Grand Chamber of the European Court of Human Rights upholds compulsory vaccination

 

Mel Cousins, School of Social Work and Social Policy, Trinity College Dublin

 

Introduction

Given the current focus on COVID-19 vaccination both in Ireland and, indeed, across the globe, it is timely that the Grand Chamber of the ECtHR has given a ruling on the status of compulsory vaccination under the ECHR. Of course, this case involves different diseases and it has never been suggested that Ireland would adopt a policy of compulsory vaccination. Nonetheless, the approach of the Court may be instructive in relation to a number of ‘quasi-compulsory’ issues likely to arise such as vaccination passports.

 

The Facts

Vavřička v. Czech Republic (8 April 2021) involved challenges to a requirement that all children should be vaccinated against a range of diseases. Preschool facilities may only accept children who had received the required vaccinations, had been certified as having acquired immunity by other means, or as being unable to undergo vaccination on health grounds. Failure to comply with these requirements is a criminal offence punishable by a fine of up to c.€400.

 

The Ruling

The Grand Chamber considered the case under both Article 8 (right to respect for private and family life) and Article 9 (right to freedom of thought, conscience and religion). The Court readily accepted that compulsory vaccination represented an interference with the right to respect for private life under Article 8. It quickly found that, in the cases before it, this was in accordance with national law and in pursuance of a legitimate aim, i.e. to protect against diseases which may pose a serious risk to health.

The focus of the Court’s assessment was, therefore, on whether this was ‘necessary in a democratic society’. As the Court explained (at para 273).

 

An interference will be considered ‘necessary in a democratic society’ … if it answers a ‘pressing social need’ and, in particular, if the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’ and if it is proportionate to the legitimate aim pursued.

 

The Court noted that there is a general European consensus that vaccination is one of the most successful and cost-effective health interventions and that States should aim to achieve the highest possible level of vaccination. At the same time, it noted a lack of consensus about how to achieve vaccination with a spectrum of policies, ranging from persuasion to a legal duty to vaccinate. The Court also emphasised the importance of social solidarity which aimed ‘to protect the health of all members of society, particularly those who are especially vulnerable with respect to certain diseases and on whose behalf the remainder of the population is asked to assume a minimum risk in the form of vaccination’ (at para 279). The Court recalled that healthcare policy matters come within the margin of appreciation of the national authorities and held that, having regard to the issues outlined, this margin should be a wide one.

As to whether there was a ‘pressing social need’ the Court noted that States are under a positive obligation under the Convention to take appropriate measures to protect the life and health of their people. It was satisfied that the vaccination duty represents the Czech authorities’ response to the pressing social need to protect individual and public health against the diseases involved and to guard against any downward trend in the rate of vaccination. The Court (at para 288) considered that

where the view is taken that a policy of voluntary vaccination is not sufficient to achieve and maintain herd immunity, … , domestic authorities may reasonably introduce a compulsory vaccination policy in order to achieve an appropriate level of protection against serious diseases.

Having considered the evidence, the Court accepted that the choice of the Czech legislature to apply a mandatory approach to vaccination was supported by relevant and sufficient reasons.

Turning to proportionality, the Court noted that while vaccination was mandatory in law there were exemptions and that there was no question of forcible vaccination. It further observed that the Czech courts had developed the possibility of a ‘secular objection of conscience’ and that there were procedural safeguards (e.g. administrative appeals and judicial remedies). It considered that the fines imposed were not excessive and noted that compensation was possible for any injuries to health caused by vaccination.

Finally, while the Court accepted that the exclusion of the children from preschool involved the loss of an important opportunity ‘to develop their personalities and to begin to acquire important social and learning skills in a formative pedagogical environment’, it observed the importance of a high level of vaccination amongst preschool children and that admission to national school was not, in contrast, affected by the law.

The Court, more shortly, dismissed the challenge under Article 9. Noting that none of the applicants had claimed religious objections, it concluded that any critical opinion on vaccination was ‘not such as to constitute a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9’ (Para 335). Accordingly, it did not need to consider whether there was an interference with freedom of conscience or (if so) whether this might be justified. 

Discussion

Thus the Court upheld compulsory vaccination in this context and helpfully set out the issues it will take into account in its assessment. It carried out a detailed assessment of proportionality (on the issues discussed above) although it was arguably inclined to accept a general consensus on the benefits of vaccination without any searching enquiry.

Of course, Ireland is one of the European countries which does not require compulsory vaccination of children and it has never been suggested that it would do so in a COVID-19 context. Nonetheless, issues are likely to arise in the coming months where, it might be argued, vaccination is being made quasi-compulsory. These include, for example, a possible requirement to have a ‘vaccination passport’ in order to travel (or even to attend certain events) or the suggestion that persons in certain employments might be required to be vaccinated. 

The first question (assuming that the rules are set out in law) would be whether the measure pursued a legitimate aim. In Vavřička, the issue was not just the policy of compulsory vaccination but also the fact that this led to denial of access to preschool. Arguably the Court, having accepted the general logic of vaccination, did not subject this specific requirement to a very searching assessment (at paras 305-308). A question may, therefore, arise as to whether it is the overall aim of vaccination which is to be assessed or the specific aim of individual measures, such as vaccination passports.

Second, the Court will look at whether there is a pressing social need and if the reasons advanced by the national authorities to justify it are relevant and sufficient. Finally, the Court will have regard to proportionality in relation to issue such as exemptions, procedural guarantees and the impact of any sanctions. A loss of employment, for example, might be considered to raise serious issues of proportionality (not to mention possible Constitutional issues). 

Mel Cousins is a visiting research fellow at the School of Social Work and Social Policy, Trinity College Dublin.

Suggested citation: Mel Cousins, ‘Grand Chamber of the European Court of Human Rights upholds compulsory vaccination’ COVID-19 Law and Human Rights Observatory’ (29 April 2021) https://tcdlaw.blogspot.com/2021/04/grand-chamber-of-european-court-of.html