On May 30, 2023, the European Court of Human Rights (hereinafter: the Court) passed, and on June 22, 2023, announced the decision in the caseBasha against Serbia by which he declared the application inadmissible.
The decision was made by a Board of 3 judges.
The case refers to the issue of violation of the right to respect for private and family life from Article 8 of the Convention in connection with compulsory vaccination of childrenpreschool and school age against certain diseases.
The court found that the issue of mandatory vaccination needs to be considered in the context of Article 8 of the Convention, and that the petition is clearly unfounded. Zaconic measuresagainst which the complaints were presented in the petition, the Court judged them to be proportionatethe legitimate aim of protectionpublicof health andnecessarye in a democratic society.
THE CIRCUMSTANCES CASES
The applicant (hereinafter: the applicant), Mrs. Dragana Baša, highlighted the complaintson compulsory vaccination of children of preschool and school age against certain diseases whichprovided foraThe lawomg on the protection of the population from infectious diseases from 2016, as well as the consequences of non-compliancethese provisions.
Namely, the provisions membera 32.of the mentioned law, mandatory ctaxand against the listed diseases, unless a doctor or a team of experts previously determines a temporary or permanent contraindication for vaccination. Attendance at kindergartens and schools is conditioned by vaccination, and for failure to comply with this obligation, Artflax 85.the aforementioned law prescribes punishment up to 150,000 dinars.
The applicant on February 23, 2017, submitted an initiative to the Constitutionalomg the courtin for the assessment of constitutionalityprovisionArticle 32. st. 2, 3 and 4 and the provisions of Article 85, paragraph 1, point 6)The lawa on the protection of the population from infectious diseases from 2016.Mrgo away.
The Constitutional Court is on October 26, 2017 rejectedthe applicant's initiative after considering it together with others several others similar ones initiative.The Constitutional Court ispointed out that the disputed measure did not prohibit the enrollment of children in schools, but rather that theirdwhich is conditioned by vaccination against certain diseases, noting thatprovisionsmembera 38. and articlea 38a The lawa on basic education and upbringing, in addition to the provision that children attend school in person, the possibility of home schooling and distance learning is also provided for. This position of the Constitutional Court was also confirmed on the occasion of similar initiatives by the decision of December 31, 2020.
COMPLAINTS APPLICANTS AND THE PROCEDURE BEFORE THE COURT
The applicant pointed out that the measuremandatoryevaccinatione children of preschool and school age against certain diseases, as well as the sanction fordisrespecte this obligation when enrolling children in kindergartens and schools is a violation of Article 8 of the Convention.
TAlso, she made complaints andbasedArt. 3, 6 and 14 of the Convention, Article 2 of Protocol nooh 1. and Article 1 of Protocol nooh 12 with the Convention, emphasizingthat the consequences of non-observance of mandatory vaccination representYikes inhumane or degrading treatment, violation of the rights of unvaccinated children to education and discrimination against such children.
Subsequently, during the proceedings before the Court, pthe relativeshe also statedcomplaintboo according to Article 9 of the Convention, claiming that mandatory vaccination teven a violationAva freedom of thought, conscience and religion.
DECISION OF THE COURT
It's the court, first of all, pointed out that consideration of the issue of mandatory vaccination falls within the domain of Article 8 of the Convention, in accordance with the previous practice of the Court (see caseVavrička and other against the Czech Republic ([VV], No. 47621/13 and 5 others, dated April 8, 2021Mrgo away, paragraph 261.) and made a decision to consider all the applicant's complaints from this point of view.
The applicant, although she was not directly affected by the sanction for non-compliance with mandatory vaccination, according to the Court's opinion, belongs to the category of persons with a potential risk of interference with the right to respect for private and family life from Article 8 of the Convention, so it accepted her petition as admissible.
Furthermore, the Court found that for the applicant and the state, as parties to the proceedings before the Court, it is indisputable that mandatory vaccination, which by its very nature represents interference by the state in the right to respect for private and family life, is based on the law and that it pursues a legitimate goal public health protection.
When assessing whether it isnecessaryand the intervention of the state that encroaches on the said right,The court appliedthe relevant principles are set out in the subjectVavrička and other against the Czech Republic ([VV], No. 47621/13 and 5 others, dated April 8, 2021Mrgo away, paragraph 273 - 275).
In light of these principles, the Court assessed that the smallpox epidemic of 2018 represented the so-called the "burning social need" to protect both individual health and public health. In the same way, the Court assessed the need to prevent the reduction previous rates of vaccination of children against smallpox in the Republic of Serbia. In accordance with the stated reasons, the decision of the Republic of Serbiato make vaccination mandatory bila, according to the opinion of the Court, is based onrelevant and sufficient reasons.
In addition, the Court especially took into account that vaccination in the Republic of Serbia is not mandatory in cases of contraindications, as well as that it cannot be violent, and that the obligation to vaccinate is implemented indirectly, through the imposition of a sanction that is by its nature of moderate intensity.The inability of unvaccinated children to continue attending kindergarten or school, The courtis rated as a measureprotective, not punitive.
Also, the Court had in mind the fact that the Republic of Serbia foresees procedural guarantees for persons who refuse the mandatory vaccination of their children. They have the possibility to contest the imposed sanction through administrative and judicial proceedings,as well as to uselawsuitin basedin on the Law on Prohibition of Discrimination or constitutionalin appealin.
Taking into account all the mentioned circumstances, the Court assessed that the state did not exceed the "broad field of free assessment" anddisputedin measurementin mandatory vaccinations he rated like"necessaryin in the democraticsociety".
Therefore, the Court assessed the application in this part as clearly unfounded.
Also, the Court found the complaints under the article to be clearly unfounded 3, 6 and 14 of the Convention and Articlein 1. Protocol nooh 12 with the Convention (inhumane or degrading treatment,prohibition of discrimination and general prohibition of non-discrimination), while complaints bymemberin 2. Protocol nooh 1. with the Convention (right to education) rated incompatibleratione personae with the provisions of the Convention and its Protocols.
Finally, the Court did not consider the applicant's complaints under ArtArticle 9 of the Convention (freedoma thoughts, consciences and creeds), because they were not highlighted when submitting the application, but later.
For all the above reasons, the Court unanimously decided to declare the petition inadmissible.