Implications for COVID-19 vaccination following the European Court of Human Right’s decision in Vavřička and oths v Czech

Abstract

Mass vaccination in the fight against the global pandemic of COVID-19 brings new questions to the ‘old’ issue of mandatory vaccination. The intention to restrict access to some spheres of life on the basis of an individual’s vaccination status provides fertile soil for potential violations of fundamental subjective rights, such as the right to bodily integrity and the interest not to be subject to medical intervention without consent, the right to a private life, and the right to engage fully within society without unjust discrimination. The potential implications of mandated or necessary vaccination for individual rights have not been fully explored, but the recent decision from the European Court of Human Rights in the case of Vavřička and others v. The Czech Republic (2021) gives us a sense of the Court’s approach to the question, given that the hearing (and subsequent decision) took place at the height of the pandemic. In this commentary, the judgement and the dissenting opinion will be analysed and compared from the perspective of the different understanding of the doctrine of proportionality. It will be argued that the approach, wherein the nature of the considered right is becoming the central question, corresponds more adequately with the aims of the Convention. Consequently, it can be suggested that in considering how to regulate vaccination against coronavirus, it is necessary to reframe the analysis in order to ensure that States remain true to the underlying ethos of the Convention to protect individual rights against State interference.