Photo: Pescanik
Photo: Pescanik

When, how, and why did we, the citizens of Serbia, decide to simply come to terms with illness, even death? In addition to all the (self) praise for the purchased respirators, the abundance of vaccines of various kinds, new Covid hospitals, and government bodies established exclusively for the purpose of curbing the pandemic, the black curve of deaths from Covid 19 has still brought Serbia to the top of the global list – the most deaths per million inhabitants have occurred right here.

When we came to terms with that – is not a good question. Fatalistic acceptance of misfortune always comes at the end of a process, long or short, following circumstances and events that are shocking for any society. Especially war and long-lasting extraordinary circumstances. Serbian society has been living in antagonism with the whole world and with its immediate surroundings for almost three and a half decades. Even today, it is split on the inside according to almost all criteria for intra-social antagonism. And the source of social conflicts is always where the political power lies, at the very top. The wars in the former Yugoslavia lasted, intermittently, for almost a decade. Death has become a close acquaintance, and news about untimely deaths of many people have been with us for too long. We are addicted to death.

How did the majority of us decide that we should be more afraid of vaccines than infections, diseases, possible death? The answer is only somewhat common to all humanity. Superstition, disbelief, trust in miracles and sorcerers have been part of humanity from tribal communities to modern societies. It is easier to understand a sorcerer than an expert, a sorcerer usually comforts or frightens us, enticing our trust with a mixture of authority and fear. It’s easier to read eye-catching titles on the screen than books. And in authoritarian and patriarchal societies where lies and violence are constantly roaring, no one trusts anyone anymore. Only organized power, that is, state power, media and other institutions have the ability and means for action. And they are abusing them, here and now with virulent (full of poison) intensity, while citizens are giving up active resistance to permanent lies en masse.

Why did this happen here in Serbia during a pandemic? The state is perceived mainly as an oppressor, and not as a framework of civilized life. We feel it as the heavy hand of the master, who tends to acknowledge the citizens, which basically means merely noticing them and bribing them with spare change whenever an election is approaching, and one often is, almost constantly. The master’s position is simple: those who want or have to vote for him are an instrument of power, the rest are dehumanized. Neither of them deserves real care or attention. The followers, living and dead, belong to him and his machinery either way. Others are targets and enemies, so why would he care about them? Large Covid hospitals are a proof of progress. And how much equipment is and is not found inside these hospitals, how many patients die, how many tortured doctors and medics work and die in them – these facts are only known to those who enter them.

That is why the state and health authorities have been playing with us with impunity for a year and a half. Two weeks ago, the Prime Minister promised to introduce a Covid pass, and then said that she doesn’t know whether they would be introduced. A member of the Crisis HQ and the provincial secretary in charge of health are convinced that they are unnecessary.

Numerous doctors say that it is already too late for that.

The President, without further elaboration, laconically claims that the Constitution itself prevents him from introducing Covid passes and enforcing obligatory vaccination for certain professions and workplaces.

Let us leave aside, for the moment, some important facts: according to the Constitution, the decisions the President and the Prime Minister are talking about are not theirs to make. The only time the President had the Constitution in mind, besides when he shrugged his shoulders helplessly because this legal act ostensibly prevents him from introducing Covid passes, was when he took his oath on it. Otherwise, he has consistently trampled on all basic constitutional principles: the division of power, democracy, the sovereignty of the citizens. So what? Why wouldn’t he, when he can.

Apparently, it is too late for Covid passes, this measure wouldn’t make enough of a difference, but it is not too late for obligatory vaccination of certain professions and, perhaps, not too late to encourage vaccination of other citizens. The necessity of these and other measures was announced and convincingly explained in the appeal by United Against Covid addressed to the citizens of Serbia and its authorities.

The Constitution does not prohibit Covid passes, compulsory vaccination, or other restrictions. On this occasion, just like many before, the President is recklessly playing with the Constitution.

The constitutional basis for Covid passes is first regulated by Article 20, paragraph 1 of the Serbian Constitution, on the basis of which human rights may be restricted, if the following conditions are met:

Restriction: it must be enforced by law; it may be permitted only for the purposes specified by the Constitution; it must be proportionate to those purposes; it must not encroach on the essence of the specific right that is being limited. Conditioning access to a certain space with a Covid pass is a restriction on freedom of movement. Article 39, paragraph 3 of the Constitution states that freedom of movement, among other constitutional purposes, may be restricted in order to prevent the spread of infectious diseases. Therefore, if the freedom of movement is restricted by law, and it is by the Law on Protection of the Population from Infectious Diseases, if the restriction is determined for the purpose of achieving the purpose prescribed by the Constitution, and it is, which follows from Art. 39 of the Constitution, if the restriction is proportional to the purpose determined in the Constitution, and it is, because the previous measures have proven ineffective, their violation has not been sanctioned, and the contagion has spread rapidly in recent weeks, if the right is not abolished, but only limited, conditioning access to certain spaces is legal, legitimate, and proportionate. There are no constitutional or legal obstacles to the introduction of Covid passes. We must not forget that the freedom of movement was completely abolished for citizens over the age of 65 in the state of emergency, by a decree of the Government, and not by law, and that it was “legalized” only later. Even before the decree was published, the president abolished the freedom of movement for the elderly, personally announcing it on numerous TV stations.

According to article 52, paragraph 1, item b) of the Law on Protection of the Population from Infectious Diseases, the Minister of Health, at the proposal of the Commission for Infectious Diseases and the Institute of Public Health, is authorized to impose restrictions on freedom of movement. The manner of restriction is not explicitly prescribed, so it can certainly be done by prescribing the obligation to show Covid passes as a condition for a citizen to access certain spaces. I am not sure what the competencies of the Commission are, let alone those of Batut or the Minister of Health, except when he chooses to appear at press conferences. But I know everything about our incompetent president: suddenly, he who could do everything, can do nothing at all, because the Constitution prevents him. And that Constitution was the same at the beginning of the pandemic as it is today.

A similar legal regime applies to mandatory vaccination. Mandatory vaccination is not the same as compulsory vaccination. Compulsory vaccination, i.e. giving a vaccine without the consent of the person being vaccinated, is prohibited by Article 25 of the Constitution. Many fear the written statement they must sign before vaccination, confirming that they are receiving the vaccine at their own risk. It is unclear why the signing of this statement was prescribed. When you go to a dentist, such statements are not signed – as soon as you sit on the dental chair, it is considered that you have tacitly agreed to the dental intervention. When a child is born, the mother in the maternity hospital does not sign a consent form for the child to be vaccinated against tuberculosis. When you go to a private medical practice, you sign everything. Before surgery in any hospital, you sign a consent form. Thus, the rules and practices are uneven, which can be attributed, on the one hand, to sloppiness, and on the other hand, to the caution of what we call the state against possible claims for damages. All of this together results in distraction, whether it is the result of intent or recklessness. The government tried to mitigate this dissuasive part with a monetary reward, shaped by the party and effective in the short term, because it did not include revaccination and it lasted just about until the end of the TV commercial for the product called “AV for our children”.

Mandatory vaccination, I repeat, is not compulsory. Refusal or failure to vaccinate from someone who is obliged to do so, cannot be sanctioned by compulsory vaccination, but only by a fine or a ban on access to certain areas or a ban on performing a certain activity.

Based on Art. 33, paragraphs 2 and 3 of the Law on Protection of the Population from Infectious Diseases, the Minister of Health may determine not only recommended, but also mandatory vaccination in two situations: if the danger of contagious disease is determined and if the contagious disease is introduced from abroad. Both these circumstances now exist. The decision of the Minister requires a proposal from the Institute of Public Health and the consent of the Commission for Infectious Diseases. He makes his decision on mandatory vaccination in accordance with the recommendations of the World Health Organization (WHO). These recommendations are general. No special proposal or specific WHO recommendation is needed, although such interpretations could be heard among the public. The Institute and the Commission still remain quiet. This Law is clear, it is not difficult to interpret it by applying standard rules of interpretation. No licencia poetica is allowed.

I am aware of the superfluity of repeating and explaining constitutional and legal norms. They are increasingly becoming a decoration and an excuse for a sovereign arbitrariness. However, it is difficult to understand the silence of the Institute of Public Health and the Commission for Infectious Diseases. These are collective bodies. They all remain quiet, while patients and their fellow doctors are dying, raising the black curve more than anywhere else.

It is even more difficult to understand us. Those who propagate non-consent to vaccination share the thesis that they are free to decide what to do with their bodies. I will not invoke the Constitution – it is superfluous here, as well – although it also states that the rights of some are limited by the same rights of others. On that principle rests something that has long been forgotten here – a thing called solidarity. I am wondering why they don’t demonstrate their unlimited freedom when they are at a pedestrian crossing, when the traffic light is red for pedestrians, and the city bus is speeding towards that crossing. Why don’t they cross the street freely then?

Translated by Marijana Simic

Pešč, 07.10.2021.

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Vesna Rakić Vodinelić, beogradska pravnica, 1975-1998. predaje na državnom pravnom fakultetu u Beogradu, gde kao vanredna profesorka dobija otkaz posle donošenja restriktivnog Zakona o univerzitetu i dolaska Olivera Antića za dekana. Od 1987. članica Svetskog udruženja za procesno pravo. 1998-1999. pravna savetnica Alternativne akademske obrazovne mreže (AAOM). 1999-2001. rukovodi ekspertskom grupom za reformu pravosuđa Crne Gore. Od 2001. direktorka Instituta za uporedno pravo. Od 2002. redovna profesorka Pravnog fakulteta UNION, koji osniva sa nekoliko profesora izbačenih sa državnog fakulteta. Od 2007. članica Komisije Saveta Evrope za borbu protiv rasne diskriminacije i netolerancije. Aktivizam: ljudska prava, nezavisnost pravosuđa. Politički angažman: 1992-2004. Građanski savez Srbije (GSS), 2004-2007. frakcija GSS-a ’11 decembar’, od 2013. bila je predsednica Saveta Nove stranke, a ostavku na taj položaj podnela je u aprilu 2018, zbog neuspeha na beogradskim izborima. Dobitnica nagrade „Osvajanje slobode“ za 2020. godinu.

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