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Europe targets the unvaccinated in its COVID restrictions: is it discriminatory?

Clocks strike ten at night in Sibiu, Romania , and the look of the city is bleak, completely deserted. Only pairs of police officers patrol the empty streets to ensure that citizens respect the curfew imposed on the unvaccinated throughout the country.

Accordingly, shops, bars and restaurants – which only the immunized can enter – have been closed for at least an hour.

The reason is the new restrictions against COVID-19, which is hitting eastern and central Europe with virulence.

With about 300 deaths per day, an immunization rate of 34% and just exceeding an incidence peak of 1,000 “cases” per 100,000 inhabitants, the Romanian government has chosen to target the unvaccinated as a target of restrictions to slow the spread of the virus.

It has not, however, been the only state to do so, as many nations have joined this trend of focusing on those not protected against COVID-19, registering the worst contagion data since the beginning of the crisis.

The confinement of unvaccinated people over 60 years of age in Moscow, the possibility of firing those who do not receive the serum in Latvia or the prohibition of access to bars and entertainment events for the non-immunized in Austria are some of the measures that have begun. to adopt the European countries before the increase – uncontrolled in some cases – of the contagions. This decision reopens the debate on the ethics and legality of focusing limitations on a single group: is it legal? Is it discriminatory?

“Each country has its own regulation. In general, whether or not these measures are discriminatory, which I can understand that they are, depends on the laws of each one of them.”

“In Spain it is not possible to apply something like this, but it may be that the regulation law of Russia, Latvia or Romania if it allows it”, explains 20minutos later the president of the Health Law section of the Madrid Bar Association (ICAM), Juan José Bestard.

More than “discriminatory”, qualifies the expert, the key is that these restrictions attack rights recognized as fundamental in the vast majority of countries, such as work or free mobility.

Therefore, in order to implement this type of measure, they would need an organic law.

“The legal systems of these states are complex and I do not know the specific nuance, but I imagine that, if they have, it will be because they allow it. I do not have to assume that they do things wrong,” he adds.

No alternative to vaccination

The director of the Health Area of ​​the Higher Institute of Law and Economics (ISDE), M.ª Cruz Martín, also considers these limitations directed at this specific group “discriminatory”:

“It is limiting the rights of certain people, depending on whether they are vaccinated or not, and it shouldn’t be like that.”

However, it highlights that this procedure seeks to “improve the situation of the pandemic” by achieving a higher immunization rate.

“Another thing is that it may or may not be justified at all times by the circumstances,” he adds.

The assessment changes, details the expert in Bioethics and Law, when alternatives are offered to the requirement to be vaccinated, such as the option of presenting a PCR test or an antigen test with a negative result. This is what Italy did when it introduced the obligation to present the COVID certificate to go to work to promote immunization. “If they don’t give you this opportunity and you can’t replace it with anything, it is clearly discriminatory.” It is precisely this possibility that many countries have eliminated with these new regulations.

A way to force vaccination

Behind these restrictions imposed on the unprotected in a Europe that is witnessing the increase in infections frustrated, there is the will of the Governments to “force citizens to receive the serum against COVID.”

“These countries are looking for alternative solutions for people to get vaccinated. The best formula is health education, but they have arrived late, because little is invested in this,” says Bestard.

“Let’s say a country says it is mandatory to get vaccinated. How is a government going to force someone?”

Another important concept in practice adopted by these European countries is “legislative effectiveness”, emphasizes the expert in Health Law.

“Let’s say a country says that it is mandatory to get vaccinated. If you don’t do it, what happens? If a law is coercive, it must be possible to coerce the citizens. And if it is a 14-year-old who refuses, who is responsible? How is a government going to force someone? Is it going to kick him out of work? And if he has a family with five children and is supporting his parents? The damage could be worse,” he insists.

Could it happen in Spain?

Faced with the prospect that this situation could be reproduced in Spain, with prohibitions exclusively for the unvaccinated, Bestard is resounding:

“It is not possible.”

“To limit a fundamental right, such as work or mobility, there must be an organic law that protects these measures. And there is none,” he says.

In this sense, it refers to the decision of the Constitutional Court to declare unconstitutional some aspects of the first and second state of alarm declared by the pandemic. “The Government, surprisingly, dedicated itself to limiting mobility through decrees saying that there was a law that allowed it. It is not like that,” he remarks.

These measures applied by the Executive of Pedro Sánchez in the early stages of the pandemic would have had constitutional support if there had been a pandemic law that contemplated these extraordinary acts. This same rule could cover the limitations on non-vaccinated that neighboring countries are putting into practice, if necessary in Spain.

“I do not believe that we live what is happening in Europe”

Once the legal framework is known, Martín doubts that, with the number of immunized people in the national territory and the evolution of the pandemic in the country, these measures will be necessary.

“We are fortunate to be a population that has understood that need to be vaccinated voluntarily, with a very high rate of people with the complete schedule. I do not believe that we are experiencing what is happening in Europe, ” he confides, in the midst of the crisis of the rest of the continent.

Source: 20minutos

  • Translated