ABSTRACT: The article, by AMA KYEREMATENG, highlights the balance between body autonomy of citizens of a state and the duty of governments to protect the the citizenry from contagion. The writer appraises the decision in Vavřička v The Czech Republic and drives home the point that a careful balancing of rights and interests should be done before enforcing mandatory vaccinations; where it is necessary, it should be done.

Key words/phrases: COVID-19, herd immunity, human rights, mandatory vaccination, margin of appreciation, proportionality

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In early 2020, the world experienced the rapid spread of the COVID-19 virus resulting in one of the worst pandemics the modern world has ever faced. The lack of knowledge about the virus led to confusion, disagreements and skepticism about the best option in winning the fight against COVID-19. One of the COVID-19 policies clad with great mistrust and opposition is Mandatory Vaccination.

Many countries have faced protests against their Mandatory Vaccination policy. For example, The Biden Administration demanded mandatory vaccinations for employees with specific government jobs. This resulted in nationwide protests against vaccinations from the “anti-vax” community and claims of discrimination from workers unwilling to take the vaccination.  

Also, in early 2021, the Ghanaian Government declared that vaccines were mandatory for civil servants as well as health workers and commercial bus drivers. This resulted in backlash from the general public arguing that it is within their human rights to resist the vaccine. On one side, a group of Ghanaian doctors created an alliance to protest against mandatory vaccinations. Meanwhile, others supported the government stating that it is the Government’s duty to ensure a safe environment. Therefore, one is left to wonder whether mandatory vaccinations is a contravention of human rights or necessary for safety. To answer this dilemma the present writer analyses the court decision of the recent Czech case of Vavřička v The Czech Republic. 

In Vavřička v the Czech Republic, the applicant, a father of two children was in 2003, found guilty of an offence under their criminal statutes. Czech Republic has a law that states that failure to vaccinate your children for poliomyelitis, hepatitis B and tetanus is a minor offence under Section 29 (1) (f) of the Minor Offence Act. Vavřička challenged in court that it was his fundamental right to decline any medical intervention according to Article 5 and 6 of the Convention on Human Rights and Biomedicine. Furthermore, he argued about his general dislikes and distrusts for vaccines comparing them to experiments and stating their many horrible side effects. He also stated it was not a necessity for his children to have these vaccinations because there was no outbreak for Polio since the 1960s and tetanus was transferred through cuts and other issues and not from person to person. Lastly, he explained not getting vaccinated was a way of expressing his philosophical and religious beliefs which was his fundamental right. The Supreme Court of Administration dismissed his appeal but the Constitutional Court stepped in and stated that the Supreme Court of Administration did not give a good enough reason for dismissing his appeal and took over the case.

The Constitutional Court admitted that their domestic law and international law agreed everyone had the right to bodily integrity and can decide what could and could not be done to their body. However, The Constitutional Court still dismissed the appeal explaining that when dealing with an issue of mandatory vaccination in a democratic country, the court looks at three areas to decide whether government intervention is now a necessity for safety and stops being a contravention of human rights. These three areas are the state’s margin of appreciation, relevant and sufficient reasons and proportionality. 

The courts look first at the state’s margin of appreciation. This is an International Law doctrine which was developed under Article 8 of the European Convention on Human Rights. The term “margin of appreciation refers to the space for manoeuvre that the Strasbourg organs are willing to grant national authorities in fulfilling their obligations under the European Convention on Human Right” according to the Council of Europe.

This doctrine gives states the chance to intervene with the freedom and rights of individuals if their actions would have a negative effect on society or put the individual in danger. This can be seen in Buckley v UK—the plaintiff wanted to live in a cavern on property that she owned but the local government intervened saying that the land was crucial to city planning. The plaintiff filed a complaint in ECHR Court stating the UK was obstructing her right to live where she pleased .The court decided that the UK’s margin of appreciation in this case was wide enough to allow local government to halt her living on land necessary for city planning. Therefore, for a government to be able to intervene in an individual’s rights then, their margin of appreciation needs to be wide enough.

Dealing with the case of Vavřička, The court decided that the state’s margin of appreciation on compulsory vaccination was wide enough because the policy was passed to protect members of society that are vulnerable to the diseases and as such the rest of society should waive their right of freedom and security over their body and get vaccinated to protect the whole society. The court also explained that vaccines had been used for many decades and they had a minimal risk towards the host body; since it will not result in any drastic change to the body then the less vulnerable should take one for the team, colloquially speaking. Therefore a state can only implement compulsory vaccinations if they have a wide margin of appreciation which allows them to intervene in their individual’s right to freedom and security over their body.

The following element looked at by the courts deals with relevant and sufficient reasoning. In order for a policy which intervenes an individual’s right and freedom to be legally accepted, the reasoning for the policy must be sensible and have enough evidence to support what is and is not the best route for the desired outcome. Therefore, if the reasoning behind a policy is seen to be irrational and evidence does not support it as the best option, then the policy would be a contravention of human rights. For example, if a state passes a policy banning nationals from wearing white, because the president wants to be the only one in white, the court would see it as a contravention of an individual’s right to free will because the reasoning is illogical. However, the reasoning for compulsory vaccination for this case was deemed to be relevant and evidence produced was sufficient enough according to the court.

Authorities of Czech Republic explained that under Article 3 of the Convention of the rights of Children, the state is supposed to protect the interests of all children as individuals and as a group, therefore they had to make decisions which put the wellbeing of children first before anything else. The state wanted all children to be vaccinated to protect them from the disease in the future and for vulnerable children “who could not get the vaccine’’ to be protected from the disease through herd immunity. In relation to evidence proving that mandatory vaccination was the best option, authorities showed national and international data proving that the policy of compulsory vaccination for their country would result in the highest percentage of the population being vaccinated. The court concluded that the policy was backed by important reasoning and sufficient evidence therefore the compulsory vaccination was not contravening the children’s right to bodily integrity.  

Thirdly, the last element is proportionality. Proportionality deals with the ratio between measures put in place to further the policy and the legitimate aims of the government. With this element the Court looks at the harshness and strictness of the policy in getting the intended outcome and if any other measure could have been used which would not be as invasive to an individual’s human rights. This can be seen in the case of Biblical Centre of the Chuvash Republic v Russia, A missionary had founded a Pentecostal school and college in 1996 but in 2006 the Supreme Court ordered it to be shut down because they had been teaching without acquiring an educational licence and the facilities of the school were in breach of the health and safety codes. In regards to the sanctions, the plaintiffs filed a complaint that they were too harsh and severe but the Court held that Russian case law and Article 14 of the Religions Act held that the only sanction for religious organisations who went against the law was for them to be shutdown. Therefore, they were not in contravention of the church’s right to practice their religion but were proportionally punishing the church as the law deemed fit. Therefore, the Courts would only allow sanctions that are proportional and will not let the sanctions get to the point of discrimination.

When the Speaker is not a Speaker

In relation to our case Vavřička, the court decided the sanctions were not harsh and discriminatory. The parents were faced with a fine which was not excessive to them and the government was not physically going to force them to take the vaccine. Furthermore, their children not being able to attend preschool was a punitive measure to make sure that they would not infect other children and was not meant to discriminate against them. The court noted that the state even had procedural safeguards that allowed the parents to contest the policy and give their reasoning for going against the law. The national law also provided for religious and philosophical reasoning but since the plaintiff’s main argument in the beginning was mistrust for the science behind vaccines the court focused on their first argument and denied them. It was, therefore, decided that the sanctions were appropriate measures taken in order for them to reach their desired aim and thus, it was not a contravention of human rights.  

In conclusion, I am not denying that everyone has the right to bodily integrity which means they have autonomous control over what happens to their body. This right is supported by both international laws and most domestic laws meaning they have the right to refuse vaccinations and the state has no right to forcefully vaccinate them. However, Mandatory vaccination is a policy which puts measures in place to urge people to be vaccinated but no one is going to forcefully vaccinate you without your consent. Your personal choice to not get vaccinated leads to consequences in regards to your dealing with the rest of the vaccinated and safe public.

Mandatory vaccination when lawfully implemented and enforced is not a contravention of human rights. A study of Vavřičk v the Czech Republic, has shown us that mandatory vaccination policies are regulated to fall in the margin of appreciation. They must be necessary and relevant and have proportionality, therefore still protecting your human right.  

The author, Ama Kyeremateng, is a post graduate student of BPP University and an LLB holder from University of Ghana. She can be reached via: amakyere@icloud.com