Policy Statement of the Commissioner for Fundamental Rights Regarding the Evaluation of the Immunity Certificate from a Fundamental Rights Perspective and His Proposals on the Review of Legal Regulation - AJBH-EN
Policy Statement of the Commissioner for Fundamental Rights Regarding the Evaluation of the Immunity Certificate from a Fundamental Rights Perspective and His Proposals on the Review of Legal Regulation
The pandemic situation has improved as a result of the rising number of vaccinated citizens and it has also become possible to lift part of the related restrictive measures. Immunity certificates were introduced by the Government as one of the elements of this process. This card entitles those who have been vaccinated and those who have recovered from the Covid-19 infection to use certain services.
The application of the immunity certificate raises several constitutional and practical questions. This is also shown by the fact that several hundred complaints on this subject were received by the Commissioner for Fundamental Rights in a few days. Some of them cannot be regarded as well-founded; however, the other part of these petitions contain observations that are worth considering.
As it is a question that affects the whole society, including those with or without an immunity certificate, the Commissioner for Fundamental Rights deemed it important – not only because of the high number of these submissions but also arising from his competence to protect fundamental rights – to signal those anomalies, ex officio, to the legislator which could be easily remedied by clarifying the respective rules.
The restrictions can be gradually lifted on the basis of the in-depth analysis of the health care, economic and social policy perspectives. This process was accelerated by the Commissioner for Fundamental Rights when he sent a letter to the Minister of the Interior heading the Coronavirus Operational Group and the Minister for Human Capacities on 13 May 2021, in which he summed up the constitutional requirements to be enforced in the application of the immunity certificates, and he also made some practical proposals in the spirit of functionality.
1. The fundamental rights-related questions regarding the application of immunity certificates
With regard to the fact that one of the indirect goals of using immunity certificates js to increase the vaccination rate of the population, i.e. to halt the spread of the coronavirus infection by encouraging vaccinations, the Commissioner for Fundamental Rights reviewed the practices applied by the Constitutional Court and the European Court of Human Rights regarding vaccinations.
1.1. The Constitutional Court (hereinafter referred to as: the CC) emphasised, with regard to vaccinations, that “in the Constitutional Court procedure, it cannot be questioned that vaccinations […] are aimed at increasing the resistance of the human body against infectious diseases and the prevention of the spread of infectious diseases. Thus, on the one hand, these protect the individuals […] from the infection, while on the other hand, the society as a whole from the outbreak of epidemics”. They also pointed out that “vaccines protect the health of the affected individual and the other members of society”; furthermore, the members of children’s communities are interested in “achieving as high a number of immunised members of the community as possible”. [CC decision No. 3080/2019 (IV. 17.); CC decision No. 39/2007 (VI. 20.)].
Thus, the CC treats it as an unquestionable principle that vaccinations do not only serve the protection of the vaccinated persons but also, that of the society as a whole, the affected community. “It was established on the basis of scientific presumptions (i.e. in a way that cannot be revised on a legal basis), that vaccinations “qualify as suitable and necessary tools […] for the protection of the whole society against infectious diseases and epidemics”.
1.2. Due to the direct effect that the pandemic exerts on the freedoms that are stipulated in an international convention that is also recognised by Hungary, the relevant practices of the European Court of Human Rights (ECHR) have governing effect on the legislation regarding the immunity certificate, which are summed up below by the Commissioner for Fundamental Rights.
In one of its respective decisions, the ECHR emphasised that mandatory vaccinations, as a form of non-voluntary medical treatment, qualify as interference with the right to privacy. However, it was emphasised that this intervention clearly fulfils a legitimate goal that is prescribed by law (i.e. the protection of health), and it is not disproportionate. In the opinion of the ECHR, such intervention may be justified by public health considerations and the necessity of controlling the spread of infectious diseases in the region [case of Solomakhin v. Ukraine, No. 24429/03, 15 March 2012].
In other relevant decisions, the ECHR also referred to the scientific consensus according to which a high vaccination rate is one of the most efficient forms of protection against epidemics, so the states should endeavour to ensure this to their citizens. In its most recent decision on the subject, the judicial body stressed that there is a sufficient number of relevant reasons that support mandatory vaccinations, this is a public policy, so interference with the right to self-determination is not arbitrary [case of Vavřička and others v. the Czech Republic, No. 47621/13, 8 April 2021].
As regards the scope of means available for ensuring high vaccination rates, it was stipulated by the ECHR that the member states have a broad space of manoeuvre with regard to how they meet their obligation to protect health (case of Vavřička and others v. the Czech Republic, see above). This space of manoeuvre is of course not unlimited, it may be judged differently if, for example, the rule allowed the use of physical force in making the person concerned get vaccinated.
1.3. Fundamental rights-related conclusions related to the application of the immunity certificates
The measures introduced in Hungary do not make the Covid-19 vaccinations mandatory, they only encourage getting vaccinated.
It can be derived from the practices of the CC and the ECHR to date that making vaccinations mandatory does not only affect the health of those concerned but the fundamental rights of these and other persons as well, i.e. the self-determination of the person concerned can thus be restricted. As a consequence of the above, the Hungarian regulation, which is of a less interventive character, one which does not oblige the citizens to get vaccinated for Covid-19, only encourages them to do so, cannot basically be objected to from a constitutional perspective until an amount of vaccine sufficient for the total vaccinable population is available in principle, i.e. it depends on the decision of those concerned whether they get vaccinated, or until it is not the exercising of fundamental rights/the satisfaction of basic needs that is tied to the certification of immunity.
With effect from 1 May 2021, some restrictions and prohibitions that had been introduced previously due to the state of danger were lifted for those who have immunity certificates. However, they remained in force for those who do not have such a card.
Pursuant to Section 54 (1) of the Fundamental Law of Hungary, the exercising of fundamental rights, with the exception of the fundamental rights defined in Articles II and III, as well as in Paragraphs (2)-(6) of Article XXVIII, can be suspended, or restricted beyond the extent defined in Paragraph (3) of Article I in a special legal order.
As has been established by the CC, “a state of emergency allows the taking of extraordinary measures but those who drafted the constitution did not mean to authorise the legislator working in the special legal order either to introduce any restrictions of fundamental rights that are unrelated to overcoming the danger, or to restrict certain fundamental rights to an extent higher than justified by the extraordinary circumstance” [CC decision No. IV/00100/2021].
Thus, in evaluating the restrictions of fundamental rights in the period of a special legal order, the restriction tests that have governing effect according to the general rule should be relied upon, any restrictions of fundamental rights of an extent higher than this can only be imposed in a narrow scope, in relation to overcoming the danger. However, as long as the legislator intends to maintain a measure even after the period of special legal order is over, in this case, this should fully comply with the tests that are governing for the restriction of fundamental rights.
The rules concerned in this case essentially tie participation in leisure time activities, such as sports or cultural events as spectators, staying inside catering units, or as guests at hotels, to the certification of immunity with the documents meant for this purpose.
In this regard, it can be established that the leisure time activities that belong to this category are characterised by the joint participation of a high number of persons (even in a mass turnout) in an event, and the difficulty of their separation. The exclusion of the persons who cannot be considered protected from the virus from the leisure time activities that are open to those who are presumably immune to the infection was in fact meant to prevent, manage and eradicate the epidemic, or to prevent or avert its harmful effects, as a measure that is justified from an epidemiological point of view, which is a solution that cannot be challenged, in this respect, from a fundamental rights aspect.
However, it would have a different constitutional assessment if the legislators or the legal practitioners tied the exercising of fundamental rights or the pursuance of everyday activities to the certification of immunity.
Making the provision of health care services financed by social security depend on the possession of immunity certificates is a question that was only touched upon by the inquiry addressed to the Minister of the Interior on the level of a proposal, the constitutional concerns that may emerge in this respect may make it necessary to launch a special inquiry into this subject.
In addition to the above, based on the complaints received, it was necessary to examine the legal regulation from the perspective of the enforcement of non-discrimination stipulated in Paragraph (1) of Article XV of the Fundamental Law of Hungary.
The population can be divided into two large groups based on their immunity to Covid-19: in one of these, there are those in the case of whom a degree of immunity is presumable on the basis of medical criteria (they have already been vaccinated by one of the authorised vaccines, or they have recovered from the infection and are certified to have antibodies) and those in the case of whom there is probably no such immunity on the basis of objective criteria.
According to the consistent practice of the CC, the principle of non-discrimination is violated when “the law distinguishes between legal subjects who are equivalent from the aspect of the regulation, i.e. who belong to the same group, or homogeneous groups (those who are in comparable situations) and such distinction is not justifiable: the different regulations have no reasonable grounds of sufficient gravity, i.e. the distinction is arbitrary” [e.g. CC decision No. 25/2019 (VII. 23.)].
However, it cannot be considered as discrimination if different provisions are imposed by the legal regulation on subjects with different characteristics [e.g. CC decision No. 3062/2012 (VII. 26.); CC decision No. 3/2014 (I. 21.)].
On the level of principle, it can be established that in the case of a large-scale epidemic, it makes sense to tie the use of services that assume / allow the attendance of a high number of people to such a criterion which reckons with the chances of the person wishing to use the service recently having been infected with the virus, and the risk of his or her currently infecting other persons.
According to the position taken by the Commissioner for Fundamental Rights, those persons in whose case an acceptable level of immunity can be presumed at the moment, do not constitute a homogeneous group with those persons who do not have an implication of immunity for the regulation on the subject in question in the sense used by the practice of the CC.
This means that the currently effective regulation of immunity certificates is basically not improper from a fundamental rights perspective; however, claims for correction with regard to some detailed rules may arise from a fundamental rights perspective. The respective provisions that are mandatory for everybody will be examined by the Constitutional Court as a result of the constitutional law-related complaints submitted by private individuals.
2. In addition to calling attention to the general constitutional requirements, the Commissioner for Fundamental Rights also wished to support legislation by having indicated the fundamental rights-related and practical issues that came up when the legal regulation was applied and he made the following proposals to the legislator to serve the greater good.
2.1. The issuance of immunity certificates
The name of the immunity card may suggest that it certifies the full immunity of the person concerned to coronavirus. However, the possession of an immunity card only makes it probable that the person concerned has developed a certain level of immunity, and thus, the risk of graver complications of the coronavirus infection, or that of spreading the infection in the person’s environment will be lower, depending on several individual factors such as age, the existing diseases, the condition of the immune system, etc.
Pursuant to the effective legal regulations, the Government Office of the Capital City Budapest (hereinafter referred to as: the Government Office) issues the immunity certificates ex officio to those persons who were vaccinated by a vaccine officially accepted in Hungary, or to those who qualify as recovered. The Government Office issues the immunity cards at request to those who certify the presence of antibodies in their bodies in a way that is in line with the respective regulations. With effect from 1 March 2021, the immunity certificates should be issued within 8 days from the vaccination or recovery, or after the submission of the above application, also within 8 days.
It is the task and responsibility of the Government defining the rules of the immunity certificates that if they wish to make visiting certain leisure time facilities depend on the possession of an immunity certificate, then the certificate should be issued at the time when the individual immunity has presumably developed, or when the necessary level of protection from the infection of those who get in contact with the vaccinated citizen has already developed, according to the current state of medical science.
It can be derived from the state’s objective obligation to protect lives that the Government should make a decision for the protection of the population that is supported by medical reasons and one that is in line with the authorisation documents of the vaccines concerned when it regulates the conditions of eligibility for receiving immunity certificates, including the definition of the date of issuance.
Getting vaccinated for coronavirus is voluntary. The higher the number of citizens getting vaccinated is, the higher level of immunity there will be on the level of society. Thus, it is in the interest of the society as a whole to increase the willingness to get vaccinated, which can be enhanced by providing information, communicating the facts and launching campaigns that promote vaccination.
Getting vaccinated also means taking social responsibility, to which the legislator may encourage the population. This means that making the provision of some services dependent on the possession of an immunity certificate may exert such an indirect effect that, with a view to obtaining the certificate, even those will request to be vaccinated who would not deem it necessary for the protection of their own health or the protection of their environment (for example, they assume that the coronavirus is not a threat to them due to their strong immune systems). It may go against this effect, however, that those who do not deem the epidemiological effect of the vaccination encouraging enough will only request it for “pragmatic reasons”, for obtaining the immunity certificate for being able to use certain leisure time services, so if they receive the card after the first vaccination, they will not even attend the second vaccination, which would ensure a higher-level and more lasting immunity.
This means that, from this perspective, the immunity certificates issued after the first vaccination may prove to be counter-productive, as it may reduce the willingness to receive the second vaccination contrary to the intent of the legislator, i.e. the development of the maximum level of immunity that can be obtained according to the current state of medical science.
With regard to the above viewpoints, the Commissioner for Fundamental Rights proposed that the provisions on the issuance of an immunity card set out in government decree No. 60/2021 (II. 12.) on the certification of immunity to coronavirus (hereinafter referred to as: the Government Decree) be reviewed and revised as necessary.
2.2. Validity of the immunity certificates
The validity of the immunity certificate issued in compliance with the provisions set out in the Government Decree lasts from the same day of the sixth month following recovery from the infection, or if there is no such day in the month in question, until the last day of the month. If the presence of the antibody in the person’s body is certified, the validity of the immunity certificate issued at request will be the same day of the fourth month following the test demonstrating the presence of the antibody, while if there is no such day in the month, it will be the last day of that month. The validity of the immunity certificate issued after vaccination was not defined by the legislator.
With regard to this element of the regulation, it should also be stressed that the length of validity of the issued immunity certificate is a professional question to be decided by the Government. However, it is a requirement that this should be defined in such a way that validity should extend to the immunity period that is presumed according to the current state of medicine. Thus, it is a professional question which can be answered depending on the most recent knowledge and vaccination experience, rather than statically.
With regard to the above viewpoints, the Commissioner for Fundamental Rights proposed that during the state of danger, the legislator should regularly monitor the potential occurrence of any such new and relevant circumstance which makes it necessary to review the provisions of the Government Decree regarding the period of validity of the immunity certificate.
2.3. The protection of the rights of persons who cannot be vaccinated
The basic rules for vaccinations are laid down in the decree of the Ministry of Welfare (NM) No. 18/1998 (VI. 3.) NM (hereinafter referred to as: the NM Decree) on the epidemiological measures necessary for the prevention of infectious diseases and epidemics.
In the NM Decree, there is no direct provision on the vaccinations for the Covid virus and according to the publicly available documents, the Chief Medical Officer of Hungary has not yet published its annual methodological letter on the activities related to vaccinations for 2021 (hereinafter referred to as: the Methodological Letter).
In lack of specific statutory provisions and professional knowledge, guidelines or a Methodological Letter on the vaccination activities, the only thing that can be concluded with regard to the provisions set out in Section 4 (1) of the NM Decree that it is the therapist who decides on the enforceability of the Covid vaccine.
With regard to this group of persons, the Commissioner for Fundamental Rights finds it important to update the professional protocols on a regular basis, primarily in line with the recommendations made by the WHO, as well as to make the information on the relevant medical criteria available in an updated version (both for the health care staff and the affected population) on which type of vaccine can be regarded as the most appropriate choice for each primary disease, and which primary disease excludes the administering of any type of vaccination for Covid-19. This would, on the one hand, provide up-to-date information to both therapists and general practitioners, while on the other hand, in such a way, missing all the direct and ancillary benefits to be gained from the vaccinations due to the lack of information, or perhaps because of unjustified fears, could be avoided.
Furthermore, with regard to that, in the case of this group of persons, getting vaccinated is not a matter of individual decision, we should pay special attention to the protection of the health of these persons and the enforcement of their fundamental rights. This means that in the case of those persons who cannot be vaccinated due to any emerging medical risks, the immunity certificates can only be issued to them with regard to their recovery from the infection. It is an important requirement arising from solidarity and taking responsibility for each other that the measures taken for the reduction of the spread of the infection (especially the tying of some authorisations to the possession of immunity certificates) should not involve the restriction of the fundamental rights of these persons, who belong to a vulnerable group of society.
2.4. Certification of the immunity of those who were vaccinated outside Hungary
According to the effective laws, the vaccinations given in Hungary are registered in the system called National eHealth Infrastructure (hereinafter referred to as: EESZT) and it is on this basis that the immunity certificates are issued by the competent government offices. The EESZT system exclusively displays the data generated by the Hungarian publicly funded and private health care service providers. In line with this, it is those who have received the vaccination in Hungary, or who are certified to have recovered from the coronavirus infection, according to the data registered in the EESZT, who are eligible to receive the immunity certificates according to the current regulations.
Thus, pursuant to the Government Decree, those Hungarian citizens are not eligible to receive the immunity certificates who are certified to have received their vaccinations abroad, and neither are those foreign citizens who are certified to have been vaccinated abroad.
This problem is remedied only partially by the fact that it may become possible to mutually acknowledge the immunity certificates that have been issued in another country. Currently, it is the following six countries that belong to this group: Turkey, Slovenia, Serbia, Montenegro, Croatia and the Kingdom of Bahrein.
Those persons in the case of whom immunity is certified with regard to the fact of having been vaccinated constitute a homogeneous group from the perspective of the rules on the subject in question, based on the practices followed by the Constitutional Court, irrespective of whether they have received the vaccination in Hungary or abroad.
This is why the Commissioner for Fundamental Rights indicated that the possible violation of the equality of rights stipulated in Section (1), Article XV of the Fundamental Law of Hungary arises in connection with the Government Decree, with regard to the fact that the legal regulation does not ensure equal rights to those persons who have been vaccinated abroad as to those who have received the vaccination in Hungary, with the same authorised vaccine, while there are no reasonable grounds for such differing treatment.
This is why the Commissioner for Fundamental Rights proposed that the legislator should review in what way it can be ensured that those persons who are proven to have been vaccinated abroad (especially but not exclusively in the territory of the European Union) should be able to exercise those rights of theirs to which the immunity certificates issued in Hungary entitle those citizens who have been vaccinated with the same type of vaccine for Covid-19.