Covid passes or certificates: protection of fundamental rights and legal implications
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly
debate on 22 June 2021 (17th sitting) (see Doc. 15309, report of the Committee on Legal Affairs and Human
Rights, rapporteur: Mr Damien Cottier; and Doc. 15323, opinion of the Committee on Social Affairs, Health
and Sustainable Development, rapporteur: Ms Carmen Leyte). Text adopted by the Assembly on
22 June 2021 (17th sitting).
1. The 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 health situation remains very precarious: Covid-19 is
still a disease that could easily get 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 stated that “[t]he 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 it will be insufficient by itself.
2. Numerous European States have shown a desire to introduce
a system of Covid “passes” or certificates, 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 the SARS-CoV-2 virus. 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.
3. Vaccination 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 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.
4. If 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.
5. Discrimination may be due either to treating people differently
on the basis of an irrelevant distinction, or to 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.
6. The 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.
7. The 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, whether those people are
at a higher risk of severe illness or death from the illness, and
whether variants of the virus, especially those that are more easily
transmissible or may be vaccine-resistant, are locally present,
or could be introduced by the pass holder.
8. Until 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.
9. Even 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” were relatively
short between there being sufficient scientific evidence to justify
the use of Covid passes and the total number of vaccinated persons
being high enough to relax restrictions generally.
10. If 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,
it may be tantamount to making vaccination 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 undue indirect pressure on people who
are unable or unwilling to be vaccinated may be mitigated if Covid
passes are available on grounds other than vaccination.
11. A 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.
12. The Assembly recalls the information document “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 “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).
13. The Assembly therefore calls on the member States of the Council
of Europe to:
13.1 continue 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, 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;
13.2 take 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;
13.3 ensure 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:
13.3.1 vaccination is available
to everyone equally, and if it is not, that there is an objective
and reasonable justification, which should not include the ability
to pay or any other ground that could give rise to unlawful discrimination,
for prioritising certain groups over others;
13.3.2 different 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;
13.3.3 the 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;
13.3.4 the 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;
13.3.5 due 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;
13.3.6 due 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 the SARS-CoV-2 virus, including
its variants;
13.3.7 due 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
and whether those people are at a higher risk of severe illness
or death from the illness;
13.3.8 due account is taken of the situation of those who, for
medical reasons, cannot be vaccinated or who, for reasons of personal
opinion or belief, decline to be vaccinated; as regards the latter
group, member States should ensure that any Covid pass system does
not become tantamount to coercion and effectively make vaccination
compulsory;
13.3.9 Covid passes are available in both digital and paper formats;
13.4 ensure that any system of Covid passes has a clear basis
in law;
13.5 ensure 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;
13.6 ensure 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”);
13.7 ensure that any system of Covid passes is strictly limited
in application and duration to the needs related to the Covid-19
public health emergency, and that the infrastructure involved is
not repurposed for other aims without prior democratic scrutiny
and effective legal oversight.
