European Court of Human Rights Infringes Childrens’ Human Rights on Compulsory Vaccination

For a Court of Human Rights to infringe the human rights of children when making vaccination for children compulsory is without doubt embarrassing for the Court, but there is much more to be embarrassed about in relation to the Court’s 2021 final decision in the case of Vavricka and Others v. the Czech Republic.

The European Court of Human Rights [ECtHR] is often criticised for its decisions by those with political motives who disagree with the Court or with the idea that humans should have rights. There is no shortage of critics with partisan motives.

The Defendants in cases before the ECtHR are exclusively the governments of signatory States in one form or another. Thus behind them are the elected political representatives who hold power as the governing parties and who may have political motives to criticise the ECtHR.

But this time there is a most significant difference.  The critic is not a politically partisan external commentator.

This time, of the 16 ECtHR judges who made the decision, the seventeenth is the critic.

Judge Krzysztof Wojtyczek of Poland is no newcomer to law. That is also apparent from the terms in which Judge Wojtyczek’s decision dismantles the evidence and legal and judicial reasoning of his 16 colleagues and raises manifold serious deficiencies in it.

This article contains an analysis citing extracts from Judge Wojtyczek’s decision.

It is almost as if the majority took the opportunity to make a political decision to gain favour with the governments of the signatory states to the European Convention on Human Rights [ECHR] thinking compulsory vaccination would be an easy target with minimal harm caused to them and to the Court.

The ECtHR appears to have violated basic human rights of the child applicants in the case, including dispensing with the legal rules of procedural fairness in their effort to make this remarkably defective decision which is of such importance to children and their families worldwide.

There are aspects of the decision in Vavřička and Others v. the Czech Republic which are widely overlooked.

The criticisms of the dissenting judgement from Judge Wojtyczek are well made. It is a careful considered assessment of the issues from an experienced judge, lawyer and jurist, which identifies manifold deficiencies in the majority decision striking at the heart of human rights laws.

One is forced to ask how is it possible that only one judge of 17 judges was so insightful and so capable of identifying these manifold fundamental deficiencies in the decision when his 16 colleagues appeared oblivious to what they were doing in coming to such a judgement.

It is as if only one judge of the ECtHR was capable of identifying and analysing the issues and acting judicially when his colleagues failed to.

The decision brings the credibility of the ECtHR into question and whether it has become an unsuitable forum for deciding such matters. In the USA, the founding fathers incorporated an ultimate protection into the Constitution – that of the right to bear arms against the tyranny of governments. The ECHR has no equivalent so it is even more important that the ECtHR is respected and is widely accepted to have credibility. 

This decision does not support that.

The majority’s judgement is of poor quality and particularly for a judgement which was referred directly to the ECtHR Grand Chamber to forestall any appeal – a manoeuvre which also seems intended to deprive the child litigants and their parents of fundamental human rights in the event of a defective decision [which this decision according to Judge Wojtyczek’s judgment is].

It has the appearance of a political decision masquerading as a judicial one.

A report from the European Centre for Law & Justice (ECLJ) in Strasbourg reveals some disturbing conflicts of interest amongst some of the ECtHR judges including cases heard by judges with links via a political NGO to one or more parties. Available in English, French and Spanish the report is titled “ONG et les juges de la CEDH, 2009-2019” [“NGOs and the Judges of the ECHR, 2009 – 2019“]. ECLJ is an international organization dedicated to the promotion and protection of human rights and religious freedom throughout the world. ECLJ has held special Consultative Status before the Economic and Social Council of the United Nations since 2007. The report in question was prepared by Mr. Grégor Puppinck, PhD, Director of the ECLJ, who also takes part in the Committee of Experts on the Reform of the ECtHR, along with Delphine Loiseau, Associate Research fellow at ECLJ.

JUDGE WOJTYCZEK’S CRITICISMS OF THE COURT’S DECISION

Bold and underlining for emphasis has been added to highlight significant aspects.

FACTUAL BASIS FOR THE DECISION

For such an important case with implications for all children in Europe, the submissions of all parties were and remain lacking in sophistication. This is particularly the case regarding the medical and scientific issues.

Similarly, also for such an important case, the evidence in support was scant to non-existent.

Judge Wojtyczek noted:

[the Court] should seek to establish the material truth. The existing case law does not shed much light on the precise meaning of Article 38 with regard to the role of the Court. In many cases, the Court’s reasoning states that the Court can rely upon evidence introduced proprio motu and suggests that its role is to establish the material truth …… Under such an approach the outcome of the case should not depend upon the quality of the pleadings.

……. The comprehensive system of presumptions developed in the Court’s case-law suggests that the Court relies upon formal truth and the activity of the parties alone. Similarly, the fact that the Court usually accepts as established those factual allegations that are made by one party and not rebutted by the other party also points to this conclusion

………. The existing case-law and judicial practice are highly unclear and ambiguous with regard to the role of the Court and the purpose of the proceedings (establishing the material or formal truth). While the answer to this question may admittedly in some instances have no bearing on the manner in which the parties plead or on the outcome of the case, in many other cases it may be fundamental for the parties’ pleading strategies and determinative for the outcome. There is therefore an urgent need to clarify this issue in order to ensure procedural fairness.

……… In the instant case, the evidence which, in my view, would be necessary to show that the interference complained of was compatible with the Convention does exist, but has neither been submitted by the parties nor gathered proprio motu by the Court. However, I cannot rely upon my own knowledge of the matter and scientific data gathered by my own means in order to supplement the shortcomings in the material gathered by the Court

……… Since the instant case concerns a general issue that is important for all 47 High Contracting Parties, its resolution should not depend upon the quality of the parties’ pleadings. In a case such as this one, there are strong reasons to rely upon the principle of material truth and the Court’s entitlement to act proprio motu and, in particular, to appoint independent experts. In the absence of such steps, the remaining – although highly unsatisfactory – option is to apply the principle of formal truth and to decide the case on the basis of submissions and evidence put forward by the parties.”

COURT’S INAPPROPRIATE APPROACH TO EVIDENCE AND PROOF

Judge Wojtyczek wrote:

“The existing case-law clearly determines that in disputes concerning the compatibility with the Convention of an interference with Article 8 rights, the burden of proof and argumentation lies upon the Government. Under this case-law, the Government must justify the interference complained of, by providing relevant and sufficient reasons …..

Applicants bringing cases under Article 8 have a strong legitimate expectation that the Court will continue to impose upon the respondent Government the burden of justifying the given interference. …. it is for the Government to show a pressing social need and to provide relevant and sufficient reasons justifying the obligation to vaccinate for each and every one of the diseases in question.  ……

Moreover, the existing case-law suggests that any interference with the freedom not to undergo an unconsented medical intervention requires a strong justification and that the margin of appreciation left to the States parties is narrow (see point 7 below). ……

The Court, however, established a standard of scrutiny based upon a wide margin of appreciation ….. justified by questionable arguments and coupled with a marked deference to the choices made by the domestic authorities ……. The standard of scrutiny actually applied is even lower than that stated. In my view, this approach amounts to an unexpected jurisprudential development, impacting upon the litigation. In any event …… it would have been necessary to warn the parties in advance about the envisaged standard of review and to request their views on this issue, enabling them also to bring – if they considered it necessary – additional substantive submissions under a more precisely identified standard of scrutiny.”

So one has to ask whether the processes and procedures followed constitute a fair hearing in keeping with established norms of procedural fairness and whether the Court has infringed the human rights of the applicants in acting as it has done.

THE COURT’S BASIS FOR AND JUSTIFICATION FOR ITS FINDINGS

This aspect of the case is remarkable. The Court ignored facts which it should have treated as admitted by the Czech government. In other words, the 16 judges in the majority chose to cherry-pick the evidence they preferred in order to come to their clearly defective decision and omitted mention of these aspects.

Judge Wojtyczek wrote:

“I note in this context that the applicants formulated an important number of factual allegations which are relevant in the instant case and which have not been contested by the Government. …….

The parties could have expected that such uncontested allegations would be considered as established by the Court. However, they do not form part of the factual findings made in the instant case. Some allegations pertaining to the integrity of the decision-making process were dismissed as unsubstantiated ….. while others were simply ignored ……

…. it is necessary to explain in detail under which conditions the Court considers allegations made by one party and not contested by the other to be established. Clarity in this respect is essential for the parties.

WHETHER COMPULSORY VACCINATION IS A JUSTIFIED INTERFERENCE WITH HUMAN RIGHTS

Here the Judge summarises his main objections to the majority decision. These are fundamental aspects about which there are and remain significant deficiencies in the majority judgement.

In short, on a fair reading of the majority judgement compared to this dissenting judgement, it looks as if the majority just went through routine steps of creating a judgement without being too concerned about how they arrived at it. The level of dereliction of duty becomes ever more apparent the further one reads into it and Judge Wojtyczek’s critique. The former is imprecise and omits important aspects and the latter demonstrates this blow-by-blow.

Judge Wojtyczek wrote:

“My objections pertain in particular to: (i) the standard of scrutiny established by the majority; (ii) the factual basis of the judgment; (iii) the way in which the conflict of values has been approached; and (iv) the assessment of the decision-making process at the national level.

The question to be answered is ….. whether it is acceptable under the Convention to impose sanctions for non-compliance with the legal obligation to undergo vaccination. More specifically, the question is whether the added value brought by the obligation justifies the restriction on freedom of choice. For this purpose, it is necessary to demonstrate that the values protected in such a system outweigh the values which are affected. It is necessary to show, in particular, that the benefits for society as a whole and for its members outweigh the individual and social costs and justify taking the risk of suffering the side-effects of a vaccination.Given the weight of the values at stake, such an assessment requires extremely precise and comprehensive scientific data about the diseases and vaccines under consideration. Without such data the whole exercise becomes irrational.

………….. The obligation to vaccinate concerns children and constitutes a State interference with the bodily integrity of children. This is an important argument for applying even higher standards of scrutiny to the justification of the interference.”

ON HOW MUCH DISCRETION [“MARGIN OF APPRECIATION”] STATES SHOULD BE ALLOWED

In human rights law, States are in some circumstances allowed a broad discretion and in others a narrow discretion in the measures they adopt.

A striking aspect to the majority decision is a tacit assumption running throughout it that the State is acting benevolently in the interests of its citizens. In healthcare that is not true.

This makes this part of Judge Wojtyczek’s analysis and decision of greater significance.

Corruption in healthcare has developed over decades and is now entrenched.

The individual seeks healthcare in many circumstances where there is no choice and in others where the alternative to healthcare is to suffer poor health. The individual commonly lacks the complex skills and knowledge needed and so is in the hands of the professional. The professional seeks payment for services rendered to profit. And suppliers of pharmaceutical products and medical equipment supply for payment and profit.

Healthcare corruption has been present at least as long as the practice of medicine has been organised and regulated. It pervades all levels. No part of healthcare is unaffected: from professional and higher education; journal and other publishing; in professions and professional bodies; in government and government agencies; in the civil services serving government, the commercial interests this serves for the pharmaceutical industries.

This is of course not to say that all individual medical professionals are corrupt but none of them can avoid the the consequences of longstanding healthcare corruption.

One consequence is a substantial body of biased and unreliable information and expertise.

States, relying upon or promoting false information about the risks and benefits of pharmaceuticals generally and vaccines in particular very likely breach the State’s obligation to take reasonable steps to protect life. The use and repetition of false health information by the State and self-censorship by online, broadcast and print media, may make it impossible to judge where the greater risks lie. When taken with the wider corruption in healthcare, these aspects create a substantial body of official, professional and public healthcare misinformation designed to promote State policies which are not driven solely by a desire to perform public duties in the interests of the citizens of a State.

With that general context one can more readily appreciate the overall importance of Judge Wojtyczek’s judgement. 

On the breadth of the State’s discretion he notes:

“In this domain, the margin of appreciation should be narrow and the threshold to justify the interference very high.”

And he included in his reasoning:

“The majority in the instant case defines the applicable standard in the following way:

“280. As reiterated above (see paragraph 274), the Court has previously held that healthcare policy matters come within the margin of appreciation of the national authorities. Having regard to the above considerations and applying its well-established case-law principles, the Court takes the view that in the present case, which specifically concerns the compulsory nature of child vaccination, that margin should be a wide one.”

This approach is difficult to accept. Under the established case-law, when determining the margin of appreciation, the Court considers that the following factors may plead in favour of widening it, without however prejudging its precise scope:

(i)  a lack of consensus within the member States of the Council of Europe as to the relative importance of the interest at stake;

(ii)  a lack of consensus within the member States of the Council of Europe as to the best means of protecting it;

(iii)  the fact that the case under examination raises sensitive moral or ethical issues.

Against this backdrop it should be noted that there is a broad consensus within the member States of the Council of Europe that:

(i)  bodily integrity should be protected against involuntary medical treatment;

(ii)  the most appropriate method of protecting it consists in subjecting such interventions to the consent of the persons concerned. ……….

………. The instant case is neither about access to health services nor the manner in which they are organised (positive rights) but about the freedom to dispose of one’s own body and freedom from unconsented medical intervention (negative rights).

The issue at stake is crucial to the individual’s effective enjoyment of the most intimate rights, in a context in which there is no direct conflict between two or more rights and in which the right-holder asserts freedom from interference and does not claim any positive entitlements. Restrictions on the freedom to make choices about one’s own body, imposed outside the context of a direct conflict between two or more rights, require strong justifications.

ABSENCE OF EVIDENCE FOR THE COURT’S DECISION

This aspect of Judge Wojtyczek’s analysis is striking regarding what is meant to be the approach of experienced colleagues as lawyers and judges. The Judge Wojtyczek displays and appropriate lawyerly and analytical approach to evidence, fact-finding and decision-making which it is remarkable to observe, his colleagues failed to.

One might justifiably form an opinion that the majority were not concerned how they reached their decision provided it did not upset the status quo and so did not cause them political problems and subject them to criticism and scrutiny had they done so.

Judge Wojtyczek wrote:

“I note in this context that the majority shows a reluctance to rely on hard scientific data. They prefer to rely on value judgments and policy recommendations formulated by experts as if these had the same value as experts’ statements concerning facts.”

And he included in his reasoning:

“In the Czech Republic, the list of compulsory vaccinations encompasses nine diseases. These diseases are very different to each other. A rational assessment of whether the obligation to vaccinate complies with the Convention requires that the case be examined separately for each disease, proceeding on a disease-by-disease basis. For each and every disease, it is necessary to establish:

–  the manner and speed of its transmission;

–  the risks for infected persons;

–  the average cost of individual treatment for the disease in the case of non-vaccinated patients, and the prospects of success of such treatment;

–  the precise effectiveness of the available vaccines;

–  the average cost of a vaccination;

–  the risk of side effects of vaccination;

–  the average costs of treating the undesirable effects of the vaccination;

–  the minimum percentage of vaccinated persons which would prevent the disease from spreading (if applicable) and the prospects of achieving such an objective.

….. The majority’s overall approach is summarised in the following quote (see paragraph 300 of the judgment): “As for the effectiveness of vaccination, the Court refers once again to the general consensus over the vital importance of this means of protecting populations against diseases that may have severe effects on individual health, and that, in the case of serious outbreaks, may cause disruption to society (see paragraph 135 above)”.

It seems that both the respondent Government and the majority consider that the answer is so self-evident that it is unnecessary to resort to more detailed considerations to justify the interference. I do not share this view. The assessment of the legitimacy of the interference in the instant case requires expert medical knowledge.

Although the materials presented to the Court and summarised in the reasoning, particularly in paragraphs 152-157, include extensive expert statements, they do not contain the crucial data listed above. It is therefore not true that extensive scientific evidence has been gathered in the instant case (see paragraph 306). In particular, it is not sufficient to establish that the specific risk posed to an individual’s health by a vaccination is “very rare” (as indicated in paragraph 301). It is necessary to calculate with the utmost precision the risk for each and every disease separately, on the basis of comprehensive and reliable data, collected not only in the Czech Republic but also in other States. The possible counterargument that the vaccines have been tested, considered as safe and approved by the competent public bodies does not suffice to justify the obligation to vaccinate.

In my view, given that the evidence submitted by the parties is not sufficient to decide on the general issues raised in the case and that the decision-making process at the domestic level was not fully satisfactory (see point 16 below), the Court should have appointed independent experts in order to have sufficient grounds to evaluate the possible risks properly and to take a rational judicial decision in the instant case.”

Throughout the judgement the Court mentioned as justification for compulsory vaccination that the vaccinations are to protect against serious contagious diseases.  But if one fairly and properly examines the facts on a disease-by-disease basis this is not true. 

Indeed, it is by all ethical measures unethical to vaccinate all children with a vaccine for diseases which pose no risk to children in general. An example is rubella.

Furthermore, the failure by States to develop or promote the development of effective treatments for common childhood infectious diseases which might pose a material risk to some children is likely to breach Article 2 obligations. And if such treatments did exist the justification for mass vaccination programmes of healthy children not at risk from such diseases would vanish and along with them the material risks of adverse reactions.

CRITICISM OF THE COURT’S APPROACH TO RESOLVING CONFLICTING INTERESTS AND VALUES

ON FORCIBLE ADMINISTRATION

Judge Wojtyczek wrote:

…. It is not true that “there is no provision allowing for vaccination to be forcibly administered” ….. Small children usually resist vaccination. ……  While it is true that the State cannot apply coercion directly in respect of children in this context, the whole system relies upon the following principle: sanctions are imposed upon parents so that they convince their children or, if necessary, use coercion to force their own children to undergo vaccination.

ON WHO SHOULD DECIDE

…. The majority addresses in this context the issue of the best interests of the child. They express, in particular, the following views (see paragraph 288 of the judgment):

“It follows that there is an obligation on States to place the best interests of the child, and also those of children as a group, at the centre of all decisions affecting their health and development. … The Court understands the health policy of the respondent State to be based on such considerations, in the light of which it can be said to be consistent with the best interests of the children who are its focus ….”

This approach triggers the following remarks. It is for the parents, not the State, to take decisions pertaining to children, to define their best interests and to guide the children in the exercise of their rights (compare M.A.K. and R.K. v. the United Kingdom, nos. 45901/05 and 40146/06, §§ 75-79, 23 March 2010). Parental rights may be limited only in exceptional circumstances (see Strand Lobben and Others v. Norway [GC], no. 37283/13, 10 September 2019) and, in principle, the best interests of a child may be invoked against parents only once the latter’s parental rights have been limited or forfeited.

ON THE CONFLICT BETWEEN STATE HEALTH POLICY AND THE RIGHTS OF THE CHILD

… In the instant case, the central question around the best interests of the children is not whether the general health policy of the respondent State promotes the best interests of children as a group, but instead how to assess in respect of each and every specific child of the applicant parents, with the child’s specific health background, whether the different benefits from vaccination will indeed be greater than the specific risk inherent in it. The parents – sometimes rightly, sometimes wrongly, but in good faith – may identify certain very individual risk factors which escape the attention of other persons.

ON THE EXISTENCE OF LESS RESTRICTIVE ALTERNATIVES

The applicants rely upon the argument that less restrictive alternatives are available, in that the same aims can be achieved without imposing the obligation to vaccinate. They rely for this purpose on comparative law, which indicates that many States consider that public health objectives may be achieved without making vaccinations compulsory. This argument has not been convincingly rebutted by the Government, which merely mentioned, in a very general way, the risk that “a possible decline in the rate of vaccination would [arise] were it to become a merely recommended procedure” (see paragraph 283 of the judgment). However, the applicants’ argument deserves very thorough consideration and requires a persuasive rebuttal.

I note in this context that the Court has previously expressed the following views on these questions:

“65.  As to the Federal Court’s argument that the question whether there were other possibilities apart from the dissolution of the association was of little importance in the present case (see point 4.3 of the Federal Court judgment, paragraph 23 above), the Court would observe that it has ruled in a different context that, in order for a measure to be considered proportionate and necessary in a democratic society, there must be no other means of achieving the same end that would interfere less seriously with the fundamental right concerned (see Glor v. Switzerland, no. 13444/04, § 94, ECHR 2009). In the Court’s opinion, in order to satisfy the proportionality principle fully, the authorities should have shown that no such measures were available.” (Association Rhino and Others v. Switzerland, no. 48848/07, § 65, 11 October 2011), and

“… in order for a measure to be considered proportionate and necessary in a democratic society, there must be no other means of achieving the same end that would interfere less seriously with the fundamental right concerned. In the Court’s opinion, in order to satisfy the proportionality requirement, the burden is on the authorities to show that no such measures were available (see Association Rhino and Others, cited above, § 65).” (Biblical Centre of the Chuvash Republic v. Russia, no. 33203/08, § 58, 12 June 2014).

……..

The central question as regards such measures is not, as the applicant suggested, whether less restrictive rules should have been adopted or, indeed, whether the State could prove that, without the prohibition, the legitimate aim would not be achieved. Rather the core issue is whether, in adopting the general measure and striking the balance it did, the legislature acted within the margin of appreciation afforded to it (James and Others v. the United Kingdom, § 51; Mellacher and Others v. Austria, § 53; and Evans v. the United Kingdom [GC], § 91, all cited above).”

It is not clear why in some cases the Court addresses the issue of the existence of less restrictive alternatives, whereas in most cases it passes the question under silence and in other cases it explicitly rejects the test in question. The issue is important for devising pleading strategies. Had the applicants known that the “less restrictive alternative” test would be rejected, they would have probably pleaded the case differently. In my view, it is necessary to provide clarity concerning the scope of application of the “less restrictive alternative” test, so that the parties may rely upon more precise principles in future cases.

ON THE NEED FOR COMPULSORY VACCINATION

I also note that no evidence was presented to the Court which would show that those States which have introduced the obligation to vaccinate perform better in terms of public health than the States which have not introduced such an obligation. In this second group, no decline in the rate of vaccination below the recommended targets has been established before the Court. The fact that in many States the objectives of health policy can apparently be achieved without introducing an obligation to vaccinate is a very powerful argument that less restrictive means are indeed available and that the impugned interference is not necessary in a democratic society. The fact that the majority explicitly dismisses the “less restrictive alternative” test without further explanations for this rejection gives the impression that the applicants’ point under this test would have been taken had it been applied.

INVALIDITY OF MAJORITY ARGUMENTS FOR COMPULSORY VACCINATION

“In paragraph 272 of the judgment the majority states:

“With regard to the aims pursued by the vaccination duty, as argued by the Government and as recognised by the domestic courts, the objective of the relevant legislation is to protect against diseases which may pose a serious risk to health. This refers both to those who receive the vaccinations in question as well as those who cannot be vaccinated and are thus in a state of vulnerability, relying on the attainment of a high level of vaccination within society at large for protection against the contagious diseases in question.”

In paragraph 306 they further argue:

“The Court considers that it cannot be regarded as disproportionate for a State to require those for whom vaccination represents a remote risk to health to accept this universally practised protective measure, as a matter of legal duty and in the name of social solidarity, for the sake of the small number of vulnerable children who are unable to benefit from vaccination.”

The problem is that this argument is valid for some diseases only. It does not work for a disease like tetanus, which is not contagious (WHO, Tetanus, https://www.who.int/immunization/monitoring_surveillance/burden/vpd/surveillance_type/passive/tetanus/en/) and is problematic for pertussis because of the specificity of vaccine protection (Pertussis vaccines: WHO position paper – August 2015, Weekly epidemiological record, No. 35, 2015, 90, 433–460 https://www.who.int/wer/2015/wer9035.pdf?ua=1).”

JUSTIFYING A POLICY OF COMPULSORY VACCINATION

In paragraph 288 the majority argues:

“Those to whom such treatment cannot be administered are indirectly protected against contagious diseases as long as the requisite level of vaccination coverage is maintained in their community, i.e. their protection comes from herd immunity. Thus, where the view is taken that a policy of voluntary vaccination is not sufficient to achieve and maintain herd immunity, or herd immunity is not relevant due to the nature of the disease (e.g. tetanus), domestic authorities may reasonably introduce a compulsory vaccination policy in order to achieve an appropriate level of protection against serious diseases.”

I do not see any logical link between the first and the second sentence: this is a non sequitur. Moreover, the fact that “herd immunity is not relevant due to the nature of the disease (e.g. tetanus)” does not suffice to justify the power of the domestic authorities to “introduce a compulsory vaccination policy in order to achieve an appropriate level of protection against serious diseases”.

SPURIOUS AND INVALID ARGUMENTS TO JUSTIFY COMPULSORY VACCINATION

“Lastly, the applicants argued that the system was incoherent, in that while small children were required to be vaccinated, this did not apply to those employed in preschools. The Court notes, however, the Government’s reply that the general vaccination duty, which consists of initial vaccinations as well as booster vaccinations, applies to everyone residing in the Czech Republic permanently or on a long-term basis (see paragraphs 11 and 77 above), so that the staff members concerned should normally have received all the prescribed vaccinations at the relevant time, as required by law.”

The problem is that the obligation to vaccinate in respect of certain diseases was introduced after some older staff members had become adults, so they would have not received all the currently prescribed vaccinations at the relevant time. For instance, the vaccine against rubella became available only in the late 1960s, while the vaccines against hepatitis B and Haemophilus influenzae type b infections became available only in the 1980s. Moreover, any staff members who spent their childhood abroad have not necessarily received all the vaccinations currently prescribed in the Czech Republic.

THE SOCIAL SOLIDARITY ARGUMENT

In paragraphs 279 and 306 the majority refers to “social solidarity” (“solidarité sociale”). It is not clear what this concept …. means here. The New Oxford Dictionary of English (Oxford 1998, p. 1772), provides the following definition of solidarity tout court: unity or agreement of feeling or action, especially among individuals with a common interest; mutual support within a group. The Dictionnaire Larousse 2019 (Paris 2018, p. 1081) gives the following meanings of the word “solidarité” in French: 1) dépendance mutuelle entre des personnes liées par des intérêts communs, esprit de corps ; 2) sentiment qui pousse les hommes à s’accorder une aide mutuelle (the meanings in legal language have been omitted here; see also E. Littré, Dictionnaire de la langue française, Paris, Hachette 1874, t. 4, p. 1968). Although the French word solidarité may also have a different meaning (le fait de faire contribuer certains membres d’une collectivité nationale à l’assistance (financière, matérielle) d’autres personnes (Le Petit Robert, Paris, Le Robert 2013, p. 2390)), the very idea of solidarity, as initially understood in ordinary language (stemming from legal language), presupposes spontaneous self-organisation, not sacrifices imposed by State power. The two underlying concepts of social organisation are very different, the second approach (based upon legal obligations) compensating for shortcomings in the first.

PROPORTIONALITY AND QUALITY OF NATIONAL DECISION-MAKING

….. the Court takes sometimes into account the quality of the domestic decision-making process …. The applicants point to numerous deficiencies in the decision making process at the domestic level. They restate and endorse very precise factual allegations made in the Czech press. They allege, in particular, conflicts of interests among persons involved in the decision-making process and the fact that documents on which the risk evaluation of the different vaccines were based have not been made public.

The majority replies with this argument in paragraph 297 of the judgment:

“As for the integrity of the policy-making process, the Court notes that in reply to the applicants’ claim about conflicts of interest the Government have explained the procedure followed by the NIC, in accordance with relevant European and international standards (see paragraph 200 above).”

With all due respect, the system of declarations described in paragraph 200, which is apparently devoid of sanctions for making false declarations, is clearly insufficient.

The majority further argues in the same paragraph:

“In the light of the elements before it, the Court considers that the applicants have not sufficiently substantiated their allegations that the domestic system is tainted by conflicts of interest, or their suggestion that the position on vaccination adopted by the relevant Czech expert bodies, or by the WHO, is compromised by financial support from pharmaceutical corporations.”

This is precisely where the problem lies: many citizens no longer trust public institutions. It is not sufficient that decision-making processes are fair: they must be perceived to be fair, and there should therefore be far reaching legal arrangements to protect the integrity of the process and build public confidence. The pro-choice attitude in the field of vaccination reflects a broader problem of mistrust among citizens vis-à-vis the democratic institutions.

ABSENCE OF RISK-BENEFIT ASSESSMENTS

I further note that no national document containing a precise assessment of the various vaccines’ efficiency and the attendant risks has been presented to the Court, as though no such assessment had ever been made in the respondent State or had ever been the subject of public debate. The fundamental issues enumerated above (see point 6 of this votum separatum) appear to have been left unaddressed in publicly available documents related to the decision-making process at national level. The persons affected by the obligation to vaccinate are entitled to know not only the precise risk for each and every disease, but also how this risk was calculated and assessed by those who took the decision to introduce the obligation to vaccinate. Their legitimate queries in this respect remain without a satisfactory answer.

INTERFERENCE WITH FREEDOM OF THOUGHT BELIEF AND RELIGION

Judge Wojtyczek wrote:

“…. I consider that the applicants made a sufficient prima facie case that the legislation under consideration interferes with their rights as protected by this provision. The issue of whether a risk inherent in a medical intervention is one that is worth being taken may be a matter of personal belief, protected by this provision. Moreover, it is problematic to refer to developments in the domestic case law subsequent to the facts of the case and to blame the applicants, with the benefit of hindsight, for failing to explore the avenues opened by this subsequent case-law and to assert certain rights which were not previously protected (see paragraphs 292 and 335 of the judgment). In any event, the legal recognition of exceptions to the obligation to vaccinate based upon conscientious objection is a very important argument in favour of the compatibility of the obligation in question with the Convention.

I also consider that the Court should have examined the case under Article 2 of Protocol No. 1, even if vaccinations, especially those limiting the propagation of contagious diseases, can be a valid criterion for selecting children who are admitted to nursery schools run by public bodies, in a context of a shortage of places in those institutions.”

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