COVID-19 vaccination campaign: the decision not to include, as a matter of priority over the rest of the population, all inmates in the first phase of the vaccination campaign does not reveal any serious and clearly illegal deficiency
At the request of an association, the Conseil d’Etat’s urgent applications judge ruled that prisoners over 75 years of age or at high risk of developing serious or fatal forms of the disease are to be included in the first phase of vaccination that has begun, just like the rest of the population. The urgent applications judge does not consider it mandatory to vaccinate all prisoners as a priority, as the risk of developing a severe form of COVID-19 does not appear to be higher for inmates than for the average population.
In an interministerial instruction dated 15 December 2020, the French Minister of Solidarity and Health and the French Minister of the Interior outlined the first stage of the COVID-19 vaccination campaign. This instruction is based on an opinion from the Haute Autorité de Santé and defines as a priority those people likely to develop serious or fatal forms of the disease: i.e. elderly people residing in long-term care facilities and services as well as in other accommodation facilities, and professionals working there who themselves present an increased risk (over 65 years of age and/or presence of co-morbidity). In January, priority was extended to include all over 75 years of age and those with certain illnesses.
The Robin des Lois association has asked the Conseil d’Etat’s urgent applications judge to order the Prime Minister to modify this instruction so that all inmates in prisons are included in this first phase.
The most at-risk inmates are already beginning to benefit from vaccination.
The judge found that the inmates identified as priority individuals, particularly the elderly, were included in the first stage of vaccination. The judge also noted in this respect that the prison administration had already initiated the campaign in its prisons. Thus, the situation of inmates in prisons is taken into account on an equal footing with the rest of the population in the context of the vaccination campaign.
Inmates do not appear to be at greater risk of developing serious or fatal forms of the disease.
The Conseil d’Etat’s urgent applications judge found that there is nothing today to establish that, because of their imprisonment, the inmates would have a greater risk than the rest of the population of developing the most serious forms of COVID-19. The judge also observed that, given the state of scientific knowledge, the effectiveness of the vaccine against the risk of transmission of the disease has not been established, which justifies that its use should be reserved as a matter of priority for persons likely to develop the most serious forms. Finally, the judge observed that the prison administration has taken measures to limit the spread of the virus (compliance with social distancing measures, distribution of masks, isolation of infected individuals, screening campaigns), and that prisoners, like other persons living in communities (psychiatric facilities, shelters, etc.), are included in the fourth phase of the vaccination campaign, before the rest of the adult population, which is included in the fifth phase.
For all these reasons, the Conseil d’Etat’s urgent applications judge ruled that, despite the particular attention required in prisons, the decision not to include all prisoners among the priority groups for the first phase of the vaccination campaign does not constitute a clearly unlawful infringement of a fundamental freedom. The judge therefore rejected the association's request.