CYIL vol. 13 (2022)

HELENA VAN BEERSEL KREJČÍKOVÁ CYIL 13 ȍ2022Ȏ decide whether childhood vaccination will be mandatory, mandatory for school entry, or just recommended. The Czech Republic’s approach, where parents of an unvaccinated child could be subjected to a fine and an unvaccinated child could be denied a nursery/kindergarten entry, unless it is their mandatory pre-school year in the kindergarten, has not been found inappropriately violating the right (of the parents) to private life. 47 There were two crucial arguments why the Czech mandatory childhood vaccination programme was upheld by the European Court of Human Rights. First of all, the Court has been presented with the current Czech law clearly showing that the duty to be subjected to a mandatory vaccine is not absolute. Besides the exceptions arising from the objective health reasons on the side of a child (including a previous severe adverse reaction to a vaccine in the family), 48 the Constitutional Court of the Czech Republic has also recognised both a conscientious objection based on religion and beliefs of the parents and a secular conscientious objection to be a valid reason for refusing a vaccination. In addition, the consequence of not having a child vaccinated does not result in providing the child with a vaccination against the parents’ will, 49 but merely in imposing a rather reasonable fine 50 upon them. In relation to the conscientious objection based on one’s religion, the Constitutional Court of the Czech Republic was presented with two lines of the argumentation to why a fine should not be imposed on the father (the complaining party) of the unvaccinated child. The complaining party first or foremost pointed out that some of the vaccines are neither rational or logical as they do not serve their purpose as the instrument of public health protection: Tetanus is not human-human transmissible, hepatitis B is typically not a childhood disease with rather mild effects on children, and polio has been eradicated in the Czech Republic (as in the whole Europe, too). Only in his oral statement did the complaining party add that besides the health reasons (childhood vaccination harms children), there had been another – secondary, as he put it – reason for him to refuse the vaccination, that was his freedom of thought, belief, and religion according to the Article 16 of the Czech Bill of Fundamental Rights and Freedoms. Even though the complaining party did not provide the court with any specific detail regarding his beliefs and religion, the court considered the constitutional complaint well founded enough to set aside the judgement of the Supreme Administrative Court of the Czech Republic by which the fine imposed upon complaining party had been upheld. The Supreme Administrative Court was bound by the Constitutional Court’s opinion that the manifestation of Article 16 of the Czech Bill of Fundamental Rights and Freedoms should be recognised as a valid exception to the mandatory vaccination. Also, in its decision, the Constitutional Court made it clear that the required level of persuasiveness of an alleged conscientious objection should be quite high, whilst – at least in my modest opinion – also implying that had not been the case at the particular constitutional complaint. is included in the standard vaccination, together with the vaccine against carvical cancer https://www.sst.dk/-/ media/Udgivelser/2019/Boernevaccinationsprogrammet-pjece/Boernevaccinationsprogrammet-pjece-engelsk. ashx?la=da&hash=AD719DD0708DD179EF7BC39D2F180D44D11F0211. 47 Vavřička and Others v. the Czech Republic. 48 S. 46 Para 2 of the Act on the Protection of the Public Health. 49 Obviously with the exception that the child is imminently endangered by the illness against which the vaccine protects, as decided in the decision of the Constitutional Court of the Czech Republic No. I. ÚS 3444/20. 50 Under S. 92k Para 6 litera b) of the Act on Protection of Public Health, the legal guardians of an unvaccinated child could be fined up to 10.000 CZK (i.e., ca 400 EUR).

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