Statement of the Commissioner for Fundamental Rights Concerning the Application of Immunity Certificates
In connection with the petitions submitted to his Office, Ombudsman Dr. Ákos Kozma summed up the constitutional requirements pertaining to the application of immunity certificates, and formulated proposals aimed at finding a solution to the practical issues having emerged.
The application of immunity certificates raises several constitutional and practical questions. This is also demonstrated by the fact that the Commissioner for Fundamental Rights received more than eight hundred complaints from private persons over just a few days in relation to this issue.
The Commissioner for Fundamental Rights reviewed the complaints, and in addition to evaluating the legal regulation from the perspective of constitutionality, he turned to the Minister of Interior in charge of the Operational Group for the Protection Against the Coronavirus Epidemic and the Minister of Human Capacities with proposals aimed at facilitating the solution of problems that emerged in the application of the law.
He called attention to the fact that although anti-Covid-19 vaccination is not mandatory in Hungary, the legal regulation encourages inoculation as extensively as possible. Vaccines serve the protection of not only the persons vaccinated but also of the whole society and community concerned. Vaccination is therefore also a social responsibility. This incitement through legal regulation is not constitutionally objectionable as long as theoretically, there is enough vaccine available for the inoculation of the entire population that may be vaccinated; that is, it is up to the decision of those concerned whether they choose to get vaccinated or not, and as long as the regulation does not tie the exercise of fundamental rights or the fulfilment of basic needs to the ability to certify one’s immunity.
It is essentially participation in leisure time activities and events (i.e. attending sports and cultural events as a spectator, staying in the indoor space of catering units and places of accommodation as a guest) that the regulation currently in force ties to the possession of an immunity certificate.
With regard to immunity to Covid-19, the population can be divided into two major groups: those who, based on medical considerations, most likely have some degree of immunity to the virus (they have been vaccinated with one of the authorised vaccines, or have earlier been infected with the virus and can certify the presence of anti-bodies in their organism), and those in the case of whom the probability of such immunity cannot be established on the grounds of objective reasons.
Therefore, in case of a mass epidemic, it is not unreasonable to tie the use of optional services allowing for the simultaneous presence of many people to a condition that takes into consideration the risk and chances of a given person to have contracted the virus and his or her infecting others at a given moment. The exclusion of persons whom cannot be considered immune from leisure activities that are available for persons possessing an immunity certificate is implemented due to epidemiological reasons, which is thus a solution that cannot be objected to from a fundamental rights-related perspective.
At the same time, it would fall under a different constitutional consideration if the legislative or law enforcement organs tied the exercise of fundamental rights or the pursuit of activities essential for the ordinary course of life to the ability to prove one’s immunity.
All in all, the current regulation on immunity certificates does not thus constitute an impropriety; nevertheless, fundamental rights-related correctional demands may arise in connection with the individual particular rules.
It is the task and responsibility of the Government issuing the rules relating to immunity certificates to make sure – if it wants to tie the ability to enter certain leisure time facilities to the possession of an immunity certificate – that the certificate would be issued at a time when individual immunity and the necessary level of protection against infection of other persons coming into contact with the person vaccinated have most likely developed according to the current state of medical science.
Tying certain services to holding an immunity certificate may also have an indirect effect: in order to obtain the certificate, those persons may also apply for inoculation who would not otherwise deem it necessary to protect their own health or that of their environment. This effect, however, might be countered by the implication that those who request to be vaccinated for purely “pragmatic reasons”, i.e. in order to obtain the immunity certificate, will not be interested in showing up for the second dose of vaccine that would ensure a higher-level and longer-lasting immunity. Therefore, the Commissioner for Fundamental Rights proposed the review of the provisions relating to the issuance of immunity certificates and their revision as necessary.
Immunity certificates tied to vaccination do not feature a date of expiry, whereas in other cases of the issuance of such a certificate, the legal regulation prescribes a six- or four-month validity. The Commissioner for Fundamental Rights called attention to the fact that the date of expiry of immunity certificates must be established so that it would cover the period during which immunity is likely to persist according to the current state of medical science. Consequently, the Government must constantly monitor during the state of danger whether there emerges any new and relevant condition that would make it necessary to review the provisions regulating the date of expiry of immunity certificates.
The Commissioner for Fundamental Rights underlined: it is a crucial premise, which ensues from the principle of solidarity with and responsibility for one another, that in the case of those persons who cannot be vaccinated due to potential health risks, the measures taken in order to curb the infection (especially, tying certain rights to the possession of an immunity certificate) should not entail the restriction of their fundamental rights.
The Commissioner for Fundamental Rights also drew attention to the fact that if the legal regulation does not provide to persons vaccinated abroad rights identical to those of persons vaccinated in Hungary with the same authorised vaccine, and if there are no reasonable grounds for that, it constitutes a violation of the equality of rights. Thus, the Commissioner suggested that the legislator review the ways in which it could be guaranteed that persons vaccinated abroad (especially, but not exclusively, in the territory of the European Union) could practice those rights that are granted by identical anti-Covid-19 vaccination in Hungary.