U-I-793/21, U-I-822/21

 

The Constitutional Court decided on petitions against the Ordinance on Temporary Measures for Preventing and Managing Infections with the COVID-19 Communicable Disease (hereinafter referred to as the Ordinance), which was in force from 8 November 2021 until 21 February 2022, i.e. a period during which the Decision of the Constitutional Court was adopted. The Constitutional Court established that the challenged Article 2, the first indent of the second paragraph of Article 3, the fourth paragraph of Article 5, and Articles 20 and 23 of the Ordinance, which referred to the recovery, vaccination, or testing requirement (hereinafter referred to as the RVT requirement), were not inconsistent with the Constitution.

 

The petitioners alleged that the RVT requirement as determined by the Ordinance limited their daily activities and access to various services because they had not been vaccinated or had an appropriate recovery certificate, and that the RVT requirement actually entailed compulsory vaccination. They also alleged that the Ordinance did not have an appropriate statutory basis and that the alleged interferences with multiple human rights were disproportionate.

 

The Constitutional Court explained that Article 2 of the Ordinance prescribed the obligation to fulfil one of the requirements, namely either recovery, vaccination, or testing. The possibility of vaccination was widely accessible. Therefore, in the assessment of the Constitutional Court, such a regulation did not have the effect of mandatory vaccination.

 

In conformity with the principle of legality (the second paragraph of Article 120 of the Constitution), the Ordinance had to have an appropriate statutory basis and its content had to remain within the framework of the law. Since the RVT requirement did not entail compulsory vaccination, the Constitutional Court took into account that for individuals who have not recovered from the COVID-19 disease [in the previous six months] and have not opted for vaccination, the requirement of testing was legally binding. Such was also the case of the petitioners. On the basis of the first paragraph of Article 32 in conjunction with the first and second paragraphs of Article 31 of the Communicable Diseases Act (hereinafter referred to as the CDA), in the event of a direct threat of the spread of a communicable disease, it is possible to order compulsory medical hygienic examinations of persons who have recovered from a communicable disease and healthy carriers of agents of communicable diseases, passengers in international traffic, and other persons who in their work or conduct can transmit a communicable disease. Focused medical hygienic examinations also include the collection of human biological samples for laboratory testing for the purpose of preventing persons who are a source of infection from endangering the health and life of people through normal daily activities. In the assessment of the Constitutional Court, the determination of the obligation to apply the requirement of testing had a sufficient statutory basis in the CDA, also taking into consideration the intensity itself of such interferences with human rights. Likewise, the reviewed regulation remained within a defined statutory framework. Therefore, it was not inconsistent with the second paragraph of Article 120 of the Constitution.

 

Further on in the Decision, the Constitutional Court decided that testing carried out by professionals working for authorised testing providers, which enables people to obtain proof of the fulfilment of the RVT requirement, entails an interference with physical integrity (Article 35 of the Constitution). Since in accordance with the Ordinance this interference was also a condition for accessing a number of different services and publicly accessible places, the Constitutional Court, taking into account the allegations of the petitioners, held that the challenged regulation also entailed an interference with the right to freedom of movement (the first paragraph of Article 32 of the Constitution), the rights and duties of parents (the first paragraph of Article 54 of the Constitution), the right to health care (the first paragraph of Article 51 of the Constitution), and the right to free economic initiative (the first paragraph of Article 74 of the Constitution).

 

The Constitutional Court assessed whether the above-stated interferences with human rights were constitutionally admissible. It carried out this assessment on the basis of a strict test of proportionality, with regard to which it established that in the given circumstances the interferences passed all three aspects of this test and were hence in conformity with the Constitution. The mentioned interferences with human rights pursued a common constitutionally admissible objective, i.e. to protect the health and life of people, which also reflected a public benefit. In this respect, the Constitutional Court specifically stressed that an individual's right to health must be placed alongside the individual's duty to protect the health of other people from infectious disease, in particular vulnerable groups of individuals. The Constitutional Court first had to assess the admissibility of the interference itself with physical integrity, which occurs upon each test carried out. According to the Constitutional Court, the testing prescribed by the Ordinance was appropriate for achieving the constitutionally admissible objective because it prevented persons who could have been a source of infection from accessing various services or participating in the performance of particular activities, and, consequently, prevented the spread of the communicable COVID-19 disease. Since without testing, or with more lenient measures, it would not be possible in the given circumstances to ensure the achievement of this objective, testing was also an absolutely necessary measure. Although testing may cause discomfort and unpleasant and painful sensations for individuals, the intensity of the interference with physical integrity is not, in the assessment of the Constitutional Court, such that would outweigh its benefits. Therefore, it concluded that the measure was also proportionate in the narrower sense. The Constitutional Court also found that the interference with the freedom of movement, the exercise of parental care, and the right to health care was appropriate, absolutely necessary, and strictly proportionate in order to achieve the constitutionally admissible objective. It also found that the interference with free economic initiative was constitutionally admissible because the weight of the negative consequences of the obligation to be [repeatedly] tested to fulfil the RVT requirement in order to access services or to perform individual tasks in an economic activity did not outweigh the demonstrated benefit of the challenged measure.