Bojana Guberac
If the pandemic has taught us anything, it is that in Croatia there has never been a stronger distrust in the system and, what is even worse, in the profession. We are used to have the politicians lie to us or, as it is popular in Croatia lately to say, to tell untruths. But it is very worrying that a good part of the citizens of Croatia have classified the many experts among the "servants of evil" who are here to introduce a new fascism to use.
The experts became charlatans overnight
In this whole mess about the p(l)andemic, even that eternal division into left and right has been lost. Legal and medical experts have become colored by a single color - that of fascism, in the minds of many people. Overnight, they lost their authority, knowledge and identity and allied themselves with Bill Gates against their own people, and even against all the peoples of the world, in the most hellish plan ever - to rob us of our freedom and to turn us into slaves. Sounds crazy? Well, such a theory is exactly what is needed to the people who do not have developed a critical consciousness to realize that there is something they do not know and that someone knows better than them. The authorities are here to be reconsidered, but to think that, simply because one has access to the Internet and thus assume that one knows more about the topic than the person who was studying about it is simply - stupid. We know that a diploma does not always mean knowledge, but it is hardly the case with every person who has obtained a diploma.
What is also evident is the fact that the society is easy in using words that it does not understand. We, of course, always have the right to think, no one can forbid us to do that, but we cannot change what specific legal concepts and laws represent. In order to try to shed light on the legal misinformation circulating in the public space, I spoke with Professor Sanja Barić, Head of the Department of Constitutional Law at the Faculty of Law in Rijeka.
Discrimination or stateright?
Prime Minister Andrej Plenković recently stated that vaccination against coronavirus would be a condition for obtaining subsidies for preserving jobs, which caused a general chase against the Prime Minister by the entrepreneurs.
"There is absolutely no chance that something like this will be implemented, because it is contrary not only to common sense, but also to the Constitution and legal practice of the European Union, including Resolution 2361 adopted by the EU this year, which prohibits any discrimination based on vaccination, was the statement of Dražen Oreščanin, Executive Director of the Voice of Entrepreneurs Association, given for for Leader. Hrvoje Bujas, president of the Voice of Entrepreneurs Association, believes that such conditioning is discrimination. "Coronavirus vaccination in Croatia is not mandatory and if the prime minister intended to link the payment of benefits to vaccination of employees, it is pure discrimination," he said for Jutarnji list and also said that he would file a lawsuit against the state for discrimination with the anti-pandemic measures so far.
Source: lider.media
But the question is whether there is a constitutional problem with the introduction of vaccination as a condition for granting aid for the preservation of jobs?
At the beginning of our conversation, Sanja Barić points out that one thing is the possibility of legal regulation, and quite another is the choice of the right tactics in order to achieve the objective. "Achieving the objective is conditioned by understanding the psychological and sociological reasons for refusing vaccination. Personally, I think that this crisis has not been managed well enough and that a feeling of distrust in the government has been created, and that distrust has nothing to do with the vaccine. It is a-priori. And that is bad. It is precisely this conversation of ours that aims to shed light on some of these dilemmas. Let's go, in the following order – imposing the requirement to have COVID certificate as a condition for granting aid is not unconstitutional and it does not it constitute discrimination in legal terms. What is important to note is that the state has not only the right but also the obligation to protect the health of its citizens. The state aid process is as follows – the entrepreneurs do their business. In accordance with the Croatian Constitution and international standards, the entrepreneurship activity can be limited, among other things, for protection of the health”, says Barić.
She explains that the restriction of the business activities leads to a loss in business, or even threatens the survival of the business. The state then, she says, introduces measures to remedy such a loss to a certain extent, tries to preserve jobs and the entrepreneurial activity. Barić states that the subsidies come from the state budget, that is, from the money all of us is paying. In the meantime, a more effective means of health protection has been found - a vaccine, which the state also procured from the state budget. With our money, not Andrej Plenković's money.
"Every entrepreneurial activity can be continued with vaccination and there is no need for subsidies. Those who are not vaccinated and have no justifiable medical reason for doing so (suffering from COVID or the risk to develop certain diseases due to personal or family history) are, in fact, asking for a double allocation of money for health protection: they do not want to be vaccinated, but want support. This is incompatible with the idea of solidarity of the society in which we live and the idea of constitutional rule. To conclude, linking aid to vaccination is not only unconstitutional, but it could almost be considered the opposite: where granting of aid, in a situation where we have other means, is unacceptable, "said Barić.
She adds that it is necessary to emphasize that the vaccination is not conditioned. "Only if you have a business loss of over 40 percent, that it is an activity affected by the measures, that it saves jobs - only then you have the right to receive help from all of us (the state, but all of us through the state budget) in a form of subsidies. And if you didn't take part in the effort to stop this disease (get vaccinated for free), we simply cannot help you as a worker. That must be quite clear and indisputable. It does not mean that you will be fired, but if you do not participate, you cannot ask us to help you. "
"Bloating" with definitions that are impossible to understand
Barić states that accusing the government of discrimination means "bloating" with definitions from the legal profession that are impossible to understand. According to the Anti-Discrimination Law, discrimination is putting at a disadvantage a persons who possess a certain characteristic, but which is not relevant to a certain service, job and situation. The Constitution of the Republic of Croatia, on the other hand, states, in Article 50, that entrepreneurial freedom and property rights may be restricted by law in order to protect human health. It should be noted that this refers to the existing laws.
"For example, if you hold a diploma from a faculty of law, you cannot work as a doctor because you need to finalize those studies. However, if you graduated from faculty and law and they do not want to hire you because you are a woman (who will potentially be a mother, so the employer does not want to spend extra on you), or because you are a Greek Catholic, or because you are a member of a political party, that is discrimination because all these things must not be taken into account in the hiring process. In this case, as I explained above, you do not actually have any inherent right to assistance. It is the grace of the state that, of course, helps you because you have been asked to make a sacrifice (non performing of activity) in order to protect all of us. And let us emphasize: it is not some abstract state, it is the state budget and the money of all of us. We are actually all together helping you who could not work to protect us. But now we have a vaccine and, sorry but you have to understand that, only you decide whether you want to take part in a joint effort to stop the vaccination. In that case, we no longer have an obligation to assist you. We, the people as a whole, the state budget, and not a bad state, have no obligation to bear the costs of your irrationality", explains the constitutional law expert, for whom it is important to emphasize that she is not a player of the Prime Minister Plenković.
EU Resolution the citizens refer to
According to EU Resolution 2361 adopted in January, no one should be discriminated or pressured to get vaccinated. In that case, is this statement violated by making vaccination condition for awarding subsidies, and would it be violated with a ban on entering, for example, a theater without a COVID certificate?
“The COVID certificate is issued not only to those who are vaccinated, but also to those who have recovered from COVID. Those who cannot be vaccinated for medical reasons, nor do we expect them to be vaccinated, are protected by us, everyone else, who is allowed to do so. I repeat, receiving subsidies is not a right, but an expression of solidarity, in a joint effort against this disease. One cannot be discriminated against if one does not want to participate in a joint effort. A ban on entering public events, theater performances, concerts, etc., and even a possible future ban on entering the premises of public institutions or institutions where public service is performed (e.g. hospital, school, faculty, state administration office, etc.) would be discriminatory if it also provided for the possibility of attending or entering with a test. Very simple: you either recovered from it, or get vaccinated, and if you cannot get vaccinated or you do not want to get vaccinated, you will be tested every few days. However, it would be worthwhile to provide free testing for those who have medical reasons not to get vaccinated", says Barić.
Furthermore, Barić explains that Resolution 2361 of the Parliamentary Assembly of the Council of Europe has only political, but not legal weight. "It is a so-called ´soft law´ mechanism, recommendation, not ´hard law´ mechanism, not lawsuit. However, it is even more important to say the following: three months after this Resolution, the European Court of Human Rights in Strasbourg, which is the highest court for protection of human rights and one of the bodies of the Council of Europe (the same organization that adopted this Resolution), has adopted a ruling in the case of Vavrička et al. v. the Czech Republic, in which it is said that it was allowed to introduce a vaccine requirement and to prescribe financial penalties for parents, including exclusion of an unvaccinated child from pre-school institutions."
Is there a legal basis to make vaccination against Covid 19 mandatory?
Although the Prime Minister recently stated that they cannot introduce mandatory vaccination, Professor Barić says that, legally speaking, it is possible for vaccination to be mandatory. "The relevant legal provision needs to be amended and add the obligation to get vaccinated. So, it does not exist at the moment, but it can be introduced at any time. This requires a decision of the Parliament in a form of law or amendments to the law. I would also like to emphasize that a majority is needed for adoption of such a provision, but not a two-thirds majority of the members of the Parliament. A two-thirds majority is certainly desirable in terms of legitimacy, but not constitutionally necessary", said Barić.
In that regard, the prime minister accused of fascism may introduce mandatory vaccination, but he is not doing it. It does not occur to me to defend Plenković or his government, and especially the crisis headquarters, because, since the beginning of the pandemic, we have all witnessed numerous illogicalities, double standards and scandals, but that is not the topic of this text. I am interested in facts. Like it or not, Andrej Plenković is in power and has the power to make decisions based on the law and Constitution of the Republic of Croatia. We have been living in a schizophrenic situation for some time, but let’s be honest, with very mild measures and restrictions. Nevertheless, our society that is already deeply divided is being destroyed by the latest divisions into vaccinated and unvaccinated, so it certainly does not help to spread legal misinformation and fear in the society that the government is "pushing" fascism under the framework of freedom of speech.
In order to avoid such a scenario, prompt education of citizens is needed in order to expose misinformation, in which experts will be included who care about the people, regardless of their view on the world, and strongly encourage media and political literacy. I am afraid that Andrej Plenković is not aware that this is currently the most important step that his government must take.
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Note: The views and opinions expressed in this article are those of the author and do not necessarily reflect the views of the Institute of Communication Studies or the donor.
