EIT: Lasten pakollinen rokottaminen ei rikkonut ihmisoikeussopimusta

8.4.2021 | Oikeusuutiset

Markku Fredman

Court’s first judgment on compulsory childhood vaccination: no violation of the Convention

In today’s Grand Chamber judgment1 in the case of Vavřička and Others v. the Czech Republic (applications no. 47621/13 and five other applications) the European Court of Human Rights held, by a majority (sixteen votes to one), that there had been:

  • no violation of Article 8 (right to respect for private life) of the European Convention on Human

In the Czech Republic there is a general legal duty to vaccinate children against nine diseases that are well known to medical science. Compliance with the duty cannot be physically enforced. Parents who fail to comply, without good reason, can be fined. Non-vaccinated children are not accepted in nursery schools (an exception is made for those who cannot be vaccinated for health reasons).

In the present case, the first applicant was fined for failure to comply with the vaccination duty in relation to his two children. The other applicants were all denied admission to nursery school for the same reason.

The Court pointed out that, under its case-law, compulsory vaccination, as an involuntary medical intervention, represents an interference with physical integrity and thus concerns the right to respect for private life, protected by Article 8 of the Convention. It recognised that the Czech policy pursued the legitimate aims of protecting health as well as the rights of others, noting that vaccination protects both those who receive it and also those who cannot be vaccinated for medical reasons and are therefore reliant on herd immunity for protection against serious contagious diseases. It further considered that a wide “margin of appreciation” was appropriate for the respondent State in this context.

It noted that in the Czech Republic the vaccination duty was strongly supported by the relevant medical authorities. It could be said to represent the national authorities’ answer to the pressing social need to protect individual and public health against the diseases in question and to guard against any downward trend in the rate of vaccination among children.

The judgment emphasises that in all decisions concerning children, their best interests must be of paramount importance. With regard to immunisation, the objective has to be that every child is protected against serious diseases, through vaccination or by virtue of herd immunity. The Czech health policy could therefore be said to be consistent with the best interests of the children who were its focus.

The Court then examined the proportionality of the vaccine policy. On a general level, it noted the scope and content of the duty to vaccinate, the existing exceptions from it and the procedural safeguards available. It found that it was challenges to the instructional arrangements in place in the Czech Republic and to the effectiveness and safety of the vaccines in question had not been established. Moreover, as to the applicants’ specific circumstances, it noted that the fine imposed on Mr Vavřička had not been excessive. Although the child applicants’ non-admission to preschool had meant the loss of an important opportunity to develop their personalities, it was a preventive rather than a punitive measure, and had been limited in time in that when they reached the age of mandatory school attendance their admission to primary school had not been affected by their vaccination status.

In consequence, the measures complained of by the applicants, assessed in the context of the national system, had been in a reasonable relationship of proportionality to the legitimate aims pursued by the Czech State (to protect against diseases which could pose a serious risk to health) through the vaccination duty.

The Court clarified that, ultimately, the issue to be determined was not whether a different, less prescriptive policy might have been adopted, as had been done in some other European States. Rather, it was whether, in striking the particular balance that they did, the Czech authorities had exceeded their wide margin of appreciation in this area. It concluded that the impugned measures could be regarded as being “necessary in a democratic society”.

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