The speakers of the meeting were: Anna Białek (lawyer, CHR Office), Prof. Tomasz Dzieciątkowski (virologist, microbiologist, Medical University of Warsaw) and Prof. Ryszard Piotrowski (constitutionalist, Faculty of Law and Administration, UW). The moderator of the debate was Dr. Maciej Pisz (Vice President of MISO).

The debate focused on presenting legal issues concerning the widely debated mandatory vaccination  in Poland. In his introduction to the discussion, Dr. Maciej Pisz noted that the issue of the legal obligation to vaccinate was polarizing the Polish society very much. Moreover, the moderator stressed that the issue of vaccination is an interdisciplinary issue of interest to lawyers, doctors and politicians, among others. Mandatory vaccination generates a number of questions, including about compliance with the standard of protection of human and civil rights guaranteed by the Polish Constitution or the European Convention for the Protection of Human Rights and Fundamental Freedoms.

During the debate the speakers offered some insights into mandatory vaccination, discussing its compliance with the Polish law, as well as consequences this regulation may bring. Ms. Anna Białek stressed that the CHR’s practice in the context of mandatory vaccination shows two important aspects. First, to ensure that possible solutions involving vaccination are introduced in statutory form, and second, to ensure that the measures introduced are proportional. “On the basis of the Polish law, the introduction of mandatory vaccination is fully permissible, although it should be a solution adopted when other measures prove ineffective,” the speaker remarked.

Prof. Tomasz Dzieciątkowski admitted that ideally most citizens should vaccinate voluntarily, and that the current  approach to COVID-19 proves that the Polish society is under-educated. In the past, there was an obligation to vaccinate in Poland, and it was introduced as one of the first legal aspects in 1919 by the Polish government involving vaccination against the smallpox virus. “Vaccines have become victims of their own success. Many people have forgotten what infectious diseases can look like,” Prof. Dzieciątkowski stressed.

Prof. Ryszard Piotrowski explained that the Constitution implies an obligation to respect European law. The Charter of Fundamental Rights stipulates that in the field of medicine and biology, the informed and voluntary consent of the person concerned expressed in accordance with procedures established by law must be respected. The 2021 resolution of the Parliamentary Assembly of the Council of Europe regulates that vaccination must not be made mandatory, as there should be no discrimination against the unvaccinated. “Europe, like the Polish Constitution, adopts an individualistic perspective. A person cannot be a means to achieve goals of a community. Vaccination is an intrusion into the personal sphere, so one can only consider mandatory vaccination only after the introduction of a state of natural disaster,” Prof. Piotrowski noted. Also, the speaker pointed out that at present it is virtually impossible to enforce an obligation to vaccinate, and the health service in this case is helpless.

Supplementing her statement about other possible measures besides mandatory vaccination, Ms. Anna Białek suggested taking less intrusive measures, such as holding a wide public debate to convince the public of the legitimacy and desirability of vaccination, as well as fighting misinformation and fake news about vaccination. Alternatives to compulsory vaccination are  restrictions introduced on the unvaccinated. The question should be asked whether it is effective to tighten such solutions or, given the present circumstances, simply make vaccination mandatory for specific groups.

“Educational activities would have been most expedient, however the opportunity for this type of solutions has been missed. Education should have been started before the introduction of vaccines to the market (in November 2020),” commented Prof. Tomasz Dzieciątkowski. Referring to the issue of mandatory vaccination only for selected groups, the speaker noted that according to statistics, medical personnel are vaccinated at 95%, and nursing staff at 87%. However, not only this social group  should be protected, but also those who, by virtue of their professional duties, come into contact with large groups of the population, such as uniformed services and teaching staff. “Poles do not see the usefulness of preventive vaccinations,” Prof. Dzieciątkowski said. For example, Norwegian society has the highest degree of vaccinated citizens, while in Norway there are two national minorities where the vaccination rate remains below 50% - these are Poles and Somalis.

“The current rivalry between political parties further fuels the atmosphere of distrust, which makes it extremely difficult to create statutory solutions based on the principle of rationality,” Prof. Piotrowski said. The legal solutions that could be introduced are limited by the provisions of the Constitution, which protects privacy on the one hand, and the right to withhold data on one's health on the other. However, the Constitution allows these rights to be limited by laws. A law that would not be part of a partisan dispute in the parliament, but would be the result of a cross-party consensus having the support of NGOs, could introduce solutions indicating the necessity of mandatory vaccination among certain professional categories while preserving the grounds for refusal.

In conclusion of the debate, the speakers answered the title question of the discussion – “Mandatory  vaccination - for or against?”. Ms. Anna Białek said that, as representative of the Office of the Commissioner for Human Rights, she was in favor of introducing mandatory vaccination, but in such a form that human rights and freedoms would not be violated when this regulation was introduced. “During today's debate, we have repeatedly stressed the importance of the statutory form in this area. It should be emphasized that this is not excessive formalism, but ensuring greater transparency of the entire procedure and fostering the public’s conviction for certain solutions. This makes the potential obligation to vaccinate more acceptable to citizens.  Prof. Tomasz Dzieciątkowski noted that in the current epidemiological situation, vaccination should not be made compulsory. “However, with such a low level of vaccination in Poland, it is inevitable that the COVID-19 pandemic will continue to develop, which raises the question of whether we, as a society, are ready to accept it. In order to curb the pandemic, it is necessary to comply with existing regulations and behave with common sense and feel responsible not only for ourselves, but also for others,” Prof. Dzieciątkowski concluded. Also, he stressed that the most important thing with the current debate was to respect the conscience of citizens. “Restricting the right to freedom from vaccination, in accordance with constitutional standards, should be seen as part of repairing the State, which would make it more authentic and trust-inspiring for the public. By doing so, the State will be able to appeal to the principle of solidarity. The most important thing in the current debate is to respect, but also to sensitize the consciences of citizens,” Prof. Piotrowski concluded.