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Covid passes or certificates: protection of fundamental rights and legal implications

Doc. 15309: compendium of written amendments | Doc. 15309 | 21/06/2021 | Final version

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ADraft Resolution

1The socio-economic cost of Covid-19-related restrictions continues to be huge and the political pressure to limit and withdraw them is real and understandable. At the same time, the sanitary situation remains very precarious – Covid-19 is still a disease that could easily run out of control, causing further widespread sickness and death. In this respect, the Parliamentary Assembly recalls its Resolution 2338 (2020) “The impact of the Covid-19 pandemic on human rights and the rule of law”, in which it recalled that “the positive obligations under the European Convention on Human Rights (ETS No. 5, “the Convention”) require States to take measures to protect the life and health of their populations”. Furthermore, sustainable socio-economic recovery will only be possible once the disease is durably under control. Vaccination will be an essential public health measure for achieving this, but insufficient by itself.
2Numerous European States have shown a desire to introduce a system of Covid pass or certificate, which would constitute official documentation of an individual’s having been vaccinated against Covid-19, having recovered from Covid-19, and/ or of having tested negative for SARS-CoV-2 infection. Certification of vaccination status has legitimate and valuable medical uses. The use of Covid passes to allow the resumption of enjoyment of certain rights or freedoms, by partially lifting restrictions, is fraught with legal and human rights complications, and above all depends on a high degree of certainty about medical risks.
3Vaccination and recovery from past infection may well reduce the risk of transmission, but the extent and duration of this effect are currently uncertain. Furthermore, different vaccines and vaccination regimes may vary in their effectiveness at reducing transmission risk, and vary in their effectiveness against SARS-CoV-2 variants. A negative test result is only indicative of a historical situation, which can change at any moment after the sample is taken. These differences are relevant to whether specific use cases of Covid passes are medically justified and non-discriminatory.
4If Covid passes are used as a basis for preferential treatment, they may have an impact on protected rights and freedoms. Such preferential treatment may amount to unlawful discrimination within the meaning of Article 14 of the Convention if it does not have an objective and reasonable justification. This requires that the relevant measure pursues a legitimate aim, and is proportionate. Proportionality requires a fair balance between protecting the interests of the community (the legitimate aim) and respect for the rights and freedoms of the individual.
5Discrimination may be due to either treating people differently on the basis of an irrelevant distinction, or treating in the same way people who are different in relevant ways. Whether or not a Covid pass reflects a relevant distinction depends on the extent to which the specific medical status that it represents implies a significant difference in the risk of the holder transmitting the SARS-CoV-2 virus to others. A significantly lower risk of transmission may also imply that restrictions on rights and freedoms are no longer justified for the individual concerned, regardless of the situation of others.
6The extent to which a justification for differential treatment is objective and reasonable depends on the nature of the right or freedom in question and the severity of the interference. National authorities should carefully distinguish between different use cases for Covid passes on the basis of the rights and freedoms affected, and the duration of the exemption from restrictions that the pass allows. Similarly, should private actors be able (or even obliged by law) to require presentation of a Covid pass before serving customers, careful distinction should be drawn between essential and non-essential goods and services. The duration of differential treatment based on Covid passes may also be relevant to whether it is proportionate.
7The assessment of the risk of transmission should take account of the specific context to which holders of a Covid pass would be admitted, including whether they will come into contact with people who have no immunity against Covid-19, and whether variants of the virus, especially those that are more easily transmissible or may be vaccine-resistant, are locally present.

In the draft resolution, paragraph 7, after the words “who have no immunity against Covid-19” insert the following words:

", whether those people are at a higher risk of severe illness or death from the illness,"

In the draft resolution, paragraph 7, after the words “are locally present”, insert the following words:

"or could be introduced by the holder."

8Until clear and well-established scientific evidence exists, it may be discriminatory to lift restrictions for those who have been vaccinated whilst maintaining them for those who have not. The only ground for distinguishing between the two groups would be the basis on which vaccination had been targeted. But this basis alone – most commonly, vulnerability to Covid-19 – may not be relevant to lifting restrictions intended to halt transmission of the disease.
9Even should the scientific evidence be sufficient to justify preferential treatment of holders of Covid passes, there may be valid public policy reasons for not using them. Their use may undermine the fundamental link between human rights, responsibility, and solidarity, which is essential in the management of health risks. Expenditure on a Covid pass system may divert scarce resources away from other measures that could reopen society more quickly for everyone. This would be especially harmful if the ‘window of opportunity’ was relatively short between there being sufficient scientific evidence to justify the use of Covid passes, and the total number of vaccinated being high enough to relax restrictions generally.
10If the consequences of refusing vaccination – including continuing restrictions on the enjoyment of freedoms, and stigmatisation – are so severe as to remove the element of choice from the decision, vaccination may become tantamount to compulsory. This may lead to a violation of protected rights, and/ or be discriminatory. The Assembly recalls its Resolution 2361 (2020) “Covid-19 vaccines: ethical, legal and practical considerations”, in which it called on member States 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”. Any indirect undue pressure on people who are unable or unwilling to be vaccinated may be mitigated if Covid passes are available on grounds other than vaccination.
11A Covid pass would be based on sensitive personal medical information that should be subject to strict data protection standards. These include having a clear basis in law, which is relevant also to the acceptability of measures that may restrict rights or lead to potentially discriminatory treatment.
12The Assembly recalls the information document on “Protection of human rights and the ‘vaccine pass”’ issued by the Secretary General of the Council of Europe, the “Statement on human rights considerations relevant to ‘vaccine pass’ and similar documents” issued by the Council of Europe Committee on Bioethics (DH-BIO) and the “Statement on Covid-19 vaccination, attestations and data protection” issued by the Council of Europe Consultative Committee of the Convention for the protection of individuals with regard to automatic processing of personal data (T-PD).
13The Assembly therefore calls on the member States of the Council of Europe to:
13.1continue implementing the full range of public health measures needed to bring Covid-19 durably under control, in accordance with their positive obligations under the European Convention on Human Rights;

In the draft resolution, at the end of paragraph 13.1, insert the following words:

", and institute Covid pass regimes only when clear and well-established scientific evidence exists that such regimes lower the risk of transmission of the SARS-CoV-2 virus to an acceptable level from a public health point of view;"

13.2take full account of the latest evidence and expert advice, in particular from the World Health Organization (WHO), when implementing measures such as Covid passes that involve relaxation of restrictions intended to prevent the spread of the SARS-CoV-2 virus;
13.3ensure that measures such as Covid passes that exempt their holders from certain restrictions on protected rights and freedoms are applied in such a way as to maintain effective protection against the spread of the SARS-CoV-2 virus and avoid discrimination, in particular by ensuring that:
13.3.1vaccination is available to everyone equally, and if it is not, that there is an objective and reasonable justification, which should not include ability to pay, for prioritising certain groups over others;

In the draft resolution, paragraph 13.3.1, replace the words "ability to pay" with the following words:

"gender, race, religion, legal or socio-economic status, ability to pay, location and other factors that often contribute to inequities within the population"

13.3.2different categories of Covid passes are available to groups of people with different characteristics that are proven to reduce their risk of transmitting the SARS-CoV-2 virus;
13.3.3the availability of Covid passes based on recent negative tests is not limited to those with the ability to pay, on account of tests being unduly expensive;
13.3.4the extent to which the holders of different categories of Covid pass are exempted from restrictions is consistent with the extent to which the risk of their transmitting the SARS-CoV-2 virus is reduced, and due account is taken of the current epidemiological situation in the country concerned;
13.3.5due account is taken of the fundamental difference in medical status between people who have acquired immunity through vaccination or recovery from infection on the one hand, and people who have recently tested negative for infection on the other, and of the resulting difference in transmission risk between these two groups;
13.3.6due account is taken of the relative effectiveness of immunity acquired through vaccination or recovery from infection, and the relative effectiveness of different vaccines and vaccination regimes, in preventing transmission of SARS-CoV-2, including variants;
13.3.7due account is taken of the relative transmission risks involved in different activities that might be permitted for holders of Covid passes, especially where they may come into contact with people who have not acquired immunity through vaccination or prior infection;

In the draft resolution, at the end of paragraph 13.3.7, insert the following words:

"and whether those people are at a higher risk of severe illness or death from the illness;"

13.3.8due account is taken of the situation of those who for medical reasons cannot, or, for reasons of personal opinion or belief, decline to be vaccinated; as regards the latter group, that any system of Covid pass does not become tantamount to coercion and effectively make vaccination compulsory;
13.3.9Covid passes are available in both digital format and on paper;
13.4ensure that any system of Covid pass has a clear basis in law;
13.5ensure that any Covid pass system complies fully with Council of Europe standards on data protection and privacy, notably those of the European Convention on Human Rights and the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data and its amending Protocol (ETS No. 108 and CETS No. 223, “Conventions 108 and 108+”), and give preference to systems involving decentralised data storage;
13.6ensure that appropriate measures are taken to prevent counterfeiting or other criminal abuse of Covid passes, in accordance with the standards set out in the Council of Europe Convention on the counterfeiting of medical products and similar crimes involving threats to public health (CETS No. 211, “Medicrime Convention”) and the Council of Europe Convention on Cybercrime (ETS No. 185, “Budapest Convention”);
13.7ensure that any system of Covid passes is strictly limited in application and duration to the needs of the Covid-19 public health emergency, and the infrastructure involved is not repurposed for other aims without prior democratic scrutiny and effective legal oversight.