COMPULSORY VACCINATION AGAINST COVID-19 WITHIN THE SCOPE OF ARTICLE 2 AND ARTICLE 8 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS
INTRODUCTION
Severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) is a new virus that was first detected in late 2019 in Hubei Province, China. The virus spread rapidly, causing an epidemic in China and a subsequent global pandemic. In February 2020, the World Health Organization designated the infectious disease caused by SARS-CoV-2 as COVID-19.[1]
On 26 March 2020, G20 leaders made a joint commitment to the fight against the SARS-CoV-2 pandemic. On 24 April 2020, the World Health Organization and other global actors set the objective of working together to accelerate production and fair access to coronavirus-restrictive tools. The Commission of the European Union responded to this objective by launching the Coronavirus Global Response Initiative with other countries on 2 May 2020.[2]
On 17 June 2020, the European Commission presented an EU vaccine strategy. In December 2020, EU Member States started distributing vaccines against COVID-19.[3] To control the implementation of the vaccination plan more effectively, on 10-11 December 2020[4] and 21 January 2021[5], the Council of Europe invited member states to take a coordinated approach to vaccine certificates. As a result of coordinated actions, the EU Digital COVID Certificate Regulation entered into force on 1 July 2021[6], which introduced more controls on free movement.
The member states of the European Union introduced the COVID certificate in different ways. At the time of the first publication of this article, the spectrum of the COVID certification requirements among EU member states ranged from no requirements to imposing requirements for certain professions (health care, public sector and education) to mandatory vaccination for all citizens eligible for vaccination.[7]
Two applications have been submitted to the Court of Justice of the European Union regarding the European Parliament’s decision to request a valid COVID-19 certificate.[8] In August and September 2021, the European Court of Human Rights (ECtHR) rejected three applications for interim measures against the regulatory framework for compulsory vaccination in France[9] and Greece.[10] In addition, the ECtHR has ruled in a number of cases concerning COVID-19 restrictions, most of which have been rejected because not all remedies at the national level have been exhausted.[11] A large number of applications for COVID-19 epidemiological restrictions have been submitted to the courts of the member states of the European Union and of the Council of Europe. Examination of cases, whether early or late, will ultimately reach the ECtHR.
The application of legal provisions always consists of clarifying both legal and actual circumstances, which takes the form of syllogism – the application of a major premise (legal matter) to a minor premise (actual circumstances) in the form of conclusion. Therefore, in the context of COVID-19 infection, it is the duty of the person implementing the law to improve his or her understanding in the areas of immunology, virology and epidemiology, since without this knowledge, it is impossible to intervene correctly in the relationship between the patient and the physicians by validating medical procedures such as vaccination. The actual circumstances in the area of compulsory vaccination are present in the field of biology, so this article strongly emphasises the clarification of immunological, virological and epidemiological circumstances, which provide clear answers to the actual circumstances of vaccination.
COMPULSORY VACCINATION AND THE RIGHT TO LIFE
Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Convention) protects the right to life. Deprivation of life shall not be regarded as inflicted in contravention of Article 2 when it results from the use of force, which is no more than absolutely necessary: a. in defence of any person from unlawful violence; b. to effect a lawful arrest or to prevent the escape of a person lawfully detained; c. in action lawfully taken for the purpose of quelling a riot or insurrection.[12]
In the case of Oneryildiz v. Turkey, the ECtHR imposed a positive obligation on the state to protect life within the framework of any action, both public and private, where the right to life may be at risk.[13] That positive obligation was clarified by the ECtHR in Stoyanovi v. Bulgaria, holding that the obligation is, first, to establish a legislative and procedural framework for the protection of life and, second, to take preventive measures to protect life.[14] To date, Article 2 of the Convention has been extended by the ECtHR to the positive obligation of public authorities to ensure an adequate health care system[15] but has not included within the scope of Article 2 the vaccination obligation included within the scope of Article 8 on health protection.
The causal link between SARS-CoV-2 and the threat to life would have to be assessed before considering justification for the obligation of the state to ensure that individuals enjoy access to public agency services provided by vaccinated public servants.
Virulence is the ability of a pathogen to cause harm or illness to an organism. Virulence should be distinguished from the contagiousness of the pathogen, which is the ability of the pathogen to infect as many organisms as possible.[16] It is also important to stress that the purpose of living organisms, including the virus, is to multiply more effectively, which increases the more fit (or, for viruses, contagious) an organism is. An objective indicator of virulence is lethality, calculated by dividing the number of deaths caused by infection with the virus by the number of infected persons. It would not be useful to compare SARS-CoV-2 with the 3,8*1013 daily human virome viruses,[17] but SARS-CoV-2 can be helpfully compared to viruses to which public authorities pay particular attention.[18] For example, the human immunodeficiency virus (HIV) has a virulence factor of 80%, Ebola 70%, MERS-CoV 40% and avian influenza A/H7N9–40%.[19] The SARS-CoV-2 virulence factor in the national population is below 3%, which includes persons who died from both COVID-19 and other complications but with the presence of SARS-CoV-2 proteins (even inactive virus particles). Therefore, at least from a statistical epidemiology perspective, SARS-CoV-2 is a more dangerous virus than measles or varicella, for which mandatory vaccination has long been accepted. Nonetheless, it is necessary to ask why the virulence of SARS-CoV-2 is not pronounced in children but is heavily pronounced in seniors, a group with a virulence ratio of 6.87% even without comorbidities that can reach 24.34% for patients with comorbidities.[20]
SARS-CoV-2 infection can be divided into phases: the viral phase and the immune phase. The viral phase begins with the body’s exposure to the virus, continues during the viral incubation period, and lasts as long as the virus is active in the host. The immune phase begins with the body’s interferon, the major histocompatibility complex class I (MHC-I) molecule, and the dendritic cells’ ability to detect the virus in the body and activate the response of both tissues and immune cells against the pathogen. The immune phase successfully ends with the neutralisation and removal of the virus from the body. The immune phase in the case of severe COVID-19 can be divided into hypersensitivity (mast cell activation), hyperinflammation (cytokinetic storm) and hypercoagulation (thrombophilia).[21]
The incubation period for the SARS-CoV-2 wild-type strain lasted up to 14 days with an average symptom appearance on day 5, whereas the incubation period for the delta strain does not usually exceed 10 days, with the average appearance of symptoms on day 4,[22] while changes in the lung-to-bronchi tropism of the tissues needed for omicron infection[23] led to a shorter incubation period of up to three days.[24] Within 1-2 days of infection, the virus begins to multiply and can already be detected by reverse transcription polymerase chain reaction (RT–PCR) testing. At this stage, individuals are asymptomatic but highly infectious. The highest degree of infection in individuals is, on average, 1.8 days before the onset of symptoms. For the next 3-7 days, the virus multiplies in the upper respiratory tract, and the first symptoms may occur in individuals during this period. An important period is days 5-7, during which effector T cells against the virus may develop in the body.[25] If, by the fifth day, the virus has not been cleared by innate immunity, neutralised with natural antibodies and destroyed by natural killer cells and phagocytes, this can still be accomplished on days 5-7 by T cells that have been primed by adaptive immunity even without the help of virus-specific antibodies.[26] The crucial moment for the pathophysiology of COVID-19 is day 8, when a worsening of the disease can begin. By the eighth day, the full virulence of SARS-CoV-2 is manifested, hence why the virus is not particularly virulent. The hazards associated with SARS-CoV-2 arise not from its virulence but from the body’s immune response to it.
Until the eighth day, if the virus has progressed uninterrupted into the airways and other organs and reached the terminal airway alveoli but has not triggered a sufficient number of effector and regulatory T cells for the modulation of viral clearance, then there are no lymphocytes that can manage immune response intensity. In these circumstances, the presence of the pathogen leads to uncontrolled concentrations of inflammatory cytokines (interleukin-1, or IL-1) in the alveoli lung, which causes alveolar mast cells to release histamine and interleukin-6 (IL-6) in addition to other inflammatory cytokines. IL-1 and IL-6 may cause fatal outcomes at high concentrations.[27] Histamine and IL-1 cause cytokine storms at high concentrations, leading to extensive tissue and cell damage.[28] The alveolar and lung tissues affected by inflammatory cytokines no longer provide gas exchange and transport to the bloodstream, so the body suffocates due to lungs overcrowded with the inflammation, that generate platelet-fibrin thrombi and other microclots.[29] Even without reaching the terminal airways, SARS-CoV-2 pathogenesis in other organs and tissues disrupts intracellular signalling (Janus kinase), which leads to the secretion of proinflammatory cytokines and chemokines, resulting in rapid coagulopathy/thrombosis in the form of tissue and organ damage.[30]
If COVID-19 viral pneumonia is resolved, SARS-CoV-2 binds to the angiotensin converting enzyme 2 (ACE2) protein on the surfaces of internal organ cells and prevents this protein from performing its normal function (regulating blood pressure and inflammatory processes), thus increasing the inflammatory stimulants and the risks of myocardial fibrosis and cardiovascular diseases due to dysfunction of the renin angiotensin system.[31] If this dysfunction is also resolved, impaired cell metabolism (conversion of oxygen and nutrients into energy) results in coagulopathy.[32] Finally, the unhindered virus disturbs the natural humoural environment by seeking ways to attach to cell surfaces; as the virus S protein binds with serum ACE2, it forms immune complexes of self and nonself epitopes that provide targets for autoantibody formation[33] and damages cell surfaces (via sialic acid abrasion),[34] thereby transforming “self” cells into “nonself” cells,[35] resulting in an autoimmune reaction and promoting so-called “long COVID”.[36]
The reason why SARS-CoV-2 is able to move smoothly into the terminal airways and infect other internal organs is its ability to fool the immune system through nonstructural and accessory proteins as well as glycans. SARS-CoV-2 suppresses the initial immune response with the nonstructural proteins NSP1, ORF3b, ORF6, ORF7a, ORF9b and ORF8 – the activity of interferons and the ability of MHC-I molecules to capture antigens in the body.[37] With the help of glycan shields, SARS-CoV-2 suppresses the activation and proliferation of dendritic cells, thereby preventing the presentation of the antigen MHC molecules to T cells, which activate B cells first to neutralise the virus with antibodies and then to destroy it with cytotoxic T cells.[38]
The pathophysiological description of SARS-CoV-2 noted above indicates that the virus does not yet have pronounced virulence. The main reason for the severe course and fatal outcome of COVID-19 infection is the overactivity of the delayed immune response in autoimmune forms. Autoimmune reactions, dysfunction of the renin angiotensin system, coagulopathy and intercellular space damage can be managed safely, effectively and accessibly by a variety of preventive and therapeutic agents, which are most effectively used in combination therapy in cases of viral infection.[39]
In the event that the legislator or the person applying the law attempted to become a medical practitioner and, beyond the scope of Article 2 of the Convention, began to assess the need to impose compulsory vaccination with the aim of protecting the life of individuals, then, according to the author’s assessment, there would be a lack of justification from the point of view of immunology and virology to recognise compulsory vaccination against COVID-19 as the least restrictive preventive measure. Rather, ensuring the right to life would require the state to provide adequate treatment for COVID-19, which would include the administration of antihistamines, Janus kinesis inhibitors, corticosteroids, anticoagulants, and blood pressure-modulating, antiviral and anti-inflammatory drugs to patients.[40] Moreover, according to the author, the availability and application of treatment protocols should be implemented in the framework of outpatient health care, since the use of that treatment strategy in the hospitalisation phase in COVID-19 may be too late for the prevention of the disease without lasting side effects.
COMPULSORY VACCINATION AND THE RIGHT TO PRIVACY
Health protection, together with a person’s physical and moral integrity, falls within the scope of the right to private life.[41] The ECtHR normally deals with health care within the scope of Article 8 of the Convention.[42] Since the Convention does not provide for a specific level of health care[43], the member states have a margin of appreciation.[44]
Problems arise in the context of consent to medical care. Free and informed consent is a prerequisite for health care. According to the ECtHR, medical procedures that are contrary to the patient’s wishes constitute a breach of his or her private life, particularly with regard to physical integrity.[45] In the field of health care, even in cases where the rejection of specific medical care may lead to a fatal outcome, the imposition of such a medical procedure on a mentally competent adult patient will undermine his or her physical integrity, contrary to the provisions of Article 8 of the Convention.[46]Moreover, there is no need to impose compulsory medical care itself to intrude upon an individual’s private life – for example, even if a vaccination is never forcefully administered, the negative effects arising as a direct consequence of nonvaccination may limit the ability to exercise one’s fundamental rights and constitute an interference.[47]
One form of compulsory medical treatment can be vaccination. In Solomakhin v. Ukraine, the ECtHR emphasised that mandatory vaccination constitutes a legitimate interference within the scope of Article 8 of the Convention if it is carried out in accordance with the law and with a legitimate aim of protecting health and is necessary in a democratic society. The ECtHR highlighted two criteria to be assessed when seeking to justify forced vaccination against diphtheria during an epidemic: 1) whether public health considerations require control of the spread of the infectious disease; and (2) whether the necessary precautions have been considered regarding the suitability of vaccination for the individual case.[48] These criteria had already been assessed by the European Commission on Human Rights in Boffa and others v. San Marino case,in which the wide discretion of the member states on vaccination was recognised.[49] In its most recent judgement during the COVID-19 pandemic, the ECtHR held: “Thus, where the view is taken that a policy of voluntary vaccination is not sufficient to achieve and maintain herd immunity, or herd immunity is not relevant due to the nature of the disease (e.g.,tetanus), domestic authorities may reasonably introduce a compulsory vaccination policy in order to achieve an appropriate level of protection against serious diseases.”[50]
The case law of the ECtHR shows that the court has begun to assess an increasing number of medical circumstances for the justification provided by the member states in cases of compulsory medical care. Although the court initially assessed only legal criteria and put aside medical criteria, nevertheless, in some cases, i.e., Vavrička, the court had already begun to assess the content of the medical justification. The scope of the permissible sources of law allowed the court to further invite an expert to provide an opinion on medical issues in the Vavrička case. The failure to invite an expert was the reason for the criticism expressed in the separate opinion of Judge Krzysztof Mariusz Wojtyczek. While the opinion of other human rights experts,[51] without considering medical issues, is that the court will also support compulsory vaccination in the case of COVID-19,[52] a detailed assessment of medical considerations may prove to be a decisive criterion in the court’s assessment of the COVID-19 compulsory vaccination framework.[53]
Once again, beyond the usual limits of legal sources of law, the response to the effectiveness of currently available vaccines against COVID-19 can be sought in the fields of immunology and molecular epidemiology. The ECtHR may rely on the opinions of the relevant national health authorities based on statistical epidemiology observations, which may reveal compelling correlations. However, it is worth assessing in more detail whether it is truly possible to achieve herd immunity with the vaccines currently available against COVID-19 upon adequate vaccination coverage because such assessment would reveal causation instead of correlation, which may reduce the belief effect on syllogistic reasoning that only increases when a person gains more experience.[54]
The concept of herd immunity arose almost a hundred years ago. However, its use in epidemiology has been noticeable only since the 1970s. Herd immunity in human society is understood to mean the number of immunised individuals in the population sufficient to reduce the risk of infection to others due to reduced or halted transmission of the pathogen. Vaccination is one method of immunisation.
To achieve herd immunity, the following formula is used to calculate the required vaccination coverage: , where the vaccination coverage ratio is present; is the basic reproduction number, which describes the average number of persons infected by an already-infected person; and E is the effectiveness of vaccines in stopping the transmission. It follows that when E < it is not possible to stop the spread of the infection even through universal vaccination.[55]
According to scientific estimates, the basic reproduction number of SARS-CoV-2 was initially 2.79. This number rose to 5.08 for the delta strain,[56] although omicron will not exceed this ratio, as the main advantage of the omicron strain derives from its faster replication rather than higher infectiousness.[57] The author concludes from these rates that the effectiveness of vaccines against the transfer of delta or omicron strains must be at least 80%.
Is the ratio of vaccine effectiveness against viral transmission a publicly available indicator? Leading health care actors (Centers for Disease and Control and Prevention, European Medicines Agency, etc.) and media constantly publish information on vaccine effectiveness. However, these are data on the relative or absolute risk reduction of the disease. Publicly available data do not allow easy identification of the transmission prevention rate, and scientific studies indicating this rate tend to calculate this measure of effectiveness only in cases of symptomatic illness, excluding asymptomatic cases.[58]
It was previously indicated that SARS-CoV-2 initially stays in the upper airways and then, absent timely neutralisation and destruction, moves deeper into the respiratory tract and other organs. Therefore, the initial protection of the body against SARS-CoV-2 is provided by the immunity of the upper respiratory tract mucosa, which is also the transmission platform for SARS-CoV-2. The mucosa is the largest component of the immune system, both in terms of volume and in terms of immune cells. It will not be possible to overcome SARS-CoV-2 by ignoring mucosal immunity and focusing only on serum-circulating lymphocytes.[59]
The number and type of mucosal immunity-forming lymphocytes are the most diverse and exceed the number of all other lymphocytes in the body. Secretion immunoglobulin A (SIgA) is present in three molecular forms: secretion, monomer and polymer. In addition, it occurs in a variety of glycoforms. While circulating IgA is predominantly in monomer form, the polymer IgA present in secretions is minimally released from circulation to the secretions of the upper respiratory tract.[60] Although intramuscular vaccination induces antibodies[61] from circulation to the mucosa of the upper respiratory tract in an amount equivalent to that of natural infection, the antibodies[62] from the circulating secretion are monomers, with a 3-fold shorter half-life[63] and at least a 15-fold lower degree of neutralisation.[64] Currently available vaccines are given intramuscularly and cause an immune response that produces serum lymphocytes against COVID-19. Therefore, both preclinical and clinical studies have shown that the available vaccines do not affect the concentration of the virus in the nasal cavity.[65]
Recent studies have shown that vaccination reduces the risk of symptomatic COVID-19 disease and accelerates the clearance of viruses from the body. However, studies have also indicated that the effectiveness of vaccines against the transmission of infection is minimal.[66] Therefore, the rate of transmission of infection for vaccinated individuals is equivalent to that of nonvaccinated individuals.[67] The highest viral concentration in the upper respiratory tract is present shortly before the onset of symptoms for both vaccinated and nonvaccinated individuals[68]. This fact makes those individuals who are present in the community but not using mucosal hygiene agents (e.g., nasal sprays containing hypertonic saline, polysaccharides, povidone iodine, nitric oxide) more contagious viral vectors irrespective of vaccination status.
From this fact, it can be concluded that it will not be possible to stop the spread of SARS-CoV-2 with 100% vaccination coverage nor even with multiple booster vaccinations with the currently registered vaccines. General vaccination will, however, contribute to the ability of the virus to circumvent vaccine-induced immune response or to better infect individuals in society.[69] Such a response has already been demonstrated by the omicron strain, and the further evolution of the virus will continue to be facilitated by the use of nonsterilising vaccines against highly mutable viruses in the general population during a pandemic.[70]
In view of the above, it must be concluded that the existing intramuscular vaccines against COVID-19 cannot ensure herd immunity during the pandemic, as the immunity induced by those vaccines does not stop viral transmission. This consideration is important since the European Union has made herd immunity an objective of the vaccination policy of the member states.[71]
The ECtHR has recognised that herd immunity is a public good and a legitimate objective justifying compulsory vaccination.[72] Other countries have also intended to achieve this goal through compulsory vaccination.[73] It must therefore be concluded that herd immunity may be a legitimate objective specifically regulated by law if it is intended to be achieved by vaccination that stops the transmission of the virus.
It has already been pointed out that currently available vaccines do not stop the transmission of the virus from the upper respiratory tract but that mucosal immunity can be strengthened by other safe, generally available and effective antiviral agents against SARS-CoV-2 that are more effective than currently available vaccines. Nasal sprays have been widely described, including hypertonic saline,[74] polysaccharides[75], povidon iodine,[76] and nitric oxide.[77] Many other therapeutics have antiviral and anti-inflammatory effects, the early use of which in an outpatient setting can prevent the hospitalisation of individuals with COVID-19[78]. The concentration of inflammatory cytokines in the lung alveoli caused by SARS-CoV-2 is successfully prevented by antihistamines and corticosteroids.[79] The dysfunction of the renin angiotensin system, by binding SARS-CoV-2 to the ACE2 protein, is addressed by anticoagulants and blood pressure-mediating medicines, the early use of which prevents the risk of severe thrombosis or cardiovascular disease due to severe COVID-19.[80]
BOUNDARIES OF SOURCES OF LAW
From the above description, it can be concluded that compulsory vaccination against COVID-19 with the currently registered vaccines is not a means of achieving the legitimate objectives thus far recognised by the ECtHR, which are necessary in a democratic society. Such is the author’s conclusion drawn from various sources in the areas of immunology, virology and molecular epidemiology. For the findings in these fields to be used as ancillary sources of law, there must be an appropriate rule of recognition enabling them to be used by the person enacting or applying the law. The acknowledgements of the national medical agencies and the European Medicines Agency that vaccines are sufficiently effective and safe may suffice for the ECtHR and other public authorities to decide whether their use should be compulsory but are not sufficient for physicians to prescribe treatment without considering the patient’s individual aspects and the risks and benefits of medical intervention. The court’s self-limitation of assessment of credible medical arguments may indicate a lack of democracy. However, democracy is not the best form of government, and it is becoming increasingly evident worldwide that the implementation of democratic values are ends in themselves, whereas individuals become the means to achieve these aims and enjoy guaranteed rights in such a society, as China’s democracy demonstrates.[81]
According to the case law of the ECtHR, it is for the court to consider the relevant rules and principles of international law and to interpret the Convention as far as possible in accordance with other rules of international law, of which it forms part.[82] The following rules and principles can be found in the various sources of law, three of which are defined in the first paragraph of Article 38 of the Charter of the United Nations International Court of Justice: contracts, customary law and general principles of law.[83] In addition, the International Court of Justice mentions two subsidiary sources of international law: case law and scientific publications.[84]
These primary and auxiliary sources tend to be divided into internal and external sources. Internal sources have emerged within the framework of the Council of Europe’s human rights protection system and include the case law of the ECtHR, the laws and practices of the member states, and legal documents created by the Council of Europe. External sources are rules based on laws and customary law, as well as laws and practices in countries outside the Council of Europe. The fact that a source is characterised as an external source does not diminish its value. Rather, the reference to external sources makes the ECtHR’s case law more qualitative and contributes to wider impact and recognition.[85] Some ECtHR judgements have given priority to the case law of Canada and South Africa over that of a member state of the Council of Europe[86] in cases where there is no unity between the member states and a wide margin of appreciation exists between them.[87] Assessing the approaches taken in other member states to contain the COVID-19 pandemic has not yet identified common practice. However, this diversity of practices has also evolved, bearing in mind the rights enshrined in the Convention. A departure from the practices of the member states of the Council of Europe may therefore prove extremely problematic in the context of the COVID-19 pandemic to ensure a harmonised application of the Convention by member states. The internal sources of the Convention offer a middle way between ‘doing too much’ and ‘do nothing’—between unjustified legal activism and excessive legal self-limitation. Internal sources allow the ECtHR to be creative and innovative while at the same time seriously respecting its subsidiary role,[88] which makes it possible to apply the Convention harmoniously to the regulation of compulsory vaccination.
In the author’s view, the problem of legal sources in the issue of vaccination arises because the health care professional is a physician who is guided by medical considerations in the treatment of the patient, including in the decision for or against vaccination. The physician has wide discretion in the choice of preventive and therapeutic strategies, as the legislation does not interfere with the treatment process. Sanctioning one medication against infection through legislation eliminates the role of the physician in the treatment process. Better medical care can be ensured if the principle of subsidiarity is respected: decisions about the patient’s health care are made on the basis of the patient’s individual considerations in the context of the patient–physician relationship rather than in the public authority-patient setting.
CONCLUSION
Law enforcement is the application of the rule of law to corresponding actual circumstances. The only aim, recognised by the ECtHR, of compulsory vaccination against airborne viruses is the achievement of herd immunity. To date, there hasbeen no other legitimate aim (collective benefit) within the framework of the Council of Europe’s human rights protection system that sets forth compulsory vaccination as a necessary means against airborne viruses in the democratic society.
Vaccines have two characteristics: they prevent disease and the transmission of the virus. To achieve herd immunity to airborne viruses, vaccines must prevent the transmission of the pathogen. As indicated in this article, the vaccines currently registered against COVID-19 do not prevent viral transmission. If, exceeding the boundaries of the previous case law of the ECtHR, the legislator or the person applying the law, in addition to transmission prevention, considers the prevention of the disease to be a legitimate aim attained by means of compulsory vaccination, then it must be considered that there are many other preventive and therapeutic strategies, as indicated in this article, that prevent and treat COVID-19 effectively, safely and accessibly.
A detailed assessment of these legitimate aims would require that the person applying the law consider circumstances beyond the pure sources of law, as it is impossible in a democratic society to sanction medical procedures without assessment of medical arguments. Ignoring nonlegal fields of knowledge will prevent compulsory vaccination against COVID-19 from being found to be noncompliant with the European Convention for the Protection of Human Rights and Fundamental Freedoms and may legitimise unjustified intervention in patient–physician relations that denies enjoyment of informed consent to vaccination against COVID-19.
Conflicts of interest
The author declares no conflicts of interest.
[1] World Health Organization. Director-General’s remarks at the media briefing on 2019-nCoV on 11 February 2020. http://www.who.int/dg/speeches/detail/who-director-general-s-remarks-at-the-media-briefing-on-2019-ncov-on-11-february-2020
[2] European Union, Coronavirus Global Response. https://global-response.europa.eu/about_en
[3] Coronavirus: Commission Unveils EU vaccines strategy. https://ec.europa.eu/commission/presscorner/detail/en/ip_20_1103
[4] https://www.consilium.europa.eu/media/47296/1011-12-20-euco-conclusions-en.pdf
[5] https://www.consilium.europa.eu/en/press/press-releases/2021/01/21/oral-conclusions-by-president- charles-michel-following-the-video-conference-of-the-members-of-the-european-council-on-21- january-2021/pdf
[6] https://eur-lex.europa.eu/eli/reg/2021/953/oj?locale=lv
[7] Legal issues surrounding compulsory COVID-19 vaccination. https://www.europarl.europa.eu/RegData/etudes/BRIE/2022/729309/EPRS_BRI(2022)729309_EN.pdf
[8] Cases T-710/21 and T-711/21
[9] Requests for interim measures from 672 members of the French fire service concerning the Law on the management of the public health crisis fall outside the scope of Rule 39 of the Rules of Court. Available at: https://hudoc.echr.coe.int/eng-press?i=003-7100478-9611768
[10] Refusal of requests for interim measures in respect of the Greek law on compulsory vaccination of health-sector staff against COVID-19. Available at: https://hudoc.echr.coe.int/eng-press?i=003-7113391-9633858)
[11] COVID-19 health crisis. https://www.echr.coe.int/Documents/FS_Covid_ENG.pdf
[12] Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms https://www.echr.coe.int/documents/convention_eng.pdf
[13] Judgment of the European Court of Human Rights of 30 November 2004 (Application No 48939/99), §71. Available at: https://hudoc.echr.coe.int/fre?i=001-67614
[14] Judgment of the European Court of Human Rights of 9 November 2010 (Application No 42980/04), §59. Available at: https://hudoc.echr.coe.int/eng?i=001-101678
[15] Judgment of the European Court of Human Rights of 19 December 2017 (Application No 56080/13), §179. Available at:https://hudoc.echr.coe.int/eng?i=001-179556
[16] Barreto ML, Teixeira MG, Carmo EH. Infectious diseases epidemiology. J Epidemiol Community Health. 2006;60(3):192-195. doi:10.1136/jech.2003.011593.
[17] John L Mokili, Forest Rohwer, Bas E Dutilh, Metagenomics and future perspectives in virus discovery, Current Opinion in Virology, Volume 2, Issue 1, 2012, p. 63, ISSN 1879-6257, https://doi.org/10.1016/j.coviro.2011.12.004.
[18] Diseases and special health issues under EU surveillance. Available: https://www.ecdc.europa.eu/en/all-topics-z/surveillance-and-disease-data/diseases-and-special-health-issues-under-eu-surveillance; Cabinet Regulation No 7 of 5 January 1999 on Procedures for Registration of Infectious Diseases. Available at: https://likumi.lv/ta/id/20667
[19] Chen J. Pathogenicity and transmissibility of 2019-nCoV-A quick overview and comparison with other emerging viruses. Microbes Infect. 2020;22(2):69-71. doi:10.1016/j.micinf.2020.01.004.
[20] Grint DJ, Wing K, Williamson E, et al. Case fatality risk of the SARS-CoV-2 variant of concern B.1.1.7 in England, 16 November to 5 February. Euro Surveill. 2021;26(11):2100256. doi:10.2807/1560-7917.ES.2021.26.11.2100256.
[21] Sanchez-Gonzalez, Marcos A et al. “A pathophysiological Perspective on COVID-19's Lethal Complication: From Viremia to hypersensitivity Pneumonitis-like Immune Dysregulation." Infection & chemotherapy vol. 52,3 (2020): 335-344. doi:10.3947/ic.2020.52.3.335.
[22] Grant, Rebecca et.al. Impact of SARS-CoV-2 Delta variants on Incubation, transmission settings and vaccine effectiveness: Results from a nationwide case-control study in France. The Lancet Regional Health — Europe. DOI: https://doi.org/10.1016/j.lanepe.2021.100278
[23] HKUMed finds Omicron SARS-CoV-2 can Infect faster and better than delta in human bronchus but with less severe infection in lung. https://www.med.hku.hk/en/news/press/20211215-omicron-sars-cov-2-infection
[24] Backer JA, Eggink D, Andeweg SP, et al. Short serial intervals in SARS-CoV-2 cases with Omicron BA.1 variants compared to Delta variants in the Netherlands, 13-26 December 2021. Available at: https://www.medrxiv.org/content/10.1101/2022.01.18.22269217v2.full.pdf
[25] Bertoletti A, Le Bert N, Qui M, Tan AT. SARS-CoV-2-specific T cells in infection and vaccination. Cell Mol Immunol. 2021;18(10):2307-2312. doi:10.1038/s41423-021-00743-3.
[26] De Candia P, Prattichizzo F, Garavelli S, Matarese G. T Cells: Warriors of SARS-CoV-2 Infection. Trend Immunol. 2021;42(1):18-30. doi:10.1016/j.it.2020.11.002.
[27]Conti P, Caraffa A, Tetè G, Gallenga CE, Ross R, Kritas SK, Frydas I, Younes A, Di Emidio P, Ronconi G. Mast cells activated by SARS-CoV-2 release histamine which increases IL-1 levels causing cytokine storm and inflammatory reaction in COVID-19. J Biol Regul homeost Agents. 2020 Sep-Oct,;34(5):1629-1632. doi: 10.23812/20-2EDIT. PMID: 32945158.
[28]Conti P, Caraffa A, Gallenga CE, Ross R, Kritas SK, Frydas I, Younes A, Ronconi G. Coronavirus-19 (SARS-CoV-2) Induces acute severe severe lung inflammation via IL-1 causing cytokine storm in COVID-19: a promising inhibitory strategy. J Biol Regul homeost Agents. 2020 Nov-Dec;34(6):1971-1975. doi: 10.23812/20-1-E. PMID: 33016027.
[29]Hentsch L, Cocetta S, Allali G, Santana I, Eason R, Adam E, Janssen J, -P: Breathlessness and COVID-19: A Call for Research. Respiration 2021;100:1016-1026. doi: 10.1159/000517400.
[30] Matsuyama T, Kubli SP, Yoshinaga SK, Pfeffer K, Mak TW. An aberrant STAT pathway is central to COVID-19. Cell Death Differ. 2020;27(12):3209-3225. doi:10.1038/s41418-020-00633-7
[31] Bian J, Li Z. Angiotensin-converting enzyme 2 (ACE2): SARS-CoV-2 receptor and RAS modulator. ACTA Pharm Sin B. 2021 Jan;11(1):1-12. doi: 10.1016/j.apsb.2020.10.006. Epub 2020 Oct 13. PMID: 33072500; PMCID: PMC7553008.
[32] Matsuyama T, yoshinaga SK, Shibue K, Mak TW. Comorbidity-associated glutamine deficiency is a predisposition to severe COVID-19. Cell Death differ. 2021;28(12):3199-3213. doi:10.1038/s41418-021-00892-y.
[33] McMillan P, Dexhiemer T, Neubig RR, Uhal BD. COVID-19-A Theory of autoimmunity Against ACE-2 Explained. Front Immunol. 2021;12:582166. Published 2021 Mar 23. doi:10.3389/fimmu.2021.582166
[34] Wang, E.Y., Mao, T., Klein, J. et al. Diverse functional autoantibodies in patients with COVID-19. Nature 595, 283-288 (2021). https://doi.org/10.1038/s41586-021-03631-y
[35] Wang, Huiru & Chen, Qiuchi & Hu, Yue & Wu, Xiancong & Dai, Lin & Zhang, Yuekai & Li, Fang & Lu, Jinfeng & Chen, Yuxing & Liu, Xiaoling. (2021). Pathogenic antibodies induced by spike proteins of COVID-19 and SARS-CoV viruses. 10.21203/rs.3.rs-612103/v2.
[36] Khamsi R. Rogue antibodies could be driving severe COVID-19. Nature. 2021 Feb;590(7844):29-31. doi: 10.1038/d41586-021-00149-1. PMID: 33469204.
[37]Khateeb, J., Li, Y. & Zhang, H. Emerging SARS-CoV-2 variant of concern and intervention potential approaches. Crit Care 25, 244 (2021). https://doi.org/10.1186/s13054-021-03662-x; Redondo N, Zaldívar-López S, Garrido JJ and Montoya M (2021) SARS-CoV-2 Accessory Proteins in Viral Pathogenesis: Knowns and unknowns. Front. Immunol. 12:708264. doi: 10.3389/fimmu.2021.708264
[38] Runhong Zhou, Kelvin Kai-Wang To, Yik-Chun Wong, Li Liu, Biao Zhou, Xin Li, Haode Huang, Yufei Mo, Tsz-Yat Luk, Thomas Tsz-Kan Lau, Pauline Yeung, Wai-Ming Chan, Alan Ka-Lun Wu, Kwok-Cheung Lung, Owen Tak-Yin Tsang, Wai-Shing Leung, Ivan Fan-Ngai Hung, Kwok-Yung Yuen, Zhiwei Chen; Acute SARS-CoV-2 Infection impairs dendritic Cell and T Cell Responses, Immunity, Volume 53, Issue 4, 2020, Pages 864-877.e5, ISSN 1074-7613, https://doi.org/10.1016/j.immuni.2020.07.026.
[39] Shyr ZA, Cheng YS, Lo DC, Zheng W. Drug combination therapy for emerging viral diseases. Drug Discov Today. 2021;26(10):2367-2376. doi:10.1016/j.drudis.2021.05.008.
[40] Therapeutics and COVID-19: living guideline.
https://app.magicapp.org/#/guideline/nBkO1E
[41] ECtHR, Nada v. Switzerland, 12 September 2012 (application no. 10593/08), § 151. Available at: https://hudoc.echr.coe.int/eng?i=001-113118
[42] ECtHR, Tysiąc v. Poland, 20 March2 007 (application no. 5410/03), § 66. Available at: https://hudoc.echr.coe.int/eng?i=001-79812
[43] Ibid, Section 107
[44] ECtHR, Von Hannover v. Germany (No. 2), 7 February 2012, § 104. Available at: https://hudoc.echr.coe.int/eng?i=001-109029
[45] ECtHR, X.V. Finland, 19November 2012 (application no. 34806/04), § 212. Available at: https://hudoc.echr.coe.int/eng?i=001-111938
[46] ECtHR, Jehovah’s Witnesses of Moscowv. Russia, 10 June 2010(application no. 302/02), § 135. Available at: https://hudoc.echr.coe.int/eng?i=001-99221
[47] Krasser A. Compulsory Vaccination in a Fundamental Rights Perspective: Lessons from the ECtHR. ICL J. 2021;15:207-33. Available at: https://doi.org/10.1515/icl-2021-0010; ECtHR, Vavřička and Others v. the Czech Republic, 8 April 2021 (application Nr.47621/13), § 263 Available at: https://hudoc.echr.coe.int/eng?i=001-209039
[48] ECtHR, Solomakhin v. Ukraine, 24 September 2012 (application no. 24429/03), § 36. Available at: https://hudoc.echr.coe.int/eng?i=001-109565
[49] Decision of 15 January 1998 in Carlo BOFFA and 13 others v. SAN MARINO (application No 26536/95). Available at: https://hudoc.echr.coe.int/app/conversion/pdf?library=ECHR&id=001-88051&filename=BOFFA%20AND%2013%20OTHERS%20v.%20SAN%20MARINO.pdf
[50] ECtHR, Vavřička and Others v. the Czech Republic, 8 April 2021 (application Nr.47621/13), § 288 Available at: https://hudoc.echr.coe.int/eng?i=001-209039
[51] Spyridoula Katsoni What Does the Vavřička Judgement Tell Us About the Compatibility of Compulsory COVID-19 Vaccinations with the ECHR?Völkerrechtsblog, 21.04.2021, doi: 10.17176/20210421-100920-0.
[52] Vinceti SR. COVID-19 Compulsory Vaccination and the European Court of Human Rights. ACTA Biomed. 2021 Oct 19;92(S6):e2021472. Available at: https://doi.org/10.23750/abm.v92iS6.12333
[53] Krasser A. Compulsory Vaccination in a Fundamental Rights Perspective: Lessons from the ECtHR. ICL J. 2021;15:207-33. Available at: https://doi.org/10.1515/icl-2021-0010
[54] Ding D, Chen Y, Lai J, Chen X, Han M, Zhang X. Belief Bias Effect in Older Adults: Roles of Working Memory and Need for Cognition. Front Psychol. 2020;10:2940. Published 2020 Jan 23. doi:10.3389/fpsyg.2019.02940
[55] Paul Fine, Ken Eames, David L. Heymann, “Herd Immunity”: A Rough Guide, Clinical Infectious Diseases, Volume 52, Issue 7, 1 April 2011, Pages 911-916, https://doi.org/10.1093/cid/cir007
[56] Liu Y, Rocklöv J. The reproductive number of the Delta variants of SARS-CoV-2 is far higher compared to the Ancestral SARS-CoV-2 virus. J Travel Med. 2021;28(7):taab124. doi:10.1093/jtm/taab124
[57] Enhancing response to Omicron SARS-CoV-2 variant. Available at: https://www.who.int/publications/m/item/enhancing-readiness-for-omicron-(b.1.1.529)-technical-brief-and-priority-actions-for-member-states
[58] De Gier B, Andeweg S, Backer JA, et al. Vaccine effectiveness against SARS-CoV-2 transmission to household contacts during dominance of Delta variant (B.1.617.2), the Netherlands, August to September 2021. Euro Surveill. 2021;26(44):2100977. doi:10.2807/1560-7917.ES.2021.26.44.2100977.
[59] Russell MW, Moldovan Z, Ogra PL, Mestecky J. mucosal Immunity in COVID-19: A Neglected but Critical Aspect of SARS-CoV-2 Infection. Front Immunol. 2020;11:611337. Published 2020 Nov 30. https://doi.org/10.3389/fimmu.2020.611337
[60] Ibid
[61] Chan RWY, Liu S, Cheung JY, et al. The mucosal and serological Immune Responses to the Novel Coronavirus (SARS-CoV-2) Vaccines. Front Immunol. 2021;12:744887. Published 2021 Oct 12. doi:10.3389/fimmu.2021.744887.
[62]Guerrieri M, Francavilla B, Fiorelli D, et al. Nasal and Salivary mucosal humoral Immune Response Elicited by mRNA BNT162b2 COVID-19 Vaccine Compared to SARS-CoV-2 Natural Infection. Vaccines (Basel). 2021;9(12):1499. Published 2021 Dec 18. doi:10.3390/vaccines9121499.
[63] Wisnewski AV, Campillo Luna J, Redlich CA. Human IgG and IgA responses to COVID-19 mRNA vaccines. PLoS One. 2021;16(6):e0249499. Published 2021 Jun 16. doi:10.1371/journal.pone.0249499.
[64] Wang Z, Lorenzi JCC, Muecksch F, et al. Enhanced SARS-CoV-2 neutralisation by dimeric IgA. SCI Transl Med. 2021;13(577):eabf1555. doi:10.1126/scitranslmed.abf1555.
[65] Bleier BS, Ramanathan M Jr, Lane AP. COVID-19 Vaccines May Not Prevent Nasal SARS-CoV-2 Infection and Asymptomatic Transmission. Otolaryngol Head Neck Surg. 2021 Feb;164(2):305-307. doi: 10.1177/0194599820982633. Epub 2020 Dec 15. PMID: 33320052.
[66] Wilder-Smith A. What is the vaccine effect on reducing transmission in the context of the SARS-CoV-2 delta variant? Lancet Infect Dis. 2021 Oct 29:S1473-3099(21)00690-3. doi: 10.1016/S1473-3099(21)00690-3. Epub ahead of print. PMID: 34756187; PMCID: PMC8554481.
[67] Singanayagam A, Hakki S, Dunning J, et al. Community transmission and viral load Kinetics of the SARS-CoV-2 delta (B.1.617.2) variants in vaccinated and unvaccinated individuals in the UK: a prospective, longitudinal, Cohort study. Lancet Infect Dis. 2021;S1473-3099(21)00648-4. doi:10.1016/S1473-3099(21)00648-4.
[68] Wilder-Smith A. What is the vaccine effect on reducing transmission in the context of the SARS-CoV-2 delta variant? Lancet Infect Dis. 2021 Oct 29:S1473-3099(21)00690-3. doi: 10.1016/S1473-3099(21)00690-3. Epub ahead of print. PMID: 34756187; PMCID: PMC8554481.
[69] Van Egeren D, Novokhodko A, Stoddard M, Tran U, Zetter B, et al. (2021) Risk of rapid evolutionary escape from biomedical interventions targeting SARS-CoV-2 spike protein. PLOS ONE 16(4): e0250780. https://doi.org/10.1371/journal.pone.0250780.
[70] Wang R, Chen J, Wei GW. Mechanisms of SARS-CoV-2 Evolution Revealing Vaccine-Resistant mutations in Europe and America. J Phys Chem Lett. 2021 Dec 7:11850-11857. doi: 10.1021/acs.jpclett.1c03380. Epub ahead of print. PMID: 34873910.
[71] Council conclusions on vaccinations as an effective tool in public health. Available at: https://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/lsa/145973.pdf
[72] ECtHR, Vavřička and Others v. theCzech Republic, 8 April 2021(application no. 47621/13), para. 288 Available at: https://hudoc.echr.coe.int/eng?i=001-209039
[73] Section 18(3) of the Epidemiological Safety Act. Available at: https://likumi.lv/ta/id/52951-epidemiologiskas-drosibas-likums
[74]Machado RRG, Glaser T, Araujo DB, Petiz LL, Oliveira DBL, Durigon GS, Leal AL, Pinho JRR, Ferreira LCS, Ulrich H, Durigon EL, Guzzo CR. Inhibition of Severe Acute Respiratory Syndrome Coronavirus 2 Replication by Hypertonic Saline Solution in Lung and Kidney Epithelial Cells. Eye Pharmacol Transl Sci. 2021 Sep 3;4(5):1514-1527. doi: 10.1021/acsptsci.1c00080. PMID: 34651104; PMCID: PMC8442612; Huijghebaert S, Hoste L, Vanham G. Essentials in saline Pharmacology for Nasal or respiratory hygiene in times of COVID-19 [published correction appears in Eur J Clin Pharmacol. 2021 Apr 24;:]. EUR J Clin Pharmacol. 2021;77(9):1275-1293. doi:10.1007/s00228-021-03102-3.
[75] Figueroa JM, Lombardo ME, Dogliotti A, et al. Efficacy of a Nasal Spray Containing Iota-Carrageenan in the Postexposure Prophylaxis of COVID-19 in Hospital Personnel Dedicated to Patients Care with COVID-19 Disease. INT J Gen Med. 2021;14:6277-6286. Published 2021 Oct 1. doi:10.2147/IJGM.S328486. Moakes RGG, Davies SP, Stamataki Z, Grover LM. Formulation of a Composite Nasal Spray Enabling Enhanced Surface Coverage and Prophylaxis of SARS-COV-2. ADV Mater. 2021;33(26):e2008304 doi:10.1002/adma.202008304
[76] ChopraA, Sivaraman K, Radhakrishnan R, Balakrishnan D, Narayana A. Can povidone iodine gargle/mouthrinse inactivate SARS-CoV-2 and decrease the risk of nosocomial and community transmission during the COVID-19 pandemic? An evidence-based update. JPN Dent Sci Rev. 2021 Nov;57:39-45. doi: 10.1016/j.jdsr.2021.03.001 Epub 2021 Mar 15. PMID: 33747261; PMCID: PMC7959263.
[77] Winchester, Stephen et al. “Clinical efficacy of Nitric oxide Nasal spray (NONS) for the treatment of mild COVID-19 infection.” The Journal of infection vol. 83,2 (2021): 237-279 doi:10.1016/j.jinf.2021.05.009
[78] Therapeutics and COVID-19: living guideline.
https://app.magicapp.org/#/guideline/nBkO1E
[79] Morán Blanco JI, Alvarenga Bonilla JA, Homma S, Suzuki K, Fremont-Smith P, Villar Gómez de Las Heras K. Antihistamines and azithromycin as a treatment for COVID-19 on primary health care — A retrospective observational study in elderly patients. Pulm Pharmacol Ther. 2021;67:101989. doi:10.1016/j.pupt.2021.101989
[80] Hozayen SM, Zychowski D, Benson S, et al. Outpatient and inpatient anticoagulation therapy and the risk for hospital admission and death among COVID-19 patients. EClinicalMedicine. 2021;41:101139. doi:10.1016/j.eclinm.2021.101139.
[81] China: Democracy That Works. Available at: http://www.news.cn/english/2021-12/04/c_1310351231.htm
[82] ECtHR, Jones and Others v. the United Kingdom, 14 January 2014 (applications 34356/06 and 40528/06). Available at: https://hudoc.echr.coe.int/fre?i=001-140005
[83] The Statute of the International Court of Justice of the United Nations. Available at: https://www.likumi.lv/wwwraksti/2018/020/BILDES/ARL.2227-PIEL_2.PDF
[84] Schabas WA. The European Convention on Human Rights: A Commentary (Internet). Oxford University Press; 2015, p. 37-47. Available at: https://opil.ouplaw.com/view/10.1093/law/9780199594061.001.0001/law-9780199594061
[85] Dzehtsiarou, K. (2017). What Is Law for the European Court of Human Rights?. Georgetown Journal of International Law, 49(1 (Fall 2017)), 89-134. Available at: https://www.law.georgetown.edu/international-law-journal/wp-content/uploads/sites/21/2018/07/GT-GJIL180003.pdf
[86] ECtHR, Hirst v. United Kingdom, 6 October 2005 (application no. 74025/01), paragraphs 35-38. Available at: https://hudoc.echr.coe.int/eng?i=001-70442
[87] ECtHR, Dickson v. the United Kingdom, 4 December 2007 (application 44362/04). Paragraph 78 Available at: https://hudoc.echr.coe.int/eng?i=001-83788
[88] Dzehtsiarou, K. (2017). What Is Law for the European Court of Human Rights?. Georgetown Journal of International Law, 49(1 (Fall 2017)), p. 130. Available at: https://www.law.georgetown.edu/international-law-journal/wp-content/uploads/sites/21/2018/07/GT-GJIL180003.pdf
Well done. The only thing I did not understand was your comment about the Chinese having a “democracy.” Say what? An autocracy in a capitalistic/communistic hybrid form is a better descriptor, wouldn’t you say?