30 Nov How Greece Set the Wrong Example for Compulsory Vaccinations Against COVID-19
[Spyridoula (Sissy) Katsoni is a PhD Candidate at the Ruhr-University of Bochum and a Research Associate at the Institute for International Law of Peace and Armed Conflict.]
Since the beginning of 2021, compulsory vaccinations against COVID-19 have started finding their way into the national law of Member-States to the European Convention on Human Rights (‘ECHR’). This trend seems to have been encouraged by the findings of the European Court of Human Rights (‘ECtHR’) in its Vavřička and Others v. the Czech Republic (‘Vavřička’) judgement. Although the latter did not address compulsory vaccinations against COVID-19 in particular, it has been widely accepted as suggesting that the measure is compatible with the ECHR (see here, here and here) and has been even perceived by news reporters as suggesting that ‘obligatory vaccination may be necessary’.
Against this background, Greece joined the list of ECHR-parties that implemented compulsory vaccinations against COVID-19 last August. As the present post evinces, however the provision, through which the measure was introduced, has not followed the guidelines set out by the ECtHR in relevant jurisprudence and, therefore, raises serious doubts on its proportionality.
Compulsory vaccinations against COVID-19 were introduced to the Greek legal framework via Article 206 of Law No. 4820/2021. The measure applies to the staff of private, public and municipal health care facilities (para. 2) and facilities involved with the care of the elderly and disabled (para. 1a). The obligation’s scope further encompasses newly arriving guests in these establishments (para. 1a), as well as the staff and the beneficiaries of Disability Certification Centres. The Law provides for limited grounds for exception from the vaccination duty. These exceptions encompass those who have recovered from COVID-19 for a period of six months after their recovery (para. 4) and those who have proven reasons that render the vaccine dangerous for their health (para. 4).
Public sector employees that do not comply with the above obligation are – ‘for imperative reasons of public health protection’ – suspended from their duties [para. 6(a)]. With regard to private sector employees that do not comply with the vaccination duty, employers are obliged to refuse their work and are exempted from the obligation to pay remuneration for the period of non-work due to the application of the measure.
As early as 1984, the European Commission of Human Rights (‘EComHR’) had underlined that the measure of compulsory vaccination, i.e. ‘a requirement to undergo a vaccination on pain of a penalty[,] may amount to interference with the right to respect for private life’ (pp. 251, 255). This vaguely phrased assumption was later affirmed by the ECtHR, which held that ‘[c]ompulsory vaccination amounts to an interference with ECHR Article 8(1)’ (para. 33). Last April, in the Vavřička judgment, the Grand Chamber moved a step further and noted that the mere vaccination duty and the direct consequences of non-compliance constitute an interference with ECHR Article 8, even before these vaccinations take place (para. 263). Following the direction of the EComHR (p. 32-33), the Grand Chamber did not link the right interfered with the consequences of non-compliance; it rather held that compulsory vaccinations per se constitute an interference with ECHR Article 8 and proceeded with the assessment of these consequences’ proportionality under the limitation clause of the said article.
Indeed, although the applicants had also argued that the consequences of non-compliance, namely the refusal of unvaccinated children’s admission to nursery school, interfered with their right to education, the court, considering its examination and findings regarding the measure under ECHR Article 8, found that there was no need to additionally examine the applications separately under these provisions (para. 345). In other words, it is not the consequences of non-compliance with the vaccination requirement that determine which provision is interfered; it is the measure itself that infringes the enjoyment of the right safeguarded under ECHR Article 8.
Regarding the freedom of conscience, which falls under the scope of ECHR Article 9, the Grand Chamber was mindful of the exceptional waiver of the penalty for non-compliance with the vaccination duty on grounds of conscience in Vavřička (para. 334). Similarly, Judge Wojtyczek emphasised that this exception clause was ‘a very important argument’ in favour of the measure’s compatibility with the Convention (Dissenting Opinion, para. 17). Against this background, it seems that the way towards the additional acknowledgment of compulsory vaccinations as an interference with ECHR Article 9 has opened. However, the level of cogency, seriousness, cohesion and importance that needs to be met for a critical opinion of vaccines to be acknowledged as a conscientious objection is rather high (paras. 334-338). And to this date, such a claim has not been found admissible by the ECHR institutions..
Against this background, the measure introduced via Article 206 of Greek Law No. 4820/2021, whereby some individuals are required to get vaccinated on pain of work-related penalties, constitutes an interference with the said provision as well. What remains to be seen is whether this interference can be justified under the limitation clause of Article 8 para 2.
Criteria and Guidelines on ECHR-Friendly Compulsory Vaccinations against COVID-19
To be justified under the said clause, compulsory vaccinations against COVID-19 have to be (a) in accordance with the law; (b) pursue a legitimate aim; and (c) be necessary in a democratic society. For the fulfilment of the first requirement, the measure shall be introduced via an accessible and foreseeable legal provision (paras. 266-271). With regard to the second requirement, the ECHR-institutions’ jurisprudence is rather clear: in all decisions in which the ECHR institutions assessed whether compulsory vaccination pursued a legitimate aim, the court accepted that the measure aimed at protecting the health and rights of others (Boffa and Others v. San Marino, p. 34;Acmanne and Others v. Belgium, p. 256; Solomakhin v. Ukraine, para. 35; Jehovah’s Witnesses of Moscow v. Russia, para. 136; Vavřička, para. 272). Therefore, it seems rather certain that the ECtHR would find likewise in the case of compulsory vaccinations against COVID-19.
Although the ECtHR has only referred to compulsory COVID-19 vaccinations in decisions rejecting interim measures applications, relevant jurisprudence of the ECtHR on compulsory vaccinations more generally indicates the criteria for the assessment of the third requirement, namely compulsory COVID-19 vaccinations’ necessity in a democratic society. Indeed, in its recent Vavřička judgement, the ECtHR further elaborated the criteria that had already been set out in Solomakhin v. Ukraine (para. 36) and earlier in Boffa and Others v. San Marino (p. 35). Firstly, it noted that the States enjoy a wide margin of appreciation (MoA), while assessing the necessity of compulsory vaccinations. To reach this conclusion, the Court took into account the existence of the following consensus pattern: although there was consensus among the ECHR parties’ regarding the value of vaccinations (para. 277), there was lack of consensus over a coherent policy on children’s vaccination (para. 278). Additionally influenced by the value of social solidarity (para. 279), ECtHR concluded that the compulsory vaccination of children was within the MoA enjoyed by the States. With regard to compulsory vaccinations against COVID-19 the same inter-State consensus pattern has been noted. Indeed, although there is consensus among ECHR-States and international bodies on the efficacy of COVID-19 vaccines, there is no consensus among them over mandatory vaccinations against COVID-19. Against this background and drawing upon ECtHR’s dictum in Vavřička, that ‘in matters of health-care policy, it is the domestic authorities who are best placed to assess priorities, the use of resources and social needs’ (para. 285), compulsory vaccinations against COVID-19 should be seen as falling within the States’ MoA.
The second criterion, examined in Vavřička, with regard to the measure’s necessity in a democratic society, was the existence of relevant and sufficient reasons that necessitated the implementation of the measure. In its assessment, the ECtHR underlined the States’ positive obligation to take measures for the protection of health (para. 282). It further noted that a decrease in voluntary vaccinations constitutes a pressing social need (paras. 283-284) and that when herd immunity is irrelevant due to the disease’s nature, compulsory vaccinations can be reasonably introduced for the achievement of an appropriate level of protection (para. 288). Considering that in Vavřička a pandemic was not at issue (the measure of mandatory vaccination concerned ‘the standard and routine vaccination of children against diseases that are well known to medical science’, para. 158) and that the best interests of the child were central in the ECtHR’s assessment (paras. 286-288), we can – on the basis of an a maiore ad minus argumentation – conclude that in the context of a pandemic and at least with regard to adults, the compulsory vaccination against COVID-19 will be similarly deemed as responding to a pressing social need by the ECtHR.
Against this background, the determining factor for compulsory COVID-19 vaccinations’ compatibility with the ECHR is the measure’s stricto sensu proportionality to the legitimate aim pursued. On this criterion, the Court noted that the existence of less prescriptive alternatives will not be a decisive factor (para. 310). However, from its analysis, the following guidelines on compulsory vaccinations’ stricto sensu proportionality can be derived: the measure shall be only indirectly imposed through protective measures (para. 294); the vaccines’ safety shall be monitored (para. 291); compensation in case of injury due to the vaccination shall be provided (para. 302); there shall be exclusion clauses for reasons of contraindications (para. 301) and arguably for reasons of conscience objections (para. 334).
The Deficiencies of the Greek Compulsory COVID-19 Vaccination Policy
Article 206 of Law No. 4820/2021 does not set a time-limit, until which the compulsory vaccination policy will remain in place. In other words, it does not indicate the duration of the interference with the rights of the persons that the vaccination duty applies to. Conversely, the vague reference to the future reassessment of the measure’s duration (para. 8 of Article 206) and the lack of reference to the criteria, on the basis of which this re-assessment will take place, enhance this uncertainty. Meanwhile, para. 7(a) of the said article holds that the categories of persons required to be vaccinated may be specified and extended via a joint ministerial decision. In this sense, the range of persons who may be affected by the measure cannot be clearly foreseen on the basis of the provision imposing the measure of compulsory vaccination against COVID-19. Against this background, Article 206 of Law No. 4820/2021 does not appear to satisfy the criterion of foreseeability (see mutadis mutandis Calogero Diana v. Italy, paras. 32-33).
Additionally, even if the aforementioned provision was perceived as foreseeable, it would still raise concerns regarding its stricto sensu proportionality with the legitimate aim pursued. The fact that the measure does not allow the dismissal of the unvaccinated persons concerned, but rather imposes the more moderate measure of suspension, is encouraging (on the unlawfulness of dismissals on ground of non-vaccination with the ECHR, see here), as it brings to mind the attention that the ECtHR paid in Vavřička to the moderate intensity of the sanctions, through which compulsory vaccination is indirectly imposed (para. 293). Furthermore, the fact that during their suspension, the unvaccinated persons can – albeit with considerable difficulty – seek employment in sectors not covered by the vaccination duty is reminiscent of the Court’s dictum in Vavřička, where the ECtHR noted that the needs of children, who, due to the compulsory vaccination measure, could not be enrolled in nursery school, could be covered by alternative options, although these required considerable effort and expenses on behalf of their parents (para. 307).
However, given the absence of a foreseeable time-limit with regard to the suspensions, the latter seem to be akin to indirect dismissals. The ECtHR’s favourable view of compulsory vaccinations in Vavřička was influenced by the fact that the means through which it was implemented were of protective nature and of moderate intensity; they were limited in effect and in time (paras. 306-307). In this sense, a measure that indefinitely suspends employees, who refuse to get vaccinated, cannot be perceived as protective or moderate, as the dismissal’s effects are permanent and of absolute (rather than moderate) intensity. In other words, the measure’s nature seems more punitive than protective and, thus, its stricto sensu proportionality is highly questionable. Additionally, the lack of waivers in the case of conscience objections renders – in line with the analysis of the previous section – the measure more problematic.
As applications regarding the compatibility of Law No. 4820/2021 with the ECHR are now pending before the ECtHR, the issue will be sooner or later addressed by the court itself. However, since the applicants have not claimed a breach of ECHR Article 9 (but opted for basing their complaints about the measure on ECHR Articles 2, 3, 4, 5, 6, 8 and 14 instead) a clearer answer as to compulsory vaccinations’ compatibility therewith will be further delayed.