ECHR finds that a statutory vaccination duty did not breach the European Convention of Human Rights
Vavřička v the Czech Republic (European Court of Human Rights, Grand Chamber, Application Nos 47621/13, 3867/14, 73094/14, 19298/15, 19306/15 and 43883/15, 8 April 2021)
Summary
On 8 April 2021, the Grand Chamber of the European Court of Human Rights (Court) ruled that the Czech Republic's regime for the mandatory vaccination of children did not violate the right to private life under Article 8 of the European Convention on Human Rights (Convention). Recognising that vaccinations could not be forcibly imposed, that the penalties were minor in nature and the importance of ensuring high vaccination rates in society, the Court found that the duty of vaccination was a permissible imposition on the Article 8 right to private life.
Factual background
In the Czech Republic, the Public Health Protection Act (Law No 258/2000) (PHP Act) requires all permanent residents to undergo a set of routine vaccinations for diseases such as tuberculosis, poliomyelitis and hepatitis B. The PHP Act provides that preschools in the Czech Republic can only accept children who have received the required vaccinations, have received immunity through some other means or are exempt on the basis of health reasons.[1] The Minor Offence Act (Law No 200/1990) (MO Act) provides that a person who fails to comply with a duty imposed in order to prevent infectious diseases commits a minor offence punishable by a fine of up to 10,000 Czech coronas (AUD 613).
Six applications to the Court were made between 23 July 2013 and 31 August 2015,[2] but were all heard together given their similar subject matter.[3] The first applicant was fined under section 29(1)(f) of the MO Act for failing to have his two children vaccinated (First Applicant). The remainder of the applicants were all children who, because they had not received their basic vaccinations, were either refused entry to or removed from pre-school pursuant to section 50 of the PHP Act (Child Applicants).[4] The complaints were heard before the Court’s Grand Chamber because they were considered to raise “serious questions affecting the interpretation of the Convention”.[5]
The primary question for the Court was whether the Czech Republic breached Article 8 by making compulsory the routine set of vaccines.
Applicants’ Arguments
The six applicants (Applicants) complained that imposing a fine on the First Applicant and refusing to admit the Child Applicants to pre-school breached Article 8 of the Convention.[6] Article 8 relevantly provides:
Everyone has the right to respect for his private ... life ...
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The Applicants asserted that the enforcement measures taken in response to their failures to comply with the statutory duty of vaccination constituted arbitrary interferences with their Article 8 rights.[7] The Applicants also argued that the duty – which is based on a combination of primary and secondary legislation (the PHP Act applied in conjunction with a Ministerial Decree issued by the Ministry) – had no basis in law because “the term ‘law’ should be understood as referring exclusively to an Act of Parliament”.[8]
Decision
The Court was not satisfied that the Czech Republic, through its mandatory vaccination regime, violated Article 8 of the Convention.
Interference and justification
The Court held that compulsory vaccination, as an involuntary medical intervention, represents an “interference” with the right to respect for private life within the meaning of Article 8 of the Convention.[9] Although none of the contested vaccinations were performed, the Court nevertheless found that there had been an interference with this right as the Applicants bore the direct consequences of non‑compliance with the duty of vaccination.[10] The relevant question before the Court was therefore whether there was any justification for the interference. This necessitated an assessment of whether the interference:[11]
was “in accordance with the law”;
pursued one or more legitimate aims specified therein; and
was “necessary in a democratic society”.
In accordance with the law
Even though the mandatory vaccine regime was partly imposed by secondary legislation, the Court considered that the interference in question was “in accordance with the law”, as required by Article 8(2) of the Convention. This was because “in accordance with law” includes, in addition to primary legislation, “legal acts and instruments of lesser rank”.[12] However, the Court noted that such laws must also be “adequately accessible and be formulated with sufficient precision to enable those to whom it applies to regulate their conduct and, if need be with appropriate advice, to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail”.[13] The Court’s reasoning was reinforced by the fact that the impugned legislative arrangement was examined and upheld by the Constitutional Court of the Czech Republic.
Legitimate aim
The Court held that the interference pursued a legitimate aim, being to protect the health and rights of others.[14] This includes people who have been vaccinated as well as those who, for health reasons, cannot be vaccinated and are thus in a state of vulnerability. As accepted by the Court, the latter group rely on the attainment of herd immunity for protection against the relevant contagious diseases.
Necessary in a democratic society
In considering whether the interference with the Article 8 right was “necessary in a democratic society”, the Court looked at: (1) the Czech Republic’s “margin of appreciation”; (2) whether there was a “pressing social need” and “relevant and sufficient reasons” for the measure taken by the Czech Republic; and (3) whether the interference was proportionate to the legitimate aim pursued.[15]
Margin of appreciation
The “margin of appreciation” is a doctrine developed by the Court which, in seeking to balance individual rights with national interests, describes the degree of deference that the Court will give to national legislative, executive and judicial bodies. The margin of appreciation would have typically been narrow in this case, given that the duty of vaccination was considered to affect individuals’ “effective enjoyment of intimate rights”.[16] However, the weight of this effect was lessened by the fact that:
matters of healthcare policy are typically considered to be within the margin of appreciation of domestic authorities, which are best placed to assess priorities, resources and social needs;[17]
no vaccinations were – or could have been – administered forcibly and against the will of the applicants;[18]
there was a consensus among other states and specialised international bodies that “vaccination is one of the most successful and cost-effective health interventions” and that each state “should aim to achieve the highest possible level of vaccination among its population”;[19] and
there was no consensus among states as to a particular model or policy on the vaccination of children.[20]
In light of these considerations, in the context of the compulsory nature of child vaccination, the Court considered the margin of appreciation to be “a wide one”.[21]
“Pressing social need” and “relevant and sufficient reasons”
The Court held that the choice of the Czech legislature to make the vaccination of children compulsory answered a pressing social need, being the need to protect individuals and public health against certain diseases and to “guard against any downward trend in the rate of vaccination among children”. Compulsory vaccination was also held to be supported by relevant and sufficient reasons, which were based on the idea that voluntary vaccination is not sufficient to achieve and maintain herd immunity.[22]
Proportionality
The Court rejected the Applicants’ argument that the impugned law was not proportionate as it was unsafe, ineffective and too burdensome. The Court noted that there is no provision allowing for a vaccination to be forcibly administered. Further, the administrative penalty imposed on the First Applicant could only be imposed once (and the fine was quantitatively relatively minor), and the non-admission of the Child Applicants was not considered by the Court to be punitive in nature.[23] While the Court accepted that the exclusion of the Child Applicants from pre-school meant the loss of an opportunity to develop certain skills, the statutory duty and contingent admission allowed the possibility of attendance at pre-school by children who cannot be vaccinated for legitimate medical reasons. In any event, once the children reached the mandatory age of school attendance, their admission to primary school was not affected by their vaccination status.[24]
The Court also rejected the Applicants’ arguments that the vaccines were not effective or safe, referring to the general consensus among states that vaccines are vitally important in protecting populations against diseases.[25] Even though there have been rare cases where vaccinations have caused harm to a person’s health, the Court noted the Czech Republic’s evidence that, of approximately 100,000 children vaccinated annually, “the number of cases of serious, potentially lifelong, damage to health stood at five or six”.[26]
In conclusion, the Court held at [306]:
[I]t cannot be regarded as disproportionate for a State to require those for whom vaccination represents a remote risk to health to accept this universally practised protective measure, as a matter of legal duty and in the name of social solidarity, for the sake of the small number of vulnerable children who are unable to benefit from vaccination. In the view of the Court, it was validly and legitimately open to the Czech legislature to make this choice, which is fully consistent with the rationale of protecting the health of the population. The notional availability of less intrusive means to achieve this purpose, as suggested by the applicants, does not detract from this finding.
Comments
While relating to events that pre-date COVID-19, the Grand Chamber’s decision has been handed down at a time during which questions surrounding mandatory vaccination have never been more intensely debated. Australia is not, and cannot be, a signatory to the Convention. However, the reasoning in this decision will still serve to enhance discussions around human rights and mandatory vaccinations in Australia, in particular in the context of Victoria’s Charter of Human Rights and Responsibilities, and the Human Rights Acts in Queensland and the Australian Capital Territory.
Rights are not absolute and are to be balanced with obligations
In his partly concurring and partly dissenting opinion, Judge Lemmens discussed “the value of social solidarity”[27] and noted that “apart from fundamental rights, there are also fundamental duties and responsibilities”.
According to Judge Lemmens, it may be necessary, in a democratic society, to place restrictions on an individual’s freedom in order to reconcile the interests of the various individuals and groups with whom we live. Typically, this will be required to ensure that everyone’s rights are respected, as opposed to upholding the rights of a few to the detriment of society.[28]
This case provides a salient example where the Court implicitly – and Judge Lemmens explicitly – considered that the duty of vaccination (and its inherent limitation on the right to physical integrity) is one way to protect the fundamental right to health of others (particularly those who suffer with certain illnesses and diseases).[29]
Evidentiary requirements in litigation
The dissenting decision of Judge Wojtyczek provides a useful list of “factual bases” that courts, applicants and respondents should consider in future litigation when assessing the proportionality of mandatory vaccination requirements.
Judge Wojtyczek stated that a rational assessment of whether the obligation to vaccinate complies with the Convention requires that each disease be assessed on a case-by-case basis.[30] While there were “strong objective arguments in favour of finding a non-violation of the Convention rights” in this case, Judge Wojtyczek suggested that evidence substantiating certain “factual bases” was “missing in the materials submitted to the Court”.[31] In particular, for each disease, he considered it necessary to establish and consider the manner and speed of its transmission, the risks for infected persons, relevant costs, the precise effectiveness of the available vaccines, the risk of side effects of vaccination and the minimum percentage of vaccinated persons that would prevent the disease from spreading (if applicable) and the prospects of achieving such an objective, among other things.[32] While not determinative, the presence or absence of these factual bases will likely play an important role in challenging or defending vaccine mandates.
The full text of the decision can be found here.
Jake Herd is a Solicitor at King & Wood Mallesons.
[1] PHP Act s 50.
[2] Vavřička v the Czech Republic (European Court of Human Rights, Grand Chamber, Application Nos 47621/13, 3867/14, 73094/14, 19298/15, 19306/15 and 43883/15, 8 April 2021) at [1] (Vavřička Decision).
[3] Ibid [159].
[4] Ibid [33], [43], [49], [57].
[5] Ibid [163].
[6] Ibid [261].
[7] Ibid [172].
[8] Ibid [174], [267]-[268].
[9] Ibid [263].
[10] Ibid [263], [264].
[11] Ibid [265].
[12] Ibid [269].
[13] Ibid [266].
[14] Ibid [272].
[15] Ibid [273]
[16] Ibid [276].
[17] Ibid [274].
[18] Ibid [276].
[19] Ibid [277].
[20] Ibid [278].
[21] Ibid [280].
[22] Ibid [288].
[23] Ibid [294].
[24] Ibid [307].
[25] Ibid [300].
[26] Ibid [301].
[27] Partly Concurring and Partly Dissenting Opinion of Judge Lemmens, [2].
[28] Partly Concurring and Partly Dissenting Opinion of Judge Lemmens, [2].
[29] Partly Concurring and Partly Dissenting Opinion of Judge Lemmens, [2].
[30] Dissenting Opinion of Judge Wojtyczek, [9].
[31] Dissent [18].
[32] Dissent [9].