Mandatory vaccination: constitutionalists split in reaction to fine

Prime Minister Kyriakos Mitsotakis’ announcement of a climate change action compulsory vaccination for citizens over 60 years old, which will be accompanied by a fine of 100 euros for each month of delay, has caused disagreements between the constitutionalists.

According to some professors of constitutional law, this measure is justified by considerations of protecting the health of the population, since, in addition, this is an escalation of already adopted measures…

However, other lawyers argue that the imposition of an administrative fine is not constitutional, since it violates key articles of the Constitution that define the right of each person to their own body.

However, both sides seem to find it problematic to impose a horizontal fine without considering other and even repetitive criteria that could even affect the standard of living of many thousands of Greeks.

Costas Chrysogonos, professor of constitutional law at the Aristotle University of Thessaloniki and Charalambos Tsiliotis, associate professor of constitutional law at the University of the Peloponnese, analyze their arguments in their interviews on ethnos.gr.

Costas Chrysogonos: “Extremely Problematic from a Constitutional Point of View”

How do you assess the new measure announced by the government from a constitutional point of view?

ANSWER: In my opinion, imposing an administrative fine on unvaccinated citizens over the age of 60 is extremely problematic from a constitutional point of view, mainly because everyone has the right to their body in accordance with Article 2 (1). and 5 (1) of the Constitution (Greece).

In this way, the state can take care of public health as it is obliged by the Constitution if there is a risk of transmission of the infection to the general population. Therefore, it can remove personnel who refuse vaccination and who in their position come into contact with the general public, can introduce measures to restrict the movement of the unvaccinated so that the risk of transmission of the virus does not exist or is reduced, but cannot impose vaccination with the threat of criminal penalties, and, therefore, I would say even with the threat of an administrative fine, because this administrative fine, at least in some cases, is equivalent in its consequences and severity to a criminal punishment.

So are there any questions about equality?

ANSWER: In the case of a pensioner with a low pension, a € 100 fine can deprive him of the resources he needs to survive. In addition, there is a problem of equality, because for a pensioner with a pension of 500 euros, 100 euros is absolutely necessary. For those who are economically active and earn, for example, 5,000 euros a month, 100 euros is a paltry amount.

Would some problems be solved if the amount of the fine was proportional?

ANSWER: If the size of the fine was proportionate, then the problems associated with the principle of equality would be solved, but again the problems associated with the value of a person and the free development of the individual from the provisions of Articles 2 and 5 of the Law, which, I repeat, gives everyone the right dispose of your body as you wish and to the extent that it certainly does not endanger public health. For example: An elderly person in solitary confinement – these are real cases – does not pose an immediate public health risk. Thus, imposing an administrative fine on him for refusing to vaccinate, either for religious reasons or for any other reason, violates precisely his personal freedom and dignity.

Is this an unconstitutional measure?

ANSWER: After all, only the courts have the power to decide whether a measure is unconstitutional. And the courts are delaying the issuance of such decisions. But I think this is extremely problematic from a constitutional point of view. Now, whether this will ultimately be ruled unconstitutional, the courts will say after a while.

Do you think an unvaccinated person over 60 years of age can appeal against this measure?

ANSWER: He will definitely have the opportunity to appeal, but with the chaotic system of judicial review of the constitutionality of laws that we have in Greece, if a measure is presented in the form of a provision of law to be passed by parliament, it cannot be challenged directly. This means that individual fines must be violated by these individuals against specific individuals, which can take months or even years.

Charalambos Tsiliotis: The amount of the fine cannot be the same

Charalambos Tsiliotis, Associate Professor of the Department of Constitutional Law at the University of the Peloponnese, considers the decision on compulsory vaccination of citizens over 60 years old to be constitutional. He believes that even the imposition of a fine on those who do not discipline does not affect the principle of proportionality. However, he emphasizes that the amount of the fine imposed cannot be horizontal (the same for everyone), since in the case of low-income pensioners, it can affect the absolute right to human dignity and self-respect:

“When the imposition of a fine affects the minimum standard of living of a person, we come to the question of human values ​​and dignity, which cannot be limited. It is absolutely. No discounts can be made there. “When a person’s standard of living is threatened by the imposition of a fine, not just once, but every month, a problem arises,” he explains in an interview with ethnos.gr.

How do you assess the use of compulsory vaccination for citizens over 60 years of age?

ANSWER: First of all, I believe that the introduction of compulsory vaccination, as stated in two recent decisions of the Cabinet of Ministers of December 2020 and May 2021, is constitutional with some reservations. The basic premise is to adhere to the principle of proportionality.

The same was said by the European Court of Human Rights in its judgment of April 2021 that since the amount is not excessive, it complies with the principle of proportionality and in fact the amount in the case at hand was 400 euros.

What changes today’s decision in a bouquet of measures?

ANSWER: We are seeing an escalating commitment to vaccination: we are moving from a true indirect mandatory vaccination, which concerns the unvaccinated, to a mandatory rule. In other words, what was legislatively enshrined in the summer for medical workers and people over 60 is expanding and is associated with the imposition of an administrative fine. So we go even further, since so far no sanctions have been envisaged, with the exception of some legal consequences associated with the use of certain sites by the unvaccinated.

Is this amendment compatible with the Constitution or violates some principles?

In my opinion, it is not unconstitutional to impose a fine in the event of someone violating the vaccination obligation and imposing a fine.

On the issue of proportionality, two points are decisive: firstly, an issue that has so far been decided by the legislator and the government, and we see that there is an escalation. Compulsory vaccination was not introduced immediately, but after measures were taken to introduce indirect compulsory vaccination, such as a ban on monitoring the unvaccinated, etc., which were considered insufficient to achieve the intended goal – to convince the vaccinated to do so. And in this sense, the measure is proportionate.

There are reactions to the amount of the fine and to the fact that it will be repeated. Is this a question of proportionality?

ANSWER: Definitely another – the imposition of a small fine and another – the imposition of a fine of 1000 euros. In my opinion, the amount of 100 euros should be combined with the age group. Considering that € 100 is not a lump sum, but it is a fine that will be levied every month and even in age groups, mainly retirees, many of whom can live in retirement, while in many cases a couple lives in retirement. this raises a question of proportionality. I believe that proportionality of the imposition of an amount should be considered, in particular, ad hoc. That is, if 100 euros affects the life or even the survival of a person or a couple of people who are elderly people and have no other income than a pension, the question of proportionality arises.

Is a customized solution applicable and why do you consider it important?

ANSWER: Someone who is still professionally active with a high or middle income or receives a pension of € 1,000 or € 1,500 and receives a pension, and his wife does not suffer to the same extent as a low-income pensioner who receives 500-600 euros. So the question of the proportionality of growth, I think, should be considered more specifically and not to say that 100 euros, by definition, are proportional or disproportionate.

For this reason, there must be an insurance valve that will provide exemptions based on some criteria that will take into account income, the number of people dependent on a family pension, etc. Otherwise, a repeated fine may affect a person’s life, and this is where we come in. to the essence of law, violation of human values: when you deprive a person who has no life, 100 euros, in addition to this, human dignity is violated.

As far as proportionality in the strict sense of the word is concerned, the imposition of the penalty should not be horizontal.

How can this be achieved?

ANSWER: Here the government should – because at the moment we have the announcement of the Prime Minister, and we do not yet have the law or the Joint Decision of the Cabinet of Ministers – to be careful. Given that the imposition of fines will be done through the AADE, (the Greek tax authority) which has the tax data of each of us anyway, it will be possible to monitor very low incomes to see if the imposition of a € 100 fine affects the existing minimum subsistence minimum. minimum person. In this case, the amount of the fine should be less.

But we must look from the other side, at the reason for the imposition of the fine. There is a coercive logic of administrative sanctions. The fine is not imposed in order to punish a pensioner or deprive him of the opportunity to survive. The goal is coercion (not punishment) through the coercive measurement of administrative sanctions in order to fulfill an act of social duty and social solidarity.

Now everything is very serious. This is not only the death of people, serious damage to human health, but also the fact that the Greek national health system (NHS) cannot work, this is a burden not only for the NHS itself, but also for other patients who need it.

Does re-imposition of a fine cause additional constitutional problems?

ANSWER: From the incidents that have come to light, we know that there are people who donated very large sums, well over 100 euros, to obtain false certificates or to pass the required rapid test, and there could be many more incidents. Thus, if a very small fine is set, it is very likely that most of those who insist or persist in not getting vaccinated will pay to avoid getting vaccinated.

Periodic increased monitoring is another deterrent or incentive to get a person to get vaccinated. Here we are talking about the protection of human life, about the protection of public health. So, if we want to see the full picture, then we understand that the situation is now very bad.

Is there a problem with introducing a measure for only one age group?

ANSWER: According to government figures, there are 540,000 people in the population, which is the largest percentage of the unvaccinated. In this sense, there is a different situation between people over 60 and under 60, which justifies the introduction of compulsory vaccination only for the former.

The state has introduced incentive measures for certain groups of the population, such as, for example, giving freedom of choice comes to young people between the ages of 18 and 24, but chooses stricter treatment of citizens over 60. What explains this differentiation?

ANSWER: When the motivation to vaccinate young people was announced, I argued that this measure was unconstitutional, because the problem was not so much young people as older people. I said that if the government wants to “shape” age groups and motivate them to get vaccinated, it must start with older people, who are more vulnerable.

However, at this stage, we must take into account that the epidemiological data are now more unfavorable and there is no place for the carrot. But the whip must be used in a way that does not cause more harm than society can tolerate.

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