Op-Ed: “It’s about proportionality! Strasbourg clarifies human rights standards for compulsory vaccination programmes” by Dolores Utrilla
Today, at a time like no other – with vaccination appearing as the only way to overcome the coronavirus pandemic, and vaccine hesitancy on the rise following a number of blood clot deaths linked to AstraZeneca’s COVID-19 vaccine -, the European Court of Human Rights (ECtHR) has rendered its much-awaited judgment in Vavřička and Others v. the Czech Republic (applications nos. 47621/13, 3867/14, 73094/14, 19306/15, 19298/15, and 43883/15).
This is a high-profile ruling confirming the compatibility with the European Convention on Human Rights (ECHR) of Czech rules imposing a general duty to vaccinate children against several well-known diseases according to a statutorily defined schedule and setting negative consequences for children and their parents in the case of non-compliance. The relevance of the case is apparent when observing that in late 2019, several years after the applications were brought before the Strasbourg-based court, the Chamber to which they had been allocated relinquished jurisdiction in favour of the Grand Chamber because they were considered to raise serious questions affecting the interpretation of the ECHR. Moreover, the ECtHR granted leave to intervene in the proceedings to the Governments of France, Germany, Poland, and Slovakia, as well as to the Association of Vaccine Injured Persons (Společnost pacientů s následky po očkování), the Rozalio Association, the European Centre for Law and Justice, and the European Forum for Vaccine Vigilance.
This Op-Ed explores the context, meaning, and potential implications of today’s ruling, trying to ascertain the extent to which it might impact national legislation and practice on vaccination (not only for children) against COVID-19.
Prior CoE standards and case law on compulsory vaccination for children
Mandatory vaccination schemes might have an impact on several ECHR rights, namely the right to life (Article 2 ECHR), the prohibition of torture and of inhuman or degrading treatment (Article 3 ECHR), the right to private life (Article 8 ECHR), and the freedom of thought, conscience, and religion (Article 9 ECHR). Any such intervention also interferes with Article 6(2) of the Oviedo Convention on Human Rights and Biomedicine, which requires informed consent for any medical intervention (M.A.K. and R.K. v. United Kingdom, 2010). When such schemes are addressed to children, other rights might also be at stake, such as the right to family life (Article 8 ECHR), or the right to education (Article 2 of Protocol No. 1 to the ECHR) whenever vaccination is shaped as a requirement to attend school.
Although there is a significant body of ECtHR case law on compulsory medical treatments in general, there are few cases from the Strasbourg-based Court and the former European Commission on Human Rights (EComHR) tackling the specific issue of compulsory vaccination. However, in none of the few existing cases – most of which concern mandatory vaccines for children – have compulsory vaccines as such been declared as contrary to the ECHR, as I explained elsewhere. In essence, according to this case law:
- Article 2 ECHR does not apply to mandatory vaccination programmes if there is no evidence that the vaccinations would create a real medical danger to the patient (Boffa and Others v. San Marino, 1998).
- Article 3 ECHR does not prevent the existence of forced medical treatments, provided that they are medically necessary and in conformity with accepted medical standards (X v. Germany, 1980; X v. Germany, 1981; X v. Denmark, 1983).
- Article 9 ECHR and the corresponding patient’s interest in directing the course of his or her own life should prevail over public health concerns ‘absent any indication of the need to protect third parties – for example, mandatory vaccination during an epidemic’ (Jehovah’s Witnesses of Moscow and Others v. Russia, 2010).
- Article 8 ECHR is not breached by mandatory vaccination schemes whenever the following conditions are met: (i) they are based on the need to protect the health of the applicant and of the public at a large, (ii) they are designed to fight a virulent disease in the context of a complicated epidemiological situation, (iii) sufficient medical precautions are taken to ensure that the vaccine would not be to the affected person’s detriment in a disproportionated manner, and (iv) there are mechanisms to review the affected person’s allegations about the quality and side-effects of the vaccine (Solomakhin v. Ukraine, 2012).
- Article 8 ECHR does not impose the introduction of a compensation system for victims of harm arising from a vaccination ‘in a system where vaccination is not compulsory, and in the absence of medical error’ (Baytüre v. Turkey, 2013). However, in case of mandatory vaccination schemes ‘the level of compensation is a relevant element when examining the necessity of the interference under Article 8 ECHR’ (Salvetti v. Italy, 2002).
Background to the Vavřička and Others case
The case concerns the amended version of the Czech Public Health Protection Act (Law no. 258/2000, ‘the PHP Act’) and two Ministerial Decrees implementing it (Decree no. 439/2000 and Decree 537/2006), which require all permanent residents to undergo a set of routine vaccinations according to a statutorily settled schedule. For children, it shapes vaccination against several well-known infectious diseases as a requirement for nursery school admission and sets out fines for parents refusing vaccination of their children. More specifically, under Section 50 of the PHP Act preschool facilities may only accept children who have received the required vaccinations, or who have been certified as having acquired immunity by other means or as being unable to undergo vaccination on health grounds. Under Section 29 of the Czech Minor Offences Act (Law 200/1990, ‘the MO Act’), a person who violates a prohibition or fails to comply with a duty provided for or imposed in order to prevent infectious diseases commits a minor offence punishable by a fine of up to nearly 400 euros.
Under these rules, vaccination is not automatic, but preceded by a medical examination, with exemptions for people with adverse medical conditions. There is no obligation to use a specific vaccine among those approved by health authorities, although the State only covers the cost of some of them. The vaccination duty is accompanied by an act for compensation for damage arising from the side-effects of vaccines, which entered into force in 2020; up to that moment, general compensation rules under the Czech Civil Code – governing strict liability with no exonerating grounds – applied.
In 2015, the Czech Constitutional Court upheld the constitutionality of both the PHP Act and the MO Act, finding them to be justified and proportionate, through its judgments no. Pl. ÚS 19/14 and I. ÚS 1253/14, as well as through Decision no. III. ÚS 3311/12.
The applicants before the ECtHR are several children and one father. In none of the cases were the vaccines given, due to the applicants’ rejections, based on concerns for possible serious damage arising from their side-effects. The applicant children were forbidden from attending nursery. Only in the case of the father, Mr Vavřička, was a fine imposed for non-compliance with the vaccination duty. The applicants acknowledged that vaccination involved issues of general interest, social solidarity and shared responsibility, but argued that Czech rules were disproportionate, and lacked a sufficient legal basis and sufficiently robust scientific justification.
The judgment in Vavřička and Others
The reader is referred to this News update on the main findings of today’s ruling. Here, assessment will be made of the most salient aspects of the judgment.
Firstly, the focus of the ECtHR’s analysis is on the right to private life under Article 8 ECHR. The judgment states without further explanation that ‘the Court does not consider it necessary’ to examine the complaints from the additional perspective of the right to respect for family life under the same provision (para. 262), a conclusion somewhat surprising considering the Court’s previous case law and the fact that Mr. Vavřičkais the parent of two children subject to the vaccination duty. The right to education protected by Article 2 of Protocol No. 1 is not subject to a separate analysis, since it is intertwined in the Court’s assessment under Article 8 ECHR. As for the allegations concerning Article 9 ECHR, the Strasbourg-based court reaches the conclusion that this provision does not apply to the cases under examination because ‘a critical opinion on vaccination is not such as to constitute a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9’ (para. 335).
As for the existence of an interference, today’s judgment continues the Strasbourg line of case law according to which any compulsory medical treatment is covered by Article 8 ECHR. There are, however, two noteworthy additions in this regard. The first one is the clarification that the right to private life applies even where the contested vaccinations were not performed, insofar as the interference results in such cases from the fact that the applicants bore the direct consequences of non-compliance with the vaccination duty (paras. 263 and 264). The second, less visible one, is that the weight of intimate rights is considered ‘to be lessened by the fact that no vaccinations were administered against the will of the applicants, nor could they have been, as the relevant domestic law does not permit compliance with the duty to be forcibly imposed’ (para. 276).
Regarding the issue of legality (whether the interference was performed ‘in accordance with the law’), the ECtHR recalls its consistent case law on the need for a sufficient, accessible and precise legal basis in domestic law, without it being necessary for the ECHR’s purposes that this is an Act of Parliament. As it is well known, the ECtHR has traditionally stated that the notion of ‘law’ in Article 8 ECHR must be understood in a substantive, rather than in a formal sense, and that it thus allows for restrictions being established or complemented through legal acts and instruments ranking before an Act of Parliament. On this point, today’s judgment makes explicit mention of the fact that the constitutionality of the contested Czech rules was examined in extenso and upheld by the Czech Constitutional Court (para. 270).
As regards the issue of justification of the interference, the ECtHR states (in what will probably be one of the most quoted parts of the judgment) that ‘there is no doubt about the importance of the interest at stake’ because ‘there is a general consensus among the Contracting Parties, strongly supported by the 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’ (para. 277). While noting that there is no consensus among States on whether vaccination should be voluntary or compulsory (para. 278), the ECtHR further states that on this sensitive topic the national authorities should enjoy a wide margin of appreciation (para. 280) and stresses (in another memorable passage) that ‘this acknowledged sensitivity is not limited to the perspective of those disagreeing with the vaccination duty (…) [but] it should also be seen as encompassing the value of social solidarity, the purpose of the duty being to protect the health of all members of society, particularly those who are especially vulnerable with respect to certain diseases and on whose behalf the remainder of the population is asked to assume a minimum risk in the form of vaccination’ (para. 279). This leads the Court to the conclusion that ‘’where the view is taken that a policy of voluntary vaccination is not sufficient to achieve and maintain herd immunity, or herd immunity is not relevant due to the nature of the disease (e.g. tetanus), domestic authorities may reasonably introduce a compulsory vaccination policy in order to achieve an appropriate level of protection against serious diseases’ (para. 288).
This brings with it the problem of how to validly ‘reach the view that voluntary vaccination is not sufficient’, and therefore of how to assess the necessity of the interference. On this point, the ECtHR (i) extensively quotes prior cases and international instruments giving rise to the States’ positive obligation to protect the life and health of those within their jurisdiction, and (ii) relies on the expert material substantiating the rise of the risk to individual and public health that would stem from a system of voluntary vaccination. No explicit assessment is made, however, of: (i) the rates of vaccine hesitancy/refusal, or (ii) the epidemiological situation existing in the Czech Republic at the time of submission of the applications. For the latter, the judgment seems to refer to the national margin of appreciation (para. 285), something which clearly contrasts with the Court’s findings in the Solomakhin case.
Finally, the test of proportionality in the strict sense – which is undoubtedly the most interesting part of the judgment – stresses several features of the contested Czech vaccination policy which are paramount for the Court’s conclusion that it is proportionate. While the preceding parts of today’s judgment could be applied without much effort to other compulsory vaccination cases in the future, this one might be read as a ‘map’ on how to design them in a specific way in order to make them compatible with the ECHR. On this point, the ECtHR makes explicit reference, inter alia, to the fact that the vaccines at stake are ‘considered effective and safe by the scientific community’ (para. 291) and that the vaccination duty is not absolute, because there are exemptions for children with adverse medical conditions and there is no provision allowing for vaccination to be forcibly administered (paras. 291-293). Moreover, the judgment notes the moderate intensity of the consequences for those not fulfilling the vaccination duty: fines for parents are rather low, and non-admission at educational centres applies only to the nursery school stage (paras. 304-307).
Unfortunately, the judgment does not delve into the question of compensation for injury to health caused by vaccination, as it is not significant for the applicants’ concrete cases, although the ECtHR, quoting its previous case law and some decisions of national constitutional courts, points to the abstract relevance of the matter (para. 302).
Implications for the COVID-19 context
One of the most apparent messages launched by today’s judgment is precisely the explicit intention of the Strasbourg-based court to clearly separate the ongoing pandemic from its findings in the Vavřička and Others case. Through a preliminary observation at the very beginning of its ruling, the ECtHR points out that ‘the present case relates to the standard and routine vaccination of children against diseases that are well known to medical science. These six applications, as indicated above, were introduced between 2013 and 2015…’ (emphasis added).
This precaution is understandable and appropriate in the light of the specific circumstances of the case at hand and the different, extraordinary features of the COVID-19 vaccination context. However, today’s ruling remains unavoidably relevant for the current coronavirus pandemic not only in legal, but also (and even more importantly) in political terms. Given the controversial nature of compulsory vaccination, international courts such as the ECtHR are left with a crucial responsibility in implicitly (de)legitimising such national policies, thereby fostering or discouraging their adoption and orienting its content and scope. Two set elements contained in today’s ruling are particularly important from this perspective, in addition to the ones mentioned in the preceding paragraphs of this Op-Ed.
The first one is the overwhelming presentation of comparative, international, and European legal material pointing to the fact that compulsory vaccination programmes can be deemed as justified as they are necessary to protect individual and collective health. The ECtHR explicitly presents the constitutional jurisprudence on the matter existing in France, Hungary, Italy, North Macedonia, the Republic of Moldova, Serbia, Slovakia, Slovenia, as well as ordinary courts’ case law in the United Kingdom. Today’s judgment reaches the conclusion that there seems to be a growing consensus on the fact that the protection of children’s health justifies compulsory vaccination at certain ages. The salient relevance of health protection is further reinforced through the extensive analysis of international and European law and practice (including the International Covenant on Economic, Social and Cultural Rights, the United Nations Convention on the Rights of the Child, several documents of the World Health Organization, the European Social Charter, the Oviedo Convention, several soft law instruments of the CoE’s Parliamentary Assembly, and EU law and soft law).
The second relevant element is the broad set of proportionality-related features explicitly taken into account by the ECtHR to decide on the compatibility of the vaccination mandate at hand with the ECHR. The identification of these criteria is extremely relevant from a COVID-19 perspective because, as noted above, the ECtHR seems to have confirmed that compulsory vaccination dilemmas are (legally speaking) a matter of proportionality. And it is apparent that the balancing test that the ECtHR would be called on to carry out if a COVID-19 compulsory vaccination programme was adopted and brought before it would present significant differences when compared to other compulsory vaccination schemes. Such differences concern mainly the necessity test (which may work in favour of mandatory vaccination) and the potential harm for those subject to the obligation to be vaccinated (which may advocate against compulsory schemes or, at least, for a particularly high level of safeguards in their design and implementation).
Dolores Utrilla is Associate Professor at the University of Castilla-La Mancha and collaborates with EU Law Live as an External Assistant Editor. She is author of Las garantías del Derecho de propiedad privada en Europa (Thomson Reuters, 2012) and a co-author of Good Administration and the Council of Europe: Law, Principles and Effectiveness (Stelkens ed., OUP, 2020).