The authors of the communication are Gi.C., born on 11 May 2005; A.M., born on 13 August 2006; D.P., born on 5 February 2008; A.P., born on 24 September 2008; M.R., born on 19 February 2009; Ga.C., born on 28 March 2009; G.M., born on 10 September 2009; C.C., born on 26 October 2009; A.LT., born on 29 January 2010; and B.C., born on 27 March 2010. The authors claim they are victims of violations by the State Party of articles 27 (1), 28, 29 (1) and 31 of the Convention. The authors are represented by counsel, Ms. Giorgia Camerata. The Optional Protocol entered into force for the State Party on 4 May 2016, respectively.
On 3 March 2022, pursuant to article 6 of the Optional Protocol, the working group on communications, acting on behalf of the Committee, rejected the authors’ request that it submit a request to the State Party for interim measures.
Facts as submitted by the authors
Between April 2021 and February 2022, to counter the coronavirus disease (COVID19) pandemic, the State Party adopted emergency legislation, which required that children and adolescents above the age of 12 hold a “super green pass”3 in order to access school premises or participate in educational, cultural, sporting, recreational or vocational activities. Following the adoption of that legislation, children and adolescents above the age of 12 who could not prove full vaccination against COVID-19 were unable, inter alia: to practise team or individual sports activities, including outdoors; to use public transport; to participate in cultural activities or to enter libraries; or to participate in school outings that included overnight stays or meals or visits to a museum or other cultural centres.
- This refers to the certificate of vaccination against COVID-19 with a validity of six months since recovery from a COVID-19 infection or the last vaccine dose. ↩
The authors state that children and adolescents over 12 years of age who are not fully vaccinated against COVID-19 or do not have proof of recent recovery from an infection may be required to participate in distance learning and to quarantine in certain cases. In contrast, fully vaccinated children and adolescents face no restrictions regarding in-person school attendance.
The authors further assert that multiple reports have analysed the discriminatory and harmful nature of the State Party’s legislation. A 2020 parliamentary report by the National Authority for Children and Adolescents highlights the negative impact of the pandemic on youth mental health, citing restrictions on fundamental rights related to education, socialization, recreation and sports. Since the first wave of the COVID-19 pandemic, the National Authority for Children and Adolescents has repeatedly warned the Government about the harm caused by these restrictions and has urged the implementation of protective measures for children and adolescents.
Exhaustion of domestic remedies
According to the authors, no effective domestic remedies were available to them. They argue that the State Party’s legal system does not permit individuals to challenge a law directly but only allows them to contest enforcement decisions that personally affect them. To date, the authors have not been subject to any individual enforcement decisions related to the State Party’s “anti-COVID-19” legislation. They further assert that the inability to enrol in cultural, sporting or recreational activities does not constitute an enforcement decision that could be contested in a domestic court, thereby rendering any judicial remedy unavailable.
The authors formally submit that, even if a theoretical legal avenue were available, it would have been neither accessible nor effective in practice. Under the State Party’s legal framework, individuals are not permitted to challenge statutes and by-laws directly, as only the Constitutional Court holds the authority to determine whether a law is unconstitutional. The authors emphasize that the sole mechanism for contesting the lawfulness of a statute is through judicial proceedings, wherein a judge may refer the matter to the Constitutional Court. However, in the present case, the absence of an enforceable administrative act deprived the authors of any legal basis to initiate such proceedings, effectively denying them access to justice.
In addition, the authors submit that filing lawsuits against sports or cultural entities that refused to enrol unvaccinated children and adolescents over 12 years old would have been impractical. As stated by the authors, such legal actions would have involved an excessively long process, disproportionate to the urgency and temporary nature of the “antiCOVID-19” legislation. Furthermore, the authors claim that initiating such legal proceedings is financially burdensome, procedurally complex and ultimately futile, as no domestic legal remedy could have provided timely relief from the discriminatory effects of the legislation.
Complaint
The authors claim that the State Party’s legislation to counter the COVID-19 pandemic violates their rights under articles 27 (1), 28, 29 (1) and 31 of the Convention.
The authors claim that the State Party’s legislation discriminates on the basis of age between children and adolescents. At the age of 12, unvaccinated children, who could previously freely access everything, are now excluded from social, cultural, sports and recreational activities and face unequal treatment regarding in-person schooling. The authors further claim that children and adolescents above the age of 12 are being treated as adults.
The authors claim that the State Party’s legislation goes against every child’s right to physical, mental, spiritual, moral and social development, their right to education directed to the development of their personality and their right to leisure.
State Party’s observations on admissibility
On 22 May 2022 and 5 September 2022, the State Party submitted its observations on admissibility and the merits of the complaint.4 It submits that the communication should be found inadmissible for the authors’ lack of victim status to present the communication and for lack of sufficient substantiation.
- For the purposes of the present decision, only the State party’s observations on admissibility will be reflected. See Saachi et al. v. Turkey (CRC/C/88/D/108/2019), para. 4.1. ↩
Regarding the authors’ lack of victim status, the State Party contends that the authors have failed to demonstrate the nexus between the violation of rights and freedoms and the direct intention to restrict those rights following the adoption of emergency decrees, without paying attention to necessity, proportionality and temporality. The State Party asserts that, on 31 January 2020, the Council of Ministers declared a state of national emergency in response to the health risks posed by the outbreak of transmissible viral diseases. The state of emergency was subsequently renewed under constitutional provisions. The State Party emphasizes that the balance between rights and duties is a fundamental principle in the legal interpretation of the Basic Law, even during crises such as a public health emergency, particularly when caused by a global pandemic. It further argues that such balance must be sought with due consideration for the right to health – a collective interest – which may necessitate certain restrictions of other fundamental rights. According to the State Party, a limitation of rights and freedoms is permissible if it is provided for by law, imposed in pursuit of legitimate aims and necessary in a democratic society for the pursuit of those aims or based on a reasonable balance and proportionality between the measure imposed and the aim pursued.5
- The State Party quotes, for reference, European Court of Human Rights, Solomakhin v. Ukraine, Application No. 24429/03, Judgment 15 March 2012; Hristozov and others v. Bulgaria, Applications Nos. 47039/11 and 358/12, Judgment, 13 November 2012; Vavřička and others v. Czech Republic, Grand Chamber, Applications Nos. 47621/13 and five others, 8 April 2021. ↩
The State Party maintains that all legislative measures, ordinary and extraordinary, were adopted and implemented in full compliance with international standards. It asserts that, throughout the pandemic, the competent health authorities took all measures necessary and appropriate to safeguard the health and well-being of children and adolescents. Additionally, targeted economic, social and cultural support measures were introduced to assist families and communities as health risks diminished. The State Party contends that no student was deprived of the right to education, as learning was ensured through the implementation of distance learning and integrated digital learning. Furthermore, it states that the requirement to hold a “green pass” or “reinforced green pass” did not prevent pupils or students from accessing education at any level.
The State Party further submits that the communication is inadmissible because the authors failed to demonstrate a current and direct infringement of their right to education and study, mobility and freedom of association and assembly. According to the State Party, the authors failed to demonstrate the prejudice that they suffered and whether they experienced any restriction in access to school or leisure activities. Furthermore, the State Party states that, if that had been the case, it would have been possible for the authors to contest legal measures before the competent judicial authorities.
Authors’ comments on the State Party’s observations on admissibility
In their comments dated 17 January 2023, the authors reiterate that children and adolescents over the age of 12 and adolescents who were not in possession of the reinforced green pass were unable: to practise sports or team activities, even outdoors; to use public transport; to participate in cultural activities; to have access to cultural, social or recreational centres, even outdoors; participate in group activities, even outdoors; to participate in school outings, including overnight stays or meals or visits to a museum, exhibition or other cultural centres; or participate in school activities in person. The authors contend that those considerations sufficed to prove the serious prejudices suffered not only by them but by all children and adolescents over 12 years in the State Party who could not prove that they had completed the vaccination cycle or that they had recovered from a COVID-19 infection fewer than 120 days prior.
The authors argue that the State Party failed to demonstrate that the difference in treatment was objectively and reasonably justified. The authors further assert that the restrictive measures imposed to contain the spread of COVID-19 created anomalous and unforeseen developmental conditions for adolescents, significantly impacting their growth and well-being.
Consideration of admissibility
Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 20 of its rules of procedure under the Optional Protocol, whether the communication is admissible under the Optional Protocol.
The Committee notes the State Party’s argument that the authors failed to demonstrate a current and direct infringement of their Convention rights or a prejudice suffered by them and whether they experienced any restriction in access to school or leisure activities. Furthermore, the State Party states that, if that had been the case, it would have been possible for the authors to contest legal measures before the competent judicial authorities at the domestic level.
At the same time, the Committee notes the authors’ claims that the mere existence of those laws, applicable to all children and adolescents over 12, sufficed to justify a violation of their rights under articles 27 (1), 28, 29 (1) and 31 of the Convention.
The Committee considers that it cannot assess abstract challenges to national laws or an actio popularis. Rather, individuals or groups of individuals bringing a communication under the Optional Protocol and claiming to be victims of violations of the Convention or its two substantive Optional Protocols must demonstrate that their rights have been actually impaired, by act or omission of the State Party, or that such impairment is imminent.6 In the present case, the Committee notes that, as children and adolescents over the age of 12 at the time that the cited legislation was adopted, the authors were in the category of persons to whom the law could be applied. However, the Committee observes that the authors have failed to provide any information as to how these emergency and temporary measures affected the enjoyment of their Convention rights individually7 and therefore failed to demonstrate any personal, real and significant harm to justify their victim status.8 Consequently, the Committee declares the communication inadmissible under article 5 (1) of the Optional Protocol.
- In that regard, see Human Rights Committee, Beydon et al. v. France (CCPR/C/85/D/1400/2005), para. 4.3; Aalbersberg et al. v. Netherlands (CCPR/C/87/D/1440/2005), para. 6.3; Brun v. France (CCPR/C/88/D/1453/2006), para. 6.3; and Andersen v. Denmark (CCPR/C/99/D/1868/2009), para. 6.4. ↩
- European Court of Human Rights, Mittendorfer v. Austria, Application No. 32467/22, decision, 4 July 2023, para. 30. ↩
- See, a contrario sensu, Saachi et al. v. Turkey, para. 9.14. ↩
The Committee therefore decides: (a) That the communication is inadmissible under article 5 (1) of the Optional Protocol; (b) That the present decision shall be transmitted to the authors of the communication and, for information, to the State Party.
Individual Opinion of Committee member Benoit Van Keirsbilck (dissenting)
The case was submitted by 10 children and adolescents over the age of 12 who complain about restrictions in their access to education, culture, sport and other activities during the coronavirus disease (COVID-19) pandemic, owing to regulations adopted by Italy to limit the spread of the virus.
Although the Optional Protocol does not provide for the possibility of class actions (actio popularis), it nevertheless recognizes that communications may be submitted by an individual or a group of individuals. This has been recognized in other cases, such as M.L. et al. v. Georgia.9 This is the case here, as each of the complainants is clearly identified.
- CRC/C/96/D/144/2021. ↩
It is indisputable that the authors failed to specify individually and in sufficient detail how their rights were specifically affected. However, it is well known that the antiCOVID19 law provided for clear and precise restrictions on access to services, leisure and other activities, thereby infringing rights recognized by the Convention.
All the authors are subject to compulsory schooling and have the right to education, leisure and respect for their private life; the undisputed fact that they were unable to attend school but could only follow distance learning therefore infringed this right. I personally but respectfully believe that the majority was wrong to consider that they “failed to provide any information as to how these emergency and temporary measures affected the enjoyment of their Convention rights individually and therefore failed to demonstrate any personal, real and significant harm to justify their victim status” (para. 6.4 of the Committee’s decision).
The level of requirement thus set seems to me to be disproportionately high, at least as far as schooling is concerned (for other activities, it would have been necessary for each child to explain precisely what activities they had been doing before and could no longer do afterwards).
We know that the individual communications procedure can be used in the context of strategic litigation to advance children’s rights in a comprehensive manner. This approach is even encouraged by the Committee, which has had to examine such cases or which, in its Views, asks States not only to remedy the individual violations found, but also to address the systemic causes of these violations (by changing laws or practices).
If this obstacle to admissibility had been removed, it is certain that this case would have raised another question of admissibility that the Committee was unable to examine: has the condition of exhaustion of domestic remedies been met? This question is contested by the State Party, but the authors develop interesting arguments regarding the existence and effectiveness of available remedies.
Finally, it would have been interesting to rule on the merits of the case, to determine whether the interference with the enjoyment of rights was justified and proportionate, whether the age of 12 was set on sufficient grounds and whether there was discrimination based on age or on whether or not the person had been vaccinated.
At a time when vaccination is often called into question, it would have been interesting for the Committee to rule on the legitimacy of the public policies that impose it.