Discrimination issues in the context of the national vaccination campaign for SARS-CoV-2 (12 March 2021)
Currently Romania undergoes a vaccination campaign for COVID-19. Vaccination is voluntary; Romania did not adopt any legislation to mandate vaccines - either directly, by imposing an obligation to take the vaccine on all persons, or certain categories of persons, or indirectly, by limiting unvaccinated persons' access to certain activities or spaces. Nor did Romania adopt any generally applicable legal norms to condition the access of persons to social or professional activities on presenting a SARS-CoV-2 test; the only such regulations, administrative in nature, exist in international transportation and sanitary domains.
Vaccination and testing being both medical procedures, they are regulated by the Oviedo Convention, which provides (in Art. 5) that any medical intervention requires the free and informed consent of the person undergoing the intervention. Medical procedures also fall under the remit of the European Convention on Human Rights, which recognizes and protects the right to private life (Art. 8) (which includes the physical integrity of the person, the right to autonomy, the right to self-determination, the right to take decisions regarding one's own body) as well as the freedom of thought, conscience and religion (Art. 9).
According to Art. 53 para (1) of the Constitution of Romania, the exercise of rights and freedoms can only be restricted by law.
Against this background, we note that, according to public information, certain organizations are taking measures to restrict the exercise of rights for persons that do not present proof of vaccination or testing. A recent example is Resolution No. 6/4640/1 March 2021 of the Administrative Board of "Victor Babeș" University of Medicine and Pharmacy, Timișoara, which recommends students who are not vaccinated/immunized continue their studies on-line.
Such measures can qualify as discrimination and can successfully be challenged before the competent fora. We briefly analyze below the legal condition of a discriminatory act and the procedural remedies available to the person who falls victim to discrimination.
To read the entire legal insight, please download the .pdf attached (English and Romanian).