The Protector of Citizens, Zoran Pašalić, was a guest in the morning show "Uranak" on TV K1.
Here is a topic that is on the front pages of all newspapers today. The European Court of Human Rights passed a verdict stating that compulsory vaccination is legal and necessary in democratic societies. Have those who were supposed to suppress discrimination passed a discriminatory act? Where is the right to freedom of choice? And can such a decision of the European Court of Human Rights influence some decisions of Serbia in the future? What might happen, will something change, even though it is not mandatory for now? I will talk about that with Zoran Pašalić, the Protector of Citizens. Good morning! Three steps. The law says that in case of an epidemic, emergency immunization can be ordered within the framework of our acts. Covid 19 is not mentioned to the letter, but that is not an obstacle. What do you say? What does this verdict tell us?
Let’s clarify the verdict first. The verdict does not apply to Covid--19 at all, but to the obligation to vaccinate children in the Czech Republic, where one parent and several children at the time, in 2010, 2011 and I think 2012, filed a lawsuit to the Strasbourg court because their parents had to pay a fine because they did not vaccinate their children and they were forbidden to go to kindergartens, i.e. to use the services of kindergartens. And the court in Strasbourg passed a verdict where it said that there was no basis for that lawsuit, referring to Article 8 of the European Convention on Human Rights. Article 8 of the European Convention on Human Rights refers to the protection of rights, private life, family, home and correspondence, in paragraph 1. Paragraph 2 deals with exceptions to this right. So, situations when the right can be limited, and that which is common in this type of explanation, that is, some norms. It mentions the case of an emergency and the case when there is a danger to human health. But bear in mind, Article 8 says, and refers, as I said, to the right to privacy, family life, home and correspondence.
What do you want to emphasize?
I want to emphasize that there is also another convention. Convention that refers to human rights in the field of biomedicine. We have accepted that convention, so to speak, popularly. And as far as I remember, it was also published in issue 12 of the Official Gazette from 2010. It says in Article 2 that it is...
You are deliberately delaying now, and I can’t wait to hear what is in Article 2.
The people are smart, the citizens are smart and they will decide for themselves. Let me tell you, it is said that interest, but bear in mind, interest, and what could be called the right of human beings, is more predominant and significant than the interest of society and science.
That goes without saying. So, when you say interest, it is interest that is mentioned in the convention that deals with the so-called health, or biomedicine. So, the interest of the individual is most important here. Then you have Article 5 which says that for every procedure in the field of health, the consent of the person on whom the procedure is performed must be obtained in advance. And before the consent, he must be warned, that is, informed about what type of intervention it is going to be. Paragraph 3 of the same article states that consent may be withdrawn at any time. That is as far as these regulations are concerned. Then we have Article 14 of the same convention which the European Court of Human Rights draws from, from Article 8, which says that discrimination on any grounds is prohibited. I will not quote our regulations now.
And on the grounds of vaccination.
I will not quote our regulations for the reason that the conventions are older than the national legislation. So, what I said about Article 2 means that the interest of human beings is predominant over the interest of society and science. I think that's clear. I don't know if what I said is clear to you.
Based on what you said, I would understand that this verdict is not good.
Let me tell you one thing. And please, I really want people to just think for themselves. That there are no axioms, mantras and polar bears, which are certain attitudes of certain institutions. Think, people, for yourselves.
Wait, how can these people think for themselves if the court has passed a verdict. They went to court. It passed such a verdict and how can citizens think for themselves now? They must respect that decision.
Well, read the convention by which the court judges.
Can they complain now? What comes after this? Nothing? This verdict was passed now at the time of the pandemic.
That's right. And then everyone identified it with the vaccination.
We did. And do you think that was a mistake?
It does not apply to that. It refers to what I told you. To those 9 vaccines, 9 or 10, that are used to vaccinate children when enrolling in kindergartens, schools.
And it can relate to this vaccine as well, everyone is writing about it now.
I have not read that. They probably equate that. Well, there are decisions of the European Court that I have debated on as well. One of them is the Maresti against the state of Croatia, which made the legal system…
Here you are (shows an article from a daily newspaper).
I didn't have time to look.
(The presenter reads the title) The vaccine may be mandatory.
I said that?
There is your picture here. I don't know if you said that, but that's the title.
You see, what’s important to emphasize, what I started with, and that is, court decisions are court decisions. Final, executive, in principle, they get executed, as their name says. But we are not talking about the Strasbourg court, we’re talking about domicile judiciary. But the thing is, they're not "holy cows". You can talk about them and have a second opinion. At least I've always done that and I think that's the way it is.
To whom should we give a second opinion?
Well, you give a second opinion. You send a letter to the court in Strasbourg with your opinion and argue as people will argue if they are interested in this topic.
Do you think it would change anything?
I don't believe it, but we have to say our opinions.
And tell me, does this verdict mean that we in Serbia do not discriminate? Why do we make a topic out of it? We are now interested in ourselves in the whole story. We are interested in the pandemic, the vaccine against the corona, and we are primarily interested in whether that means, since in our country children also receive vaccines and they are obligatory, that they won’t be able to enroll in kindergartens or schools without the vaccine. Does that mean it's not discrimination? Can it be as it is said here?
I quote to you how this is resolved in the European Convention, in Article 14. So, discrimination on any grounds is prohibited.
So, children shouldn’t be forbidden that here.
The Law on Prohibition of Discrimination, I think in Article 2, says that it is simply not allowed to make any distinction, on any grounds. That is the definition, that Article 2 refers to the definition of discrimination.
But it is different in practice.
That is why there is not only my institution, but also a commissioner for the protection against discrimination, and a number of institutions that deal precisely with protecting citizens from possible discrimination.
And what do you say? Has anyone come to you to ask you, e.g., whether their rights, whether their children are discriminated against if they received the vaccine?
No one has come. You see, what comes to the institution of the Protector of Citizens is a huge range of topics. Really huge range. I wish I could tell you about all the things that we do and that we did during the state of emergency, even during the pandemic.
And what do they say?
It mainly refers to what could be called the basic problem, that which is the source of all problems, and that is a certain economic situation. For example, your job. When journalists complain to us, when they come, they complain about their economic status, non-permanent contracts, small fees, etc. Then we switch from labor relations to the job and the rights, and not only of those who work for someone, but also of the owners of certain businesses. Basically, it’s all about the money, so to speak.
How much has the number of complaints increased since the beginning of the pandemic?
The number of citizens' addresses has increased about ten times. Depending on the phase, as I have said many times, the character of the complaints is not always the same. In the first part or at the beginning of the crisis, people wondered how to return to Serbia when they had obstacles passing through various countries, in terms of mandatory quarantine, etc. Then came the ban on movement at certain times, and certain groups were banned from moving, so that was really a big problem. Because, for example, there are parents who, according to a court ruling, have the right to see their children, because they are divorced, only on Saturdays and Sundays, and if movement is prohibited, how can they see them? Also, unfortunately, we are a land of old people. How can someone who needs to ask others for help and care, either members of their family, or others, how can that person get that help if he or she can't move? We have solved all that and I would not like this to have a political connotation. We really had a lot of help from the Government of the RS in all that and in correcting some of the regulations. Then there is the status of people who are employed, the work from home, the right to annual leave, the right to forced leave, or the obligation to take forced leave. There were many, many topics.
All right, but money isn’t currently the main topic, it’s the vaccination.
Because it is a current topic not only in Serbia, but all over the world.
Yes. In Italy, the Decree on the obligatory vaccination of health workers, pharmacists and staff in nursing homes has entered into force. And now we have stories that it would be good for such a decision to be made in Serbia as well. What do you think about that decision?
When it arrives to Serbia, I will argue about it. I have no jurisdiction in Italy.
You won't tell me anything.
I'm telling you everything, but I don't know what you expect.
I expect you to tell me whether compulsory vaccination can be introduced in our country now? People who do not want to be vaccinated will tell you "that is not okay, I would like to have the right to decide whether I will get vaccinated or die, or whether I will get the corona or not".
Well, any decision can be made.
Okay, but is that against my rights?
Is it against your rights or is it a matter of protecting some overriding interest?
There, you said it better, higher interest. If it comes to that, the institution of the Protector of Citizens will be ready to react.
By, as I quoted at the beginning of our meeting, referring to the domicile laws, or valid laws in the Republic of Serbia, the Constitution of the Republic of Serbia and the European conventions that we ratified, and we ratified all of them. And then we will give our position. And then we will fight for the protection of human rights.
And isn't that the mentioned higher interest? It somehow seems to me that everything happens for a reason, that we are spinning in circles.
You are right.
And how do we decide which is older, the chicken or the egg?
Let me tell you. For example, you have Article 2 of that same convention that talks about the right to life. You will agree that the right to life is inviolable. No one can take your life. Earlier, there was the death penalty, which was imposed in cases where everything was done according to the law, that is, a final verdict was pronounced and all possible legal remedies were used. That doesn't exist now, and I won't argue about that. But there is this paragraph 2, item 3, that says that the state can, and I am sorry, I don't want to be misunderstood, according to law, it can prevent rebellion and riots. So, it can go against someone's life, one person or a group of people. So, there are those general norms that protect, as you say, higher interests, but as I told you, there is also this Article 2 where it says that interest is...
I will repeat, that the interest and well-being of human beings is more predominant or higher, more important, than the interest of society or science.
And then I can tell you, okay, but my interest and right to life means that I do not want to die from corona. And if vaccination is not mandatory, many will not be vaccinated and may be able to pass on the corona to me. Or we won't be able to work, the economy will stop because of the unvaccinated, I won't have bread to eat, I will die of hunger or whatever. Is it the same, can the other side say that their right to life is actually that, that law applies to them? Can we all say that?
You see, everyone can say both.
Well, who will win?
Well, that’s a great question.
Whose side are you representing?
I will always defend human rights. And how will I defend them is the essence. Based on the existing norm. When I came to the Institution, I said: I will resent someone for sure and I resented many.
Both these and those.
You always have to resent some people. Less often the others. In principle, it’s a conflict of interests.
And who would you turn to?
Just a moment. A question arises when you resent someone, how do you defend yourself? I defend myself only by law. If it is written as it is written and if the court rules as it rules, or the Constitutional Court takes a position, the Protector of Citizens will also take his position, which is not binding by law. But he will defend his interests. What interests? The interests, primarily, of the individual, because the individual makes up society. We are a collection of individuals. Do you agree?
And what is most difficult for the Protector of Citizens, is when you need to conflict the interest of an individual with the system and defend it, when that person, that citizen is right and when the whole system is falling down on him. Whether that will be the case in this situation, we'll see.
I now have to ask you about two situations. The first, let’s say that they introduced mandatory vaccination. And I don’t want to get vaccinated, I think that it is a threat to my right to choose, and that who knows what that vaccine may bring me. And I come to you and say, please protect my rights. What should I do? I think I have been discriminated against. They told me that vaccination is mandatory. If I don't get vaccinated, I won't be able to do this and that. What should I do?
Well, it would be easiest for me to say...
Whose side are you on?
Just a moment. To say, you know what, dear madam, since you mentioned the word discrimination, you have the institution that deals with that, and that is the Commissioner for Protection against Discrimination. Please be kind and go to her. I will not say that though, let me tell you right away, because I will do what I am obliged to do, because there is a rule that says, where you can do more, you can also do less. Given that the Protector of Citizens is an institution determined by the Constitution, Article 138, I think, it means that it is the first in the area of protection of human rights, so I will take over this case.
What does that mean?
And I will see if there is concrete discrimination, I will order the one who discriminates against you to stop discriminating.
But what does that mean? That they will tell me that I am the only one who doesn’t have to get vaccinated?
To tell you to go here, go there, do that, you understand. Now, there is a little problem here...
I knew there was another problem.
There is always a problem. If they are doing this to you on this television, which is a private television, then I would have to go indirectly...
They tell me I can't come to work because I haven't been vaccinated.
That's right. I can't go directly to the television, but I have to go to the Ministry of Labor, that is, the Labor Inspectorate. This is what I want to change in the law. To make it so that I can go directly to the one who is doing that, who is endangering human rights, instead of waiting for an intermediary institution to do it. Do you understand me?
Yes. And what did you say here? (shows a headline in the newspaper)
I didn't say that. It was written by someone.
There's your picture here.
Well, is it a nice picture?
(The presenter reads the article from the newspaper) Pašalić: "A person must give consent for a medical procedure." That's what you also told me now.
I told everyone that. I have been saying that for two days now.
But you didn't tell me one thing, so, having in mind everything that says here, can the echo of this decision be heard and can this maybe be realized in Serbia? And do you think...
You know what usually happens after a statement like that? Usually there are a number of people who say, that man is talking nonsense. And then they take another law, a third law, a convention, and then they start a debate that may or may not be necessary. But I try, really, I could have brought it on paper, read it, or simply quoted the norms. You see, when a law starts to be applied, that includes everything, the conventions, the regulations, etc. So, some legal form exists. And at the same time, the Constitutional Court, if someone addressed it, did not place any reserve on individual articles and on the law, which even if it was the worst, has to be applied until it is changed. The essence of the law is who is the beneficiary or who is the user of the law. Sometimes it is a certain social group, sometimes the whole society, sometimes it goes even wider, into international waters. Another thing that is very important is that the law is not intended for lawyers, let's be clear, but for people who do not have a legal education and to whom everything will be clear when they take the law and read it. They won't have to find a lawyer to explain it to them. And I think what I said is extremely clear. Or, it is simply clear what the one who made it and who accepted it actually wanted.
I understood that it was a wrong decision.
The one from the beginning of the conversation regarding the European Court of Human Rights. Do you want to agree with our introductory sentence, that the ones who should suppress discrimination, actually passed a discriminatory act?
I want to say this – that people should think for themselves, to think for themselves and simply consult literature, and serious, as I would say, information, serious sources of information. When I mean serious, it means something that has been confirmed in practice for many, many years.
Okay, so what should these people now do specifically?
Well, these people that have...
Well, they lost, what can they do?
That means it means nothing to them to think for themselves.
Not true. But there is one, and I like to quote it, a determinant among lawyers – there is no justice, there are only laws.
Okay. Let us end on that. Thank you very much for your time.