March 09, 2022
By Maïté De Rue
The Open Society European Policy Institute (OSEPI, a branch of the Open Society Foundations network) submitted on 24 January 2022 a collective complaint against Bulgaria to the European Committee of Social Rights (ECSR), the body of the Council of Europe that monitors States’ compliance with the European Social Charter.
OSEPI claims that Bulgaria has violated the right to protection of health (article 11 of the Charter) and the prohibition of discrimination (article E in conjunction with article 11) by failing to prioritise persons over 60 years of age and individuals with underlying health conditions in its domestic Covid-19 vaccine rollout, implemented between December 2020 and May 2021. This is despite the fact that these two groups were at the highest risk of death or severe illnesses and needed prioritisation given the limited availability of vaccines. Further claims made are related to the poor information provided by authorities about the importance of Covid-19 vaccines as a means of protection against the risks posed by the pandemic, and their failure to make vaccines effectively accessible to the most vulnerable.
To this day, Bulgaria shows the lowest vaccination rate in Europe and has one of the highest death rates due to Covid-19. Amid the ongoing pandemic, authorities’ resolute and rapid actions to protect the most vulnerable groups remain critical. This is why OSEPI has asked the Committee to indicate immediate measures to the Bulgarian government, to prevent more people from dying or contracting diseases caused by Covid-19.
This contribution will briefly present the main arguments of the complaint, explaining the Bulgarian management of Covid-19 vaccines, and elaborate on the application of the right to protection of health and the prohibition of discrimination.
Since the outbreak of the Covid-19 pandemic, medical evidence has demonstrated that some categories of persons are particularly vulnerable to the coronavirus and face a higher risk of death or of becoming severely ill from the disease, especially older persons and people with medical issues such as cardiovascular disease, diabetes, chronic respiratory disease, or cancer.
This increased risk was of critical importance when, at the end 2020, Covid-19 vaccines were made available in European countries, yet with far fewer vaccines available than the number of people in need of vaccinations. This limited availability forced governments to adopt prioritisation plans for the distribution of vaccines. Guidelines were developed by the United Nations, the WHO, the Council of Europe and the European Union in order to help governments to define priorities in compliance with human rights and ethical standards. All these bodies made clear that older persons and people with underlying medical conditions should be among the very first to be vaccinated.
Yet, Bulgarian authorities failed to prioritise these vulnerable groups in their national vaccination plan adopted on 7 December 2020: people aged 65 years and over and those with underlying medical conditions were the penultimate priority group in the five-phase vaccination rollout. They were given access to vaccination, thus, only after a large number of young and healthy adults, who were not involved in essential services and were not at high risk of dying or developing severe illness due to the coronavirus.
The situation was exacerbated in mid-February 2021 when Bulgarian authorities opened the so-called ‘green corridors’. While vaccines were still available in very limited quantities, all adults could get vaccinated regardless of any priorities. In practice, it was extremely difficult for vulnerable people to access those green corridors. Doing so required queuing for hours outside, in cold winter temperature, and with no possibility to sit. Only on 17 May 2021 did the Ministry of Health instruct general practitioners and vaccination centres to vaccinate persons aged 60 years and older. In the meantime, between January and May 2021, 8,813 people aged 60 years or above had died from Covid-19 in Bulgaria.
Moreover, as the collective complaint highlights, Bulgarian authorities failed to launch an official campaign to inform the public about the vaccines and encourage people to get vaccinated. Little effort was undertaken to combat misinformation about vaccines spread through social and mainstream media. Authorities have also done little to facilitate practical access to vaccines, which disproportionately affects vulnerable groups.
Bulgaria’s new government announced in mid-January 2022 that it would develop a communication campaign on the benefits of the Covid-19 vaccine. However, this plan is yet to be implemented.
In its collective complaint filed before the ECSR, OSEPI argues that the actions and omissions of the Bulgarian authorities violate article 11 of the European Social Charter on the right to protection of health and article E on the prohibition of discrimination in conjunction with article 11.
Article 11 of the European Social Charter guarantees the right to protection of health with three categories of State duties: remove as far as possible the causes of ill-health (§1), provide advisory and educational facilities for the promotion of health (§2) and prevent as far as possible epidemic, endemic and other diseases (§3).
The ECSR has repeatedly emphasised that article 11 is intrinsically linked to the right to life and the prohibition of torture and inhumane or degrading treatment, as enshrined in articles 2 and 3 of the European Convention on Human Rights. The same goes for the right to life stipulated in article 6 of the International Covenant on Civil and Political Rights. Accordingly, States must take appropriate measures to protect the life and the health of their populations, including in the context of life-threatening diseases such as the Covid-19 pandemic.
Since the beginning of the Covid-19 crisis, the nature and scope of States’ responsibilities have evolved over time, reflecting the evolution of the novel pandemic, the knowledge that the scientific community has gained regarding the virus, and vaccine availability.
Article 11 § 1 of the European Social Charter requires that States Parties adopt appropriate measures to ‘remove as far as possible the causes of ill-health’, which encompasses the right to the highest possible standard of health and the right of access to health care. As stated by the Committee, ‘health systems must respond appropriately to avoidable health risks, i.e. ones that can be controlled by human action, and States must guarantee the best possible results in line with the available knowledge’. Particular attention must be paid to vulnerable persons. These responsibilities have been recalled by the Committee in the specific context of the Covid-19 pandemic, in its Statement of interpretation on the right to protection of health in times of pandemic, adopted on 21 April 2020.
In the context of the distribution of Covid-19 vaccines, article 11 § 1 requires States to distribute the available vaccines in a way that best protects the health of all persons and to pay specific attention to those most at risk of dying or contracting severe diseases. As underlined by international and regional institutions, including medical bodies, older persons and those with medical conditions required priority vaccination given the higher health risks they were facing. The collective complaint emphasises that Bulgaria did not respect the rules deriving from the right to protection of health, having deliberately decided not to prioritise vaccination of those vulnerable groups.
According to article 11 § 2 of the European Social Charter, States Parties must ‘provide advisory and educational facilities for the promotion of health and the encouragement of individual responsibility in matters of health’. As stated by the Committee, ‘informing the public, particularly through awareness-raising campaigns, must be a public health priority’. The Committee also made clear that in the context of the Covid-19 pandemic, States were to take necessary measures to educate people about the risks posed by the virus, how to mitigate the risks of contagion and how to access healthcare services.
The collective complaint argues that Bulgarian authorities have failed to implement a communication campaign on combating the Covid-19 pandemic as well as on the importance and effectiveness of vaccines, especially for vulnerable people. Nor did they communicate sufficient information about the characteristics and safety of the vaccines available.
The complaint also points out that the Bulgarian government did not make sufficient efforts to rectify misinformation about vaccines, which spread on both social and mainstream media. In the same vein, Bulgarian authorities failed to issue guidance and organise trainings for medical professionals, which could have helped bolstering the population’s trust in vaccines.
Article 11 § 3 of the European Social Charter obliges States to protect their population from epidemic, endemic and other diseases, such as the Covid-19 pandemic. The Committee has made it clear that ‘when a preliminary scientific evaluation indicates that there are reasonable grounds for concern regarding potentially dangerous effects on human health, the State must take precautionary measures consistent with the high level of protection established by Article 11’. It has acknowledged in the past that the objective of high levels of vaccination is important when ‘large-scale vaccination is recognised as the most efficient and most economical means of combating infectious and epidemic diseases’.
In its collective complaint, OSEPI argues that the overall approach of the Bulgarian authorities for the vaccination of older persons and those with underlying conditions violated article 11 § 3. By not prioritising these vulnerable groups, Bulgaria failed, in our view, to protect their life and health, despite international and scientific guidance indicating that the virus presented a high risk and that the vaccine would provide substantial protection against the risk of death or severe disease. This, coupled with authorities’ failure to make the vaccines effectively accessible to vulnerable people unable to travel to vaccination centres, resulted in an extremely low level of vaccination and a high death rate.
Article E of the European Social Charter guarantees the enjoyment of the rights set forth in the Charter without discrimination on any ground, including health and age. It requires “treating equals equally and unequals unequally”, as also recently recalled by the Commissioner of Human Rights of the Council of Europe.
OSEPI claims that Bulgaria violated the prohibition of discrimination on the basis of both age and health in the distribution of Covid-19 vaccines between December 2020 and May 2021. Firstly, they were discriminated against in comparison with the general Bulgarian population: while they were at a much higher risk of dying or contracting severe illness, they did not get priority access to vaccination, in disregard of the requirement to duly consider their differences. Secondly, they were discriminated against in relation to other priority groups: although similarly situated, they were not treated equally, since they were not effectively prioritised.
In accordance with Rule 36 of the Rules of Procedure, the European Committee of Social Rights may ‘indicate to the parties any immediate measure, the adoption of which is necessary to avoid irreparable injury or harm to the persons concerned’. Given the current Covid-19 situation in Bulgaria and the government’s inadequate response to it, OSEPI has called on the Committee to indicate immediate measures to the Bulgarian government to avoid the irreparable harm or injury that would result from a significant number of additional Covid-19 cases among unvaccinated older adults and people with health conditions. It remains critical that Bulgaria takes, without any delay, appropriate measures to increase the levels of vaccination, especially among the most vulnerable groups.
The immediate measures requested in the complaint focus on three key areas of concern. First, the government should adopt and implement an emergency action plan to reach out and vaccinate people aged 60 and above, and persons with underlying medical conditions against Covid-19 as a matter of priority. Second, authorities should organise effective access to vaccines. Third, the government should develop and implement an information campaign about the importance of vaccination. Given the life-threatening risks still faced by vulnerable people, the Committee’s prompt consideration and response is paramount.
As stated by the United Nations, ‘the Covid-19 crisis has exacerbated the vulnerability of the least protected in society’. The UN independent expert on the enjoyment of all human rights by older persons also stressed ‘the urgent need for a holistic human rights approach for older persons that ensures equal realization of all their rights, including access to health care’. Vaccine justice around the globe remains an important issue, with too many countries not even able to offer vaccines to their population. The situation in Bulgaria shows that in European countries, fair and equal access to health services for all is not guaranteed either, especially in times of crisis. With the collective complaint mechanism and the possibility to indicate immediate measures, the Committee is uniquely positioned in the region to help give full effect to the right to protection of health for all. The collective complaint filed by OSEPI gives the European Committee of Social Rights the opportunity to further refine the scope of States’ responsibilities to protect the right to health and the right to life of the most vulnerable. The ageing of the population is an increasing concern in today’s societies, as is the availability of limited medical resources and the risk of the emergence of new diseases or epidemics. A decision by the Committee will therefore have important implications beyond the specific situation of Bulgaria and beyond the Covid-19 pandemic.