The decisions were made by a majority vote, with three dissenting opinions.
The court once again gave legitimacy to all COVID protocols and said that the crisis management team has the duty, based on available scientific information at the time it makes or amends regulations, to adopt a protocol which it assesses is the least restrictive one the one hand, while effectively protecting public health from COVID on the other.
The court said that in future it expects the team to explain the protocols so that those to whom they apply know the reasons for their adoption and that the protocols meet the constitutional principle of proportionality.
Regarding the supervision of the crisis management team, the court reiterated that the team acts under direct supervision of the government which, under the constitution, answers to parliament, and that it is up to parliament to decide to which extent it will use its authority to oversee the work of the government.
The court said it rejected a motion to assess if the government’s decision to establish a national system for the issue of EU digital COVID certificates was in line with the constitution and the law because the appellant contested only the part of the decision which envisages that, at national level, they can be used also for other purposes in line with crisis management team decisions based on the law protecting the population from infectious diseases.
The court said this does not mean that the government overstepped its powers and obligations in applying the relevant EU regulation, and found that the crisis management team has envisaged the use of the certificates in a number of its decisions.
Testing mandate in healthcare and social welfare legitimate
Rejecting a motion concerning the mandatory testing of all healthcare and social welfare staff at least twice a week, the court said the goal is to protect the health and lives of patients and care home residents by minimising the risk of infecting them as well as the health and lives of the staff.
The Constitutional Court said scientific research and the experience gained during the epidemic show that the likelihood of infection and spread of coronavirus among people who have been vaccinated or have recovered is markedly lower than among the unvaccinated.
Therefore, the court said, the testing mandate for healthcare and social welfare staff is not arbitrary but based on scientific and expert papers.
Testing quick and painless
The court said the crisis management team adopted a protocol which is appropriate, necessary and proportionate to the goal and which is not an excessive burden on those to whom it applies.
It added that testing is suitable for early detection of the virus, that the procedure is quick and painless, while the results are known quickly, and that employees can choose between free vaccination and testing at the employer’s expense.
The court evidently dismissed as unfounded complaints stating that the state has the duty to inform citizens that vaccination is voluntary and that no one can be exposed to political, social or other pressure to be vaccinated if they don’t want to, as well as a complaint stating that the contested decisions actually make vaccination mandatory.
The court said the appellants did not show that individuals are treated differently based on their vaccination status or that those unvaccinated are in an unfavourable position in relation to those who have been. COVID certificates can be obtained also based on testing or recovery from the disease, the court added.
The court said vaccination could be made mandatory only by law, not by crisis management team decisions.
It found that the demand for the obligatory testing of people who have not been vaccinated or recovered from COVID is objective and reasonable, that it has a legitimate goal and is proportionate given that there is a just balance between the interests of the community and respect for individual rights and liberties.
As for complaints that banning employees from staying on their employer’s premises restricts their right to work if they refuse testing or producing a COVID certificate, the court said this is regulated by labour law and regulations on public and government service.
Regarding complaints that healthcare and social welfare workers are in an unequal position in relation to other workers because the testing mandate applies to them only, the Constitutional Court found that, given the deterioration of the epidemiological situation, it was necessary to establish a protocol to reduce the risk of healthcare and social welfare workers infecting people whose lives and health are fragile.
It is therefore legitimate to require testing or proof of vaccination or recovery because that impacts the sustainability of the healthcare and social welfare systems, the court added.
Decision on testing in public sector to be made later
The court said it will decide on the constitutionality of mandatory testing in the public and government sectors later on after receiving the government’s position on the matter.
