Full citation
Vavřička and Others v. the Czech Republic [GC] (2021) Applications nos. 47621/13, 19298/15, 19306/15, 3867/14, 43883/15, 73094/14
Facts
- Mr. Vavřičika failed to comply with the obligation to vaccinate his two children against all diseases included in the vaccination plan and was charged with a fine by the Disease Prevention and Control Centre. He brought his case firstly to several administrative courts and eventually to the Constitutional Court, but his appeals were continuously dismissed.
- Ms. Novotná was refused the possibility to enter nursery school because her parents did not respect their legal duty to vaccinate her against measles, mumps and rubella. This decision was challenged before administrative courts and finally before the Constitutional Court. The Constitutional Court in essence held that “her non-admission to the nursery school was accordingly free from any error”[1].
- Mr. Hornych was not vaccinated as a child on medical grounds and as a consequence his admission to nursery school was refused. He made several unsuccessful appeals to administrative courts and then to the Constitutional Court, claiming that he met all the statutory requirements at the moment of admission since his parents did not expressly refused vaccination, they just asked for “an individualized vaccination recommendation from his pediatrician”, which was not possible and therefore decided not to vaccinate him at all.
- Mr. Brožík and Mr. Dubský were not vaccinated as children “on account of their parents’ beliefs and convictions”[2]and their admission to nursery school was refused. The appeals on an administrative and then on a regional level were dismissed.
- Mr. Roleček was vaccinated according to an individualized plan created by his parents, who are biologists, a plan which lacked certain vaccines considered obligatory. He was refused admission to preschool because he did not meet the vaccination requirements. His appeals to administrative courts and ultimately to the Constitutional Court were dismissed.
Procedural history of the case
This case springs from six applications of Czech citizens, which all concerned their non-compliance with the obligation parents have according to Czech legislation (section 46(1) and (4) of the Public Health Act) to administer their children a series of well-researched vaccines, against a number of common childhood diseases. All these applications were dismissed at the national level with final decisions of the Czech Constitutional Court. At the ECtHR level, these applications were judged jointly because of the similarity of their subject matter. In 2019, a Chamber of First Section “relinquished jurisdiction in favour of the Grand Chamber”.[3] In July 2020, a first hearing before the Grand Chamber took place and the representatives of the parties were present.
Legal issue
Does a government that imposes a vaccination mandate for pre-school children infringe human rights guaranteed by the European Convention on Human Rights (ECHR), overstepping its margin of appreciation, or can compulsory vaccination for children be accepted as necessary to maintaining public health (“necessary in a democratic society”[4])?
Rules
- The Czech domestic law establishes the duty of parents to vaccinate their children according to a specific vaccination schedule and allows for certain sanctions in case of non-compliance with this statutory duty, including fines and the possibility of the unvaccinated children to be rejected from nursery school. (Public Health Act, Pharmaceutical Drugs and Medications Act, Decree on Vaccination against Infectious Diseases, Minor Offences Act)
- Article 8 of the European Convention on Human Rights states the fundamental right of citizens’ private life to be respected, particularly by public authorities. Article 9 of the same international convention regulates the freedom of thought, conscience and religion.
- The Court’s jurisprudence established that compulsory vaccination can be, under certain circumstances, considered an infringement of the right to privacy.
Arguments
- Arguments of the applicants
The complaint of the applicants was based upon the alleged infringement of Article 8 of the European Convention on Human Rights, which concerns the right to private autonomy, and it was declared admissible by the Court. To support that idea “the applicants invoked their right to personal autonomy in making decisions concerning their health”[5]and furthermore they sustained that the best interests of the children are first of all protected by the parents, who are entitled to make decisions in conformity with their personal opinions.
Other arguments featured the idea that being refused attendance to nursery school the fundamental right to education and personal development was infringed. Moreover it was argued that any medical act, including vaccination, should be consensual (as established in article 5 of the Oviedo Convention) and not conditioned by the desire to attend nursery school. At the same time, applicants underlined the existence of conflicting medical opinions regarding vaccination and the fact that the vaccination schemes are not transparent enough.
The legal basis of three later complaints was the interference with Article 9 of the same international convention, regulating freedom of conscience and religion, but they were not sufficiently explained and therefore this accusation was considered inadmissible.
- Arguments of the respondent
The Government explained that the best interests of the child in this case meant taking the best decisions so as to enable them to reach the best standard of health and that only under special circumstances should the objection of the parents take the more important place. Moreover, the Government put forward the idea that the best interests of the child with regard to education where restricted by the parents’ failure, “on subjective grounds”[6], to comply with their legal duty. The legitimacy of the legislative aim was clarified – “vaccination protected those vaccinated as well as others, in particular vulnerable persons who could not themselves be vaccinated or in respect of whom immunisation had been ineffective”[7].
Ratiocination of the Court (Application of the rules)
The reasoning of the court is a combination of deductive and inductive arguments, which all led to the decision that there was no violation of the right to private life (Article 8 of the ECHR).
Firstly, the Court decided that the aim of the Czech legislation on compulsory vaccination is legitimate and serves a democratic duty of the legislator to protect public health. Czech authorities needed to adopt these measures in order to maintain the vaccination levels as high as possible and simultaneously to protect young kids in the preschool system from common diseases (primary school and onwards children are admitted without vaccination requirements). This decision reflected in the law implies putting the needs of the children in the center of attention in the context of healthcare policies, which is in line with the ECHR.
Secondly, the Court found, through a comparative approach, a European consensus regarding the efficacy and necessity of vaccination in children, a consensus based upon the professional opinion of medical experts and the extensive research done upon the vaccinations from the compulsory plan.
Thirdly, the Court considered that vaccines were not administered, under any circumstances, against the will of the parents, using force or imposing too harsh sanctions. The fine that Mr. Vavřičika was charged with was justified under the law and not unreasonably high.
Finally, in the Court’s view, although the non-admission to nursery school meant “the loss of an important opportunity for these young children to develop their personalities and to begin to acquire important social and learning skills in a formative pedagogical environment”[8], it was only the direct consequence of the parents’ non-compliance with the legal duty to vaccinate their children.
Moreover, the Court decided that the alleged infringement of Article 9 is unfounded and ill-argued and, consequently, dismissed it.
Conclusion of the case
There was no violation of Article 8 (right to private life) of the European Convention on Human Rights because the policy of the Czech Government is not outside the margin of appreciation of the Czech Republic (sixteen votes to one). It was decided that the interference was actually necessary in a democratic society, with the purpose of ensuring public health. The accusation of infringing Article 9 (right to thought, conscience, and religion) is inadmissible in the context of weak argumentation of the fact that the refusal to vaccinate one’s children is a strong personal or religious conviction that should be protected by Article 9.
Critical assessment
Vaccines are one of the most important medical inventions of all time and if powerful institutions and medical organizations acknowledge that and take measures to promote vaccination, an increasing number of people are going to gain trust in this tool and see it as the solution for eradicating common infectious diseases and preventing pointless human suffering. Nobody argues that vaccines are 100% safe, but they are efficient for maintaining public health and “necessary in a democratic society”[9]. I am of the opinion that the above-described decision of the European Court of Human Rights contributes to the general shift towards a healthier, more responsible, and vaccine-friendly society, despite all anti-vaccination movements that aim to infiltrate doubt among people.
Psychologically speaking, the fact that vaccines needed to be mandatory so as to ensure that the vaccination rates do not drop and cause the loss of herd immunity, as in the Czech Republic, can induce apprehension and mistrust in parents, making some of them even more susceptible to refusing to vaccinate their children, irrespective of the consequences. Fear is part of the human nature, just like protecting off-springs at all costs, and creating a legal duty for parents to vaccinate their children, quasi-minimizing the relevance of their personal decision concerning their children’s health, triggered those instincts. That is why, some of the skeptical Czech parents were even ready to commit to lengthy and complicated legal procedures, at a national and, subsequently, at a European level, trying to prove the idea that imposing vaccination is a violation of fundamental liberties. The attempt failed, but surely their conceptions were not changed, even though the Court provided strong arguments.
These negative attitudes towards vaccination can be relinquished and even conquered by promoting the benefits of vaccines, raising awareness, and providing all the information needed. In the Vavřička v. the Czech Republic case, the applicants suggested the idea that “the procedure to develop the vaccination scheme lacked transparency and public involvement”[10], which demonstrates the necessity for bringing vaccination closer to the people, in order for them to accept it. That is an even more stringent problem in the context of innumerable anti-vaccination campaigns, protests and organizations, which become more and more visible, preventing those who do not fully believe in vaccination from legitimizing this form of immunization as the most efficient one and adopting it. As foreshadowed above, when health is at stake, the discussion tends to become very personal and emotions, like fear or doubt, are likely to cloud judgment, which makes it considerably easier for anti-vaccination propaganda to reach the people, invalidating the medical consensus that the Court found about the safety of vaccination.
Furthermore, I believe that this ECtHR decision is going to contribute positively to combating the anti-vaccination propaganda since it clearly states that imposing compulsory vaccination for certain vulnerable age groups, like children, and against well-known contagious illnesses, using well-researched vaccines, does not infringe human rights, and, particularly, the right to personal autonomy. Those people who popularize anti-vaccination campaigns will have less and weaker arguments regarding the fact that obligatory vaccination could be against human rights. Consequently, parents will ask medical professionals for advice regarding vaccination in individual cases and will be less influenced by anti-vaccination campaigns pointing out alleged human rights violations when talking about well-tested vaccines against avoidable severe childhood diseases. This will lead to only those children that cannot be vaccinated on medical grounds being the exceptions, which will increase public health and safety in the pre-school and school environment for youngsters.
Overall, from my perspective, the decision in the Vavřička and Others v. the Czech Republic will be of considerable importance in diminishing the power that anti-vaccination movements have in spreading fear among people, ergo contributing to higher vaccination rates, mostly in the case of childhood essential vaccines.
[1] Vavřička and Others v. the Czech Republic [GC] (2021) 8.
[2] ibid 9.
[3] Vavřička and Others v. the Czech Republic [GC] (2021) 2.
[4] ibid 5.
[5] ibid 40.
[6] Vavřička and Others v. the Czech Republic [GC] (2021) 44.
[7] ibid 44.
[8] Vavřička and Others v. the Czech Republic [GC] (2021) 70.
[9] ibid 5.
[10] Ważyńska-Finck, K. (2021) Anti-vaxxers before the Strasbourg Court: Vavřička and others v. the Czech Republic, Strasbourg Observers. Available at: https://strasbourgobservers.com/2021/06/02/anti-vaxxers-before-the-strasbourg-court-vavricka-and-others-v-the-czech-republic/ (Accessed: March 15, 2022).
