The European Court of Human Rights has ruled by a majority of 16 to 1 that compulsory vaccinations for children are legal and sometimes “necessary in a democratic society”.
This case commenced before the Covid-19 pandemic came into existence but is expected to embolden governments who are considering introducing vaccine certificates or passports to help societies to return to normal behaviour and interaction notwithstanding the Covid 19 problem.
The background to this case is set in the Czech Republic. Several families had children refused admission to nursery school because the children had not been vaccinated against a range of 9 diseases including poliomyelitis, hepatitis B, tetanus, measles, mumps, rubella, diphtheria, whooping cough and pneumococcal infections.
The families argued that compulsory vaccination offended their right to respect for life as set out in Article 8 of the European Convention on Human Rights.
However, 16 of the 17 judges rejected this argument and held that “the measures could be regarded as being necessary in a democratic society”.
The Court held that children to whom treatment could not be administered were indirectly protected against contagious diseases from so called herd immunity, provided a sufficient level of vaccination was achieved in their community.
The case is AVŘIČKA AND OTHERS v. THE CZECH REPUBLIC (Applications nos. 47621/13 and 5 others) and the first applicant was fined for failure to have his two children vaccinated. The other applicants had children who were refused access to nursery school for the same reason.
The policy pursued in the Czech Republic had the legitimate aims of protecting health and the rights of others and those who receive the vaccinations and those who do not receive it are protected against contagious diseases by herd immunity as a consequence, according to the Court.
The judgment emphasises that all decisions regarding children must be taken in what is in the best interest of the child. The Czech Republic policy was, therefore, consistent with protecting children against contagious diseases.
The Court also considered the proportionality of the policy and held that it was proportionate in the pursuit of legitimate aims pursued by the Czech State. It recognised that the state had a wide margin of appreciation in this area and decided that the challenged measures could be regarded as “necessary in a democratic society”.
Th court also noted that the fine imposed was not excessive and when the children reached the age of mandatory school attendance their admission to primary school had not been affected by their vaccination status.