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Compulsory vaccination programs in neighboring countries such as Austria have caused unease in Switzerland, as well as in the international community. Could compulsory vaccinations also become enforceable in Switzerland?
From a legal point of view, a distinction is made between a compulsory and obligatory vaccination. If a vaccination program is made compulsory, it is obligatory to get vaccinated. A mandatory vaccination is a form of compulsory vaccination, whereby certain sanctions are threatened if one does not get vaccinated. In Austria, for example, a fine of up to 3,600 Euros is threatened if one is unvaccinated.
Compulsory vaccination programs affect the fundamental right to personal freedom and mental integrity under Article 10(2) of the Federal Constitution, whereby individuals are protected from state interference with their personal freedom and physical integrity.
A restriction of fundamental rights is only permissible under the conditions of Art. 36 Federal Constitution. According to this, restrictions require a legal basis, whereby serious restrictions must be have their basis in a federal act (para. 1). The Polizeiliche Generalklausel (municipal general clause) states that cases of serious, imminent danger that cannot be averted in any other way do not require a legal basis (para. 1). As a further requirement, restrictions on fundamental rights must be justified by a public interest or by the protection of the fundamental rights of third parties (para. 2). Furthermore, the restrictions must always be proportionate (para. 3) and the core of a fundamental right is always inviolable (para. 4). The core is considered the central and indispensable essence of a fundamental right. If you have any questions in this area, our state and administrative lawyers will be happy to help you.
Legal basis (Art. 36 para. 1 Federal Constitution)
Mandatory vaccinations represent a serious restriction, which is why they must be provided for in a law. In Switzerland, Art. 22 and Art. 6 para. 2 lit. d of the Epidemics Act (EpidA) is a potential legal basis. According to Art. 22 EpidA, if there is a significant risk, individual cantons can declare vaccinations mandatory for risk groups, particularly exposed people and people performing certain activities. Art. 22 EpidA thus only provides a legal basis for a compulsory vaccination by the cantons and can only be ordered for certain groups of people. Consequently, no mandatory vaccination program can be introduced universally or on a national scale in Switzerland on the basis of this law.
Art. 6 para. 2 lit. d EpidA states that the Federal Council may, after consulting the cantons, declare vaccination mandatory for population groups at risk, for exposed people and for persons who carry out certain activities. Accordingly, the Federal Council can also order a mandatory vaccination for certain population groups. A mandatory vaccination program would be permissible, a compulsory vaccination would not. Thus, there is no legal basis in Switzerland for a compulsory vaccination, which is why the examination of the requirements of Art. 36 Federal Constitution can be discontinued. A new law would have to be enacted that includes mandatory vaccination in order to serve as the legal basis for the restriction of personal freedom and physical integrity.
Temporary mandatory vaccination
In order to be able to enact a new law which cannot be postponed, Parliament can enact an urgent, temporary federal law on the basis of Art. 165 para. 1 of the Federal Constitution. The law would enter into force immediately without having to wait for the 100-day referendum period. The referendum could only be taken retrospectively, after the law is already in force. However, it is unlikely that the parliament will take this step. For this to happen, a pandemic would have to assume extreme proportions. This could be the case if hospitals are completely overburdened and cannot recover, or if the number of fatalities were to rise exponentially.
Mandatory vaccination through the normal legislative process
The federal government could also enact a law through the normal legislative process that includes mandatory vaccination. It is difficult to estimate the duration of a legislative process. However, it is fairly certain that if the legislator wants to enact a law on vaccinations, a referendum will be held. This occurred with the Covid-19 law, against which there have been two referenda. It can be expected to take one to two years for the law to take effect. By then, mandatory vaccination might not even be necessary, which is why this route does not seem optimal. In conclusion, it is very unlikely that compulsory vaccination will be implemented in Switzerland.