One of the most current issues and collective concern is, without a doubt, that of compulsory or necessary vaccination for certain activities. Whether it is appropriate or not, whether it is constitutional or not, whether it violates fundamental rights or not, whether or not it conforms to ordinary legality … Subject of great legal and social interest and of public concern.
I notice that in this column I only try to put some, minimal, reflections out loud but that I end as a beginning, this is with a big question mark and many doubts.
We read, in fact, these days that in most EU countries, to name just our closest socio-political environment, they are demanding a certificate of vaccination against COVID-19 to access certain establishments or activities or perform some professions in specific sectors. In this way, a kind of obligation, even indirect, to be vaccinated in order to carry out such activities is imposed, which does not exactly correspond to the mandatory vaccination that has not yet been decreed by any European country, except, for example, France, for a certain personnel such as health, in a decision endorsed by its Constitutional Council.
In Spain things have not gone that far yet. But they already have, in some cases, some provisional answers. Let us therefore remember that the recent Galician Health Law 8/2021, which provided for the possibility of compulsory vaccination with certain requirements, contemplating economic sanctions in the case of refusal, has been suspended in this regard by the Constitutional Court at the request of the central government that raised appeal of unconstitutionality.
And there have also been judicial pronouncements suspending the requirement of the so-called ‘Covid passport’ to access the interior of hotel establishments in Andalusia, the Canary Islands, Cantabria and Galicia.
Also these days in Euskadi a draft of the law on public health has been made public in which the possibility of compulsory vaccination is foreseen for cases, among others, of urgent risk to the health of the population or public health emergency situations or pandemics, although conditioned to a general regulation in this sense – today nonexistent in my opinion – and to judicial authorization.
There are also some precedents in Spain regarding the obligation to vaccinate, prior to the current epidemic, such as the one that was determined for a group of children by a measles outbreak in Granada in 2010 by a court ruling that authorized it. But there are also them in relation to COVID-19, since there have already been several Orders of First Instance Courts -Seville, Granada, Santiago de Compostela … – determining the obligation to vaccinate elderly people in nursing homes.
Well, just this year, the European Court of Human Rights – ECHR – has issued a judgment, on April 8, 2021, in the Vavricka et al. Case against the Czech Republic, a judgment of great interest due to its undeniable relationship with the issue. now posed. In this judgment, which analyzes the legal obligation to vaccinate children against various diseases and the consequences of non-compliance, the general rule is established that imposing a mandatory vaccination implies an interference with the right to private life of people of Article 8 of the European Convention on Human Rights -CEDH-. However, despite this basic assertion, the ECHR considers this interference in private life lawful because “it seeks the legitimate objectives of protecting the health and rights of the other.” And the ECHR reasoned on whether this interference in the plaintiffs’ rights is necessary in a democratic society, for which it took into account two factors. On the one hand, the margin of appreciation of the State to evaluate social priorities and needs, which it understands must be wide because in this case no vaccines were administered against the will of any person, that there is general consensus about vaccination and that the nature of The sensitive duty to vaccinate children is also related to social solidarity since its purpose is to protect the health of all members of society, especially the most vulnerable. On the other hand, he also argued about the existence of a pressing social need and pertinent and sufficient reasons, including the best interests of children, the objective being that all children are protected against serious diseases, therefore, if the Voluntary vaccination policy is not sufficient to achieve and maintain herd immunity or such immunity is not sufficient, a mandatory vaccination policy is admitted. The ECHR also highlights that the plaintiffs had not been deprived of any possibility of personal, social and intellectual development and that the consequences were limited in time, since their subsequent admission to primary school was not affected by the fact that they were not vaccinated.
Ultimately, the ECHR concludes that the measures denounced by the plaintiffs were proportional to the legitimate aims pursued by the respondent State, that its margin of appreciation had not been exceeded and that the measure of economic sanctions for non-vaccination could be considered necessary. in a democratic society.
It is worth wondering if this sentence is transferable to the situation of the COVID-19 pandemic. And the answer is not, of course, clear or univocal, since there are multiple criteria in this regard and the situations are also diverse. Because the sentence mentioned referred to an assumption of compulsory vaccination against diseases with a vaccination long accredited by medical science, highlighting, in addition, that the risk to people’s health was very unlikely due to the very remote possibility side effects, which is not exactly the same situation that occurs with vaccines against COVID-19. And because, with this coronavirus, the risk that vaccinated people may infect others, although to a lesser extent, does not seem to be ruled out in any way, so the greatest benefit of vaccination would be for the person himself.
On the other hand, regarding the consequences of refusing a hypothetical compulsory vaccination, the reasoning of the ECHR ruling that we have commented requires that the sanctions imposed be moderate and do not foresee any effects on other people’s rights. Hence, such consequences should, where appropriate, be carefully considered and controlled, without having the same scope as the requirement of a vaccination certificate for certain activities that do not constitute the exercise of fundamental rights or its preceptiveness to be able to work in certain sectors. or oblige all citizens to be vaccinated or make access to education or public transport subject to it, for example.
What I told you, questions and doubts is what I have. And many more that I leave for another time.