With the decision no. 25/2023, the Italian Constitutional Court declared Art. 206 bis of the Military Code partially illegitimate, as it failed to specify for which kind of diseases vaccination could be imposed on soldiers by the Military Health Authority.
The Court had been asked by the Military Court of Naples to determine whether Art. 206 bis of the Military Code violated Art. 32.2 of the Italian Constitution, in that it vested the Military Health Authority with the power to identify the vaccinations that are necessary for deploying soldiers in particular military operations.
The referring Court deemed such a provision to be unconstitutional, as it authorized an administrative body to impose vaccination on militaries who, according to paragraph 3 of Art. 206 bis, could refuse to undergo such treatment for “documented health reasons” only. Those who refused to comply with vaccination orders for other reasons could then face criminal and disciplinary sanctions. Indeed, Art. 32.2 of the Italian Constitution states that “no one may be obliged to undergo a determined health treatment except under the provisions of the law”.
After having agreed that Art. 206 bis introduces a duty for militaries, the Constitutional Court reminded that, with regards to mandatory vaccination, the legislator does not need to regulate every single aspect by means of primary law, being able to delegate the determination of some regulatory contents to secondary sources. However, the type of treatment must be determined by primary law.
According to the constitutional judges, the core issue was how to define “the degree of ‘precision’ required to the legislator” (par. 7.2. of the decision). In other words, it was to establish whether the lawmaker’s obligation is fulfilled by simply indicating the type of treatment (mandatory vaccination) or if it implies the duty to define the specific disease to counteract as well. On this matter, the Court held that a provision that refers to “mandatory vaccination” without specifying which disease the vaccine is against is indeterminate, and thus violates Art. 32.2 of the Constitution. Indeed, “it is first and foremost through the indication of the specific vaccine that the balance between individual autonomy and the protection of collective health is realized by the legislator”, which takes responsibility for it (par. 7.3. of the decision).
In fact, the severity and diffusivity of a disease are key elements to consider when seeking a balance between such fundamental rights, as they can justify the reasonableness of imposing vaccination.
Art. 206 bis was thus declared unconstitutional insofar as it authorized an administrative authority (the Military Health one) to impose vaccination on military personnel in the absence of a legislative provision specifying for which type of diseases such vaccines could be imposed.
Reference: judgment 25/2023 / ECLI:IT:COST:2023:25.
