Checking the PCT condition has been unconstitutional throughout


The Constitutional Court confirmed to the Information Commissioner that the government decrees on the manner of determining the fulfillment of the PCT condition are unconstitutional.

At the request of the Information Commissioner, the Constitutional Court assessed the constitutionality and legality of several decrees by which the government regulated the manner of determining compliance with the condition of morbidity, vaccination and testing (PCT) during a coronavirus epidemic.

Among other things, the Office of the Information Commissioner accused the government of violating the right to protection of personal data. He asserted that the impugned decrees interfere with the right to protection of personal data, but there is no basis for this interference in the law, which would specify which data may be collected and processed and for what purpose. The Government, on the other hand, argued that the Infectious Diseases Act and European Union law provided an appropriate legal basis for the processing of personal data. She also referred to the consent of the individual to the processing of his personal data as an appropriate legal basis.

The decree is not enough to process personal data

The Constitutional Court assessed that the determination of the fulfillment of the PCT condition includes the processing of personal data. According to the established constitutional review, any collection and processing of personal data constitutes an interference with the right to protection of personal data. Interference with this human right is permissible on the basis of the second paragraph of Article 38 of the Constitution, if the law specifically defines the data that may be collected and processed, the purpose for which they may be used, control over their collection, processing and use and protection of secrecy collected personal data.

In the opinion of the Constitutional Court, the legal bases on the basis of which the impugned decrees were adopted do not contain these conditions. It also rejected the Government’s view that only the General Data Protection Regulation (GDPR) could be the appropriate legal basis for the processing of personal data when the State requires the processing of personal data. The purpose of the General Data Protection Regulation is to protect the individual from the inadmissible processing of his or her data, and not to allow the state to process personal data in a blank manner.

Since the participation of an individual in social, political and religious life would depend on his consent to the processing of personal data for the purpose of verifying the PCT condition prescribed by the state in the impugned decrees, such consent cannot be considered voluntary. as a valid legal basis for interfering with the right to protection of personal data.

The government must adopt the regulation on the basis of legal provisions

The Constitutional Court ruled that the two impugned decrees (still valid at the time of deciding) were inconsistent with the second paragraph of Article 38 of the Constitution and annulled them. As immediate repeal would mean that the government, as the executive authority, could no longer fulfill its positive constitutional obligation to protect human health and life, the Constitutional Court decided that the repeal would take effect one year after the publication of this decision. During this time, the government must adopt the challenged regulation on the basis of legal provisions, which will specify the data that may be collected and processed, the purpose for which they may be used, control over their collection, processing and use and protection of confidentiality of collected personal data. as required by the second paragraph of Article 38 of the Constitution.


Source: Svet24.si by novice.svet24.si.

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