By Katarzyna Ważyńska-Finck, PhD researcher at the European University Institute and
a former assistant lawyer at the European Court of Human Rights.
Compared to our ancestors, we are lucky to have at our disposal safe and effective vaccines against illnesses such as polio, measles or hepatitis B. To ensure that the number of immunized people is high enough to prevent diseases from spreading, some governments make vaccinations compulsory. This is especially the case for childhood vaccination schemes. However, some parents who oppose to having their children vaccinated against these illnesses are ready for lengthy legal battles to challenge the mandatory vaccinations as violating their human rights. In a recent judgment the European Court of Human Rights refuted the applicants’ claim that the Czech compulsory vaccination programme violated their Convention rights.
The case, which dates back to 2013-2015, has gained new weight and prominence in the light of the COVID-19 pandemic. Even though vaccinations against COVID-19 are not mandatory in Europe, the possibility to reserve access to certain venues and activities only to those already vaccinated or the extension of vaccination programmes to adolescents are being considered. First voices have also been raised pointing to the necessity of making these vaccinations compulsory. The First Section of the Court was aware of the importance of the case even before the COVID-19 outbreak and relinquished its jurisdiction in favour of the Grand Chamber. The Strasbourg Court critically engaged with some of the usual anti-vax arguments and relied on states’ positive obligations under international law to protect life and health, and on the scientific consensus as to the efficacy and safety of vaccines in the necessity and proportionality assessment. Child’s best interests also played an important role in the analysis, but the Court failed to duly consider the interference with the children’s right to education and the reasoning is confused, or even sloppy, in that it does not clearly define and distinguish the separate and even conflicting interests, rights and responsibilities of parents and children.
In the Czech Republic, at the material time, immunisation against nine diseases was mandatory for all residents. For children under the age of fifteen, their statutory representatives are responsible for compliance with this duty. Those who fail to comply with the vaccination duty may be subject to fines. In addition, only fully vaccinated children may be admitted to both public and private pre-school facilities. The case originates from six applications which were joined. The first applicant, Mr Vavřička was fined for having refused to have his two adolescent children vaccinated against three diseases included in the compulsory vaccination programme. The other five applicants are children, whose parents, to various degrees, had failed to comply with the vaccination scheme. As a result, the children were denied admission to pre-school nurseries. The reasons invoked by parents varied, but mostly related to the perceived harmfulness of vaccines and rather unspecified beliefs and convictions.
The applicants challenged the sanctions imposed on them before the Czech courts. In particular, Mr Vavřička complained that the enforcement of compulsory vaccinations by means of fines was contrary to his right to manifest his religion or belief. His case reached the Czech Constitutional Court, which held that in exceptional circumstances respect for individual autonomy may require that the sanctions will not be applied. In another case the Constitutional Court explicitly recognised the right to ‘secular objection of conscience’ to vaccinations. Nevertheless, this exception has been interpreted very restrictively and was not granted to any of the applicants.
Before the Strasbourg Court the applicants complained that the sanctions imposed on them for the failure to comply with the compulsory vaccination scheme amounted to the violation of their right to personal autonomy, protected under Article 8 of the Convention, in making decisions concerning their health or, for Mr Vavřička, the health of his children. The applicants further relied on the right of parents to care for their children in accordance with their opinions, convictions and conscience. In this context, they invoked the best interests of a child, but insisted it should be primarily assessed by parents, while state intervention was allowed ‘as a last resort in the most extreme circumstances’. The child applicants also invoked their right to personal development, which was affected by their exclusion from pre-school facilities and the impact it had on their family life. In particular, depriving the child applicants of the possibility to attend preschool had put them in a disadvantaged position with regard to their subsequent education. The applicants asserted that the exemption from the vaccination duty, established in the jurisprudence of the Czech Constitutional Court, was hardly ever granted in relation to admission to nursery school. According to the applicants, the public health objectives could be achieved by less intrusive means than the general exclusion of unvaccinated children from pre-school attendance. To support their claims, the applicants argued inter alia that the procedure to develop the vaccination scheme lacked transparency and public involvement, that some of the experts had conflicts of interests, that medical societies which supported vaccinations were broadly sponsored by pharmaceutical companies. They questioned the impact of vaccination on reducing mortality, the susceptibility of infants to infections and the effectiveness of some of the prescribed vaccines. The applicants also highlighted that some of the illnesses targeted by the compulsory vaccinations were not transmissible. They further argued that ‘general weakening of the vaccinated persons’ immunity’ as a possible side effect should be considered in the assessment of the necessity of vaccination. The applicants concluded that voluntary vaccination schemes, based on positive motivation, were both more efficient and proportionate.
Three of the applicants also lodged complaints under Article 9. Mr Vavřička submitted that he believed that vaccination caused health damage and for this reason his conscience did not allow him to have his children vaccinated. Two child applicants invoked the ‘right to parental care in conformity with parental conscience’. The child applicants also contended that the refusal of preschool admission violated Article 2 of Protocol 1, which safeguards the right to education.
The Court decided to concentrate its analysis on the complaints under Article 8 and concluded that the applicants’ right to private life had not been violated. As in most cases under Article 8, the decision hinged on the necessity and proportionality assessment. To start with, the Court acknowledged that State Parties enjoyed a wide margin of appreciation in matters relating to public health policy, strengthened by the lack of European consensus as to the appropriateness of a compulsory model of vaccination programme. At the same time, it relied on the scientific consensus and the common position of the European governments as to the necessity, efficacity and safety of vaccinations. The Czech Republic is not the only European State to opt for a compulsory model: some legislators opted for the compulsory model to counter the decrease in vaccination coverage below the threshold necessary for herd immunity.
The Court considered that the compulsory vaccination scheme was set up in response to a pressing social need as the Czech authorities were bound by their positive obligations under the right to health to ensure adequate immunization coverage. According to the experts who provided advice to the authorities, this aim could only be achieved if vaccination was a duty, and not a mere recommendation. Therefore, if voluntary vaccination programmes do not suffice to achieve herd immunity, mandatory schemes may become necessary to protect the best interests of children, both individually and as a group. The interference with the applicants’ right was also considered proportionate on the basis of numerous elements. Namely, there is scientific consensus as to the safety and efficacity of the vaccines in question; the legislation foresees exemptions in cases of medical contra-indications or conscientious objection; vaccines are never forcibly administered as the duty is only enforced indirectly, through sanctions; fines are not too high and may only be imposed once; administrative and judicial remedies are available to challenge sanctions. The Court also pointed to national measures aimed at ensuring the safety of vaccination process, increasing the transparency and avoiding the possible conflicts of interests on the part of experts and officials involved in the development of vaccination policy. With regard to the refusals of preschool admission, the Court acknowledged the loss of educational and developmental opportunities for child applicants. Nevertheless, these refusals resulted from the failure by the applicants’ parents to comply with the legal duty to ensure that their children receive all the vaccinations prescribed by law. This duty was introduced to protect other children who, for medical reasons, could not benefit from vaccinations. The exclusion was also temporary, as all the children could be enrolled in primary school.
The Court considered it was not necessary to separately analyse the complaint of the five child applicants under Article 2 of Protocol 1. It moreover rejected the complaints under Article 9 as incompatible ratione materiae with the Convention. The Court considered that the applicant’s opposition to vaccination was not inspired by religious beliefs and could only be seen as potentially falling within the scope of right to freedom of conscience and thought. However, Mr Vavřička had failed to specify and substantiate his complaint under Article 9 and his ‘opinion on vaccination is not such as to constitute a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9’. According to the Court, this conclusion applied a fortiori to the two other applicants, who had failed to raise the relevant arguments before domestic courts.
The judgment was adopted by a clear majority of sixteen votes to one. Judge Lemmens voted with the majority on the non-violation of Article 8 but disagreed with the refusal to examine separately the complaint under Article 2 of Protocol 1. Judge Wojtyczek was the only one to agree with the applicants’ arguments and submitted a lengthy dissenting opinion which could probably be discussed in a separate post. His main arguments were that the Court had accepted a very low threshold to justify the serious interference with ‘the freedom to dispose of one’s body’, incorrectly afforded a wide margin of appreciation and failed to demonstrate that the benefits of compulsory vaccination outweigh ‘the individual and social costs and justify taking the risk of suffering the side-effects’.
This is a very rich and important case, and it is not possible to address all the issues here. In this commentary I will focus on the aspects relating to children’s rights and in particular on the conflation of children’s and parents’ interests and rights which can be discerned in Court’s reasoning. Whereas the Strasbourg judges should be praised for taking a clear position in favour of health policy measures based on scientific evidence, their approach to the rights of child applicants is to some extent problematic. It is important to bear in mind that states have not only negative obligations to refrain from interference with private and family life, but also positive obligations to ensure that children’s wellbeing and rights are not compromised by the actions of third parties, which may include children’s own parents and carers (e.g. Z and others v. the United Kingdom). Child’s best interests do not coincide with those of the parents (X v. Latvia) and Article 8 cannot be invoked by the latter to justify actions which would harm the child’s health and development (e.g. Johansen v. Norway). The Court has relied for many years on the United Nations Convention on the Rights of the Child and in particular on the best interests principle to justify state interference with parents’ right to respect for family life (e.g. Sahin v. Germany). In the present case, the Grand Chamber also invoked the best interests of the child and linked them with the right to health and development. Nevertheless, the Court failed to incorporate these elements in its analysis of the interference with the child’s right to bodily integrity and focused solely on the absence of parental consent. This approach, combined with the refusal to assess the impact of the contested measures on the child applicants’ right to education (or on the right to engage in relation with others, also protected under Article 8) prevented the Court from addressing the case fully from a child-centred perspective.
Apart from Mr Vavřička, the applicants were young children when their applications were lodged and were all aged below 5 when the decision regarding their vaccinations and pre-school admission were taken. Due to their young age, they had little or no understanding of the matters in question and had no capacity to make any decisions. At the same time, they bore the consequences of their parents’ views, decisions and actions. The child applicants were most likely represented in the proceedings before both the Czech courts and the Strasbourg Court by their parents, who submitted their views and arguments on behalf of their children. This raises the question of child representation and the possible conflict of interests, which was touched upon by the Czech government in its observations, but not addressed in any manner by the judges.
The Court centred its scrutiny on the respect for the applicants’ right to bodily integrity as a key aspect of private life. However, this scrutiny lacks rigour and clarity. Firstly, the Court did not question the child applicants’ ‘right to make autonomous choices regarding their health’, invoked ‘their attitude towards the vaccination duty’ and referred to the fact that no vaccination was administered ‘against their will’. Clearly, the choices, attitudes, duties and will the Court referred to were parental choices, parental attitudes, parental duties and parental will. They cannot be automatically extended to their children, who were toddlers at the material time. Secondly, it is also far from evident that the children’s right to bodily integrity had been interfered with. The Court did not properly examine how the right to bodily integrity should be construed in relation to small children, incapable of autonomous decision-making, and tied the question of interference with the lack of parental consent. This approach, although not clearly explained, may be derived from Article 6 of the Oviedo Convention, quoted in the judgment. This provision requires parental consent for medical interventions on minors and such consent may be understood as having the same purpose and value as the consent of an adult, which is necessary for the intervention not to amount to the unlawful breach of bodily integrity. This case shows the limits of this approach which makes the child’s fundamental right entirely dependent on the will or decision of parents. In light of the best interests principle and the rights to health, survival and development enshrined in the UN Convention on the Rights of the Child, the child’s access to effective protection against preventable illnesses should also be considered as important aspects of bodily integrity. Children do not have the right not receive treatment which is clearly beneficial to them only because their parents oppose it. In addition, the Court applied the same reasoning, centred around the right to bodily integrity, to the complaint of Mr Vavřička, which should have been analysed separately as an interference with his parental authority and his right to respect for family life. His right to bodily integrity applies to his own body, not to the bodies of his adolescent children.
Another confusion in the Court’s reasoning relates to the conflation of the arguments based on the individual right to health and on public health considerations. Limits to parental autonomy to refuse vaccinations may be based on both, but the argumentation should be built differently. As pointed out by the applicants, some illnesses, like tetanus, are not transmissible. The purpose of some vaccinations is the protection of the individual’s life and health, and not herd immunity. For these reasons, the right to life, development and health of each child, irrespective of parental views and wishes, should be spelled out more clearly, as was done in the case law of several national jurisdictions that was quoted in the judgment.
The Court attached significant weight to the best interest of the child and the protection of young children’s health, but it is not always clear which children the judges had in mind: the child applicants, the children as a social group or the vulnerable children who cannot benefit from vaccinations and rely on herd immunity. The reasons and arguments adduced to conclude as to the proportionality of national measures suggest that the judges focused primarily on the protection of health and interests of children in general and of vulnerable children. The best interests of the child applicants were not sufficiently taken into consideration. The Court seems to tacitly accept that the children bear the consequences of their parents’ decision not to comply with the vaccination duty, even if these consequences lead to interfere with their right to education and their right to health. Whereas some arguments, like the fact that the admission to primary school was not affected, concern the child applicants, other elements of the Court’s reasoning rather demonstrate that the degree of interference with parental rights and autonomy was limited. In particular, low fines and the fact that none of the child applicants (nor Mr Vavřička’s children) had been vaccinated were invoked as weighing in favour of the proportionality of the national measures. However, the application of these measures cannot be said to be in the best interest of the child applicants, as it resulted in an interference with their rights. None of them was vaccinated and none of them could attend preschool.
Invoking the moderate amount of fines as an argument in favour of proportionality is also problematic if we consider that fines in principle have less impact on children than exclusion from preschool. Clearly, denying access to preschool facilities places a higher burden on parents than imposing a fine, and as such it is probably more efficient as a policy measure. Nevertheless, such measures are based on the perception of preschool education as a service made available to parents, rather than one addressed to children for the realisation of their interests and needs. Such attitude to preschool may partly explain doubts as to the applicability of Article 2 of Protocol 1 to this stage of education, raised by German and Slovak governments. However, the recognition of the importance of preschool attendance for child development and future education spurred some countries, like France or Belgium, to make it compulsory. For these reason, the complaint of the child applicants deserved a thorough analysis under Article 2 of Protocol 1, as pointed out by Judge Lemmens in his partly dissenting opinion.
At the same time, the Court was in a difficult situation. The parents were cunning by relying on their young children (and arguments pertaining to their interests and rights in the area of education) to advance their agenda, rather than to subject their own right to respect for family life, clearly limited by child’s best interests and rights, to the scrutiny of the Court. It might have been more difficult, although not impossible, to conclude no violation in the analysis under Article 2 of Protocol 1. The assessment centred on Article 8 allowed the Court to partially counter this strategy and to indirectly set limits to the exercise of parental rights in the context of child vaccination, but at the expense of the lack of precision and coherence of some of the arguments.
The Court emphasized that this case ‘relates to the standard and routine vaccination of children against diseases that are well known to medical science’. The aim of this statement was probably to guard against the extrapolation of its conclusions to other situations, such as vaccination against COVID-19 and the compatibility with the Convention of the possible future limitations imposed on those who refuse it. Of course, it is neither possible, nor judicious to guess how the Court could approach a complaint concerning such limitations. Nevertheless, two elements of the reasoning in the present case seem important. The Court relied on scientific consensus and gave its support for science-based policy measures aimed at the protection of life and health, which were given precedence over individual wishes and preference. At the same time, the judgment left open the question of the right to conscientious objection to vaccinations, based on deeply and genuinely held religious or other beliefs. The Court underlined that Article 9 does not guarantee the right to always behave in the public sphere as dictated by personal beliefs, nor the right to be exempted from generally applicable laws. At the same time, the argumentation in the present case emphasised the superficial and incoherent character of the applicant’s views and the fact that they were not based on religious beliefs. Certain Catholics reject some of the vaccines against COVID-19, because they were developed with the use of foetal cell lines. Would invoking the Catholic doctrine on the sanctity of human life be sufficient for the Court to conclude that the guarantees of Article 9 are applicable?