CYIL vol. 13 (2022)

MARTIN ŠOLC

CYIL 13 ȍ2022Ȏ

1.2 Compensation for Damage Caused by Compulsory Vaccination In Spring 2020, a new act came into effect that enabled the victims of harm caused by compulsory vaccination to apply for compensation. This followed more than a six year gap when no such compensation was feasible. The current Civil Code No. 89/2012 Sb. came into force on 1 January 2014. One of the many changes it brought about was the abandonment of a special case of strict liability which consisted of damage caused by circumstances originating in the nature of a tool or other thing used in performing of an obligation (§ 420a of the previous Civil Code No. 40/1964 Sb.). Under this provision, the health facility might have been held liable for any harm occurring from vaccination, since the nature of a vaccine (as well as of any other medicinal product) encompasses a certain, however small, risk. Nevertheless, the said special case of strict liability was unique in the European context. The authors of the new Civil Code deemed it a remnant of old socialist understanding of relations between the citizens and the socialised sector which provided all services. In the context of capitalist economy, such a broad liability was considered an unreasonable burden for the providers of services who proceed with due care. 16 For these reasons, there is no equivalent of that in the reformed civil law. After the new Civil Code came into force, it was still possible to sue for compensation of damage caused by the breach of professional standards either by the manufacturer (which for example released a defective vaccine batch to the market) or the provider of health services (who used an expired vaccine or administered it wrongly). While such cases might happen in theory, they are (fortunately) rather unseen in real life. The resulting situation of the possible victims was unfortunate: there was no way their harm could have been compensated. This was repeatedly criticised by the doctrine 17 and especially by the highest courts. The legislature was explicitly called on by the Constitutional Court and subsequently by the Supreme Court in obiter dictum of their decisions 18 to amend the law so the said compensation is possible. The reasoning expressed in both decisions was straightforward: if the state imposes a certain obligation under the threat of a sanction, it should also allow for the compensation for a damage that might arise from complying with such duty. Since the obligation is not only imposed on the patients but also on the relevant providers of health services, it should be the state that provides the compensation. The legislator addressed the issue by enacting Act No. 116/2020 Sb., on Compensation for Damage Caused by Compulsory Vaccination, which came into effect on 8 April 2020. The compensation comprises of suffering, deteriorated social position (which is the legal term for permanent health problems), loss of earnings, reasonable costs associated with the care of the victim or their household, or mental suffering of their close person (i.e., the secondary damage). The victim must submit a request to the Ministry of Health which then provides the compensation if several cumulative criteria are met: – the damage is particularly serious 16 See the Explanatory Report to Act No. 89/2012 Sb., the Civil Code, Special Part, To Sections 2936 to 2938. 17 See for example ŠUSTEK, P. K některým soukromoprávním aspektům povinného očkování aneb odpovídá vůbec někdo za případně způsobenou újmu na zdraví? [To Selected Private Law Aspects of Compulsory Vaccination, or Is Anyone Liable for Possible Damage to Health?]. Jurisprudence. (2017, Vol. 26, No. 3), pp. 3–16. 18 See the decision of the Constitutional Court of 27 January 2015, Pl. ÚS 19/14, and the judgment of the Supreme Court of 27 May 2015, file no. 25 Cdo 3953/2014.

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