FOURTH SECTION

DECISION

Application no. 32467/22 Marcel MITTENDORFER against Austria

The European Court of Human Rights (Fourth Section), sitting on 4 July 2023 as a Chamber composed of:

Tim Eicke , President , Gabriele Kucsko-Stadlmayer, Faris Vehabović, Branko Lubarda, Armen Harutyunyan, Anja Seibert-Fohr, Sebastian Răduleţu , judges , and Andrea Tamietti, Section Registrar ,

Having regard to the above application lodged on 28 June 2022,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Marcel Mittendorfer, is an Austrian national who was born in 1977 and lives in Vienna. He was represented before the Court by Mr S. Vesco, a lawyer practising in Vienna.

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. The applicant, a businessman, is in good health and is not considered at high risk of severe illness should he contract COVID-19. He submits that during the pandemic he followed the public-health recommendations intended to prevent the spread of the virus, such as regular testing and wearing a mask. However, he decided not to be vaccinated against COVID-19, based on the vaccine’s potential side effects and what he considered to be only a slight possibility that he would contract the virus at all, or that he would suffer only mild symptoms if infected.

4 . On 5 February 2022 the Act on Compulsory COVID-19 Vaccination ( COVID-19-Impfpflichtgesetz – “the Vaccination Act”) entered into force. Section 1 of the Vaccination Act formulated an obligation for every adult residing in Austria to be vaccinated against COVID-19, in line with the provisions of this Act. Under section 4(1) and (2), the obligation to be vaccinated would be considered fulfilled if after 15 March 2022 a person had received at least the first dose of the vaccine and, if necessary, continued to receive further doses at the prescribed intervals. While section 1(2) of the Vaccination Act explicitly prohibited forced vaccination, section 10(1) provided that individuals who did not meet the vaccination requirement after 15 March 2022 would be criminally liable and subject to administrative fines of up to 3,600 euros (EUR). Section 19 introduced continuous monitoring of the epidemiological situation and obliged the Federal Minister of Social Affairs, Health, Care and Consumer Protection (“the Minister of Health”) to order that the application of parts or all of the Vaccination Act be suspended if deemed no longer necessary or appropriate (for a more detailed description of the Act, see paragraphs 11-18 below).

5 . On 7 February 2022 the applicant lodged an individual complaint ( Individualantrag auf Normenkontrolle ) with the Constitutional Court ( Verfassungsgerichtshof ) under Article 140 § 1 (1)(c) of the Federal Constitution ( Bundes-Verfassungsgesetz – see paragraph 10 below), challenging the constitutionality of, inter alia , section 10 of the Vaccination Act and, in the alternative, the Act in its entirety, for alleged breaches of his rights under Articles 8 and 9 of the Convention.

6 . On 11 March 2022, on the basis of section 19(2) of the Vaccination Act, the Minister of Health ordered that the application of sections 1, 4 and 10 of the Vaccination Act be suspended from 12 March to 31 May 2022 by way of the Regulation on Temporary Non-Application of the Compulsory COVID-19 Vaccination Act ( Verordnung betreffend die vorübergehende Nichtanwendung des COVID ‑ 19-Impfpflichtgesetzes – “the Suspension Regulation”). On 25 May 2022 the Suspension Regulation was extended to 31 August 2022 (see paragraph 19 below).

7 . On 29 April 2022 the Constitutional Court dismissed the applicant’s complaint for failure to fulfil the admissibility requirements set out in its case ‑ law and the relevant procedural rules. His first request for review and invalidation of the Vaccination Act was held to be too narrow to address the purported unconstitutionality, in that it referred only to section 10 of the Vaccination Act but did not challenge section 1, the core provision laying down an obligation to be vaccinated. In his alternative request for review and invalidation of the entire Vaccination Act, the applicant failed to raise specific concerns regarding the constitutionality of each of the provisions being challenged.

8 . On 28 July 2022 the Vaccination Act was repealed in its entirety and was no longer in force as of the following day (see paragraph 20 below).

9. The applicant neither alleges to have been vaccinated against COVID ‑ 19, nor does he allege to have been subjected to any individual measure against him.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

10 . Under Article 140 § 1 (1)(c) of the Federal Constitution every person can challenge the constitutionality of a law directly before the Constitutional Court if he/she alleges that the law has infringed his/her rights and has become immediately effective for him/her without a court or administrative authority decision. In its well-established case-law, the Constitutional Court requires a “direct interference” by the contested law with the person’s rights and the unavailability of remedies against its application.

11 . After a spike of COVID-19 infections in Austria and a nationwide lockdown in November 2021, the first draft of the Vaccination Act was submitted to the National Assembly ( Nationalrat ) on 16 December 2021. The draft was referred to the Health Committee ( Gesundheitsausschuss ), which examined it together with medical and legal experts and subsequently proposed an amended draft to the National Assembly (see Report of the Health Committee on Proposal 2173/A concerning a Federal Law on Compulsory COVID-19 Vaccination). Amongst other amendments, a monitoring mechanism was introduced (see paragraph 18 below). On 20 January 2022 the National Assembly adopted the law, which entered into force on 5 February 2022 after confirmation by the Federal Council ( Bundesrat ) and publication in Federal Law Gazette I no. 4/2022.

12 . Section 1(1) of the Vaccination Act provided that anyone who had reached the age of 18 and was resident in Austria – with the exception of persons listed in section 3(1), such as those who were pregnant or had recovered from COVID, or persons deemed to be especially vulnerable – was obliged to be vaccinated against COVID ‑ 19.

13 . Under section 4 the vaccination obligation would be considered to have been discharged by persons who, after 15 March 2022, could provide proof of vaccination.

14 . Sections 5 and 8(1) provided that a date was to be determined, by regulation, on which all persons falling under section 1(1) would be reminded by letter of their obligation to be vaccinated ( Erinnerungsstichtag ).

15 . Under section 9, another reference date ( Impfstichtag ) could be set, at least one month after the reminder date, for the purpose of verifying compliance with the obligation to vaccinate by way of automated data checks, as governed by section 6 of the Vaccination Act.

16 . Under section 10, any person not having fulfilled his or her obligation to be vaccinated after 15 March 2022 would commit an administrative offence punishable with a fine of up to EUR 3,600. Section 10(1) and (2) ruled out the possibility of imposing imprisonment as an alternative punishment should an individual be unable to pay the fine, specifying that the fine was to be adjusted to take account of the individual’s income and financial commitments. Administrative criminal proceedings were to be initiated against those who, as ascertained by a data check on the reference date (see paragraph 14 above) or in any other manner, had failed to comply. However, under section 10(3) such persons could avoid criminal liability by fulfilling their obligation to be vaccinated within two weeks of the fine or summons being served on them.

17 . Despite the provisions of sections 5 and 8(1) of the Vaccination Act, no date was ever set by regulation, either for reminder letters or for verification of compliance (see paragraphs 14-15 above).

18 . A monitoring mechanism was established pursuant to section 19 of the Vaccination Act (see paragraphs 4 and 11 above). Under section 19(1) a commission of legal and medical experts was obliged, at intervals of three months (or whenever made necessary by a change in the circumstances), to review and report on relevant scientific developments, vaccination rates or the epidemiological situation, and also on whether the obligation to be vaccinated was appropriate in order to protect the public health system. Section 19(2) obliged the Minister of Health to order the immediate suspension of all or parts of the Act when they no longer appeared necessary or appropriate in the light of changed circumstances.

19 . On 8 March 2022 the commission established under section 19(2) (see paragraph 18 above) issued its first monitoring report, in which it concluded that the immediate enforcement of a general obligation to be vaccinated was not necessary or appropriate, as the next critical wave of COVID-19 infections was not expected before autumn 2022. Based on this recommendation and section 19(2) of the Vaccination Act, on 11 March 2022 the Minister of Health issued the Suspension Regulation (published in Federal Law Gazette II no. 103/2022). Pursuant to paragraph 1 of the Suspension Regulation, the application of, inter alia , sections 1, 4 and 10 of the Vaccination Act (see paragraphs 12, 13 and 16 above) was suspended from 12 March to 31 May 2022. On 25 May 2022 the temporal scope of the Suspension Regulation was extended to 31 August 2022 (Federal Law Gazette II no. 198/2022).

20 . On 28 July 2022 the National Assembly issued the Act on the Repeal of the Compulsory COVID-19 Vaccination Act (“the Repeal Act” – published in Federal Law Gazette I no. 131/2022), by virtue of which the Vaccination Act ceased to be in force as of 29 July 2022.

21 . On 23 June 2022 the Constitutional Court ruled on a complaint lodged on 8 February 2022 under Article 140 § 1 (1)(c) of the Federal Constitution (see paragraph 10 above) by another individual, challenging the constitutionality of, inter alia , sections 1, 4 and 10 of the Vaccination Act (see paragraphs 12, 13 and 16 above) on the grounds that they breached Article 8 of the Convention (see decision G 37/2022/22, V 173/2022-11). The complaint, which unlike the applicant’s constitutional complaint in the present case (see paragraph 5 above) complied with the formal requirements described in paragraph 7 above, was declared admissible in part. The Constitutional Court held that although section 10 of the Vaccination Act did not provide for any criminal liability before 15 March 2022 and had in any case been suspended before that date, the obligation to be vaccinated under section 1 of the Vaccination Act had been in force and had been applicable to the complainant at the time that he lodged the complaint, meaning that, for the purposes of domestic procedural law, he was directly affected by it. The Constitutional Court added that the applicant had no other legal remedy to raise the alleged unconstitutionality of the above provisions before it. In particular he could not be expected – nor was it even possible at the time – to provoke criminal proceedings.

22. On the merits, the Constitutional Court held that the obligation to be vaccinated constituted an interference with the physical integrity and self ‑ determination of persons falling under the scope of the law, who – although not subject to enforced coercion – could only avoid vaccination by moving abroad or by accepting criminal liability. The interference had, however, been justified in the light of the case-law of the European Court of Human Rights in Vavřička and Others v. the Czech Republic ([GC] nos. 47621/13 and 5 others, § 306, 8 April 2021). Based on the concept of social solidarity enunciated in that case, the Constitutional Court deemed it proportionate to require those for whom vaccination represented a remote risk to their health to accept this measure for the sake of the especially vulnerable groups who were unable to benefit from vaccination. The Vaccination Act had further been justified by the epidemiological situation at the relevant time, the fact that vaccination would help reduce overcrowding in health facilities, and the need to maintain the proper functioning of the public health system. The Constitutional Court emphasised that the monitoring mechanism under section 19 of the Vaccination Act (see paragraph 18 above) obliged the authorities to continuously assess, together with experts, the necessity and appropriateness of the law. Against this background, the Constitutional Court was satisfied that the impugned provisions of the Vaccination Act had been constitutional.

COMPLAINTS

23. The applicant complained under Articles 8 and 9 of the Convention that the obligation to be vaccinated, and its implementation under threat of criminal prosecution, as set out in sections 1 and 10 of the Vaccination Act (see paragraphs 12 and 16 above) interfered with his autonomous decision not to be vaccinated, which was based on serious and coherent reasons, such as the vaccine’s potential side effects and doubts as to its effectiveness and necessity. He alleged that the interference had been disproportionate in the light of the penalties and the availability of less intrusive means, had not been scientifically necessary and had been distinguishable from the interference at issue in Vavřička and Others (cited above), which had concerned a vaccination obligation for children, a lower fine for non-compliance, and standard and routine vaccinations. The applicant asserted that although the Vaccination Act had been suspended and its repeal was expected at the time that he had lodged his application, it had at least temporarily affected him directly, as an adult residing in Austria, and, in principle, would continue to affect him directly until it had been repealed outright.

24 . Under Article 6 of the Convention the applicant complained about the Constitutional Court’s rejection of his complaint as inadmissible. He claimed that this had been arbitrary and overly formalistic and had thus deprived him of his right to be heard. He contended that, given the potential imposition of criminal fines under the Vaccination Act, his case concerned a “civil right” within the meaning of Article 6 of the Convention.

THE LAW

25. The applicant alleged that the existence of legislation providing for an obligation to be vaccinated from 5 February 2022 onwards, and for the possibility of criminal prosecution for non-compliance from 15 March 2022, had constituted an interference with his rights under Articles 8 and 9 of the Convention.

26. The relevant provisions of the Vaccination Act, namely sections 1 and 10, had been in force between 5 February and 11 March 2022. When the applicant lodged his application with the Court on 28 June 2022, these provisions had already been suspended and were subsequently repealed altogether. The Court must accordingly consider whether the applicant may claim to be “the victim of a violation” within the meaning of Article 34 of the Convention.

27 . The Court reiterates that, in order to be able to lodge an application in accordance with Article 34 of the Convention, an individual must be able to show that he or she was “directly affected” by the impugned measure (see Burden v. the United Kingdom [GC], no. 13378/05, § 33, ECHR 2008). The Court has consistently held in its case-law that the Convention does not provide for the institution of an actio popularis and that its task is not normally to review the relevant law and practice in abstracto , but to determine whether the manner in which they were applied to, or affected, the applicant gave rise to a violation of the Convention (see, among other authorities, Beizaras and Levickas v. Lithuania , no. 41288/15, § 75, 14 January 2020; Roman Zakharov v. Russia [GC], no. 47143/06, § 164, ECHR 2015; and N.C. v. Italy [GC], no. 24952/94, § 56, ECHR 2002 ‑ X). In principle, applicants may thus not complain against a provision of domestic law simply because it appears to contravene the Convention (see Klass and Others v. Germany , 6 September 1978, § 33, Series A no. 28, and Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 101, ECHR 2014).

28 . However, it is open to a person to contend that a law violates his rights, in the absence of an individual measure of implementation, if he is required to either modify his conduct or risk being prosecuted (see Norris v. Ireland , 26 October 1988, § 31, Series A no. 142; Bowman v. the United Kingdom , 19 February 1998, § 29, Reports of Judgments and Decisions 1998 ‑ I; and Burden , cited above, § 34) or if he is a member of a class of people who risk being directly affected by the legislation (see Tănase v. Moldova [GC], no. 7/08, § 104, ECHR 2010; Marckx v. Belgium , 13 June 1979, § 27, Series A no. 31; and Johnston and Others v. Ireland , 18 December 1986, § 42, Series A no. 112). To fall into the latter category, an applicant must establish that he runs a real, not just “hypothetical”, risk of being directly affected in the not too distant future (see Burden , cited above, §§ 34-35). It is incumbent upon the applicant to produce reasonable and convincing evidence of the likelihood that a violation affecting him personally will occur; mere suspicion or conjecture is insufficient in this respect (see Centre for Legal Resources on behalf of Valentin Câmpeanu , cited above, § 101, with further references).

29 . In assessing whether an applicant can claim to be a genuine victim of an alleged violation, account should be taken not only of the formal position at the time when the application was lodged with the Court but of all the circumstances of the case in question, including any developments prior to the date of the examination of the case by the Court (see Tănase , cited above, § 105). The Court further points out that the conditions governing individual applications under Article 34 of the Convention are not necessarily the same as national criteria relating to locus standi , which may serve purposes different from those contemplated by Article 34 (see Norris , cited above, § 31).

30. In the present case the legislation complained of had never been enforced by way of an individual measure against the applicant nor, for that matter, any other individual in Austria. This is because the provisions of the Vaccination Act concerning non-compliance were only to be applied after 15 March 2022 and the Act was suspended on 12 March 2022 (see paragraphs 16-19 above). Subsequently, the impugned legislation as a whole ceased to be on the statute books (see paragraph 20 above). It thus falls to be determined whether the applicant had been “directly affected” by that legislation as defined in the Court’s case-law cited above (see paragraphs 27 ‑ 29 above).

31. The Court notes at the outset that, although the burden is on the applicant to produce reasonable and convincing evidence as to his victim status, he has not substantiated in any form how the Vaccination Act affected him personally. He described at length the reasons for his decision not to be vaccinated and for his choice of other forms of protection against COVID ‑ 19, but has not explained what effects the Vaccination Act had on him other than being, in abstracto , contrary to his personal choice (compare the circumstances in Zambrano v. France (dec.), no. 41994/21, § 43, 21 September 2021).

32. In the absence of submissions or evidence by the applicant on the manner in which the law affected him directly, the issue may be assessed by having regard to the applicant’s position at the time he lodged his application and all other relevant circumstances which arose prior to this Court’s examination of the case. When the applicant lodged his application with the Court on 28 June 2022, the provisions at the heart of his complaints – namely sections 1, 4 and 10 of the Vaccination Act – had already been suspended albeit temporarily (see paragraph 19 above). A few weeks after his application was lodged and prior to the date on which the case was examined by the Court, these provisions, together with the Act as a whole, were repealed. The Court thus concludes that the applicant was neither at risk of being affected by the Vaccination Act when he lodged his application with the Court, given that it had already been suspended by that stage, nor that he will face such a risk in the future, given that the Act has since been repealed (compare the circumstances in Roşca Stănescu and Others v. Romania (dec.), no. 35441/97, ECHR 2002 ‑ III, where two journalists complaining about a provision of the Romanian Criminal Code that criminalised insults to authority could not claim to be victims because they were no longer at risk of being affected by the impugned provision of the Criminal Code because of its non-applicability).

33. The Court also notes that the applicant has not substantiated how the vaccination duty had directly affected him on an earlier date before he lodged his application, in particular on a date before the Vaccination Act’s suspension on 12 March 2022. However, to the extent that such substantiated allegations could have been relevant for his case, he would have had to first submit them, along with the relevant evidence, to the Constitutional Court through an individual complaint under Article 140 § 1 (1)(c) of the Federal Constitution, which was an effective remedy in his case (see paragraph 21 above). However, the complaint which he lodged with the Constitutional Court was held inadmissible for failure to fulfil the necessary formal requirements (see paragraph 7 above; compare and contrast the complaint made by another individual against the Vaccination Act before the Constitutional Court, cited in paragraph 21 above, which led to a judgment on the merits on 23 June 2022). Thus, the Court notes that the applicant has not properly exhausted the domestic remedies which were available in his case ( see Ben Salah Adraqui and Dhaime v. Spain (dec.), no. 45023/98, ECHR 2000 ‑ IV).

34. For these reasons, the Court concludes that the applicant can neither be considered “a victim of a violation” within the meaning of Article 34 of the Convention, nor to have exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention. Accordingly, his complaints under Articles 8 and 9 of the Convention must be declared inadmissible pursuant to Article 35 §§ 1, 3 and 4 of the Convention for being incompatible ratione personae with the provisions of the Convention and for non ‑ exhaustion of domestic remedies.

35. The applicant complained that the Constitutional Court’s decision declaring his complaint inadmissible had been arbitrary and overly formalistic, and had breached his rights under Article 6 of the Convention, which had been applicable to those proceedings in that they concerned a “civil right”.

36. Even assuming that there existed a genuine and serious dispute over a “civil” right for which the proceedings before the Constitutional Court were directly decisive (see, inter alia , Voggenreiter v. Germany , no. 47169/99, §§ 30-31, ECHR 2004 ‑ I), the Court does not consider that the decision of the Constitutional Court, which laid out in detail the reasons for the inadmissibility by reference to its well-established case-law and procedural rules (see paragraph 7 above), was arbitrary or overly formalistic in the applicant’s case.

37. The Court thus finds that, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or the Protocols thereto.

38. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 7 September 2023.

Andrea Tamietti Tim Eicke Registrar President