The European Court of Human Rights (ECtHR) in the judgment of the Grand Chamber in the case of Vavřička and Others v Czech Republic has ruled by a majority of sixteen votes to one that there has been no violation of Article 8 (right to respect for private life) of the European Convention on Human Rights.
Facts of the case
In the Czech Republic, there is a general legal obligation to vaccinate children against nine diseases. While an individual cannot be physically forced to comply with this obligation, parents who fail to comply with this legal obligation without good reason may be liable to a fine. In addition, unvaccinated children mustn’t be admitted to kindergartens (with an exception for those who cannot be vaccinated for medical reasons).
In the present case, the first of the six applicants was fined for not having his children vaccinated. All the others or their children were refused admission to kindergartens for the same reason.
Alleged violations
In particular, the applicants argued that the various consequences that they suffered due to their non-complicity with the legal obligation to vaccinate the children were incompatible with their right to respect their private lives under Article 8 of the Convention. The applicants also referred, inter alia, to Article 9 (freedom of thought, conscience, and religion) and Article 2 of Protocol No. 1 to the Convention (right to education), but the Court did not consider this as the conditions for doing so were not met.
Right to respect for private life
The Court emphasized, that according to its case law, mandatory vaccination, as an involuntary medical intervention, constitutes an interference with physical integrity and thus concerns the right to respect for private life protected by Article 8 of the Convention.
Best interest of the child
The Court found that the obligation to vaccinate concerned nine diseases against which the scientific community considered vaccination to be effective and safe. It added that in the Czech Republic, the duty to vaccinate is strongly supported by the relevant health authorities. It could be said that mandatory vaccination represents a response by the public authorities to the societal need to protect individual and public health against these diseases and to guard against the trend of declining vaccination rates among children.
It follows from the judgment that the best interests of children must be of paramount importance in all decisions affecting them. With regard to immunisation, the aim must be that every child is protected from serious disease by vaccination or herd immunity. Therefore, according to the Court’s assessment, the Czech healthcare policy is in line with the best interests of children, placing them at its core.
Proportionality
The Court also assessed the proportionality of the vaccination policy. Article 8 of the Convention establishes the right to respect for private and family life, one’s home, and correspondence. Public authorities cannot interfere with the exercise of this right unless it is prescribed by law and necessary in a democratic society for national security, public safety, the economic well-being of the country, prevention of disorder or crime, protection of health or morals, or the protection of the rights and freedoms of others. Consequently, the Court always assesses the proportionality of the interference, i.e., whether the state’s interference in this domain is necessary in a democratic society.
The Court found that the Czech policy pursued the legitimate aims of protecting the health and rights of others, noting that vaccination protects both those who receive it and those who cannot be vaccinated for medical reasons and who therefore rely on herd immunity for protection against serious infectious diseases. It also held that, in that context, the defendant State was entitled to a wide margin of appreciation.
The Court ruled that the fine imposed on Mr Vavřičký was not excessive. It also ruled that, although the non-admission of the applicants’ children to kindergarten constituted a loss of an important opportunity for the development of their personality, it was a preventive rather than a punitive measure, which was limited in time, since, once they had reached the age of compulsory attendance at school, their admission to primary school was not affected by their vaccination status.
Consequently, the measures contested by the applicants, or the imposition of mandatory vaccination, are, in the Court’s view, proportionate to the legitimate aims pursued by the Czech Republic (protection against diseases that could seriously endanger health).
Necessary in a democratic society
The Court went on to clarify that, in the end, the question to be answered was not whether a different, less prescriptive vaccination policy could have been adopted, as in some other European countries. On the contrary, the question was whether the Czech authorities had exceeded their margin of appreciation in achieving a certain balance or proportionality in this area. The Court concluded that they had not done so and that the contested measures could be regarded as ‘necessary in a democratic society’.
Implications of the judgment
The Court’s decision therefore implies that the State may, by law, make vaccination mandatory. Mandatory vaccines are a legitimate objective in the public interest since they protect the health of the individual and, the health of the population as a whole when the medical profession decides so. If a justified medical reason is prescribed by law as the only permissible exception to mandatory vaccination, this doesn’t contradict the Convention. It is not contrary to the Convention to impose financial penalties on parents who fail to have their children vaccinated, provided that they are not excessive, nor is it contrary to the Convention to prohibit the admission of unvaccinated children to kindergartens. The primary objective of such regulation is not punishment but prevention of a further decline in the number of vaccinated children, which can pose a problem. As such it is in line with the Convention. Furthermore, this legal framework is a societal necessity, and these measures are thus necessary in a democratic society.
What this means for the possible introduction of mandatory vaccination against COVID-19 is not yet clear, but there are indications that it could be possible if it is mandated by law, if the vaccination and the vaccine are supported by the medical profession, and if it is considered necessary in a democratic society to protect public health.
Written by attorney and partner Katarina Emeršič Polić, mag. prav.