What’s ECHtR’s mandatory COVID-19 vaccination ruling?
The European Court of Human Rights judgment on mandatory childhood vaccination has introduced a new and solid perspective to discussions about COVID-19 policies
Mandatory vaccination has become a hot topic with the discovery of the COVID-19 vaccines and increasing COVID-19 vaccination efforts around the world. Related to the mandatory vaccination discussions, on April 8, 2021, the European Court of Human Rights (ECtHR) delivered its Grand Chamber judgment on mandatory childhood vaccination in the “Vavricka and others vs. the Czech Republic case (Application nos. 47621/13 and others).”
Even though the application to the ECtHR was made before the coronavirus pandemic, the judgment serves as a guideline for countries for designing their mandatory vaccination policies covering all or a part of the population.
The case dealt with the mandatory childhood vaccination rules and related enforcement measures regarding certain diseases in the Czech Republic. Applicants applied to the court after their children were prevented from attending nursery school for noncompliance with the mandatory childhood vaccination rule or were fined.
The ECtHR assessed the application under Article 8 (the right to respect for private and family life) of the European Convention on Human Rights+ and found no violation of Article 8.
IS THE RULING BINDING?
The judgment of the court is important since it establishes the criteria for human rights compliant mandatory vaccination rules.
Even though in principle, the judgments of the ECtHR are only binding on the states that are concerned (i.e. the Czech Republic), and judgments’ binding effect on or precedence for other parties to the convention is disputable, parties to the convention as well as all the countries around the world should, while introducing mandatory vaccination rules, consider these criteria set forth by the ECtHR to refrain from making human rights violations.
In this case, the ECtHR, first of all, assessed the lawfulness of the interference and ruled that interference with physical integrity should have a basis in domestic law. Therefore, countries, while introducing mandatory COVID-19 vaccination rules, should make sure that the mandatory vaccination rules, as well as enforcement measures and exemptions, are established by domestic law.
Secondly, the ECtHR sought the legitimate aims of preventing the interference with one’s right to respect for private life and considered protecting the health of the individuals that will receive a vaccine as well as the rights of others by establishing herd immunity.
Worth noting, the ECtHR also ruled on one of its earlier cases that the necessity to control the spread of infectious diseases in a region is a legitimate aim for interfering with one’s physical integrity (Solomakhin vs. Ukraine, application no 24429/03).
In line with this, considering the coronavirus spread and death rates, as well as its indirect effects, like those on the economy, countries may easily legitimize their aim for mandatory vaccination.
The ECtHR thirdly assessed whether the interference was necessary for a democratic society.
In its assessment, the ECtHR ruled that considering the policy aim of protecting the health of all members of the society, decrease in voluntary vaccination and therefore difficulties in establishing herd immunity, the rule adopted by the Czech Republic was necessary for a democratic society.
The ECtHR further added that states do have a wide margin of appreciation for introducing health care policies such as mandatory vaccination policies.
Accordingly, states, even though they have a wide margin of appreciation, before introducing the mandatory vaccination policies and setting out these policies’ scope, should consider the effectiveness of the total or partial compulsory vaccination rules, the ratio of voluntary vaccination and the likelihood of establishing herd immunity without introducing compulsory vaccination rules.
SOCIAL NECESSITY
The ECtHR further considered the existence of pressing social needs as a criterion for human rights compliant mandatory childhood vaccination policy. The court, by mentioning that mandatory childhood vaccination in this specific case was in the best interest of children, ruled that there was a pressing social need for mandatory childhood vaccination since the vaccination ratio was decreasing, and it was needed to protect individual and public health against the diseases.
The ECtHR lastly discussed the proportionality of the interference in relation to the aim pursued. The ECtHR said that since nonadmission to the nursery school was not punitive, but was rather preventative; the mandatory vaccination rule was not forcibly administered; there were exemptions to these rules; the fine was not excessive; children were able to resume their school education after reaching the age of compulsory school attendance; and there were administrative and judicial remedies available for challenging mandatory vaccination rules as well as consequences of noncompliance, the sanction of the state was proportionate.
In line with this, first of all, it can be said that COVID-19 creates a pressing social need for vaccination policies.
Secondly, countries, if and when introducing mandatory vaccination rules, must design enforcement measures that are not punitive, for example, they do not hinder a child’s right to education.
Moreover, countries should introduce exemptions, such as health-related exemptions, and ensure mechanisms that are available for challenging the rules and enforcement mechanisms. It is important and obligatory for countries to take necessary measures to protect public health. Within this scope, mandatory vaccination policies will continue to be a highly debated topic, especially for the fight against COVID-19 and considering the fact that vaccination rates for other diseases are decreasing during the pandemic.
Countries, while introducing public health policies and enforcing mandatory vaccination, should comply with their human rights obligations. In this regard, the ECtHR judgment on compulsory childhood vaccination sets an important precedent, and the criteria set forth by the ECtHR should be taken into account for designing public health policies.