The constitution, the law, the emergency. When Covid enters the cell of the State. Italy vaccine mandate open controversy

Rome, 10 Jan 2022 – The chance to mandate vaccines has been re-introduced with art 32 of Italian Constitution in 2017, after it was ended in the 90s, for a specific reason: the country did not have, a that time, the required 95% pediatric vaccinations needed to reach herd immunity.

Italy is now using this constitutional and legal ground and the declared state of emergency to impose Covid vaccine to all 50 plus. All those not yet jabbed are labelled as ‘no-vax’ and fined 100 to 1.500 euros, unless exempted for relevant health conditions. Also Austria and Greece went for mandatory vaccination.

Compulsory Covid jab is therefore technically legal, but subject to three conditions (as judgment of the Italian Constitutional Court):

1) when [treatment] is aimed not only at improving or preserving the health status of those subjected to it, but also at preserving health of others, since it is precisely this purpose, relating to health as collective interest, to justify the limitation of that self-determination of man which is inherent in everyone’s right to health as a fundamental right;

2) when there’s reason to foresee that the vaccine won’t negatively affect health conditions of the person subjected to it, except for those consequences (e.g. vacccines side effects) which, due to their temporary nature and limited extent, appear normal for any health treatment and, therefore, tolerable”;

3) When in the event of further damage to the health of the person subjected to compulsory treatment, the payment of a fair indemnity in favour of the injured party is envisaged under any circumstances.

The law raises many questions on the extent to which individual freedom and autodetermination can be curbed for the good of the collectivity. The art. 32 of the Italian national constitution makes clear that it’s not enough to make the law in order to impose the vaccine as “the law can’t under any circumstances, violate the limits set by the respect of the human being”.

When, over the last months, Italy mandated vaccine for health workers, constitutional lawyer Sabino Cassese said the measure was perfectly legal as respected the balance of individual/collective interest.

Constitutional lawyer Sabino Cassese interviewed on TV La7 on 25/10/2021

But now that mandate has been extended to all 50+ regardless they work or not and allow suspension from work without pay, the ethical question about whether and when a state can impose a health treatment on an individual for the good of the wider community still applies; and that’s because there’s the chance to impose lockdown for non vaxxed enforceable through green pass or other measures to isolate non-jabbed.

What actually mitigates ethical issues are figures: according to Iss (Istituto Superiore di Sanita’) half of those hospitalised with Covid and two thirds of those in intensive care are non-jabbed. Non vaxxed death rate is 65 in 1000.000 while among jabbed is 7 to 11 in 1000.000.

A year ago (27 January 2021), the Council of Europe (the 47 Member States organisation based in Strasbourg) adopted a resolution on COVID-19 vaccines.

Though non legally binding, the resolution urged the 47 Member States and the EU to “ensure that citizens are informed that the vaccination is NOT mandatory and that no one is under political, social or other pressure to be vaccinated if they do not wish to do so and to ensure that no one is discriminated against for not having been vaccinated, due to possible health risks or not wanting to be vaccinated”.

Mandate is having, anyway, a good result as boosted first jabs; it will take 5 months by the way to vaccinate 2.1mln non vaxxed Italians, meanwhile mandate will end next 15 June 2022.

Unusually silent after the approval of the controversial measure, premier Mario Draghi finally spoke today about the new vaccine mandate after pressure from parliament and part of the media.

After all, likening Italy to right wing populists led countries such as Greece and Austria wasn’t the way forward one expected.