In View of the Current Non-application Mandatory Vaccination Is Constitutional
In view of the COVID-19 Non-Application Regulation in force at the time of the Constitutional Court's decision, the Mandatory Vaccination Act is constitutional. An applicant from Vienna had argued, among other things, that the compulsory vaccination violated the right to respect for private life (Art. 8 ECHR), because this right also included medical freedom of choice and physical integrity. The Constitutional Court had to assess the application submitted by the Viennese according to the factual and legal situation at the time of its decision, taken on 23 June 2022.
Mandatory vaccination is a particularly severe encroachment on the physical integrity and the right of self-determination of the individual, the Constitutional Court states in its decision. Therefore, a strict standard applies when examining whether the vaccination mandate is proportionate. Art. 8 paragraph 2 ECHR specifies the conditions for an interference with this fundamental right to be permissible. This is the case if the interference is provided for by law and is necessary, for example, to protect health.
The COVID 19 Mandatory Vaccination Act pursues the goal of a high vaccination rate to protect persons who cannot benefit from vaccination for medical reasons or for whom the effectiveness of vaccination is reduced (vulnerable persons). The Mandatory Vaccination Act also aims to protect the functioning of the health infrastructure and thus public health by reducing the risk of severe disease progression after vaccination.
In addition, the Minister of Health is obliged under the Mandatory Vaccination Act to continuously review whether vaccination is appropriate and necessary to achieve these goals or whether there is an equally effective, but less intrusive means (e.g. mandatory vaccination only for certain occupational or personal groups). As a result of this constant evaluation, which is constitutionally required, the obligation to vaccinate has been suspended since 12 March 2022. In this legal situation, there are no constitutional objections to the admissibly challenged provisions of the Compulsory Vaccination Act.
(G 37/2022, V 173/2022)