In the middle of last summer, I published an article on this blog titled Compulsory Vaccination Controversy, ECtHR and Fundamental Human Rights (July 31, 2020).[i] I wrote down a rhetorical question: “Will people become (or remain?) “tight bunnies” considered as “fools,” or can we hope for judicial protection of fundamental human rights, based on common-sense evaluation and persuasive legal arguments?” I responded with mild criticism to the fact that the Grand Chamber of the ECtHR has still not delivered a final judgment in the case of Vavřička and Others v. The Czech Republic.[ii] In the article, I have presented the content of this case, a summary of the essential questions that the Court has asked the Czech Government, and I have dared to anticipate what the Court’s decision should be.[iii]
I was even so presumptuous that I addressed amicus curiae to the ECtHR, with which I did my best to encourage this High Court to decide this case. Of course, the court rejected my letter on procedural grounds as "involving a third party in the proceedings." But that is not essential. Basically, it was a very pleasant surprise to me that the Court responded to me in a polite letter. I was not expecting that. Especially not because in my entire academic career and in more than twenty years of public service as a constitutional lawyer and public watchdog, I have never received a response from the Constitutional Court of the Republic of Slovenia when I sent an amicus curiae to this Court. It was summer ... In the summer I also wrote and sent two letters to the Council of Europe (I also sent a similar letter to the WHO, UN and the European Commission, where I tried to explain what is happening during the pandemic in Slovenia and to describe how the Slovenian government is using the law as a technique to severely and comprehensively restrict the fundamental and constitutional rights and freedoms of the Slovenian population) on the subject of compulsory vaccination. In doing so, I wanted to encourage this supranational institution to do what the ECtHR should have done long ago in the Vavrička case - adopt the final decision of Grand Chamber and take a clear position on this issue. In another letter I linked this issue to the expectation of a vaccine for Covid-19. I received no response to the first letter, but I did receive an email similar to the response to the second letter, to which I attached my article on the subject. It said that my appeal exceeded the powers of the Council of Europe because it directly concerned the current case before the ECtHR. I was not satisfied. In the following months, I supplemented and published my scientific article on compulsory vaccination and fundamental human rights. When writing this article, I already had in mind the changes in legislation that were publicly announced by the Slovenian government.[iv] There is no persuasive reason, I wrote, to object to the position of medical science (and the belief of the majority of the world’s population) that vaccines against particularly difficult and communicable infectious diseases are one of the major and most important achievements of humanity and the development of medicine. Nevertheless, the fact that the number of people who perceive and experience vaccines with discomfort, doubt, mistrust, or fear cannot be ignored. The number of these people is increasing rapidly and significantly. It should not be overlooked that the legal policy on vaccines and compulsory vaccination, as an interference with the physical and moral integrity of the individual, must be convincingly justified, legally regulated and, above all, harmonized with the basic rules and principles of constitutionality. Article focuses on this last issue. Particular attention is payed to the current case, regarding compulsory vaccination, which is to be decided by the Grand Chamber of the ECtHR in the Vavřička case. In doing so, the article connects parallel political, social and legal elements of the title topic, by exposing the ever-threatening danger of discrimination, stigmatization and social isolation of those people who express concerns about vaccines. Explanation and expectation is offered regarding the forthcoming decision of the ECtHR on this issue, with highlighting the challenges and problems that the EU Member States will face in the short term, regarding fundamental human rights to privacy, freedom of movement and liberty interest. This problem, however, will be even greater and even more controversial as the Covid-19 vaccine becomes part of social reality.[v] New legislation in the Republic of Slovenia In October, the National Assembly of the Republic of Slovenia adopted the Act Amending the Communicable Diseases Act (Official Gazette, No. 142/20).[vi] Thus the State has enacted a great and important amendment which should lift every jurist, especially the constitutionalist, from his chair and open his eyelids. Not only does the Act as a whole allow only (!) justifiable health reasons as the sole exception to denying an otherwise mandatory vaccination. The law now also stipulates that "The admission of an unvaccinated child to a public kindergarten within the meaning of the Kindergarten Act and to a publicly co-financed private kindergarten within the meaning of the Kindergarten Act shall be refused if a pediatrician's health certificate shows that the child has not been vaccinated against measles, mumps and rubella and that there are no medical reasons for deciding against vaccination." As well as that only a child who is already in the process of obtaining a decision not to vaccinate on medical grounds can be admitted to a public or publicly co-financed private kindergarten. This also applies to the inclusion of a child in primary school. Also, for such a child, the requirements for enrollment in school shall be deemed to have been verified upon enrollment in kindergarten in the next school year. And more than that. The Act also states that "candidates enrolling in the programs of secondary and higher education institutions and faculties that educate in the field of health, education and social welfare must have been vaccinated in accordance with the vaccination program, otherwise the candidate's enrollment will be denied, " except in the case where it is determined in the decision of the Ministry of Health to discontinue vaccination is there are legitimate medical reasons for discontinuing vaccination. The Act also states that "a fine of 400 to 40,000 EUR shall be imposed on a legal person who violates this legal requirement." Covid-19 vaccine included. I immediately wrote and published a constitutional memorandum on the unconstitutionality of these legal solutions, as well as on the unconstitutionality of some other provisions of this Act. I also wrote an initiative for the parents of school-age children to review the constitutionality of this Act and the above-mentioned changes or amendments to the Act and submitted it to the Constitutional Court. Council of Europe Resolution I do not know whether my letters influenced what happened in the Council of Europe or not. Nor does it matter. What matters, at least to me, is the news I received on January 29, 2021, that the Council of Europe had taken a position on the issue of compulsory vaccination for covid-19. With a resolution. The content of the Resolution coincides perfectly with my main points in the letter and in the article, and of course with my main points in the initiative to review the constitutionality of the regulations in force in the Republic of Slovenia on this issue. And I was very pleased about that. This is the Council of Europe Resolution No. 2361 (2021). The full text of the resolution is as follows. Covid-19 vaccines: ethical, legal and practical considerations Resolution 2361 (2021) | Provisional version. Author(s): Parliamentary Assembly. Origin: Assembly debate on 27 January 2021 (5th Sitting) (see Doc. 15212, report of the Committee on Social Affairs, Health and Sustainable Development, rapporteur: Ms. Jennifer De Temmerman). Text adopted by the Assembly on 27 January 2021 (5th Sitting). 1. The pandemic of Covid-19, an infectious disease caused by the novel coronavirus SARS-CoV-2 has caused much suffering in 2020. By December, more than 65 million cases had been recorded worldwide and more than 1.5 million lives had been lost. The disease burden of the pandemic itself, as well as the public health measures required to combat it, have devastated the global economy, laying bare pre-existing fault-lines and inequalities (including in access to health care), and causing unemployment, economic decline and poverty. 2. Rapid deployment worldwide of safe and efficient vaccines against Covid-19 will be essential in order to contain the pandemic, protect health-care systems, save lives and help restore global economies. Although non-pharmaceutical interventions such as physical distancing, the use of facemasks, frequent hand washing, as well as shutdowns and lockdowns, have helped slow down the spread of the virus, infection rates are now rising again across most of the globe. Many Council of Europe member States are experiencing a second wave which is worse than the first, while their populations are increasingly experiencing “pandemic fatigue” and are feeling demotivated about following recommended behaviours to protect themselves and others from the virus. 3. Even rapidly deployed, safe and effective vaccines, however, are not an immediate panacea. Following the festive season at the end of the year 2020 and the beginning of 2021, with its traditional indoor gatherings, infection rates will likely be very high in most member States. In addition, a correlation has just been scientifically established by French doctors between outdoor temperatures and the disease incidence rate on hospitalisations and deaths. The vaccines will no doubt not be sufficient to bring down infection rates significantly this winter – in particular when taking into account that demand far outstrips supply at this point. A semblance of “normal life” will thus not be able to resume even in the best of circumstances until mid to late 2021 at the earliest. 4. For the vaccines to be effective, their successful deployment and sufficient uptake will be crucial. However, the speed at which the vaccines are being developed may pose a difficult to combat challenge to building up trust in them. An equitable deployment of Covid-19 vaccines is also needed to ensure the efficacy of the vaccine. If not widely enough distributed in a severely hit area of a country, vaccines become ineffective at stemming the tide of the pandemic. Furthermore, the virus knows no borders and it is therefore in every country’s interest to co-operate on ensuring global equity in access to Covid-19 vaccines. Vaccine hesitancy and vaccine nationalism have the capacity to derail the so-far surprisingly fast and successful Covid-19 vaccine effort, by allowing the SARS-CoV-2 virus to mutate and thus blunt the world’s most effective instrument against the pandemic so far. 5. International co-operation is thus needed now more than ever in order to speed up the development, manufacturing and fair and equitable distribution of Covid-19 vaccines. The Covid-19 Vaccine Allocation Plan, also known as COVAX, is the leading initiative for global vaccine allocation. Co-led by the World Health Organization (WHO), the Vaccine Alliance (Gavi) and the Coalition for Epidemic Preparedness Innovations (CEPI), the initiative pulls funding from subscribing countries to support the research, development and manufacturing of a wide range of Covid-19 vaccines and negotiate their pricing. Adequate vaccine management and supply chain logistics, which require international co-operation and preparations by member States, will also be needed in order to deliver the vaccines against the virus in a safe and equitable way. In this regard, the Parliamentary Assembly draws attention to guidance for countries on programme preparedness, implementation and country-level decision-making developed by WHO. 6. Member States must already now prepare their immunization strategies to allocate doses in an ethical and equitable way, including deciding on which population groups to prioritize in the initial stages when supply is short, and how to expand vaccination as availability of one or more Covid-19 vaccines improves. Bioethicists and economists largely agree that persons over 65 years old and persons under 65 with underlying health conditions putting them at a higher risk of severe illness and death, health-care workers (especially those who work closely with persons who are in high-risk groups), and people who work in essential critical infrastructure should be given priority vaccination access. Children, pregnant women and nursing mothers, for whom no vaccine has so far been authorized, should not be forgotten. 7. Scientists have done a remarkable job in record time. It is now for governments to act. The Assembly supports the vision of the Secretary General of the United Nations that a Covid-19 vaccine must be a global public good. Immunization must be available to everyone, everywhere. The Assembly thus urges member States and the European Union to: 7.1 with respect to the development of Covid-19 vaccines: 7.1.1 ensure high quality trials that are sound and conducted in an ethical manner in accordance with the relevant provisions of the Convention on human rights and biomedicine (ETS No. 164, Oviedo Convention) and its Additional Protocol concerning Biomedical Research (CETS No. 195), and which progressively include children, pregnant women and nursing mothers; 7.1.2 ensure that regulatory bodies in charge of assessing and authorizing vaccines against Covid-19 are independent and protected from political pressure; 7.1.3 ensure that relevant minimum standards of safety, efficacy and quality of vaccines are upheld; 7.1.4 implement effective systems for monitoring the vaccines and their safety following their roll-out to the general population, also with a view to monitoring their long-term effects; 7.1.5 put in place independent vaccine compensation programmes to ensure compensation for undue damage and harm resulting from vaccination; 7.1.6 pay special attention to possible insider trading by pharmaceutical executives, or pharmaceutical companies unduly enriching themselves at public expense, by implementing the recommendations contained in Resolution 2071 (2015) on Public health and the interests of the pharmaceutical industry: how to guarantee the primacy of public health interests? 7.1.7 overcome the barriers and restrictions arising from patents and intellectual property rights, in order to ensure the widespread production and distribution of vaccines in all countries and to all citizens; 7.2 with respect to the allocation of Covid-19 vaccines: 7.2.1 ensure respect for the principle of equitable access to health care as laid down in Article 3 of the Oviedo Convention in national vaccine allocation plans, guaranteeing that Covid-19 vaccines are available to the population regardless of gender, race, religion, legal or socio-economic status, ability to pay, location and other factors that often contribute to inequities within the population; 7.2.2 develop strategies for the equitable distribution of Covid-19 vaccines within member States, taking into account that the supply will initially be low, and prepare for how to expand vaccination programmes when the supply expands; follow the advice of independent national, European and international bioethics committees and institutions, as well as of WHO, in the development of these strategies; 7.2.3 ensure that persons within the same priority groups are treated equally, with special attention to the most vulnerable people such as older persons, those with underlying conditions and health care workers, especially those who work closely with persons who are in high-risk groups, as well as people who work in essential infrastructure and in public services, in particular in social services, public transport, law enforcement, and schools, as well as those who work in retail; 7.2.4 promote equity in access to Covid-19 vaccines between countries by supporting international efforts such as the Access to Covid-19 Tools Accelerator (ACT Accelerator) and its COVAX Facility; 7.2.5 refrain from stockpiling Covid-19 vaccines which undermines the ability of other countries to procure vaccines for their populations, ensure stockpiling does not translate to escalating prices for vaccines from those who stockpile to those who cannot, conduct auditing and due diligence to ensure rapid deployment of vaccines at minimum cost based on need not market power; 7.2.6 ensure that every country is able to vaccinate their health-care workers and vulnerable groups before vaccination is rolled out to non-risk groups, and thus consider donating vaccine doses or accept that priority be given to countries which have not yet been able to do so, bearing in mind that a fair and equitable global allocation of vaccine doses is the most efficient way of beating the pandemic and reducing the associated socio-economic burdens; 7.2.7 ensure that Covid-19 vaccines whose safety and effectiveness has been established are accessible to all who require them in the future, by having recourse, where necessary, to mandatory licences in return for the payment of royalties; 7.3 with respect to ensuring high vaccine uptake: 7.3.1 ensure that citizens are informed that the vaccination is NOT mandatory and that no one is politically, socially, or otherwise pressured to get themselves vaccinated, if they do not wish to do so themselves; 7.3.2 ensure that no one is discriminated against for not having been vaccinated, due to possible health risks or not wanting to be vaccinated; 7.3.3 take early effective measures to counter misinformation, disinformation and hesitancy regarding Covid-19 vaccines; 7.3.4 distribute transparent information on the safety and possible side effects of vaccines, working with and regulating social media platforms to prevent the spread of misinformation; 7.3.5 communicate transparently the contents of contracts with vaccine producers and make them publicly available for parliamentary and public scrutiny; 7.3.6 collaborate with non-governmental organizations and/or other local efforts to reach out to marginalized groups; 7.3.7 engage with local communities in developing and implementing tailored strategies to support vaccine uptake; 7.4 with respect to Covid-19 vaccination for children: 7.4.1 ensure balance between the rapid development of vaccination for children and duly addressing safety and efficacy concerns and ensuring complete safety and efficacy of all vaccines made available to children, with a focus on the best interest of the child, in accordance with the United Nations Convention on the Rights of the Child; 7.4.2 ensure high quality trials, with due care for relevant safeguards, in accordance with international legal standards and guidance, including a fair distribution of the benefits and risks in the children who are studied; 7.4.3 ensure that the wishes of children are duly taken into account, in accordance with their age and maturity; where a child’s consent cannot be given, ensure that agreement is provided in other forms and that it is based on reliable and age appropriate information; 7.4.4 support UNICEF in its efforts to deliver vaccines from manufacturers that have agreements with the COVAX Facility to those who need them most; 7.5 with respect to ensuring the monitoring of the long-term effects of the COVID-19 vaccines and their safety: 7.5.1 ensure international co-operation for timely detection and elucidation of any safety signals by means of real-time global data exchange on adverse events following immunisation (AEFIs); 7.5.2 use vaccination certificates only for their designated purpose of monitoring vaccine efficacy, potential side-effects and adverse events; 7.5.3 eliminate any gaps in communication between local, regional and international public health authorities handling AEFI data and overcome weaknesses in existing health data networks; 7.5.4 bring pharmacovigilance closer to health-care systems; 7.5.5 support the emerging field of adversomics research which studies inter-individual variations in vaccine responses based on differences in innate immunity, microbiomes and immunogenetics. 8. With reference to Resolution 2337 (2020) on Democracies facing the Covid-19 pandemic, the Assembly reaffirms that, as cornerstone institutions of democracy, parliaments must continue to play their triple role of representation, legislation and oversight in pandemic circumstances. The Assembly thus calls on parliaments to exercise these powers, as appropriate, also in respect of the development, allocation and distribution of Covid-19 vaccines.[vii] Conclusion I have hurried and, on the basis of this Resolution, I have immediately added to the initiative that we have already submitted to the Constitutional Court, together with three doctors, the proposal that the Constitutional Court suspend the enforcement of all legal provisions on this subject until a final decision is reached. Including theprovision in theMedicinal Products Act, which defines (in Aarticle No. 68) scientific studies and analyzes on the efficacy, composition and side effects of vaccines as a "trade secret."[viii] I supplemented the initiative with more than twenty scientific sources and additional evidence. In particular, the initiative raises the issue of the constitutionality of PCR and rapid tests for Covid-19 and the consequences of the results of such tests for the citizens of the Republic of Slovenia. The initiative is registered with the Constitutional Court under file number U-I-17/21-5. Probably this was not the last substantive addition and expansion of the initiative. Post scriptum: It is also worth mentioning the shocking and shameful fact that the entire Slovenian party politics (parliamentary) and all media, especially those with the most social influence, completely ignore the fact that this resolution was adopted, and of course its content. The operation of the current government and its parliamentary coalition in Slovenia is diametrically opposed to the content of this resolution. See also The Defender – CHILDREN’S HEALTH DEFENSE: 329 Deaths + 9,516 Other Injuries Reported Following COVID Vaccine, Latest CDC Data Show. “The numbers reflect the latest data available as of Jan. 22 from the CDC’s Vaccine Adverse Event Reporting System website. Of the 329 reported deaths, 285 were from the U.S., and 44 were from other countries. The average age of those who died was 76.5.”[ix]
[ii] ECtHR. Application no. 47621/13 and five other applications/cases: Novotná v. Czech Republic (no. 3867/14); Hornych v. Czech Republic (no. 73094/14); Brožík v. Czech Republic (no. 19306/15); Dubský v. Czech Republic (no. 19298/15); Rolečekv. Czech Republic (no. 43883/15).
[iii] See Gregor Puppinck: Compulsory Vaccination: The Grand Chamber of the ECHR will Decide. EUROPEAN CENTRE FOR LAW AND JUSTICE. February 2020. Available at: https://eclj.org/conscientious-objection/echr/vaccination-obligatoire–la-cedh-va-se-prononcer-en-grande-chambre (27.6.2020); Christophe Foltzenlogel: Mandatory Vaccination: Important hearing before the Grand Chamber of the ECHR. European Centre for Law & Justice. July 2019. Available at: https://eclj.org/conscientious-objection/echr/vaccins-obligatoires–la-grande-chambre-a-entendu-les-arguments-des-requerants-et-du-gouvernement-tcheque (1.8.2020)
[iv] Andraž Teršek: Compulsory Vaccination and Fundamental Human Rights. In Friderika Kresal and Mojca Amon (eds.). Sustainability and physiotherapy: III. scientific symposium 2020: Ljubljana: Visokošolski zavod Fizioterapevtika, 2020, pp. 105-122. ISBN 978-961-93982-4-1. [COBISS.SI-ID 37244419] Full article can be found and downloaded at: https://andraz-tersek.si/wp-content/uploads/2020/12/Compulsory-Vaccination-and-Fundamental-Human-Rights-objavljeni-Ter%C5%A1ek-2020-1.pdf
[vi] Available at: http://www.pisrs.si/Pis.web/pregledPredpisa?id=ZAKO8219