The Constitutional Court found no 97 / 2015 Coll.
The Constitutional Court found of 27 January 2015 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
20.04.2015
97
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided under sp. zn. Pl. Pl. ÚS 19 / 14 on 27 January 2015 in plenary composed of the President of the Court of Paul Rychetský and Judge Louis David (Judge Rapporteur), Jaroslav Fenyk, Jan Filip, Vlasta Formánková, Vladimir Krářík, Tomáš Licenčník, Jan Musil, Vladimir Sládeček, Radovan Suchanek, Catherine Šimáková, Vojtěch Šimíček, Milady Tomková, David Uhlír and Jiří Zemánek, on the proposal 1.L. C. C. and 2.A. C. and 3. minor A.C., represented by Mgr. David Zahumenský, lawyer, with the seat of Burešova 6, Brno, on the abolition of § 46 of Law No. 258 / 2000 Coll., on the protection of public health and amending laws, and in the version of Article 29 (1) of Law No. 200 / 1990 Coll.
as follows:
The proposal to repeal the provisions of Section 46 of Act No. 258 / 2000 Coll., on the Protection of Public Health and on the amendment of certain related laws, as amended, and to repeal the provisions of Section 29 (1) (f) of Act No. 200 / 1990 Coll., on infringements, as amended, is rejected.
Reasons
Subject matter
1. In proceedings concerning a constitutional complaint brought under sp. zn. I. ÚS 1253 / 14, the complainants L. C., A. C. and minor A.C. (represented by the parents who authorised her to be represented in proceedings concerning a constitutional complaint and the application for annulment of the two legal provisions of the lawyer) requested the annulment of the judgment of the Supreme Administrative Court of 17 January 2014 No 4 As 2 / 2013-75 and the judgment of the Municipal Court of Prague of 31 October 2012 No 4 A 43 / 2012-118. They considered that the general courts have infringed their fundamental rights guaranteed by them in Article 2 (3) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution), Article 9 of the Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the Convention) and Article 2 (2) and (3), Article 3 (3), Articles 4, 7, 10, 11, 15, 31 and Article 32 (4) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter). In addition to a constitutional complaint in which complainants opposed the imposition of fines on parents in administrative proceedings for refusing regular vaccination of a minor, the complainants submitted a proposal for the annulment of the provisions of Section 46 of Act No. 258 / 2000 Coll., on the Protection of Public Health and on the amendment of certain related laws, as amended, (hereinafter referred to as "the Act on the Protection of Public Health ') and of the provisions of Section 29 (1) (f) of Act No. 200 / 1990 Coll., on Transfers, as amended (hereinafter referred to as" the Act on Transfers').
2. The First Chamber of the Constitutional Court, after having found that the appellants were legally represented as persons entitled to lodge a constitutional complaint (Paragraph 30 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 83 / 2004 Coll.) and that their timely application contained the prescribed legal requirements (Paragraph 34 (1) of the Law No. 182 / 1993 Coll., on the Constitutional Court), decided on 11 September 2014 by a resolution pursuant to Section 78 (1) of the Law No. 182 / 1993 Coll., on the Constitutional Court of First Instance, so that it suspended the proceedings concerning the Constitutional Complaints against the judgments of the General Courts referred to above and the Complainants of the General Court of the Court of First Instance of First Instance of First Instance of the Court of First Instance of First Instance of First Instance
Recital of the proposal
3. In the proposal to abolish the above-mentioned legal standards, the complainants argued, in particular, that the compulsory vaccination legislation was inconsistent with Article 4 of the Charter. They argued that the Constitutional Court has repeatedly stressed in its case law relating to healthcare that the limits of fundamental rights and freedoms can only be regulated by law under the conditions laid down in the Charter. The most recently mentioned is the finding of sp. zn. Pl. ÚS 43 / 13 of 25.3.2014 (77 / 2014 Coll.) on spa care or the finding of sp. zn. Pl. ÚS 36 / 11 of 20.6.2013 (N 111 / 69 SbNU 765; 238 / 2013 Coll.) on medical superstandards. The complainants also pointed out the finding of the Constitutional Court of the Slovak Republic sp. zn. PL. ÚS 8 / 94 dealing with compliance with the law's reservations in connection with the Decree of the Ministry of Health of the Slovak Republic on the conditions of compulsory vaccination.
4. The complainants agreed with the legal opinion of the Senate of the Supreme Administrative Court, which concluded under sp. zn. 3 Ads 42 / 2010 the unconstitutional nature of the construction of the compulsory vaccination legislation in the Czech Republic for its contradiction with Article 4 of the Charter. According to the Supreme Administrative Court, the rule guaranteeing the imposition of obligations has been infringed only on the basis of the law and within its limits and only with respect to fundamental rights and freedoms. The complainants also referred to the different opinion of the Judges of the Supreme Administrative Court on the resolution of the extended Chamber of the same court sp. zn. 7 As 88 / 2011 of 23.4.2013. They have testified to their legal opinion that the enlarged Senate omitted, in the case of compulsory vaccination of children, to examine in an appropriate manner the issue of the intervention of vaccination in fundamental human rights, in particular the right to physical integrity and the right to family and private life. Intervention of these rights, if they are to be consistent with the purpose of protecting public health, must respect the guarantees given to individuals by the Charter. For the present case, it follows that the compulsory vaccination obligations and the restrictive fundamental rights had to be laid down by law.
5. In their submissions, the complainants cited the case law of the Constitutional Court on the provision of Article 4 of the Act of Reservation. In the sp. zn. Pl. ÚS 35 / 95 of 10.7.1996 (N 64 / 5 SbNU 487; 206 / 1996 Coll.) The Constitutional Court stated that citizens have the right to free health care and medical aid under public insurance and under statutory conditions. If these conditions can only be regulated by law, then it is imperative that the scope and manner of implementation be laid down in the same legislative regime. A non-legal arrangement would constitute a violation of the Charter. Moreover, the Constitutional Court found that the definition of the scope of healthcare provided for full or partial remuneration could not be allowed to be left to the adaptation of non-statutory standards. Otherwise, this area of protection of fundamental rights and freedoms would come under the authority of an executive, but it lacks the right to do so.
6. As another relevant judge in relation to the alleged infringement of Article 4 of the Charter, the complainants identified the finding of the Constitutional Court sp. zn. Pl. ÚS 45 / 2000 of 14.2.2001 (N 30 / 21 SbNU 261; 96 / 2001 Coll.). It states that individuals are protected from excesses of executive power by the barriers to things reserved for regulation only to the laws (so-called reservation of the law). The complainants concluded that even in the case of compulsory vaccination it is necessary to maintain the law. The reason for this is to prevent excesses of executive power, which, according to the complainants, is clearly due to the non-transparent and disproportionate scope of compulsory vaccination, contrary to the interest of minors. If the Ministry of Health has so far modified the compulsory vaccination institute only by a decree as a substatutory legislation, the defence against such a departure is entirely justified by the rule of law. The complainants believe that the definition of the scope of the obligation to be vaccinated cannot be left to modify non-statutory rules. Scope of the limitation of fundamental rights due under Article 4 In the opinion of the complainants, the documents in the field of law must be adapted at least within the framework of the provisions against which the disease and when the person is required to undergo vaccination.
7. The complainants stressed that the legislation on compulsory vaccination against infectious diseases is in breach of Articles 5, 6 and 26 of the Convention for the Protection of Human Rights and the Dignity of a Human Being in connection with the application of biology and medicine, published under No 96 / 2001 Coll. s. s., ("the Biomedicine Convention '), as it infringes the limits on the limitation of the exercise of rights in the session to the required consent of the obliged person to carry out the health care procedure. In the case of compulsory vaccination, the condition that the measures are necessary in a democratic society is not fulfilled. In the case of tetanus vaccination, neither is the presumption that it is a restriction in order to protect public health.
8. In order to assess the necessity of measures in a democratic society, a proportionality test or a necessity test should be carried out. Necessity means that it is not possible to use a milder means to protect a certain social interest. The requirement of necessity is objective in nature. For example, in all countries, it is necessary, in order to protect public health, to isolate a patient with a serious infectious disease that can be transmitted to others. It is precisely the fact that a measure is being taken in all democratic countries that is a sign of necessity. However, if compulsory vaccination of children is not required in countries with the same or comparable epidemiological situation, such as Germany or Austria, it is difficult to defend this "necessity" in the Czech Republic. The attribute of the necessary measure is also its enforceable character. Restrictions on the exercise of the rights of individuals for the benefit of the public interest necessarily require that intervention can also be carried out against the will of the persons concerned. However, as part of the legal regulation of compulsory vaccination in the Czech Republic, this enforceability is lacking, which calls into question the necessity of this institute. The obligation to undergo vaccination is not acceptable due to the lack of an objective basis in the form of an independent and comprehensive analysis which would map the medical necessity and adverse consequences of the vaccination measure.
9. Furthermore, the complainants objected to the infringement of compulsory vaccination with the constitutionally guaranteed rights provided for in Articles 10 (1) and (2) and 15 (1) of the Charter. They stated that their underage daughter had chosen not to carry out vaccination for reasons of belief in the health of the child in his best interest. According to the complainants' view, the mandatory vaccination legislation applied in administrative proceedings constitutes an unconstitutional interference with the right to preserve human dignity, to protect privacy and freedom of thought and conscience. The complainants supported their legal argument by the finding of the Constitutional Court, sp. zn. III. ÚS 449 / 06 of 3 February 2011 (N 10 / 60 SbNU 97), from which they concluded that, in exceptional cases where vaccination of a child contradicts the thinking and conscience of parents, parents cannot be penalised for non-vaccination of children. They considered that they fulfilled all the criteria in order to recognise the exception in their case, or that, in view of the absence of material aspects of the infringement, they would not be penalised in administrative proceedings. However, they were punished by a fine and their administrative action was dismissed without having properly dealt with the impact of the Constitutional Court's legal opinion on the case before them.
10. On the basis of that finding, page III, ÚS 449 / 06, the complainants further developed a thesis according to which the public authorities must not enforce compulsory vaccination if there are circumstances which substantially call for the maintenance of the autonomy of the person concerned and for exceptional non-imposition of penalties for infringement of the obligation to submit to vaccination. The administrative review shall take into account all relevant facts, in particular the constitutional intensity and urgency of the reasons against the obligation to submit to the vaccination, as well as any danger to the society which the person who violates the vaccination obligation may give rise to his approach. However, no evidence of the social danger of the act under consideration was found in the administrative proceedings with them.
11. The complainants pointed out that parents' access to vaccination of their children is always a manifestation of their inner beliefs and constitutionally guaranteed rights. It cannot be objectively assessed which approach to vaccination is rational for the benefit of the child or for the protection of public health. The opinions of both physicians and other practitioners on the vaccination and the extent to which it is needed, including an evaluation of the effectiveness, utility or vice versa, differ. There are no relevant studies to compare the long-term health status of vaccinated and unvaccinated individuals. Nor is it possible to clearly assess to what extent vaccination in the past has contributed to the exclusion or reduction of infectious diseases and to what extent hygiene and improvement of the standard of living of the population have taken place. Each person's attitude towards vaccination is based on his personal relationship to the problem, not objective data. It is therefore unthinkable that the administrative authority should examine the "correctness" or "rationality" of the parents' conviction of the inadequacy of vaccination of their child. Such a review would be a manifestation of the state's unacceptable independence in the private sphere of natural persons.
12. Of course, parents' convictions do not always outweigh other interests. For example, it is permissible to treat the child against the will of the parents to save his or her life or maintain his or her health, or to impose quarantine on a person with a serious infectious disease. However, in the case of regular (not exceptional) vaccination of a healthy person, another interest in respect of the freedom of parents' thinking and conscience and the physical integrity of a minor child can never, by its very nature, outweigh any other interest.
13. The complainant's repeated objection was intended to contradict the rules on compulsory vaccination with fundamental rights to the integrity, privacy and health of a person within the meaning of Articles 7 (1) and 31 of the Charter. Moreover, the Biomedicine Convention provides in Article 24 for a claim for compensation for damage caused by a medical procedure: "A person who has suffered disproportionate damage by the procedure shall be entitled to fair compensation under the conditions and procedures laid down by law. 'However, this postulate is not in line with a situation in which vaccination is required by the State, but at the same time the same State has not assumed any responsibility for its possible side effects and for the damage caused by vaccination. Any negative consequences of vaccination, including the costs incurred to treat health damage, remain with the persons concerned. According to the complainants, the legal situation described is contrary to the requirement of the European Court of Human Rights (" ECHR') to a fair balance between the public interest and the rights of the individual.
14. The complainants therefore opposed the contested legislation in several ways. First of all, it was accused of the absence of an amendment to the scope and method of compulsory vaccination directly in the law, although this regulation directly affects the fundamental rights and freedoms of persons vaccinated and their parents. In their view, vaccination against communicable diseases is also not to be made compulsory, in particular given the epidemiological situation in the Czech Republic and the comparable situation in other European countries. At the same time, the complainants argued that the administrative authorities and administrative courts did not take account of the specific circumstances of their case when imposing the fine, in particular the reasons for which they did not provide the synergies necessary for the vaccination of minors. Finally, they considered that natural persons, in order to protect against the adverse consequences of vaccination, should be fairly compensated if they suffer material harm to their health as a result of vaccination.
Observations of the parties
15. The Chamber of Deputies of the Parliament of the Czech Republic, in its observations reached the Constitutional Court on 24 October 2014, limited itself to a description of the progress of the legislative process leading to the adoption of the laws whose provisions are the subject of the proposal. She stated that both chambers of Parliament of the Czech Republic had given their consent to the draft laws through the constitutional procedure, the laws were signed by the relevant constitutional authorities and properly declared. In conclusion, it was for the Constitutional Court to consider the question of the unconstitutionality of the contested legal provisions and decide on the application for their annulment.
16. The expression of the Senate of the Parliament of the Czech Republic was delivered to the Constitutional Court on 23 October 2014. After summarising the essential content of the constitutional complaint, the Senate gradually expressed its views on the contested provisions of the Act on Public Health Protection and the Act on Infringements. In both cases, he did so with emphasis on the process of adopting the bill; for the provisions of Section 46 of the Act on Public Health, he also cited part of the explanatory memorandum to the original text of the Government Bill and the selected content of the discussion of the Senate plenary. Finally, it stated that it sent its observations in the knowledge that it was entirely up to the Constitutional Court to examine and rule on the application for annulment of the contested legal provisions.
17. The Government of the Czech Republic informed on 27. 10. 2014 that it did not exercise its right to enter the proceedings under § 69 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, ("the Law on the Constitutional Court") because it considers that its participation in this particular procedure is not necessary. It stated that the Constitutional Court, with an objection to the unconstitutionality of the penalty for failure to submit to compulsory vaccination as well as to the question of constitutional conformity laid down by law, dealt with the regular vaccination in detail in its finding of 3 February 2011, sp. zn. III. ÚS 449 / 06 (see above). The conclusions of the marked decision were repeatedly addressed by the Constitutional Court [see, for example, Resolution sp. zn. II. ÚS 409 / 14 of 15.4.2014, Resolution sp. zn. III. ÚS 271 / 12 of 24.1.2013 (available at http: / / nalus.ujud.cz)] and the Government fully agrees with them.
18. The Government's communication then refers to its comments on the question of the legitimacy and rationality of the statutory obligation to submit to the regular vaccination or legitimacy of the objective pursued by the legislation on compulsory vaccination against infectious diseases (protection of public health). This statement has already been sent by the Government to the application which is the subject of proceedings before the Constitutional Court under the sp. zl. Pl. ÚS 16 / 14 concerning the review of the constitutionality of Section 50 of the Act on Public Health Protection and the provision of Section 34 (5) of Act No. 561 / 2004 Coll., on pre-school, primary, secondary, higher vocational and other education (Education Act).
19. The Ombudsman sent a submission to the Constitutional Court stating that she did not exercise the rights of entry into the proceedings. However, it attached a text in which it was referred to as amicus curiae and in which it expressed its conviction about the necessity of a revision of the compulsory vaccination system against infectious diseases in the Czech Republic, however it did not question the system as such. It summarized the experience of the Ombudsman's Office, according to which the complainants most often criticise the scope of compulsory vaccination, the adverse effects of vaccination, the lack of information from parents and some practical problems (for example, the reimbursement of certain vaccines from the public health insurance system). Some neurologists and allergologists were also alerted to the risks of the current vaccination system. It itself repeatedly draws attention to the need for an individual approach in the application of the Act on the Protection of Public Health in summary reports; the current legislation gives only minimal scope for exemptions and provides for significant penalties. Already in 2004, the Ombudsman asked the Ministry of Health to start dealing with possible exceptions to compulsory vaccination and to consider the possibility of amending legislation. The Ombudsman now, aware of the risk of rejecting a substantive debate and resisting the Gestor legislation on any changes, noted that the possible repeal of the provisions of Paragraph 46 of the Public Health Act would not necessarily constitute a challenge to the compulsory vaccination system itself in the Czech Republic. On the contrary, it could open up the much-needed scope for its revision, based on a serious expert debate, to the need for the existing scope of compulsory vaccination for children compared to the risk of non-vaccination for both individuals and society (taking into account possible undesirable effects of vaccination). The much-needed confidence in the chosen vaccination system can also support a more sensitive individual approach, the "release" of the vaccination calendar or the payment of more gentle vaccines from the public health insurance system.
Conditions for the applicant's active legitimacy
20. The complainants have proposed the annulment of the above mentioned legal provisions together with a constitutional complaint lodged pursuant to § 72 (1) (a) of the Constitutional Court Act. Their active legitimacy to submit an accesoric proposal for a specific standard control is based on Article 64 (1) (e), in conjunction with Article 74 of the Constitutional Court Act. The Constitutional Court had first to examine whether the conditions for bringing such an application on the part of the complainants were met.
21. The condition of the application pursuant to the provisions of § 74 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., is "the application" of the contested law. This means that the application of the provision in question has been brought about by a legal fact (decision, measure or other intervention by a public authority) which is the subject of a constitutional complaint and has manifested itself negatively in the individual legal sphere of the complainant, i.e. a alleged breach of his constitutionally guaranteed fundamental rights and freedoms. There must be a close link between the constitutional complaint challenged by a decision, measure or other intervention by a public authority and the legislation (its provision) proposed for annulment in the sense that, if it were not for the contested provision of a law, there would not be a legal act of public authority as a consequence of it.
22. The proposal to repeal the provisions of Paragraph 46 of the Public Health Protection Act and of Paragraph 29 (1) (f) of the Infringement Act for their contraventions with the calculated provisions of the Convention, the Constitution and the Charter was submitted by the complainants, together with the constitutional complaint made under point I. ÚS 1253 / 14. The real basis of the constitutional complaint was their opposition to taking responsibility for the child to undergo the scheduled regular vaccination. They opposed the decision on an administrative penalty (fine) imposed on them for lack of cooperation (they did not respect the vaccination calendar, therefore no vaccination) with the health service provider. On 7 July 2009 they were fined each of them in the amount of CZK 6 000 and after their appeal the Ministry of Health reduced the fine to CZK 4 000 by decision of 13 August 2009. The complainants brought an administrative action, which was first brought by the judgment of the Municipal Court in Prague of 27 August 2010 No 4 Ca 26 / 2009-56 and the decision of the Ministry was annulled, but then the Ministry lodged a complaint against the judgment of the Court of Cassation and the Supreme Administrative Court by judgment of 29 May 2012 No 4 As 8 / 2011-98 annulled the judgment of the Municipal Court in Prague and the case was referred back for further examination and judgment. The new judgment of the Municipal Court in Prague of 31 October 2012, No 4 A 43 / 2012-118, was followed by which the complaint was dismissed. After lodging a complaint with the complainant, the Supreme Administrative Court dismissed the complaint by judgment of 17 January 2014 No 4 As 2 / 2013-75; the legal power of the judgment occurred on 4 February 2014.
23. The described facts, which intervened in the legal sphere of the complainants in the immediate context of the required compulsory vaccination of their daughter (third complainant), were based on the application of the provisions of Section 46 of the Public Health Protection Act in conjunction with Decree No. 537 / 2006 Coll., on vaccination against infectious diseases, as amended, issued by the Ministry of Health on 29.11.2006 (hereinafter referred to as the "Implementing Decree") and its modified procedures in the implementation of the compulsory vaccination. The complainants contested Article 46 of the Act on Public Health in the absence of an indication of the whole facts of the vaccination obligation in the law (see paragraph 14) and, moreover, concluded that without the legislation of the obligation to submit to vaccination against infectious diseases, there would be no administrative proceedings against them, no fine would be imposed on them and there would be no interference in their free sphere of decision-making on the matters of the child (they did not allow their daughter to be vaccinated on the grounds of "conscience and thinking, ethical and philosophical beliefs, and their conviction of the best interest of the minor in protecting her health ').
24. The conduct of the first two complainants, motivated by the intention not to have their daughter vaccinated (the third complainant), was assessed as fulfilling the substantive nature of the infringement under the provisions of § 29 (1) (f) of the Act on Infringements, according to which the offence in the health sector will be committed by those who infringe the prohibition or do not fulfil the obligation laid down or imposed to prevent the emergence and spread of infectious diseases.
25. In relation to the two legal provisions, the condition of the submission of an application under the provisions of § 74 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll. It was therefore necessary to give the complainants the active legitimacy to submit the proposal and their proposal to repeal the two legal provisions to the constitutional review.
Constitutional conformity of the legislative process
26. According to the provisions of § 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., the Constitutional Court ascertains whether the law has been adopted and issued within the limits of the Constitution laid down by competence and by the constitutional procedure.
27. Although the appellants did not object to the fault of the legislative process or exceeding the constitutional competence of the legislator, the Constitutional Court nevertheless verified the progress of the process of adopting the provisions in question, based on the observations submitted by the Chamber of Deputies of the Parliament of the Czech Republic and the Senate of the Parliament of the Czech Republic, as well as the publicly available information source at http: / / www.psp.cz.
28. The valid and effective text of Paragraph 46 of the Act on Public Health Protection, which is proposed for annulment, including the original text is also the result of amendments to Act No. 258 / 2000 Coll., on the Protection of Public Health and on the amendment of certain related laws, implemented by Act No. 274 / 2003 Coll., amending certain laws on the Protection of Public Health, Act No. 392 / 2005 Coll., amending Act No. 258 / 2000 Coll., on the Protection of Public Health and on the amendment of certain related laws, as amended, and certain other laws, Act No. 41 / 2009 Coll., on the amendment of certain laws in connection with the adoption of the Criminal Code, and Act No. 375 / 2011 Coll.
29. The Government submitted the draft of the original Act on Public Health Protection to the Chamber of Deputies on 10 February 2000 as House Press No. 538 / 0. The first reading took place on 23 February 2000, the bill was ordered to the Committee on Social Policy and Health. This committee discussed the draft law on 3 May 2000 and recommended that the Chamber of Deputies approve it as amended by the committee of proposed amendments. The second reading, including a detailed debate, took place on 18.5.2000 and the third reading on 25.5.2000. The Chamber of Deputies gave its assent to the draft law, in the text of the amendments adopted, in vote 258, in which 165 Members of the present Parliament voted in favour of the draft law, no Member opposed. The bill was passed on to the Senate on 7 June 2000. The Senate returned it to the Chamber of Deputies with amendments. The bill returned by the Senate was discussed by the Chamber of Deputies on 14 July 2000 and adopted by the Senate. In vote 699, 155 Members voted for 128, 13 Members voted against. After the adoption of the law and after the signature of the law by the relevant constitutional authorities, the law was declared in the Collection of Laws under No. 258 / 2000 Coll.
30. The draft law later marked No. 274 / 2003 Coll., amending certain laws on the section of public health protection, was submitted to the Chamber of Deputies by the Government as House Press No. 215 / 0. The first reading took place on 9 April 2003 and the press was ordered to the Committee on Social Policy and Health, which discussed it on 5 June 2003. The draft own-initiative law was discussed by the Committee on European Integration on 13 June 2003. Both committees have adopted amendments to the press, but without affecting the provisions of Paragraph 46. The second reading of the draft law took place on 3 July 2003 and the third reading took place on 8 July 2003. In vote No 390 of the 177 Members present, 127 Members voted in favour of the bill, 1 Member opposed. The bill was passed to the Senate on 14 July 2003, approved by the Senate on 7 August 2003, signed by the President on 20 August 2003 and was published in the Collection of Laws on 27 August 2003 under No 274 / 2003 Coll.
31. The draft law later marked no. 392 / 2005 Coll., amending Act No. 258 / 2000 Coll., on the Protection of Public Health and on the amendment of certain related laws, as amended, and certain other laws, was submitted by the Government to the Chamber of Deputies as Press No. 824 / 0 on 16 November 2004. The first reading took place on 14 December 2004 and the press was ordered to the Committee on Social Policy and Health, which discussed it on 9 March 2005. Neither in the Committee on Social Policy and Health, nor in the second reading in the detailed debate concerning the provisions of Section 46 of Act No. 258 / 2000 Coll. was an amendment tabled. The third reading of the draft law took place on 11 May 2005, in vote No 98 of the 195 Members present in favour of 112 Members, 56 were opposed. The bill was referred by the Chamber of Deputies on 23 May 2005 to the Senate, which rejected it on 17 June 2005. The Chamber of Deputies voted on the bill rejected by the Chamber of Deputies on 19 August 2005; in vote No 84 of the 184 Members present, 111 were opposed to the Act and 63 were opposed. The draft law was not signed by the President of the Republic and returned to the Chamber of Deputies on 12 September 2005. The Chamber of Deputies on the law returned by the President voted on 23 September 2005 and in vote No 87 of the 166 Members present voted on the law, against which 51 Members voted. The Act was published in the Collection of Laws on 27 September 2005 under No 392 / 2005 Coll.
32. The draft law later referred to as No. 41 / 2009 Coll., on the amendment of certain laws in connection with the adoption of the Criminal Code, was discussed as a government proposal in the Chamber of Deputies as Press No. 411 / 0. The Government's draft amendment to Act No. 258 / 2000 Coll. did not contain. The first reading of the draft law took place on 14 March 2008 and the press was ordered to the constitutionally legal committee while the deadline for hearing the draft was extended by 20 days. The Constitutional Legal Committee discussed the draft law on 19 June 2008. During the second reading of the detailed debate on 31 October 2008, Mr Radim Chryčka proposed to supplement the government proposal with additional standards to reflect the reduction of the age limit of criminal liability, including in the provision of § 46 of Act No. 258 / 2000 Coll. At the third reading, which took place on 11 / 11 / 2008, there was a vote in favour of Mr Catchet's motion in vote 46 of the 139 Members present, with 107 votes against. The draft law as a whole was voted against in vote 51 of the 140 Members present. The Senate approved the bill on 8 January 2009, the President signed it on 27 January 2009 and was declared in the Collection of Laws on 9 February 2009 under no 41 / 2009 Coll.
33. The draft Act later referred to as No. 375 / 2011 Coll., amending certain laws in connection with the adoption of the Law on Health Services, the Law on Specific Health Services and the Law on Medical Rescue Service, the Government presented to the Chamber of Deputies on 30 June 2011 as House Press No. 408 / 0. At the first reading on 12 July 2011, the proposal was ordered to discuss the Health Committee, while the deadline for discussing the proposal was reduced by 20 days in committees. The Health Committee discussed the draft law on 25 August 2011 and also discussed the proposal on 16 August 2011 on its own initiative. The second reading of the draft law took place on 30 August 2011. A summary of the amendments tabled was drawn up as House Press No. 408 / 3; no amendment concerned the contested provision. At the third reading, the bill was discussed by the Chamber of Deputies on 7 September 2011, approved in vote 101; of the 158 Members present, 92 Members voted in favour of the bill and 59 Members opposed. The Senate discussed the bill on 12 October 2011 and rejected it. The bill rejected by the Senate was discussed by the Chamber of Deputies from 3 to 6 November 2011. The Chamber of Deputies remained on the original text of the law, with 109 Members in favour voting against in vote 343 of the 179 Members present. The President of the Republic signed the Act on 22 November 2011, in the Collection of Laws the Act was published on 8 December 2011 under No 375 / 2011 Coll.
34. It is clear from the above recap of the legislative process that the provision of § 46 of Act No. 258 / 2000 Coll. was adopted in a constitutional manner.
35. The contested provision of Paragraph 29 (1) (f) of the Act on Infringements is the result of the amendment of the Act on Infringements implemented in § 113 (6) of Act No. 258 / 2000 Coll., on the Protection of Public Health and on the amendment of certain related laws [previously referred to as (g)]. The legislative process was also impeccable in this case (see paragraph 29 of this finding).
Abandonment of oral proceedings
36. When discussing the application, the Constitutional Court concluded that there was no need to order oral proceedings in the case, as it would not provide further clarification of the case. In accordance with Article 44 of the Law on the Constitutional Court, the Constitutional Court has therefore decided without holding oral proceedings.
Background of the review
37. The control of the constitutionality of the law is based on both material and formal criteria laid down in its text. The requirement of the appropriate form is that the law should promote the principle of legal certainty by its clarity and certainty and that, from its understandable and uncontradictory wording, the foreseeable consequences of the eventual arbitrariness on the legislature (see the findings of the Constitutional Court of 24.5.1994 sp. zn. Pl. ÚS 16 / 93 (N 25 / 1 SbNU 189; 131 / 1994 Sb.), of 23.5.2000 sp. zn. Pl. ÚS 24 / 99 (N 73 / 18 SbNU 135; 167 / 2000 Sb.), of 4.7.2000 sp. Pl. ÚS 7 / 2000 (N 106 / 19 SbNU 45; 261 / 2000 Sb.), of 12.2.2002 sp. The material criterion is concentrated on the value aspect of legislation. In the present case, the maximum amounts expressed in Article 2 (3) of the Constitution, in Article 2 (2) of the Charter and as set out in Article 4 (1) and (2) of the Charter, according to which it is permissible to apply state power only within the legal limits, obligations may be imposed only on the basis of the law and within its limits, while respecting fundamental rights and freedoms and the legal limits of fundamental rights and freedoms, must respect the conditions laid down by the Charter.
38. The Constitutional Court notes that the complainants have not further developed in their objections the claim that, in the absence of the synergies necessary for vaccination of their daughter, they acted according to their conscience and conviction (cf. citation in point 23 in fine). If they argued simply by reference to Article 15 of the Charter on Freedom of Thought, Consciousness and Religious Religion, as well as to Article 9 of the Convention on Similar Content, the subject of their objections the Constitutional Court had no reason to consider, in particular when it found the core of the proposal on compliance with the law and the legality of the legislation on compulsory vaccination.
39. The Charter on the Protection of Property was clearly motivated by the fact that they were fined by a final decision for an administrative offence (reducing their property), which was subsequently maintained in the review by administrative courts. However, the reply to this objection was dependent on the decision of the Constitutional Court on the constitutionality of the provision of Paragraph 29 (1) (f) of the law on infringements, which is justified in its conclusions on the basis of the operative part of the finding.
40. The common denominator of the complainants' objections based on constitutional guarantees of individual autonomy and the prohibition of penalties for the application of fundamental rights and freedoms (Articles 2 (3), 3 (3) of the Charter) is their close link to the objections to the existence of the mandatory vaccination legislation itself and to the absence of a health compensation scheme in relation to compulsory vaccination (see paragraph 14). Considerations on the potential interference in the articles cited in the Charter have become the subject of an interpretation by the Constitutional Court of the reservation of the law and the necessity of the compulsory vaccination legislation without any reason to divide them from the text. The issue of compensation for health damage is discussed in the findings of the finding.
41. Obligation, within the meaning of the catalogue of fundamental rights and freedoms, means an individual's obligation to a society the fulfilment of which may be required in the public interest, i.e. in the interests of the particularly protected values of the democratic rule of law. The determination of the obligation is bound by law, with the fact that the lower legal force standard which specifies the obligation in question must immediately implement the initial regulatory act and respect the limits contained therein.
42. The Act therefore imposes primary obligations which may be developed in detail by statutory provisions (Articles 78, 79 (3), 104 (3) of the Constitution). Underlaw regulation must move secundum et intra legem. The legislature is not entitled to delegate to the executive authority the regulation of those obligations which are the content of the relevant legal regulation, define it and determine its purpose and purpose [see the finding of the Constitutional Court of 14.2.2001 sp. zn.
43. The Constitutional Court stated, in its judgment of 3 February 2011 in sp. zn. It also stated that the Convention on Biomedicine, which, according to the case law of the Constitutional Court, is part of the constitutional order of the Czech Republic [cf. the finding of 25.6.2002 sp. zn. Pl. ÚS 36 / 01 (N 80 / 26 SbNU 317; 403 / 2002 Coll.)], does not in principle provide for the possibility of the Constitutional Court to review the constitutionality or inconstitutionality of the legal obligation itself to submit to a certain type of vaccination. However, although the Biomedicine Convention provides for a fundamental right not to be subjected to any health care operation without its consent (Article 5 or for persons unable to consent to Article 6), it also recognises in Article 26 restrictions on that right if such restrictions are prescribed by law and are necessary in a democratic society in the interests of public security, crime protection, protection of public health or protection of the rights and freedoms of others. According to the Constitutional Court, a decision by the legislature that a particular type of vaccination will be compulsory is therefore a decision which makes the possibility provided for explicitly in Article 26 of the Biomedicine Convention. According to the Constitutional Court, "[J] is referring to a decision that is primarily a political and expert issue, and therefore there is a very limited possibility of the independence of the Constitutional Court. Such a decision of the legislator enjoys a relatively large margin of political discretion in relation to the Convention cited (NB: Understand the Biomedical Convention), under which a decision of the legislature (or of the executive implementing regulation) on the obligation to submit to a particular type of vaccination cannot be reviewed. The Constitutional Court is a judicial authority for the protection of constitutionality, and its decision cannot in principle replace the conclusion of the legislator or executive that certain infectious diseases require compulsory vaccination. '
44. The ECHR interprets in its (albeit rather sporadic) case-law the relationship of compulsory vaccination against infectious diseases to human rights in the intentions of the Biomedicine Convention. It shall in particular respect the structure of this Convention, in which Article 26 of the Convention provides for the probation of the restrictions necessary in a democratic society similar to those calculated in the second "restrictive" paragraphs of Article 8 to 11 (European) of the Convention. Thus, as interpreted by the Constitutional Court in reference to Article 26 of the Biomedical Convention, the legislation on compulsory vaccination remains the domain of national adaptations.
45. These conclusions are confirmed by the ECHR judgment in the Solomachin case against Ukraine of 15 March 2012 No 24429 / 03 on aspects of the right to respect for private and family life under Article 8 of the Convention. The subject of the complaint was the decision of the Ukrainian judiciary on the injury caused to the complainant by the compulsory vaccination. The ECHR noted that the physical integrity of a person is subject to the protection of private life under the cited article of the Convention. Medical performance, even a low degree of severity, is an intervention in the right to privacy, which limits individuals. Compulsory vaccination is, as against a person forced by medical performance, part of the intervention in its physical integrity. However, the intervention took place on the basis of the law and with a legitimate intention of protecting health. It was justifiable in the interests of public health in order to prevent the spread of infectious disease in the region.
46. In Article 12 of the International Covenant on Economic, Social and Cultural Rights (No 120 / 1976 Coll.), the Parties undertake to take measures, inter alia, to ensure the healthy development of the child and to prevent, treat and combat epidemic diseases [2 (a), (c)]. The European Social Charter (No 14 / 2000 Coll.) contains Article 11 entitled "The right to health protection, the text of which is as follows:" In order to ensure the effective application of the right to health protection, the Contracting Parties undertake, either directly or in cooperation with public and private organisations, to take measures aimed at: 1. the removal of the causes of diseases as far as possible; 2. provision of advisory and educational services to promote health and increase individual responsibility in health matters; 3. the greatest possible prevention of epidemic, endemic and other diseases. "
47. Pursuant to Article 35 of the Charter of Fundamental Rights of the European Union entitled Health Protection, everyone has the right to access preventive health care and to provide medical care under the conditions laid down by national legislation and practice. A high level of protection of human health is to be ensured in defining and implementing all Union policies and activities. The principles set out here are based on Article 168 (Public Health) of the Treaty on the Functioning of the European Union, as amended by the Treaty of Lisbon. The Court of Justice of the European Union, which was asked by the Supreme Court of the Slovak Republic of the possibilities, limits and impacts of national arrangements for compulsory vaccination in relation to Union rules, refused by order of 17 July 2014 under sp. zn. C-459 / 13, the question referred for a preliminary ruling on the inadmissibility of that material being an exclusive matter of national legislation and judicial systems.
The contested provisions and the summary of the content of the implementing regulation
48. Paragraph 46 of the Act on Public Health Protection reads as follows:
(1) A natural person who has a permanent residence in the Czech Republic, a foreigner who has been granted permanent residence, a foreigner who is entitled to permanent residence in the Czech Republic, and a foreigner who has been authorised temporary residence in the Czech Republic for more than 90 days or who is entitled to stay in the Czech Republic for more than 90 days, are required to submit to, in the implementing legislation of the modified cases and dates, a specified type of periodic vaccination. The implementing legislation laid down by natural persons and natural persons to be assigned to a higher risk of infectious diseases shall be subject to the specific vaccination to a specified extent.
(2) Before carrying out periodic and specific vaccination, a natural person shall be required to undergo an immunity test (resistance) in cases covered by the implementing legislation. Regular and specific vaccination shall not be carried out when immunity to infection or medical conditions are detected which prevent the administration of the vaccine (permanent contraindication). The health service provider shall issue a certificate to the natural person and enter the reason for the waiver in the health file.
(3) Where the competent public health authority finds that a minor natural person has not undergone the vaccination or examination referred to in paragraph 2 and is a minor natural person who does not have an elected practitioner, it shall, by decision, require him to submit to such vaccination or examination with a designated health service provider.
(4) A person who has not completed the 15th year of his or her age shall be responsible for the performance of his or her legal representative's duties under paragraphs 1 to 3.
(5) The public health authority which has issued the decision referred to in paragraph 3 will ask the designated health service provider to carry out vaccination or examination. The designated health service provider shall comply with the request.
(6) The implementing legislation shall provide for the breakdown of the vaccination and the conditions for the carrying out of the vaccination, the means of investigating the immunity, the workplaces with a higher risk of infection and the conditions under which the individual may be assigned to a higher risk of infection in connection with the specific vaccination.
49. The text of Paragraph 29 (1) of the Infringement Act is as follows in the relevant section:
Transfers to the health sector
(1) The transfer shall be made by the person who:
(f) infringes or fails to comply with the obligations laid down or imposed to prevent and spread infectious diseases,...
50. The implementing regulation (see empowerment in § 46 paragraphs 1, 2 and 6 of the Act on Public Health Protection) for vaccination is Decree No. 537 / 2006 Coll., on vaccination against infectious diseases, as amended. This Decree, in the initial provision of Paragraph 1, declares that its subject matter is "(a) the breakdown of the vaccination, the conditions for vaccination and passive immunisation, the methods of investigating immunity, the higher risk of infectious disease and the conditions under which the specific vaccination of a natural person may be included in those centres, (b) the cases where, prior to carrying out the periodic and specific vaccination, the natural person is required to undergo an examination of the immune state and where he is required to undergo a specific type of vaccination, and (c) the extent of the registration of the vaccination carried out in the child's and minor health and medical documentation."
51. in Article 2 of the Ordinance, as provided for in the marginal section "Vaccination breakdown," points (a) to (e) of paragraph 1 shall include vaccination against infectious diseases at (a) regular, (b) special, (c) exceptional, which means vaccination of natural persons to prevent infections in emergency situations, (d) vaccination in accidents, injuries, non-healing wounds and against certain treatments, against tetanus and rabies, and (e) vaccination carried out at the request of a natural person wishing to be protected against infections in which the vaccine is available. For regular and specific vaccination, a list of the diseases against which these two types of vaccination are carried out is given. According to paragraph 2 of that provision, periodic vaccination shall be carried out as either (a) basic or (b) re-vaccination; in both vaccines, one or more doses of vaccine are given to achieve the desired effect.
52. The provisions of Articles 3 to 7 of the Implementing Decree contain an adjustment to the course of the regular vaccination against the diseases indicated therein, including the period during which vaccination is to take place. The following is the adaptation (§ 9 to 11, 13) of the specific vaccination for which the characteristics of the workplace and the persons (s) for whom vaccination is to be carried out. The provisions of Sections 14 to 18 lay down the common conditions for vaccination (tools, vaccines), the conditions for passive immunisation (administration of another substance to the vaccine), the definition of workplaces with a higher risk of infectious diseases, the conditions for the inclusion of individuals in such workplaces and the scope of the registration of vaccination in the vaccination or health certificate of children and adolescents. The transitional and repeal provisions of the Decree are then followed.
Judgments on vaccination obligations in relation to fundamental rights and freedoms
53. The Supreme Administrative Court, in its Resolution of the enlarged Chamber of 3 April 2012 No 8 As 6 / 2011-120 (No 2624 / 2012 Coll. NSS), dealt with a contradiction of the legal views of the Chambers of the Court in the assessment of situations in which the child was not admitted to the nursery as a result of a lack of vaccination against three children's diseases, as well as the imposition of a penalty for refusing parents' consent to the periodic vaccination of the child. In this context, it became necessary to answer the question whether the legislation on compulsory vaccination against infectious diseases could be maintained in terms of the content or proportion of the formalities included in the provisions of Section 46 of the Public Health Protection Act, on the one hand, and their specification in the Implementing Decree on the other. The Supreme Administrative Court concluded that "[R] the rules governing the obligation of natural persons to undergo vaccination laid down in Article 46 of Act No. 258 / 2000 Coll., on the protection of public health, and its specification in Decree No. 537 / 2006 Coll., on vaccination against infectious diseases, comply with the constitutional requirements under which obligations may be imposed only on the basis of the law and within its limits (Article 4 (1) of the Charter of Fundamental Rights and Freedoms) and the limits of fundamental rights and freedoms may be governed only by law (Article 4 (2) of the Charter of Fundamental Rights and Freedoms). '
54. In the resolution cited, the Supreme Administrative Court stated that Article 26 (1) of the Biomedicine Convention, inspired by similar texts of the European Convention, is part of the international human rights treaty and implies a postulate of the restriction of fundamental law only by law. However, the Court recalled the interpretation of this requirement: it does not always have to be a law, but also a "law 'in the material sense (including, for example, settled caselaw), which has a certain quality and is given as a legal rule by accessibility, sufficient clarity and predictability. The requirements of Article 4 (1) and (2) of the Act of Reservation when imposing obligations were fulfilled in the case under examination, in the view of the Supreme Administrative Court. Paragraph 46 of the Act on the Protection of Public Health considered the Court to be constitutional in conformity with the requirement that the vaccination obligation and its limits be regulated by the law and that this obligation should be specified by the implementing regulation. However, although the enlarged Chamber acknowledged that one of the competing Chambers was justified in its objection that the Implementing Decree contained more details than other implementing rules, it did not consider this to be a qualitative difference which would trigger the inconstitutionality of the legislation under consideration. The legislature followed legitimate reasons where it defined in the provisions of Section 46 of the Public Health Protection Act the vaccination obligation as a framework and left the determination of cases and dates for the fulfilment of this obligation. The enlarged Senate of the Supreme Administrative Court stated that" the question of whether and to what extent to establish a vaccination obligation has aspects not only professional but also political, since this obligation always represents a certain limitation of the fundamental rights and freedoms mentioned, while at the same time distinguishing views on the benefits or vice versa of certain undesirable effects of vaccination in specific cases'.
55. The complainants did not object to a breach of the fundamental right to life under Article 6 of the Charter (Article 2 of the Convention). This right is linked, inter alia, to a positive commitment by the State to take the necessary measures to protect patients' lives in the implementation of health care. In addition to immediate life-saving measures, preventive measures are also appropriate. However, the case-law of the ECHR (cf. Solomachin against Ukraine) does not support the possibility that a causal link with Article 2 of the Convention (closer to Drgonec, J. Compulsory vaccination of verzus fundamental rights guaranteed by the Constitution of the Slovak Republic would arise when implementing compulsory vaccination against infectious diseases. Judicial revue No 2 / 2014, p. 226, 227, and the Commission Decision of the ECHR in Case X v Austria of 13.12.1979 No 8278 / 78 cited therein).
56. In assessing the relationship between the legal arrangements for compulsory vaccination and fundamental rights and freedoms, it is necessary to highlight the provisions of Article 7 (1) of the Charter according to which the integrity and privacy of a person is guaranteed and may be limited only in cases provided for by law. The introduction of the vaccine into the human body to cause a long-term response of the immune system is an intervention in body integrity. Article 7 (1) The Charter is a specification of a more general guarantee of the protection of private and family life from unauthorised interference, guaranteed in Article 10 (2) of the Charter. The right to the integrity and privacy of a person is already significant because of its location in the structure of the Charter; It is a provision in the foreground of the regulation of fundamental human rights, which, in the hierarchical order of objective values of constitutional order, has a higher weight as a guarantee reflecting the "classical" fundamental right than the authorisation resulting solely from constitutional soft law [see the finding of the Constitutional Court of 6.3.2012 sp. zn. I. ÚS 823 / 11 (N 44 / 64 SbNU 521)].
57. Another provision on the fundamental right, which is directly related to the regulation of compulsory vaccination against infectious diseases, is already judged by the Constitutional Court (cf. point 43) of Article 16 of the Charter of Freedom to express religion or belief and the autonomy of churches. The finding, sp. zn. III. ÚS 449 / 06 resulted in a legal sentence according to which "the [O] constitutional principle, which is based on the requirement to maintain a maximum of both the fundamental right and the fundamental right of conflicting public interest, is reflected in the interpretation of Article 16 (4) of the Charter of Fundamental Rights and Freedoms, so that the Constitution of the Czech Republic requires compulsory vaccination not to be enforced against compulsory subjects in exceptional cases." It is worth noting that the Constitutional Court, when seeking to address this exception to compulsory vaccination, based not on the opinion of the Committee on Human Rights and the biomedical body of the Council of the Government of the Czech Republic on human rights, which acted as an amicus curiae in the proceedings on a constitutional complaint. The Committee on Human Rights and Biomedicine stated that, in view of the high level of vaccination of the population (above 90% expected), exceptional non-enforcement of vaccination, given the exceptional circumstances of the case, cannot jeopardise the constitutionally protected interest in protecting public health. The Constitutional Court then, in the statement of reasons for the finding, inter alia, which annulled the judgment of the Supreme Administrative Court, stating that it had intervened in Article 16 of the Charter, caused the complainant's fundamental right to express his religion or faith freely within the meaning of Article 16 (1) of the Charter. However, he admitted that the exercise of that fundamental right is not unrestricted but is subject to a legal restriction under Article 16 (4) of the Charter (measures in a democratic society necessary to protect public security and order, health and morality or the rights and freedoms of others). If, however, the Constitutional Court has decided in favour of the complainant, it has also done so with regard to Article 32 (4) Documents concluding that the complainant's fundamental right under Article 16 (1) The documents in this case are also supplemented by the complainant's basic right as parents.
58. In the general context of the interpretation of fundamental rights in relation to compulsory vaccination, it should be noted that it is undoubtedly important, but not decisive, that complainants object to the intervention of the right to health (Article 31, first sentence of the Charter). The particular interest of parents in protecting their child's health cannot be neglected. However, it is opposed to a wider interest in protecting public health, which is reflected in the preventive nature of the public vaccination of the population with the legitimate aim of preventing the occurrence and spread of infectious diseases among people. The Health Rights Accent lies here in the area of a positive commitment by the State to contribute concrete measures to the protection of the health of citizens (cf. Wagner, E., Šiměl, V., Langášek, T., Pospíšil, I. et al., Charter of Fundamental Rights and Freedoms. Comment. Praha: Wolters Kluwer ČR, 2012, p. 645, Article 31 of the Charter commented by J. Winter).
59. According to Article 32 (4) of the First Charter, care for children and their upbringing is the right of parents; at the same time, children are entitled to this parental education and care. The Constitutional Court has already expressed in its caselaw the legal view that the autonomy of parents in deciding on medical interventions towards their children is not absolute. It may exceptionally be limited, even if parents do not agree to a medical procedure for religious reasons [see the finding of 20.8.2004 sp. zn. III. ÚS 459 / 03 (N 117 / 34 CollNU 223)]. Protection of the health and life of the child is a relevant and more than sufficient reason for interference with parental rights, as it is a value whose protection is a priority in the system of fundamental rights and freedoms. General courts are then obliged to seek consistency between the interests of the child and those of his parents when deciding on specific cases.
Reservation of the Law
Judicial Postulates
60. The Convention uses "prescribed by law" (e.g. Article 9 (2)), "provided for by law" (second sentence of Article 1 of the Additional Protocol) or "in accordance with law" (Article 2 (3) of Protocol No 4) in the context of the requirement of the necessary regulation of the issue; in the French version, there are also different verbal links, such as "prévue par la loi '(Article 8 (2) of the Convention). In all cases, the European document means not just' law 'but' law '. The wording implementing the law's reservation must be laid down by a right perceived in the material sense of the word and not only the law written under it but also the law of the unwritten and judicial (Sanoma Uitgevers B. V. against the Netherlands, judgment of the Grand Chamber of the ECHR of 14.9.2010 No 38224 / 03). The ESLP considers not only the laws, but also the legislation of lower legal force, the legislative acts issued by professional organisations and other similar sources to be written here (see, again, Sanoma Uitgevers B. V., also Leyla, Lehin against Turkey, judgment of the Grand Chamber of 10 November 2005 No 44777 / 98).
61. The law's reservation requires that the substantive issues of the matter be governed by the law, that the legal standards governing those issues contain at least the facts and the consequences thereof, and the more important the material is regulated, the more detailed the legislation must be. The law fulfilling the law's reservation provides for clarity so that its addressees are able to understand its content and its impact and adapt its behaviour, including anticipation of its consequences (see the comment cited in paragraph 58, p. 25, 129, author E. Wagner).
62. The formal and material requirements for the sublegal norm and thus its modulation in relation to the content of the "default" law summarises the findings of the Constitutional Court of 14.2.2001 sp. zn. ÚS 45 / 2000 (N 30 / 21 SbNU 261, 270; 96 / 2001 Coll.). According to him, the constitutional definition of the derived standard of execution rests on three principles. They are the issuing of a statutory standard (implementing regulation, in the case referred to above, a government regulation) by an authorised body, a ban on interfering with such a standard in matters reserved for the law (which cannot provide for primary rights and obligations) and the existence of the legislator's apparent will to regulate above the legal standard (for the sphere of the derived standard, space must be opened).
63. The ratio of law and implementing regulation was also described by the Constitutional Court in the decision of 16 October 2001 sp. zn. Pl. ÚS 5 / 01 (N 149 / 24 SbNU 79, 89; 410 / 2001 Coll.). It concluded that "the contested regulation does not infringe the reservation of the law, since it only, on the basis of explicit legal authorisation, specifies the issue laid down in the fundamental features of the law itself. The opposite conclusion, which would require the imposition of any obligation directly and exclusively by law, would obviously lead to absurd consequences, namely to deny the meaning of secondary (and, in some cases, primary) standards, since the definition of certain rights and obligations of the addressees of the standard is a conceptual part of each legal standard. '
Assessment of the legal text
64. The Extended Chamber of the Supreme Administrative Court considered, in its Resolution sp. zn. 8 As 6 / 2011 (paragraphs 53, 54), it decisive that Paragraph 46 (1) of the Act on the Protection of Public Health clearly provides for certain groups of natural persons to undergo regular vaccination or specific vaccination. It shall follow the obligation provided for in paragraph 2, according to which it is necessary to undergo an examination of the immunity status (resistance) before vaccination or to respect the outcome of a medical finding preventing the administration of the vaccine (permanent contraindication). The following paragraphs 3 to 5 address related issues (decision on the obligation to undergo examinations, the legal representative responsible for the person who has not completed the 15th year of age, the interaction of the public health authority with the health service provider). The last paragraph 6 entrusts the Implementing Decree (see also Section 108 of the Act on the Protection of Public Health) to the classification of vaccination per species and the conditions for carrying out vaccination. The Supreme Administrative Court concludes that the provisions of Paragraph 46 of the Act on the Protection of Public Health provide for a framework, but sufficiently clearly and definitely, for the selected groups of natural persons, a vaccination obligation (whether within one or the other type of vaccination) and a related obligation to submit to the testing of the immune status of the organism prior to vaccination, or to the conclusion of an examination preventing the administration of the vaccine. In particular, the Implementing Decree specifies which infectious diseases and the dates on which the obligation to submit to a particular type of vaccination (in particular regular vaccination, specific vaccination or exceptional vaccination) takes place and also provides for further details.
65. The Constitutional Court points out that Paragraph 1 of Paragraph 46 of the Act on the Protection of Public Health provides for the definition of a natural person who is obliged to submit to the relevant vaccination obligation. The definition statement contains the necessary characteristics related to this person who is permanently resident with a Czech citizen and with a foreign citizen entitled to permanent or temporary residence, with a minimum stay exceeding 90 days. The definition of the species and dates of the periodic vaccination shall be left to the Implementing Decree; By analogy, the establishment of a range of natural persons and workplaces under the obligation to undergo specific vaccination shall be transferred to the implementing act. Such an adjustment is correct and sufficiently distinguishes what aspects of it already exceed the necessary degree of generality.
66. Part of the legal definition of a person obliged to undergo vaccination shall include the responsibility of the legal representative of a person under the age of 15, as provided for in paragraph 4. Similarly, paragraphs 2 and 3 of § 46 of the Act cited are worded in such a way that the addressee of the legislation is in no doubt able to know that he is obliged to undergo an examination of the immune state of his body which may lead, as well as any other finding on his health, to the conclusion that the vaccine is not administered (permanent contraindication). In the event that a minor does not undergo vaccination or an examination prior to him or her and does not have an elected practitioner, the obligation to undergo vaccination or examination with a designated doctor (health service provider) shall be laid down by a decision of the public health authority. According to the Constitutional Court, this text is sufficiently specific and understandable. The remaining paragraphs of Paragraph 46 provide for an obligation for the health service provider to carry out an examination or vaccination (paragraph 5) and empower the Implementing Decree to modify the breakdown of the vaccination, the conditions for carrying out the vaccination, the means of investigating the immunity and the details of the implementation of the specific vaccination (paragraph 6), which are apparently elements of the legislation which regulate the implementation phase of the vaccination obligation and belong to the text of the implementing regulation.
67. The complainants' objections are against the lack of legal regulation (§ 46 of the scope of the vaccination and the way in which it is implemented. The complainants consider that from the text of the law the scope of vaccination is not known to the extent necessary. The amendment contains only an implementing decree, namely the provisions of Section 2 on the breakdown of vaccination. When it calculates the different types of vaccination and follows the list of diseases against which the vaccination is to be carried out (then the regular vaccination is divided into basic and re-vaccination). A similar objection is expressed in relation to the method of vaccination. It may be noted that specific procedures for carrying out individual types of vaccination against listed diseases are laid down in the provisions of Sections 3 to 17 of the Implementing Decree.
68. However, with the necessary accent on the general nature of the legislation, it cannot be concluded that the scope of vaccination would not be regulated by law with the necessary degree of detail. Each of the different types of vaccination calculated "up to 'in the provisions of Section 2 of the Implementing Decree, whether it is regular, special, exceptional, vaccination in accidents and injuries or before certain medical procedures and vaccination by a natural person requested, is inevitably linked to completely specific diseases, to the facts of a particular type of vaccination contingent upon the subsequent time requirements for vaccination and also to the definition of specific reasons for vaccination (pre-medical vaccination) or to the setting of certain professions (specific vaccination). Consequently, the latter specifically becomes a justified part of the implementing Regulation. The regulatory system here commands not to separate the treatment of individual types of vaccination and those very specific and often time-related (including the state of scientific knowledge) conditional on them. Therefore, any defect of the parties to the determination of the scope of vaccination, which should establish its constitutional non-conformities, cannot be seen in the legislation described.
69. A similar conclusion is reached by the Constitutional Court in relation to the opposition of the complainants of the parties to the establishment of the method of vaccination; It should not be described in the implementing decree, but in the law. However, the modification of the method of carrying out the vaccination is no longer easily attributable to the general treatment but to the implementing regulation. It, moreover - and this must be emphasised - deals largely with the conditions for implementing individual types of vaccination against specific diseases.
70. It is therefore justified, using both language and systematic interpretation, that the text of the provisions of Section 46 of the Act on the Protection of Public Health is sufficiently clear and understandable and results in reliably basic attributes and limits to the rules on compulsory vaccination against infectious diseases. The authorisation provided in the statutory regulation for the purpose of regulating the details associated with the implementation of the compulsory vaccination shall be subject to a substatutory standard within the limits, without affecting the substance of the facts contained in the essential characteristics of the law. There was therefore no legislative interference in the guarantees granted to the holders of fundamental rights and freedoms in Article 4 (1) and (2) of the Charter.
Investigation of the substance and meaning of fundamental rights
71. When assessing the constitutionality of the legislation under review, the category postulate of Article 4 (4) of the Charter under which the provisions on the limits of fundamental rights and freedoms must be applied must be subject to examination of their substance and meaning and their limitations must not be misused for purposes other than those for which they were established. Compulsory vaccination against infectious diseases is an intervention in the physical integrity of an individual and thus in his private and possibly family life. As a restriction of the fundamental right, the institute must be accompanied by such legal guarantees as would minimise its abuse and exclude medical performance in the absence of conditions for its execution. Without the Constitutional Court's intention to interfere with the professional aspects of the implementation of vaccination, it notes that it considers the provision of § 46 (2) and (3) of the Act on the Protection of Public Health to be such a guarantee. As mentioned above, prior to regular and specific vaccination, a natural person is required to undergo an immunity test (resistance) in cases covered by the implementing regulation. Regular and specific vaccination shall not be carried out after the result of the immunoassay or after detection of the health status in both cases preventing the administration of the vaccine (permanent contraindication). This information shall be provided by the health service provider to the natural person and shall be entered in the health file for the reason for the withdrawal. Where the competent public health authority (sanitary services) finds that a minor natural person has not undergone the vaccination or examination referred to in paragraph 2 and is a minor natural person who does not have an elected practitioner, it shall, by decision, require him to submit to that vaccination or to be examined by a designated doctor. The legal regulation is followed by the wording of the Implementing Decree, which contains in several places specific and detailed obligations for the health service provider to ensure that vaccination is carried out properly. These are intervals between individual vaccinations, monitoring the reaction to the first vaccination carried out, etc. (§ 3 (2), § 5 (2), § 14 (2) of the Implementing Decree). This recap of the content of the legislation pursues the objective of ensuring that compulsory vaccination against infectious diseases takes place properly and does not reduce the limit of the restriction of a natural person to the detriment of an examination of the substance and the meaning of fundamental law in the terms of Article 4 (4) of the Charter.
Test for the limitation of fundamental law
72. The complainants found a causal link between the administrative sanctions imposed on them and the legal obligation to submit to vaccination against infectious diseases in the proposal to abolish legal standards. The Constitutional Court points out at this point that the compulsory vaccination legislation makes use of the area covered by national provisions in Article 26 of the Biomedical Convention, which is also respected by European case-law, and that its finding, sp. zn. III.
73. However, where the test described below is carried out on the restriction of the fundamental right, it is done on the grounds that the most important fundamental right which is restricted by the legislation of compulsory vaccination is the right to privacy in the form of a guarantee of the integrity of the person (Article 7 (1), Article 10 (2) of the Charter). the person is obliged to suffer interference in his physical integrity in the form of medical performance under statutory conditions. In order to review the human rights conformities of the legislation on restrictions on privacy, including intervention in physical integrity, accompanied by limitation clauses on the conditions for the admissibility of a restriction on privacy by the State, the ECHR case-law uses a five-step test (see in more detail Kmec, J., Košák, D., Kratočnál, J., Bobek, M. European Convention on Human Rights. Comment. Issue 1. Praha: C. H. Beck, 2012, p. 99-116, comment D. Košák).
74. The first step of the test asks whether the present case falls within the substantive scope of those rights which are restricted. The answer to this question is clear. The sphere of protection of the fundamental right to the protection of private and family life includes guarantees given to individuals, which the State is obliged to respect and intervene only in inevitable cases. If the medical performance affects the right to the inviolability of a person without being affected because of his illness and, for persons under the age of 15, the legal representatives of the child are responsible for this intervention, then it is entirely natural to talk about the restriction to be subjected to the test.
75. The second question of the test is to determine whether the fundamental human law has actually been affected in a particular case. The answer must also be positive. The requirement is fulfilled by interfering with the physical integrity of the vaccinated person with the expected long-term effectiveness. In the case of compulsory vaccination of a minor under the age of 15, the right of legal representatives (parents) to decide on the care and education of their children (Article 32 (4) of the Charter) shall also be restricted. After all, the Constitutional Court ruled on the finding of sp. zn. III. The GTC 449 / 06 also provides for the possibility of intervening in the fundamental right to freedom to express its religion and faith.
76. The third step of the test is to review the legality of restrictions on privacy. The required legality (legal) of the limitation of basic law is based here on the postulates of the doctrine of the restriction of basic law laid down by the law ("prescribed by law '), expressed in Article 4 of the Charter. Points 60 to 71 of this finding have already addressed this issue in cases of compulsory vaccination against infectious diseases, with a positive conclusion on the legality of the legal restriction.
77. The fourth step of the test calls for legitimacy of the restrictions on the fundamental rights concerned. The European question is as follows: is there at least one of the legitimate objectives allowed to intervene in human law? The typology and the list of legitimate objectives were created by the ECHR case-law as a result of the generalisation of the case-law practice (cf. One of the legitimate objectives recognised is health protection, with the compulsory vaccination not only being a general vaccination of the former but also a mediocre protection of those individuals against communicable disease infection, which for various reasons have not been vaccinated.
78. Without any doubt, the most important fifth step of the test is to answer the question of the necessity of restricting fundamental law by law (without a single and binding algorithm being adopted by the ECHR case-law to examine the issue). It is precisely the question of the necessity of compulsory vaccination in a democratic society that the complainants put in their proposal.
79. The Constitutional Court does not consider it part of its powers of review to assess the professional aspects of the issue, including those reasons which, in the light of medical science, led to the introduction of partial or bulk vaccination of the population, including the use of the compulsory vaccination institute provided for by law. It is not the role of the Constitutional Court to address the question of whether or not the epidemiological situation in one or the other country of the European continent justifies the adjustment of compulsory vaccination. Although the use of expert knowledge is offered, the assessment of these sources is legislative and executive. The Constitutional Court has therefore come from widely available sources of competent international and Czech institutions. The conclusions from these are clear in favour of the solution adopted, in principle, of the general vaccination against selected infectious diseases, and the interest in protecting public health outweighs the complainants' arguments against compulsory vaccination.
80. In the opinion of the Ministry of Health on the constitutional complaint of the complainants under point II.I. of the ÚS 1253 / 14 (negotiated as a specific case outside the constitutional control of the law separately), there is a statistically significant reduction or disappearance of morbidity following the accession of infectious diseases to the (available) compulsory preventive vaccination. Examples include measles, poliomyelitis (polio) and diphtheria. In the case of measles, 350 people per 100 000 inhabitants in 1953, up to 900 people gradually increased, approximately 600 persons at the start of vaccination in 1969, and with the exception of a small derogation in the early 1990s, this disease was zero after the introduction of two vaccination doses. For polio children, the number of reported diseases exceeded 2,000 people already in the late 1940s. Since 1957, the disease disappeared in 1961. When watching diphtheria, most patients were reported in 1946, in proportion to over 500 per 100,000 inhabitants. Then the vaccination started and since the 1960s there has been no significant occurrence of this disease.
81. The World Health Organisation (WHO) Recommendation for Europe, including statistical data by 2011, contains a vaccination strategy on seven points, highlighting the preventive action of vaccination. As demonstrated in particular at its first and fourth points, high vaccination rates lead to a reduction in the incidence of the disease in question, and it is it that guarantees the minimisation or spread of epidemics. According to the correlation tables published for quoted points, the desired degree of vaccination is approximately 95% (source: http: / / www.uvsr.sk / docs / info / epida / Seven _ Key _ Reasons.pdf).
82. In 1997 a recommendation entitled Vaccination in Europe as a document of the Parliamentary Assembly of the Council of Europe was published under No 1317. The text of the recommendation calls on the Committee of Ministers to invite Member States to establish comprehensive public vaccination programmes as the most effective means of preventing infectious diseases. It is already recalled in the introduction to the Recommendation that in some countries of Central and Eastern Europe, following the fall of totalitarian regimes, the national health care system has been loosened or destroyed and, among other things, an increased incidence of infectious diseases (the text is available at http: / / assembly.coe.int, see Doc. 7726, Report of the Committee on Social, Health and Family Affairs, adopted in 1997).
83. The Council of the European Union, at its meeting on health issues on 6 June 2011 in Luxembourg, adopted conclusions entitled Child immunisation: the achievements and challenges of child immunisation in Europe and the way forward. The document is based on Article 168 of the Treaty on the Functioning of the European Union, according to which national policies on public health protection should be consistent. Reference is made to Regulation (EC) No 851 / 2004 of the European Parliament and of the Council of 21 April 2004 establishing a European Centre for Disease Prevention and Control (http: / / www.consilium.europa.eu / uedocs / cms _ data / docs / pressdata / en / lsa / 122391.pdf).
84. The Constitutional Court concludes that, contrary to the arguments of the complainants, in both Czech and international sources and recommendations on this issue, the requirement to implement public vaccination programmes, including child immunisation, is stressed in order to minimise the spread of infectious diseases in order to protect public health. The regulation of the compulsory vaccination institute, which is fully within the competence of national legislation, serves to implement this requirement. The test therefore sounds in favour of existing legislation.
Conclusions
85. The measurement of the interest in the protection of public health and fundamental rights and freedoms which are or may be affected by compulsory vaccination against communicable diseases is also a polyvalent issue because human, civil and social rights are present on the fundamental rights side. The Constitutional Court, in relation to the provisions of Section 46 of the Public Health Protection Act, which the complainants proposed to abolish, expressed general conclusions on its compliance with the postulates of the Constitution and the Charter, without interfering in the sphere of expert or political. The public interest may be assessed in relation to fundamental rights at the constitutional level of the review of the compulsory vaccination legislation at the level of necessity. The subject of the review is the general legal guarantee of the compulsory vaccination procedure, while laying down detailed rules on compulsory vaccination, based on expert knowledge, should be left to the executive areas and conceptual considerations of the legislative policy, even with their impact on individual circumstances.
86. The current legislative solution to the issue of compulsory vaccination against infectious diseases allows for sufficient emergency response to the development of individual infectious diseases on the national territory and to the latest state of scientific knowledge in the fields of medicine and pharmacology. This is also the case with the interim amendments to Decree No. 537 / 2006 Coll., on vaccination against infectious diseases (Decree No. 65 / 2009 Coll., No. 443 / 2009 Coll., No. 299 / 2010 Coll.) and previously valid Decree No. 439 / 2000 Coll. on the same issue that occurred and changed the scope of the compulsory vaccination.
87. The Constitutional Court considers it desirable to express also obiter dictum on the subject of its review. Its positive conclusions on the fulfilment of the postulate of the law's reservations and on the necessity of the statutory regulation of compulsory vaccination have exhausted the scope of the review and have not authorised the court to examine the complainants' objections (expressed in essence de el ferenda) concerning the absence of State liability for the damage caused by the individual by the vaccination. However, if the State provides for a penalty in the event of refusal of vaccination, it must also be considered in a situation in which the exercise of the right to harm the person vaccinated. The Biomedicine Convention, which is part of the constitutional order, is already open to compensation for such a person, and in Article 24 it refers to "fair compensation 'for" disproportionate harm' to health caused by the procedure laid down by law. The rules on compensation for property and property damage in the Civil Code may also form part of the consideration of the compensation in question. However, it cannot be overlooked that the compulsory vaccination is a medical exercise of a preventive nature, in order to protect public health, and which has been dealt with by law and which has an extremely broad personal range and impact. These circumstances make it more difficult for a person who may be harmed by vaccination and, therefore, it is appropriate for the legislation to take responsibility for supplementing the legal regulation of the compulsory vaccination institute against infectious diseases to regulate the responsibility of the State for the consequences indicated above. This should be done all the more so because such legislation is not unique in other states (cf. an appropriate complaint addressed to the legislature of the Constitutional Court of the Republic of Slovenia in the decision of 12 February 2004, sp. zn. U-I-127 / 01).
88. The complainant's proposal to abolish parts of the legislation also included a proposal to abolish the provisions of Paragraph 29 (1) (f) of the law on infringements, more specifically a proposal to delete the text on infringement of the prohibition or obligation laid down or imposed to prevent and spread infectious diseases. Nor could this proposal be complied with. The reason for this is already a substantive picture of the facts of the infringement which the complainants requested to abolish. As can be seen from the text of the Act on the Protection of Public Health, Failure to fulfil an obligation or ban in connection with compulsory vaccination constitutes only part of this fact. Penalties may also be imposed here for offences involving acts other than non-compliance with the vaccination obligation (see infringements under the provisions of Sections 45 to 75b of the Public Health Protection Act, such as the obligation to implement and comply with anti-epidemic measures, the obligation to isolate the sick in the infectious ward, etc.).
89. For all these reasons, the Constitutional Court found no reason to repeal the legal provisions in question since the fundamental rights guaranteed by Article 2 (3) of the Constitution, Article 9 of the Convention and Article 2 (2) and (3), Article 3 (3), Articles 4, 7, 10, 11, 15, 31 and Article 32 (4) of the Charter are not infringed by them. According to Article 70 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, the Constitutional Court therefore rejected the application for annulment of § 46 of the Act on Public Health Protection and for annulment of § 29 (1) (f) of the Act on Infringements.
President of the Constitutional Court:
JUDr. Rychetský v. r.
In accordance with Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, Judge Kateřina Šimáková took a different position.
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Regulation Information
| Citation | The Constitutional Court found no 97 / 2015 Coll., on the application for annulment of § 46 of Act No. 258 / 2000 Coll., on the Protection of Public Health and on the amendment of certain related laws, as amended, and § 29 (1) (f) of Act No. 200 / 1990 Coll., on infringements, as amended |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 20.04.2015 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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