Greece, Council of State – 1st Department, 10 May 2021 ΣτΕ 622/2021

Identification of the case

• Right to the integrity of the person (art. 3 CFREU)

• Arts. 2, 5, 9A, 21, 25 Greek Constitution
• Arts. 285, 286, 932 Civil Code and arts. 105, 106 Introductory Law of Civil Code
• Presidential Decrees 200/1998, 201/1998
• Arts. 11, 12 Law 3418/2005
• Law 2101/1992

Summary of the case

The applicant submitted the review application of decision 451/2015 (Administrative Court of Appeal of Athens) as the sole heiress of her daughter, against the Greek State and the Municipality of X. In her action before the Court of 1st Instance, she argued that the compulsory vaccination of her daughter with the “MMR” vaccine did not protect her but gave her measles, which rapidly led to the incurable “Van Bogaert” disease, resulting in her death. The lawsuit alleged that the Greek State and the Municipality of X., in whose clinics the vaccination took place, were responsible under: Articles 105, 106 of the Introductory Law of Civil Code, due to illegal acts of their organs and, in particular, contrary to the Constitution, the ECHR and to the Code of Medical Ethics regarding obligatory vaccination, without parental consent, in order for students to receive a study certificate from primary school and due to the violation of the Constitution, the CFREU and the International Convention on the Rights of the Child, regarding their omission to establish a legal system for compensation for injury or death pursuant to vaccination. Furthermore, on the secondary basis of the action, the appellant supported her daughter’s claim for State liability for moral damages arising from her vaccination, which supervened the limits of sacrifice. The Administrative Court of 1st Instance accepted the applicant’s secondary basis and adjudicated compensation for moral damage. On appeal, however, the Court rejected the applicant’s action because the State’s acts were not illegal.

• Administrative judicial enforcement

The Court accepted the applicant’s action regarding the restitution of her moral damage from a lawful act. Therefore, it asked the Court of Appeal of Athens to review its decision accordingly. It also imposed on the defendants the payment of the court costs of the appellant.

The Council of State accepted the review request on the basis that there was no case law regarding deaths or harm caused by obligatory vaccination to that date. Thus, the current legal framework and the relevant legal bases had to be examined. The Court recognised from the beginning that every citizen has the rights to their health protection as part of their personality, including the right to demand that the State refrain from acts than may affect their health. At the same time, it underlined the State’s duty to guarantee such protection and ensure the provision of health services. However, the aforementioned right can be subjected to limitations when it comes to biomedical operations for public health reasons, as long as the proportionality principle is respected. Consequently, even though obligatory vaccination is a serious interference with personality and private life rights, it is constitutionally acceptable when it is based on scientific data and provides an exception framework. Therefore, the specific vaccination was considered necessary, appropriate and proportionate for public health. The Court also accepted the Court of Appeal’s balance between the protection of public health and the possibility of rare apparition of diseases such as that in the case. More specifically, it argued that the State’s obligation to take positive measures to protect public health, arising from art. 21(3) of the Greek Constitution, can justify restrictions of individuals’ health rights on the grounds of proportionality. What is more, if harm is caused to somebody as a result of a legal act or omission, the State’s responsibility can still arise. The basis of such responsibility can be found in the principle of social solidarity that provides for reparation of both material and moral damage of the victim. This is because, in these cases, the damage caused by the vaccination constitutes an excessive sacrifice for the victim (damage to health and insult to personality), for the benefit of society as a whole. Furthermore, the Court rejected the applicant’s argument that the State is acting unlawfully because it omitted having a special vaccines compensation mechanism. More specifically, it agreed that the Constitution contains guiding principles, addressed to the common legislator for social policy measures, including the field of citizens’ health. Nevertheless, from these principles there is no obligation to provide special protection for the rare and exceptional cases of physical harm caused by vaccination. Finally, the Court accepted the applicant’s claim for compensation based on the State’s responsibility for a lawful act that supervenes an individual’s sacrifice.

Role of the Charter and role of the general principles on enforcement

The Charter served as one of the legal bases of the applicant when determining her rights before the Court. More specifically, she recalled art. 3 CFREU, in order to support that the recognised right to health can serve as the basis for the creation of a special compensation mechanism from damages caused by vaccines. Going a step further she compared Greece to Germany, where there exists a specific organisation for such claims. As a result, the State’s omission to have a relevant system was argued to be proved unlawful, as the State was not complying with its international obligations. On the other hand, the Court did not explicitly mention the aforementioned provision, as it focused more on the Constitutional provisions referring to health rights.

• Proportionality

The Court also examined the proportionality principle in order to conclude to its reasoning. More specifically, it underlined the importance of the principle when establishing restrictions on rights, so as for them to be harmonised with constitutional demands. More specifically, the Court was called to balance personality and private life rights, including the right to decide upon medical operations, with the right to public health, when it comes to obligatory vaccination. From its reasoning, it appears that the Court assumed the imposition of compulsory vaccines to be an acceptable restriction of individual rights. The principle of proportionality was also used by the Court in order to compare its obligation to protect public health and to protect individuals from rare diseases arising from vaccines. Once again, the Court prioritised public health protection, especially taking into account the rare character of MMR vaccine implications.

Elements of judicial dialogue

• Dialogue among same level national courts within the same Member State
• Dialogue among national courts of different Member States

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)
• Dialogue between high court - lower instance court at national level

• Solomakhin v. Ukraine [2012] 24429/03
• Memlika v. Greece [2015] 37991/12
• Seyit Baytüre v. Turkey [2012] 3270/09

Citation of foreign domestic judgment; Proportionality.

The Court referred to its own previous decisions in order to support some of its arguments, from the point that some of the issues under investigation had already been solved by the Court in previous cases. However, taking into account that no case law existed solving this particular matter of compensation for lawful acts, the Court also referred to both ECHR cases and foreign national domestic cases in order to support its arguments and to shape a clearer, international opinion on the matter.

The judicial dialogue serves in supporting the Court’s argumentation and it might also be used in relevant future cases for the same reason. No other outcome is expected.

Additional notes on the decision

This case was the first one in Greece to deal with the matter of severe implications from compulsory vaccination. The case is important for two reasons. Firstly, it confirms a recent legal trend in terms of individuals’ compensation by theSstate, that sets aside the condition of an illegal act or omission. That is to say, it establishes a system were compensation results from social solidarity on grounds of personal sacrifice. Secondly, it clearly states that compulsory vaccination is most often a legal and constitutional restriction to individuals’ rights of personality, dignity and private life. This argument is expected to play an important role in Covid-19 litigation.

International Law Sources: Convention on the Rights of the Child [OHCHR 44/25/20-11-1989].