Applicability of Digital COVID-19 Vaccine Passports in the Context of Two Related Judgments of the European Court of Human Rights

Prepared by Tarık T. Yazıcılar, Büşra Nur Tokis Kuş and Hatice Arslan

Ed. By Dr. Tuba Kelep and Dr. Rahime Erbaş

  1. Introduction

One of the effective tools used in the fight against the COVID-19 virus, which has been  widely seen in various parts of the world since the beginning of 2020 and quickly became a worldwide epidemic, is vaccines that produced by many companies today and which has started to be applied after the legal permit procedures are completed[1]. While individuals around the world are encouraged to get vaccinated by various methods, “digital vaccine certificates” have also been introduced in some countries that allow individuals who have been vaccinated to document their situation through their smartphones[2]. The “European Union (EU) Digital COVID Certificate” is planned to be made available in all EU Member States from 1 July 2021 in order to facilitate the safe free movement of citizens in the EU during the COVID-19 pandemic[3].

On the one hand; through these certificates, it is discussed that individuals should be required to be vaccinated in order to get in public buildings and places, and several restrictions should be applied on non-vaccinated persons[4]. On the other hand, especially in many US states, it is forbidden to request vaccination passports to prevent the obligation for this passport to access such places[5]. This situation for compulsory vaccination activities and possible constraints also raises a number of legal discussions regarding the fundamental rights and freedoms guaranteed by the European Convention on Human Rights (hereafter referred to as the “Convention”). This paper addresses the possible restrictions already discussed in the context of vaccination policies and the implementation through digital vaccination passports within the framework of two judgments from European Court of Human Rights (hereafter referred to as the “Court”) regarding compulsory vaccination practices and sanctions imposed for violations of the vaccination duty.

  1. Two Judgment Regarding Compulsory Vaccination Applications

2.1. Salomakhin v. Ukraine

The applicant, who was given a diphtheria vaccine due to the ongoing diphtheria outbreak in Ukraine at the time he is in the hospital where he was being treated for health problems, applied to the Court claiming that the vaccine caused contraindication for him and induced a number of chronic diseases[6]. Upon this application, the Court emphasized in it’s decision that the physical integrity of individuals is covered by the concept of “private life” which is protected by Article 8 of the Convention, that the body integrity of a person concerns the most intimate aspects of a person’s private life, and that a compulsory medical intervention constitutes an infringement to this right, even if it is of minor importance. However, the Court has ruled that such an intervention is clearly regulated by law and is intended to protect the health of individuals in this relevant application[7]. In addition, according to the Court, it can be accepted that the intervention to the physical integrity of the applicant is justified by the need to control the spread of infectious diseases in order to protect public health[8].

2.2. Vavřička and Others v. the Czech Republic

In the case where a parent and their two children were listed as applicants, the first applicant was fined for not complying with the vaccination duty for their two children, while their children, who were other applicants, were not accepted to kindergarten for the same reason. The Court examined the relevant practice in the context of Article 8 of the Convention, pointing out that compulsory vaccination as a non-voluntary medical intervention constitutes an intervention in physical integrity and therefore relates to the right to respect for privacy protected by Article 8 of the Convention[9]. Article 8 of the Convention regulates rights for private life and according to this article, limitations of this right can happen if intervention covers three basis which are “in accordance with law, existence of a legitimate purpose and necessary in a democratic society”.

The court firstly examined the first element that the application in the case was executed on the basis of a law approved by both the Supreme Administrative Court and the Constitutional Court, and therefore the requirement to be regulated by the law stipulated in Article 8/2 of the Convention was fulfilled in the case subject to the application[10].  Secondly the Court examined in that case whether there is a legitimate purpose or not to interfere with a person’s right to private life. As pointed out by the Czech government and adopted by the local court, the purpose of the legislation on vaccination duty is to protect against diseases that may pose a serious risk to health. This protection covers both those who have had the relevant vaccinations, and those who cannot be vaccinated and therefore need a high vaccination rate within the general population to protect against such infectious diseases. Therefore, the Court has decided that this purpose is a legitimate purpose which meets the objectives of protecting the health and protection of the rights of others as stipulated in Article 8 of the Convention[11].

Finally, the Court examined whether this intervention is necessary in a democratic society. The Court considered that there are conflicting private and public interests or when there must be balance between the rights of the Contract, and reiterated that the discretion margin of the defendant State will generally be wider and the Court concluded that this limit should be wide especially for issues about the vaccination of children due to its nature[12].  In addition, according to the Court, the administrative sanctions imposed on Mr. Vavřička and the interventions that result from the refusal of child applicants to the kindergarten have reasonable and proportional relations with the legitimate purposes pursued by the defendant State through the duty of vaccination[13]. Therefore, it can be said that this vaccination duty, which is the subject of the lawsuit regulated by law in the Czech Republic, represents the response of local authorities to an urgent social need to protect the health of individuals and public health against diseases and the downward trend in vaccination rate among children[14]. In the end, the Court concluded that the interventions which have this three basis did not exceed the state’s discretion margin, acknowledged that such measures were “necessary in a democratic society” and ultimately ruled that article 8 of the Convention was not violated in the mentioned case.

  1. Evaluation of Digital Vaccine Passports under the ECHR

As can be seen in the decisions summarized above, compulsory vaccination constitutes involuntary medical treatment which is an intervention to the right to respect for private life including the physical and psychological integrity of the person guaranteed by Article 8/1 of the Convention[15]. In addition, sanctions for non-compliance to compulsory vaccination duties contained in the aforementioned Vavřička and Others v. the Czech Republic case law are also considered as an intervention in this context. These views of the Court can be a reference point and interpreted for current and future digital Vaccine passports regulations. The digital vaccine passports which are planned to be used for both domestic and abroad travels or entrance to and exit from buildings can be considered within the scope of the right to liberty of movement and right to respect for privacy under the Convention. In this respect, possible restrictive practices for the use of digital vaccine passports may also be considered as interventions under Article 8 of the Convention[16] and Article 2 of Protocol No. 4 of the Convention[17].

The Court considers practices like compulsory vaccination duties as an intervention for the body immunity and psychological integrity of individuals and stipulates that such an intervention must first be issued by law as mentioned before. At this point, it should be stated that a restriction not regulated by law will be considered as an interference with human rights according to the court criteria. On the other hand, the requirement to be issued by law does not make compulsory vaccination practices lawful on its own, besides this requirement such an intervention must also be aimed at a legitimate purpose and be a necessary and proportional intervention in a democratic society.

On the other hand the Court pointed out that uncertainty for the vaccination or refusal of the vaccination affects not only people who do not get vaccinated, but also third parties who do not have the opportunity to benefit from the vaccine temporarily or permanently for various reasons[18]. Therefore, in cases where people who do not get vaccinated due to vaccine refusal increase the likelihood of third parties being infected with these actions, which make it difficult to reach a high vaccination rate in the general population, violations of the contractual rights of third parties may be raised. Furthermore, a conflict will arise between the rights of individuals who do not comply with their vaccination duties and the rights of all individuals in the society. There is no doubt that the state will need a balance between rights, due to its obligation to protect the public interest in this situation, which directly concerns public health. At this point, the state’s interference in the rights which are protected by the Convention in order to protect general health will be raised[19].

The intervention may arise directly in the form of a vaccination duty to which it is subjected to compulsory vaccination, or in the form of penalties to be applied in case of violation of this duty. On the other hand, in order to be in accordance with Article 8 of the Convention, the relevant intervention must be a necessary measure for the protection of health or the rights and freedoms of others in a lawful and democratic society. As a matter of fact, in the decision of Vavřička and Others v. the Czech Republic discussed above, the Court considered the refusal of the unvaccinated child to be admitted to kindergarten, which is legally obligatory, as a necessary and reasonable measure in democratic societies and ruled that there was no violation.

There is no case that the Court reviewed and decided regarding COVID-19 vaccines yet. Furthermore, although compulsory COVID-19 vaccine applications have been discussed for a long time, there is no state in the world that has yet to issue such a legal duty. However, some states have developed so-called digital vaccine passport systems for now;  and have utilized optional certification practices and announced that citizens who are vaccinated will be exempted from some restrictions in this way. For example, if a person is vaccinated with at least one of the vaccines which are approved for use by the European Medicines Agency, they can be exempted from COVID-19 measures and limitations with the application of digital vaccine certificates which have started in Germany in recent months, and it has been announced that passengers with digital certificates in the future will be exempt from travel restrictions throughout the European Union, with exceptions[20].

Granting positive privileges to those who are vaccinated and restricting those who are not vaccinated, creates the problem of prohibition of discrimination and restriction of fundamental rights. Nonetheless, as we mentioned above, it is possible and might be necessary for states to take certain measures related to public health where conflict of rights arises. In this respect, it is imperative that everyone has a right to access to vaccines, that discriminatory practices are not applied in vaccination, and that the restrictions are proportionate and legitimate. For example, in Germany, the state removes the priority ranking for vaccination by allowing everyone to access the vaccine; and provides free testing for those who are not vaccinated. In this way, those who are not vaccinated travel with negative test results, entering closed areas, in other words, the difference between them and those who are vaccinated is almost eliminated[21]. However, while vaccinated individuals are constantly exempt from limiting vaccination duties by fulfilling their vaccination duties, with exceptions, the fact that those who want to access this exemption without vaxxed are required to have regular tests raises a separate debate.

CONCLUSION

Although case law on the COVID-19 pandemic has not yet occurred by the Court, it  had the opportunity to develop a case law on the compulsory vaccination duties by considering precedents. The Court examines compulsory vaccination practices within the framework of the concept of “private life” under Article 8 of the Convention and concludes that these practices interfere with the body immunity of individuals. In the case laws which discussed in this paper, the Court underlines that sanctioning the non-compliance with compulsory vaccination duties will only be a legitimate intervention if this duty is regulated by law, if it has a legitimate purpose, carries the conditions of being necessary, and being proportionate in democratic society. Digital vaccine passports are optional applications that have not yet been implemented as a restriction at all, but it allows people who have been vaccinated to have more comfortable access to their rights by proving their immunity. The possibility that these applications may arise restriction for individuals who choose not to be vaccinated due to the uncertainity for vaccination or the refusal of vaccination will lead to discussions of a prohibition of discrimination and restriction of fundamental rights. Observing the principle of superior benefit in cases where rights are conflicted, the Court concludes that public health has a superior benefit to the rights of individuals who violate compulsory vaccination duties as long as the relevant interventions in the applications related to compulsory vaccination restrictions meet the requirements which are listed in Article 8 of the Convention. On this basis, it can be stated that applications such as granting various exemptions to those who are vaccinated through digital vaccination passports and subjecting them to various restrictions through these passports are possible in line with the provisions of the Convention and the Court’s case law, as long as they provide the requirements of being accordance with the law and necessary in a democratic society for the protection of health.

Bibliography

*All web contents in the bibliography were accessed on 30.06.2021.

[1] For the table listing the COVID-19 vaccines in the evaluation process of the World Health Organization, see https://extranet.who.int/pqweb/sites/default/files/documents/Status_of_COVID-19_Vaccines_within_WHO_EUL-PQ_evaluation_process-16June2021_Final.pdf

[2] For detailed information on the digital vaccination certificate application in Germany, see: https://www.zusammengegencorona.de/impfen/aufklaerung-zum-impftermin/impfnachweis/

[3] European Commision, ‘EU Digital COVID Certificate’, Press Release, 1 June 2021, ec.europa.eu/commission/presscorner/api/files/document/print/en/ip_21_2721/IP_21_2721_EN.pdf; Also see. https://ec.europa.eu/info/live-work-travel-eu/coronavirus-response/safe-covid-19-vaccines-europeans/eu-digital-covid-certificate_en#will-citizens-who-are-not-yet-vaccinated-be-able-to-travel-to-another-eu-country

[4]For example, in the United Kingdom a petition has been launched and over 350.000 signatures have been gathered demanding  that such passports be used to restrict the rights of people who refuse the Covid-19 vaccine, and that the government will not distribute any e-vaccine status & immune passports to the British people on the grounds that this is unacceptable. In response, the government says it is examining whether Covid-19 certificates can play a role in improving security in reopening parts of social life and lifting certain restrictions, considering that there are complex ethical issues, and ensuring that there will be no discrimination against people who are not vaccinated for whatever reason. see. ‘Do not rollout Covid-19 vaccine passports’, https://petition.parliament.uk/petitions/569957 For discussions on the subject in the UK, see. BBC News, ‘Vaccine passports: How can I prove I’ve had both my Covid jabs?’, 26 June 2021 https://www.bbc.com/news/explainers-55718553

[5]For the State of Alabama see. Alabama Senate Bill 267 https://legiscan.com/AL/text/SB267/2021; For the State of Arizona see. Executive Order, Prohibiting Political Jurisdictions of the State from Requiring the Disclosure of an Individual’s COVID-19 Vaccination Status https://azgovernor.gov/file/37478/download?token=Y84wnioD ; For the State of Florida see. Executive Order 21-81 (Prohibiting COVID-19 Vaccine Passports), https://www.flgov.com/wp-content/uploads/2021/04/EO-21-81.pdf

[6]Salomakhin v. Ukraine, No. 24429/03, 24.09.2012 https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-109565%22]}

[7] see Ibid. § 35.

[8] see Ibid. § 36.

[9] Vavřička and Others v. the Czech Republic [GC], No. 47621/13, 08.04.2021, http://hudoc.echr.coe.int/fre?i=001-209039

[10]see Ibid. § 266-271.

[11] see Ibid. § 272.

[12] see Ibid. § 275-280.

[13] see Ibid. § 309.

[14] see Ibid. § 284.

[15] see Salvetti v. Italy, No. 42197/98, 9 July 2002 and Matter v. Slovakia, No. 31534/96, § 64, 5 July 1999.

[16] 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

[17] 1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own. 3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others

[18] see supra note 11.

[19] Fatmagül Kale Özçelik, Compulsory Vaccination for Children in the Context of Conflict And Balancing of Rıghts (A Review Under the European Convention on Human Rights), SDÜHFD, Vol.10, 2020.

[20] Bundesministerium für Gesundheit, ‘So funktioniert der digitale Impfnachweis’ 22.06.2021 https://www.zusammengegencorona.de/impfen/aufklaerung-zum-impftermin/so-funktioniert-der-digitale-impfnachweis

[21]For detailed information on corona measures in Germany, see: https://www.dw.com/de/bund-und-l%C3%A4nder-heben-corona-impf-priorisierung-ab-7-juni-auf/a-56240814 and https://www.dw.com/de/kostenlose-corona-tests-in-deutschland-gestartet/a-54400187