No grounds exist for suspending the Estonian Defense Forces (EDF) current vaccination requirement, put in place in late summer, the Supreme Court found, following rulings by lower tier courts which overruled former EDF members who had refused to get vaccinated and were dismissed. The court also dismissed an application for interim relief, i.e. the temporary lifting of their dismissal.
The in two rulings published on Thursday, the Tartu-based Supreme Court found that the objectives of the vaccination requirement are extremely weighty, and the requirement does not degrade human dignity.
However, the courts have to analyze more closely in further proceedings whether the Estonian Defense Forces (EDF) would have had any less stringent measures at their disposal for resolving the situation than the release of members of the defense forces from service.
The Supreme Court sent the actions to a first-tier administrative court to continue the proceedings.
The top court also heard an application for an interim injunction by one of the DF members involved, which would have suspended their dismissal, but overturned this on the grounds that the prospects for success of the legal action were rather small, and outweighed by the interests of national defense and security.
Supreme Court findings
The Supreme Court found the EDF vaccination program is aimed at maintaining defensive readiness and therefore national security.
While proportionality of this requirement will have to be further examined by the courts in the course of the procedure, at this stage the Supreme Court's Administrative Chamber says it has no serious doubts as to the requirement's justification.
The court also noted the lack of alternative, equally effective measures in combating the coronavirus, adding that restrictions on movement, prohibitions on stay, quarantine and other measures for closing society cannot be considered as more lenient than the vaccination requirement, and would also lead to a greater infringement on the rights of the unvaccinated than the requirement itself.
The risk of not getting vaccinated also outweighs the risk of vaccine side-effects.
Vaccination requirements also cannot be imposed indefinitely by means of administrative acts, including general government orders as used at present.
The actions concerned an order issued by the commander of the EDF, Lt. Gen. Martin Herem, on August 31, which required EDF personnel to provide, within a two-week period, either proof of vaccination against the coronavirus, or of recovery from the disease.
The EDF began to dismiss those who had not complied with the requirement after that deadline had passed.
The applicants first challenged the order requiring vaccination, and later asked the court to also prohibit their dismissal.
The first-tier administrative court and the second-tier circuit court both considered the pre-emptive appeals inadmissible, and would not grant any interim injunction.
Both courts found that it was viable for the applicants to adequately protect their rights by contesting the dismissal or termination of their employment contract ex-post.
The Administrative Chamber of the Supreme Court found the order introducing the vaccination requirement to be distinct from any ordinary military order, as one which concerns prerequisites both for remaining in active duty and important fundamental rights - the right to life, health and physical integrity.
It must be possible to challenge such internal legislative acts in court, the top court found.
The Supreme Court noted that if the court were to declare the dismissal of the EDF members unlawful, it may no longer be possible to reinstate them.
At the same time, it is difficult, if not impossible, for EDF members to find new professional employment outside the EDF and the volunteer Defense League (Kaitseliit), the court said.
As regards the need for interim legal protection, the Supreme Court also gave a preliminary assessment of the prospects of success of the action bought by one of the members of the defense forces.
As these were rather small, the chamber did not suspend the order of dismissal.
The applicant claimed, inter alia, that the state can only establish vaccination requirements via legislation, and not government order.
However, on the basis of the current practice of the Supreme Court, it cannot be excluded that such an obligation is established by a lower-level act, i.e. an order, issued on the basis of actual legislation.
Editor: Andrew Whyte