Daily Sabah (Turkey)

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

- ŞEYMANUR YÖNT* *Master of Laws student at London School of Economics and Political Science

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.

 ??  ?? A little girl wearing a protective face mask rides an electric scooter as her father walks behind her through Madrid Rio Park amid the coronaviru­s outbreak, Madrid, Spain, May 25, 2020.
A little girl wearing a protective face mask rides an electric scooter as her father walks behind her through Madrid Rio Park amid the coronaviru­s outbreak, Madrid, Spain, May 25, 2020.

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