Restrictions for those who are not vaccinated bring along various rights violations. These violations of rights must be evaluated differently for each type of situation. Body immunity of the person is one of the most valuable fundamental rights and is guaranteed by both the constitution and the human rights treaty. It is possible to touch the physical integrity of the person, but only if it is written in the law and there is a state of necessity.
In our personal opinion, the weaselly vaccination decision is intended to be taken in the name of being able to prevent an epidemic disease that has caused the death of millions of people around the world, and at this point, it meets the condition of necessity of the constitution. In addition to this situation, it is clearly stated in Article 15 of the Constitution that fundamental rights and freedoms can only be partially or completely stopped in the event of war, mobilization, strict administration and a state of emergency. In other words, material and spiritual integrity can only be violated in these cases. In this respect, it is agreed that the necessity of vaccination is not a violation of the constitution, and that it is possible with the declaration of state of emergency. In addition, since there is no legal support for compulsory vaccination, vaccination cannot be made obligatory unless a clear regulation is made in the law. However, it is possible for the administration to make a regulation and make vaccination compulsory for this disease, where the risk of death is significant.
Can the boss dismiss the unvaccinated employee
After evaluating the legal dimension of the vaccination obligation in general, one of the most talked about issues on the agenda is that the boss can dismiss the unvaccinated employee. Whether it is possible or not should be evaluated within the scope of labor law and the constitution. The boss has to ensure all kinds of safety of his employees in the workplace.
All kinds of measures must be provided by the boss in terms of both working conditions complying with the standards and occupational health and safety. This situation is regulated in Article 56 of the constitution as “everyone has the right to live in a healthy and stable environment”. Against the Covid-19 virus, the boss should take all the precautions and provide all the necessary opportunities for the vaccine to his employees. The law entitles the employer, whose employee refuses to be vaccinated despite these measures, to terminate the employment contract for reasons of occupational safety. This termination is made as a valid reason termination. Unlike rightful termination, rights such as severance and notice pay must be paid to the personnel. So, is this situation in line with the constitution and human rights? In my personal opinion, dismissing a person just because he has not been vaccinated causes a violation of his personal rights. Because, as it is known, in Article 23 of the TMK, it is possible to receive, vaccinate and transfer biological issues of human origin upon written request. however, the one who is under the obligation of giving biological consideration cannot be asked to fulfill his obligation; It is stated that no claim for pecuniary and morale compensation can be made”. As a result, forcibly vaccinating someone is an attack on personal rights. Since personal rights are guaranteed by the constitution, forcing the person to be vaccinated, otherwise, terminating the employment contract will contradict the Constitution.
Can the right to education be terminated?
If we evaluate the issue in terms of education, if the right to education is brought to an end by making vaccination a rule, it is obvious that the right to education will result in violation of the constitution due to the fact that the right to education is a public right. In addition, considering that the risky results of the vaccine, albeit low, may occur, especially for children under the age of 18, since their bodily integrity may be in danger, element 17 will be mentioned as a violation of constitutional rights.
Adv. Elvan Kilic
