Vavřička and Others v. the Czech Republic (8 April 2021) concerned the legal obligation of parents in the Czech Republic to vaccinate their children against ten diseases that are well-known to science. The applicants refused, and complained that the consequences for non-compliance—an imposed fine of up to 400 Euros, and non-admission to preschool—are incompatible with their rights under the European Convention on Human Rights (‘ECHR’). The Grand Chamber of the European Court of Human Rights (‘ECtHR’) found no violation, sixteen votes to one.

The Judgment

The applicants had not been involuntarily vaccinated. Yet, the ECtHR found an interference with the right to respect for the applicants’ private life under Article 8 ECHR because of the legal duty and the consequences for non-compliance. The subject matter also raised the question of the best interests of the child.

The Court however concluded that the interference was justified. The mandatory vaccination was in accordance with the law, and was necessary in a democratic society to fulfil the aims of protecting public health and the rights of others.

When deciding about the prerequisite of necessity in a democratic society, the Court first considered the margin of appreciation (‘MoA’) available to the Czech Republic. ‘The vaccination duty may be regarded as relating to the individual’s effective enjoyment of intimate rights’, the ECtHR stated. However, it underlined that such a consideration has less weight in the present case, since the applicants had neither been forcefully vaccinated, nor did the policy sanction forceful vaccination. It stated that there is no common position among the Member States whether childhood vaccinations should be voluntary or mandatory. Therefore, the ECtHR opted for a wide MoA.

The Court also identified the policy as responding to a pressing social need to safeguard individuals against these diseases and counteract low levels of vaccination among children. The Court highlighted that the national authorities are better placed to evaluate the responses. It also referred to the principle of the best interests of the child, with the aim of protecting them against serious diseases.

The applicants argued that mandatory vaccination was disproportionate because voluntary vaccination could reach the same desired levels of immunisation. The Court disagreed. It highlighted that the legal duty provided for exemptions on medical grounds, and for ‘secular objection of conscience’. In addition, it found that the one-time fine was not ‘unduly harsh or onerous’ and viewed the non-admission as a protective measure. The Court concluded that ‘it cannot be disproportionate to require [those] for whom vaccination represents a remote risk to health to accept this universally practiced protective measure, as a matter of legal duty and in the name of social solidarity, for the sake of the small number of vulnerable children who are unable to benefit from vaccination’. Article 8 ECHR had not been violated.

Analysis

Mandatory childhood vaccination concerns a sensitive issue where the national authorities are in the best position to assess the adequate responses. It is an unconvincing argument that other Member States reach the aim of herd immunity with voluntary means, showing that less intrusive measures exist, and therefore indicating that the interference is disproportionate. The epidemiological situation is different among the Member States, and their ability to achieve protection against these diseases also varies.

Although the MoA is wide, it is not unlimited. The exemption on medical grounds is of importance, and, as highlighted in the judgment, the case at hand concerns only ten well-known diseases. The fact that the children were not forcefully vaccinated also matters, both concerning the width of the MoA, and the proportionality.

There are still questions that remain unanswered. Is compulsory vaccination against less serious diseases, that are not in the childhood vaccination programmes, compatible with human rights? Judge Lemmens also asks, ‘to what extent the children should suffer the consequences of their parents’ refusal to have them vaccinated?’ Amid the current pandemic, would it be possible to oblige adults to undergo vaccination against Covid-19?

The discussion will continue, although we are now in a better position to foresee answers to future legal issues relating to this topic.