- July 31, 2020 10:20 am
Dr. Andraž Teršek, Professor of Constitutional Law,
University of Primorska and New University (Slovenia)
Will people become (or remain?) “tight bunnies” considered as “fools,” or can we hope for judicial protection of fundamental human rights, based on common-sense evaluation and persuasive legal arguments?
Unimplemented Constitutional Court Decision
In the late 2004 (yes, sixteen years ago!) Slovenian Constitutional Court reviewed the constitutionality of certain provisions of the Infectious Diseases Act[i] and decided (in its decision no. U-I-127/01) that vaccination against infectious diseases is in itself a preventive health measure serving the legitimate objective of protecting the right to health of others and the health of the Community as a whole. According to the Court, it is therefore in the best public interest and such measures taken by the State serve a legitimate objective. The Court agreed with the State’s argument that such a measure contributes to the maintenance of the health of the individual while protecting the health of the population as a whole. Therefore, since compulsory vaccination is understood as a collective protection of the population against infectious diseases, it is not possible, simply by invoking one’s constitutional right to health and the right to refuse treatment, to take a flat-rate basis to refuse vaccination or to claim that other people are effectively ensuring their protection against the spread of infectious diseases by having themselves vaccinated. Of course, the Constitutional Court rejected such an argument. Constitutional Court also decided that the benefits of compulsory vaccination for the health of the individual and the population as a whole outweigh the possibility and severity of possible negative consequences (the s. c. side effects) for the individual resulting from this interference with his or her constitutional right to health.
The Constitutional Court took a stand that the decision as to which infectious diseases pose such a threat to individual and public health that they can justify compulsory vaccination should be left to the medical profession or epidemiologists, but (and this is a strong and indispensable BUT one) on a case-by-case basis if compulsory vaccination is rejected. The doubt and rejection of compulsory vaccination cannot therefore be denied a priori, generally, categorically and absolutely as a legitimate interest in freedom as such. From the point of view of constitutionality and on careful reading of the Constitutional Court decision, the effective procedures for medical assessment of whether there are valid medical reasons for refusing compulsory vaccination in a particular case must also be made available. And, what is also very important, it is also necessary for the State to provide systematically regulated procedures for the legal protection of the rights of people who suffer damage to their health due to a demonstrable causal link between the damage caused and compulsory vaccination. In other words, it is necessary to provide systematically effective and objective legal procedures for an accurate and convincing assessment of whether the reason for the subsequent damage to a person’s health is due to compulsory vaccination.
This part of the Constitutional Court decisions has been neglected too often. And, this is my firm assessment, the State still didn’t respond to this positive constitutional obligation[ii] and still did not provide such properly and effectively institutionalised medical and legal procedures. To be more precise, there are statutory regulated formal procedures to object the compulsory vaccination and to claim health damages as a result (side effect) of the compulsory vaccination. But such procedures are not undoubtedly objective, so they are not efficient as a legal remedy (even though the right to an efficient legal remedy is a constitutional right). Not in substance. In short: a patient objects the vaccination, the doctors demand it; a patient claims the damage to his health, the doctors (most usually the same ones) deny the causal link (causality); a patient files a complaint, the doctors (the closest colleagues of the first ones) reject it as unfounded; a patient files a lawsuit, the court calls the expert witness, usually the same doctors or their colleagues – who don’t want to harm their professional colleagues. Case closed.
The Challenge for the ECtHR
As noted above, this question may soon receive a more concrete answer from Strasbourg. The Grand Chamber of the ECtHR will consider the case of Vavřička and Others v. The Czech Republic.[iii] In this case, however, the facts are quite different and the decision of the Court may also be different (I intentionally write this word with a capital letter). This decision will be a legally binding judicial precedent for all Member States of the Council of Europe (with the s. c. erga omnes legally binding effect). As it should be and it is finally time for the ECtHR to not only “say” something substantial on the issue but to DECIDE on this highly important question regarding one of the fundamental human rights, possibly the most fragile one; according to daily political, legal and social practices and from the short-term future standpoint.
This lawsuit was prompted by the fact that some parents refused to vaccinate the child for religious reasons, other parents refused only certain vaccines because they doubted their effectiveness, and third parents wanted to vaccinate the child later than required by law. In other cases, however, the parents refused to vaccinate the child because of his major health problems. One parent was fined. The other five parents were forbidden to enrol their children in kindergarten. However, they rejected the vaccine against tuberculosis, polio, Hepatitis B, measles, mumps and rubella.[iv]
On the 1.7.2020 the Grand Chamber of the European Court of Human Rights held its hearing in the Vavřička case. It has been noted the Judges were “very curious.” Eighteen questions were asked by the judges at the end of the oral pleadings, which is evaluated as being “exceptional” for the Court, and which may indicate the scepticism of some judges as to the usefulness of the obligation to vaccinate. Here is the selection of questions: what level of vaccination coverage is necessary to ensure the safety of the population; are government approaches of promotion rather than mandatory vaccination less effective; how could unvaccinated children infect vaccinated children; who decides what is in the best interests of the child if the parents’ opinions differ from those of experts; what is the benefit of vaccinating infants against hepatitis B; who draws up the list of mandatory vaccinations and what safeguards are in place to avoid conflicts of interest; what percentage of serious cases are reported following vaccination; can vaccination be imposed on individuals as an act of solidarity? If so, under which article of the Convention is there an obligation of solidarity?
In response, the Czech Government mainly hid behind the recommendations and information provided by the World Health Organization. It was unable to answer exactly what rates of vaccination coverage were required and gave the figure of less than 10 recognized serious cases per year as a result of vaccinations in the Czech Republic. For their part, the applicants replied that countries without compulsory vaccination achieved vaccination coverage rates equivalent to those where it is compulsory; that the side effects of vaccines are not properly studied, and that the objection to vaccination was not a question of freedom of religion, but rather a conscientious objection raised in the context of a scientific debate.[v]
In my view, the ECtHR will simply have to examine, above all, the general nature of the obligation to vaccinate as such. In particular, and above all (the above-mentioned, already written in the decision of the Slovenian Constitutional Court) the problem of the absence of effective LEGAL mechanism that would enable and allow parents to oppose vaccination of their children, and also other people who refuse to be vaccinated. Not only for religious or worldview reasons but especially for health reasons.
The final decision of the ECtHR will not be able to avoid the fact that many of the European countries do not have compulsory vaccination prescribed by law. Mandatory, compulsory vaccination can’t be considered to be a matter of “self-evidentness” as it is not a matter of madness of the people opposing vaccination and rejecting to be vaccinated.[vi] There is no such legal obligation in to Slovenia neighbouring Austria, or in Cyprus, Denmark, Spain, Estonia and Finland, nor in Germany, Ireland, Lithuania, Luxembourg, Norway, or in the Netherlands and Portugal, nor in the United Kingdom and Sweden.[vii]
Puppinck (2020) refers to the words of Daniel Floret, President of the Technical Committee for Vaccination (CTV) of the High Council for Public Health that in these countries the level of immunity is about similar as it is in countries that have mandatory vaccination required by law. From this (of course with the accuracy of the data) follows the logical conclusion that compulsory vaccination not only has no direct, but also no statistically “greater” effect on immunity and disease conditions than in countries where vaccination is not legally prescribed as mandatory.[viii]
I will allow myself a prediction, albeit a risky one, and go a step further than the aforementioned author. If these data are accurate, I expect the following decision of the ECtHR:
- the goal of vaccination, which is to prevent the spread of infectious diseases and protect the health of the entire population, is in itself a legitimate and (constitutionally, legally) acceptable goal;
- However, this goal MUST be achieved through more lenient measures that respect the fundamental rights and freedoms of parents and other people who refuse vaccination.
- If these lenient measures are not available, if legal mechanisms to refuse vaccination are not available or are not effective, and if people and parents who refuse vaccination are simply punished, treated as criminals and their children are banned from enrolling and entering kindergartens and / or schools, then this represents MORE than OBVIOUS a gross violation of fundamental human rights;
- If the state does not provide an effective option by law to claim compensation from the state, if vaccination has caused damage to health, it has not fulfilled its positive legal obligations: in the light of the Constitution and in the light of the ECHR.[ix]
A different decision of the ECtHR will be a surprise for me.
And if the decision of the ECtHR turns out as I expect and predict, it will have a direct impact on Slovenia, on the Slovenian legislator. Namely, just in these days (end of July 2020) the information that the Ministry of Health is proposing exactly the same legislative changes that are being challenged before the ECtHR in the case of Vavrička and others: with exactly the same proposals which I have characterized in this article to be constitutionally and conventionally unacceptable discrimination, stigmatization and social isolation.
Due to the topicality of the importance of events, I state the current intentions of the Slovenian government in full:
“The Government confirmed its position on the draft law amending the Infectious Diseases Act. The Government supports the objective of increasing vaccination coverage and the solution from the draft law, taking into account the amendments and additions listed below, which would be implemented by amendments.
A group of deputies submitted to the National Assembly a proposal for the Act to amend the Infectious Diseases Act. The aim of the proponents of the Act is to raise the level of vaccination, which, in accordance with accepted medical doctrine, ensures group immunity. The draft law on raising vaccination levels provides for the following key solutions:
– restriction of enrollment in a public and publicly co-financed private kindergarten for children who have not been vaccinated against 9 infectious diseases, except for those who cannot be vaccinated for medical reasons (vaccination against measles, mumps, rubella, haemophilus influenza b, diphtheria, Tetanus is obligatory, whooping cough, polio, hepatitis B) – the application for refusal of vaccination submitted by parents or guardians must be accompanied by the opinion of a medical expert with professional justification and a report on the doctor’s explanation of the consequences of non-vaccination;
– the enrolment of non-vaccinated candidates against measles, mumps, rubella, whooping cough and hepatitis B in schools and colleges training for work in the educational, health or social sectors shall be refused unless the decision not to vaccinate has shown that there are medical reasons for doing so;
– compulsory vaccination against seasonal influenza and compulsory vaccination against measles, mumps, rubella, pertussis and hepatitis B for public health network workers or public social welfare workers working with patients or residents, which means a ban on unvaccinated workers in such establishments.
Proposed amendments to the Act:
– restriction on the admission of unvaccinated children to public and publicly co-financed private kindergartens; we believe that a more proportionate measure would be to limit the admission of children to kindergartens only to those children who have not been vaccinated against measles, mumps and rubella. Among them, measles is by far the greatest risk, as reduced vaccination coverage has led to outbreaks in many EU countries and beyond. Measles is an extremely contagious disease that spreads extremely rapidly in the collective, and complications are relatively common. The outbreak and its management is a very serious disruption to the health system. Similar measures have been taken by Italy, Germany and France;
– parents must enclose a medical certificate with the application to stop vaccination. We believe it is necessary to optimize the procedure for determining the reasons for discontinuing vaccination on medical grounds, which is time-consuming and ineffective. We propose that instead of an additional medical opinion, which would place an additional burden on pediatricians, the law should clarify the provisions on the compulsory formal and substantive elements of applications. If they have complete applications, they should have appropriate medical documentation to substantiate the reasons for waiving the vaccination (e.g. the report of an allergologist if an allergy to the vaccine components is claimed; a medical report of a previous serious adverse reaction to the vaccine components; incompatible with the vaccination), they could be treated continuously at the Ministry of Health, and parents could no longer abuse the procedure for waiving the vaccination to avoid the vaccination;
– candidates who have not been vaccinated against measles, mumps, rubella, whooping cough and hepatitis B in schools and colleges training for work in education, health or social services will be rejected unless the decision not to vaccinate is found to have medical reasons. We agree with the proposal.
– prohibition on working with patients or protégés who are employed in the public health network or in social welfare institutions and who have not been vaccinated against measles, mumps, whooping cough and hepatitis B and seasonal flu. We do not agree with the proposal. This is an excessive measure, since the same objective could be achieved through strict compliance with the Occupational Safety Health Act, which lays down: the method for assessing the risks to which workers are or could be exposed at work; the drawing up and adoption of a safety declaration, including a risk assessment, which also lays down the specific health requirements to be met by workers for a given work, in the work process or when using individual work equipment, on the basis of the expert assessment of the occupational health adviser. Ensuring safety and health at work, including the necessary material resources, is the responsibility of the employer and must not become a burden on workers. The introduction of compulsory vaccination against measles, mumps, rubella, pertussis, hepatitis B and seasonal flu among workers in health and social care facilities would put great pressure on issuing decisions to discontinue vaccination for medical reasons.”[x]
The Roll of the Dice
So I claim: if the ECtHR final decision in Vavrička case will be in accordance to my expectations and predictions such legal regulation would be unconstitutional, since it would be in contrary with the ECtHR case-law. For now, we have to wait and see what happens.
After the 2020 Coronavirus pandemic (first wave?!) the European public is already alerted about the vaccine against this virus. And undecided on the subject: some people can hardly wait for the vaccine, others are already very afraid of it. And last but not least, the daily politics has already made clear its intention to classify people (legally, by Acts or Statues) into different “risk groups,” according to their previous and chronic illnesses. On the one hand, with the intention of adjusting to the (higher) level of insurance premiums that people will have to pay according to their “risk for the health of others.” And on the other hand, with the intention that the State will legally allow itself control over the fundamental human and constitutional right to privacy and over the fundamental human and constitutional right to freedom of movement;[xi] again – according to the determination of such “risk.”
It has already become clear that the fundamental rights already acquired, even the s. c. “Strasbourg minimal standards,”[xii] will have to be fought for again.[xiii] ECtHR decision in a case of Vavřička and Others v. The Czech Republic will play a big part. Hopefully not too big to handle for the ECtHR; in the sense of “politically” avoiding a determined and concrete “legal decision.” ECtHR is expected to give its decision before the end of 2020: just as the question of a general vaccination obligation against Covid-19 will arise. Hard times and human rights challenges lie ahead.
[i] Note: this Act has also been the direct legal foundation for the restriction of constitutional rights and freedoms during the Coronavirus pandemic 2020 in Slovenia. The Constitutional Court of the Republic of Slovenia still didn’t decide on the constitutionality of the restrictions of constitutional rights and freedoms. But my colleagues and myself did publish a constitutional analysis of the measures, imposed by the Government Decree, with highly understandable claim they were illegal and unconstitutional. See Andraž Teršek & Jure Dragan: Ustavnopravna analiza omejitve ustavnih pravic v času pandemije 2020 (Constitutional analysis of the restriction of constitutional rights during the 2020 pandemic). Javna uprava (Public Administration Journal). No. 1-2 (2020).
[ii] According to this constitutional doctrine, it is not enough for the state not to interfere with fundamental rights and freedoms (the s.c. negative aspect / nature of rights). The state must also do everything that can be reasonably expected of it AND demanded that these rights be effectively protected and exercised in practice (the s. c. positive aspect / nature of rights). In the Slovenian Constitution, the normative basis for this doctrine is Article 5, its first sentence: “The state protects human rights and fundamental freedoms on its territory.” Namely, in combination with the first sentence of Article 15: “Human rights and fundamental freedoms are exercised directly on the basis of the Constitution.” See Matej Avbelj et al.: Commentary of the Constitution of the Republic of Slovenia. European Faculty of Law, New University, Nova Gorica (2019); Andraž Teršek: Theory of Legitimacy and Modern Constitutionalism. University Publishing Annales, Koper (2014), pp. 312-322.
[iii] ECtHR. Application no. 47621/13 and five other applications/cases: Novotná v. Czech Republic (no. 3867/14); Hornych v. Czech Republic (no. 73094/14); Brožík v. Czech Republic (no. 19306/15); Dubský v. Czech Republic (no. 19298/15); Rolečekv. Czech Republic (no. 43883/15).
[iv] Gregor Puppinck: Compulsory Vaccination: The Grand Chamber of the ECHR will Decide. EUROPEAN CENTRE FOR LAW AND JUSTICE. February 2020. Available at: https://eclj.org/conscientious-objection/echr/vaccination-obligatoire–la-cedh-va-se-prononcer-en-grande-chambre (27.6.2020)
[v] Christophe Foltzenlogel: Mandatory Vaccination: Important hearing before the Grand Chamber of the ECHR. European Centre for Law & Justice. July 2019. Available at: https://eclj.org/conscientious-objection/echr/vaccins-obligatoires–la-grande-chambre-a-entendu-les-arguments-des-requerants-et-du-gouvernement-tcheque (1.8.2020)
[vi] Just a brief insight into Internet forum discussions shows too many people consider those who are scared of vaccinations, question them and reject to be vaccinated, themselves or their children, are labelled and marked to be »mad« and to represent »irresponsible danger to the society as a whole«. Most usually harsh, insulting and vulgar words are being used by the vast majority of the general public when addressing them.
[vii] WHO. World Health Organization. Regional office for Europe. The organization and delivery of vaccination services in the European Union, 2018. Available at: https://www.euro.who.int/en/publications/abstracts/the-organization-and-delivery-of-vaccination-services-in-the-european-union-2018 (29.6.2020); WHO. (World Health Organization). Vaccination: European Commission and World Health Organization join forces to promote the benefits of vaccines, 2019. Available at: https://www.who.int/news-room/detail/12-09-2019-vaccination-european-commission-and-world-health-organization-join-forces-to-promote-the-benefits-of-vaccines (25.6.2020); European Commission. ROADMAP ON VACCINATION. Available at: https://ec.europa.eu/health/sites/health/files/vaccination/docs/2019-2022_roadmap_en.pdf (29.6.2020).
[viii] National Institutes of Health. PLoS One. 2018; 13(1): e0191728. Published online 2018 Jan 25. doi: 10.1371/journal.pone.0191728. Available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5784985/ (29.7.2020)
[ix] Especially from the viewpoint of the (above mentioned) doctrine of the positive obligations of the state regarding the quality and effectiveness of the SYSTEMIC legal protection of fundamental human rights and freedom. ECtHR first developed this doctrine in direct connection with the right to privacy (Article 8 of the ECHR). See ECtHR Final Judgement in a case Airey v. Ireland (9th of October 1979): »However, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect to private or family life … Effective respect for private or family life obliges Ireland (or any other Council of Europe Member State; op. A.T.), to make this means of protection effectively accesible, when appropriate, to anyone… However, it was not effectively avcesible to the applicant: not having been put in a position in which she could apply to the High Court … she was unable to seek recognition in law… She has therefore been the victim of a violation of Article 8.« See also ECtHR Final Decision in an Artico Case (13th of May 1980).
[x] GOV.SI. Government of the Republic of Slovenia. 27th Regular Session. 23.7.2020. Available at: https://www.gov.si/novice/2020-07-23-27-redna-seja-vlade-republike-slovenije/?fbclid=IwAR2etWAEn8vZH4UGPJhzbcfa5P2KUdN7eLskAAJFtSSC3mSoV5S5CZK3Tu0 (1.8.2020).
[xi] At this point, I would like to reiterate that the doctrine of positive obligations of the state may be under “political pressure” in particular. In terms of a possible reduction of the s. c. “reasonable and legitimate legal expectations” towards the state. In the sense what the state “must”, not only “should” do to ensure that the level of protection of fundamental rights and freedoms already achieved, meaning the quality and effectiveness of their legal protection, is not reduced. My professional and public work so far has been defined primarily by an active commitment to this goal: that this level should not be lowered, but at most strengthened and raised.
[xii] This concept was already explained above. At this point, I would like to reiterate that the doctrine of positive obligations of the state may be under “political pressure” in particular. In terms of a possible reduction of the s. c. “reasonable and legitimate legal expectations” towards the state. In the sense what the state “must”, not only “should” do to ensure that the level of protection of fundamental rights and freedoms already achieved, meaning the quality and effectiveness of their legal protection, is not reduced. My professional and public work so far has been defined primarily by an active commitment to this goal: that this level should not be lowered, but at most strengthened and raised. For detailed and comprehensive insight into the doctrine of positive obligations of the state see Alastair Mowbray: The Development of Positive Obligations Under the European Convention on Human Rights by the European Court of Human Rights. Oxford: Cambridge University Press, 2014.
[xiii] Exactly today, when I am concluding this article (July 29, 2020), the Slovenian media published two important news: first, that a new European legal policy is being adopted regarding the question of WHO will be allowed to enter EU Member States (from which non-EU countries) and second, in Slovenia, the law will soon prescribe mandatory tracking of people who tested positive for COVID-19 via a special application on a mobile phone.