Case Commentary ∵ Is Compulsory Childhood Vaccination Compatible with the Right to Respect for Private Life? A Comment on Vavřička and Others v. the Czech Republic

On 8 April 2021, the Grand Chamber of the European Court of Human Rights (the ECtHR or the Court) delivered its much-awaited judgement on compulsory childhood vaccination. In Vavřička and Others v. the Czech Republic, the Court examined for the first time the compatibility with the European Convention on Human Rights (ECHR or the Convention) of domestic systems requiring parents to vaccinate their children and imposing sanctions on those who fail to comply with this duty.1 In this judgement, the Court affirmed


Introduction
On 8 April 2021, the Grand Chamber of the European Court of Human Rights (the ECtHR or the Court) delivered its much-awaited judgement on compulsory childhood vaccination. In Vavřička and Others v. the Czech Republic, the Court examined for the first time the compatibility with the European Convention on Human Rights (ECHR or the Convention) of domestic systems requiring parents to vaccinate their children and imposing sanctions on those who fail to comply with this duty.1 In this judgement, the Court affirmed that compulsory vaccination, like any other involuntary medical intervention, interferes with the right to respect for private life within the meaning of Article 8 of the ECHR.2 In addition, the Court clarified that there might be a violation of the Convention even if no vaccination was administrated against the person's will, or, indeed, administrated at all. The mere duty to vaccinate in combination with sanctions for non-compliance constitutes an interference with the right to respect for private life.3 There is, however, no doubt about the Court's positive attitude towards vaccination. In what might be one of the most cited parts of the judgment, the Court holds that there is a general consensus among European states that "vaccination is one of the most successful and cost-effective health interventions" and that each state "should aim to achieve the highest possible level of vaccination among its population".4 To achieve this end, states enjoy -as we shall see -a (very) wide margin of appreciation.
The judgement comes at a time when questions about vaccination are highly topical. From the moment we learned that researchers had managed to develop vaccines against COVID-19, discussions on the permissibility of compulsory vaccination became topical. Vaccination promises a way out of lockdowns and social distancing towards some form of normality in which we may meet our friends, relatives, and colleagues again without putting their and our own health at risk. At the same time, many Europeans are sceptical towards vaccines in general, and the discussion about the pros and cons of vaccines is polarised in many countries.5 The unprecedented rapid development and approval of the vaccines against COVID-19 seem to have led larger groups to hesitate. Recent studies indicate that in Italy, Russia, Poland, and France, for example, the COVID-19 vaccination acceptance rates range between 50-60%, which may not be sufficient to achieve the level of population immunity (or 'herd immunity') that would enable governments in these countries to open up their societies again. 6 In this comment, I provide an analysis of significant legal aspects of Vavřička and Others and engage in a critical discussion with the Court's reasoning on the merits. Like some other scholars, I do not find the arguments put forward by the Court to be entirely convincing.7 More specifically, I will discuss the Court's choice to not assess whether the aim of the Czech vaccination policy could have been achieved by less restrictive means (Section 4.1) and its application of the consensus doctrine (Section 4.2). This commentary ends, in Section 5, with a few remarks on the implications of this judgement on domestic policies concerning vaccination against COVID-19.

A Brief Overview of the Facts
In the Czech Republic, permanent residents and all foreigners authorised to reside in the country on a long-term basis are required to undergo a set of routine vaccinations.

The Justification
The Court noted that the duty to vaccinate as well as the sanctions for noncompliance with this duty were prescribed by Czech law why the first criterion of the justification test was met.22 The Court also recognised that the Czech vaccination policy served a legitimate purpose, namely to protect the health of those who receive the vaccine as well as others, in particular those who cannot vaccinate for medical reasons but who benefit from the protection provided by the maintenance of a sufficient level of vaccination within the society at large.23 The policy thus complied with the second criterion of the justification test. The last criterion, that is, whether the policy could be said to be necessary for a democratic society, was more complex to assess and take up the lion's share of the Court's legal analysis.
The applicants' main objections concerned the necessity and reasonableness of the vaccination policy. More specifically, they questioned the integrity of the policy-making process behind the system and its institutional arrangements. There had been no proper public debate about these matters, and the authorities and expert bodies involved in the process were sponsored by pharmaceutical corporations.24 In addition, the applicants challenged the effectiveness of the system. They disputed the effectiveness of some of the prescribed vaccines and that non-vaccination had a very negative impact on public health.25 They also held that a voluntary vaccination model would be more efficient than the current compulsory system.26 This claim gained support from the third-party intervention by Rozalio, a Czech organisation made up 19 Ibid., paras 192 and 261. 20 Ibid., paras 263-264. 21 Article 8(2), ECHR. 22 Vavřička and Others, supra note 2, paras 267 and 271. 23 Ibid., para. 272. 24 Ibid., paras 175 and 177. 25 Ibid., para. 177. See also paras 152-153. 26 Ibid., para. 185.

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European Journal of Health Law 28 (2021) 323-340 of parents advocating free choice to vaccination. According to Rozalio, there was empirical data showing that repressive measures are counterproductive, leading to increased levels of mistrust and decreased vaccination rates.27 Moreover, the applicants held that there are less intrusive means to protect preschool children who cannot vaccinate for health-related reasons. For example, unvaccinated children could be permitted to attend preschool under ordinary circumstances and excluded from such establishments in the event of a threatened or actual outbreak of a serious contagious disease.28 Their complaint also pointed to the magnitude of the harms brought about by the Czech system. Vaccination entails a real risk of adverse effects on health, including long term effects.29 Requiring parents to take such risks with their children's health constituted a serious interference with their right to care for their children. Furthermore, the exclusion of the children from preschool had not only put them at a significant disadvantage in their subsequent education, but it had also affected their families both socially and financially as they had had to provide childcare by their own means.30 The respondent government rejected the applicants' criticism that the vaccination scheme suffered from undue influences from pharmaceutical companies and was not based on scientific data. The scope of the vaccination duty was determined by the government on the basis of serological surveys and after recommendations from its advisory board of epidemiologists and the National Immunisation Commission (NIC).31 Expert meetings within the NIC begin with each of its members declaring any conflicts of interests. Regarding the safety and effectiveness of the system, the government maintained that experience showed that the policy under review had been successful and underscored that all relevant Czech expert societies were in favour of preserving it.32 Vaccine hesitancy has become a serious problem. Making vaccination compulsory was a natural response, which had improved vaccination rates.33 Regarding the risks and burdens attached to the vaccination duty, the government sustained that they are reasonable. Vaccination takes place after a check-up for medical contraindications and is free of charge. Parents retain a certain leeway in selecting the vaccines to be used and the relevant 27 Ibid., para. 241. 28 Ibid., para. 184. 29 Ibid., paras 177 and 299. 30 Ibid., para. 178. 31 Ibid., para. 200. 32 Ibid., para. 203. 33 Ibid., para. 197.
dates within a defined period for vaccination.34 In addition, the sanctions for non-compliance with the duty were limited to an administrative fine that could only be imposed once and the exclusion from preschool.35 The risk of serious side-effects following vaccination was very low. Out of approximately 100,000 children vaccinated annually, no more than six incidents of life-long health consequences were reported per year.36 The ECtHR divided its assessment into three sub-questions: (1) does the policy answer to a "pressing social need"?; (2) is it "relevant and sufficient" in view of its aim?; and (3) is it proportionate to its aim?37 Before engaging with these questions, the Court asserted that it is for the national authorities to make the initial assessment of these matters and that, in this case, the Czech authorities enjoyed a wide margin of appreciation when making these assessments.38 Such deference was motivated by the subsidiary role of the Convention system. National authorities have democratic legitimation and direct knowledge of local circumstances, traditions, and legal cultures; they are thus 'better placed' to initially assess the merits of the policy under review.39 Granting domestic authorities a wide margin of appreciation was further justified by the fact that none of the applicants had been vaccinated against their will, which implied a less-serious interference with Article 8.40 In addition, there was a general consensus among states parties about the importance of maintaining a high level of vaccination among its population, but no agreement over the best means to facilitate such widespread vaccination.41 The Court was confident that the Czech policy answered a pressing social need and put forward two main reasons to support its conclusion. First, the Court acknowledged that states are under a positive obligation, by virtue of Articles 2 and 8 of the Convention, to take appropriate measures to protect 34 Ibid., paras 202-203. Only the standard vaccines are, however, free of charge; the cost of other products rests with the parents. See paras 16 and 77. 35 Ibid., paras 193 and 199. 36 Ibid., para. 207. 37 Ibid., para. 273. 38 Ibid., para. 280. 39 Ibid., para. 273. 40 Ibid., para. 276. As pointed out by the dissenting judge Wojtyczek, the system most likely accepts parents to use physical force to hold their small children in case they resist the needle. A discussion of why such use of force by a parent constitutes a less serious interference with the bodily integrity of the child would have been clarifying. Dissenting opinion of Judge Wojtyczek, para. 12. 41 Vavřička and Others, supra note 2, paras 277-278. I discuss the Court's application of its consensus doctrine further in section 4.2.

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European Journal of Health Law 28 (2021) 323-340 the life and health of those within their jurisdiction.42 Second, the Court pointed to the agreement among domestic expert authorities that childhood vaccination should remain a legal duty.43 The Court then proceeded to consider whether the use of compulsion was supported by relevant and sufficient reasons. Here, the Court focused on whether the Czech policy complied with the principle of the best interests of the child. When it comes to immunisation, the Court argued, the aim should be to protect every child against serious diseases.44 Because some children are dependent on population immunity for their protection, the Court held, states may reasonably -"in the name of social solidarity" -introduce compulsory vaccination systems in situations in which voluntary systems are not sufficient to achieve and maintain such immunity. Without further argument, the Court extended this conclusion and held that the sanctions attached to the vaccination duty were supported by relevant and sufficient reasons.45 The last prong of the Court's assessment consisted of a proportionality test, in which the reasons in favour of and against the policy under review are balanced against each other. A number of factors were taken into account, including the scope of the vaccination duty, the safety and effectiveness of the vaccine, the severity of the sanctions, access to procedural safeguards, the integrity of the system and the political process behind it. Starting with the scope of the vaccination duty, the Court noted that the duty concerned nine diseases against which vaccination is considered effective and safe by the scientific community.46 It recognised that in rare cases, vaccination causes serious and lasting damage to the health of the person concerned, which calls for individual examinations for contraindications before vaccination and for general monitoring of adverse effects. The Court saw, however, no reason to question the adequacy of the domestic system on these matters.47 Regarding the sanctions, the Court considered them to be relatively moderate. Mr Vavřička had been fined approximately EUR 110 for his failure to vaccinate his two children. The amount was towards the lower end of the domestic 42 Ibid., para. 282. 43 Ibid., para. 283. 44 Ibid scale and could only be imposed once. According to the Court, such a sanction cannot be considered as unduly harsh or onerous.48 The Court accepted that the exclusion of the child applicants from preschool had deprived them of an important opportunity to develop their personality and acquire important social and learning skills in a pedagogical environment.49 Their loss was, however, a direct consequence of their parents' choices and the children were not deprived of all possibilities of personal development. The parents may still, at their own expense, provide a good learning environment for their children.
In addition, the sanction concerned preschool and did not apply to primary school. What is more, children who cannot be vaccinated for medical reasons would be deprived of their opportunity to go to preschool if the vaccination rate among the other preschool children drops. Against this background, the Court concludes that it cannot be regarded as disproportionate for a state to compel those for whom vaccination represents a little risk to health to accept this duty.50 Concerning procedural safeguards, the Court noted that the sanctions have been subject to administrative and judicial review, including constitutional review by the Czech Constitutional Court.51 The Court found no reason to doubt the quality of these proceedings. Neither did the Court find sufficient reason to criticise the Czech system for lack of transparency, professionalism, or political legitimacy.52 Ultimately, the Court concluded that there had been no violation of Article 8.53

4
Two critical comments

Proportionality and the Least Restrictive Means Rule
The most interesting part of the Vavřička judgement is certainly the Court's proportionality assessment (paras 290-309). There are several ways to structure such assessments, and the Court has used slightly different versions in its jurisprudence.54 Occasionally, the assessment has included a "least restrictive 48 Ibid., paras 293 and 304. 49 Ibid., para. 306-307. 50 Ibid., para. 306. 51 Ibid., para. 295. 52 Ibid., paras 296-298. 53 Ibid., para. 311. 54 Janneke means" criterion.55 In a case concerning tax implications of failure to perform mandatory military service, for example, the Court held that "in order for a measure to be considered proportionate […] there must be no other means of achieving the same end that would interfere less seriously with the fundamental right concerned".56 In Vavřička and Others, the Court chose not to apply the least restrictive means criterion. This despite the fact that one of the applicants' main objections against the Czech system was that a voluntary vaccination model would be just as efficient, if not more efficient, to maintain population immunity and that there are less intrusive means to protect the preschool children who cannot vaccinate for health-related reasons than to exclude children like the applicants from preschool altogether.57 The exclusion of unvaccinated children from nurseries could have been restricted to situations of real risk or actual outbreaks of serious contagious diseases. The Court rejected these arguments without much consideration. Discussing the proportionality of excluding the child applicants from preschool, the Court held that "the notional availability of less intrusive means" does not detract the Court from its finding that exclusion from preschool was proportionate.58 Moreover, at the end of its proportionality assessment, the Court made the following clarification: The Court would clarify that, ultimately, the issue to be determined is not whether a different, less prescriptive policy might have been adopted, as has been done in some other European States. Rather, it is whether, in striking the particular balance that they did, the Czech authorities remained within their wide margin of appreciation in this area.59 Although similar reasoning is to be found elsewhere in the Court's jurisprudence, I find this argument hard to accept. to achieve the aim behind the policy. If this aim can be achieved by two or more equally effective means, then the policy that interferes the least with a rights norm must be chosen.61 The rule has an intuitive appeal. Interferences with human rights norms require justification; if a public interest can be protected without interfering with the norm in question, then what reasons do we have to accept an infringement? Moreover, a least restrictive means rule, such as the one outlined here, is part and parcel of public health ethics about vaccination.62 Respect for autonomy and protection of public health are not only human rights norms; they are also principles of biomedical ethics. In situations of conflict, these principles are to be balanced against each other, and when making such balances in the context of vaccination, decision-makers should adopt the policy that guarantees population immunity and, at the same time, interferes the least with personal autonomy and liberty.63 Respect for autonomy thus serves as a tie-breaker between alternative vaccination policies with the same expected utility. What constitutes the least restrictive alternative will, of course, depend on the purpose of a vaccination policy. Typically, such policies aim to achieve and maintain population immunity. It is, however, conceivable that a vaccination policy does not only seek to achieve immunity but also to ensure a fair distribution of the burdens of vaccination. In Vavřička and Others, the Czech government contented that vaccination is "a social benefit calling for shared responsibility" and that solidarity requires each individual to assume a minimum risk in order to protect public health.64 As outlined above, the Court accepted this line of reasoning. 65 If we posit that the Czech policy also aimed for a fair distribution of burdens of vaccination, then the argument could be made that the least restrictive policy that would achieve both population immunity and a fair distribution of the burdens involved is compulsory vaccination, in the same way as compulsory taxation is the least restrictive policy that can ensure that everybody makes a fair economic contribution to public goods and services.66 The solidarity argument, of course, only applies in Nilsson European Journal of Health Law 28 (2021) 323-340 relation to contagious diseases. In Vavřička and Others, most but not all vaccines covered by the vaccination duty were such that they spread directly from one person to another.67 A justification of compulsory child vaccination against non-communicable diseases, such as for example tetanus (lockjaw), has to draw on paternalistic arguments about the child's best interest. In the bioethical debate, Giubilini and Savulescu have compared compulsory vaccination to mandatory seat belt use in motor vehicles and argued that compulsory vaccination is ethically justified for the same reasons why seat belt laws are ethically justified.68 Seat belts reduce the risk of death significantly if you are involved in a car accident. Seat belts also cause injuries to the neck, chest, and stomach, and in rare cases, such injuries require surgery. Seat belts may even increase the risk of death following a car accident if, for example, the car caught on fire or is sinking in the sea. Still, the chances of benefitting from seat belts greatly outweigh these risks, which is why most countries require parents to buckle up their children in their cars and, in the case of very young children, to use specific car equipment that is suitable for small children. To comply with the least restrictive means criterion, compulsory vaccination that aims to protect the child who receives the vaccine, states would have to show that there are no less intrusive ways to provide the same kind of protection afforded by the vaccine to the children covered by the duty to vaccinate. My discussion here serves to illustrate that an application of the least restrictive means criterion would not necessarily have led to a different outcome in the Vavřička case, but it would have contributed to a more convincing justification of the Court's conclusion.

4.2
Consensus and Discretion In Vavřička and Others, the Court grants the Czech government a wide margin of appreciation to strike a balance between the rights and interests at stake. The absence of a consensus among states about the best way to ensure population immunity is one important reason behind this deference.69 Much criticism has been levelled at the Court's consensus-doctrine, including critique about the lack of a clear definition of "consensus" and of the Court's application of the doctrine.70 Whilst such criticism is relevant for the Vavřička case, I want to discuss the relationship between consensus arguments, state discretion and the fact that our knowledge of how well a policy serves its aim(s) is often uncertain. In Section 4.1, I argued that the Court should have applied the least restrictive means criterion. If we accept this position, then the Court should have discussed the effectiveness of the system, considered alternative ways to achieve its aim(s), and compared their utility. The very fact that there is no consensus among states about the most effective way to ensure population immunity would not release the Court from this task. More interesting would have been to consider whether there was any consensus within the scientific community on this matter. Suppose that there would be a large agreement among vaccination experts about the limited effectiveness of compulsory vaccination to overcome vaccination hesitancy based on mistrust against the government. Under such conditions, states could hardly be permitted to ignore such information and maintain ineffective policies that interfere with human rights norms. If, on the other hand, we assume that knowledge about whether compulsory vaccination outperforms voluntary approaches is uncertain, then it makes sense to grant states discretion to choose the policy they believe fits their context. The Court has, on occasion, reasoned along these lines, but not in Vavřička and Others.71 The government may certainly be correct when stating that compulsory vaccination has improved vaccination coverage in the country.72 But the judgement does not inform us of any evidence supporting this proposition, apart from a document in which Czech expert bodies expressed their support for a mandatory system.73 The third-party intervener Rozalio contested the government's position and held that verifiable data showed that repressive policies trigger mistrust and correspond to decreasing vaccination rates. Vavřička and Others, supra note 2, para. 197. 73 Ibid., paras 152-153. 74 Ibid., paras 241 Unfortunately, the ruling does not provide any details about this data either. If we look beyond the judgement, there are studies from other countries demonstrating that the introduction of compulsory vaccination has a positive impact on vaccination rates. 75 The reliability of these studies is, however, rather weak, and most studies concern high-income states in the USA, so their relevance for the Czech context could be discussed.76 Moreover, compulsory systems do not seem to convince resolute vaccine objectors but rather give rise to resentment and mistrust.77 Studies of why parents reject certain vaccines or decline vaccination altogether show that several factors influence parents' decisions.78 Though safety concerns seem to be a key factor affecting parents' choices in relation to all childhood vaccines, the precise impact of various factors differs between vaccines and domestic contexts. The MMR (measles, mumps, and rubella) vaccine has, for example, been particularly controversial, perhaps because of Wakefield and colleagues now-discredited study linking the MMR vaccine to autism. 79 The fact that many factors influence vaccine hesitancy points to the importance of understanding the main drivers behind vaccine rejections in the specific domestic context in order to tailor the response. I find it unfortunate that the Court did not discuss these issues in more detail in judgement or, at least, explained why such a discussion is unnecessary to determine the case. An appreciation of the added value of compelling people to vaccinate their children in terms of its impact on vaccination rates and the prospect of securing population immunity is not only important to determine whether the least restrictive means criterion has been met. It is also relevant to the proportionality assessment in which the additional health protection brought about by the duty to vaccinate is balanced against its interference with respect for bodily integrity and freedom of choice.

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The Implications of this Judgement on Vaccination Against COVID-19 In the very first sentence of its reasoning on the merits, the Court made clear that we should not interpret the Vavřička case as a precedent for compulsory vaccination against COVID-19. This case, the Court held, "relates to the standard and routine vaccination of children against diseases that are well known to medical science".80 Whilst this precautionary statement is appropriate, the judgement's relevance for vaccination against COVID-19 cannot be ignored. As noted in the introduction of this commentary, this case adds to previous jurisprudence on vaccination by clarifying that the imposition of fines on those who fail to comply with a duty to vaccinate as well as the exclusion of unvaccinated children from nursery schools constitutes an interference with Article 8 on its own.81 This is obviously of interest to European governments considering different strategies to encourage people to have the jab that includes sanctions. Another difference between the Czech policy under review in Vavřička and Others and current initiatives to boost vaccination against COVID-19 is that the Czech policy concerned vaccination of children, whereas adults are currently the main target group for vaccination against COVID-19. In the former case, the conflict of rights and interests at stake is that between the parents' right to make decisions on behalf of their children and the state's interest to protect public health, including the health of these children. The situation of an adult declining vaccination is slightly different, at least if he or she has been adequately informed of the risks and consequences and possess the capacity to make a voluntary decision in light of such information. This is a clear-cut example of a conflict between the right to personal self-determination and the protection of public health. Whether, and if so, how, this distinction ought to affect our argumentation under Article 8 remains to be seen. The matter is not addressed in the Vavřička case.
In Vavřička and Others, the Court discussed the different factors that need to be taken into account when assessing the proportionality of compulsory vaccination in much more detail than it has done in its previous jurisprudence on vaccination.84 To comply with the ECHR, compulsory vaccination policies must, first of all, benefit those who are to be vaccinated and only cover vaccines that are considered effective and safe by the scientific community. At present, this excludes compulsory vaccination of children against COVID-19 as currently available vaccines against this disease are only considered to be safe for adults. A vaccine for children and adolescents is, however, getting closer. 85 If it becomes available, due consideration must be given to the fact that children infected with COVID-19 typically experience mild symptoms and death rates are very low.86 Our knowledge about the long-term effects of COVID, i.e., persistent fatigue, headache, cognitive impairment, gastrointestinal problems, to name some such effects, is still in its infancy, though.87 Nevertheless, the Vavřička case concerned vaccination against viruses that children are clearly at increased risk of getting infected by and becoming seriously ill from, like measles and poliomyelitis. As pointed out by the dissenting judge Wojtyczek, communicable diseases differ from each other in various respects, so that a proportionality assessment of a vaccination duty must be conducted on a 'disease-by-disease basis' .88 Second, the ECHR requires that vaccination is not administered with force, that persons with medical contraindications are exempted from the duty to vaccinate, and that each vaccination is preceded by a medical check-up for fitness. As noted above, the Court did not go into detail regarding the latter in Vavřička and Others, despite arguments from the applicant that the system was flawed and notwithstanding the fact that the government could not produce one example where a child had been exempted from the duty to vaccinate for health-related reasons.89 In view of the importance of such safety measures, I find this unfortunate. Third, there must be a system in place to follow-up and monitor adverse effects. Meticulous monitoring of the safety of the vaccines in use is arguably even more important in relation to vaccination against COVID-19 as all the vaccines are new. Transparency about new adverse effects and how such information affects vaccination policies will be important to build up confidence in the vaccines and domestic authorities. Of greatest concern to those wary of one, several, or all of the vaccines against COVID-19 is fear of side effects.90 Distrust is more common among ethnic minorities and marginalised groups, which may have a good reason, at least from a historical perspective, to doubt public authorities and the healthcare system. Additionally, the unprecedented rapid development and approval of the vaccine seem to have led larger groups to hesitate.91 Fourth, the sanctions for non-compliance with the vaccination duty must not be too burdensome. The Vavřička case informs us that a fine of 110 Euros is moderate in the Czech context and that exclusion from preschool can be reasonable.92 What constitutes acceptable sanctions and how they are to be distinguished from excessive ones is not discussed in general terms by the Court. The fifth factor to consider is whether the domestic system provides compensation for health injuries caused by vaccination, though this issue was not given any decisive significance in the Vavřička case.93 Preferably, compensation should be available on a no-fault or strict liability basis. Last but not least, states must ensure the domestic system is accompanied by procedural safeguards to minimise the risk of abuse and to enable individuals to appeal any sanctions imposed on them for non-compliance with the duty to vaccinate. As the discussion above illustrates, the lawfulness of vaccination strategies that interfere with Article 8 of the ECHR will, in many cases, hinge on a contextual balancing of the rights and interests at stake. In Vavřička and Others, the Court certainly did not give the go-ahead to compulsory vaccination against COVID-19, but neither did it close the door to such policies.