Open Society European Policy Institute v. Bulgaria

On January 25, 2022, the Open Society Foundations submitted a complaint before the European Committee of Social Rights (ECSR) concerning COVID-19 vaccination in Bulgaria. The complaint notes that the Bulgarian government’s failure to prioritize individuals above 65 years old and those with comorbidities in their domestic rollout of COVID-19 vaccines violates the European Social Charter, namely the obligation of the state to protect health and the prohibition on discrimination.

In addition, the complaint asks the ECSR to compel the Bulgarian government to take immediate measures to improve the domestic vaccination rollout in order to reduce avoidable deaths among those 60 years and older and people with pre-existing health conditions, including:

• As a matter of priority adopt and implement an emergency action plan with targeted measures to reach out and vaccinate persons 60 years old and above and persons with underlying medical conditions that make them particularly vulnerable to great illness from COVID-19;
• Organize proper access to vaccines, including locally, for those who cannot move because of age or health, and if appropriate, in collaboration with general practitioners;
• Develop and implement an information campaign about the need for people, and especially vulnerable groups such as older adults and those suffering from illness, to be vaccinated against COVID-19, in order to achieve high levels of vaccination among these  groups, and the population in general.

Facts

Since the outbreak of the COVID-19 pandemic, medical experts have highlighted that some categories of individuals are at a higher risk of death or of becoming gravely ill from contracting the coronavirus. The World Health Organization indicated that “older people face a significant risk of developing severe illness due to physiological changes that come with ageing and existing underlying health conditions”. In addition, people with medical issues like cardiovascular disease, diabetes, chronic respiratory disease, or cancer also appeared to be more likely to develop serious illness or of dying, regardless of their age. As stated by the United Nations in April 2020, “the COVID-19 crisis has exacerbated the vulnerability of the least protected in society. It is highlighting deep economic and social inequalities and inadequate health and social protection systems that require urgent attention as part of the public health response”.

As of the end of 2020, the administration of COVID-19 vaccines has become the most effective tool to protect people against serious illness or dying from the disease. However, it was immediately obvious that vaccine availability would be limited in almost all countries and there would be far fewer vaccines than the number of people needing vaccination. Governments therefore had the duty to adopt prioritization plans for the distribution of COVID-19 vaccines, and to that end, guidance and ethical guidelines were developed by the United Nations, the WHO, the Council of Europe, and the European Union. All made clear that choices should comply with human rights, including right to life and right to health, and best protect the most vulnerable people.

Bulgaria—with a population of nearly 7 million—received less than 1.6 million doses between December 2020 and April 2021, according to the Ministry of Health. Despite these limited quantities and clear international and regional guidance, authorities did not secure priority access for senior adults and people with underlying health conditions. In the National Vaccination plan adopted by the Council of Ministers on December 7, 2020, these vulnerable groups were only included in phase four of the five-phase vaccine rollout. In addition, as of mid-February 2021, the authorities allowed all individuals, even those not included in one of the priority groups, to access vaccination through “green corridors”. These green corridors led to queues of up to thousands of people at vaccination centers, often outside in temperatures around freezing, conditions that made them inaccessible to many older people and some with pre-existing health problems. As a result, many young and healthy adults were vaccinated far before those most in need of protection. Between January and May 2021, the vast majority of these vulnerable groups remained unvaccinated, and 8,813 people over 60 years old died from COVID-19 in Bulgaria, accounting for more than 80% of COVID-19-related deaths.

Moreover, authorities never developed an official campaign to inform the public about the vaccines and encourage people to get vaccinated. They have done little to facilitate access to the vaccines, which disproportionately affects vulnerable groups. They also made no effort to combat misinformation about vaccines spread through social media.

Currently, Bulgaria continues to have extremely low vaccination rates among adults, and the lowest in the European Union: as of January 22, 2022, barely 33,9% of adults 18 years and above were fully vaccinated in Bulgaria, while on average in the EU, 80,4% of adults aged 18 and above were fully vaccinated.

Open Society Justice Initiative Involvement

The Justice Initiative drafted the complaint filed by OSEPI, a non-profit entity within the Open Society Foundations that has consultative status with the Council of Europe.

Arguments

Violation of article 11 European Social Charter (the right to protection of health)

Article 11 of the European Social Charter guarantees the right to protection of health, that is intrinsically linked to the right to life protected by article 2 of the European Convention on Human Rights. It requires that States take all measures within their power to prevent lives of persons under their jurisdiction from being put at risk and to allow these individuals to enjoy the highest possible standard of health and access health care.

The government’s prioritization plan for the distribution of COVID-19 vaccines in Bulgaria between December 2020 and May 2021 violated the right to the protection of health of persons over 65 years old and those with underlying medical conditions, as they were not given priority and effective access to vaccines. Instead, Bulgaria distributed the limited available vaccines to people who were neither particularly vulnerable to being severely affected by COVID-19, nor occupied in essential infrastructures and public services (violation of article 11 § 1).

In addition, Bulgaria has failed to properly and adequately inform and educate people, and in particular the most vulnerable, about the importance of COVID-19 vaccines as a means of protection against the risks posed by the pandemic (violation of article 11 § 2).

Moreover, Bulgaria has failed to take the necessary measures to “prevent as far as possible epidemic, endemic and other diseases” in the context of the COVID-19 pandemic by not prioritizing vulnerable groups; not providing information and educating them about the vaccines; and not making the vaccines effectively accessible (violation of article 11 § 3).

Violation of article E European Social Charter (prohibition of discrimination) in conjunction with article 11

According to article E of the European Social Charter, the enjoyment of the right to protection of health as set forth in this Charter must be secured without discrimination on any ground, such as age or health.  The European Court of Human Rights has recalled that the right to not be discriminated is not only violated when States treat persons in analogous situations differently without providing an objective and reasonable justification, but also when States fail to treat differently persons whose situations are significantly different without an objective and reasonable justification.

Bulgaria violated the prohibition of discrimination on the basis of age and health against older adults and those with pre-existing health conditions in the distribution of COVID-19 vaccines between December 2020 and May 2021. First, these persons were discriminated against in comparison to the general Bulgarian population: while they were at a much higher risk of dying or contracting severe illness, they did not effectively get priority access to vaccination, in disregard of sufficient consideration corresponding to 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 prioritized.

Request for immediate measures

In accordance with Rule 36 of the Rules of Procedure, the ECSR may “indicate to the parties any immediate measure, the adoption of which is necessary to avoid irreparable injury or harm to the persons concerned”.

The Open Society European Policy Institute asks the ECSR 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. The measures requested are to:

• Adopt and implement an emergency action plan with targeted measures to reach out and vaccinate the persons 60 years old and above and persons with underlying medical conditions against COVID-19 as a matter of priority;
• Organize proper access to vaccines; and
• Develop and implement a campaign of information about the need for people, and especially vulnerable groups, to be vaccinated against COVID-19.