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“Compulsory vaccination” in the context of fundamental human rights and principles of a democratic state

July 21, 2021

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In the fight against COVID-19 pandemic, vaccines are considered means to overcome the crisis situation. High risks of the spread of pandemic lead to a shift from voluntary vaccination to compulsory vaccination. In some countries (Australia, France, Greece), vaccination is mandatory for care home workers, health workers; Poland could make vaccination obligatory from August[1].

 

Nonetheless, there is a persisting question to be clarified: when doing its positive obligations set by international agreements, can the state take actions aimed at mandatory vaccination by restricting rights - set by domestic legislation and international agreements - of an individual as the highest value? And if the state can take such measures aimed at mandatory vaccination, then how and based on what regulations? 

 

In its COVID-19 and mandatory vaccination policy brief, the World Health Organization (hereinafter also referred to as WHO) addressed the issues that a state should regulate when introducing a mechanism of obligatory vaccination. In particular, this policy brief recommends the states to address the following issues when developing a policy of mandatory vaccination:

 

Necessity and proportionality of mandatory vaccination:  The state should substantiate that introduction of mandatory vaccination is aimed at public health and that actions taken in that frame are proportionate to the goal pursued. This implies that before introducing mandatory vaccination, it should be substantiated that other means, in this case, voluntary vaccination, will not lead to achievement of the goal pursued.

 

Sufficient evidence of vaccine safety: Data should be available that demonstrate the vaccine being mandated has been found to be safe. This implies that society should be aware of the disproportion between the risks in case of getting and not getting vaccinated. Alongside the substantiation that the vaccine is safe, mandatory vaccination should be implemented with no-fault compensation schemes  to address any vaccine-related harm that might occur.  

 

Sufficient evidence of vaccine efficacy and effectiveness․ Data on efficacy and effectiveness should be available that show the vaccine is efficacious and that the vaccine is an effective means of achieving an important public health goal and preventing infection transmission.

 

Sufficient supply: In order for a mandate to be considered, supply of the authorized vaccine should be sufficient with free access for those for whom it is to be made mandatory.

 

Formation of public trust in the process of mandatory vaccination by the state, decision-making transparency and public accountability. 

 

WHO notes as a conclusion that Governments and/or institutional policy-makers should use arguments to encourage voluntary vaccination against COVID-19 before contemplating mandatory vaccination. Moreover, mandatory vaccination should be considered only if voluntary vaccination is proved to be ineffective.

 

Mandatory vaccination is directly related to fundamental human rights such as the right to life and the right to respect for private and family life (Article 2 and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, hereinafter also referred to as “the Convention”). International norms on rights restrictions in connection with introduction of mandatory vaccination require that they be based on principles of legality, proportionality and necessity. 

 

Article 5 of the International Covenant on Civil and Political Rights sets, “Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant”. Article 29 of the Universal Declaration of Human Rights sets the following conditions for restrictions: 

 

  1. they should be determined by law,

  2. solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

 

Article 2 of the Convention protects everyone’s right to life, moreover, not only in terms of incidents that result in death, but also incidents that put a human life at serious risk.[3]

 

Article 2 of the Convention implies two material obligations:

 

first: general obligation to protect the right to life under the law,

second: prohibition on intentionally causing death, limited with the listed exceptions[4]

 

Along with the material obligation, there is a procedural obligation to carry out an effective investigation into alleged breaches of substantive limb[5]. The listed principles apply also in the healthcare sphere. [6]

 

Medical vaccinations can be protected under Article 2 of the Convention if such interventions are a threat to a human life, for example, when the relevant person has health problems, sch as allergy, or there are any other contraindication to vaccination[7].

 

With regard to the state’s positive obligations, the state is obliged to take adequate preventive measures in order to protect individuals against foreseeable and manifested threats, including in the health care sphere. In order to prevent such threats, the state should adopt protection norms, also for contagious diseases, the uncontrollable spread of which can be a threat to the population[8].

 

Article 8 of the Convention protects everyone’s right to respect for his private and family life, his home and his correspondence and sets that there shall be no arbitrary interference by a public with the exercise of this right[9]. “Private life” includes the right to make decisions concerning one’s own body and life, including health-related decisions. The ECHR case law shows that any medical intervention against a person’s will is considered a violation of requirements of Article 8 of the Convention, even if the intervention is insignificant. 

 

If a person has not been subjected to mandatory vaccination but has been directly and adversely affected by the consequences of not being vaccinated, this also amounts to interference with the right to respect for private life. 

 

An interference with the right enshrined in Article 8 of the Convention will be considered “necessary in a democratic society” for the achievement of a legitimate aim if it answers a “pressing social need” and, in particular, if the reasons adduced by the national authorities to justify it are “relevant and sufficient” and if it is proportionate to the legitimate aim pursued.[10]

 

Moreover, interference shall be envisaged by law, and the law shall be accessible and formuated clearly enough for the individual not only to be able to act in line with the law, but also to predict the consequences that might arise also as a result of his not doing requirements of the law[11]. The interference shall pursue a legitimate aim (protection of the population’s health and ensuring public safety, etc.) and be necessary [12].

 

It stems from the aforementioned that an interference is justified if it is based on a relevant legal ground, pursues a legal aim and is necessary in a democratic society.

 

Summing up the aforementioned, we can note that although Article 2 of the Convention does not prohibit mandatory vaccination, it obliges states to take measures to prevent life-threatening risks. With regard to interference with the rights protected under Article 8 of the Convention, it is subject to assessment in the context of the ratio of an individual’s and public’s interests, necessity in a democratic society, as well as vaccine quality and their potential effect on human life and health.

 

When it comes to the Republic of Armenia (RA), there are no mandatory-vaccination-related legal regulations in place. At the same time, there is rather a lot of information on mandatory vaccination without such legal grounds, in particular, discussions about employers compelling employees to get vaccinated and respectively setting restrictions or privileges on labor rights.

 

According to part 1 of Article 25 of the RA Constitution, “Everyone shall have the right to physical and mental integrity”.

 

According to part 2 of the same Article, “The right to physical and mental integrity may be restricted only by law, for the purpose of state security, preventing or disclosing crimes, protecting public order, health and morals or the basic rights and freedoms of others”.

 

According to part 1 of Article 57 of the RA Constitution, “Everyone shall have the right to free choice of employment”.

 

According to Article 79 of the RA Constitution, “When restricting fundamental rights and freedoms, laws must define the grounds and extent of restrictions, be sufficiently certain to enable the holders and addressees of these rights and freedoms to have an appropriate conduct”.

 

According to part 1 of Article 81 of the RA Constitution, “The practice of bodies operating on the basis of international treaties on human rights, ratified by the Republic of Armenia, shall be taken into account when interpreting the provisions concerning fundamental rights and freedoms enshrined in the Constitution”.

 

According to part 2 of the same Article, “Restrictions on fundamental rights and freedoms shall not exceed the restrictions prescribed by the Republic of Armenia international treaties”.

 

According to part 1 of Article 85 of the RA Constitution, “Everyone shall, in accordance with law, have the right to health care”.

 

According to part 1 of Article 13 of the RA Law on Medical Aid and Service to the Population, “Every person, irrespective of nationality, race, sex, language, religion, age, health condition, disability, political or other views, social origin, property or other status, shall have the right to medical aid and service in the Republic of Armenia in a manner prescribed by the Constitution, this and other laws, as well as international agreements of the Republic of Armenia”.

 

“Medical aid and service” concept is explained in clause 1 of part 1 of Article 2 of the Law, “Medical aid and service includes provision of consultative, preventive, medical, palliative, drug-based aid to population, conduct of diagnostic examinations, rehabilitation treatment, medical expert examination, provision of paramedical and non-medical services”. 

 

According to Article 24 of the Law, provision of medical aid and service without a person's or his/her legal representative's consent shall be allowed in two cases:

 

1) in case of a threat to the person’s life, in a manner prescribed by the Government;

2) in case of the diseases which pose a danger to public, in the manner prescribed by the legislation”. 

 

Thus, medical aid and service is provided without the relevant person’s or his/her representative’s consent if that person has an illness posing danger to the public. The list of such diseases is set in RA Government’s decision N 1286 of 27 December 2001 on “Approving the list of diseases posing danger to public”, which was amended by the RA Government’s decision N 96-Ն of 1 February 2020 and Covid-19 (2019n-CoV) was added to the list. Though the list is determined, application of the legal regulation of Article 24 of the Law is not feasible insofar as  the Law does not envisage the procedure of medical aid and service without the relevant person’s consent. 

 

RA Health Minister’s order N 21-Ն of 17 August 2020 sets that in case of refusing to get preventive vaccination, every person or his/her legal representative formulates the refusal in writing, having received consultation and information on refusal.  

 

Based on the above-mentioned information, it can be stated that the RA legislation does not have any legal regulation on mandatory nature of COVID-19 (2019n-CoV) vaccination. Thus, it can be concluded that employers’ actions or inaction aimed at compelling employees to get vaccinated against COVID-19 (2019n-CoV) are groundless and illegal, since they violate the rights - guaranteed by the RA legislation and international agreements - of the relevant persons both as an employee and as the supreme value.

 

Thus, when developing a mandatory vaccination policy, it is necessary that before introduction of mandatory vaccination mechanism, the state conduct awareness raising on vaccination by presenting necessary and sufficient information on vaccine safety and effectiveness, potential risks and undesirable consequences in case of getting/not getting the jab, preventive role of vaccination, compensation schemes to address any vaccine-related harm that might occur, in other words:

 

  1. mandatory vaccination should be set under law, based on principles of proportionality and necessity,

  2. to introduce compensation schemes to address any vaccine-related harm that might occur,

  3. to ensure that the population has access to easy-to-understand information on vaccination,

  4. to provide the population with sufficient and free of charge vaccines,

  5. to ensure transparency and public accountability on vaccine-related decision-making.

 

[1] https://www.reuters.com/world/countries-make-covid-19-vaccines-mandatory-2021-07-13/

[2] See COVID-19 and mandatory vaccination: Ethical considerations and caveats Policy brief  https://apps.who.int/iris/handle/10665/340841 

[3] See, Makaratsiz v. Greece  (Application no. 50385/99 ) ECHR Judgment of 20․12․2004, clause 55)

[4] See Boso v. Italy (Application no. 50490/99) ECHR Judgment of 05․09․2002 

[5] See Armani Da Silva v. United Kingdom  (Application no. 5878/08) ECHR Judgment of 30․03․2016, clause 229

[6] See Calvelli and Ciglio v. Italy (Application no. 32967/96) ECHR judgment of 17․01․2002

[7] See Boffa and 13 Others v.  San Marino (Application no. 26536/95) ECHR Judgment of 15․01․1998

[8] See Lopes de Sousa Fernandes v. Portugal (Application no. 56080/13) ECHR Judgment of 19․12․2017, clause 165

[9] Տե՛ս, Կրունը և այլք ընդդեմ Նիդեռլանդների (գանգատ թիվ 18535/91) գործով ՄԻԵԴ 27․10․1994 թ․ որոշում։

[10] Տե՛ս Վավրիչկան և մյուսներն ընդդեմ Չեխական Հանրապետության (գանգատ թիվ  47621/13 ) գործով ՄԻԵԴ 08․04․2021 թ․ որոշում:

[11] Տե՛ս Դուբսկան և Կրեժովան ընդդեմ Չեխական Հանրապետության (գանգատ թիվ  28859/11 և 28473/12 ) գործով ՄԻԵԴ 15.11.2016 թ․ որոշում:

[12] Տե՛ս, Սոլոմախին ընդդեմ Ուկրաինայի (գանգատ թիվ 24429/03) գործով ՄԻԵԴ 15․03․2012 թ․ որոշում, կետ 35-36։



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