Supreme court says penalty for non-use of masks in enclosed spaces groundless

Ljubljana – The Supreme Court has ruled that issuing penalties for the failure to wear a face mask in enclosed public spaces during the Covid-19 epidemic as a minor offence has no legal basis.

The decision announced on Friday relates to an appeal on the point of law against a final decision of a local court to issue warning to a person over a minor offence under the communicable diseases act.

The Supreme Court assessed whether it is possible to recognise the failure to wear a face mask in enclosed public spaces as a minor offence by taking into account the fundamental principles of criminal law.

The court noted that it did not have to take position on whether it is reasonable to order face mask wearing or regarding the constitutional and other aspects of such an order.

The decisive question was whether a violation of the order to wear a face mask in enclosed public spaces can be defined as a violation of the measures that “prohibit or limit movement of people in infected or directly endangered areas” under the communicable diseases act.

As government decrees cannot be considered as regulations that determine the content of minor offences, the Supreme Court looked for answer in interpretation of the legislative provision.

It thus supports its decision on an assessment of the encroachment on the freedom of movement and systematic interpretation of the wording of the communicable diseases act.

The court senate established that the order to wear a face mask decisively differs in its content from encroachments on the freedom of movement.

This order cannot be understood as a form of prohibition or restriction of movement of people in certain areas, but more so as an independent encroachment on the freedom to act, which required an independent legal basis.

According to the court, this conclusion is also supported by interpretations of other provisions of the communicable diseases act, with which the legislator specifically envisaged the use of protective equipment.

However, this applies to the protection of healthcare workers and other staff in healthcare institutions in order to prevent and manage infections, and not for the entire population.

The decision was not made unanimously, with judge Barbara Zobec providing a dissenting opinion, in which she said that the ruling was a “wrong message to all that they can take off and throw away face masks,” reported the MMC web portal.