{"id":13334,"date":"2021-04-21T09:00:01","date_gmt":"2021-04-21T07:00:01","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=13334"},"modified":"2021-04-21T10:12:11","modified_gmt":"2021-04-21T08:12:11","slug":"what-does-the-vavricka-judgement-tell-us-about-the-compatibility-of-compulsory-covid-19-vaccinations-with-the-echr","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/what-does-the-vavricka-judgement-tell-us-about-the-compatibility-of-compulsory-covid-19-vaccinations-with-the-echr\/","title":{"rendered":"What Does the\u00a0Vav\u0159i\u010dka Judgement Tell Us About the Compatibility of Compulsory COVID-19 Vaccinations with the ECHR?"},"content":{"rendered":"

On the 8th of April, the Grand Chamber of the European Court of Human Rights (\u2018the Court\u2019) issued its widely-anticipated judgement on Vav\u0159i\u010dka and others v<\/em><\/u>.<\/em><\/u> the Czech Republic<\/em><\/u><\/a>\u00a0shedding some light on\u00a0its view on mandatory vaccinations. As public discussions on COVID-19 vaccines\u00a0multiply and some States\u00a0waveringly\u00a0lean<\/u><\/a> towards compulsory vaccinations policies, the Court\u2019s judgement could not have been any\u00a0timelier, since it provides useful guidelines on the circumstances, under which compulsory COVID-19 vaccinations can be deemed as compatible with the European Convention on Human Rights<\/u><\/a>\u00a0(\u2018ECHR\u2019).<\/p>\n

Background of the Case<\/strong><\/p>\n

The case originated from six\u00a0application<\/u>s<\/u><\/a>, lodged by a father, who, having omitted to have his children vaccinated, was found to have committed a minor offence, and five\u00a0\u2018child applicants\u2019, who had either not been admitted to nursery school or whose enrolment had been cancelled, as they had not been (duly) vaccinated in line with the relevant\u00a0national legislation.<\/p>\n

The applicants relied on ECHR Articles 8, 9, 2, 6, 13 and 14, as well as on Article 2 of Protocol <\/u>1<\/u><\/a>, to complain about the consequences of non-compliance with mandatory vaccinations.\u00a0However, to the Court\u2019s view,\u00a0their claims under\u00a0Articles 9, 2, 6, 13 and\u00a014 were inadmissible (paras. 338, 347) and their applications should be assessed only under Article 8 (right to respect for private life). After this assessment, the Court did not deem it necessary to also examine their claims under Article 2 of Protocol 1 (right to education) (para. 345).<\/p>\n

Compulsory Vaccination <\/strong>as an<\/strong> Interference with the Right to Respect for Private Life<\/strong>\u00a0<\/strong><\/p>\n

The Court recalled that\u00a0\u2018compulsory vaccination, as an involuntary medical intervention, represents an\u00a0interference with the right to respect for private life\u2019 under\u00a0ECHR Article 8 (para. 263).\u00a0Although the contested vaccinations had not been actually performed, the Court held that the mere vaccination duty and the direct consequences of non-compliance therewith\u00a0also amounted to\u00a0an interference (para. 263).<\/p>\n

On assessing whether the limitation was justifiable under ECHR Article 8(2), the Court first noted that the measure of compulsory vaccination was introduced via an accessible and foreseeable legal provision (paras. 266-271) and pursued the legitimate aim of the protection of health and of the rights of others (para. 272). What needed to be further assessed was whether the interference was \u2018necessary in a democratic society\u2019.<\/p>\n

For the assessment\u00a0of compulsory vaccinations\u2019 necessity, the Convention\u2019s institutions had elaborated a number of criteria in their jurisprudence (see here<\/u><\/a> and here<\/u><\/a>). Precisely,\u00a0in the case of Solomakhin v<\/em><\/u>.<\/em><\/u> Ukraine<\/em><\/u><\/a>, where the applicant was involuntarily vaccinated against diphtheria during an epidemic, the Court\u00a0assessed: 1) whether public health considerations necessitated the control of the spreading of infectious diseases; and 2) whether necessary precautions had been taken with regard to the suitability of vaccination for the individual case at hand (para. 36). These criteria had been already\u00a0envisaged by the European Commission of Human Rights (\u2018EComHR\u2019) in\u00a0Boffa and others v<\/em><\/u>.<\/em><\/u> San Marino<\/em><\/u><\/a>, which additionally stressed the existence of a Margin of Appreciation (\u2018MoA\u2019) enjoyed by the States in this regard (para. 35).<\/p>\n

These criteria were further elaborated and specified by the Court in the Vav\u0159i\u010dka <\/em>judgement, where compulsory vaccinations\u2019 necessity in a democratic society was assessed through a thorough consideration of 1) the states\u2019 MoA (paras. 276-280), 2) the existence of a pressing social need and relevant and sufficient reasons necessitating the interference (paras. 281-289) and 3) the proportionality of the interference with the legitimate aim pursued (paras. 290-309). The Court\u2019s analysis can be summarised as follows:<\/p>\n

The N<\/strong>ecessity <\/strong>of <\/strong>the Interference<\/strong> in a Democratic Society<\/strong><\/p>\n

Drawing on the consensus among ECHR-parties and international bodies on the value of vaccinations as successful and cost-effective health interventions on one hand (para. 277) and on the lack of inter-State consensus over a coherent policy on children\u2019s vaccination on the other (para. 278), the Court took the view that the States enjoyed a wide margin of appreciation on the matter (para 280). This conclusion was also influenced by the value of social solidarity and \u2018the duty 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 rest of the population was asked to assume a minimum risk in the form of vaccination\u2019 (para. 279).<\/p>\n

The Court went on to highlight that States\u00a0are under a positive obligation to take appropriate measures to protect the life and health of those within their jurisdiction (para. 282). It found that the Czech Republic had\u00a0imposed children\u2019s compulsory vaccination as an answer to the pressing social need of\u00a0protecting individual and public health and of preventing a downward trend in the vaccination rate among children (para. 284).\u00a0Thus, the Court deemed the\u00a0domestic legal framework\u00a0to be consistent with the best interests of the children and required by relevant and\u00a0sufficient\u00a0reasons\u00a0(para. 289).<\/p>\n

Ultimately, the Court had to assess the stricto sensu <\/em>proportionality of the measure. In this regard, it noted that\u00a0the vaccination duty under domestic law concerned diseases, against which vaccination is considered effective and safe by the scientific community (para 291) and\u00a0that\u00a0the domestic law provided for exemptions on grounds of contraindication\u00a0or conscience (para. 292) as well as for compensation in case of injury caused by the vaccination (para. 302). Furthermore,\u00a0it underlined that\u00a0the national law did not allow vaccinations to be forcibly administered and that the duty was\u00a0enforced indirectly through sanctions, which had a protective character (paras. 293-294). Lastly, the Court highlighted that the competent authorities had taken necessary precautions, such as the\u00a0monitoring of the safety of the vaccines in use and the assessment\u00a0of possible contraindications in each individual case. In this regard, the Court\u2019s assessment evinces a shift form the EComHR\u2019s earlier jurisprudence: unlike the EComHR, which suggested that the individual at stake would have to demonstrate the probability that the vaccine will cause\u00a0serious\u00a0<\/em>problems to her\/his health (Boffa and <\/em><\/u>others v. San Marino<\/em><\/u><\/a>, p. 35), the Court suggests that the national authorities should bear the burden of safeguarding the suitability of vaccines in use and of checking for possible contraindications in each individual case (para. 301). As this requirement was found to have been met, the Court concluded that the interference was proportionate to the legitimate aim pursued and necessary in a democratic society (paras. 309-310) and found no violation of Article 8 ECHR.<\/p>\n

Compulsory Vaccination as an Interference with <\/strong>the F<\/strong>reedom of Thought and Conscience<\/strong>?<\/strong><\/p>\n

Examining the applicants\u2019 claims under ECHR Article 9, the Court recalled that not all opinions or convictions constitute beliefs protected by this provision and noting the lack of consistency regarding the philosophical or religious aspects of the applicants\u2019 objection to vaccination in the domestic proceedings (para. 334), it concluded\u00a0that the applicants failed to substantiate that their critical opinion on vaccination was of such sufficient cogency, seriousness, cohesion and importance as to constitute a belief protected under ECHR Article 9.\u00a0Thus, it found that the applicants\u2019 claim was inadmissible (paras. 334-338).<\/p>\n

Despite that, the Court\u2019s analysis\u00a0indicates a slight shift in the jurisprudence of the Convention\u2019s institutions, which opens the way towards the acknowledgment of compulsory vaccinations as an interference with ECHR Article 9. Indeed, the Court emphasised that the national law provided an exceptional waiver of\u00a0the penalty for non-compliance with\u00a0the vaccination duty on grounds of conscience (para. 334). Similarly, in his dissenting opinion, judge\u00a0Wojtyczek underlined that this exception clause was \u2018a very important argument\u2019 in favour of the measure\u2019s compatibility\u00a0with\u00a0the\u00a0Convention (para. 17). These statements\u00a0seem to suggest that the Court no longer embraces the findings in Boffa and others v<\/em><\/u>.<\/em><\/u> San Marino<\/em><\/u><\/a>, in which the EComHR found that a vaccination duty that applied to everyone (regardless of religion or personal creed) was compatible with ECHR Article 9.\u00a0Indeed, the Vav\u0159i\u010dka<\/em>\u00a0judgement suggests that\u00a0<\/strong>the level of cogency, seriousness, cohesion and importance that a conscientious objection against vaccinations needs to meet to fall within the ratione materiae<\/em> scope of ECHR\u00a0Article 9 is relatively high. Additionally, even when an objection falls within the scope of Article 9 ECHR, this does not mean that the interference could not be justified under the limitation clause of Article 9 (2) ECHR.<\/p>\n

How Does the <\/strong>Vav\u0159i\u010dka<\/strong><\/em> J<\/strong>udg<\/strong>e<\/strong>ment<\/strong> Contribute to Discussions on Compulsory Vaccinations Against COVID-19?\u00a0\u00a0 <\/strong><\/p>\n

In the Vav\u0159i\u010dka<\/em>\u00a0judgement, the Court did not leave room for generalisations.\u00a0<\/strong>Instead, it highlighted that\u00a0its analysis concerned the \u2018standard and routine vaccination of children<\/em> against diseases that are well known to medical science<\/em>\u2019\u00a0(para. 158, emphasis added), and that \u2018in the present case, which specifically<\/em> concerns the compulsory nature of child<\/em>\u00a0vaccination<\/em>, that margin should be a wide one\u2019 (para. 280, emphasis added). However, despite such pronouncements, the Court\u2019s analysis shed more light into the formerly established criteria on the assessment of compulsory vaccinations\u2019\u00a0necessity in a democratic society and provides clearer guidelines on the compatibility of compulsory COVID-19 vaccinations with ECHR.<\/p>\n

Indeed, building on the Court\u2019s analysis on the MoA\u00a0in the\u00a0Vav\u0159i\u010dka<\/em>\u00a0<\/em>judgement (paras. 277-278), one notes a consensus among States<\/u><\/a> and international bodies<\/u><\/a> on the efficacy of COVID-19 vaccines and a\u00a0lack<\/u> of consensus<\/u><\/a> among States on mandatory vaccinations against COVID-19. These considerations, along with the Court\u2019s finding that \u2018in matters of health-care policy, it is the domestic authorities who are best placed to assess priorities, the use of resources and social needs\u2019 (para. 285)\u00a0lead to the conclusion that the assessment of whether compulsory\u00a0vaccinations against COVID-19 should be\u00a0introduced falls within\u00a0the States\u2019 MoA\u00a0margin of appreciation.<\/p>\n

Additionally, based on the Court\u2019s clarification\u00a0that\u00a0a decrease in voluntary vaccinations\u00a0constitutes a pressing social need (paras. 283-284) and that\u00a0in cases, where herd immunity\u00a0is not relevant due to the nature of the disease, compulsory vaccinations can be reasonably introduced for the achievement\u00a0of an appropriate level of protection (para. 288), mandatory vaccinations can be also deemed as a reasonable response to COVID-19.\u00a0After all, as the Court held, the existence of less prescriptive alternatives will not be a decisive factor in the assessment of compulsory vaccinations\u2019 necessity in a democratic society (para. 310), although\u00a0the existence of exclusion clauses for reasons of contraindications or conscience (para. 292),\u00a0the assessment of the vaccination\u2019s suitability in each individual case (para. 301) and the availability of compensation in case of injury to health due to the vaccination (para. 302) will be central in the assessment of the measure\u2019s proportionality.<\/p>\n

Based on the analysis above and on the guidelines provided by the Vav\u0159i\u010dka<\/em> judgement, one can conclude that the measure of compulsory COVID-19 vaccinations will be compatible with the ECHR, if\u00a0the vaccination is considered safe by the scientific community,\u00a0it is only indirectly imposed through sanctions of a protective character\u00a0with respect to conscience exceptions,\u00a0necessary precautions are taken (prior assessment of potential contraindications in each case and monitoring of the vaccines in use), compensation is available in situations of injuries caused by the vaccine.<\/p>\n

 <\/p>\n

The “Bofaxe” series appears as part of a\u00a0<\/em>collaboration<\/em><\/u><\/a>\u00a0between the\u00a0<\/em>IFHV<\/em><\/u><\/a>\u00a0and V\u00f6lkerrechtsblog.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

On the 8th of April, the Grand Chamber of the European Court of Human Rights (\u2018the Court\u2019) issued its widely-anticipated judgement on Vav\u0159i\u010dka and others v. the Czech Republic\u00a0shedding some light on\u00a0its view on mandatory vaccinations. As public discussions on COVID-19 vaccines\u00a0multiply and some States\u00a0waveringly\u00a0lean towards compulsory vaccinations policies, the Court\u2019s judgement could not have […]<\/p>\n","protected":false},"author":8,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[],"authors":[6022],"article-categories":[5108],"doi":[],"class_list":["post-13334","post","type-post","status-publish","format-standard","hentry","category-uncategorized","authors-katsoni","article-categories-bofaxe"],"acf":{"subline":""},"meta_box":{"doi":"10.17176\/20210421-100920-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/13334","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/8"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=13334"}],"version-history":[{"count":1,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/13334\/revisions"}],"predecessor-version":[{"id":13336,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/13334\/revisions\/13336"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=13334"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=13334"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=13334"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=13334"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=13334"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=13334"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}