednarodni študent. Leta 2000 je bil
za Hongkong sprejet zakon o nacionalni varnosti, po katerem je
govor, za katerega meni, da je kritičen do hongkonške ali kitajske
vlade, nezakonit – ne glede na državljanstvo ali lokacijo storilca
(Fischer, 2020). »Ne samo, da so učenci na Kitajskem potencialno
bolj pravno ogroženi, ampak so videokonferenčne aplikacije, kot
je Zoom, ki se uporabljajo pri pouku na daljavo, ranljive za nadzor kitajske vlade in zbiranje podatkov. Zoom je bil spomladi na
udaru kritik, ker je na ukaz kitajske vlade začasno zaprl uporabniške račune zunaj Kitajske.« (Fischer, 2020). Združenje za azijske
študije je na primer objavilo izjavo in niz priporočil za poučevanje na daljavo o Kitajski in študentih, ki tam študirajo,10 opozorilo
o tveganjih, če se od učencev zahteva, da prenesejo odčitke, ki so
lahko lokalno prepovedani, in o snemanju razprav v razredu, v
katerih je študente zlahka prepoznati.
Ena od rešitev bi lahko bila uporaba navideznega zasebnega
omrežja ali VPN, ki uporabnikom omogoča navigacijo po internetnih požarnih zidovih za pridobitev blokirane vsebine, vendar
so nepooblaščene internetne povezave zdaj nezakonite tako na
Kitajskem kot v Rusiji: »Čeprav se prepoved ne uveljavlja redno,
bi lahko imeli študenti, ki bi bili ujeti pri uporabi VPN-ja, kršitev
v svojih evidencah vse življenje, kar bi lahko imelo posledice za
njihove družine. … Študentov ne bi smeli spodbujati, naj storijo
kaznivo dejanje.” (Fischer, 2020). Vendar, kot lahko vidimo, izziv
in problem presegata tehnološki vidik.

8. Sklepno
Več pomembnih vprašanj je ostalo zunaj obsega te analize.
Prispevek nikoli ni nameraval dati odgovora na to, kako naj se
prihodnja (mednarodna) zakonodaja loti konceptualne in kodifikacijske naloge, ali dati prednost akademski svobodi kot individualni pravici (akademikov in študentov); ali kot pravici tretje
generacije (akademske ali nacionalne skupnosti); ali ciljati na
10
Glej: URL: https://www.asianstudies.org/aas-statement-regarding-remote-teaching-online-scholarship-safety-and-academic-freedom/, 12. 9. 2024.

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jamstva institucionalne avtonomije; ali se raje osredotočiti na
poudarjanje in odpravo groženj, med drugim od cenzure, preko
trženja do digitalnega nadzora – ali celo na zagotovitev seznama, česa akademska svoboda ne bi smela zajemati. Prispevek bi
lahko bil tudi natančnejši pri poudarjanju posebnosti javnega
izobraževanja in visokega šolstva ter različnega fokusa, potrebnega za „izobraževanje“ in „znanost“. Razlog za te pomanjkljivosti so prostorske in konceptualne omejitve. Prav tako obstaja
očitna, opažena razlika med družboslovjem in humanistiko ter
naravoslovjem v smislu izzivov in kršitev na številnih ravneh.
Kot poudarja poročilo Sveta Evrope 2020 (Council of Europe
Parliamentary Assembly Report 15167, par. 73), je družboslovje pod strožjim nadzorom države, medtem ko je naravoslovje
lažje izpostavljeno vplivu korporativnega denarja. Uveljavljena
področja in sporna področja, oziroma ekonomsko dobičkonosni in neprofitni sektorji, se soočajo z različnimi izzivi, vendar,
skladno z mednarodnimi zavezami, se je v tem članku zdelo pomembno oceniti integriteto akademske skupnosti kot celote, saj
»bi bilo nevarno opravičevati ali relativizirati kršitve nekaterih
tem s svobodo drugih«. (Spannagel et al., 2020).
Ne glede na zakonodajne, politične ali intelektualne odzive je
nekaj gotovo: akademska sfera in izobraževanje sta skupna dejavnost. Če je »za vzgojo otroka potreben angažma celotne vasi«,
je za doktorat, ki ga je treba pridobiti, ali kakršen koli akademski
članek, ki bo objavljen, podobno nujna vključenost celotne akademske skupnosti. Ko gre za univerze, kot pravi Kellerman, je
»izobraževanje izkušnja v raziskovalni skupnosti … [kar] zahteva
kognitivno prisotnost (učenec), družbeno prisotnost (učeča se
skupnost) in prisotnost poučevanja (profesor) in študenti ... [so]
del potrebne skupnosti po posredniku.« (Kellermann, 2021).

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DIGNITAS n Constitutional Law
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DIGNITAS
SLOVENIAN JOURNAL OF HUMAN RIGHTS
EDITORIAL POLICY

1 ABOUT
Scientific Journal Dignitas – Slovenian Journal of Human Rights
aims to publish original scientific articles and short case notes on
constitutional and international human rights law. It occasionally also publishes concise translations of critical judgments of the
European Court of Human Rights of the Council of Europe, especially those regarding the claims of Slovene complainants, legal
commentaries on decisions of the European Court of Justice, key
documents, studies, opinions, and conclusions of the European
Commission for Democracy through Law (Venice Commission),
general information about important events in the area of human
rights protection in Slovenia and internationally.
The Journal aims to publish three yearly issues with 5 to 7 scientific articles in each issue. Scientific magazine Dignitas is a part
of the international IBZ base.
2 EDITORIAL TEAM
Editor-in-Chief
Jernaj Letnar Černič, Ph.D. (New University, Slovenia)
Managing Editor
Marko Novak, Ph.D. (New University, Slovenia)
Journal Manager
Sebastjan Svete (New University, Slovenia)
Associate Managers
Matej Avbelj Ph.D. (New University, Slovenia)
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DIGNITAS n Editorial Policy

Darko Darovec Ph.D. (New University, Slovenia)
Boštjan Brezovnik Ph.D. (New University, Slovenia)
dr. Jaroslaw Kostrubiec Ph.D. (jMaria Curie-Sklodowska University, Faculty of Law and Administration)
Michal Radvan Ph.D. (Masaryk University, Faculty of Law)
Istvan Hoffman Ph.D. (Eotvos Lorand University Budapest, Faculty of Law)
Head of the Editorial board
Peter Jambrek, Ph.D. (New University, Slovenia)
Editorial board
1. Ludwig Adamovich (former judge of the European Court of
Human Rights)
2. Gudmundur Alfredsson (Ph.D., Stefansson Arctic Institute)
3. Sergio Bartole (Ph.D. (University of Trieste, Italy)
4. Elena D’Orlando (Ph.D. (University of Udine, Italy)
5. Oliver De Schutter (Ph.D. (Catholic University of Louvain,
Belgium)
6. Eduardo Ferrer Mac-Gregor Poisot (Ph.D. (Judge, Inter-American Court of Human Rights, Costarica)
7. Carlos A. Gabuardi (Ph.D. (University of Monterrey, Mexico)
8. Daniel Halberstam (Ph.D. (University of Michigan, United
States)
9. Mahulena Hofmann (Ph.D. (University of Luxemburg,
Luxemburg)
10. George Katrougalos (Ph.D. (University of Bern, Switzerland)
11. Peter Krug (Ph.D. (University of Oklahoma, United State)
12. Mattias Kumm (Ph.D. (Berlin Social Science Centre, Germany)
13. Fozia Lone, Ph.D. (Ph.D (City University, Hong Kong)
14. Paul Mahoney (former Judge of the European Court of Human rights
15. Ruslan Myrzalimov (Ph.D. (Parliament of the Republic of
Kyrgyzstan)
16. Tomiyuki Ogawa (Ph.D. (University of Tohoko, Hapan)
17. Miguel Poiares Maduro (Ph.D, Catolica Global School of
Law, Italy)
18. Wojciech Sadurski (Ph.D. (University of Sydney, Australia)
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DIGNITAS n Editorial Policy

19. Herman Schwartz (Ph.D. (American University Washington
College of Law)
20. László Sólyom (former Judge of the Hungarian Constituional
Court)
21. Brigit Toebes (Ph.D. (University of Bern, Switzerland)
22. Axel Tschentscher ((Ph.D. (Riga Graduate School of Law, the
Netherlands)
23. Ineta Ziemele (Ph.D. (Riga Graduate School of Law, the Netherlands)
24. Giuseppe Martinico (Ph.D. (Sant‘Anna School of Advanced
Studies, Italy)
25. Daniel Augenstein (Ph.D. (University of Tilburg, the Netherlands)
26. Tara Van Ho (Ph.D. (University of Essex, UK)
3 ARTICLES
The journal publishes original articles and short notes on recent case law. Each original scientific article must have a title, abstract, and keywords in Slovenian and English.
4 PEER REVIEW PROCESS
All the articles submitted to the Dignitas – Slovenian Journal
of Human Rights are peer-reviewed in double-blind form by two
anonymous peer reviewers. The Editorial Board will inform the
authors of the results of the reviewers‘ and editors‘ work on the
text in due time. The Editors reserve the right to make necessary
adjustments to the text according to the propositions and standards of the English and Slovenian languages.
5 PUBLICATION FREQUENCY
Dignitas – Slovenian Journal of Human Rights is published
three times per year (in July, October and December).
6 PLAGIARISM DETECTION
New University is a member of the CrossCheck plagiarism detection initiative. In cases of suspected plagiarism CrossCheck report
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is available to editors of Dignitas – Slovenian Journal of Human Rights to detect instances of overlapping and similar text in submitted manuscripts. CrossCheck is a multi-publisher initiative allowing
the screening of published and submitted content for originality.
7 PUBLICATION ETHICS AND PUBLICATION MALPRACTICE
STATEMENT
For all parties involved in the act of publishing (the author, the
journal editor(s), the peer reviewer, and the publisher) it is necessary to agree upon standards of expected ethical behavior. The
ethics statements for Dignitas – Slovenian Journal of Human Rights are based on the Committee on Publication Ethics (COPE)
Best Practice Guidelines for Journal Editors.
8 EDITOR RESPONSIBILITIES
8.1 Accountability

The editor of a peer-reviewed journal is responsible for deciding which articles submitted to the journal should be published, and, moreover, is accountable for everything published in
the journal. In making these decisions, the editor may be guided
by the policies of the journal’s editorial board as well as by legal
requirements regarding libel, copyright infringement, and plagiarism. The editor may confer with other editors or reviewers when
making publication decisions. The editor should maintain the
integrity of the academic record, preclude business needs from
compromising intellectual and ethical standards, and always be
willing to publish corrections, clarifications, retractions, and apologies when needed.
8.2 Fairness

The editor should evaluate manuscripts for intellectual content
without regard to race, gender, sexual orientation, religious belief,
ethnic origin, citizenship, or political philosophy of the author(s).
The editor will not disclose any information about a manuscript
under consideration to anyone other than the author(s), reviewers
and potential reviewers, and in some instances the editorial board
members, as appropriate.
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8.3 Confidentiality

The editor and any editorial staff must not disclose any information about a submitted manuscript to anyone other than the
corresponding author, reviewers, potential reviewers, other editorial advisers, and the publisher, as appropriate.
8.4 Disclosure, conflicts of interest, and other issues

The editor will be guided by COPE’s Guidelines for Retracting
Articles when considering retracting, issuing expressions of concern about, and issuing corrections pertaining to articles that have
been published in Dignitas – Slovenian Journal of Human Rights.
Unpublished materials disclosed in a submitted manuscript
must not be used in an editor’s own research without the express
written consent of the author. Privileged information or ideas
obtained through peer review must be kept confidential and not
used for personal advantage.
The editor is committed to ensuring that advertising, reprint or
other commercial revenue has no impact or influence on editorial
decisions.
The editor should seek to ensure a fair and appropriate peer review process. Editors should recuse themselves (i.e. should ask a
co-editor, associate editor or other members of the editorial board
instead to review and consider) from considering manuscripts in
which they have conflicts of interest resulting from competitive,
collaborative, or other relationships or connections with any of
the authors, companies, or (possibly) institutions connected to
the papers. Editors should require all contributors to disclose relevant competing interests and publish corrections if competing
interests are revealed after publication. If needed, other appropriate action should be taken, such as the publication of a retraction
or expression of concern.
8.5 Involvement and cooperation in investigations

Editors should guard the integrity of the published record by
issuing corrections and retractions when needed and pursuing
suspected or alleged research and publication misconduct. Editors should pursue reviewer and editorial misconduct. An editor
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plaints have been presented concerning a submitted manuscript
or published paper.
9 REVIEWER RESPONSIBILITIES
9.1 Contribution to editorial decisions

Peer review assists the editor in making editorial decisions and,
through the editorial communication with the author, may also assist the author in improving the manuscript.
9.2 Promptness

Any invited referee who feels unqualified to review the research reported in a manuscript or knows that its timely review will
be impossible should immediately notify the editor so that alternative reviewers can be contacted.
9.3 Confidentiality

Any manuscripts received for review must be treated as confidential documents. They must not be shown to or discussed with
others except if authorized by the editor.
9.4 Standards of objectivity

Reviews should be conducted objectively. Personal criticism of
the author is unacceptable. Referees should express their views
clearly with appropriate supporting arguments.
9.5 Acknowledgement of sources

Reviewers should identify relevant published work that has not
been cited by the authors. Any statement that an observation, derivation, or argument had been previously reported should be accompanied by the relevant citation. A reviewer should also call to
the editor‘s attention any substantial similarity or overlap between the manuscript under consideration and any other published
data of which they have personal knowledge.
9.6 Disclosure and conflict of interest

Privileged information or ideas obtained through peer review
must be kept confidential and not used for personal advantage.
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Reviewers should not consider evaluating manuscripts in which
they have conflicts of interest resulting from competitive, collaborative, or other relationships or connections with any of the
authors, companies, or institutions connected to the submission.
10 Author Responsibilities
Reporting standards Authors reporting results of original research should present an accurate account of the work performed
as well as an objective discussion of its significance. Underlying
data should be represented accurately in the manuscript. A paper
should contain sufficient detail and references to permit others
to replicate the work. Fraudulent or knowingly inaccurate statements constitute unethical behaviour and are unacceptable.
10.1 Originality and Plagiarism

The authors should ensure that they have written entirely original works, and if the authors have used the work and/or words of
others that this has been appropriately cited or quoted.
10.2 Multiple, redundant or concurrent publication

An author should not, in general, publish manuscripts describing essentially the same research in more than one journal or
primary publication. Parallel submission of the same manuscript
to more than one journal constitutes unethical publishing behaviour and is unacceptable.
10.3 Acknowledgment of sources

Proper acknowledgment of the work of others must always be
given. Authors should also cite publications that have been influential in determining the nature of the reported work.
10.4 Authorship of a manuscript

Authorship should be limited to those who have made a significant contribution to the conception, design, execution, or interpretation of the reported study. All those who have made significant contributions should be listed as co-authors. Where there
are others who have participated in certain substantive aspects
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of the research project, they should be named in an Acknowledgement section. The corresponding author should ensure that all
appropriate co-authors (according to the above definition) and
no inappropriate co-authors are included in the author list of the
manuscript and that all co-authors have seen and approved the
final version of the paper and have agreed to its submission for
publication.
10.5 Hazards and human or animal subjects

If the work involves chemicals, procedures or equipment that
have any unusual hazards inherent in their use, the authors must
clearly identify these in the manuscript.
10.6 Disclosure and conflicts of interest

All authors should disclose in their manuscript any financial or
other substantive conflicts of interest that might be construed to
influence the results or their interpretation in the manuscript. All
sources of financial support for the project should be disclosed.
10.7 Fundamental errors in published works

When an author discovers a significant error or inaccuracy
in his/her own published work, it is the author’s obligation to
promptly notify the journal’s editor or publisher and cooperate
with them to either retract the paper or to publish an appropriate
erratum.
10.8 Publisher’s Confirmation

In cases of alleged or proven scientific misconduct, fraudulent
publication or plagiarism the publisher, in close collaboration
with the editors, will take all appropriate measures to clarify the
situation and to amend the article in question. This includes the
prompt publication of an erratum or, in the most severe cases, the
complete retraction of the affected work.

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