CYIL vol. 13 (2022)

MARTIN ŠOLC CYIL 13 ȍ2022Ȏ pursues a legitimate aim of the protection of public health (especially health of other children who could have not been vaccinated) and is deemed rational to achieve this aim. The court also stresses that the relevant legislation does not create inequality between children with a long-term contraindication to the vaccines and others. In several cases, the Constitutional Court decided on parents’ conscientious objection to compulsory vaccinations. In the decision of 3 February 2011, file no. III. ÚS 449/06, the court dealt with the constitutional complaint aiming at the claimed violation of several parents’ rights including the right to the freedom of thought, conscience, and religious conviction under Article 15 of the Charter of Fundamental Right and Freedoms and the right to freely manifest their religion or faith under Article 16 therein. The Constitutional Court expressed several important observations regarding the matter. Compulsory vaccination is not in conflict with the requirement of informed consent under Article 5 and following of the Convention on Human Rights and Biomedicine since it represents a legitimate restriction on the exercise of the rights that is prescribed by law and is necessary in a democratic society in the interest of public safety, for the prevention of crime, for the protection of public health, or for the protection of the rights and freedoms of others (Article 26 therein). The issue of compulsory vaccination itself is a political and expert rather than a legal question so there is only limited space for judicial interference. Nevertheless, the protection of individual autonomy guaranteed by the constitutional order requires that in exceptional cases, compulsory vaccinations are not enforced. In deciding on whether such a case occurred, the courts need to take into account all its circumstances. The Constitutional Court defined the most important criteria that need to be considered before a compulsory vaccination is not enforced: the urgency of the person’s alleged reasons, the constitutional relevance of the alleged reasons, the danger to society which the person’s actions may pose, and the consistency and persuasiveness of the person’s claims. In the decision of 22 December 2015, file no. I. ÚS 1253/14, the Constitutional Court made it clear that in the secular state, there can be no difference in the legal approach to religious and secular conscientious objection. Furthermore, the cumulative criteria for the recognition of conscientious objection set in the previous case law were slightly refined: – the constitutional relevance of the allegations contained in the reservation, – the urgency of the reasons for the reservation, – consistency and persuasiveness of claims, and – social consequences in the case of acceptance of the reservation. 2.2 The Evaluation of the Czech Legal Regulation by the European Court of Human Rights The European Court of Human Rights evaluated the Czech system of compulsory vaccination in the case of Vavřička and Others v. the Czech Republic , app. nos. 47621/13 and others. In particular, the complainants claimed that their rights under the European Convention on Human Rights were violated by the regulation on fines that can be imposed on parents and by the prohibition of admission of unvaccinated children to preschool facilities. On 8 April 2021, the ECtHR issued the judgment in the case finding no violation of the convention. According to the Strasbourg court, the sensitivity of compulsory vaccination

326