Why the covid vaccination administrative coercion measures are not mandates and will never be

Giuliano Scarselli (law sciences, Siena University)

English translation of the explanation about the current Administrative State vaccination coercion. Original in Italian is here.

1. Introduction

This brief article is not intended to comment on the many aspects of the new regulatory decree (Decree Law no. 105 of July 23, 2021, to combat the Covid 19 epidemic), but only to provide some food for thought, which I wish above all to address to my friends and colleagues in the legal field.

In doing so, I would like to emphasize that I am not an anti vax, and I do not question either the value of vaccines, nor the possibility of the State to establish, according to art. 32 Constitution, the mandatory vaccination for all, if there are the conditions set by our Constitutional Court.

And also, as you will understand from reading the text, I do not even intend to utter criticism of specifically our government, because what is happening in Italy also happens in neighboring European countries, first of all in France.

I just feel that we have gone beyond certain limits, and the situation makes me feel it is my duty to take a stand.

That’s all: it is an indulgence (of expressing legal opinions) that I have acquired since my first years of study at the Faculty of Law and that still (perhaps, unfortunately) compels me.

2. Compulsory vaccination and informed consent

The first question that I want to ask is this.

The options in regards of vaccination seem to be two: either we leave to individuals the right to choose whether or not to vaccinate, or — we make vaccination mandatory.

I would say: tertium non datur. (The opposites that cannot exist both at the same time)

And, I would add, as I said before, that no one disputes that the State, if there are the conditions, may, according to art. 32 Cost., have an obligation to vaccinate all citizens, since by this same constitutional provision, one can have compulsory health treatments [1].

The problem, however, is that what is happening is neither this not that, it has more nuances that I think it is useful to emphasize.

The State, at least at the moment, has not made any vaccination mandatory for everyone, and there is no law that obliges the entire community to undergo the COVID 19 vaccination.

However, with the last decree law May 10th /2021, if you are not vaccinated you can not take part in social life, and you can not attend, for example, restaurants, cinemas, theater, museums, exhibitions, conferences, etc. …. unless instead you are willing to undergo a swab (PCR) every 48 hours.

Then, let’s say, the citizen runs to get vaccinated (or at least this seems to be the idea of the decree), but to do so, one must sign a letter of informed consent, or must give the nurse who vaccinates him a statement, acknowledging that he has read all the relevant information on the possible adverse reactions and side effects of the vaccine- and also gave free consent to vaccination (the form reads: “I consent and authorize the administration of the vaccine”).

It is clear that if the vaccine was mandatory, the citizen, I would say, could not be asked to sign an informed consent, because the concept of consent excludes that of obligation, and no consent, in fact, could be required of the citizen who submits himself to fulfilling an obligation. No consent can be imagined in case of a health treatment that is, in fact, mandatory.

Basically, the obligation to vaccinate would mean that the State assumes full responsibility for the obligation. In the current situation, however, the State does not have any, but places full responsibility for the vaccination on others, since it is allegedly for the free choice of the citizen, who therefore, before vaccinating, must sign that everything is done by his own will according to the information on existing risks.

Thus the idea that the State wants citizens to be vaccinated without State’s own responsibility or responsibility of the third parties seems to be confirmed by art. 3 of the Decree, now converted into law, No 44/2021, quoting criminal law, which states: “For the facts referred to in Articles 589 and 590 of the Criminal Code occurred due to the administration of a vaccine for the prevention of SARS-CoV-2 infections, ……legal responsibility is waved if the administering of the vaccine is in accordance with the patient’s will…….”.

It has been said that the criminal law has been modified to protect doctors and all health care workers — and only them, but it seems to me, if I am not mistaken, that, given the generalizations of the text, it could apply to everyone, and not just doctors, so that everyone can use it to protect himself by this law, even those who manufactured the vaccine or marketed it, directly or indirectly, imposed, induced, etc. …[2].

So, to summarize: probably the state does not feel like making mandatory a vaccine that has not completed its testing phase and can cause, as is admitted in the art. 3 of dl. 44/2021 (which expressly refers to art. 589 and 590 c.p.) injury or death of the vaccinated — but at the same time, wants everyone to be vaccinated!

If it were to make it mandatory in accordance with art. 32 Const. The State would assume the responsibility for this mandate and could no longer rely on the informed consent of the vaccinated; leaving the vaccination “free”, the State avoids assuming any responsibility, and gets the same result with the extension of the green pass, which in fact coerces all citizens to vaccinate in order to not to be excluded from social life.

Well, if this is the case, I wonder how this is possible.

Logically, how can the State call those who choose not to vaccinate “irresponsible” when it is the same State that, first, does not want to take any responsibility?

Because it seems to me, in fact, that the fear that millions and millions of citizens have in regards to vaccination, are the same type of fear that stop the State from making the Covid 19 vaccine mandatory.

3. Extension of the green pass and European legislation

Second question.

It is not disputed that national legislation, in addition to having to respect our Constitution, must also comply with European legislation.

In this regard, I recall that the green pass (COVID 19 green certifications) has recently been regulated by EU regulations 2021/953 and 2021/954 of the European Parliament and Council of June 14, 2021.

It has been designed and regulated in order to facilitate travel between member states so as not to harm tourism, and this is readily apparent from reading the texts, all of which focus solely on issues related to travel between states and cross-border issues only[3].

That said, how does the link between EU legislation and national legislation come about?

Well, in Italy the green pass is regulated by art. 9 of the previous decree law of 22 April 2021 no. 52, converted with amendments by law no. 87 of 17 June 2021.

Art. 4 of the new decree-law 105/21 has now made certain changes to the previous art. 9 of dl 52/21, and in particular point 2 of letter e) of art. 4, paragraph 2 of dl 105/21 reads as follows: “The provisions of paragraphs 1 to 8 continue to apply where compatible with EU Regulations 2021/953 and 2021/954 of the European Parliament and Council of June 14, 2021”.

The provisions of paragraphs 1 to 8 of art. 9 dl 52/21 are precisely those that govern the green pass.

Therefore, art. 4, intervening on art. 9, paragraph 9 of Decree Law 52/2021, tells us that the green pass may continue to be applied “insofar as compatible” with EU Regulations 2021/953 and 2021/954 of the European Parliament and Council of June 14, 2021.

This is an obvious conclusion, since, precisely, domestic legislation cannot derogate from EU legislation, and therefore, necessarily, art. 9 dl 52/21, as supplemented by art. 4 dl 105/21, must comply with EU regulations 2021/953 and 2021/954.

Now, however, the point is that the European regulations not only do not provide at all that the green pass can be used as a condition for the participation of citizens in social life, but, as regards its use, exclude that there can be discrimination between vaccinated and non-vaccinated citizens.

The EU Regulation 2021/953 in its correct translation states in fact at point 36 as follows:

“It is necessary to avoid direct or indirect discrimination of persons who are not vaccinated, for example for medical reasons, because they do not belong to the target group for which COVID 19 vaccine is currently administered or permitted, such as children, or because they have not yet had the opportunity to be vaccinated or have chosen not to be vaccinated. Therefore, possession of a certificate of vaccination should not be a precondition for the exercise of the right of free movement”[4].

This is in accordance, however, the previous resolution of the Council of Europe — Parliamentary Assembly — No 2361/2021 of January 27, 2021, which directed States not to make compulsory vaccination against Covid 19 and not to use it as a discriminant between workers.

In fact, that resolution reads, “Ensure that citizens are informed that vaccination is not mandatory and that no one is politically, socially, or otherwise pressured to be vaccinated; ensure that no one is discriminated against for not being vaccinated or for not wanting to be vaccinated” (section 7.3.1. and 7.3.2.).

Now, the question is obvious: how is it possible to apply the Italian decrees of law on green pass compatibly with the EU regulation of June 14, 2021 no. 953, which expressly prohibits discrimination against the unvaccinated compared to the vaccinated, even when the latter have chosen not to be vaccinated, if all our legislation is based instead on the opposite principle, or to place a discrimination, albeit considered fair and justified, between vaccinated citizens, who can freely participate in social life, and unvaccinated citizens, who in order to participate in social life must undergo a PCR swab every 48 hours?

Beyond the opinions that everyone may have on this alternative, if “not discriminating” means treating the same way the vaccinated and unvaccinated, it is clear that the Italian green pass practices discrimination, and therefore does not comply with EU law.

Apply it “as compatible”, I sincerely do not understand what that means, nor ‘as “the owners and managers of the services and activities referred to in paragraph 1” (so art. 3, paragraph 4, dl 150/21), can proceed to the controls making it conform to EU regulations.

4. Next: extension of the green pass, privacy and freedom of movement

Third question.

Once vaccinated, the citizen regains his freedom of movement, but, of course, this freedom is no longer full, because to exercise it must still use the green pass.

Therefore, the freedom that the citizen has, is no longer derived from the Constitutional Charter or the Convention on Human Rights, but, precisely, from the green pass, which the public authority gives him for a fixed time.

Now the green pass is made up of a QR code, and every time it is used, the code is (if I am not mistaken, this should be how it works) scanned, and the data is entered into a national platform, to be better defined and regulated, capable of storing the data collected[5].

It is evident that the more occasions in which I need to use the green pass, the more I am subject to control; or at least this is the risk of using the green pass in daily life.

Is it permissible for the state, through vaccination, to control the data and perhaps even the movements of citizens?

At the moment it is said that the data will be kept as strictly necessary, used for health purposes only, in full respect of the privacy of each citizen, and that there will be no control on movement.

However, every concern is legitimate, since, to date, there is no shortage of decisions instead taken without, and regardless of, the opinion of the privacy guarantor; and, if you want to be picky, even the vaccine should have been a free choice of everyone, but it was not so.

The privacy guarantor authority, moreover, in its measure no. 156 of 23 April 2021, was strongly critical of the novelty of the green pass.

It wrote that the decree law: “Does not represent a valid legal basis for the introduction and use of green passes … The regulatory framework does not provide an explicit and exhaustive explanation of the specific purposes pursued, an essential element in order to assess the proportionality of the measure … It is considered not to have adequately taken the risks, explained below, how the implementation of the measure affects the rights and freedoms of those concerned.”

But, in addition to this, it must be underlined that, in the hypothesis of tracking people’s movements, the control of individuals in this respect is not only a matter of privacy, it is much more serious and incisive, because it has to do with personal freedom.

Nor does it seem pertinent to reply, as many do, that in today’s society we are all already widely tracked by commercial companies. First of all, because this does not correspond to the truth, since commercial companies have at their disposal only those data that the citizen that they have freely made public, and second, because it is one thing to be tracked by a private individual, but it is something else, much more serious, to be tracked by the State.

To trace, and/or to control, the movements of a person, against his/her will and/or in a compulsory way, constitutes a restriction of personal freedom, forbidden according to art. 13 Cost.; only people with limits to their personal freedom can undergo such a treatment, not others, according to our constitution, and only for a measure given by the judicial authority.

Above all, I do not see why the citizens who have been vaccinated (or who have complied with what was asked of them to protect their health and the community) should suffer this treatment.
So we are in this situation:
if you are not vaccinated you cannot move, but if you are vaccinated you can move under surveillance.

It is not enough to be vaccinated to be free. The freedom for which our fathers and grandfathers died, or were tortured, or imprisoned to get to the Constitution of ’48, no longer exists, at least at the moment.

Besides, the green pass has a time limit.

What happens after that?

5. Next: extension of the green pass and constitutional principles

Last question.

Decree 105/21 sets out and refers to the provisions of our Constitution, including Art. 77 and 16 of the Constitution.

It seems to me, however, that just as it is doubtful that Law 105/21 complies with Art. 32 of the Constitution, as stated above, it is also doubtful that it complies with Art. 77 and 16 of the Constitution.

5.1. Art. 77 Const. authorizes the Government, as is known, to issue decree-laws in “extraordinary cases of emergency and urgency”.

Here the emergency and urgency is provided by the health crisis and the declaration of pandemic made by the World Health Organization.

This declaration of the WHO, however, dates back to March 11, 2020, and if after a year and a half (July 23, 2021), new and very strong restrictions are placed on the freedoms of citizens, I believe that, in deference to art. 77 Const, we should explain the current reasons for the health crisis, more serious than in the past, for which it is considered necessary, balanced and proportionate to place these new stronger restrictions.

On the contrary, none of this can be found in the preamble to Decree Law 105/21.

In previous decree-laws reference was made to the notices of the Technical and Scientific Committee of the Department of Civil Protection.

Just as an example, this came with the dl of April 22, 2021 №52, which referred to the notice of the Scientific-Technical Committee of April 20, 2021, that is, only two days before — and the same occurred with the dl of April 1, 2021 №44, which referred to the notice of the Scientific-Technical Committee of March 29, 2021, that is, three days before.

In this case, i.e. with dl 105/21, none of this happens, and the decree is not based on any scientific notice, but only on the mention of previous regulatory acts, the WHO statement of a year and a half ago, and the mere statement “Whereas the current context of risk requires the continuation of initiatives of an extraordinary and urgent nature undertaken in order to adequately address possible situations of harm to the community.”

The situations of harm, as we read, are defined only “possible”, scientific warnings are not recalled, and all this happens on a day of midsummer, after the abolition of the obligation of masks outdoors, and in which the data were the lowest we’ve ever had [6].

With this, obviously, the citizen is not able to evaluate whether or not the health situation is so serious as to justify these restrictions; However, given that these measures are highly restrictive of freedoms and have no precedent in our history of the Republic (but, I would say, not even in the peacetime history of the Kingdom of Italy), I believe that citizens are entitled to see the reasons for the measures explained, and that it is not possible to issue a decree-law that takes away constitutional freedoms without clearly stating the reasons justifying such a decision, even in terms of balance of interests, pursuant to art. 77 Const.

5.2. Reference is then made to art. 16 Const.

There is no doubt, in this regard, that the right to move can be limited for health reasons in accordance with this constitutional provision; the problem, however, is that this limitation has as its object the prohibition to go to a certain place because in that certain place there are reasons of health or safety that prevent the movement, while today this rule is invoked as a constitutional cover of provisions that prohibit certain people from using activities and services based on the fact of having had or not certain health treatments[7].

Art. 16 sets a limit to movements in “part of the national territory”, therefore, precisely to determined geographical locations; while restaurants, bars, museums, conventions, fairs, and above all hospitals, shopping centers, transport, schools, public competitions, are not geographical locations , do not fall within this concept, are not parts of the national territory; they are, on the contrary, goods and services, some even with characteristics of essential goods.

Nor can it be replied that they are, in any case, activities that take place in specific places, because all of life’s activities, without exception, have a spatial-temporal dimension.

Moreover, it should be added that the distinction between these concepts is clear to the same dl 105/21, and this can be deduced from the precise tenor of art. 3, where it is stated that it is allowed exclusively for individuals with one of the COVID 19 green certifications to “access the following services and activities”.

Therefore, it is the same decree-law that specifies that these are services and activities, not places; and therefore it is evident that a limitation of access to services, especially when these are essential, cannot be justified by art. 16 of the Constitution, which places limits on the right to move only with reference to parts of the national territory (and only as an exception to the right to free movement, and only for limited periods of time).

If you then think that in these days there are those who have argued that you could even deny the right to vote to those who are not vaccinated, or exclude them from the electorate, well, you understand that all this has nothing to do with art. 16 Const.

6. Brief conclusions

Therefore, I invite you to reflect on these issues.

If the vaccine is a necessary and indispensable for the health of the community, the State makes it mandatory for everyone in compliance with art. 32 Const.

If you do not think you can do that, because it is a vaccine that has not yet finished its course of experimentation and that could cause damage, even serious, to those who receive it, as recognized by the same art. 3 of the dl 44/2021, then do not punish those citizens who are afraid to vaccinate, because their fear is the same fear that the State has to make the vaccine mandatory, and because it is contrary to every principle of law to place limitations on fundamental rights of those who refrain from behavior that the same State does not consider mandatory and/or required.

And if the state makes compulsory vaccination, punish those who violate the obligation, but do so in an appropriate and proportionate manner, remember that we are all the children of Cesare Beccaria, and that principles of legal civilization do not allow anyone to take away those fundamental human rights that constitute the history of our Western society.

[1] To remember, however, that, in the interpretation of art. 32 Const. the same constitutional jurisprudence has always, consistently, recognized that if the vaccine may, however, involve a risk to the health of the person subjected to vaccination, the vaccination can only be by individual choice. (Thus, for all, Constitutional Court June 22, 1990 No 307; Constitutional Court June 23, 1994 No 258; Constitutional Court January 18, 2018 No 5).

[2] And this is also because the acts committed specifically “in the exercise of a health profession” are now regulated by the subsequent art. 3 bis.

However, this is a complex issue, which certainly cannot be debated here, and for which reference can be made to Cass. sez. un. penali 22 February 2018 no. 8770, and to report no. 35 of 21 June 2021 of the Supreme Court’s Massimario.

[3] See paragraph 61 of Regulation №953 of June 14, 2021: “The purpose of this Regulation, namely to facilitate the exercise of the right of free movement within the Union during the Covid pandemic 19……”

[4] For accuracy, the French language text is referred to: “Il y a lieu d’empêcher toute discrimination directe ou indirecte à l’encontre des personnes qui ne sont pas vaccinées, par exemple pour des raisons médicales, parce qu’elles ne font pas partie du groupe cible auquel le vaccin contre la COVID-19 est actuellement administré ou pour lequel il est actuellement autorisé, comme les enfants, ou parce qu’elles n’ont pas encore eu la possibilité de se faire vacciner ou ne souhaitent pas le faire. Par conséquent, la possession d’un certificat de vaccination, ou la possession d’un certificat de vaccination mentionnant un vaccin contre la COVID-19, ne devrait pas constituer une condition préalable à l’exercice du droit à la libre circulation”
[“Direct or indirect discrimination against persons who are not vaccinated, for example for medical reasons, because they are not part of the target group for which the COVID-19 vaccine is currently administered or for which it is currently authorized, such as children, or because they have not yet had the opportunity to be vaccinated or do not wish to do so, should be prevented. Therefore, possession of a certificate of vaccination, or possession of a certificate of vaccination mentioning a COVID-19 vaccine, should not be a prerequisite for the exercise of the right to free movement”]

[5] This is an issue that has also been raised in France, where it has been argued that every person must be scanned in the businesses where he shows up, V. www.leparisien. .fr, 22 July 2021: “Toute personne qui ne s’enregistre pas à l’entrée de l’etablissement ou ne scanne pas le code mis à disposition met à la fois sa vie mais aussi celle d’autrui en danger” [“Any person who does not register at the entrance of the establishment or does not scan the code provided puts both his life and that of others in danger”]

[6] These are the numbers: 15 deaths (i.e. one death every four million residents), 158 intensive care units, 1,234 hospitalizations.

[7] See in fact, MAZZIOTTI Circolazione e soggiorno (libertà di), Enc. del Diritto, Milano, 1960, VII, 16, who wrote: “When one of these measures imposes a positive obligation to circulate or stay only within a given territorial circumscription, it limits personal freedom, while, if it contains exclusively a negative obligation not to circulate or stay in certain parts of the territory, it limits the freedom of circulation and stay”.

Giuliano Scarselli