A Constitutional Rarity? Slovakia's Unusual Approach to Addressing Bear Threats

Marek Domin

Comenius University

A bear threat in Slovakia

Constitutional law is usually defined as a body of law regulating the most important social relations in a state, especially the organization of public power (separation of powers) and the protection of human rights. However, in the legal history of Slovakia to date there have been several attempts to constitutionalize various topics that do not belong to the classic subjects of constitutional law regulation. In March 2024, the Government of the Slovak Republic ("the Government") proposed to adopt a constitutional act which would introduce rules in relation to a particular bear species (Ursus arctos). According to this proposal, rules on who can kill a bear and where it can be killed would become part of the Slovak constitution in a broad sense. In this blog post, I will briefly describe that proposal, which is probably unique in the world, as well as the reasons why the Government does not want to adopt the proposed rules as an ordinary law.

The proposed Constitutional Act on the Protection from Attack of Protected Animals ("Constitutional Act on the Protection against Bears" or "the proposal") represents the reaction of the Slovakian Government to a relatively large number of widely reported cases of human-bear encounters over recent months in Slovakia. One such incident, in which a bear injured up to 5 people, took place in the center of a city of about 30,000 inhabitants. However, most cases were encounters in wilderness, often on unmarked tourist routes. One of these human-bear encounters resulted in the death of a Belarusian citizen. Thus, the protection of people's life and health is the reason given by the Government, and specifically the Ministry of the Environment, to justify the need for the adoption of the Constitutional Act on the Protection against Bears. Its explanatory report states that the purpose of protecting the life and health of people must be superior to the interest in safeguarding protected animals which, according to applicable legal regulation, also includes bears.

A short analysis

The proposed Constitutional Act on the Protection against Bears is very brief. It consists of only 12 provisions, and a non-negligible part of those provisions are just definitions. The essence of the proposal lies in allowing authorized persons to kill bears in a designated area, including in the built-up area of a municipality. Authorized persons include police officers, hunters (people authorized to hunt according to a special law), people entrusted by the State Nature Protection (a special department of the Ministry of the Environment) and people entrusted with the administration of a national park. In relation to the possibility of killing a bear on the territory of a municipality, the proposal does not even explicitly state that the intervention can only be carried out in the event of a threat to human life or health. However, the term "ultima ratio" (ie, last resort) is repeatedly mentioned in the explanatory report to the proposal in relation to the possibility of killing a bear. Endangering the life or health of a person is a necessary condition for intervention against a bear only in case of intervention in the territory of a national park. The only specified obligation, which applies to all scenarios of intervention against a bear, is to write a record immediately after the intervention is carried out.

The reasons why the Government believes the briefly described regulation should be adopted in the form of a constitutional act, and thus have the same legal force as the Constitution of the Slovak Republic ("the Constitution"), are not apparent from the explanatory report to the proposal. There is no mention in the explanatory report of the sufficiency or insufficiency of adopting the proposed rules in the form of an ordinary law. However, the Minister of the Environment has clearly stated, in one of his media appearances, that the form of the constitutional act was chosen in order to exclude the possibility of the proposal being reviewed by the Constitutional Court of the Slovak Republic ("Constitutional Court").

According to a literal interpretation of article 125 of the Constitution, the Constitutional Court cannot assess the conformity of a constitutional act with the Constitution. However, the Constitutional Court , by its decision PL. ÚS 8/2022, reserved the possibility of reviewing constitutional acts in extreme cases. These extreme situations were characterized in that decision  as those when a constitutional act interferes with the material core of the Constitution in a way that changes the essence of the Slovak Republic as a democratic state based on the rule of law. The fact that the Government chose to regulate this issue through a constitutional act to avoid any possibility of constitutional review by an independent judicial body can be described as worrying, to say the least.

The problem with the proposed Constitutional Act on the Protection against Bears lies not only in the obscuring of the real purpose of the chosen form of a constitutional act. The adoption of legal regulation in the form of a constitutional act without relevant reasons is a long-term issue in Slovakia, dating back to the mid-1990s. The consequence of this trend is the obfuscation of the system of constitutional law and, ultimately, a certain emptying of the Constitution’s content. As follows from the case-law of the Constitutional Court and as also recognized by Slovak constitutional law scholars, Constitutional acts and the Constitution have the same legal force. In an ideal situation, there should be only the Constitution (adopted in 1992), constitutional acts that directly amend the Constitution, and constitutional acts explicitly foreseen by the text of the Constitution (such constitutional acts include, for example, constitutional acts forseen in Art. 3 on changing the borders of the Slovak Republic). Some Slovak constitutional law scholars even hold the opinion that the Constitution does not allow for the adoption of constitutional acts other than those that directly amend the text of the Constitution and those that the text of the Constitution explicitly foresees. Despite this, the National Council (the Slovak Parliament) has continually adopted constitutional acts not expressly foreseen by the Constitution. If adopted, the Constitutional Act on the Protection against Bears will also join the list of such constitutional acts.

Conclusion

The ruling coalition does not have enough votes in the National Council to approve any constitutional act (that would require at least 90 out of 150 deputies). This is probably the reason why the proposal has not been voted on so far and it will probably be moved to a later session of the National Council. Without the support of a part of the opposition, the Constitutional Act on the Protection against Bears has no chance of success, a circumstance that the Government is certainly aware of. I do not want to speculate, but it is possible that the Government is already expecting this, and will use the non-support of the proposal to criticize the opposition as those who do not want to protect the people's lives and health. As for the proposed Constitutional Act on the Protection against Bears itself, it apparently does not interfere with the material core of the Constitution, and one could say that its adoption in the fast-track legislative procedure could even be acceptable, since bears are really a threat to the people's lives and health. However, the proposal as a whole can be characterized as strongly populist and does not solve the bear issue systemically. The issue of constitutionalizing topics that are not ussually considered as constitutional is a broader problem in Slovakia. For example, in 2014 the term "consumer packaging of water" entered the text of the Constitution, although it is true that water is one of the key natural resources of the future. A knowledgeable observer will not be surprised if there are other efforts to introduce topics that are typically not constitutional into the Slovak Constitution.

Marek Domin is an Associate Professor in Constitutional Law at the Faculty of Law of the Comenius University in Bratislava (Slovakia).

Suggested Citation: Marek Domin, ‘A Constitutional Rarity? Slovakia's Unusual Approach to Addressing Bear Threats’ IACL-AIDC Blog (09 May 2024) A Constitutional Rarity? Slovakia's Unusual Approach to Addressing Bear Threats — IACL-IADC Blog (blog-iacl-aidc.org)