The European Court of Human Rights (the “Court”) has rejected two complaints against mandatory Covid-19 vaccination. The Court’s decisions appears to be one of the first instalments in the debate regarding Covid-19 vaccine mandates and their impact upon fundamental rights and liberties.
BACKGROUND TO THE COURT’S DECISION:
In July 2021, the French Parliament made full Covid-19 vaccinations mandatory for eligible emergency workers. From November, these workers will face suspension from their jobs without pay if they refuse to be vaccinated. In response, on 19 August, 672 full-time and voluntary members of the French Departmental Fire and Emergency Services asked the Court to suspend the requirement to be fully vaccinated against Covid-19 along with any penalty which would prevent them from doing their jobs. In their request, the French applicants argued that the requirement to be fully vaccinated breached both their right to life and their right to respect for family and private life (under articles 2 and 8, respectively, of the European Convention on Human Rights (the “Convention”)).
Later, on 2 September, a group of 30 Greek health professionals also lodged an application asking the Court to suspend the application of a Greek law imposing compulsory Covid-19 vaccination for health professionals to be able to continue in their jobs. The Greek applicants also alleged that the vaccine mandate was contrary to the right to life, the right to respect for private and family life, the prohibition of inhumane and degrading treatment, the prohibition of slavery and forced labour, the right to liberty, the right to a fair hearing, and the prohibition of discrimination (under articles 2, 8, 3, 4, 5, 6, and 14, respectively, of the Convention).
Under the Court’s rules, it can grant “interim measures” requiring a country to take certain urgent provisional measures to protect the applicants’ rights from irreversible harm while the Court continues its examination of their case. Importantly, whether the Court chooses to grant a request for interim measures does not affect its subsequent decision on the substance of an application.
THE COURT’S DECISION:
The Court rejected these requests, stating that it was outside the scope of the Court’s rules regarding interim measures. In its press releases (published on 25 August for the French application and on 9 September for the Greek application), the Court explained that it only grants such requests on an “exceptional basis” where “the applicants would otherwise face a real risk of irreversible harm”. This leaves the door ajar for the Court to grant similar requests for the suspension of vaccine mandates where applicants can demonstrate that they would face such harm.
Given the focus on interim measures, the Court did not analyse the detail of the applicants’ arguments. However, based on the Court’s previous decisions, it seems unlikely that the applicants would have succeeded. In April 2021 (in the case of Vavřička and others v. The Czech Republic), the Court ruled that a vaccine mandate for children who were admitted to daycare centres did not violate the right to private life. While the Court acknowledged that a vaccine mandate is an infringement of one’s right to private life, the measure was justified as it was required for the protection of the rights of others and public health generally.
THE LIKELY IMPACT OF THE COURT’S DECISION:
The Court’s decisions will have brought relief to the French and Greek Governments. Other European governments can also take some comfort that similar measures in their own countries are unlikely to be imperilled by the Court. In the UK, for example, care home workers have now launched a judicial review of the Government’s requirement that from 11 November all care home staff must be fully vaccinated against Covid-19. Notably, the claimants argue that the mandate breaches their right to respect for private and family life and the prohibition on discrimination enshrined in the Convention.
However, whilst the Court rejected these requests for interim measures, it specifically noted in its press releases that this does not prejudice any subsequent decision regarding this or similar complaints, meaning that the matter may still be raised again in the future. In light of this, two applications against the Greek vaccine mandate are still pending before the Court. The Court is therefore likely to provide further substantive guidance on this topic in the near future. Similarly, in France, emergency workers’ unions have also indicated that they will continue to fight the vaccine mandate. The Court’s decision in these cases is therefore unlikely to be the last instalment in the debate surrounding Covid-19 vaccine mandates.
Ruaridh holds an LLB in Law and French Language from the University of Glasgow, where he focused on the case law of the ECtHR and its relationship to the jurisprudence of the Court of Justice of the European Union. He previously worked as a caseworker at the Advice on Individual Rights in Europe ("AIRE") Centre in London and subsequently as a stagiaire at the General Court of the European Union. He is now training as a solicitor in London.