EHRM, 08-04-2021, nr. 47621/13, nr. 3867/14, nr. 73094/14, nr. 19298/15, nr. 9306/15, nr. 43883/15

In the context of proceedings on constitutional appeal no. I. ÚS 1253/14 (see paragraph 93 below), in which the parents of an underage child complained that they had each been fined CZK 4,000 for having refused the routine vaccination of their child, the relevant chamber referred to the plenary formation the appellants' free-standing request (akcesorický návrh) to have section 46 of the PHP Act and section 29(1)(f) of the MO Act set aside. The parents relied on the SAC's judgment no. 3 Ads 42/2010 (see paragraph 85 above) and argued that the said provisions were contrary to Article 4 of the Charter. They further argued that the regulations on compulsory vaccination were contrary to Articles 5, 6 and 26 of the Oviedo Convention, since it was not a necessary measure for the protection of public health, in the absence of an objective basis in the form of a complex and independent analysis. Relying on their rights to dignity and respect for their physical integrity, as well as their freedom of thought and conscience, they claimed to have refused vaccination in the child's interests, in order to protect his health. They were thus eligible for an exception within the meaning of the Vavřička jurisprudence (see paragraph 28 above). They noted in this respect that each individual's attitude towards vaccination was based on his or her personal position, not on objective data. It was thus unthinkable that an administrative authority could re-examine the ‘correct’ or ‘justified’ nature of the parents' conviction in this respect. Referring to Article 24 of the Oviedo Convention, the appellants noted that the State did not assume any liability for the side effects or damage to health caused by vaccination. There was accordingly no fair balance between the demands of the public interest and the individual's rights.

By judgment no. Pl. ÚS 19/14 of 27 January 2015, the plenary formation of the Constitutional Court dismissed the above-mentioned free-standing request.

It noted that the regulations on compulsory vaccination fell fully within the competence of the national legislature. As to the rule that certain matters could only be regulated by an Act of Parliament (Article 4 of the Charter), the Constitutional Court endorsed the conclusions of the extended chamber of the SAC in its judgment no. 8 As 6/2011 (see paragraph 86 above). The wording of section 46 of the PHP Act was sufficiently clear and understandable and it duly defined all necessary parameters for the regulation of details by secondary legislation. This arrangement made it possible to react promptly to the epidemiological situation and to the current state of medical and pharmacological knowledge.

Compulsory vaccination amounted to an interference with the individual's physical integrity and, accordingly, with his or her right to respect for private or family life. As a restriction on this fundamental right, the vaccination duty was accompanied by safeguards to minimise any potential abuse and to prevent this medical intervention from being carried out where the conditions were not met (section 46(2) and (3)). The compatibility of this restriction with the right to respect for private life was to be established on the basis of the following five-step test. Firstly, the issue in question had to fall within the material scope of the rights that were limited, which in the present case it manifestly did. Secondly, there had to be an interference with the right in question, which in the case at hand there was, by virtue of an intrusion into the personal integrity of the vaccinated individual and, in the case of children under fifteen, an interference with the right of their parents to decide on matters concerning their care and education, or even, where applicable, with the right to manifest one's religion or beliefs freely. Thirdly, the restriction had to be in accordance with the law, which it was, the term ‘law’ being understood in the substantive sense, including texts of secondary legislation. Fourthly, the restriction had to pursue a legitimate aim, in this instance the protection of health. Fifthly, the restriction had to be necessary, and it was, as it was clear from data provided by national and international experts — the assessment of which was a matter for the legislature and the executive, not for the Constitutional Court — that the approach of general vaccination against the specified infectious diseases was to be recommended and that the interest in protecting public health outweighed the arguments of appellants who were opposed to vaccination.

In an obiter dictum, referring to Article 24 of the Oviedo Convention, the Constitutional Court considered that if the State imposed penalties for non-compliance with the vaccination duty, it ought also to envisage the situation where vaccination damaged the health of the individual concerned. Thus, it was incumbent on the legislature to give consideration to regulations governing State liability for such consequences, which was not uncommon in other States.

By this decision, the Constitutional Court dismissed a constitutional appeal of parents fined in minor-offence proceedings for having refused the routine vaccination of their child. The court noted, inter alia:

The case was brought by parents fined for having refused several of the compulsory vaccinations of their child. In its judgment on their constitutional appeal, the Constitutional Court developed and clarified its conclusions reached in Vavřička (see paragraph 28 above). As to the right to a ‘secular objection of conscience’, it held:

In this judgment, delivered on 22 November 2017, the Constitutional Court considered the constitutional validity of a decree-law introduced as a matter of urgency to increase the number of compulsory vaccinations from four to ten. The decree-law made access to early childhood educational services conditional on the receipt of all ten vaccines. The sanction for failure to comply was an administrative fine. This was challenged on a number of grounds, including as an unjustifiable interference with the constitutional guarantee of individual autonomy. This argument was dismissed with the following reasoning.

The court noted the preventive nature of vaccination, the critically unsatisfactory level of vaccination in Italy at the given time, and the existing trends suggesting that the rate of vaccination was deteriorating. It found that the legislation was within the scope of the discretion and political responsibility of the authorities, who were expected to assess the overriding need to intervene urgently and prior to the emergence of crisis scenarios, and to do so in the light of new data and new epidemiological phenomena. Furthermore, they were expected to act consistently with the principle of precaution, which was inherent in the approach to preventive medication, and was of fundamental importance where public health was concerned.

Pointing out that there was no scientific basis for the existing trends in popular opinion which considered vaccination to be futile or dangerous, the court noted that, in medical practice, recommendation and obligation were conjoined concepts and, therefore, moving six vaccinations from being simply recommended to being compulsory did not represent a significant change in their status. It also held that requiring a certificate for school enrolment and imposing fines were both reasonable measures for the legislature to take, not least where it had provided for initial steps to be taken before the imposition of such sanctions, i.e. one-to-one meetings with parents and guardians to inform them about the efficacy of vaccinations.

The court drew attention to its established case-law to the effect that, in the area of vaccinations, there was a requirement for balance between the individual right to health (including freedom concerning treatment) and the coexistent and reciprocal rights of others and the interests of the community, as well as, in the case of compulsory vaccinations, the interests of children, who required protection even vis-à-vis parents who did not fulfil their duties of care.

As to the interests of minor children, they were to be pursued first of all through their parents' exercise of their joint right and duty to take action that was well-suited to protecting the health of their children. That freedom did not however extend to making choices that were potentially detrimental to the health of minor children.

A law imposing a health-related treatment was not incompatible with the Constitution if: the treatment was intended not only to improve or maintain the health of the recipient, but also to preserve the health of others; the treatment was not expected to have a negative impact on the health of the recipient, with the exclusive exception of those consequences that normally arose and, as such, were tolerable; and, in the event of further injury, the payment of just compensation to the injured party was provided for, separate and apart from any damages to which they might be entitled.

The court also noted that the issue of vaccination involved many constitutional values, the coexistence of which left room for legislative discretion in choosing the means by which to ensure the effective prevention of infectious diseases. That discretion had to be exercised in the light of the various health and epidemiological conditions, as ascertained by the responsible authorities and of the constantly evolving discoveries of medical research, to which the legislature had to turn for guidance when making its choices in that area.

In its earlier judgment no. 307/1990, given on 14 June 1990, the Constitutional Court declared unconstitutional a law making provision for compulsory anti-poliomyelitis vaccination, due to its failure to provide for compensation for those suffering damage to their health caused by the vaccine, in the absence of liability for negligence.

The legislation subsequently enacted (Law no. 210 of 25 February 1992) was examined by the Constitutional Court in judgment no. 118/1996, of 18 April 1996. The court noted the two aspects of health in constitutional law: the individual and subjective aspect concerning a fundamental right of the individual; and the societal and objective aspect concerning health as a public interest. The risk of damage to an individual's health could not be completely avoided. The legislature had therefore struck a balance, giving precedence to the collective aspect of health. Yet nobody could be asked to sacrifice their health to preserve that of others without being granted just compensation for damage caused by medical treatment. The court found the law to be contrary to the Constitution, in that it failed to make provision for compensating those whose health was injured by compulsory vaccination before the law entered into force. It observed that such damage gave rise to a claim for compensation under the Constitution itself without any liability for negligence being taken into consideration.

This judgment, which was delivered on 22 November 2017 as judgment no. 5/2018 (see paragraph 106 above), concerned a legislative situation in which no compensation was available for damage to health caused by a vaccination which was recommended rather than compulsory. The court observed that there was no qualitative difference between compulsory and recommended vaccinations, the key issue being the essential objective of preventing infectious diseases that was pursued by both types. Accordingly, the exclusion of compensation was contrary to the Constitution.

The applicant Vavřička complained that it had been arbitrary to impose a fine on him for his failure to have his children vaccinated in accordance with the applicable schedule. The child applicants argued that it had been arbitrary to refuse them admission to nursery school for the same failure on the part of their respective parents.

As regards the applicability of Article 8, the applicants invoked their right to personal autonomy in making decisions concerning their health and, in the case of Mr Vavřička, the health of his children. The child applicants also relied on their right to personal development in the context of attending nursery school. The applicants further referred to a right of parents to care for their children in accordance with their opinions, convictions and conscience and in keeping with the children's best interests. In that regard, they submitted that the best interests of a child were to be primarily assessed and protected by his or her parents, any State intervention being permitted only as a last resort in the most extreme circumstances.

They further submitted that since the detailed arrangements for the vaccination duty had been laid down only in secondary legislation (the Ministerial Decree), it could not be considered as being ‘prescribed by law’ within the meaning of Article 8.

Moreover, in their view the process of defining the vaccination schedule was not transparent, lacked proper analysis and any public debate and suffered from a conflict of interest on the part of some members of the official bodies involved. In particular, relying on a reply of the Ministry dated 7 February 2020 to their enquiry, the applicants argued that the authorities had failed to provide them with sufficient information showing that the existing compulsory vaccinations were in fact necessary and justified. Furthermore, in defining the vaccination policy, the Ministry had wielded unlimited discretion.

In addition, the applicants contended that in a system with compulsory vaccination there was an incentive for fraudulent reporting of vaccination status. This problem did not arise in systems based on voluntary vaccination, which for this reason produced more reliable statistical data on vaccination uptake. In turn, these data could serve to shape the system in a more adapted and efficient way.

In so far as the Government relied on the authority of the learned societies specialised in the area of vaccinology in the Czech Republic or of the WHO (see paragraphs 152 et seq. above), the applicants submitted that these were broadly sponsored by pharmaceutical corporations. In particular, the applicants disagreed on matters such as the impact of vaccination on reducing mortality, the susceptibility of infants to infections, the negative impact of non-vaccination and the effectiveness of some of the prescribed vaccines. Moreover, they addressed various aspects of the functioning and development of the vaccination system, for example the interpretation in the Czech Republic of the criterion of permanent contraindication to vaccination. Furthermore, the applicants submitted that in so far as potential side-effects of compulsory vaccines played a role in the assessment of their necessity and justification, these should include not only the immediate side-effects but also long-term side-effects consisting of a general weakening of the vaccinated persons' immunity to various illnesses.

It was not justified to refuse access to nursery schools as a form of punishment for the fact that the children were not vaccinated. The refusal of admission to preschool had meant that the families of the child applicants had had to provide care for them by their own means, which had impacted on the family as a whole, both financially and socially. Depriving the child applicants of preschool education had put them at a significant disadvantage in their subsequent education. This was particularly important for the applicant Novotná, who was interested in pursuing a particular educational model.

The applicants argued that the Vavřička jurisprudential exception to the vaccination duty (see paragraphs 28 and 93 above) was almost never granted in relation to admission to nursery school. Moreover, the applicant Vavřička argued that in his case it had been defined by the Constitutional Court in a retroactive manner. On that ground, he claimed that the law at the relevant time had been lacking in quality and that he could not have made proper use of it.

As regards the consistency of the attitude of the applicant Vavřička towards the issue of vaccination, given that he had had his children vaccinated against all of the illnesses except for poliomyelitis, hepatitis B and tetanus, he submitted through his lawyer that he was entitled to change his convictions over the course of time. As recognised by the Constitutional Court, what counted was whether or not the conviction remained constant throughout the respective proceedings, and this had been so in his case.

In addition, the applicants argued that any judicial review available was merely formal and did not involve any real substantive review of the rationality and proportionality of the vaccination duty.

Furthermore, at the relevant time the law did not provide for any means of claiming compensation in respect of non-culpable vaccine injury to health. Under the compensation mechanism that was subsequently introduced, compensation was available only in the event of a ‘particularly grave injury to health’, which was a prohibitively high threshold (see paragraph 84 above).

In contrast to the child applicants, for whom having been vaccinated was a prerequisite for admission to nursery school, there was no such condition for the employment of nursery school staff. Some of the statutorily prescribed vaccines concerned illnesses that were not transmissible, or not transmissible in a nursery school setting.

In the view of the applicants, the aim of protecting the health of other children could be achieved by less intrusive means, such as the exclusion of unvaccinated children from educational establishments only in the event of a threatened or actual outbreak of one of the diseases.

The applicants acknowledged that vaccination involved issues of general interest, social solidarity and shared responsibility. The problem was that of proportionality. A voluntary vaccination model was based on positive motivation and was therefore both more efficient overall and more proportionate than the mandatory model based on compulsion that was in place in the Czech Republic, which they considered unacceptable.

The interference with the applicants' Article 8 rights had accordingly not been necessary in a democratic society.

The Government emphasised that it was important to clarify who was the applicant in each case — child or parent — so as to determine whether and to what extent the matters complained of fell within the Court's jurisdiction ratione personae.

Regarding the issue of the best interests of the child, which was at stake in cases such as the present ones, the Government considered that it was reflected in the right of the child to the enjoyment of the highest attainable standard of health within the meaning of Article 24 of the Convention on the Rights of the Child. In individual cases, the child's best interests were to be assessed in the light of any objections of the parents, which were to be examined in the appropriate proceedings, ultimately with an element of judicial control.

It was accordingly not possible a priori to presume that the interests of the parents were identical to those of the children. There was at least a potential for conflict between the respective interests.

Responding to the argument of the applicant Roleček that in consequence of his non-admission to nursery school his mother had been obliged to stay at home with him and that, as a result, their family life had been impacted, the Government noted that the fact that family members were required to enjoy each other's company in this way could not constitute an interference with the right to respect for family life.

Moreover, the Government pointed out that the parameters of the present applications were limited to the facts that directly concerned the applicants and did not include other aspects of the Czech vaccination scheme as it had evolved over time.

Nevertheless, the Government did not contest that the facts of the six applications fell within the scope of the right to respect for private life and acknowledged that, regarding the applicant Vavřička, the fine imposed on him constituted an interference with that right.

As to the child applicants, irrespective of slight distinctions in how their Article 8 complaints before the Court had been formulated, in view of the actual consequences for them, consisting of their non-admission to nursery school, they were all in fact in the same position. The existence as such of the applicable legal framework did not amount to an interference with their Article 8 rights. To that end, the Government sought to distinguish the child applicants' cases from those such as, for example, Dudgeon v. the United Kingdom (22 October 1981, § 41, Series A no. 45), Norris v. Ireland (26 October 1988, § 38, Series A no. 142) and Modinos v. Cyprus (22 April 1993, § 29, Series A no. 259), in that the legislative restrictions imposed on the child applicants were not absolute but subject to exceptions and applied only for a limited time (until the mandatory school attendance age — see paragraph 82 above).

Moreover, the non-admission of the child applicants to nursery school was due to their parents' failure to comply with a statutory duty, on subjective grounds put forward by the parents. It was questionable whether it had been in the best interests of the applicants to have been prevented by their parents from attending nursery school and spending time with children of a similar age. The Government pointed out that, unlike in Boffa and Others v. San Marino (no. 26536/95, Commission decision of 15 January 1998, Decisions and Reports (DR) no. 92-B, p. 27), these applicants were the children and what was at stake in their case was their non-admission to a childcare establishment rather than a fine or any other type of penalty. Furthermore, attending nursery school was a public activity and it accordingly fell outside the scope of Article 8 of the Convention. In addition, there were alternative ways of developing one's personality and the child applicants' inability to attend nursery school had not fundamentally interfered with their right to development and education. Accordingly, in the Government's submission, there had been no interference with the child applicants' Article 8 rights.

Should the Court nevertheless find that there had been an interference, the Government maintained that it had been duly ‘prescribed by law’. The domestic legal framework consisted of the rules on the duty to vaccinate in conjunction with the rules on liability for a minor offence where the duty was not complied with, and also the rules governing admission to childcare establishments. Those rules had the quality of ‘law’ in terms of the Court's case-law; in so far as they originated in secondary legislation, they were subject to judicial review. Moreover, the constitutionality of the given legislative arrangement had been repeatedly examined and upheld by both the SAC and the Constitutional Court.

There was no real dispute about the legitimacy of the aim served by the impugned interference, which was the general interest of society in protecting public health as well as the protection of the rights and freedoms of others. In more concrete terms, 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. While vaccinations were voluntary in some countries and compulsory in others, the underlying aim was the same and vaccination was the safest and the most cost-effective way of achieving it.

In relation to the necessity of any interference in abstracto, the Government relied on their positive obligations under the Convention to take measures in the sphere of protection of life and referred to their similar obligations under other international legal instruments. More specifically, States were under a positive obligation to put in place effective public health policies for combating serious and contagious diseases and to protect the life and physical integrity of those within their jurisdiction. In that regard, it was relevant that the diseases in respect of which vaccination was compulsory were all very serious and mostly highly contagious. The risk of these diseases spreading was amplified by the current high level of migration. As these diseases had now effectively been controlled, public and media attention had shifted away from disease prevention to vaccine safety. This had the potential to distort the perception of reality and to generate vaccine misinformation, which in turn could result in decreasing vaccination rates and the possible return of previously controlled vaccine-preventable diseases. Vaccine hesitancy was recognised as a serious global problem. Making vaccination compulsory was a natural response, in that it was demonstrated that it led to an improvement of the vaccination coverage. Other European States were resorting to this approach.

In the Czech Republic, vaccines were provided free of charge by the State. The vaccination duty was primarily aimed at children because they were the most vulnerable. In a preschool setting they were inevitably exposed to a higher risk of infection. Therefore, carrying out vaccination at a young age was conducive to achieving the overall aims of the vaccination policy. In that regard, the Government acknowledged that not all of the vaccines that were mandatory in the Czech Republic were aimed at achieving herd immunity and submitted that the herd immunity thresholds varied according to the specific illness in question.

The vaccination duty was not directly enforceable and any sanctions for a failure to respect it were merely administrative, with a fine only being imposable as a last resort and only once.

The scope of the vaccination duty was determined by the Ministry on the recommendation of its advisory board of epidemiologists and, since 2010, the NIC (see paragraph 154 above). In compliance with the requirements of the Disclosure Code of the European Federation of Pharmaceutical Industries and Associations and those of the WHO, at the beginning of every meeting of the NIC each of its members had to make a declaration as to any conflict of interests he or she might have in relation to any item on the meeting's agenda. As for the NIC's membership, the fact that it was limited to officials and experts reflected the prevailing practice among European States.

The Government rejected the applicants' criticism that the Czech vaccination scheme was not based on proper scientific analysis. In particular, publicly available serological surveys had been performed since 1960. Both the scope and the parameters of the scheme were under constant review and there was a comprehensive mechanism in place for monitoring any adverse effects of pharmaceuticals, including vaccines.

A vaccination could only take place after a check-up for fitness and there were statutory as well as case-law exceptions. The latter had been defined by the Constitutional Court in the Vavřička case (see paragraph 28 above) and required no legislative implementation. Although it was true that there were no concrete examples that could be cited of application of the case-law objection of conscience in relation to nursery-school admission, the exception was applicable in that context, in particular if there had been any adverse health effects of vaccination in the family of the child concerned.

In addition, the legislation left a certain leeway to the parents in selecting the vaccines to be used and the relevant dates, within a defined period for vaccination. Moreover, experience showed that the vaccination policy in place was in fact successful and all relevant Czech expert societies were clearly in favour of preserving it (see paragraphs 152 et seq. above). Any fines or non-admissions to nursery school in connection with a failure to comply with the vaccination duty had to be based on a reasoned decision that was subject to judicial review at several levels of jurisdiction. As there was clearly no European consensus on the matter of compulsory vaccination, the margin of appreciation left to the Member States was wide. An additional reason for allowing a wide margin was that the issue involved the assessment of expert and scientific data by the national authorities.

As regards the six applications in concreto, the Government emphasised that as no vaccination had actually taken place against any parent's wishes, there had been no interference with anyone's physical integrity. None of the applicants had shown at the national level that any of the criteria for an exemption from the vaccination duty on the basis of religion, conscience or otherwise, had been met. The applicants had rather relied on no more than a generally dismissive attitude towards vaccination. In particular, in the proceedings brought by the applicants Novotná, Hornych and Roleček, the SAC had specifically noted that they had neither invoked any fundamental rights or freedoms nor relied on any exceptional circumstances at all.

While it was true that no specific vaccination requirement applied to the hiring of nursery school personnel, such persons were subject to the general vaccination duty applicable to anyone residing on the territory of the Czech Republic. It was thus highly unlikely that such personnel would not have previously received the relevant primary or booster vaccinations, in line with that duty.

As regards the possibility to claim compensation in respect of damage to health due to vaccination performed in accordance with the applicable rules and standards, the Government confirmed that there was no provision for granting compensation in respect of any such damage occurring after 31 December 2013. However, any damage caused prior to that date would be covered by the previous legislative regime, which had provided for compensation. New legislation adopted in 2020 made provision for this once again (see paragraph 84 above). This legislative development was due to the fact that, under the original regime, it was the healthcare provider administering the vaccine who could be held strictly liable for damage to the patient's health. However, as that liability essentially had to do with the public interest, it should rest with the State.

Moreover, the costs of the treatment of any harmful side-effect of vaccination would be covered by public health insurance. Nevertheless, serious side-effects, i.e. with life-long health consequences, were rare, with no more than six such incidents per year for 100,000 vaccinated newborns.

Although the jurisprudential exception to the vaccination duty on the basis of the right to freedom of religion or belief had been recognised for the first time by the Constitutional Court in the Vavřička case, this did not render the domestic courts' interpretation and application of the existing legislation arbitrary. Regarding the applicant Novotná, the fact that the decision not to admit her to nursery school was taken in reopened proceedings after she had initially been admitted and had in fact been attending the school for two years had to be considered in the light of the fact that the original admission had been granted on the basis of incorrect information, provided by her. In providing that information she had assumed the risk that the admission decision might be reviewed once this came to light. Regarding the applicant Hornych, there was a similar anomaly in the information provided by his parents in the context of his application to nursery school. Finally, in relation to the applicant Novotná, the Government argued that attendance at a particular type of nursery school was not in fact a precondition for enrolment in an elementary school using the same teaching methodology. In any event, the non-admission of the child applicants to nursery school had not prevented them from developing social relations in other settings and contexts.

Relying on the Constitutional Court's case-law, the Government concluded by submitting that, as an immunisation tool preventing selected diseases, vaccination in general constituted a social benefit calling for shared responsibility on the part of the members of society and for social solidarity from each individual, who assumed a minimum risk in order to protect public health.

The French Government emphasised the importance for States to be able to adopt effective public health policies to combat serious and contagious diseases, as clearly illustrated by the COVID-19 pandemic.

In France, the law of 30 December 2017 provides for the compulsory vaccination of children aged up to 24 months against eleven diseases. Previously, vaccination was compulsory in relation to three of these diseases; regarding the other eight, it was simply recommended. With one exception, the list of illnesses is identical to that in the Czech Republic. Under French law, persons with a medical contraindication are exempted from the duty. The law of 30 December 2017 increased the potential penalty for a breach by a parent of the child vaccination duty, from a term of imprisonment of up to six months and a fine of up to EUR 3,750 to a term of imprisonment of up to two years and a fine of up to EUR 30,000. Compliance with the vaccination duty is a prerequisite for admission to childcare structures and services as well as to the education system (collectivité). In the absence of a required vaccination, a child may be admitted provisionally on condition that they are fully vaccinated within three months. Continued attendance is subject to proving each year that the vaccination duty has been complied with.

Accepting that compulsory vaccination is an interference with the right to respect for private life, the French Government underlined that it served the legitimate aim of protecting health. The necessity of the interference should be assessed in the light of the States' positive obligations to protect the life and physical integrity of those within their jurisdiction. The importance of those obligations had recently been emphasised by the Secretary General of the Council of Europe in a document entitled ‘A toolkit for member states — Respecting democracy, rule of law and human rights in the framework of the COVID-19 sanitary crisis’. As there were competing Convention rights at stake and no European consensus over compulsory vaccination, the French Government invited the Court to recognise that, in matters of public health policy and the prevention of the spreading of very serious diseases, the States enjoy a wide margin of appreciation, since they were in the best position to assess, in the light of the health situation on their territory and the means at their disposal, the measures necessary to protect public health.

Compulsory vaccination was justified by the serious adverse public health effects of low vaccination coverage. It was important to protect children from an early age and before the onset of a period of risk. In order to protect the community effectively, a vaccination policy had to apply to the greatest possible number of people. A high rate of vaccination was particularly important to protect those who could not be vaccinated.

If vaccination were merely voluntary, it was clear that some would seek to benefit from the effect of herd immunity without exposure to the residual risk associated with vaccination. If such behaviour were to become widespread, it would inevitably cause a decrease in vaccination coverage and ultimately the reappearance of pathologies that were thought to be in decline.

The French Government referred to Recommendation No. 1317 (1997) of the Parliamentary Assembly of the Council of Europe entitled ‘Vaccination in Europe’, to Article 11 of the European Social Charter (Revised), and to the Recommendation of the Council of the European Union on strengthened cooperation against vaccine-preventable diseases (2018/C 466/01) (see paragraphs 137, 142 and 150 above). The diseases in question were all very serious, and most of them highly contagious. The effectiveness of the compulsory vaccines was recognised, their negative side effects were limited and medical contraindications were taken into account. The interference represented by such a compulsory vaccination scheme with the right to respect for private life was accordingly proportionate to the objective of promoting the degree of vaccination coverage needed to reach the herd immunity threshold for the benefit of the entire population.

The German Government clarified that compulsory vaccination referred to a duty to receive vaccination in defined situations, not to the coercive administration of a vaccine. They described the context in which domestic legislation had been adopted after an extensive societal and parliamentary debate, with effect from 1 March 2020, providing for compulsory vaccination against measles. Certain categories of persons are required to provide proof of vaccination, immunity or medical contraindication to vaccination before receiving care or being employed in specified types of facilities, including schools and other educational establishments. The vaccination duty is enforced indirectly by the threat of a penalty of up to EUR 2,500, which may be repeated under certain circumstances, and exclusion from educational institutions. The latter are under a duty to report unvaccinated children to the public health authorities. It is not possible to coerce a person into vaccination; consent is always required. Children under the age of one year are exempted. Other exemptions are based either on purely medical grounds or on the non-availability of a vaccine. There are no exceptions permitted on the basis of religion or belief. Compensation is available for any adverse effects even where the vaccine has been administered in conformity with the applicable rules.

The German Government observed that compulsory vaccination aimed to protect not only those vaccinated but also society as a whole and, in particular, vulnerable persons who cannot be vaccinated themselves on account of their age or state of health. If the vaccination rate is sufficiently high, the threshold for measles being 95% of the population, a given disease can be eliminated. Despite efforts to raise awareness, the rate of voluntary vaccinations achieved in Germany never reached more than 93%. This was the challenge faced by the legislature when adopting the legislation.

In the interest of achieving the 95% threshold, compulsory vaccination starts at a young age. Moreover, young children are particularly vulnerable to measles, given their immature immune systems. In that context, the German Government referred to the recommendation by the respective body of the Robert Koch Institute, the country's central scientific institution in the field of biomedicine, to the effect that children should be vaccinated twice against measles before they reach the age of two. Moreover, the German Government considered that the compulsory vaccination scheme was best managed in the context of long-term care such as preschools and nurseries, all the more so in view of the increasing number of children attending such facilities.

As already established in the relevant Convention case-law, compulsory vaccination constituted an interference with the right to respect for private life, its compatibility with the provisions of Article 8 depending mainly on respect for the principle of proportionality.

A penalty for disrespecting the vaccination duty and exclusion from educational institutions as a consequence of it constituted a real but merely indirect interference with personal integrity. The interest in protecting public health and above all the health of those who cannot be vaccinated was of fundamental significance. The State had positive obligations under Article 2 of the Convention in that regard. The vaccinated person not only carried the burden of vaccination but also benefited from the protection it procured. The above-mentioned 93% vaccination rate had been achieved voluntarily, showing that vaccination was widely accepted by the population. The reasons for parents not to have their children vaccinated had mostly to do with convenience and carelessness. Such cases were easily addressed by a legal duty of vaccination. This constituted no major interference with individual rights but merely a small individual sacrifice. Only a small proportion of the population opposed vaccination as a matter of principle. Once the 95% threshold was reached, the disease would be eliminated, further vaccination would no longer be necessary and the vaccination duty would become dispensable.

In any event, the Contracting Parties enjoyed a wide margin of appreciation with regard to their health care systems and policies.

The Polish Government submitted that compulsory vaccination schemes did not constitute a violation of the Convention and the sanctions applicable in this context were compatible with the second paragraphs of Articles 8 and 9.

Consent to medical treatment was vital to the principles of self-determination and personal autonomy. An involuntary medical treatment constituted an interference with physical and moral integrity. Epidemics of infectious diseases might lead to sanitary, social and economic crises. The Contracting Parties were obliged to combat such diseases in humans. Vaccinations were an optimal preventive measure in that they not only reduced the number of those infected but also could lead to a complete elimination of a given illness. By promoting ‘herd immunity’, they protected not only those vaccinated but also others who could not be vaccinated. The more people were vaccinated, the better the community's resilience. Vaccinations were therefore primarily addressed to the youngest generation. According to the current state of medical knowledge, there were no better preventive measures. Widespread vaccination was also recommended by the European Centre for Disease Prevention and Control (see paragraph 147 above).

Vaccinations played an important role in shaping public health. They reduced the social consequences of health complications in connection with infectious diseases, including those related to the costs of the necessary treatment. The compulsory vaccination system thus enabled effective prevention of the spreading of dangerous infectious diseases, striking a balance between the fulfilment of the State's obligations towards citizens to provide the highest level of public health to as many persons as possible and those of citizens towards the State to comply with the vaccination duty. The cost-effectiveness of vaccinations was also a relevant factor.

In Poland, a vaccination duty had existed for nearly 60 years as a duty of an administrative nature. It was currently provided for by a statute of 2008, accompanied by a 2011 ordinance of the Minister of Health, adopted on the basis of that statute. In addition, every year the Chief Sanitary Inspector issued Protective Vaccination Programmes addressed to healthcare professionals implementing the compulsory vaccination scheme. Vaccination against eleven diseases currently found on the territory of Europe was compulsory for anyone residing in the Polish Republic. The State Sanitary Inspection was required to enforce compliance with the vaccination duty in relation to children by using administrative powers, the respective regulation and its enforcement never having been challenged. The State was responsible for the safety of the vaccination procedures and it bore the cost of vaccination as well as of the treatment of any possible side-effects. There was also the possibility of opting for commercially obtainable vaccines, the cost of which was not borne by the State.

As there was a diversity of legal and healthcare systems, it was inevitable that the Contracting Parties resorted to varying solutions to ensure a sufficient level of vaccination, reflecting the social, economic and cultural differences between them and the local conditions, habits and expectations as well as each country's economic possibilities. In the absence of a pan-European consensus, the Contracting Parties had a wide margin of appreciation to make arrangements to the best of their knowledge and possibilities. The assessment of the specific system of sanctions in each Contracting Party should not lead to the undermining of the compulsory vaccination system in general. The proportionality of the solutions adopted was rather to be assessed on a case-by-case basis.

The Government of Slovakia noted that the present cases were not about the vaccination duty as such but rather about the consequences of non-compliance with that duty, a distinction that was relevant for the assessment under Article 8 of the Convention.

Observing that there was no uniform approach among Council of Europe member States, the Government referred to the arrangement in place in Slovakia. There the vaccination duty was laid down in legislation, consisting of an Act of Parliament and an implementing executive decree. The duty applied to everyone, except if there were health contraindications. There was no mechanism for physically enforcing compliance. However, the attending doctor was duty bound to explain to the patient, or to his or her statutory representatives, all relevant aspects and effects of the vaccination to be given. If still not accepted, the doctor had to report the case to the relevant public health authorities, who would summon the person in question for an interview. A persistent refusal to comply could then be seen as a minor offence punishable by a fine of up to EUR 331. The legislation in force did not provide for the exclusion of unvaccinated children from preschool establishments.

The Government referred to a judgment of 10 December 2014 (case no. PL. US 10/2013), in which the Constitutional Court of Slovakia found the vaccination duty to be constitutional. It considered that the State was under a positive obligation to ensure the protection of public health. The legislature's decision to comply with that obligation by means of compulsory vaccination was primarily of a political and expert nature falling within a broad margin of appreciation. It could contravene the individual right to protection of health if it were to be administered despite medical contraindications or if any general adverse effects of vaccination were demonstrated. However, such was not the case. Mandatory vaccination set two constitutional principles in opposition with one another: the protection of public health and respect for private life. It was not possible to reconcile both principles without fundamentally limiting one of them. The specific contraindication exemption was accompanied by a duty on the attending doctors to enquire into the existence of any contraindications prior to administering any vaccine. As with regard to any medication, the quality and safety of vaccines were supervised by the State Agency for Drug Control. In addition to healthcare providers, who were under a duty to report any suspicion of serious or unexpected side-effects of vaccines, any patient, or — in the case of child patients — their parents, could do so. Moreover, the legislative framework provided for compensation in respect of damage to health resulting from a vaccination performed contrary to the applicable rules. There were, to the existing level of medical knowledge, no other effective means to reduce or eradicate infectious diseases. The interference represented by compulsory vaccination with an individual's right to respect for private life was accordingly justified by the interest in the protection of public health that it served. While it was true that some countries provided for compensation also in respect of health damage resulting from a vaccination performed in accordance with the applicable rules, the absence of such a scheme in Slovakia had no impact on the above conclusion.

The Government added that, specifically with regard to children, the crucial criterion was that of their best interests. This was to be determined by whether or not there was any health contraindication to vaccination. A refusal to vaccinate a child without contraindications could be seen as being contrary to his or her best interests. It was accordingly necessary to ensure compliance with the applicable rules by way of sanctions. It was important to protect children from a young age and especially those who could not be vaccinated on account of contraindications.

The intervening association represents patients who suffer from health problems as a result of having been vaccinated. On that basis it described the situations of children who had not been vaccinated at all or were not in full compliance with the applicable vaccination schedule. Those situations mostly involved the children not being admitted to nursery schools, the mother losing her job as she was left with no alternative but to stay at home with her child and the family losing a source of income. Nonetheless, those families would rather change their lifestyle than expose their children to the risks inherent in vaccination.

The existing system in fact ignored individual needs stemming, for example, from previous adverse effects on the child in question or its relatives. This was partly the result of an insufficient level of independent knowledge of the risks and negative effects of vaccination among paediatricians, whose continuing education was often sponsored by the pharmaceutical industry. Moreover, there was a lack of transparency as to the criteria for and the method of defining the compulsory vaccination schedule at the expert level. This created room for arbitrariness on the part of the executive and gave rise to mistrust and resistance on the part of the public. This in turn called for counter-measures by the proponents of vaccination, with the overall effect of polarising society and stigmatising those opposed to vaccination. Such counter-measures consisted of: (i) enforcing the duty on paediatricians to perform vaccination; (ii) massive media campaigns promoting vaccination, funded by the pharmaceutical industry; (iii) the exercise of judicial power in a manner sympathetic to the vaccination duty, in particular by the Constitutional Court; and (iv) a disinformation campaign by official bodies promoting vaccination.

The number of compulsory vaccinations and the tight schedule for administering them did not allow in practice for the assessment of any individual needs. For similar reasons, vaccination was also performed in situations in which the patient was not sufficiently healthy to receive it. In addition, in view of the interpretation given in practice to the term ‘permanent contraindication’, it was not feasible to satisfy this ground for an exemption from the vaccination duty.

These features of the existing system had an extensive impact on the children concerned and their families. There was a variety of other and strikingly different arrangements at the European level, including in neighbouring countries with an epidemiological situation similar to that in the Czech Republic, where the vaccination system was the strictest. Were the Court to find that the Czech approach was not at odds with Convention requirements, the situation could even worsen and this trend could spread to other jurisdictions. Should the Court find the opposite, the respondent State would be required to limit the power of the executive to define and apply the criteria for and the method for establishing the vaccination schedule and to open this matter to a wider public and political debate.

In so far as the intervention of the ECLJ concerned Article 8, this third-party intervener pointed to the importance of the present case in that it concerns respect for the physical and moral welfare of the human being, as guaranteed by the principles that such welfare must prevail over the sole interest of society or science and that an intervention in the health field may be carried out only with the free and informed consent of those concerned, as established in Articles 2 and 5 of the Oviedo Convention. It emphasised the need for regulating these matters, in particular in view of the experience of several countries in the 20th century with regard to various policies in the fields of health and eugenics, and considered that in so doing use could be made of the case-law principles stemming from the cases decided by the Court concerning forced sterilisation. The present cases involved a situation of strongly encouraging individuals to submit to the vaccination duty by means of the threat of a sanction. As no forced vaccination had taken place, the principal question was not so much the legitimacy of the vaccination duty but rather of the sanction imposed on the applicants for failing to comply with it.

The intervener submitted that the physical integrity of a person was covered by the concept of ‘private life’ protected by Article 8 of the Convention and that compulsory vaccination — as an involuntary medical intervention — amounted to an interference with that right. The main problem was the question of the necessity of the measures taken by the authorities in relation to the applicants in support of the vaccination policy.

In that respect, an adequate approach was to seek to reconcile the competing rights and interests rather than merely to set them against each other. The conciliatory approach involved seeking compromise and applying principles of pluralism and tolerance.

The intervener noted that in countries such as Austria, Cyprus, Denmark, Estonia, Finland, Germany, Ireland, Lithuania, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden and the United Kingdom, vaccination was not compulsory. Other countries imposed vaccination in respect of between one (Belgium) and twelve (Latvia) diseases. The usefulness and necessity of compulsory vaccination had not been established.

Placing emphasis on information and recommendations, combined with more flexible procedures, was an alternative to coercion, and was more respectful of the moral and physical integrity of individuals guaranteed, inter alia, under Article 8 of the Convention.

This third-party intervener submitted the following information, based on its experience. There was an increasing number of parents in the Czech Republic who wished to be informed on matters concerning vaccination, who questioned its necessity and timing and who were conscious of their inalienable right to take informed decisions on all matters concerning their children. The majority of such parents did not oppose vaccination of their children en bloc but rather desired an individual approach. They did not know how to communicate on these matters with doctors and authorities and the State failed to provide adequate sources of relevant information.

Repressive tools for promoting the vaccination rate were inappropriate because they gave rise to mistrust. Verifiable data showed that an increasing repression level corresponded to a decreasing vaccination rate. A better approach was to promote dialogue with parents on an equal footing.

The core of the problem was that the PHP Act provided for sanctions on parents who failed to ensure vaccination of their children and excluded such children from public and private preschool facilities, and from further activities such as school trips and retreats.

As regards the sanctions on the parents, the intervener referred to the secular objection of conscience as defined by the Constitutional Court in the case of Vavřička and developed in its judgment of 22 December 2015 in another case (see paragraphs 28 and 93 above). In that connection, it pointed out that after 2011 minor-offence proceedings were no longer instituted in the event of parents' failure to have their children vaccinated but that since 2018 such proceedings were again being instituted. However, the administrative bodies involved in such proceedings did not grant the exception provided for by the constitutional case-law in any individual case and no such exceptions were applied with regard to the admission of children lacking any prescribed vaccination to preschool establishments. Furthermore, the statutory exception from the duty on health grounds required a permanent contraindication and doctors generally interpreted that category restrictively.

The threat of a sanction also applied to preschool establishments if they admitted an unvaccinated child, and the inability to have one's children admitted to such an establishment resulted in the parents either having to stay and provide for their children at home or to bear the costs of alternative care. The affected parents sometimes organised themselves to provide day-care for their children in informal groups. However, all of this had financial and career implications.

The intervener then described the legal regime applicable to vaccinations and its functioning in a wider context, its reform, and the consequences of the vaccination duty for various groups of stakeholders. In 2017/18 preschool attendance became mandatory for children aged five (see paragraph 81 above). Those children were no longer obliged to be vaccinated. Nevertheless, there had been no dramatic effects on public health although such children would usually be kept together with younger children whose vaccination remained compulsory. Any consultative processes at the level of the Ministry in connection with the definition of the vaccination schedule were inadequate: a specialised working commission established in 2015 (see paragraph 156 above) had only met five times, had reached no conclusions and had been dormant since 2018.

This intervener submitted that, in contrast to other areas of societal importance in a democratic society, where opposing views were institutionally represented, there were no trade unions of any specific profession in the area of public health to defend an individual's health-related choices. While in the area of justice there were rules adopted by the lawmaker and adjusted by the judiciary, there was no equivalent to this in the area of health. Whilst there had traditionally been a doctors' professional body and an administrative body in charge of matters of health, there was generally no institution representing the patient. The need for representation of the patient in relation to the health authorities was, in France, reflected in the creation of a specific university doctorate for patient-experts.

However, sworn experts in the area of health in France were appointed by a tribunal and operated in a regime that was open to criticism, inter alia, in view of the scope of their specialisation and expertise. For various reasons, basic, pre-clinical and clinical research in relation to vaccines had a limited potential.

Moreover, the intervener criticised the use of aluminium-based compounds in the production of vaccines and attributed it to economic considerations on the part of the pharmaceutical industry.

In addition, the intervener described in detail various physiological aspects of immunity and commented on an individual clinical case of adverse health effects arising from vaccination.

Public pronouncements by health authorities on the side-effects of vaccines were generally prejudiced and official studies in the area of vaccination would commonly not cite their authors and sources. Yet issues such as the efficiency of booster-vaccination of adults and vaccines administered subcutaneously in general were open to debate.

Just as there was the premise in dubio pro reo in matters of liability, doubts in the area of vaccination should be interpreted in favour of a free choice by an individual under the principles of primum non nocere and in dubiis abstinere.

It was common in the healthcare world to confuse the categories of ‘informed consent’ and a ‘permission to proceed with a specific procedure granted by the patient’. This might be because despite long studies doctors were not trained to transmit scientific and medical information to patients in a language that the latter understood. It was unclear whether the state of the science regarding therapeutic approaches adequately took into account individual's physiological responses.

Although the vaccination procedure was intrusive in terms of the law and thus normally subject to the requirement of informed consent, in France it was imposed administratively and not subject to free and informed individual consent.

There were many reports of serious pathologies which had emerged as a result of a vaccination, such as autism, multiple sclerosis, Guillain-Barré syndrome, macrophage myofasciitis, etc. Some had been demonstrated before the courts in individual cases against pharmaceutical corporations. It was necessary and a matter of scientific and medical responsibility in a democratic society to rule out potential risks by demonstrating that there was no causal link between the pathologies observed after the vaccination and the administration of the vaccine. Failure to do so could not be justified by economic considerations.

The current understanding of physiology was still in its infancy and vaccination as practiced presently was an archaic procedure which was provided by the laboratories and the institutions above them.

Many of the illnesses against which vaccination was compulsory did not produce serious consequences and the effect of vaccinating against them was that they would mutate and become more pernicious.

Lastly, broad immunisation coverage was currently promoted by many governments through an aggressive vaccination policy, although no scientific studies had proven the effectiveness of this approach. On the other hand, some other European countries provided for a free individual choice in the matter. The first imperative step was to ensure that those concerned were amply informed on all relevant aspects of vaccination and it was questionable whether doctors were able to do so. Secondly, there should be a free choice between informed consent and refusal.

The Court notes that the applicants formulated their Article 8 complaints principally with reference to the fine imposed on Mr Vavřička and to the non-admission of the child applicants to nursery school. In other words, it was the consequences of non-compliance with the vaccination duty that was complained of.

However, in the Court's opinion, the consequences borne by the applicants cannot be meaningfully dissociated from the underlying duty. On the contrary, they flow immediately and directly from the applicants' attitude towards it and are therefore intrinsically connected to it.

In these circumstances, the Court finds that the subject matter of the applicants' complaints is the vaccination duty and the consequences for them of non-compliance with it.

It is common ground among the parties that the complaint raised under Article 8 of the Convention relates to the right to respect for the applicants' private life. The Court agrees, it being well established that a person's physical integrity forms part of their ‘private life’ within the meaning of this provision of the Convention, which also encompasses, to a certain degree, the right to establish and develop relationships with other human beings (see Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 159, 24 January 2017, with further references; and also, in relation to vaccination specifically, Boffa and Others, cited above, and Baytüre and Others v. Turkey (dec.), no. 3270/09, 12 March 2013).

While some of the applicants also referred to the right to respect for family life, the Court does not consider it necessary to examine their Article 8 complaints from this additional perspective.

The Court has established in its case-law 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 (see Solomakhin v. Ukraine (no. 24429/03, § 33, 15 March 2012, with further references). With regard to the present applicants, it is true that, as the Government underlined, none of the contested vaccinations were performed. However, having regard to the subject matter of this case as established above (see paragraph 260), and also to the fact that the child applicants bore the direct consequences of non-compliance with the vaccination duty in that they were not admitted to preschool, the Court is satisfied that, in their regard, there has been an interference with their right to respect for private life.

As regards Mr Vavřička, while it is the vaccination of his children that is at issue, the Court considers that this does not lead to a different conclusion. It notes that under domestic law he was personally subject to the duty to have his children vaccinated, and that the consequences of non-compliance with it, i.e. the fine, were borne by him directly as the person legally responsible for their well-being. As noted above, in opposing their vaccination, he explained that he was principally motivated by concern for their physical integrity, fearing that vaccination could cause serious damage to their health. In these circumstances, the Court considers that the facts of the case of Mr Vavřička also may be regarded as disclosing an interference with the right to respect for private life, as indeed was accepted by the Government (see Boffa and Others, cited above, p. 34).

To determine whether this interference entailed a violation of Article 8 of the Convention, the Court must examine whether it was justified under the second paragraph of that Article, that is, whether the interference was ‘in accordance with the law’, pursued one or more of the legitimate aims specified therein, and to that end was ‘necessary in a democratic society’.