CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ

COMPULSORY VACCINATION OF MINORS IN THE CZECH REPUBLIC

2.1 Constitutional Conformity of Czech Legal Regulation The system of mandatory vaccination has been subjected to several constitutional complaints. The Constitutional Court in its decision of 27 January 2015, file no. Pl. ÚS 19/14 focused on the fact that an important part of legal regulation of mandatory vaccination (including the diseases against which people have to be vaccinated) is only encompassed in a decree while the Charter of Fundamental Rights and Freedoms makes it clear in its Article 4(1) that “[d]uties may be imposed only on the basis, and within the bounds, of law” . According to the Constitutional Court, the primary duty is imposed by the law to a sufficient extent. The text of Section 46 of Act on the Protection of Public Health was deemed sufficiently clear and comprehensible, and the decree fits within the given limits without interfering with the essential features of the law. The current legislative solution makes it possible to respond dynamically enough to the development of the incidence of infectious diseases in the country as well as to the latest state of scientific knowledge in the fields of medicine and pharmacology. At the same day, the Constitutional Court issued another decision on the matter of mandatory vaccinations under file no. Pl. ÚS 16/14. The complainant claimed that the prohibition to admit unvaccinated children to preschool facilities violates their fundamental right to education. The Constitutional Court had to decide whether the prohibition interferes with the essential content of the said fundamental right. In the relevant case law, two tests of interferences with human rights are used: the test of rationality and the test of proportionality. The former applies to the so-called social rights (which include the right to education) if the potential violation does not concern the essential content of the relevant right. In that case, only a limited review is used, examining whether the interference in question is rational in the light of the legitimate aim pursued, albeit it does not necessarily have to be the best, the most appropriate, the most effective, or the wisest solution. 24 In other cases, however, the much stricter test of proportionality is applied, which examines whether the interference is capable of achieving its legitimate aim, whether it is necessary (i.e., the aim cannot be achieved with equal effectiveness by any less restrictive measure), and whether it is not disproportionate to its objective. 25 The question of the essential content of the right that is interfered with is crucial: an interference usually passes the test of rationality but does not meet all the criteria of the test of proportionality. 26 According to the Constitutional Court, the current legal regulation does not interfere with the essential content of the right to education – it would do so if it prevented children from the compulsory school attendance. The ban on the admission to preschool facilities 24 See the decision of the Constitutional Court of 27 January 2015, file no. Pl. ÚS 16/14, or for exampleWINTR, J. Čl. 31 (Právo na ochranu zdraví a na zdravotní péči). [Article 31 (Right to the Protection of Health and Health Care).] In WAGNEROVÁ, E., ŠIMÍČEK, V., LANGÁŠEK, T., POSPÍŠIL, I. (eds.). Listina základních práv a svobod. Komentář. [Charter of Fundamental Rights and Freedoms. Commentary.] Wolters Kluwer, Praha 2012, p. 647. 25 See for exampleWAGNEROVÁ, E. Úvod [Introduction]. InWAGNEROVÁ, E., ŠIMÍČEK, V., LANGÁŠEK, T., POSPÍŠIL, I. (eds.). Listina základních práv a svobod. Komentář. [Charter of Fundamental Rights and Freedoms. Commentary.] Wolters Kluwer, Praha 2012, pp. 26-28. 26 See WINTR, J. Čl. 31 (Právo na ochranu zdraví a na zdravotní péči) [Article 31 (Right to the Protection of Health and Health Care]. In WAGNEROVÁ, E., ŠIMÍČEK, V., LANGÁŠEK, T., POSPÍŠIL, I. (eds.). Listina základních práv a svobod. Komentář. [Charter of Fundamental Rights and Freedoms. Commentary.] Wolters Kluwer, Praha 2012, p. 647.

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