Analysis of the judgement Wavryčka and others v. Czech Republic

 On 04/08/2021, the European Court of Human Rights passed the judgment on the case of Vavryčka and others against the Czech Republic ([GC] - 47621/13, 3867/14, 73094/14 et al), which, despite the expected interest of the professional public, it also attracted the attention of the general public - quite expected considering that it is a ruling that refers to mandatory vaccination, made at the peak of the pandemic caused by the coronavirus and the culmination of controversies surrounding the safety of vaccines against Covid-19. In addition to the current topic that is of exceptional social importance, the judgment in question is worth analyzing from several aspects - based on a comprehensive and comparative analysis of national legislation, with this judgment the Court carried out a more detailed determination of the margins of respect that belong to the states in cases of compulsory vaccination, which were already established in principle by the case of Boffa and others v. San Marino. In addition, as affected by the outcome of the proceedings initiated before the ECtHR, four states and four associations intervene in the proceedings, that is, as third parties, and in presenting selected decisions from the constitutional jurisprudence of other states, the Court also refers to a decision made by the Constitutional Court of the Republic of North Macedonia. Judge Wojticek's opinion deserves due attention, especially from the possibility of the Court proprio motu conducting an additional investigation through which relevant evidence exists, but has not been submitted by the parties to the proceedings, will be obtained.

Facts about the case

 

The applicants to the European Court of Human Rights are Mr. Pavel Vavryčka - a parent who was fined for not vaccinating his school-aged children and five parents on behalf of their children who were not allowed to enroll in kindergarten because they were not vaccinated.
The applicants asked the Court to establish that with the consequences imposed on them due to non-compliance with mandatory vaccination, the state violated Article 8 (right to respect for private and family life), Article 9 (freedom of thought, conscience and religion), Article 2 ( right to life), Article 6 (right to a fair trial), Article 13 (right to an effective remedy) and Article 14 (prohibition of discrimination) of the ECHR, as well as Article 2 of Protocol 1 to the ECHR (right to education).

 

Overview of the decision of the European Court of Human Rights

The court decided to consider the submitted appeals exclusively from the perspective of a potential violation of Article 8 of the Convention (right to respect for private and family life).
Referring to the already established jurisprudence, the Court established that mandatory vaccination undoubtedly represents interference by the state in the exercise of the right to private and family life, guaranteed by Article 8 of the Convention. Namely, as determined by the judgment X and Y against the Netherlands from 26.03.1985, a person’s bodily integrity is an integral part of the concept of "private life" protected by Article 8 of the Convention. Also, according to the judgments Salvetti v. Italy and Mater v. Slovakia, mandatory vaccination as forced medical treatment, constitutes an interference with the right to respect for private life, which includes the physical and psychological integrity of a person, protected by Article 8 paragraph 1 of the Convention. In the case of Vavryčka and others v. the Czech Republic, the Court states that, even though the applicants were not subjected to compulsory vaccination, the imposition of an obligation to vaccinate and the immediate consequences imposed on the applicants for non-compliance with this obligation constituted interference of the state in the right to respect for private and family life from Article 8 of the Convention.
In accordance with the established case law, the Court determined that by introducing mandatory vaccination the state interfered in the respect of the right to private and family life, the Court proceeded to determine the justification of the interference from the point of view of Article 8 paragraph 2 of the Convention. In this regard, the Court determined that the mandatory vaccination measure is based on law, that is, it is contained in an available and predictable provision (the Law for the Protection of Public Health). Furthermore, there is a legitimate purpose for making vaccination a mandatory measure – protecting the health of citizens from a disease that poses a serious risk, both for those who will be vaccinated and for those who cannot be vaccinated for health reasons. The Court's key task, which relates to assessing the justification of state interference with a right guaranteed by the Convention, which has already been established to be based on law and for the introduction of which there is a legitimate purpose, is to determine whether the interference is necessary for a democratic society. Previous jurisprudence has established several criteria that should be used when assessing the necessity of compulsory vaccination – in the case of Solomakhin v. Ukraine, in which the applicant was vaccinated against diphtheria against his will during a pandemic, the Court evaluated whether the interference of the state in the practice of a right guaranteed by the Convention is to control the spread of an infectious disease based on justified concern for public health, as well as whether in the specific case, the necessary precautions were taken when vaccinating the specific person. In addition, in conditions of incomplete compliance between the national legislations of the member states regarding the necessity of introducing the measure of compulsory vaccination of children, one of the criteria for evaluating the justification of the intervention is the scope of the margins of respect, which according to Greer, together with proportionality and non-discrimination are secondary principles of the Convention, which follow on from the three primary principles - "democracy", "rights" and "priority of rights". The margins of deference belonging to States in cases of compulsory vaccination, established in principle in the case of Boffa and others v. San Marino, have been further extended by the judgment in the case of Vavryčka and others v. Czech Republic. Namely, according to the views of the Court, in the absence of a consensus between the states regarding mandatory vaccination of children, the necessity of social solidarity in terms of protecting the health of all members of society and the consensus that exists between the contracting parties and the relevant international bodies regarding the effectiveness and cost-effectiveness of vaccines as interventions for the protection of public health, point to the necessity for states to have wider margins of respect in the subject area. In doing so, the Court determines that the defendant state approached the introduction of mandatory vaccination of children, due to the existence of an acute social need - protection of personal and public health that could be threatened by low vaccination rates. For these reasons, the Court considers that the legislation of the respondent state, which provides for mandatory vaccination of children, is also in compliance with the principle of the best interest of children. Finally, after determining the margins of respect and the existence of an acute social need, the Court proceeded to evaluate the proportionality of the interference by the state in the enjoyment of the right guaranteed by Article 8 of the Convention. Stating that the national legislation of the respondent state provides an obligation to receive vaccines against diseases for which there is a consensus in the scientific community that they are effective and safe, and also provides for exemptions from vaccination based on possible contraindications, compensation for damage in case of health consequences caused by vaccines and does not contain provisions according to which vaccination can be enforced, the Court finds that the measures are proportionate to the legitimate aim and necessary in a democratic society. Contrary to the position of the Court in the case of Boffa and others v. San Marino, according to which the applicants have to prove that the vaccine may harm their health, in the judgment that is the subject of this analysis, the Court determines that the state must monitor the safety of vaccines and to assess possible contraindications for each case.
Based on the above, the Court decided that by introducing mandatory vaccination and prescribing consequences for those who are not vaccinated, the defendant state did not violate Article 8 of the Convention.
Regarding Article 9 of the ECHR, the Court recalled that not all opinions or beliefs constitute а reassurance protected by this provision. Namely, noting the lack of consistency of the philosophical and religious aspects of the applicants' objections in the proceedings before the domestic institutions.The Court found that the applicants failed to prove that their critical opinion on vaccination was sufficiently convincing, serious, coherent, and significant to constitute a protected belief according to Article 9 of the ECHR. For these reasons, the Court determined that the appeals in the part that refers to the violation of Article 9 of the ECHR are inadmissible.

 

Review of Constitutional Jurisprudence of Other States

In the review of the constitutional jurisprudence of several countries, the Court refers to the Decision of the Constitutional Court of the Republic of North Macedonia U. No. 30/2014, according to which no procedure is initiated to assess the constitutionality of Article 33 paragraph 2 and Article 67 paragraph 6 of the Law on the Protection of the Population from Infectious Diseases, Article 46 paragraph 2 of the Law on Primary Education. In the cited excerpts from the explanation of the decision in question, the Constitutional Court has stated, among other things:
"Mandatory vaccination, which is foreseen by the contested Article 33 paragraph 2 of the Law, cannot at any moment be called into question in relation to the provisions of the Constitution, especially Article 39 paragraph 2 and Article 40 paragraph 3 of the Constitution, where it is stipulated that the citizen has the right and duty to protect and promote his health and the health of others, as well as that parents have the right and duty to take care of the support and upbringing of the children.
According to the Court, the obligation for compulsory vaccination is a permissible restriction of the fundamental rights of the person concerned, given that it is a necessary measure in a democratic state to protect public security, health, rights, and freedoms of other persons. Compulsory vaccination is essentially a restriction of the right for individuals to decide on actions related to their person and body, the right to protection of physical integrity (Article 11 of the Constitution), and the right to voluntary medical treatment, but in our opinion, such a restriction is proportionate, and therefore in accordance with the Constitution.
When building the legal opinion, the Court also took into account the fact that the benefit of mandatory vaccination for the health of individuals and members of the wider community exceeds the consequences of the interference (restriction) of the constitutional rights of individuals, but according to the Court, mandatory vaccination, determined by the Law, not an excessive measure.”

 

Separate opinion of Judge Wojticek

Through a separate opinion, Judge Wojticek refers to several aspects, which, according to him, were not given adequate attention by the Court when considering the appeal allegations and passing the verdict. He recalls the possibility of the Court proprio motu conducting an additional investigation through which evidence that was not submitted by the parties to the proceedings, which undoubtedly exists and is relevant for determining the material truth, will be obtained. As Judge Wojticek emphasizes, the ECtHR's existing practice is very unclear and ambiguous regarding the role of the Court and the purpose of the procedure (the determination of formal or material truth). Moreover, if the Court adheres to the principle of establishing the formal truth and decides solely based on the evidence submitted by the parties in the procedure, the outcome of the procedure could (and should not) depend on the quality of the submissions. Since, in the specific case, the Court was deciding on issues of importance for all states that have ratified the Convention, and the submissions of the parties to the proceedings did not contain sufficient evidence relating to the efficacy and safety of vaccines, the Court should have used the opportunity proprio motu to conduct additional investigation and obtain the existing evidence, which was not submitted to the Court. As Judge Wojticek explains, no national document containing a precise assessment of the effectiveness of the various vaccines and the associated risks was presented to the Court, as if such an assessment had never been made in the respondent state or had never been the subject of public debate. In addition, he states that the applicants did not have access to documents relating to the efficacy and safety of the vaccines. In this way, in addition to the necessity for the Court to obtain relevant evidence that is available to it and that could have an impact on making the decision, Judge Vojticek addresses the expert and the general public an extremely important question - do citizens have the right to unrestricted access to documents relating to the effectiveness of vaccines and the existing risks to their health, or vice versa which values are more important from the life and health of the citizens to prevail when deciding whether these documents will be available to the public. Furthermore, as Judge Wojticek states, the persons affected by the vaccination obligation have the right to be informed not only of the detailed risk for each disease but also of how that risk was calculated and assessed by those who decided to introduce the vaccination obligation. Namely, the complainants cited numerous shortcomings in the decision-making process at the domestic level, citing, among other things, the conflict of interests of the persons involved in the decision-making process and the unavailability of documents related to the effectiveness and safety of vaccines. According to Judge Vojticek, the procedure for evaluating the safety and efficacy of vaccines is not enough to be fair, but at the same time it should convince the citizens of its fairness, otherwise the mistrust of the citizens vis-à-vis democratic institutions is strengthened. Within the separate opinion, Judge Wojticek also shares his opinion that the appeals contain sufficient prima facie arguments to be considered as admissible the appeal allegations that refer to a potential violation of Article 9 of the ECtHR, as well as his personal opinion that in the absence of consensus around the necessity of mandatory vaccination, states should have narrower margins of respect, and the degree of justification of the restriction of the right to choose citizens should be extremely high. In the conclusion of the separate opinion, Judge Wojticek states that, in his opinion, there are strong arguments that support the Court's conclusion that no violation of the provisions of the ECtHR was committed in the specific case, arguments that would prevail even if stricter standards of the review were applied. At the same time, as he states, without a doubt, vaccines save numerous human lives and prevent significant damage to people's health, but there are procedural flaws that have an impact on the judgment passed, that is, precise factual elements are missing in the materials submitted to the Court by the defendant state, which would justify the interference of the state in the exercise of the rights of the applicants guaranteed by the Convention.
The judgment in the case of Vavrička and others against the Czech Republic undoubtedly represents a "landmark" judgment, which will have an impact on the future practice of the ECtHR. Based on it, we can conclude that the position of the Court, regarding the introduction of potential measures of mandatory vaccination in pandemic conditions, will probably be in the direction of determining the compliance of the measure with the provisions of the ECtHR if all the precautionary measures and compensation for damages in case of consequences for the health of citizens caused by vaccines. Undoubtedly, in addition to taking care of one's health, every citizen must take care of the protection of public health, which is the basis and justification of the state's interference in the exercise of the right to the private life of citizens protected by Article 8 of the ECtHR. However, it seems that some of the arguments in the presented separate opinion relating to transparency, i.e. ensuring the availability of all documents related to the effectiveness and safety of vaccines, are worth considering, from the aspect of using the possibility of the Court proprio motu obtaining evidence that is relevant in determining the material truth, as well as in terms of increasing the trust of citizens in the institutions.