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For months we have been discussing whether the Covid vaccine is a right, a duty or an obligation. Given the doubts and resistance – there are millions of Italians still not vaccinated – the idea of making the vaccine mandatory not only for health personnel (as already foreseen), but also for other categories (as in France) is taking shape, if not for everyone.
One of the problems of the vaccination obligation could be that of identifying the right sanction. How should you be punished for failing to comply with any obligation to vaccinate? Moreover, for the law, obligations without sanctions are so rare that they are defined as “imperfect norms”, precisely because it makes no sense to impose an obligation if there is no related sanction.
Today, for those who do not respect the anti Covid rules (masks, distancing, display of the green pass) there is a fine from 400 to 1000 euros, except in the most serious cases in which a crime is configured (eg falsifying a green pass). It is a simply “afflictive” sanction, that is, to punish those who do not respect the rules.
If we think about it, fining those who don’t get vaccinated could be almost useless. After all, it would be enough to pay the fine and you would not be vaccinated anyway. So the hypothetical 1000 euros would become the price for not getting vaccinated. Even creating discrimination on the basis of income (for the wealthiest the 1000 euros would be almost insignificant). A sanction should be conceived of what are called “restorations”, that is, more related to the restoration of the violated public interest. An example to understand: whoever makes serious violations of the highway code in addition to a fine, will also have the suspension or revocation of the driving license.
The same happens for already mandatory vaccinations. Health personnel who do not fulfill the vaccination obligation are suspended from service or assigned to other duties, as they are no longer suitable for working in contact with the sick and frail (art.4 of legislative decree 44 of 2021). Similarly, parents of unvaccinated children, in addition to a fine, are summoned for an information interview on vaccinations and cannot enroll children in kindergarten (Articles 1 and 3 of Legislative Decree 35 of 2017). So if a generalized anti-Covid vaccination obligation is imposed, a sanction will be thought about the community life of the unvaccinated, as vaccination is a civic duty related to the collective interest in health (Article 32 of the Constitution).
I would rule out thinking that not getting vaccinated could be a crime. Beyond any consideration of the proportionality of this sanction, it would be folly to think of millions of criminal trials and millions of citizens in prison for lack of vaccine. Neither does the application of the broadest form of civil incapacity provided for in our legal system, that is the interdiction from public office, which involves the suspension of political rights and the ownership of any public office and remuneration (articles 28 and 29) seem appropriate to me. criminal code). Instead, we could think of a form of sanction more specifically relating to registration with the health service. We know that for citizens and residents there is a universal health service, almost free for all, even if the Constitution ensures free care only “for the poor”.
For foreigners from outside the European Union, however, it is only possible to register for a fee with the NHS or the payment of health services, except for urgent or essential care, in any case free for all (Circular of the Ministry of Health of 24 March 2000, n.5).
An adequate sanction for the unvaccinated could be to prevent their registration with the NHS and therefore to make them pay for any treatment they may undergo. Obviously until they decide to get vaccinated. Such a sanction would also seem to me to be in conformity with the constitutional framework. As we know, our participation in the state community passes through “the fulfillment of the mandatory duties of political, economic and social solidarity” (art. 2 of the Constitution). Therefore, those who do not want to submit to a mandatory health service, such as the anti Covid vaccine could become, could well be excluded from the enjoyment of some public services, such as free registration to the NHS.