1. Charter of Fundamental Rights and Freedoms (Constitutional Law no.2/1993 Coll.)

65. In so far as relevant, Article 4 provides:

66.Pursuant to Article 7 § 1:

67. The relevant part of Article 15 § 1 reads as follows:

68. Under Article 16 § 1:

69.Article 31 provides that:

70. As to the scope of the second sentence of Article 31, the Constitutional Court held (constitutional judgment of 10 July 1996, published in the Collection of Laws under no. 206/1996) that its content is limited to what is covered by public insurance, which in turn depends on the amount of the insurance premiums collected. All of the relevant Chapter of the Charter depends on the economic and social level achieved by the State and the attendant standard of living.

71. Under Article 33 § 1:

72. Pursuant to the relevant part of Article 41 § 1;

2. Public Health Protection Act (Law no. 258/2000 Coll., as amended)

73. This legislation sets out the general framework for vaccination, defining its purpose, personal scope, vaccine types, the conditions for administering vaccination as well as for assessing immunity, and other matters. Section 46(1) and (6) provides for the adoption by the Ministry of Health of implementing measures, regulating in greater detail matters such as the classification of vaccines, the timing of injections and other conditions for the administration of vaccinations, and methods for checking immunity (see below). Moreover, it provides that day-care facilities for children up to the age of three and other types of preschool facilities (i.e. those that receive children until the school year following the date on which they reach the age of six) may only accept children who have received the required vaccinations, or who have been certified as having acquired immunity by other means or as being unable to undergo vaccination due to a permanent contraindication (section 50).

3. Decree on Vaccination against Infectious Diseases

74. As provided for in the PHP Act, the Ministry adopted the Decree on Vaccination against Infectious Diseases. In the period under consideration in the present case, there were two successive Decrees in force: Decree no. 439/2000 Coll., as amended, until 31 December 2006, replaced by Decree no. 537/2006 Coll., as amended, from 1 January 2007 onwards. Since the provisions that are relevant to the present case are essentially identical in both instruments, further references to the Decree in this judgment mean the 2006 Decree, unless otherwise indicated.

75. The Decree determines the classification of vaccinations, the conditions for the administration of vaccines and the methods for examining immunity (section 1 (a)).

76. It defines the scope of compulsory vaccination as comprising vaccination against diphtheria, tetanus, whooping cough (pertussis), Haemophilus influenzae type b infections, poliomyelitis, hepatitis B, measles, mumps, rubella and – for children with specified health indications – pneumococcal infections (sections 4, 5 and 6).

77. The Decree also defines the sequence in which the vaccinations are to be administered, normally starting from the ninth week after birth, with at least two months between the first two rounds of vaccination and the third round being administered between the ages of eleven and thirteen months (sections 4 and 5). In the case of some illnesses, initial vaccination (section 2(2)(a)) is to be followed by booster vaccination (section 2(2)(b)).

4. Pharmaceutical Drugs and Medications Act (Law no. 378/2007 Coll.)

78. Sections 25 to 50 regulate the registration of pharmaceutical drugs, including vaccines, by the State Agency for Drug Control.

79. Under section 93b(1), all doctors, dentists and other health care workers have to report to the above Agency any suspected serious or unexpected side-effects of pharmaceutical drugs, on pain of a fine of up to CZK 300,000 pursuant to section 108(7) (currently equivalent to some EUR 11,350).

5. Education Act (Law no. 561/2004 Coll., as amended)

80. Section 33 defines the aim of preschool education as being to support the development of the personality of the child of preschool age. Such education plays a role in the healthy emotional, intellectual and physical development of children, in their acquisition of basic rules of conduct and fundamental life values, and in their developing of interpersonal relations. Preschool education provides the basic preconditions for continuing with education. It assists in equalising differences in the development of children before entering basic education and provides adapted pedagogical care to children with special educational needs.

81. Section 34(1) provides that preschool education is organised for children who are generally aged from three to six, but not younger than two. A child younger than two is not entitled to admission to nursery school. This provision was amended with effect from 1 September 2017, making preschool education mandatory from the beginning of the school year following the child's fifth birthday until the beginning of mandatory school attendance. Paragraph 5 of this section includes among the conditions for school admission the vaccination requirement under section 50 of the PHP Act (see paragraph 73 above).

82. Under section 36(3), mandatory school attendance commences at the beginning of the school year following the date on which the child reaches the age of six, unless the child is granted a postponement.

6. Minor Offences Act (Law no. 200/1990 Coll., as amended)

83. At the relevant time, section 29(1)(f), dealing with minor offences in the area of health care, made it a minor offence punishable by a fine of up to the equivalent of some EUR 400 (subsection 2) to fail to discharge a duty imposed in order to prevent the occurrence or spread of infectious diseases.

7. Compensation for Health Damage due to Compulsory Vaccination Act (Law no. 116/2020 Coll.)

84. The Act entered into force on 8 April 2020. It provides for strict liability on the part of the State for damage to health due to compulsory vaccination (section 1). Such compensation is provided for in the event of a particularly grave injury to the health (zvlášť závažné ublížení na zdraví) of the vaccinated person and in respect of suffering, loss of income, impairment of one's ability to be useful in society (ztížení společenského uplatnění), expenses in respect of the medical care of the vaccinated person, and care for his or her person and his or her household (section 2). The Act provides for an irreversible presumption of a causal connection between the vaccination and the symptoms appearing after the vaccination, in so far as such symptoms are recognised – in secondary legislation yet to be adopted – as likely consequences of the given vaccine (sections 3 and 8).

1. SAC case-law

85. In judgment no. 3 Ads 42/2010 of 21 July 2010, an ordinary chamber of the SAC held that the 2000 Ministerial Decree exceeded the permissible limits in that it regulated matters that were reserved to the legislature. It held that, as a result of the very general wording of section 46(1) of the PHP Act, the 2000 Ministerial Decree provided for primary rights and duties beyond the limits fixed by the law. Accordingly, the court quashed an administrative decision imposing a fine on parents for failure to comply with their vaccination duty in relation to their children.

86. This opinion was, however, overruled by an extended chamber of that court in a decision of 3 April 2012 (no. 8 As 6/2011) in the case of the applicant Novotná. In particular, the extended chamber found as follows:

87. A situation in which primary duties were provided for by law (i.e. by an Act of Parliament) and clarified by secondary legislation within the limits set by that law was compatible with Article 4 § 2 of the Charter. With regard to Article 26 § 1 of the Oviedo Convention, it was similar to Articles 8-11 of the European Convention on Human Rights. In the European Court's case-law, the term “prescribed by law” used in those provisions was interpreted in the substantive sense, so as to include not only a legislative act by a Parliament, but also any accessible and foreseeable legal rule. None of those provisions thus prevented the finer points of the vaccination duty from being regulated by an implementing instrument, provided that this was done on the basis of the law and within its limits. In the present case, the PHP Act provided for a sufficiently clear and precise framework, placing a duty, in a valid and specific manner, on certain groups of individuals to undergo vaccination after having undergone an immunity test. Although it did not define them, section 46 nonetheless brought out the fundamental meaning of the words “valid and specific vaccination”. The 2000 Ministerial Decree then specified the types of illnesses, the timetable and other details of the vaccination process. Such a legislative approach made it possible to react with flexibility to a given epidemiological situation and to developments in medical science and pharmacology. However, it did not prevent the limitations on fundamental rights provided for in the Ministerial Decree from being subjected, in specific cases, to an assessment of proportionality by the courts.

88. In judgment no. 4 As 2/2011 of 25 April 2012, the SAC pointed out, inter alia, that unlike for the MMR vaccination, the 2006 Ministerial Decree set out legally binding deadlines and age limits for compliance with the vaccination duty in respect of initiation of the primary immunisation series and/or booster doses for diphtheria, tetanus, whooping cough, poliomyelitis, hepatitis B and Haemophilus influenzae type b vaccination (under section 4(1) the last dose of the hexavalent vaccine was to be administered before the age of 18 months). It was therefore an error-free and complete legal norm (perfektní právní norma), i.e. non-compliance with it could entail a penalty under the MO Act.

89. In judgment no. 8 As 20/2012 of 29 March 2013, the SAC noted, with regard to the exceptional circumstances capable of outweighing the need for protection of public health within the meaning of the Vavřička jurisprudence (see paragraph 28 above), that the appellant was not alleging, for example, that submitting to the vaccination would compromise his status, or that of his parents, were they to be members of a religious community, or that it would otherwise prevent them from manifesting their beliefs. A different opinion on the part of the appellant's parents was not sufficient. The vaccination duty pursued a legitimate aim, that of the protection of public health, which outweighed the different views of the parents of the children concerned. While everyone had the right to hold an opinion and to express it freely (Articles 15 and 16 of the Charter), this did not authorise, in a democratic State governed by the rule of law, non-compliance with the regulations in force. A failure to comply entailed the consequences provided for by law.

2. Case-law of the Constitutional Court

1. France

95. In case no. 2015-458 QPC, the Constitutional Council considered a request from the Court of Cassation for a preliminary ruling on the constitutionality of certain provisions of the Public Health Code. Those provisions related to compulsory vaccination against diphtheria, tetanus and poliomyelitis for minor children under the responsibility of their parents. The applicants in the original proceedings claimed that the compulsory vaccinations could entail a health risk, in breach of the constitutional requirement of health protection.

96. In a decision of 20 March 2015, the Constitutional Council ruled that the provisions in question were in conformity with the Constitution. It observed that, by making the given vaccinations compulsory, the legislature had intended to combat three diseases that were very serious and contagious or could not be eradicated. In doing so, it had made each of these vaccinations compulsory only on condition of there being no known medical contraindication.

97. The Constitutional Council ruled that the legislature was free to shape a vaccination policy to protect individual and public health. It was not for the Constitutional Council, which did not enjoy the same general power of assessment and decision-making as Parliament, to call into question the provisions enacted by the legislator, having regard to the state of scientific knowledge, or to seek to establish whether the objective of health protection set by the legislature might have been attained by other means, since the arrangements provided for by the law were not manifestly inappropriate to the objective pursued.

2. Hungary

98. In a constitutional judgment of 20 June 2007 in.case no. 39/2007, the Constitutional Court examined a petition lodged by a married couple who were refusing to have their child vaccinated, and who had challenged the constitutionality of the 1997 Health Act providing for compulsory vaccination. A failure to comply warranted an administrative order for the given vaccine to be carried out, the order being directly enforceable, regardless of any appeal.

99. The court found, inter alia, that the protection of children's health justified compulsory vaccination at certain ages and accepted the legislature's position, based on scientific knowledge, that the benefits of vaccination for both the individual and society outweighed any possible harm due to side-effects. The system of compulsory vaccination thus did not contravene children's right to physical integrity. At the same time, the court acknowledged that the system of compulsory vaccination might result in more significant harm for parents who, for reasons of religious conviction or conscience, did not agree with vaccination. The regulation was however in accordance with the requirements of the neutrality of the State. The legal norms in question, being binding on everybody and protecting the health of the children concerned, all other children, and in fact society as a whole, were based on postulates of the natural sciences, rather than the acceptance of the truth content of different ideologies.

100. However, there had been an unconstitutional omission to legislate, as the legislature had failed to provide an effective legal remedy against the refusal of exemptions from compulsory vaccination. In particular, the statutory provision permitting the immediate enforcement of an order for vaccination, with no recourse to any legal remedy, was unconstitutional and accordingly repealed.

3. North Macedonia

101. In case no. U.Br. 30/2014 the Constitutional Court reviewed the constitutionality of certain statutory provisions pertaining to the compulsory vaccination of children and the consequences of non-compliance with it. The legislation in question provided for the compulsory vaccination of all persons of a certain age against tuberculosis, diphtheria, tetanus, whooping cough, polio, measles, mumps, rubella, Haemophilus influenzae type b infections and hepatitis B. In its judgment of 8 October 2014, the court held, inter alia, as follows.

102. Mandatory vaccination could not be called into question with regard to the constitutional provisions on the rights and duties of citizens in relation to the protection and promotion of their own health and that of others. Neither could it be questioned with regard to the provisions on the right and duty of parents to take care of and raise their children. A refusal of a vaccination by the parents not only endangered the health of their children, but also the health of other persons who had not been vaccinated on account of medical contraindications, and it thus denied them the right to a healthy life.

103. In order to safeguard the health of the child and the child's right to health, which was subject to a special level of protection, it was justified to deny the parents’ freedom to refuse vaccination, since the right of the child to health prevailed over the parents’ right to choose.

104. Moreover, the legislature was not prevented from regulating penal policy in respect of a breach of the vaccination duty by making it punishable by a fine.

105. Similarly, there was no obstacle for the legislature to make enrolment in primary school dependant on the parents’ submitting proof of vaccination of the child. In that regard, the court noted specifically that since all children of the given age were eligible for enrolment in the first grade, a large number of students would enrol from different areas and backgrounds, which carried an inherent risk of the spread of certain diseases. Moreover, parents who refused to vaccinate their children were to be reminded that other parents also had the right to protection from serious illness in respect of their children, and that unvaccinated children posed a greater risk of spreading the disease, especially in child-care facilities, schools and other educational establishments.

4. Italy

5. Republic of Moldova

116. In its judgment no. 26 of 30 October 2018, the Constitutional Court examined a challenge to certain legislative provisions making the admission of children to community groups and educational and recreational institutions contingent upon their systematic prophylactic vaccination, the complaint being that this restricted the access of children to education.

117. Among other things, the court noted that the legitimate aims pursued by the challenged provisions were the protection of children's health and public health from severe illnesses which spread more when vaccination rates were lower. A restriction on access by unvaccinated children, who had no contraindications, for a limited time pending their vaccination, was a less intrusive measure in terms of the right to respect for private life and to education and would efficiently achieve the aims pursued.

118. The court balanced the principle of health protection with the principles of access to education and respect for private life. Refusing to vaccinate children with no contraindications might not only entail their possible exclusion, pending their vaccination, but also exposed them to the risk of contracting an illness. The damage to their health also had negative effects on other rights they were entitled to enjoy.

119. Children with contraindications, while eligible for admission, were also exposed to the risk of contracting a communicable illness from unvaccinated children who had no contraindications. The consequences of an individual's action on their innocent peers could not be ignored. In the given context, the rights of the individual were not exercised in an existential vacuum, but within an organised society.

120. The children of parents who did not wish them to be vaccinated in the absence of any contraindications had alternative means of learning. Also, from the perspective of leisure opportunities for children in this category, the exercise of social private life was not a central aspect of their right to respect for private life.

121. The differential treatment of vaccinated children compared to those who could be vaccinated but were not was objectively justified and reasonable.

6. Serbia

122. In case no. IUz-48/2016, the Constitutional Court examined several challenges to the constitutionality of certain legislative provisions concerning compulsory vaccination and their conformity with international agreements ratified by Serbia.

123. As regards the necessity in a democratic society of the measures mandated by the contested provisions, the court noted that the available 2015 immunisation records for the vaccines in the immunisation schedule showed the lowest vaccination rate in ten years. This increased the risk of epidemics of communicable diseases which had been prevented for decades by vaccination, because a high level of collective immunity was needed to prevent an outbreak of an epidemic. In view of all the circumstances, including the duty of everyone to respect the public interest and not jeopardise the health of others, the court found that the criterion of necessity was fulfilled.

124. Concerning the argument that, compared to children who had been vaccinated, those who remained unvaccinated were discriminated against because they were deprived of their constitutionally guaranteed right to education, the court found that the fact that children's attendance at educational institutions was conditional on their having been vaccinated could not be construed as being relevant in constitutional terms to any form of discrimination in respect of the right to education. This was so because all children in certain age groups were subject to vaccination, unless this was contraindicated on health-related grounds. As that duty pertained equally to all persons belonging to the given group, those who did not comply with it could not be considered discriminated against vis-à-vis those who did, because they were not in the same or a similar situation.

7. Slovakia

125. The relevant jurisprudence is referred to in paragraph 229 below.

8. Slovenia

126. In a judgment of 12 February 2004 in.case no. U-I-127/01, the Constitutional Court upheld the constitutionality of a system of compulsory vaccination against tuberculosis, diphtheria, tetanus, whooping cough, infantile paralysis, measles, mumps, rubella and hepatitis B. However, it found deficiencies in the existing rules and their operation as regards the mechanism for individuals to claim exemption from the vaccination duty on the grounds of health contraindication.

127. Moreover, the court found a further deficiency in that the legislation did not regulate the right to compensation for damage to health resulting from vaccination side-effects. In particular, under the principle of solidarity, which itself was the basis for making vaccination compulsory, the State ordering such a measure for the benefit of everyone must be required to pay compensation to those who experienced harmful side-effects.

(a) The applicants

172. The applicant Vavřička complained that it had been arbitrary to impose a fine on him for his failure to have his children vaccinated in accordance with the applicable schedule. The child applicants argued that it had been arbitrary to refuse them admission to nursery school for the same failure on the part of their respective parents.

173. As regards the applicability of Article 8, the applicants invoked their right to personal autonomy in making decisions concerning their health and, in the case of Mr Vavřička, the health of his children. The child applicants also relied on their right to personal development in the context of attending nursery school. The applicants further referred to a right of parents to care for their children in accordance with their opinions, convictions and conscience and in keeping with the children's best interests. In that regard, they submitted that the best interests of a child were to be primarily assessed and protected by his or her parents, any State intervention being permitted only as a last resort in the most extreme circumstances.

174. They further submitted that since the detailed arrangements for the vaccination duty had been laid down only in secondary legislation (the Ministerial Decree), it could not be considered as being “prescribed by law” within the meaning of Article 8.

175. Moreover, in their view the process of defining the vaccination schedule was not transparent, lacked proper analysis and any public debate and suffered from a conflict of interest on the part of some members of the official bodies involved. In particular, relying on a reply of the Ministry dated 7 February 2020 to their enquiry, the applicants argued that the authorities had failed to provide them with sufficient information showing that the existing compulsory vaccinations were in fact necessary and justified. Furthermore, in defining the vaccination policy, the Ministry had wielded unlimited discretion.

176. In addition, the applicants contended that in a system with compulsory vaccination there was an incentive for fraudulent reporting of vaccination status. This problem did not arise in systems based on voluntary vaccination, which for this reason produced more reliable statistical data on vaccination uptake. In turn, these data could serve to shape the system in a more adapted and efficient way.

177. In so far as the Government relied on the authority of the learned societies specialised in the area of vaccinology in the Czech Republic or of the WHO (see paragraphs 152 et seq. above), the applicants submitted that these were broadly sponsored by pharmaceutical corporations. In particular, the applicants disagreed on matters such as the impact of vaccination on reducing mortality, the susceptibility of infants to infections, the negative impact of non-vaccination and the effectiveness of some of the prescribed vaccines. Moreover, they addressed various aspects of the functioning and development of the vaccination system, for example the interpretation in the Czech Republic of the criterion of permanent contraindication to vaccination. Furthermore, the applicants submitted that in so far as potential side-effects of compulsory vaccines played a role in the assessment of their necessity and justification, these should include not only the immediate side-effects but also long-term side-effects consisting of a general weakening of the vaccinated persons’ immunity to various illnesses.

178. It was not justified to refuse access to nursery schools as a form of punishment for the fact that the children were not vaccinated. The refusal of admission to preschool had meant that the families of the child applicants had had to provide care for them by their own means, which had impacted on the family as a whole, both financially and socially. Depriving the child applicants of preschool education had put them at a significant disadvantage in their subsequent education. This was particularly important for the applicant Novotná, who was interested in pursuing a particular educational model.

179. The applicants argued that the Vavřička jurisprudential exception to the vaccination duty (see paragraphs 28 and 93 above) was almost never granted in relation to admission to nursery school. Moreover, the applicant Vavřička argued that in his case it had been defined by the Constitutional Court in a retroactive manner. On that ground, he claimed that the law at the relevant time had been lacking in quality and that he could not have made proper use of it.

180. As regards the consistency of the attitude of the applicant Vavřička towards the issue of vaccination, given that he had had his children vaccinated against all of the illnesses except for poliomyelitis, hepatitis B and tetanus, he submitted through his lawyer that he was entitled to change his convictions over the course of time. As recognised by the Constitutional Court, what counted was whether or not the conviction remained constant throughout the respective proceedings, and this had been so in his case.

181. In addition, the applicants argued that any judicial review available was merely formal and did not involve any real substantive review of the rationality and proportionality of the vaccination duty.

182. Furthermore, at the relevant time the law did not provide for any means of claiming compensation in respect of non-culpable vaccine injury to health. Under the compensation mechanism that was subsequently introduced, compensation was available only in the event of a “particularly grave injury to health”, which was a prohibitively high threshold (see paragraph 84 above).

183. In contrast to the child applicants, for whom having been vaccinated was a prerequisite for admission to nursery school, there was no such condition for the employment of nursery school staff. Some of the statutorily prescribed vaccines concerned illnesses that were not transmissible, or not transmissible in a nursery school setting.

184. In the view of the applicants, the aim of protecting the health of other children could be achieved by less intrusive means, such as the exclusion of unvaccinated children from educational establishments only in the event of a threatened or actual outbreak of one of the diseases.

185. The applicants acknowledged that vaccination involved issues of general interest, social solidarity and shared responsibility. The problem was that of proportionality. A voluntary vaccination model was based on positive motivation and was therefore both more efficient overall and more proportionate than the mandatory model based on compulsion that was in place in the Czech Republic, which they considered unacceptable.

186. The interference with the applicants’ Article 8 rights had accordingly not been necessary in a democratic society.

(b) The Government

187. The Government emphasised that it was important to clarify who was the applicant in each case – child or parent – so as to determine whether and to what extent the matters complained of fell within the Court's jurisdiction ratione personae.

188. Regarding the issue of the best interests of the child, which was at stake in cases such as the present ones, the Government considered that it was reflected in the right of the child to the enjoyment of the highest attainable standard of health within the meaning of Article 24 of the Convention on the Rights of the Child. In individual cases, the child's best interests were to be assessed in the light of any objections of the parents, which were to be examined in the appropriate proceedings, ultimately with an element of judicial control.

189. It was accordingly not possible a priori to presume that the interests of the parents were identical to those of the children. There was at least a potential for conflict between the respective interests.

190. Responding to the argument of the applicant Roleček that in consequence of his non-admission to nursery school his mother had been obliged to stay at home with him and that, as a result, their family life had been impacted, the Government noted that the fact that family members were required to enjoy each other's company in this way could not constitute an interference with the right to respect for family life.

191. Moreover, the Government pointed out that the parameters of the present applications were limited to the facts that directly concerned the applicants and did not include other aspects of the Czech vaccination scheme as it had evolved over time.

192. Nevertheless, the Government did not contest that the facts of the six applications fell within the scope of the right to respect for private life and acknowledged that, regarding the applicant Vavřička, the fine imposed on him constituted an interference with that right.

193. As to the child applicants, irrespective of slight distinctions in how their Article 8 complaints before the Court had been formulated, in view of the actual consequences for them, consisting of their non-admission to nursery school, they were all in fact in the same position. The existence as such of the applicable legal framework did not amount to an interference with their Article 8 rights. To that end, the Government sought to distinguish the child applicants’ cases from those such as, for example, Dudgeon v. the United Kingdom (22 October 1981, § 41, Series A no. 45), Norris v. Ireland (26 October 1988, § 38, Series A no. 142) and Modinos v. Cyprus (22 April 1993, § 29, Series A no. 259), in that the legislative restrictions imposed on the child applicants were not absolute but subject to exceptions and applied only for a limited time (until the mandatory school attendance age – see paragraph 82 above).

194. Moreover, the non-admission of the child applicants to nursery school was due to their parents’ failure to comply with a statutory duty, on subjective grounds put forward by the parents. It was questionable whether it had been in the best interests of the applicants to have been prevented by their parents from attending nursery school and spending time with children of a similar age. The Government pointed out that, unlike in Boffa and Others v. San Marino (no. 26536/95, Commission decision of 15 January 1998, Decisions and Reports (DR) no. 92-B, p. 27), these applicants were the children and what was at stake in their case was their non-admission to a childcare establishment rather than a fine or any other type of penalty. Furthermore, attending nursery school was a public activity and it accordingly fell outside the scope of Article 8 of the Convention. In addition, there were alternative ways of developing one's personality and the child applicants’ inability to attend nursery school had not fundamentally interfered with their right to development and education. Accordingly, in the Government's submission, there had been no interference with the child applicants’ Article 8 rights.

195. Should the Court nevertheless find that there had been an interference, the Government maintained that it had been duly “prescribed by law”. The domestic legal framework consisted of the rules on the duty to vaccinate in conjunction with the rules on liability for a minor offence where the duty was not complied with, and also the rules governing admission to childcare establishments. Those rules had the quality of “law” in terms of the Court's case-law; in so far as they originated in secondary legislation, they were subject to judicial review. Moreover, the constitutionality of the given legislative arrangement had been repeatedly examined and upheld by both the SAC and the Constitutional Court.

196. There was no real dispute about the legitimacy of the aim served by the impugned interference, which was the general interest of society in protecting public health as well as the protection of the rights and freedoms of others. In more concrete terms, vaccination protected those vaccinated as well as others, in particular vulnerable persons who could not themselves be vaccinated or in respect of whom immunisation had been ineffective. While vaccinations were voluntary in some countries and compulsory in others, the underlying aim was the same and vaccination was the safest and the most cost-effective way of achieving it.

197. In relation to the necessity of any interference in abstracto, the Government relied on their positive obligations under the Convention to take measures in the sphere of protection of life and referred to their similar obligations under other international legal instruments. More specifically, States were under a positive obligation to put in place effective public health policies for combating serious and contagious diseases and to protect the life and physical integrity of those within their jurisdiction. In that regard, it was relevant that the diseases in respect of which vaccination was compulsory were all very serious and mostly highly contagious. The risk of these diseases spreading was amplified by the current high level of migration. As these diseases had now effectively been controlled, public and media attention had shifted away from disease prevention to vaccine safety. This had the potential to distort the perception of reality and to generate vaccine misinformation, which in turn could result in decreasing vaccination rates and the possible return of previously controlled vaccine-preventable diseases. Vaccine hesitancy was recognised as a serious global problem. Making vaccination compulsory was a natural response, in that it was demonstrated that it led to an improvement of the vaccination coverage. Other European States were resorting to this approach.

198. In the Czech Republic, vaccines were provided free of charge by the State. The vaccination duty was primarily aimed at children because they were the most vulnerable. In a preschool setting they were inevitably exposed to a higher risk of infection. Therefore, carrying out vaccination at a young age was conducive to achieving the overall aims of the vaccination policy. In that regard, the Government acknowledged that not all of the vaccines that were mandatory in the Czech Republic were aimed at achieving herd immunity and submitted that the herd immunity thresholds varied according to the specific illness in question.

199. The vaccination duty was not directly enforceable and any sanctions for a failure to respect it were merely administrative, with a fine only being imposable as a last resort and only once.

200. The scope of the vaccination duty was determined by the Ministry on the recommendation of its advisory board of epidemiologists and, since 2010, the NIC (see paragraph 154 above). In compliance with the requirements of the Disclosure Code of the European Federation of Pharmaceutical Industries and Associations and those of the WHO, at the beginning of every meeting of the NIC each of its members had to make a declaration as to any conflict of interests he or she might have in relation to any item on the meeting's agenda. As for the NIC's membership, the fact that it was limited to officials and experts reflected the prevailing practice among European States.

201. The Government rejected the applicants’ criticism that the Czech vaccination scheme was not based on proper scientific analysis. In particular, publicly available serological surveys had been performed since 1960. Both the scope and the parameters of the scheme were under constant review and there was a comprehensive mechanism in place for monitoring any adverse effects of pharmaceuticals, including vaccines.

202. A vaccination could only take place after a check-up for fitness and there were statutory as well as case-law exceptions. The latter had been defined by the Constitutional Court in the Vavřička case (see paragraph 28 above) and required no legislative implementation. Although it was true that there were no concrete examples that could be cited of application of the case-law objection of conscience in relation to nursery-school admission, the exception was applicable in that context, in particular if there had been any adverse health effects of vaccination in the family of the child concerned.

203. In addition, the legislation left a certain leeway to the parents in selecting the vaccines to be used and the relevant dates, within a defined period for vaccination. Moreover, experience showed that the vaccination policy in place was in fact successful and all relevant Czech expert societies were clearly in favour of preserving it (see paragraphs 152 et seq. above). Any fines or non-admissions to nursery school in connection with a failure to comply with the vaccination duty had to be based on a reasoned decision that was subject to judicial review at several levels of jurisdiction. As there was clearly no European consensus on the matter of compulsory vaccination, the margin of appreciation left to the Member States was wide. An additional reason for allowing a wide margin was that the issue involved the assessment of expert and scientific data by the national authorities.

204. As regards the six applications in concreto, the Government emphasised that as no vaccination had actually taken place against any parent's wishes, there had been no interference with anyone's physical integrity. None of the applicants had shown at the national level that any of the criteria for an exemption from the vaccination duty on the basis of religion, conscience or otherwise, had been met. The applicants had rather relied on no more than a generally dismissive attitude towards vaccination. In particular, in the proceedings brought by the applicants Novotná, Hornych and Roleček, the SAC had specifically noted that they had neither invoked any fundamental rights or freedoms nor relied on any exceptional circumstances at all.

205. While it was true that no specific vaccination requirement applied to the hiring of nursery school personnel, such persons were subject to the general vaccination duty applicable to anyone residing on the territory of the Czech Republic. It was thus highly unlikely that such personnel would not have previously received the relevant primary or booster vaccinations, in line with that duty.

206. As regards the possibility to claim compensation in respect of damage to health due to vaccination performed in accordance with the applicable rules and standards, the Government confirmed that there was no provision for granting compensation in respect of any such damage occurring after 31 December 2013. However, any damage caused prior to that date would be covered by the previous legislative regime, which had provided for compensation. New legislation adopted in 2020 made provision for this once again (see paragraph 84 above). This legislative development was due to the fact that, under the original regime, it was the healthcare provider administering the vaccine who could be held strictly liable for damage to the patient's health. However, as that liability essentially had to do with the public interest, it should rest with the State.

207. Moreover, the costs of the treatment of any harmful side-effect of vaccination would be covered by public health insurance. Nevertheless, serious side-effects, i.e. with life-long health consequences, were rare, with no more than six such incidents per year for 100,000 vaccinated newborns.

208. Although the jurisprudential exception to the vaccination duty on the basis of the right to freedom of religion or belief had been recognised for the first time by the Constitutional Court in the Vavřička case, this did not render the domestic courts’ interpretation and application of the existing legislation arbitrary. Regarding the applicant Novotná, the fact that the decision not to admit her to nursery school was taken in reopened proceedings after she had initially been admitted and had in fact been attending the school for two years had to be considered in the light of the fact that the original admission had been granted on the basis of incorrect information, provided by her. In providing that information she had assumed the risk that the admission decision might be reviewed once this came to light. Regarding the applicant Hornych, there was a similar anomaly in the information provided by his parents in the context of his application to nursery school. Finally, in relation to the applicant Novotná, the Government argued that attendance at a particular type of nursery school was not in fact a precondition for enrolment in an elementary school using the same teaching methodology. In any event, the non-admission of the child applicants to nursery school had not prevented them from developing social relations in other settings and contexts.

209. Relying on the Constitutional Court's case-law, the Government concluded by submitting that, as an immunisation tool preventing selected diseases, vaccination in general constituted a social benefit calling for shared responsibility on the part of the members of society and for social solidarity from each individual, who assumed a minimum risk in order to protect public health.

(a) The Government of France

210. The French Government emphasised the importance for States to be able to adopt effective public health policies to combat serious and contagious diseases, as clearly illustrated by the COVID-19 pandemic.

211. In France, the law of 30 December 2017 provides for the compulsory vaccination of children aged up to 24 months against eleven diseases. Previously, vaccination was compulsory in relation to three of these diseases; regarding the other eight, it was simply recommended. With one exception, the list of illnesses is identical to that in the Czech Republic. Under French law, persons with a medical contraindication are exempted from the duty. The law of 30 December 2017 increased the potential penalty for a breach by a parent of the child vaccination duty, from a term of imprisonment of up to six months and a fine of up to EUR 3,750 to a term of imprisonment of up to two years and a fine of up to EUR 30,000. Compliance with the vaccination duty is a prerequisite for admission to childcare structures and services as well as to the education system (collectivité). In the absence of a required vaccination, a child may be admitted provisionally on condition that they are fully vaccinated within three months. Continued attendance is subject to proving each year that the vaccination duty has been complied with.

212. Accepting that compulsory vaccination is an interference with the right to respect for private life, the French Government underlined that it served the legitimate aim of protecting health. The necessity of the interference should be assessed in the light of the States’ positive obligations to protect the life and physical integrity of those within their jurisdiction. The importance of those obligations had recently been emphasised by the Secretary General of the Council of Europe in a document entitled “A toolkit for member states – Respecting democracy, rule of law and human rights in the framework of the COVID-19 sanitary crisis”. As there were competing Convention rights at stake and no European consensus over compulsory vaccination, the French Government invited the Court to recognise that, in matters of public health policy and the prevention of the spreading of very serious diseases, the States enjoy a wide margin of appreciation, since they were in the best position to assess, in the light of the health situation on their territory and the means at their disposal, the measures necessary to protect public health.

213. Compulsory vaccination was justified by the serious adverse public health effects of low vaccination coverage. It was important to protect children from an early age and before the onset of a period of risk. In order to protect the community effectively, a vaccination policy had to apply to the greatest possible number of people. A high rate of vaccination was particularly important to protect those who could not be vaccinated.

214. If vaccination were merely voluntary, it was clear that some would seek to benefit from the effect of herd immunity without exposure to the residual risk associated with vaccination. If such behaviour were to become widespread, it would inevitably cause a decrease in vaccination coverage and ultimately the reappearance of pathologies that were thought to be in decline.

215. The French Government referred to Recommendation No. 1317 (1997) of the Parliamentary Assembly of the Council of Europe entitled “Vaccination in Europe”, to Article 11 of the European Social Charter (Revised), and to the Recommendation of the Council of the European Union on strengthened cooperation against vaccine-preventable diseases (2018/C 466/01) (see paragraphs 137, 142 and 150 above). The diseases in question were all very serious, and most of them highly contagious. The effectiveness of the compulsory vaccines was recognised, their negative side effects were limited and medical contraindications were taken into account. The interference represented by such a compulsory vaccination scheme with the right to respect for private life was accordingly proportionate to the objective of promoting the degree of vaccination coverage needed to reach the herd immunity threshold for the benefit of the entire population.

(a) The Government of Germany

216. The German Government clarified that compulsory vaccination referred to a duty to receive vaccination in defined situations, not to the coercive administration of a vaccine. They described the context in which domestic legislation had been adopted after an extensive societal and parliamentary debate, with effect from 1 March 2020, providing for compulsory vaccination against measles. Certain categories of persons are required to provide proof of vaccination, immunity or medical contraindication to vaccination before receiving care or being employed in specified types of facilities, including schools and other educational establishments. The vaccination duty is enforced indirectly by the threat of a penalty of up to EUR 2,500, which may be repeated under certain circumstances, and exclusion from educational institutions. The latter are under a duty to report unvaccinated children to the public health authorities. It is not possible to coerce a person into vaccination; consent is always required. Children under the age of one year are exempted. Other exemptions are based either on purely medical grounds or on the non-availability of a vaccine. There are no exceptions permitted on the basis of religion or belief. Compensation is available for any adverse effects even where the vaccine has been administered in conformity with the applicable rules.

217. The German Government observed that compulsory vaccination aimed to protect not only those vaccinated but also society as a whole and, in particular, vulnerable persons who cannot be vaccinated themselves on account of their age or state of health. If the vaccination rate is sufficiently high, the threshold for measles being 95% of the population, a given disease can be eliminated. Despite efforts to raise awareness, the rate of voluntary vaccinations achieved in Germany never reached more than 93%. This was the challenge faced by the legislature when adopting the legislation.

218. In the interest of achieving the 95% threshold, compulsory vaccination starts at a young age. Moreover, young children are particularly vulnerable to measles, given their immature immune systems. In that context, the German Government referred to the recommendation by the respective body of the Robert Koch Institute, the country's central scientific institution in the field of biomedicine, to the effect that children should be vaccinated twice against measles before they reach the age of two. Moreover, the German Government considered that the compulsory vaccination scheme was best managed in the context of long-term care such as preschools and nurseries, all the more so in view of the increasing number of children attending such facilities.

219. As already established in the relevant Convention case-law, compulsory vaccination constituted an interference with the right to respect for private life, its compatibility with the provisions of Article 8 depending mainly on respect for the principle of proportionality.

220. A penalty for disrespecting the vaccination duty and exclusion from educational institutions as a consequence of it constituted a real but merely indirect interference with personal integrity. The interest in protecting public health and above all the health of those who cannot be vaccinated was of fundamental significance. The State had positive obligations under Article 2 of the Convention in that regard. The vaccinated person not only carried the burden of vaccination but also benefited from the protection it procured. The above-mentioned 93% vaccination rate had been achieved voluntarily, showing that vaccination was widely accepted by the population. The reasons for parents not to have their children vaccinated had mostly to do with convenience and carelessness. Such cases were easily addressed by a legal duty of vaccination. This constituted no major interference with individual rights but merely a small individual sacrifice. Only a small proportion of the population opposed vaccination as a matter of principle. Once the 95% threshold was reached, the disease would be eliminated, further vaccination would no longer be necessary and the vaccination duty would become dispensable.

221. In any event, the Contracting Parties enjoyed a wide margin of appreciation with regard to their health care systems and policies.

(a) The Government of Poland

222. The Polish Government submitted that compulsory vaccination schemes did not constitute a violation of the Convention and the sanctions applicable in this context were compatible with the second paragraphs of Articles 8 and 9.

223. Consent to medical treatment was vital to the principles of self-determination and personal autonomy. An involuntary medical treatment constituted an interference with physical and moral integrity. Epidemics of infectious diseases might lead to sanitary, social and economic crises. The Contracting Parties were obliged to combat such diseases in humans. Vaccinations were an optimal preventive measure in that they not only reduced the number of those infected but also could lead to a complete elimination of a given illness. By promoting “herd immunity”, they protected not only those vaccinated but also others who could not be vaccinated. The more people were vaccinated, the better the community's resilience. Vaccinations were therefore primarily addressed to the youngest generation. According to the current state of medical knowledge, there were no better preventive measures. Widespread vaccination was also recommended by the European Centre for Disease Prevention and Control (see paragraph 147 above).

224. Vaccinations played an important role in shaping public health. They reduced the social consequences of health complications in connection with infectious diseases, including those related to the costs of the necessary treatment. The compulsory vaccination system thus enabled effective prevention of the spreading of dangerous infectious diseases, striking a balance between the fulfilment of the State's obligations towards citizens to provide the highest level of public health to as many persons as possible and those of citizens towards the State to comply with the vaccination duty. The cost-effectiveness of vaccinations was also a relevant factor.

225. In Poland, a vaccination duty had existed for nearly 60 years as a duty of an administrative nature. It was currently provided for by a statute of 2008, accompanied by a 2011 ordinance of the Minister of Health, adopted on the basis of that statute. In addition, every year the Chief Sanitary Inspector issued Protective Vaccination Programmes addressed to healthcare professionals implementing the compulsory vaccination scheme. Vaccination against eleven diseases currently found on the territory of Europe was compulsory for anyone residing in the Polish Republic. The State Sanitary Inspection was required to enforce compliance with the vaccination duty in relation to children by using administrative powers, the respective regulation and its enforcement never having been challenged. The State was responsible for the safety of the vaccination procedures and it bore the cost of vaccination as well as of the treatment of any possible side-effects. There was also the possibility of opting for commercially obtainable vaccines, the cost of which was not borne by the State.

226. As there was a diversity of legal and healthcare systems, it was inevitable that the Contracting Parties resorted to varying solutions to ensure a sufficient level of vaccination, reflecting the social, economic and cultural differences between them and the local conditions, habits and expectations as well as each country's economic possibilities. In the absence of a pan-European consensus, the Contracting Parties had a wide margin of appreciation to make arrangements to the best of their knowledge and possibilities. The assessment of the specific system of sanctions in each Contracting Party should not lead to the undermining of the compulsory vaccination system in general. The proportionality of the solutions adopted was rather to be assessed on a case-by-case basis.

(a) The Government of Slovakia

227. The Government of Slovakia noted that the present cases were not about the vaccination duty as such but rather about the consequences of non-compliance with that duty, a distinction that was relevant for the assessment under Article 8 of the Convention.

228. Observing that there was no uniform approach among Council of Europe member States, the Government referred to the arrangement in place in Slovakia. There the vaccination duty was laid down in legislation, consisting of an Act of Parliament and an implementing executive decree. The duty applied to everyone, except if there were health contraindications. There was no mechanism for physically enforcing compliance. However, the attending doctor was duty bound to explain to the patient, or to his or her statutory representatives, all relevant aspects and effects of the vaccination to be given. If still not accepted, the doctor had to report the case to the relevant public health authorities, who would summon the person in question for an interview. A persistent refusal to comply could then be seen as a minor offence punishable by a fine of up to EUR 331. The legislation in force did not provide for the exclusion of unvaccinated children from preschool establishments.

229. The Government referred to a judgment of 10 December 2014 (case no. PL. US 10/2013), in which the Constitutional Court of Slovakia found the vaccination duty to be constitutional. It considered that the State was under a positive obligation to ensure the protection of public health. The legislature's decision to comply with that obligation by means of compulsory vaccination was primarily of a political and expert nature falling within a broad margin of appreciation. It could contravene the individual right to protection of health if it were to be administered despite medical contraindications or if any general adverse effects of vaccination were demonstrated. However, such was not the case. Mandatory vaccination set two constitutional principles in opposition with one another: the protection of public health and respect for private life. It was not possible to reconcile both principles without fundamentally limiting one of them. The specific contraindication exemption was accompanied by a duty on the attending doctors to enquire into the existence of any contraindications prior to administering any vaccine. As with regard to any medication, the quality and safety of vaccines were supervised by the State Agency for Drug Control. In addition to healthcare providers, who were under a duty to report any suspicion of serious or unexpected side-effects of vaccines, any patient, or – in the case of child patients – their parents, could do so. Moreover, the legislative framework provided for compensation in respect of damage to health resulting from a vaccination performed contrary to the applicable rules. There were, to the existing level of medical knowledge, no other effective means to reduce or eradicate infectious diseases. The interference represented by compulsory vaccination with an individual's right to respect for private life was accordingly justified by the interest in the protection of public health that it served. While it was true that some countries provided for compensation also in respect of health damage resulting from a vaccination performed in accordance with the applicable rules, the absence of such a scheme in Slovakia had no impact on the above conclusion.

230. The Government added that, specifically with regard to children, the crucial criterion was that of their best interests. This was to be determined by whether or not there was any health contraindication to vaccination. A refusal to vaccinate a child without contraindications could be seen as being contrary to his or her best interests. It was accordingly necessary to ensure compliance with the applicable rules by way of sanctions. It was important to protect children from a young age and especially those who could not be vaccinated on account of contraindications.

(a) Společnost pacientů s následky po očkování, z.s. (Association of Patients Injured by Vaccines)

231. The intervening association represents patients who suffer from health problems as a result of having been vaccinated. On that basis it described the situations of children who had not been vaccinated at all or were not in full compliance with the applicable vaccination schedule. Those situations mostly involved the children not being admitted to nursery schools, the mother losing her job as she was left with no alternative but to stay at home with her child and the family losing a source of income. Nonetheless, those families would rather change their lifestyle than expose their children to the risks inherent in vaccination.

232. The existing system in fact ignored individual needs stemming, for example, from previous adverse effects on the child in question or its relatives. This was partly the result of an insufficient level of independent knowledge of the risks and negative effects of vaccination among paediatricians, whose continuing education was often sponsored by the pharmaceutical industry. Moreover, there was a lack of transparency as to the criteria for and the method of defining the compulsory vaccination schedule at the expert level. This created room for arbitrariness on the part of the executive and gave rise to mistrust and resistance on the part of the public. This in turn called for counter-measures by the proponents of vaccination, with the overall effect of polarising society and stigmatising those opposed to vaccination. Such counter-measures consisted of:

233. The number of compulsory vaccinations and the tight schedule for administering them did not allow in practice for the assessment of any individual needs. For similar reasons, vaccination was also performed in situations in which the patient was not sufficiently healthy to receive it. In addition, in view of the interpretation given in practice to the term “permanent contraindication”, it was not feasible to satisfy this ground for an exemption from the vaccination duty.

234. These features of the existing system had an extensive impact on the children concerned and their families. There was a variety of other and strikingly different arrangements at the European level, including in neighbouring countries with an epidemiological situation similar to that in the Czech Republic, where the vaccination system was the strictest. Were the Court to find that the Czech approach was not at odds with Convention requirements, the situation could even worsen and this trend could spread to other jurisdictions. Should the Court find the opposite, the respondent State would be required to limit the power of the executive to define and apply the criteria for and the method for establishing the vaccination schedule and to open this matter to a wider public and political debate.

(a) European Centre for Law and Justice (ECLJ)

235. In so far as the intervention of the ECLJ concerned Article 8, this third-party intervener pointed to the importance of the present case in that it concerns respect for the physical and moral welfare of the human being, as guaranteed by the principles that such welfare must prevail over the sole interest of society or science and that an intervention in the health field may be carried out only with the free and informed consent of those concerned, as established in Articles 2 and 5 of the Oviedo Convention. It emphasised the need for regulating these matters, in particular in view of the experience of several countries in the 20th century with regard to various policies in the fields of health and eugenics, and considered that in so doing use could be made of the case-law principles stemming from the cases decided by the Court concerning forced sterilisation. The present cases involved a situation of strongly encouraging individuals to submit to the vaccination duty by means of the threat of a sanction. As no forced vaccination had taken place, the principal question was not so much the legitimacy of the vaccination duty but rather of the sanction imposed on the applicants for failing to comply with it.

236. The intervener submitted that the physical integrity of a person was covered by the concept of “private life” protected by Article 8 of the Convention and that compulsory vaccination – as an involuntary medical intervention – amounted to an interference with that right. The main problem was the question of the necessity of the measures taken by the authorities in relation to the applicants in support of the vaccination policy.

237. In that respect, an adequate approach was to seek to reconcile the competing rights and interests rather than merely to set them against each other. The conciliatory approach involved seeking compromise and applying principles of pluralism and tolerance.

238. The intervener noted that in countries such as Austria, Cyprus, Denmark, Estonia, Finland, Germany, Ireland, Lithuania, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden and the United Kingdom, vaccination was not compulsory. Other countries imposed vaccination in respect of between one (Belgium) and twelve (Latvia) diseases. The usefulness and necessity of compulsory vaccination had not been established.

239. Placing emphasis on information and recommendations, combined with more flexible procedures, was an alternative to coercion, and was more respectful of the moral and physical integrity of individuals guaranteed, inter alia, under Article 8 of the Convention.

(a) ROZALIO – Rodiče za lepší informovanost a svobodnou volbu v očkování, z.s.

240. This third-party intervener submitted the following information, based on its experience. There was an increasing number of parents in the Czech Republic who wished to be informed on matters concerning vaccination, who questioned its necessity and timing and who were conscious of their inalienable right to take informed decisions on all matters concerning their children. The majority of such parents did not oppose vaccination of their children en bloc but rather desired an individual approach. They did not know how to communicate on these matters with doctors and authorities and the State failed to provide adequate sources of relevant information.

241. Repressive tools for promoting the vaccination rate were inappropriate because they gave rise to mistrust. Verifiable data showed that an increasing repression level corresponded to a decreasing vaccination rate. A better approach was to promote dialogue with parents on an equal footing.

242. The core of the problem was that the PHP Act provided for sanctions on parents who failed to ensure vaccination of their children and excluded such children from public and private preschool facilities, and from further activities such as school trips and retreats.

243. As regards the sanctions on the parents, the intervener referred to the secular objection of conscience as defined by the Constitutional Court in the case of Vavřička and developed in its judgment of 22 December 2015 in.another case (see paragraphs 28 and 93 above). In that connection, it pointed out that after 2011 minor-offence proceedings were no longer instituted in the event of parents’ failure to have their children vaccinated but that since 2018 such proceedings were again being instituted. However, the administrative bodies involved in such proceedings did not grant the exception provided for by the constitutional case-law in any individual case and no such exceptions were applied with regard to the admission of children lacking any prescribed vaccination to preschool establishments. Furthermore, the statutory exception from the duty on health grounds required a permanent contraindication and doctors generally interpreted that category restrictively.

244. The threat of a sanction also applied to preschool establishments if they admitted an unvaccinated child, and the inability to have one's children admitted to such an establishment resulted in the parents either having to stay and provide for their children at home or to bear the costs of alternative care. The affected parents sometimes organised themselves to provide day- care for their children in informal groups. However, all of this had financial and career implications.

245. The intervener then described the legal regime applicable to vaccinations and its functioning in a wider context, its reform, and the consequences of the vaccination duty for various groups of stakeholders. In 2017/18 preschool attendance became mandatory for children aged five (see paragraph 81 above). Those children were no longer obliged to be vaccinated. Nevertheless, there had been no dramatic effects on public health although such children would usually be kept together with younger children whose vaccination remained compulsory. Any consultative processes at the level of the Ministry in connection with the definition of the vaccination schedule were inadequate: a specialised working commission established in 2015 (see paragraph 156 above) had only met five times, had reached no conclusions and had been dormant since 2018.

(a) European Forum for Vaccine Vigilance

246. This intervener submitted that, in contrast to other areas of societal importance in a democratic society, where opposing views were institutionally represented, there were no trade unions of any specific profession in the area of public health to defend an individual's health-related choices. While in the area of justice there were rules adopted by the lawmaker and adjusted by the judiciary, there was no equivalent to this in the area of health. Whilst there had traditionally been a doctors’ professional body and an administrative body in charge of matters of health, there was generally no institution representing the patient. The need for representation of the patient in relation to the health authorities was, in France, reflected in the creation of a specific university doctorate for patient-experts.

247. However, sworn experts in the area of health in France were appointed by a tribunal and operated in a regime that was open to criticism, inter alia, in view of the scope of their specialisation and expertise. For various reasons, basic, pre-clinical and clinical research in relation to vaccines had a limited potential.

248. Moreover, the intervener criticised the use of aluminium-based compounds in the production of vaccines and attributed it to economic considerations on the part of the pharmaceutical industry.

249. In addition, the intervener described in detail various physiological aspects of immunity and commented on an individual clinical case of adverse health effects arising from vaccination.

250. Public pronouncements by health authorities on the side-effects of vaccines were generally prejudiced and official studies in the area of vaccination would commonly not cite their authors and sources. Yet issues such as the efficiency of booster-vaccination of adults and vaccines administered subcutaneously in general were open to debate.

251. Just as there was the premise in dubio pro reo in matters of liability, doubts in the area of vaccination should be interpreted in favour of a free choice by an individual under the principles of primum non nocere and in dubiis abstinere.

252. It was common in the healthcare world to confuse the categories of “informed consent” and a “permission to proceed with a specific procedure granted by the patient”. This might be because despite long studies doctors were not trained to transmit scientific and medical information to patients in a language that the latter understood. It was unclear whether the state of the science regarding therapeutic approaches adequately took into account individual's physiological responses.

253. Although the vaccination procedure was intrusive in terms of the law and thus normally subject to the requirement of informed consent, in France it was imposed administratively and not subject to free and informed individual consent.

254. There were many reports of serious pathologies which had emerged as a result of a vaccination, such as autism, multiple sclerosis, Guillain- Barré syndrome, macrophage myofasciitis, etc. Some had been demonstrated before the courts in individual cases against pharmaceutical corporations. It was necessary and a matter of scientific and medical responsibility in a democratic society to rule out potential risks by demonstrating that there was no causal link between the pathologies observed after the vaccination and the administration of the vaccine. Failure to do so could not be justified by economic considerations.

255. The current understanding of physiology was still in its infancy and vaccination as practiced presently was an archaic procedure which was provided by the laboratories and the institutions above them.

256. Many of the illnesses against which vaccination was compulsory did not produce serious consequences and the effect of vaccinating against them was that they would mutate and become more pernicious.

257. Lastly, broad immunisation coverage was currently promoted by many governments through an aggressive vaccination policy, although no scientific studies had proven the effectiveness of this approach. On the other hand, some other European countries provided for a free individual choice in the matter. The first imperative step was to ensure that those concerned were amply informed on all relevant aspects of vaccination and it was questionable whether doctors were able to do so. Secondly, there should be a free choice between informed consent and refusal.

(a) Subject matter of the applications

258. The Court notes that the applicants formulated their Article 8 complaints principally with reference to the fine imposed on Mr Vavřička and to the non-admission of the child applicants to nursery school. In other words, it was the consequences of non-compliance with the vaccination duty that was complained of.

259. However, in the Court's opinion, the consequences 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.

260. In these circumstances, the Court finds that the subject matter of the applicants’ complaints is the vaccination duty and the consequences for them of non-compliance with it.

(b) Scope

261. It is common ground among the parties that the complaint raised under Article 8 of the Convention relates to the right to respect for the applicants’ private life. The Court agrees, it being well established that a person's physical integrity forms part of their “private life” within the meaning of this provision of the Convention, which also encompasses, to a certain degree, the right to establish and develop relationships with other human beings (see Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 159, 24 January 2017, with further references; and also, in relation to vaccination specifically, Boffa and Others, cited above, and Baytüre and Others v. Turkey (dec.), no. 3270/09, 12 March 2013).

262. While some of the applicants also referred to the right to respect for family life, the Court does not consider it necessary to examine their Article 8 complaints from this additional perspective.

(c) Interference

263. The Court has established in its case-law that compulsory vaccination, as an involuntary medical intervention, represents an interference with the right to respect for private life within the meaning of Article 8 of the Convention (see Solomakhin v. Ukraine (no. 24429/03, § 33, 15 March 2012, with further references). With regard to the present applicants, it is true that, as the Government underlined, none of the contested vaccinations were performed. However, having regard to the subject matter of this case as established above (see paragraph 260), and also to the fact that the child applicants bore the direct consequences of non-compliance with the vaccination duty in that they were not admitted to preschool, the Court is satisfied that, in their regard, there has been an interference with their right to respect for private life.

264. As regards Mr Vavřička, while it is the vaccination of his children that is at issue, the Court considers that this does not lead to a different conclusion. It notes that under domestic law he was personally subject to the duty to have his children vaccinated, and that the consequences of non-compliance with it, i.e. the fine, were borne by him directly as the person legally responsible for their well-being. As noted above, in opposing their vaccination, he explained that he was principally motivated by concern for their physical integrity, fearing that vaccination could cause serious damage to their health. In these circumstances, the Court considers that the facts of the case of Mr Vavřička also may be regarded as disclosing an interference with the right to respect for private life, as indeed was accepted by the Government (see Boffa and Others, cited above, p. 34).

(d) Justification for the interference

265. To determine whether this interference entailed a violation of Article 8 of the Convention, the Court must examine whether it was justified under the second paragraph of that Article, that is, whether the interference was “in accordance with the law”, pursued one or more of the legitimate aims specified therein, and to that end was “necessary in a democratic society”.