CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ COMPULSORY VACCINATION OF MINORS IN THE CZECH REPUBLIC – there is an established causal link between the compulsory vaccination and damage; it can be established in one of two ways: • a rebuttable presumption of causation applies to cases when defined health problems occurred within a set time period after vaccination; both the relevant health issues and time periods are defined for each compulsory vaccination in ministerial Decree No. 483/2021 Sb., on the Consequences of Compulsory Vaccination (Decree on the Consequences of Compulsory Vaccination); in these cases, the state bears the burden of proof regarding non-existence of causation; • in other cases, the plaintiff has to prove causation The crucial question in each individual case is whether the presumption of causation applies to it. Especially in cases of damage resulting from the materialisation of an inherent risk of a medicinal product, it is very difficult – borderline impossible – to prove either the existence or non-existence of causation. For this reason, the causation will usually be established if its presumption is applied, while otherwise it can be only proven with great difficulty. The situation was, therefore, still rather dire for the victims before 1 January 2022 when the Decree on the Consequences of Compulsory Vaccination came into effect. The decree finally enabled the presumption of causation to be applied by defining health conditions that give rise to it. It is not without interest that the law on compensation for damage caused by compulsory vaccination also applies to the voluntary vaccination against one disease – COVID-19. This was secured at dawn of the vaccination campaign against the novel coronavirus just before Christmas 2020 by Act No. 569/2020 Sb., on the Distribution of Medicinal Products Containing a Vaccine for Vaccination Against COVID-19, on Compensation for Damage Caused to Vaccinated Persons by these Medicinal Products. The popular claim of the opponents of COVID-19 vaccination that nobody is responsible for the potential damage resulting from receiving the vaccine was not substantiated: not only the manufacturers of the vaccines could have been held liable within the same legal framework as in relation to any other medicine, but also the state guaranteed compensation. To be fair, the second option was not very practical until the beginning of 2022, when the rebuttable causation was enabled. 19 Regardless the type of vaccination, it is possible that a victim successfully files a claim for compensation, but the Ministry of Health determines that the damage might have been caused by unlawful conduct (which may consist, for example, in the administration of an expired vaccine by a health professional). Such a finding would be reported to the vaccinated person’s health insurance company, which will then have the right to recourse against the tortfeasor. 2. State Interference with the Parents’ Rights: What Is the Justification? By imposing and enforcing compulsory vaccinations, the state authoritatively enters one of the most intimate relationships in existence: that of parents and children. This tight bond is protected by the law on different levels.

19 Causation is presumed if one of the following conditions develop in the limited time period after COVID-19 vaccination: anaphylactic shock, myocarditis, pericarditis, thromboembolism, immune thrombocytopenia, or capillary leak syndrome. See Annex to the Decree No. 483/2021 Sb., on the Consequences of Compulsory Vaccination.

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