OPEN LETTER ON THE AMENDING PROVISIONS OF BILL NO. 7897 OF THE COVID ACT

Editor’s note

We thank Mr Christian Bock for his kind permission to publish this open letter on the pages of Expressis-Verbis. We are increasingly pleased that the people of Luxembourg are beginning to act and that the tireless work of many people, including Mr Bock, is beginning to bear fruit. Me Bock wrote this in French language; we translated it into German and English for your best reading comfort — however, kindly note that only the French version is authoritative.

With the discriminatory new anti-freedom rules, what about checking conformity with the Constitution and international agreements?

In the Grand Duchy, the State Council, acting as “guarantor of the Constitution”, assesses the conformity of legislation with the Constitution and international conventions and treaties before the vote in Parliament.

Such conformity checks require a genuine, serious and conscientious in-depth analysis of whether any restriction on fundamental freedoms is compatible with the strict conditions laid down in constitutional and international texts. This has been sorely lacking throughout the health crisis, which has now lasted for more than 18 months. The restrictions were presumed necessary, appropriate and proportional, and assumptions were made without proper examination.

A likely explanation for this glaring failure is that the State Council did not have enough time at its disposal to issue an opinion based on extensive and time-consuming research and multidimensional considerations, and was thwarted in its work by the impossibly tight deadline set by the Government.

An ex-post review by the Constitutional Court or the European Court of Human Rights is a complicated if not impossible proposition and, in the present case, with the amendments to the Covid-19 Act in force since July 2020, the legal provisions will have changed several times by the time a final judicial decision is reached.

For this reason, a team of lawyers, including myself, carried out a thorough legal investigation and drew up a legal opinion (reproduced in its entirety below) which analyzed in detail the compatibility of the restrictions provided for in the new draft law with the various provisions set out in higher-level texts. This analysis inevitably led to the conclusion that the restrictions do not meet the criteria of either constitutional law or international law, and are indeed unlawful in their entirety.

The restrictions on our freedom per se do not meet constitutional criteria, as seen in our analysis of the current stage of the health crisis. Moreover, the unequal treatment of vaccinated and unvaccinated persons envisaged by the Government in its latest draft law violates another constitutional norm, namely the principle of equality and non-discrimination enshrined in the Luxembourg Constitution as well as in supranational conventions.

The measures are not based on any objective, rationally justified inequalities and do not meet the requirements of appropriateness and proportionality regarding the intended purpose.

In his speech at the press conference following the presentation of the bill, the Prime Minister reiterated that the aim was to protect public health. However, looking at the official figures on the number of patients currently in intensive care — 3 people! — or hospital beds occupied by Covid-19 patients — less than 1% — it goes without saying that the real objective cannot be the stated purpose of lessening the burden of our hospitals.

The figures not only show that no further restrictions are needed, but also that discrimination based on vaccination status is not a suitable way to achieve the desired public health goal. All positive cases are affected by the Delta variant, against which vaccines are, as stated in the explanatory memorandum to the draft law, “less effective” — in protecting the collective as well as the individual. Moreover, according to the Ministry of Health, 70% of positive cases are vaccinated persons, and a large proportion of those admitted to hospital have been “immunized”. This begs the question — how is it possible to justify that potentially contagious vaccinated persons have access to parties, cinemas, or even public eateries without providing proof that they are not infected, while unvaccinated persons are obliged to provide this proof by paying for a test, while running the risk of being infected by contagious but untested vaccinated persons? There seems to be a real problem of coherence and logic here.

The real goal revealed during the press conference: to attain a certain vaccination rate (established in a completely arbitrary way) to be able to end the anti-freedom measures. After all, the excessive discriminatory anti-freedom measures correspond to a purely political objective and not to a legitimate objective related to public health. The introduction of indirect vaccine mandates whose purpose is to give politicians an excuse to reverse their own anti-freedom decisions is not a legitimate objective.

When it comes to fundamental freedoms, citizens have every right to expect serious legislative work carried out respecting constitutional values, not mediocre or hasty work. Members of the Chamber of Deputies, even if they belong to a political party, must not forget that they represent only the people and their interests.

This legal opinion is supported by the F.A.I.R. movement, which rallied nearly 300 civil servants and public employees who mobilized following the announcement of the general Covid check.

This message has been sent to:

• HRH the Grand Duke;
• the ladies and gentlemen of the Chamber of Deputies;
• the State Council;
• the professional chambers;
• the national trade unions;
• the Advisory Commission on Human Rights;
• the “Ombudsfrau” Mrs Claudia MONTI;
• the “Ombudsman” for children and adolescents

Me Christian BOCK

Here you can download a legal report by Mr Christian Bock: