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Greek high court overturns vaccine requirement for health workers

Originally published: November 24, 2022

In a decision that may signify the end of a 15-month saga for unvaccinated Greek health workers who have been suspended without pay since Sept. 1, 2021 due to their choice not to receive the COVID-19 vaccine, Greece’s Council of State — the country’s highest administrative court—ruled Thursday, November 24. that the continued vaccine mandate for healthcare workers in Greece was unconstitutional.

Specifically, the decision by the court takes issue with the Greek government’s extension of the vaccine mandate, which came into effect April 1, 2022 and which was slated to remain in effect until Dec. 31, 2022.

The decision paves the way for those workers who were suspended to return to their jobs, although it remains to be seen whether the Greek government will abide by the decision or find some means of challenging or bypassing it.

The Council of State’s decision

In decision 2332/2022, a seven-judge panel of the Council of State voted 6-1 in favor of the National Association of Public Hospital Employees (POEDHN), who had filed the legal proceedings on behalf of the suspended medical workers, finding that the extended vaccine mandate was unconstitutional.

The Council of State’s decision also cancelled hiring proceedings initiated by the Greek Ministry of Health on April 14, 2022, on the basis of law 4825/2021, for new medical staff on fixed-term contracts, presumably to replace the suspended workers.

According to the text of the decision as posted Thursday on the Council of State’s website, mandatory vaccination of some categories of workers is constitutional — but there are limitations to this recognized constitutionality. According to the court, these limits exceeded the “principle of proportionality” in relation to the threat posed:

“As has previously been accepted by the Council of State through a series of decisions, the measures that are implemented for the protection of public health against the coronavirus COVID-19, including mandatory vaccination for some categories of workers … may indeed constitute a serious intervention in the practice of fundamental human rights, such as the free development of one’s personality, the freedom of movement and one’s privacy, but it is nevertheless considered to be a constitutional intervention if, among other things, these measures are enforced strictly for the necessary period of time and, in any event, until solutions for responding to the pandemic have been developed. “The severity and duration of these measures, due to their temporary nature, must be reexamined periodically by the competent state authorities on the basis of the ongoing epidemiological data and credible scientific findings.”

The Council of State, in its decision, stated that the Greek state did not do this in the case of the suspended medical workers:

“In this specific case, when the decisions in question were publicized (March 31, 2022 and April 14, 2022), a time period of over eight months had gone by from the time the vaccine mandate was implemented for medical workers.

“This is a duration of time that, due to the nature of this measure and its consequences, clearly exceeds a reasonable length, without a reexamination of the measure on the basis of up-to-date scientific and epidemiological data, the value, effectiveness and the consequences of the coronavirus vaccines, or the ongoing pandemic trends, having occurred.”

The extension imposed by the Greek Ministry of Health was therefore unconstitutional according to the same principles, said the Council of State:

“It is not apparent upon which specific scientific data the decision to shift the date of reexamination to Dec. 31, 2022 was made — in other words, a period of time that once again exceeds that which is reasonable, when considering that it was nine months after law 4917/2022 [which extended the mandate] was passed.”

The Council of State not only found that no reexamination of the mandate occurred, but that the data would have shown that the data that was available at the time would not have justified it:

“No evidence [in the documentation provided to the court by the Greek Ministry of Health] indicates that such a formative assessment and evaluation occurred … in any case, the evidence provided to the court does not justify the extension of the vaccine mandates.”

As reported by Greek news portal newsbomb.gr on Thursday, the Council of State decision means that, once the final decision is published by the court, the suspended medical workers will have the opportunity to be reinstated to their positions if they apply to do so.

Reactions from medical workers, legal experts following Council of State decision

Speaking to newsbomb.gr after the Council of State issued its ruling, Mihalis Giannakos, president of POEDHN, called upon the Greek Minister of Health Thanos Plevris to immediately implement the decision. He said:

“This is a total victory for POEDHN and its moderate stance in favor of vaccination but against the continued suspensions which had no health benefit after restrictions were lifted.”

“Based on this decision, my colleagues must immediately return to their jobs and must receive at least 50% of their wages from April 14, 2022 onwards.

“The Council of State rose to the occasion. We call upon the Minister of Health to immediately put forth an order for the implementation of this decision.”

The Association of Healthcare Professionals for Democracy and Freedom (SYDE), one of the main organizations which coordinated the actions of the suspended medical workers since September 2001, issued a press release following the Council of State’s decision, drawing a connection between the suspension of the unvaccinated health workers and broader challenges faced by Greece’s National Health System, including efforts on the part of the current government to privatize it:

“The decision by the Council of State ends, for now, the saga of the health workers who have been suspended for 15 months. It was issued at the same time that [legislation] is being submitted to parliament in relation to hospitals and the employment status of the medical staff. This law contains all the preconditions for the permanent abolition of the public and social nature of the National Health System.

“This legislation which will be submitted next week … which is co-signed by almost all of the government ministers, constitutes hard evidence that nothing that occurred over the last two years in the context of ‘managing’ the pandemic was intended to protect and preserve public health.”

SYDE’s statement questioned the epidemiological data which the Greek Ministry of Health claimed to be basing its policy decisions above, implying that it was meant to conceal a large number of deaths which occurred in Greek public hospitals — a result, according to SYDE, of the ongoing “collapse” of the Greek National Health System:

“We want to make clear that whatever decision is taken regarding the future of the medical workers who refuse to submit to the ‘science’ of the Health Ministry, will not be useful for [efforts to] disorient or manipulate us or the citizens with a goal of crushing our employment rights and the rights of citizens to health care.

“The Health Ministry must, at last, show us any data which proves the benefits of the measure to suspend [the unvaccinated medical workers].

“The epidemiological data [claimed by the authorities] for the past two years … had as a goal the cover-up of other evidence, which pertains to the explosive growth of deaths, from all causes, WITHIN [emphasis original] a National Health System which is collapsing, as a result of the intentional policy of dissolving the health system. The ‘benefits’ claimed by those who have orchestrated this collapse are now becoming clear, confirming the deception hidden behind the ‘public health’ measures.”

Speaking to Children’s Health Defense Europe, Maria Bania, a member of the SYDE board of directors and a member of the “Medical Workers Against Mandates” movement, said:

“This was a very important decision. We were hoping for such a decision but were not expecting it. We had no idea what would happen. The decision talks about the unconstitutionality of the extension of the suspension … and not the unconstitutionality of the [vaccine] mandate from the beginning, and speaks of the incomplete epidemiological data, that the required data was not presented, violating the principle of proportionality … in other words, you can impose such a mandate, but you cannot do so indefinitely.

“We are waiting for the Council of State’s decision to be published and in our hands, to review the legal basis for the decision so that we can determine how we will proceed.”

According to Bania, she and the other suspended medical workers have been informed that the full Council of State decision will be published next week, a turnaround time “which is extraordinarily brief, considering that it [usually] takes over two months” for Council of State decisions to be officially published.

Bania pointed out that the formal publication of Council of State’s decision in the first legal challenge filed by the suspended medical workers took nine months.

Athens-based attorney Maria Tsipra, who successfully represented POEDHN in the Council of State proceedings, also provided remarks to CHD Europe following the court’s decision. She said:

“Decision 2332/2022 by the Council of State arrives to bring an end to the limbo endured by hundreds of medical workers, who for over one year have been suspended without pay due to their refusal to get vaccinated.

“It bears noting that the Council of State, via a previous decision by its full panel of judges, had given the Ministry of Health the opportunity to reexamine the suspension measure, as has been the case in many other European countries as the pandemic has subsided. Unfortunately though, no action has been taken up until now. We wait upon the government to immediately implement the decision, calling back the medical workers to return to their jobs and to repopulate the ranks of the public health [system], which is so sorely needed.”

Another Athens-based attorney, Vasilis Papanikolaou, who had previously represented 32 of the 38 medical workers who were arrested in July 2022 for protesting outside the residence of Greek Prime Minister Kyriakos Mitsotakis, posted his reaction to the decision on his Facebook page, writing in part:

“A major victory for the suspended medical workers! The Council of State ruled unconstitutional the March 31, 2022 extension of the vaccine mandates and suspensions. The Mitsotakis-Plevris government, and more broadly, New Democracy [Greece’s ruling political party] and PASOK [an opposition political party], who voted for this extension, have been exposed.

“The issuance of this decision immediately requires [the Ministry of Health] to comply and to reinstate, from tomorrow, the [medical workers} and to provide them with their wages that were illegally withheld, at least from April 1, 2022 to the present.”

Lampros Tsapalis, a paramedic who, last week, had launched a hunger strike with two other suspended medical workers outside the Council of State headquarters in central Athens, made some revelatory statements to CHD Europe regarding events which occurred leading up to the issuance of the court’s decision. Speaking to CHD Europe today, he said:

“Today, the hunger strikers, following the announcement by the Council of State cancelling the suspensions which had held 7,000 families hostage for 15 months, visited the Council of State once more and asked that [the decision] be published immediately. The answer we received is that this will occur on Monday.

“Yesterday, they had a meeting with the Health Minister with a very intense dialogue, being that [the Health Minister] adamantly stuck to his views and, indeed, was talking about [a further extension of the suspensions] to the end of March, even though he knew how the Council of State was going to rule.”

Tsapalis credited the continued efforts of the suspended health workers for bringing about this decision on the part of the Council of State:

“A crucial factor in all of this were the constant visits of the strikers, via three-member groups, to the court, exerting pressure on a near-daily basis with countless updates about how thousands of families were in danger.

“A characteristic example are the comments by high-ranking judges who, speaking in a human told, told us that there was no evidence indicating the necessity for this measure [the suspensions] to continue.”

Greek government may seek to bypass the Council of State’s decision, while others argue that the ruling is ‘too little, too late’

What remains unclear is how the Greek government, and particularly the Greek Ministry of Health, will formally react to the Council of State’s ruling and what actions will be taken once the decision is formally published as soon as next week.

One perspective holds that the Council of State’s decision relieves the Greek government from having to take the initiative and make a decision on this issue, which has become a political “hot potato.”

Withdrawing the suspensions that the government has adamantly stuck to for 15 months might have been viewed as an admission of defeat for the government, especially in light of recent statements by Plevris that the suspensions were “one of the most correct decisions” taken by the current government since coming to office in 2019.

Notably, Plevris had previously been elected under the aegis of the far-right LAOS (Popular Orthodox Rally) political party and is not a doctor.

On the other hand, others feel that the Greek government and the Ministry of Health will seek to bypass the decision based on technicalities or a “creative” interpretation of what the ruling states.

A first indication of the government’s thought process came in the form of a laconic press release issued by the Greek Ministry of Health on Thursday, soon after the Council of State’s decision was announced. The statement read:

“The decision to suspend the unvaccinated medical workers had, as its goal, the protection of the citizens’ health and had initially been ruled constitutional by the Council of State.

“With its newest 2332/22 decision … the Council of State raises questions of unconstitutionality with regard to the extension of this measure [the suspensions]. We await the publication of the decision to review it in full. We assure the citizens that all the necessary measures will be taken to not place public health in danger as a result of the implementation of this decision.”

In a report published Thursday in Kathimerini, regarded as Greece’s newspaper of record, unnamed judicial officials were quoted as saying Health Ministry authorities may “review” the suspensions of the unvaccinated medical workers and simply by doing so, may fulfill the prerequisites set forth by the Council of State’s recent decision.

However, Kathimerini adds that any response on the part of the authorities must come immediately once the Council of State’s decision is formally published.

It is unclear, however, if the statements attributed to these “unnamed judicial officials” actually represent the nature of the court’s full decision which is to be published, especially in light of the statements made by the Council of State in its announcement that, based on the evidence it reviewed, the extension of the medical workers’ suspensions would not have been justified.

Notably, as previously reported by CHD Europe, a number of medical workers who had received the initial series of COVID-19 vaccines but have not been “boosted,” have not been suspended, nor have new mandates to that effect been issued. Most other COVID-19 restrictions in Greece, including employee vaccination requirements, have not been renewed.

The Greek division of the World Freedom Alliance, in a statement released Friday to CHD Europe, said the Council of State’s decision is “too little, too late” and gives the Greek government considerable wiggle room to bypass the decision, while upholding the broader “constitutionality” of vaccine mandates. They wrote, in part:

“The World Freedom Alliance calls upon the Greek government to immediately implement the Council of State’s decision, [which is] ‘too little, too late’.

“While the full text of the decision is not yet available, some initial conclusions are clear. The Council of State’s decision came very late and, in essence, it is lacking, as it did not declare the vaccine mandate measure illegal and unconstitutional, only its extension.

“This decision indirectly validates the inexcusable position that if a [medical] formulation, a medical act, is declared ‘safe and effective’ then it can be mandated. The World Freedom Alliance maintains that the freedom of personal choice cannot be subject to any emergency declaration or any ‘review’, nor the principle of informed consent bypassed.”

Even though WFA Greece described the Council of State decision as lacking, it nevertheless calls upon the Greek government to implement it via the reinstatement of the suspended medical workers to their jobs. Specifically, the statement reads:

“Even though this decision fulfills only a minimal portion of the demands of the medical workers and freedom fighters, based on the decision, the suspension of the medical workers is now illegal, and as such, we DEMAND their IMMEDIATE return UNCONDITIONALLY to be set into motion, for a moral recognition of this decision [on the part of the Greek government] to be announced, and for the state to issue full financial reimbursements for the period of time that the exhausting, inhuman and illogical suspensions were in place [emphasis original].”

WFA Greece also described the Council of State’s decision as political in nature, providing a lifejacket of sorts to an embattled Greek government and political system in the leadup to forthcoming parliamentary elections, which will be held no later than July 2023. According to the WFA’s statement:

“We consider the Council of State’s decision to be wholly inadequate, addressing political concerns via serving to maintain the position of the ‘democratic axis’ in power in the upcoming elections, strengthening an increasing political polarization.”

A similar view was expressed by Tsapalis, who expressed mistrust in the Council of State’s decision and stated that the three suspended medical workers who are on hunger strike will continue their action. He told CHD Europe:

“The decision is clearly political. That is why the hunger strikers declare that they will continue their fight until the first suspended medical worker is reinstated and returns to the hospital for work.”

Bania told CHD Europe that many rumors are circulating about how the Greek government will formally respond to the Council of State’s decision, including sidestepping it entirely. She said:

“There are many scenarios which have already begun to circulate, that this decision was political, that it may even be bypassed.

“What can we say? The only thing we have not yet seen here in Greece is tanks on the streets.”

As a result of this possibility, Bania called upon Greece’s opposition political parties to step up, even at this late stage:

“We will continue to fight. We will exert pressure with whatever means we have. But we are not many and our people are exhausted.

“I think that the next steps must be taken by the politicians, the opposition, as [the suspensions] are a clear political usurpation … I think that now is the time for the political world to take a clear stance against this.”

Tsipra told CHD Europe what the next legal steps might be in the event that the Greek government attempts to find ways around enforcing the Council of State’s decision. She said:

“We will begin [legal] proceedings immediately. My hope is that [the suspended workers] will be reinstated soon.

“In the event that the government does not comply, it will have to face the [legal] clams of these workers for the non-execution of the decision.”

Fears that the Greek government will not enforce a high court decision are not unfounded.

One such example was provided by Tsipra in her statements to CHD Europe, regarding the government’s previous non-enforcement of a prior Council of State decision requiring the formation of a ministerial committee that would review and reexamine the suspensions of the unvaccinated medical workers.

In another example which directly pertains to the public’s access to the airwaves and to information via a system of broadcasters operating under a set of legal and regulatory standards, a series of Council of State decisions in 2010 and 2011 found that the perpetual “temporary legality” of Greece’s mostly unlicensed and therefore not fully regulated radio and television stations was unconstitutional,” and that the continued operation of Greece’s regulatory body for broadcasting with members whose legally specified terms had expired, was also in violation of the constitution.

Nevertheless, the regulatory body continued to operate for years afterwards with a slate of members whose terms had expired, while nearly all of Greece’s radio and television radio stations remain unlicensed today, still operating under various forms of “temporary legality” with no end in sight.

However, as previously reported by The Defender, this did not stop the current Greek government from providing 40 million euro (at the time equivalent to $43.6 million) in subsidies to Greek media outlets, including broadcasters, to air public health measures related to COVID-19.

Many in Greece felt this was a means, on the part of the government, to ensure positive coverage of its highly restrictive COVID-related measures. The Greek government has elicited criticism for its attempts to block freedom of information requests and court orders to release the criteria upon which it based its allocation of these subsidies.

Confirming the sentiment that Greek media outlets, having received these subsidies, avoid critical coverage of the government’s COVID-19 policies, the news of the Council of State’s decision on Thursday entered the news cycle but, within the space of a few hours, had all but disappeared.

Newsbomb.gr, for instance, which is one of Greece’s most widely read news portals, featured the Council of State’s decision as its top story at 4:30 pm Thursday afternoon. By 10 pm though, the story was nowhere to be found on its front page, replaced by stories about Greek and international celebrities and yoga “dos and don’t’s.”

Despite challenges that may still lie ahead for the suspended medical workers and their supporters though, the Council of State’s decision is nevertheless widely viewed as a significant victory in their ongoing efforts to overturn the Greek government’s vaccine mandate for medical workers.

Papanikolaou, in his Facebook post, praised the suspended medical workers for continuing their fight in the face of adversity, writing:

“Credit for this victory belongs, above all, to those who, for 15 months, withstood hunger, want, terror, slander and blackmail and waged a titanic battle which should be enshrined with gold letters in the history of the Greek labor movement and, more broadly, the movement in favor of freedom and democracy.”

SYDE’s press release concluded with a statement indicating that its fight will continue:

“We will continue to fight for democracy, for dialogue, for the right for the opposing view to not be ‘stifled’. We will continue to stand for the ideals of our scientific field and for freedom, with an unwavering demand for the ABOLITION of the legal MANDATE [emphasis original].

“We will be present in all battles for democracy and freedom. We call for the immediate implementation of the Council of State’s decision, the immediate reinstatement of our colleagues to their jobs, the immediate full reimbursement of everything that was unjustly withheld. “Hands off our lives, hands off the National Health System!”

Updated: November 25, 2022

Last published: December 1, 2022 (minor corrections)

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