Governmental legislation on compulsory vaccination does not violate the European Convention on Human Rights (“Convention”), the European Court of Human Rights (“ECHR” or “Court”) ruled on April 8. Particularly, the ECHR noted that compulsory vaccination of children in the Czech Republic did not violate the right to respect for private life.
The complaint was raised with reference to a fine imposed on Mr Vavřička and the non-admission of the child applicants to nursery school. The applicants said the legislation violated their rights under the Convention.
Applicants claimed that the Czech state violated their rights by imposing a fine on Mr Vavřička and refusing admission of non-vaccinated child applicants to nurseries. More precisely, the applicants relied on (i) the right to personal development in the context of attending nursery, as well as (ii) the right of parents to care for their children in accordance with their opinions, convictions, and conscience. Additionally, in the applicants’ view, the process of defining the vaccination schedule was not transparent, lacked proper analysis and any public debate. Furthermore, they said some members of the official bodies involved had a conflict of interest in the process.
Moreover, the applicants acknowledged that vaccination relates to issues of general interest, social solidarity, and shared responsibility. However, they considered the mandatory vaccination model to be unacceptable. In their view, a voluntary vaccination model would be more efficient and more proportionate.
However, the Czech government argued that by introducing mandatory vaccination, the Czech state was acting to protect the rights of those who can be vaccinated, but also of those who cannot be vaccinated for medical reasons. In the Czech government’s view, it was the applicants’ parents’ failure to comply with a statutory obligation that caused the non-admission and cancellation of admission to nursery school. Additionally, attending nursery school was not part of the execution of one’s right to private life. On the contrary, it is a matter of public activity, and consequently, it falls outside the scope of Article 8 of the Convention, which protects the right to respect for private life.
According to Czech regulations, vaccination is compulsory for children against nine diseases, all well known to scientists. As a result, non-vaccinated children are not allowed to attend nurseries and exceptions are made for those who cannot be vaccinated on medical grounds. An exemption from compulsory vaccination may also be permitted on the basis of “secular objection of conscience” established by the Vavřička case-law of the Czech Constitutional Court.
Although being obligatory under Czech legislation, vaccination cannot be forcibly administered. Noncompliance with the vaccination obligation is subject to administrative fines in the Czech Republic.
In regard to the mandatory nature of vaccination, the ECHR focused on a state’s margin of appreciation, saying the Czech Republic had a wide margin of appreciation given that “in matters of health-care policy, it is the domestic authorities who are best placed to assess priorities, the use of resources and social needs”.
Furthermore, the ECHR stressed there was no single model among parties to the Convention regarding vaccination. According to the ECHR, the model of compulsory vaccinations is neither the only nor the most common one in Europe. When it comes to the vaccination of children, parties to the Convention adopt different approaches. Some countries make vaccination a matter of recommendation, in some cases only one or more vaccines are compulsory, while in others all vaccines can be obligatory. Additionally, the Court stressed that a number of parties to the Convention are introducing measures to increase herd immunity due to a decrease in voluntary vaccinations. Taking the Czech Republic into account in particular, the ECHR found it to be “at the more prescriptive end of that spectrum”.
The Court held that the measures contested by the applicants were proportionate to the legitimate aims pursued by the state. In other words, the Czech Republic was acting to address “a pressing social need to protect individual and public health” and has not violated Article 8 of the Convention.
Being the first one on compulsory childhood vaccination, this judgment was delivered by the Grand Chamber of the ECHR by a majority of votes, having one partly concurring and partly dissenting opinion and another dissenting opinion.
Although the case is unrelated to COVID19 vaccination, this judgment could prove to have an impact on potential future cases that may arise regarding vaccination against the coronavirus. However, one thing we do know – when it comes to compulsory infant vaccination, the Court found no violation of the Convention.
Authors: Jelena Škorić, Nikola Vjetrović, Vanja Popović
