CAN COVID-19 VACCINATION BE COMPULSORY IN TURKEY? 19 January 2021

The hopes for the end of the pandemic increased with the successful results of the ongoing vaccination studies while the negative effects of Covid-19 persist. With the emergence of vaccine studies that have proven to be successful as a result of scientific research, the distribution of millions of doses of vaccine has begun on a global scale. As of the date this article was written, Turkey is also known to be involved in the distribution chain, with 50 million doses of vaccine in the first stage. While vaccine distribution continues, there are discussions about whether the vaccination can be made mandatory under current conditions and what the legal basis of the application will be.

The vaccination activity is a health measure aimed at protecting individuals and indirectly the society from diseases and gaining social immunity. However, this measure also carries the character of a medical intervention on the body of individuals. It constitutes the main argument of mandatory vaccination discussions and anti-vaccination opinions that the said intervention may violate the "right to life and to protect and develop corporeal and spiritual existence", which is one of the fundamental rights of individuals. In this study, the nature, purpose and limits of medical intervention will be evaluated regarding Covid-19 and mandatory vaccination discussions within the scope of the General Hygiene Law and high court decisions, especially the Constitution and the European Convention on Human Rights ("ECHR").

• Is it possible to make the vaccination a mandatory application within framework of the Consititution and legal regulations?

Physical integrity and the right to protect and develop corporeal and spiritual existence are regulated in Article 17 of the Constitution. According to the relevant article, “Everyone has the right to life and the right to protect and improve his/her corporeal and spiritual existence. The corporeal integrity of the individual shall not be violated except under medical necessity and in cases prescribed by law; and shall not be subjected to scientific or medical experiments without his/her consent”. As it is clear from the wording of the provision, it is not sufficient to have a medical necessity solely to intervene in the physical integrity, which is considered as a fundamental right. At the same time, the existence of a legal regulation that forms the basis for the intervention is sought. In addition, according to Article 13 of the Constitution, which sets out the criteria to be taken into account in limiting fundamental rights and freedom “Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence. These restrictions shall not be contrary to the letter and spirit of the Constitution and the requirements of the democratic order of the society and the secular republic and the principle of proportionality”. The legality of the said intervention can be determined by examining the criteria specified in Article 13 in terms of mandatory vaccination application separately.

In terms of medical interventions such as vaccination activities, the legitimate reason can often be expressed as the protection of individual and public health. As a matter of fact, as the Constitutional Court frequently states in its decisions, states have a (positive) obligation to protect the right to life and health of all individuals within their jurisdiction against risks that may arise from the actions of other individuals or the person himself. For this purpose, since superior public interests will also play a role in the vaccination activity to be applied, the intervention will not be against the word and spirit of the Constitution and will not constitute a violation of the democratic social order. However, the intervention discussed to be carried out is aimed at preventing the Covid-19 pandemic that is currently ongoing all over the world, affecting social life completely and causing serious deaths and health problems. Therefore, it is beyond doubt that the intervention meets the requirement of "stemming from medical necessity" specified in Article 17 of the Constitution. At this point, the issue that needs to be addressed specifically is that the intervention does not touch the essence of the right and complies with the principle of proportionality.

The principle of proportionality refers to the establishment of a fair balance between the public interest to be provided by the intervention of the state and the fundamental rights and freedoms of the individual. The principle of proportionality consists of three sub-principles: necessity, convenience and proportionality. For this reason, the constitutional conformity of the mandatory vaccine application regarding Covid-19 should be tested in terms of each sub-principle.

• Vaccination is the most effective way among preventive medical measures according to scientific researches and provides at least 80% protection. For this reason, it is clear that it meets the ‘convenience’ condition.
• If the protection provided by the vaccine can be obtained by another method or measure, then it can be said that the vaccine is not "necessary". However, today, there is no known alternative treatment or protection method for Covid-19 that has the same effect as the vaccine. It can be said that the vaccine is a ‘necessity’ practice for both individual and public health.
• Finally, it should be evaluated whether the vaccine has a proportionate application in limiting the right to personal immunity. It is necessary to accept that the vaccination application, which aims to protect the public health, is a necessary measure in a democratic society, ‘proportionate’ to the purpose, provided that it does not pose a danger to the health and life of the person concerned.[1]

The last and most important criterion to be evaluated in terms of Article 13 is the 'legality' criterion. Restrictions on fundamental rights and freedoms should be based on a provision of law. The point that should be emphasized here is that the restriction can only be implemented by law in formal sense. For this reason, it does not seem legally possible to implement mandatory vaccination in terms of Covid-19 with presidential decrees, regulations, circulars or other administrative procedures.

In the present case, there is no legal regulation to make the vaccination mandatory in Turkey. Although the obligation to notify and mandatory vaccination were regulated in the General Hygiene Law of 1930 in the event of certain diseases, it is known that the relevant regulation does not cover the Covid-19 epidemic due to its very old date. In addition, the mandatory vaccination practice in the provisions is regulated not as a preventive measure before the disease occurs, but as a treatment carried out after its emergence. For the reasons listed, it is clear that the legal basis for a possible Covid-19 vaccine requirement that covers the general public and has a preventive nature cannot be the Public Health Law in its current state. For this reason, there is a need for an up-to-date legal regulation on the subject. The Constitutional Court has stated in its decision regarding the Halime Sare Aysal Application dated 2015 “… the legal regulation must be specific in terms of content, purpose and scope and clear that the addressees can perceive their legal status. Although it is possible to leave a certain degree of discretion to the practitioner with the rule that interferes with the right or freedom, a minimum certainty in the wording and interpretation of the law on which the intervention is based should be ensured in order to ensure effective protection of rights. Legislation should clearly demonstrate under which conditions and limits the public authorities the power to intervene in the fundamental rights and freedoms of persons, and in this context allow the respondents of the intervention to make predictions in terms of the conditions and consequences of the intervention”. With this decision, the Constitutional Court not only emphasized the principle of legality, but also clearly revealed the features that the legal regulation should bear.

• Can Compulsory Vaccination Regarding Covid-19 Be Made Within The Framework Of ECHR and ECtHR Decisions?

The ECHR does not contain a special regulation on compulsory vaccination. However, when looking at the established practices of the ECtHR, it is seen that medical interventions, especially such as compulsory vaccination, are evaluated within the scope of the 'right to privacy of private life', which is the 8th article of the convention, in the context of the physical and mental integrity of the persons. In the case of Solomakhin v Ukraine, which is an exemplary decision on the subject, the applicant alleged that his health condition had deteriorated after he was vaccinated with diphtheria in the hospital where he went to treat acute respiratory disease. The ECtHR found that the mandatory vaccination was prescribed by law, although it interfered with the applicant's private life and was carried out to protect health. According to the ECtHR, mandatory vaccination application is due to public health considerations and the obligation to prevent the spread of epidemics in the region. Before the applicant was given the vaccine, the necessary checks were carried out by the medical personnel and no risk factors that could harm the applicant's health were found. On the other hand, although the applicant had objected to mandatory vaccination applications several times before, he did not explain why he did not object to vaccination in the present case, and no concrete evidence was presented that the diphtheria vaccine did indeed adversely affect the applicant's health status. For the aforementioned reasons, the ECtHR has decided that there has been no violation of Article 8 of the Convention in the present case.

When looking at the decision, it is seen that the Court will express an opinion that the right has been violated if the necessary controls are ignored by the medical personnel or a situation that poses a risk to the health of the person is detected. Therefore, in terms of ECtHR decisions, it is seen that a mandatory vaccination regulation aimed at protecting the society from diseases and giving social immunity does not violate fundamental rights such as bodily integrity and privacy, provided that the health of the vaccinated person is not endangered.

• Result

As a result, it is seen that the imposition of compulsory vaccination for individuals in cases required by public health within the scope of both Turkish legislation, ECHR regulations, and ECtHR decisions does not constitute a violation of fundamental rights. However, since compulsory vaccination interferes with the fundamental rights protected by the Constitution and the ECHR, such as bodily integrity and privacy, on the grounds of public health, it is also essential that the scope and limits of the said intervention be determined.

In terms of Turkish law, it is seen that there is no legal regulation that constitutes a basis for mandatory COVID-19 vaccination under the current regulations, including the General Hygiene Law. Considering that public health is deteriorating day by day and the epidemic continues unabated, it is obvious that new regulations should be introduced by the legislators, taking into account the current problems and needs. The arrangement to be made should be clear and predictable, and all kinds of processes and stages regarding vaccination should be determined. In this context, the groups to be given priority in vaccination, the groups that will be exempted from vaccination or the controls required before vaccination should be included in the regulation. Otherwise, such an administrative practice to be implemented will violate the criteria specified in the Constitution and the ECHR and the right to body immunity of individuals.

Another issue that is as important as the above-mentioned points is the responsibility of the state to show sufficient study, research, and care on the vaccines it chooses to apply. Public health is an extremely sensitive issue, and the severe consequences that may occur as a result of choices and practices that can be made within a framework that lacks an understanding of a responsible state also need legal discussion.