The debate over whether the COVID vaccine should be mandatory it has always been present in Spain and in Europe. This week, the president of the European Commission (EC), Ursula Von der Leyen, gave a new impetus by pointing out the convenience of imposing prophylaxis to stop the new wave of infections and given that there is a third of the European population, that is, 150 million people, who are still unvaccinated.
Nevertheless, the Community Executive does not have powers to introduce this measure, a decision that rests with the different member states. Italy was the first western country to force vaccination its citizens to go to work, while France imposed this measure on health personnel and Greece on those over 60 years of age.
Austria went further, by imposing mandatory vaccination on the general population, wake that Germany has followed, which announced yesterday that it will expand restrictions on the unimmunized and will introduce mandatory vaccination, foreseeably from next February. Outside the European arc, the US Government also tried to impose the vaccine on health personnel, although the measure was struck down by a federal court.
In Spain, although 46.2% of its citizens would support the mandatory nature of the COVID vaccine, according to the latest barometer of the Sociological Research Center (CIS), immunization is voluntary and the Spanish legal system does not explicitly incorporate the duty of vaccination, not even for health personnel. Precisely, last July, the Constitutional Court (TC) ruled to maintain the suspension of the provisions of number 5 of article 38.2 b) of Law 8/2008, of July 10, on Health in Galicia, which empowers Autonomous health authorities to impose compulsory vaccination on Galician citizens, in order to control communicable infectious diseases in situations of serious risk to public health.
“At this time it is not possible to justify the obligation of something that is irreversible”
Carlos Ruiz Miguel, Professor of Constitutional Law at the University of Santiago de Compostela (USC), said yesterday that imposing the vaccine violates the right to physical integrity, as stated by the TC.
“The order of July 20, 2021 of the constitutional Court Remember three things: First, that the vaccine is not a preventive measure contemplated in Organic Law 3/1986, of April 14, on Special Measures in Public Health Matters. Second, that it is an irreversible measure, that is, that it is something that cannot be removed later. And thirdly, that it directly affects the right to physical integrity. The car says, verbatim: ‘It is a physical immission in people that directly affects the right guaranteed in Article 15 of the Constitution’ “he explained.
According to this professor, the mandatory nature of the vaccine against COVID could not even apply in the case of essential workers, since it would continue to be a measure “irreversible” and that violates the right to physical integrity of these professionals.
Furthermore, at this time the measure would be even less justifiable. “In European Community law vaccination was authorized to the extent that there were no drugs against the coronavirus. At this time, it has been announced that several drugs are being manufactured. Therefore, if there are drugs, it is not possible to justify the obligation something that is irreversible and that applies to people who do not know if they are going to be sick, or if they may be, despite being vaccinated or if they will have problems getting vaccinated, “he said.
“Legally it could be imposed in the event of an epidemic if there is a collective danger”
According Sunday Bello Janeiro, Professor of Constitutional Law at the University of A Coruña, Spanish Law does not require vaccination to be mandatory, but rather starts from a general principle of voluntariness in public health actions, although he adds that it could be possible with national ‘ad hoc’ legislation.
“It is legally possible to impose vaccination in the event of an epidemic, when there is a collective risk to public health, displacing in such cases the general principle of voluntary vaccination that prevails in our Law. An ‘ad hoc’ legislation of national scope and even a formal recommendation from the European Union would be desirable “, argued the lawyer, for whom the declaration of a state of emergency could be a good framework “to avoid uncertainties.”
But even without a specific law or exceptional situation that makes the vaccine mandatory, the jurist considers that there are judicial precedents in this regard. “The order of the Contentious-Administrative Court number 5 of Granada, of December 24, 2010, by which 35 children were forced, due to the refusal of their parents, to be vaccinated in a case of measles outbreak in the educational center ”, Stated Bello.
The Minister of Health, Carolina Darias, refused to impose mandatory vaccination after Germany’s decision. “I understand it in countries with low vaccination rates, but Spain is the country with the highest vaccination coverage and we are also leaders in booster vaccination ”, he stated.
“In Spain we want to continue like this, and it is worth recognizing that it is due to the responsibility of citizens, who see vaccination against the coronavirus as a right, but also as a duty to others“Said the head of Health.