Intervention must be appropriate and appropriate
Franz Mittendorfer: The state must protect citizens from threats
1 Why can compulsory vaccination be introduced at all, and under what conditions is it abolished again?
A vaccination is an interference with the physical integrity. A vaccination obligation is a violation of Article 2 of the European Convention on Human Rights (ECHR), which guarantees the right to life, only when potentially life-threatening circumstances arise. According to Franz Mittendorfer, President of the Upper Austrian Bar Association, Article 2 of the ECHR also results in the state’s duty to protect its citizens from life-threatening threats, especially in the case of infectious diseases. The well-being of the individual and society should be protected: this is how the state must act if the health system is threatened with overload.
A vaccination requirement must be proportionate: That means it must be suitable and there must be no more lenient means.
2 What are the objections and legal concerns?
An encroachment on fundamental rights and freedoms must be appropriate: the risk of consequential damage or serious side effects is often brought up. “According to the available scientific knowledge, this risk is lower than the consequences that threaten a serious course of the disease.” For those who are at risk due to their state of health, there will be no compulsory vaccination. An encroachment on freedom of religion and belief (Article 9 ECHR) is conceivable: “The European Court of Human Rights (ECHR) did not accept this argument in a decision from 1998.”
3 What is the difference between mandatory and mandatory vaccination?
The vaccination is not enforced by force. Those who refuse face a fine or imprisonment.
4 What are the penalties for those who refuse?
The amount of the fine is still under discussion. A social staggering is a basic principle of administrative criminal law. In determining the penalty, income and fault are taken into account.
Violation of the obligation to vaccinate is a continuing offense: If it happens again, a penalty can be regularly imposed.
5 From what age is a compulsory vaccination legally possible?
Administrative criminal prosecution is only possible from the age of 14. It makes sense to tie in with the age of criminal responsibility.
“Compulsory vaccination is not constitutional”
Rene Lindner does not consider the vaccination to be the “mildest remedy”
1 Why can compulsory vaccination be introduced at all, and under which requirement will this be abolished again?
“I am convinced that compulsory Covid vaccination is not constitutional,” says Linz attorney Rene Lindner, Vice President of the Upper Austrian Bar Association. Because encroachments on fundamental rights must always be adequate and proportionate, represent “the mildest means” and the ultima ratio. “As milder means, for example, keeping your distance, a consistent test system and reducing contacts come into question.” Unlike the smallpox or measles vaccination, the Covid vaccination “does not cause sterile immunity”. Vaccinated people could also continue to be infected and transmit the virus. The ECHR recently confirmed that kindergarten children in the Czech Republic were required to be vaccinated, but it was about “vaccines that have been tried and tested for years”, such as those against measles, “that protect against infection and transmission”.
2 What are the objections and legal concerns?
A compulsory vaccination would also be “hardly enforceable”. If hundreds of thousands did not vaccinate and would not pay the fine either, then hundreds of thousands would “ultimately have to be placed under a substitute custodial sentence”, the lawyer points out. “That is by no means conceivable.”
3 What is the difference between mandatory and mandatory vaccination?
A compulsory vaccination would mean that the police force you to take you to the vaccination center and force you to be vaccinated there. “But nobody is talking about that anyway,” says Lindner.
4 What are the penalties for those who refuse?
In the current decision on the Czech Republic, the ECHR emphasizes that penalties must be moderate. Of course, the extent of guilt and income must be taken into account, “if the legally compliant introduction of mandatory vaccination is even possible,” says Lindner. In addition, the constitutional prohibition of double punishment applies: not twice for the same thing. Unvaccinated people could therefore only commit the administrative offense once.
5 From what age is a compulsory vaccination legally possible?
If it is possible to introduce compulsory vaccination, it should in no way apply to minors. Although people over the age of 14 are sometimes criminally responsible, they are subject to the custody of their legal guardians. Unvaccinated minors could not defend themselves against a punishment.
Source: Nachrichten
