CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ CONVENTION ON BIOMEDICINE AND LIABILITY RESULTING FROM DEFICIENCY… and may even override ordinary domestic statutes. Because the Convention has been ratified and published in accordance with these principles, it has become part of our law and may be directly applicable, provided of course that its provisions are capable of being directly applied. 2 Direct Applicability of the Convention One of the Convention’s provisions which possess the qualities of a self-executing right is arguably its Article 5, stipulating that an intervention in the health field may only be carried out after the person concerned has given free and informed consent to it; beforehand, this person must be given appropriate information as to the purpose and nature of the intervention as well as about its consequences and risks. Fortunately, even if this provision were not directly applicable, domestic law would still confer a similar level of protection, as very comparable rules are set forth by both the Civil Code 3 and the Act on Health Services. 4 A more difficult question arises with respect to Articles 24 and 25 of the Convention. Article 24 declares that the person who has suffered undue damage resulting from a (medical) intervention is entitled to fair compensation according to the conditions and procedures prescribed by law. According to Article 25, the contracting parties shall provide for appropriate sanctions to be applied in the event of an infringement of the provisions contained in the Convention. It would seem that these provisions are directed primarily towards the Czech Republic as a country and that they primarily oblige our Parliament to adopt these principles into domestic law. However, the Czech Constitutional Court has suggested a bolder approach in several of its decisions, in particular with respect to Article 24 which seems more suitable to be directly invoked by a private person in a dispute. In one dispute, the high court was called upon to rule on the issue of the compulsory vaccination of children against certain infectious diseases. 5 Parents of the children in question refused to have them vaccinated and were fined in accordance with the relevant statute. They sued in administrative courts to have the fine quashed but were not successful and therefore filed a constitutional complaint with the Constitutional Court. The court decided to adhere to its earlier case law 6 which had held that obligatory vaccination falls under measures necessary in democratic society for the protection of public order and health and rights of others and is covered, inter alia , by Article 26 of the Convention. In that view, the complaint failed. However, the court noted – expressly denoting its comment as an obiter dictum – 2 For a more detailed discussion about the Convention’s status in Czech law cf. ŠTURMA, Pavel. Úmluva Rady Evropy o lidských právech a biomedicíně [ The Council of Europe Convention on Human Rights and Biomedicine ]. Právní rozhledy . (1998, Vol. 6, No. 4 – supplement European law), pp. 2-4. According to paragraph 20 of the Explanatory Report prepared in connection with the drafting of the Convention, authorised by the Committee of Ministers of the Council of Europe for publication: “the Convention contains a number of provisions which may, under the domestic law of many States, qualify as directly applicable (‘self-executing provisions’). This is the case, particularly, of the provisions formulating individual rights. Other provisions contain more general principles which may require the enactment of legislation in order that effect be given to them in domestic law.” 3 Act No. 89/2012 Coll., the Civil Code, as amended. Cf. particularly its sections 93 and 94 concerning interference with personal integrity (also including medical interventions) and sections 2638 to 2642 concerning duties of a health care provider in the context of a contractual relationship on provision of health care. 4 Act No. 372/2011 Coll., on Health Services, as amended. Cf. particularly its sections 28 and 31 to 34. 5 Judgment of the Constitutional Court of the Czech Republic of 27 January 2015, File No. Pl. ÚS 19/14. 6 In particular its judgment of 3 February 2011, File No. III. ÚS 449/06. 1

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