Abstract
The multiple COVID-19 vaccines developed over the past months are typically thought of as the only means to meet the challenges posed by the current pandemic. Still, public opinion on vaccines is heavily divided. And, of course, discussions about compulsory vaccination, oftentimes based on fundamental rights arguments, tend to become heated. This note[1] analyses the issues at hand based on the case law of the European Court of Human Rights (ECtHR).
1 Introduction
When the case of Vavricka v Czech Republic was brought before the ECtHR in 2015, the significance of the Court’s assessment of the case could not have been foreseen. Parents in the Czech Republic had refused to have their children vaccinated for various reasons, including their religious reservations, and were punished with either fines or exclusion from kindergarten.[2]
Today, more than five years later, COVID-19 has a firm grip on Europe and the world. Even before breakthroughs in vaccine development were achieved, there were discussions about whether vaccinations would or should be made compulsory.[3] Opponents of (compulsory) vaccination often cite ’fundamental rights’ as the basis for their stance.[4]
But what do ’fundamental rights’ - or rather: what does the ECtHR as the final European authority on the common European body of fundamental rights – have to say about compulsory vaccination? This note aims to provide a brief survey of the Court’s case law with regard to compulsory vaccinations, including the most recent decision, Vavricka v Czeck Republic, and thus attempts to serve as a guide when it comes to predicting how the Court might rule on (possible) future cases.
2 What is ‘Compulsory Vaccination’?
Unsurprisingly, a vaccination system in which the enforcement of a duty to vaccinate is ultimately ensured by the compulsory administration of the vaccine constitutes ‘compulsory vaccination’. However, in most cases, states opt for rather indirect, relative forms of enforcement, which imply negative consequences in the case of the refusal to vaccinate but do not include compulsory administration.[5] Such indirect means may be fines or the linking of one’s vaccination status to the enjoyment of certain (non-essential) services, like preschool, or situations, eg attending a concert. Considering that medical interventions are only to be carried out with the free and informed consent of the person concerned,[6] it seems appropriate to define every vaccination system that mandates any negative consequence as a result of refusing to carry out a vaccination as ‘compulsory vaccination’ subject to justification, as these consequences can (and are intended to) influence one’s decision to get vaccinated. This seems to be in line with the definition of compulsory vaccination underlying the Court’s recent decision Vavricka v Czeck Republic: the Court speaks of ‘compulsory vaccination’, although the duty cannot be directly imposed, the highest fine for not vaccinating one’s child is EUR 400, which can only be imposed once, and the exclusion from educational institutions only concerns preschool, which is not part of the Czeck Republic’s mandatory education.[7] In the Court’s opinion ‘the consequences [of non-compliance] borne by the applicants cannot be meaningfully dissociated from the underlying duty. On the contrary, they flow immediately and directly from the applicants’ attitude towards it and are therefore intrinsically connected to it.’[8] Hence, even if a vaccination is never forcefully administered, the negative effects, arising as a direct consequence of non-vaccination, may limit the ability to exercise fundamental rights and constitute an interference.[9] However, certain legal consequences interfere more intensely with fundamental rights than others, which is why the choice of these consequences subsequently has an influence on the assessment of proportionality of compulsory vaccination.[10]
3 Interferences with Fundamental Rights
In this section, arguments raised against (compulsory) vaccination will be examined with regard to their coverage in the fundamental rights to which they refer. The analysis will focus on the right to life (Article 2 ECHR), the right to respect for private and family life (Article 8 ECHR) and the freedom of thought, conscience and religion (Article 9 ECHR), since the Court and the European Commission of Human Rights, have dealt with alleged interferences with said rights by vaccination in previous cases.[11] First, the argument that ‘[t]he risk of death associated with vaccinations is high’[12], as voiced in Boffa and 13 others v San Marino, will be assessed in the light of the right to life. Secondly, various arguments relating to Article 8 ECHR are evaluated, which can essentially be broken down into wanting the state not to interfere with personal decisions because ‘it’s none of its business’.[13] Lastly, conscientious objection is dealt with, as invoked in Vavricka v Czech Republic.[14] In the course of this assessment, the note will also address the question, whether positive obligations concerning vaccinations are to be derived from the existing case law.
3.1 ‘The Risk of Death Associated with Vaccinations is High’
Diseases are part of life. Some, of course, as the current COVID-19 pandemic shows, affect our daily lives more severely than others. Some, again, have lost their terrifying nature mainly because of vaccines.[15] The WHO estimates that vaccinations against diphtheria, tetanus, pertussis, influenza and measles save the lives of up to 3 million people each year.[16] But vaccinations do not offer absolute protection and side effects as well as vaccine-associated deaths, however rare, can occur.[17] It is therefore reasonable to consider whether, and if so how, the right to life addresses such situations.
Article 2 ECHR aims at protecting the life of every human being. The scope of protection encompasses cases with a fatal outcome, but also includes situations in which life was endangered, even if death did not occur eventually. Situations merely endangering health but not life, however, are not covered by the scope of protection of Article 2 ECHR, but by the scope of Article 8 ECHR.[18]
Article 2 ECHR not only obliges states to refrain from lethal acts, it also imposes a comprehensive obligation to adequately protect the lives of those under their jurisdiction — the resulting positive obligations require the state to actively do ‘all that could have been required of it to prevent the applicant’s life from being avoidably put at risk’.[19] The extend of the measures that the state ‘could have been expected to take’ is determined by whether the state ’knew or ought to have known’ of the risk, taking into account the information available to the state at that time.[20] The effective functioning of this protection is to be ensured by implementing appropriate legal frameworks as well as enforcement/control mechanisms, and by conducting effective investigations into deaths, even if the states are not responsible themselves.[21] These principles also apply to the sphere of public health.[22] But if all necessary measures were taken, appropriate regulations are in place and an effective investigation was conducted, the state cannot be held accountable.[23] However, the Court does not define which particular measures are to be taken, as this falls within the state’s ‘margin of appreciation’ – therefore a variety of measures can fulfil the imposed positive obligations.[24]
For the case of vaccinations, which interfere with an individual’s bodily integrity, this means that the right to life is only affected when potentially life-threatening circumstances arise in the individual case.[25] Such a threat posed by the vaccination is conceivable, for example, in the case of allergies or other contraindications on the part of the person concerned.[26] The possible side effects of vaccinations, which represent health hazards but do not pose a serious risk to life, do not cross the threshold of Article 2 ECHR.[27]
Vaccine-associated deaths, on the other hand, clearly do fall within the scope of protection. Since the primary aim of vaccination programs is to protect the individual concerning as well as the population as a whole, these are technically to be regarded as unintentional killings, for which the state is additionally required to have breached its obligation to take ‘appropriate steps to safeguard life’[28] to be liable. In this regard the Decision rendered by the erstwhile European Commission on Human Rights Association of Parents v the United Kingdom explicitly states that if a state maintains a control and monitoring system that aims to minimize vaccine-associated side effects, isolated fatalities do not constitute an interference with the right to life.[29] This, of course, can only be true for isolated fatalities that were unforeseeable. Therefore, a prerequisite for the states to ensure compliance with the positive obligation to protect lives is, that an individual examination has been made to rule out the existence of contraindications.[30] This, consequently, implies the obligation to provide for exceptions to the duty to vaccinate when medically indicated.
Compulsory vaccination is therefore not per se an interference with the right to life in its manifestation as a prohibition of intentional killings – as long as sufficient precautionary measures are in place – not even if isolated life-threatening events or deaths occur.[31]
But could Article 2 ECHR, on the other hand, oblige the state to introduce compulsory vaccination through its positive obligations? The state’s duty to protect its population from foreseeable or typical threats to life, does also include requirements for the sphere of health care.[32] In order to prevent threats, the states must enact protective regulations, including such dealing with infectious diseases, as the uncontrolled spread of infectious diseases can pose a threat to the population.[33]
This threat shows, inter alia, when comparing the incidence of diseases before to the incidence after the introduction of a vaccine. For example, in 1952 over 21.000 cases of paralytic poliomyelitis, caused by the poliovirus, were reported in the US. After the introduction of the inactivated polio vaccine in 1955, cases have decreased significantly: to 2.525 cases in 1960 and only 162 cases from 1980 to 1999.[34]
However, an infection with a disease is generally not to be qualified as a direct threat to life, which means that Article 2 ECHR is again only affected in situations in which a life-threatening factor enters into the equation. It is conceivable that life is endangered by infection, for example, people belonging to a high-risk group who cannot be immunized. This applies to people without a fully working immune system, eg because they suffer from chronic illness or severe allergies, undergo chemotherapy or are simply too young or too old to be safely vaccinated.[35] These people are more dependent on ‘herd immunity’, which describes the condition that the disease can no longer spread as easily because a large part of the population has been vaccinated and is therefore immune.[36] Non-vaccinated people endanger herd immunity, and by that endanger those dependent on herd immunity, as they do not contribute to it through their own immunity[37] and additionally contract and spread infectious diseases more easily.[38] The existence of this (abstract) danger to life is known to the states, as the existence of regulations tackling the problem of infectious diseases[39] demonstrate, which is why a failure to act, at least in the case of epidemics or pandemics, where the abstract danger becomes concrete, would qualify as an interference.[40]
Since there are no specifications as to which measures need to be taken in order to comply with the duty to protect life,[41] different approaches may be permissible in the organization of health care systems. Moreover, there is no agreement among the Convention states on how to deal with infectious diseases, which generally enlarges the margin of appreciation left to the states.[42] The states therefore have a great deal of discretion in their choice of means. Thus, although there is an obligation to take measures to immunize the population in general, this obligation can be met both through compulsory vaccination and through voluntary vaccination plans. But the absence of an obligation to introduce compulsory vaccination does not in turn constitute a prohibition to introduce such a comparatively strict measure,[43] as, in the words of the Court, ‘[m]atters of health care policy, in particular as regards general preventive measures, are in principle within the margin of appreciation of the domestic authorities who are best placed to assess priorities, use of resources and social needs’.[44] However, situations where only compulsory vaccination can fulfil the obligation to protect life are conceivable. Namely, if the established vaccination plans are proven to be unable to adequately protect vulnerable groups,[45] because herd-immunity could not be achieved, and non-coercive means to increase vaccination coverage were tried and failed.[46]
Finally, the obligation to conduct an effective investigation[47] also applies to vaccine-associated deaths, as a link between vaccination and death can only be established through appropriate investigations. This is due to the fact that death shortly after the administration of a vaccine may be coincidental and not causal, as, eg, it is possible that the cause of death may be completely unrelated to the vaccination or death was caused by inappropriate handling, contamination or other medical errors, but not by the vaccine itself.[48] If the investigations were insufficient or completely omitted, this would constitute an interference.[49]
3.2 ‘It’s None of Your Business!’
Article 8 ECHR is one of the most prominent fundamental rights of the ECHR. It protects the individual’s private sphere and family life by, first, prohibiting (unjustified) interferences of state agents themselves and, second, imposing a wide range of positive obligations on the states to ensure the respect for private and family life, eg through adequate legal framework.[50] The notion of family life is affected when measures potentially interfere with the special relationships that make up a family, like those between parents and their children.[51] It is more difficult, however, to identify the scope of the term ’private life’, because, according to the Court, the notion of ’private life’ cannot be defined conclusively,[52] which in turn makes it applicable to a vast number of situations. But, as a guide, the case law of the Court and the Commission has identified several typical cases falling within the scope of Article 8 ECHR. The notion of private life thus includes, at any case, situations that concern one’s identity, individuality, integrity, self-determination, personal relationships relevant to the development of one’s personality[53] and the protection of personal data.[54] One of the main underlying principles is autonomy,[55] which is also regularly used by opponents of compulsory vaccination as a basis for their argumentation. Whether and which interference with Article 8 ECHR would be realized through compulsory vaccination is therefore discussed in the following. Interferences with the right to respect for one’s home or correspondence, equally protected by Article 8 ECHR, through vaccinations are not to be expected.
3.2.1 ‘My (Private) Life – My Decision’
The notion of ‘private life’ essentially safeguards the right to make decisions over one’s own body and life.[56] This consequently includes health related decisions as well.[57] Medical treatment typically interferes with one’s physical (also possibly one’s psychological or even moral) integrity and may generally only be carried out with the consent of the person concerned.[58] The case-law of the erstwhile Commission and the Court considers every medical intervention against the will of the individual an interference with Article 8 ECHR, even if the intervention is of minor intensity.[59] As compulsory vaccination in its absolute form is by definition carried out regardless of whether one has consented or not, the lack of consent as well as the intrusion of the person’s physical integrity undoubtedly interfere with Article 8 ECHR.[60] In Vavricka v Czeck Republic, however, the Court went one step further and held that the duty to get vaccinated and the consequences attached to it cannot be dissociated.[61] Thus, even if no vaccination was actually administered against one’s will, the direct negative consequences arising from the non-compliance with the duty to get vaccinated constitute an interference with the right to respect for private life, thereby also subjecting relative, indirect forms of compulsory vaccination to the scrutiny of the Court.[62]
Another way the freedom of choice, as the essence of Article 8 ECHR, manifests is in the ability to decide whether certain personal information – data – should remain secret. This particularly applies to health data.[63] Therefore the collection, storage and use of data by the state, if no consent was given, is an interference requiring justification.[64] Also states must enact legal frameworks capable of preventing abuse or arbitrary use of personal information.[65] Data protection is relevant for compulsory vaccination as its effective monitoring would most likely require an overview of the vaccination status of the population, ie the collection, storage and processing of this information. This would thus constitute a further interference with Article 8 ECHR if the individuals did not agree or the legal framework was deemed insufficient or was not enacted at all. At least for member states of the EU, however, a sufficient legal framework should be in place through the General Data Protection Regulation.[66]
But ‘private life’ also has an external component that encompasses relationships with other persons and the outside world.[67] Compulsory vaccination does interfere with this aspect of Article 8 ECHR if a failure to have been vaccinated is sanctioned by exclusion from a certain social group relevant for the shaping of one’s personality.[68] This is the case, eg, for kindergarten or schools, that play an important role in a child’s development,[69] if the attendance would only be allowed with the mandated immunization, as it is the case for example in Italy[70], France[71] or all US states.[72] This type of sanction could raise additional problems with regard to the right to education, protected under Article 2 of Protocol No 1. However, in Vavricka v Czeck Republic, the Court saw no need to examine the compatibility of the exclusion from preschool with the right to education, stating that all problems had already been conclusively dealt with under Article 8 ECHR.[73] Unfortunately, this leaves the question of whether this assessment is only due to the fact that preschool is not mandatory in the Czech Republic unanswered. The court, thus, indeed missed an opportunity to clarify its understanding of the relationship between the right to education and the right to respect for private life, as criticized in Judge Lemmens’ partly concurring and partly dissenting opinion.[74]
Another way of developing relationships with the outside world is through work.[75] Accordingly, restrictions on the access to a profession affect Article 8 ECHR.[76] If a state would plan compulsory vaccination for health personnel only, the required immunization would constitute a prerequisite for the exercise of these professions and thus constitute an interference.[77]
The positive obligations regarding health-related issues deriving from the protection of private life basically correspond with those under Article 2 ECHR, whereby for the demarcation of the two scopes it must be clarified whether there is a danger to life (→ Article 2 ECHR) or a mere danger to health (→ Article 8 ECHR). For example, Article 8 ECHR also requires protective measures for hospitals in order to ensure the respect for the physical and mental integrity of patients.[78] In the case of compulsory vaccination schemes, Article 8 ECHR could, therefore, require states to make sure that if several vaccines were available, the one best suited for the individual is ordered to minimize negative effects on the individual’s health.
However, an obligation to introduce compulsory vaccinations cannot be derived from Article 8 ECHR either. Just as with Article 2 ECHR, the state must, under certain circumstances, provide for measures to eradicate diseases,[79] but the Court does not specify which means are to be implemented to do so. The fact that there is no obligation does, once again, not in turn constitute a prohibition to introduce compulsory vaccination as choice of means.[80]
3.2.2 ‘Vaccination is Not in My Child’s Best Interest’
(Compulsory) medical treatment of children is often brought before the Court by the parents as legal representatives.[81] In addition to the interferences with Article 8 ECHR concerning the child itself – the interference with its bodily integrity etc – it should be considered whether the limitation of the parents’ freedom to make decisions on behalf of their children constitutes a separate interference. This freedom of choice relates to the specific relationship between parents and children, protected under Article 8 ECHR within the ‘respect for family life’,[82] which is why the notion of family life deserves closer attention when it comes to compulsory vaccination.[83]
The right to respect for family life is primarily aimed at enabling families to life together and protecting the special relationships which form a family.[84] Whether a certain relationship is considered a ‘family’ depends on the existence of close family ties, which can manifest themselves in several ways, for example through cohabitation or other indications of commitment (not necessarily marriage).[85] This also applies to the relationship between parents and their children, which is why the existence of close family ties may need to be proven under certain circumstances.[86]
A specific aspect of the relationship between parent and child is the area of education/upbringing. The right of parents to educate their children as they please is protected by Article 8 ECHR, but Article 2 of Protocol No 1 constitutes a lex specialis for the area of state educational institutions, hence, only situations without reference to such institutions remain within the scope of Article 8 ECHR.[87] But parents are not entirely free to make decisions concerning their children, they rather should be guided by the best interests of the child, which may override the interests of the parents.[88] In this regard the ECtHR expressly ruled out that parents have an enforceable right to make decisions that are potentially detrimental to the child’s health or development.[89]
The guiding principle for a decision that complies with the best interests of the child is to weigh up, based on empirical evidence, ‘the relative risk of harm produced through two incompatible decisions’[90] taking into account the individual child – for vaccination these two incompatible decisions are whether or not to vaccinate.[91] Since vaccines, even if side effects and complications can never be completely ruled out, are fundamentally safe and the risks associated with an illness therefore generally outweigh the risks of a vaccination, [92] the Court ruled that it is in the child’s best interests to attain the highest possible standard of health and thus be immunized against serious diseases, unless the specific child is particularly at risk of adverse reactions and thus dependent on a high rate of immunization in its environment.[93] Conversely, the decision not to immunize one’s child can potentially harm the child and its health by increasing the risk of catching certain diseases, again, unless the particular child is unfit for vaccination.[94] Therefore, while there is no interference with Article 8 ECHR in neither a decision for nor a decision against vaccination, the fact that parents have no right to make a potentially harmful decision means that compulsory vaccination cannot interfere with such a right either, if exceptions in medically indicated cases are provided for.
For the area of family life, the positive obligations relating to the limitation of the parents’ autonomy and responsibility are mainly procedural.[95] The state has to enable normal family life as far as possible.[96] With regard to vaccination this means, among other things, that a withdrawal of custody as a sanction for not vaccinating would most likely go too far and constitute an interference, because taking children into care is only permissible as a last resort and under exceptional circumstances.[97] Moreover, the respect for family life imposes on the authorities the obligation to make their decisions with reference to each individual case and with the involvement of the persons concerned.[98] The involvement of the persons concerned would probably require a minimum of information about the vaccinations to be carried out, their benefits and risks.[99]
3.3 Conscientious Objection to Vaccination
For some, the need to analyze the introduction of compulsory vaccinations in terms of their compatibility with religious attitudes and convictions may not seem obvious, but vaccinations and religion/convictions are more closely linked than it may appear at first sight. This is because some vaccines contain ingredients that are not easily compatible with the doctrines of some religions, as the following examples, which do not claim to be exhaustive, show. First, some vaccines contain porcine gelatin, which must not/should not be consumed according to Jewish or Muslim teachings. While it is sometimes argued by representatives of both religions that the ban on pork applies only to oral intake and not, for example, to injections, or that it is not to be considered a sin if there is no suitable kosher/halal alternative, this cannot be assumed for all members or subgroups of these religions. For some Christians, the fact that certain types of viral vaccines need cell lines deriving from aborted fetuses clashes with their religious beliefs.[100] Also, some Christian denominations consider vaccinations an intervention in divine providence.[101]
Apart from religious concerns, the fact that vaccines do sometimes contain animal components or are tested on animals, as this is a prerequisite to release vaccines in public in many countries, eg the EU member states,[102] may cause problems for vegetarians and vegans. Again, some representatives make exceptions when practicable alternatives are not available,[103] but this cannot be generally assumed.[104]
For all these reasons it should be examined whether the refusal to vaccinate may be protected under Article 9 ECHR. To do so, it is necessary to define, at least roughly, the terms used to describe the scope of Article 9 ECHR: ‘thought’, ‘conscience’, ‘religion’ and ‘belief’.
The word ‘thought’ describes purely internal, intangible processes, such as making a decision or to have, develop or change certain intentions or opinions. As long as these internal processes have not yet manifested in any way, they are protected by the freedom of thought. Since paragraph two of Article 9 ECHR only provides for justifications for interference in the various forms of ‘manifestation’, the protection of the forum internum is to be regarded as absolute and any form of state interference/indoctrination is inadmissible.[105] As soon as thoughts materialize, these materializations are no longer protected under the freedom of thought but may be protected, eg, under the freedom of expression or the freedom of religion, depending on their form and content.[106]
‘Conscience’, on the other hand, is more than a mere thought. It is a ‘qualified’ thought, namely one that should serve the person concerned as a guide to decide what is right or wrong.[107] Every time a person considers what would be ‘good’ or ‘bad’ in a specific situation and then acts according to his or her result, this is a decision of conscience.[108] The freedom of conscience protects the right to develop one’s conscience freely, to not be forced to disclose matters of conscience (forum internum) and to behave accordingly.[109] Conscience can, but does not necessarily have to be religiously motivated or embedded in a personal belief without contradiction, as protected under the notion of freedom of religion.[110]
It can be assumed without further argument that established religions are also ‘religions’ within the meaning of the ECHR. However, the protection of religions is not limited to these, but in principle also includes new or less widespread religious communities.[111] However, when it comes to new or less common religious groups with no consensus among the member states on whether they are to be treated as a ‘religion’, the Court relies on the position of the domestic authorities as it does not consider itself responsible ‘to decide in abstracto whether or not a body of beliefs and related practices may be considered a “religion”’ [112]. But religious communities that do not qualify as a religion may still be protected as a belief.[113] A belief is defined a set of convictions that meets the criteria of ‘cogency, seriousness, cohesion and importance’[114] and provides a ‘coherent view of fundamental problems.’[115] The freedom of religion and belief protects the right to have a religion or belief (forum internum) as well as the right to manifest it.[116]
3.3.1 ‘I Don’t Believe in Vaccines’
As far as the forum internum of the freedom of thought and the freedom of conscience is concerned, the state may, as explored above, not interfere.[117] However, having or developing a negative attitude or conviction towards vaccinations would not be prevented if compulsory vaccinations were implemented, nor would the disclosure of one’s vaccination status necessarily lead to an exploration of one’s thoughts or opinions relating to vaccines.[118] Hence freedom of thought and freedom of conscience relating to the forum internum would not be affected by compulsory vaccination.
But it is conceivable that compulsory vaccinations interfere with the forum externum of freedom of conscience, namely if one qualifies the decision to be vaccinated as a decision of conscience. This is not far-fetched, as in many cases the personal decision for or against vaccination also has an impact on society as a whole, and thus ethical considerations may well enter into it.[119] If one decides not to be vaccinated because of his/her conscience, then the compulsory order interferes with the right to act in accordance with one’s conscience at first glance. However, the ECtHR rejects a right to oppose state orders by invoking incompatibility with one’s conscience, provided that a generally and neutrally phrased act exists as the basis for the order.[120] If the act introducing a potential obligation to vaccinate were therefore to be qualified as generally and neutrally phrased, there would be no interference with the freedom of conscience.[121]
3.3.2 ‘It’s Against My Religion/Beliefs!’
While ‘vaccination rejection’ per se can hardly be a religion in itself, there are religious communities, some of which clearly meet the criteria for a protected religion, whose doctrines reject vaccination or its ingredients, as already stated above.[122] The refusal to vaccinate could then be qualified as a practice or rite and thus receive the protection of the freedom of religion.[123] Should the religious community in question not be granted the status of a religion by the Court, however, protection would still potentially be available under freedom of belief, if the requirements set out for a ‘belief’, are met.
In order to offer a ’coherent view on fundamental problems’ in the sense of a protected belief, it takes more than individual, incoherent opinions. Being convinced, for example, that vaccinations would only benefit pharmaceutical companies, is not enough for a belief. Yet, it should be noted, that opinions, which do not meet the criteria of a belief may nevertheless be protected under Article 10 ECHR.[124] A set of beliefs that can do justice to the holistic approach the Court follows when analyzing a belief, on the other hand, is veganism, as a ‘philosophy and way of living which seeks to exclude - as far as is possible and practicable - all forms of exploitation of, and cruelty to, animals for food, clothing or any other purpose’[125]. Indeed, the Commission held in W v the United Kingdom ‘that the Vegan convictions with regard to animal products fall within the scope of Article 9 para 1 (Art 9-1) of the Convention’.[126]
Mandatory vaccination could conflict with these protected beliefs. For example, if there were penalties for not vaccinating, as this would effectively be a punishment for practicing one’s own beliefs.[127] But even without a penalty, the very fact that there is an obligation to act contrary to one’s convictions is already a problem.[128] This could possibly lead to a positive obligation that obliges the state to mitigate conflicts between obligations to act and ones convictions by providing for exceptions or alternative behavior, as internationally some US states or Australia, among others, have done.[129]
The case law, however, imposes significant barriers on the scope of Article 9 ECHR. Generally, protection of the forum externum under Article 9 depends on two things: first, whether it is a protected conviction, and second, whether the act in question constitutes a ’manifestation’. In Boffa and 13 others v San Marino, the Commission explicitly stated that vaccinations do not constitute an interference with the freedom of thought, conscience and religion, as ‘the term “practice” does not cover each and every act which is motivated or influenced by a religion or belief’.[130] Those acts must rather be central to the expression of a religion or belief.[131] The commission further emphasized that the obligation to be vaccinated in San Marino applied to everyone, regardless of religion. In Vavricka v Czeck Republic, in which three of the applicants also complained of an alleged violation of Article 9 ECHR, the Court cited the Commission’s reasoning in Boffa.[132] It also referred to the cases of Bayatyan v Armenia[133] and Pretty v the United Kingdom[134], again to emphasize that not every conviction entails the protection of Article 9 ECHR.[135] On the merits, the Court found the complaint inadmissible under Article 9 ECHR, as it did not find Mr Vavricka’s arguments to be coherent.[136]
However, the decision does not completely rule out addressing objections to potential compulsory vaccination schemes under Article 9 ECHR. On the contrary, it appears that, with a properly substantiated claim, the Court would have been willing to address the issue. However, it can be assumed that in cases where the persons affected by the measure themselves refuse medical treatment on the grounds of incompatibility with Article 9 ECHR, such as in Pretty, the court will nevertheless preferably decide on the basis of Article 8 ECHR, as it established that in these situations it considers the autonomy and self-determination of a person as primarily affected.[137]
4 To Justify or Not to Justify, that is the Question
As established above, compulsory vaccination
may interfere with Article 2 ECHR,
undeniably interferes with several aspects protected under Article 8 ECHR, and
may conceivably interfere with Article 9.
But these interferences only constitute violations if they cannot be justified. Whether and how an interference can be justified is determined by the respective fundamental right itself. For Article 2 ECHR it is provided in its paragraph 2 that killings (or threats to life) which are attributable to the state do not constitute a violation only if they occur in one of the following circumstances: first, in defense of any person from unlawful violence; second, in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or third, in action lawfully taken for the purpose of quelling a riot or insurrection.[138] But given that adequate safeguards are in place, compulsory vaccination does not constitute an interference with Article 2 ECHR. Without these safeguards, however, there would be a violation of Article 2 ECHR, since vaccinations cannot be attributed to any of the purposes provided for in Article 2 para (2) ECHR.
For Articles 8 and 9 ECHR, on the other hand, it must be examined whether the interferences caused by compulsory vaccination can be justified. The requirements thereto are found in the respective paragraphs (2) and are, in most parts, identical. Accordingly, an interference is justified if it is based on an appropriate legal basis (prescribed by law), pursues a legitimate aim and is necessary in a democratic society.[139]
The situation is somewhat different with regard to the possible positive obligations that may arise in the context of compulsory vaccination. When deciding whether a positive obligation exists, a ‘fair balance that has to be struck between the general interest of the community and the interests of the individual’.[140] While the considerations underlying the justification test, as applied to interferences with negative obligations, play a role in striking this balance,[141] it is no justification test. Therefore, if the state does not comply with an established positive obligation, this constitutes a violation.
4.1 How to Introduce Compulsory Vaccination
As far as the court’s examination of justification is concerned, the focus is clearly on whether the interference is ‘necessary in a democratic society’. The issue of whether the interference is ’prescribed by law’ and if it pursues a ’legitimate aim’ was treated as more of a formality in previous cases dealing with compulsory vaccination.[142] This shows, for example, in Solomakhin v Ukraine, where the Court answered these questions in one sentence only: ’The Court further notes that such interference was clearly provided by law and pursued the legitimate aim of the protection of health.’[143] Admittedly, the Court dealt with these two conditions at greater length in Vavricka v Czeck Republic than in Solomakhin v Ukraine – however, this was not due to any particular problems arising, but probably rather to the particular relevance of the case, of which the Court was seemingly aware, as indicated by some strikingly detailed elaborations in the judgment.[144]
To be considered ‘prescribed by law’ there must be an act attributable to the state that introduces the measure but there is no restriction to written laws.[145] Further, this act must meet formal and substantive requirements. Formally, it has to be enacted in accordance with the national legal order, ie by the competent organ and following the prescribed procedure.[146] There is no limitation to primary legislation, ‘legal acts and instruments of lesser rank’ can equally fulfil the requirement of ‘prescribed by law’.[147] Also, the content of this act must be ‘clear, foreseeable, […] adequately accessible’[148] and must be subject to mechanisms that preclude misuse.[149]
The ‘legitimate aims’ at least one of which a measure must further in order for it to be potentially justified are listed in the respective paragraphs 2 of Articles 8 and 9 ECHR.[150] Both, Article 8 and 9 ECHR allow interferences in the interest of ‘public safety’, the ‘protection of health or morals’ and ‘the protection of the rights and freedoms of others’; Article 8 further includes ‘national security’, ‘the economic well-being of the country’ and ‘the prevention of disorder or crime’.[151] In order to justify compulsory vaccination, several of the legitimate aims could be considered applicable. In addition to the ‘protection of the rights and freedoms of others’, the ‘protection of health’ is, unsurprisingly, particularly relevant. Since vaccinations against diseases, which are transmissible from one person to another, protect the individual, but also society,[152] the protection of health is affected in both its individual and societal dimension.[153] In the context of Article 8 ECHR, the legitimate aim of ‘prevention of disorder or crime’ would also be conceivable, if the intentional and/or negligent endangerment of others by communicable diseases is forbidden by law in the jurisdiction concerned.[154]
4.2 The Individual vs the Community
To determine if a measure can be considered ‘necessary in a democratic society’, the Court held that it must decide on ‘whether the interference complained of corresponded to a “pressing social need”, whether it was “proportionate to the legitimate aim pursued”, [and] whether the reasons given by the national authorities to justify it are “relevant and sufficient”.‘[155] Because the Court has repeatedly only found interferences with the right to respect for private life when it comes to compulsory vaccination, the following remarks are primarily related to Article 8 ECHR.
The requirements placed on the state when examining ‘necessity in a democratic society’ depend significantly on the margin of appreciation left to it. In Vavricka v Czeck Republic the Court gave a detailed assessment on the extend thereof with regard to compulsory vaccination. It emphasized that there is a consensus among Member States and specialized international bodies that the highest possible vaccination coverage should be pursued. But because there is no consensus on how this aim should be achieved and the Court considers that making vaccination a matter of legal duty can be regarded as raising sensitive ethical and moral issues, the margin of appreciation left to the states should be a wide one.[156]
By invoking the duty to protect the life and health of the population, arising from Articles 2 and 8 of the ECHR, and the duty to prevent infectious diseases as far as possible, that various international documents stipulate, the Court acknowledged decreasing vaccination rates as ‘a pressing social need’.[157] Further, it considered the goal of achieving the highest possible vaccination coverage rates as well as achieving herd immunity, if possible for the respective disease, as ‘relevant and sufficient’ reason for ordering compulsory vaccinations.[158]
When examining the necessity in a democratic society, however, the clear focus of the Court is on assessing proportionality.[159] Thereby, the Court examines whether the interests served, and the interests harmed by the measure at stake strike a fair balance.[160] Concerning compulsory vaccination, these interests are the state’s interest of promoting the health of the community and the individual’s interest not to have his/her rights interfered with.[161] Accordingly, a weighing of interests takes place, taking into account the relevant features of the vaccination scheme, such as the choice of sanctions, the existence of exemptions, procedural safeguards or the availability of compensation.[162] In Vavricka v Czeck Republic the Court did find the introduction of compulsory vaccination to be proportionate to the aim pursued. It held ‘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 practiced 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.’[163] Roughly speaking, compulsory vaccination is therefore permissible if the burden on the individual caused by compulsory vaccination is less severe than the burden on society without it.
One weakness of the judgment, which Judge Wojtyczek rightly complains about in his dissenting opinion,[164] however, is that the Court failed to address the individual vaccinations ordered. While the Court stated that the vaccines in question are considered ’standard and routine vaccination of children against diseases that are well known to medical science’, it does not refer to any other characteristics of the vaccines. As a result, the judgement is somewhat lacking in substance in that respect, even though one might eventually reach the same conclusion, namely that the compulsory order of all these vaccines is indeed proportionate. For example, the Court did not consider it necessary to distinguish between vaccinations that provide herd immunity and vaccinations that do not.[165] Vaccinations that only protect the individual were thus measured by the same standards as vaccinations that can protect the individual as well as society. While not to diminish the importance of protecting each individual child, these differences should be taken into account.
But the ability of a vaccine to achieve herd protection is not the only factor influencing proportionality. In the following, an overview of factors that can affect proportionality, while not presuming to be conclusive, shall be given. A separate assessment for each proposed compulsory vaccination must be carried out, as the individual factors may differ considerably.
Relevant factors[166] for determining whether the introduction of compulsory vaccination is proportionate are: First, the risks accompanying the vaccine[167] and the respective disease[168] have to be taken into consideration; these risks are, eg side effects, long-term consequences or death to be expected from the vaccination/the disease, as well as the probability of their occurrence. The more likely side effects and long-term consequences occur after a vaccination, the greater the weight of the interest of the person concerned in the non-execution. Here, in addition to the abstract risk of side effects, the individual risk of the person concerned (ie possible contraindications) must be taken into account.[169] Conversely, the higher the complication and death rate of the disease, especially in direct comparison to the complication and death rate of the vaccination offered, the greater the weight of the state’s interest in protecting health. In this context, reference must also be made to the probability of an infection with the disease in the absence of immunization, as the more contagious a disease is, the more weight is to be attached to its containment through a vaccination, for each infected person then contaminates several others.[170] Another important factor is the benefit to society[171] achieved by the intervention and the effectiveness of the vaccine. This is because the public interest in making vaccination compulsory weighs more heavily the more clearly the incidence of the disease can be reduced or if it could even be completely eradicated by vaccination. Finally, it is essential whether the disease is transmissible from person to person, for then there is a health risk that goes beyond the individual and can thus justify an interference with the right to self-determination on behalf of the protection of the community’s health.[172] Yet, compulsory vaccination for diseases that are not transmissible from person to person may be justifiable with regard to relieving the burden of hospitals in a health crisis. However, in order to actually endanger the health of the population through the avoidable burden on hospital capacities, these diseases would have to occur in very large numbers and require a stay in hospital with a high probability.
Accordingly, the question of proportionality is strongly dependent on the vaccinations that are to be included in this duty. Simplified, the order of compulsory vaccination would thus be proportionate if, on the one hand, the risk of side effects and consequential damage from vaccination is low and the vaccine is safe and effective, but, on the other hand, the risk of infection, complications and death in the course of the disease is high.
5 Conclusion
In conclusion, Article 2 ECHR does not prevent the introduction of compulsory vaccination, provided that measures are taken to prevent life-threatening risks. But if the vulnerable are only inadequately protected by voluntary vaccination schemes, it is conceivable that the positive obligation to protect the lives of those under the state’s jurisdiction may oblige the state to introduce compulsory vaccination and a failure to comply with said obligation would constitute a violation. Regarding Article 8 ECHR, compulsory vaccination as well as the negative consequences arising from the duty constitute an interference with its scope, in particular with the protection of one’s bodily integrity and self-determination. Further interferences with Article 8 ECHR are possible but depend on the details of the specific act introducing compulsory vaccination. According to the case law of the Commission and the Court, there are no interferences with the scope of Article 9 ECHR when introducing compulsory vaccination. While this may have been primarily due to the reasoning in these precedents, it is nevertheless unlikely that the Court will consider a separate issue under Article 9 ECHR in the near future.
Interferences with the scope of Article 8 ECHR, however, can be justified, provided that the benefit for the community outweighs the burden on the individual. This weighing is influenced by a multitude of factors which make it impossible to break down the answer to the question of whether compulsory vaccination is permissible or not to a simple ‘yes’ or ‘no’. Rather, it depends on the specifics of the vaccination scheme in question, in particular, the vaccinations covered by the duty, which must be assessed individually. Compulsory vaccination is hence conceivable for diseases that are particularly contagious and associated with considerable risks while the vaccine offered is safe and effective.
© 2021 Anja Krasser, published by De Gruyter, Berlin/Boston
This work is licensed under the Creative Commons Attribution 4.0 International License.
