Respect for private life<\/strong><\/p>\nFine on parent and exclusion of children from preschool for refusal to comply with statutory child vaccination duty:\u00a0no violation<\/p>\n
Facts\u00a0\u2013 The case, which originated in six applications, concerns the statutory duty to vaccinate children against diseases well known to medical science and the consequences for the applicants of non-compliance with it. The first application was lodged by a parent on his own behalf, complaining about the fact that he had been fined for failing to have his school-age children duly vaccinated. The other applications were lodged by parents on behalf of their underage children after they had been refused permission to enrol them in preschools or nurseries.<\/p>\n
Law\u00a0\u2013 Article 8: As per\u00a0the Court\u2019s established case-law, compulsory vaccination, as an involuntary medical intervention, was an interference with the right to respect for private life. Although none of the contested vaccinations had been performed, the vaccination duty and the direct consequences of non-compliance with it also amounted to such an interference.\u00a0 The interference had been lawful and pursued the legitimate aim of protecting the health and the rights of others. In assessing whether the interference with the applicants\u2019 rights had been necessary in a democratic society the Court weighed the following factors:<\/p>\n
(a)\u00a0The State\u2019s margin of appreciation\u00a0\u2013 It was found to be wide on the following grounds:<\/p>\n
\u2013 no vaccinations had been administered against the applicants\u2019 will, nor could they have been, as compliance could not have been forcibly imposed under the relevant domestic law.<\/p>\n
\u2013 a general consensus existed among the Contracting Parties, strongly supported by international specialised bodies, that vaccination was one of the most successful and cost-effective health interventions and that each State should aim to achieve the highest possible level of vaccination.<\/p>\n
\u2013\u00a0there was no consensus, however, over a single model of child vaccination but rather a spectrum of policies, ranging from one based wholly on recommendation, through those that made one or more vaccinations compulsory, to those that made it a matter of legal duty to ensure the complete vaccination of children. The Czech Republic\u2019s more prescriptive approach had been shared by three of the intervening Governments and had been recently followed by several other Member States due to a decrease in voluntary vaccination and a resulting decrease in herd immunity.<\/p>\n
\u2013 the sensitive nature of the childhood vaccination duty was not limited to the perspective of those disagreeing with this duty, but also encompassed the value of social solidarity, the duty\u2019s purpose being to protect the health of all members of society, particularly those who were especially vulnerable with respect to certain diseases and on whose behalf the rest of the population was asked to assume a minimum risk in the form of vaccination.<\/p>\n
\u2013 as previously held, healthcare policy matters came within the margin of appreciation of the national authorities who were best placed to assess priorities and social needs.<\/p>\n
The issue to be determined was not whether a different, less prescriptive policy might have been adopted, as in some other European States. Rather, it was whether, in striking the particular balance as they had done, the Czech authorities had remained within their wide margin of appreciation in this area.<\/p>\n
(b)\u00a0Pressing social need\u00a0and\u00a0relevant and sufficient reasons\u00a0\u2013 A mandatory approach to vaccination represented the authorities\u2019 answer to the pressing social need to protect individual and public health against the diseases in question and to guard against any downward trend in the child vaccination rate. It had been supported by relevant and sufficient reasons.\u00a0 In addition to the weighty public health rationale, the general consensus between States and the relevant expert data, the Court also had regard to the question of the best interests of children. According to the Court\u2019s well-established case-law, in all decisions concerning children their best interests were of paramount importance; this reflected the broad consensus expressed notably in Article 3 of the Convention on the Rights of the Child. It followed that there was an obligation on States to place the best interests of the child, and also those of children as a group, at the centre of all decisions affecting their health and development. When it came to immunisation, the objective should be that every child be protected against serious diseases; this was achieved, in the great majority of cases, by children receiving the full schedule of vaccinations during their early years. Those to whom such treatment could not be administered were indirectly protected against contagious diseases as long as the requisite level of vaccination coverage was maintained in their community, i.e. their protection came from herd immunity. Thus, when a voluntary vaccination policy was not considered sufficient to achieve and maintain herd immunity, or such immunity was not relevant due to the nature of the disease, a\u00a0compulsory vaccination policy might reasonably be introduced in order to achieve an appropriate level of protection against serious diseases. Based on such considerations, the respondent State\u2019s health policy was thus consistent with the best interests of the children.<\/p>\n
(c)\u00a0Proportionality\u00a0\u2013 In the first place, the Court examined the relevant features of the national system:<\/p>\n
\u2013 the vaccination duty concerned ten diseases against which vaccination was considered effective and safe by the scientific community.<\/p>\n
\u2013 albeit compulsory, the vaccination duty was not absolute and allowed exemptions either on grounds of a permanent contraindication\u00a0or on grounds of conscience.\u00a0 In accordance with the Constitutional Court\u2019s case-law, the circumstances of each individual case were to be rigorously assessed. However, none of the applicants had relied on either exemption.<\/p>\n
\u2013 compliance with the vaccination duty could not be directly imposed but, as with arrangements made in the intervening States, the duty was enforced indirectly through the application of sanctions. In the Czech Republic, the sanction was relatively moderate, consisting of a one-off administrative fine. In the first applicant\u2019s case the amount had been towards the lower end of the relevant scale and could not be considered as unduly harsh or onerous. In so far as the child applicants were concerned, their non\u2011admission to preschool aimed\u00a0to safeguard the health of young children and was thus essentially of a protective rather than punitive nature.<\/p>\n
\u2013 procedural safeguards were provided for in domestic law and the applicants had been able to make use of administrative and judicial remedies.<\/p>\n
\u2013 the legislative approach employed made it possible for the authorities to react with flexibility to the epidemiological situation and to developments in medical science and pharmacology.<\/p>\n
\u2013 no issue had been shown over the integrity of the policy-making process or transparency of the domestic system.<\/p>\n
\u2013 with regard to safety, acknowledging very rare but undoubtedly very serious risk to the health of an individual, the Court reiterated the importance of necessary precautions before vaccination, including\u00a0the monitoring of the safety of the vaccines in use and the checking for possible contraindications in each individual case. In each of those respects, there had been no reason to question the adequacy of the domestic system. Moreover, some leeway was allowed regarding the choice of vaccine and the vaccination timetable.<\/p>\n
\u2013 although as a\u00a0general proposition, the availability of compensation in case of injury to health caused by vaccination was relevant to the overall assessment of a system of compulsory vaccination, this issue could not be given any decisive significance in the context of the present applications as no vaccines had been administered. Further, the applicants had not raised this issue in the domestic proceedings and for most of them, the facts\u00a0had occurred at a time when compensation had been available under domestic law.<\/p>\n
Secondly, the Court proceeded to consider the intensity of the impugned interference with the applicants\u2019 enjoyment of their right to respect for private life:<\/p>\n
\u2013 in so far as\u00a0the first applicant was concerned, the administrative fine imposed on him had not been excessive in the circumstances and there had been no repercussions on his children\u2019s education.<\/p>\n
\u2013 as to the remaining applicants, their exclusion from pre-school meant\u00a0the loss of an important opportunity to develop their personalities and to begin to acquire social and learning skills in a formative and pedagogical environment. However, this had been the direct consequence of their parents\u2019 choice not to comply with the\u00a0vaccination duty, whose purpose was to\u00a0protect health, particularly in that age group. Moreover, the possibility of attendance at preschool of children who could not be vaccinated for medical reasons depended on a very high vaccination rate among other children against contagious diseases. It could not therefore be\u00a0regarded as disproportionate for a State to require those for whom vaccination represented a remote health risk to accept this universally practised protective measure, as a\u00a0matter of legal duty\u00a0and in the name of social solidarity, for the sake of the small number of vulnerable children who were unable to benefit from vaccination. It had thus been validly and legitimately open to the Czech legislature to make this choice, which was 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, did not detract from that finding. Further, the applicants had not been deprived of all possibility of personal, social and intellectual development, even if at additional effort and expense on their parents\u2019 part, and the consequences had been limited in time as their subsequent admission to primary school had not been affected by their vaccine status.<\/p>\n
In conclusion, the measures complained of by the applicants, assessed in the context of the domestic system, stood in a reasonable relationship of proportionality to the legitimate aims pursued by the respondent State, which had not exceeded its margin of appreciation, through the vaccination duty. They could therefore be regarded as being \u201cnecessary in a democratic society\u201d.<\/p>\n
Conclusion: no violation (sixteen votes to one)<\/p>\n
The Court also, by a majority, declared inadmissible the applicants\u2019 complaint under Article 9 as incompatible\u00a0ratione materiae\u00a0with this provision. In particular, they had not substantiated that their critical opinion on vaccination was of sufficient cogency, seriousness, cohesion and importance so as to constitute a conviction or belief attracting the guarantees of Article 9.<\/p>\n
(See also\u00a0Bayt\u00fcre and Others v. Turkey\u00a0(dec.),\u00a03270\/09, 12 March 2013,\u00a0Legal Summary;\u00a0Hristozov and Others v. Bulgaria,\u00a047039\/11\u00a0and\u00a0358\/12,\u00a013 Novembre 2012,\u00a0Legal Summary;\u00a0Solomakhin v. Ukraine,\u00a024429\/03, 15 March 2012;\u00a0Boffa and Others v.\u00a0San Marino,\u00a026536\/95, Commission decision of 15\u00a0January 1998;\u00a0Association of Parents v. the United\u00a0Kingdom,\u00a07154\/75, Commission decision of 12\u00a0July 1978)<\/p>\n