Although interlocutory, the decision with which the European Court of Human Rights, on 24 August, provisionally rejected the request for 672 firefighters French precautionary measures against the law that requires them to be vaccinated against the Covid-19 it is part of an increasingly consistent case law favorable to the introduction of similar obligations.
This decision, in fact, follows the one – this time definitive and moreover taken by the Great Chamber of the same European court – who, on 8 April, rejected the appeal of some parents against the law of the Czech Republic which, like us, prohibits unvaccinated children from enrolling in kindergarten. In France the Constitutional Council, last August 5, did not reject either the obligation of vaccination for health workers, nor the limitations introduced for those who do not have the so-called green pass, considering them a reasonable point of balance between the protection of freedom of movement and that of collective health.
In our country, i Courts of Belluno (March 23) e Modena (July 23), ruling on the suspensions from service without pay taken against health personnel who refused to be vaccinated against Covid-19 even before the relative obligation was introduced for them (art. 4 law decree n. 44 of the April 1, 2021), had nevertheless considered these measures legitimate since then by virtue of the employer’s obligation to guarantee the health and safety of other employees and of the patients themselves. A similar conclusion was received on Tar of Lecce (4 August), rejecting the precautionary petition of an employee of theASL of Brindisi suspended from service because not vaccinated. Finally the Court of Rome (July 28) considered legitimate the provision by which a tourist village (production sector in which there is no provision for l‘obligation to vaccinate) decided to suspend an employee declared by the competent doctor partially unsuitable to carry out his duties because he could not “be in contact with the residents of the village” from work and salary.
The fact that all those who have appealed to the court, national and otherwise, to challenge the legitimacy (constitutional) vaccination obligations have been regularly rejected their claims is not due to # sanitary-dictatorship-hatch-for-the-Jewish-Masonic-plot-by-hypotherapists-and-pharmaceutical-houses-control-of-freedom – how (without hashtag) would once have written the Fallacy to mock them – but, more simply, for the scientific and legal inconsistency of the opposing arguments, the result of a selfish and individualistic vision that is inevitably recessive in the face of the public interest to counter the spread of the pandemic from Covid-19. As clarified several times by the Constitutional Court, compulsory collective health treatments, such as vaccinations, can be imposed by the state by law (which allows parliamentary, and therefore public, discussion of them), under the following five conditions:
1) the efficacy of vaccinations in preventing and eradicating infectious and diffusive diseases must be previously demonstrated in the scientific context. It is objected: the vaccines against Covid-19 they are in an experimental phase so they cannot be imposed because their long-term effects are not known. I reply: the vaccines have been approved by the competent Italian and foreign authorities (see lastly the final approval of Pfizer by the Food and drug administration Usa) faster than expected thanks to a global and progressive review system; in any case, the fact that today most of the hospitalized and deceased are unvaccinated unequivocally demonstrates their effectiveness. Finally, as for the long-term effects, they should find the courage to explain to the relatives of those who died not vaccinated, who did well not to undergo the vaccination because it was experimental …
2) vaccination must protect not only individual but also collective health. In fact, it is legitimate only if it is directed “not only to improve or preserve the state of health of those subjected to it, but also to preserve the state of health of others, since it is precisely this further purpose, relating to health as an interest of the community, to justify the compression of that self-determination of man which is inherent in everyone’s right to health as a fundamental right “(C. cost. 307/1990). Who, appealing toart. 32 Cost., opposes that it is not possible to introduce compulsory health treatments detrimental to respect for the human person should demonstrate, contrary to all evidence as claimed in the point 1), that we are faced with health treatment for the benefit of the health of the community but at the expense of that of the individual. Perhaps it is worth reminding them that this limit was introduced in the Constituent Assembly, on the proposal of Aldo Moro, to prevent the state from being able, as in the Nazi program Action 14, to impose eugenic health practices “for the improvement of the race” that are radically harmful to human dignity, such as the compulsory suppression or sterilization of the handicapped and those with hereditary diseases or the use of live patients for medical trials. Which reveals the abnormality of the comparison and the lack of sense of measure and proportion of those who appeal to such a limit.
3) the vaccination must not “negatively affect the state of health of the person who is obliged, except for those only consequences that appear normal and, therefore, tolerable” (C. cost., 5/2018, 8.2.1) or are in any case marginal and statistically unavoidable (C. cost., 118/1996, 4). Therefore, vaccinations are not in themselves unconstitutional when to eliminate an infectious disease they unfortunately involve the very rare but inevitable risk of negative health consequences for those who undergo it. In such cases, in fact, the legislator, despite being before one “Tragic choice”, since “suffering and well-being are not shared equally among all, but are wholly to the detriment of one or to the advantage of the other” (C. cost., 118/1996), can privilege the salvation of the many over the sacrifice of the few;
4) by virtue of this solidarity dimension, those who, due to a vaccination suffer a permanent impairment of their own psycho-physical integrity has the right to be not only compensated but also indemnified as well as to receive assistance support measures. This is regardless of whether vaccination is mandatory or promoted by public authorities in view of its widespread diffusion in society. In fact, just as the individual puts his own health at risk for a collective interest, the same community must be willing to share the weight of any remote negative consequences that he may suffer (C. cost. 27/1998). The thesis, amplified by the Meloni, for which the State does not introduce the vaccination obligation in order not to have to pay compensation is therefore not true.
5) finally, the sacrifice of the freedom of personal self-determination must be proportional and reasonable with respect to the collective interest in not spreading the disease. Therefore, with a view to balancing means and ends, the vaccination it can be first only registered, then envisaged as a temporary obligation or obligation for those who want to carry out certain social or economic activities (so-called green pass), finally made mandatory for everyone. This is exactly the prudent path hitherto pursued by all governments, including ours. Compliance with these five conditions ensures that nothing stands in the way of the constitutional plan to complete the road traveled so far, introducing – if the parliamentary majority deems it appropriate – thevaccination obligation for everyone.
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