The Constitutional Court found no 99 / 2015 Coll.
The Constitutional Court found of 27 January 2015 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
28.04.2015
99
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided under sp. zn. Pl. ÚS 16 / 14 on 27 January 2015 in plenary composed of the President of the Court of Paul Rychetský and Judges Louis David, Jaroslav Fenyk (Judge of the Rapporteur), Jan Filip, Vlasta Formánková, Vladimir Krářík, Tomáš Licenčník, Jan Musil, Vladimir Sládeček, Radovan Suchanek, Catherine Šimáková, Vojtěch Šimíček, Milady Tomková, David Uhlík and Jiří Zemánek, on the proposal of the minor P. R. R., represented by the legal representative B. Z., represented by Mgr. David Zahumenský, a lawyer, with the seat of Brno, Burešova 6, on the annulment of § 50 Act No. 258 / 2000 Coll.
as follows:
I. The proposal to repeal the provisions of § 50 of Act No. 258 / 2000 Coll., on the protection of public health and on the amendment of certain related laws, in the words "preschool facilities can only accept a child who has undergone the prescribed periodic vaccination, has proof that he is immune to the disease or cannot undergo vaccination for permanent contraindication" is rejected.
II. The remainder is rejected.
Reasons
Recital of the applicant's constitutional complaint and conduct of proceedings before the Constitutional Court
1. The appellant seeks the annulment of the judgment of the Supreme Administrative Court of 29 March 2013 No 8 As 20 / 2012-42 and the judgment of the Regional Court of Brno of 20 October 2011 No 29 A 69 / 2010-36, in a timely constitutional complaint of 25 June 2013, accompanied by the submission to the Constitutional Court of 11 October 2013. The proceedings for a constitutional complaint shall be conducted under the provisions of point I. ÚS 1987 / 13. The appellant also requests the annulment of Article 50 of Act No. 258 / 2000 Coll., on the Protection of Public Health and on the amendment of certain related laws, as amended by Act No. 375 / 2011 Coll., (hereinafter referred to as "the Act on the Protection of Public Health ') and Article 34 (5) of Act No. 561 / 2004 Coll., on pre-school, primary, secondary, higher vocational and other education (Education Act), in particular for the following reasons.
2. The Supreme Administrative Court of Constitutional Complaints by judgment of 29 March 2013 No. 8 As 20 / 2012-42 decided to dismiss the appellant's appeal against the judgment of the Regional Court in Brno of 20 October 2011 No 29 A 69 / 2010-36 rejecting his action against the decision of the Regional Office of the Region Vysočina of 20 May 2010 No.
3. In its constitutional complaint, the appellant contends that the above decisions of the General Courts infringed his right to pre-school education as part of the right to education under Article 33 (1) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter ') as his exclusion from pre-school education was non-discriminatory. According to the applicant, a total ban on access to school for healthy, non-fully vaccinated children is disproportionate and does not even stand up to the rationality test. As the condition of vaccination for access to pre-school education is non-portional, it is also an intervention into the right to personal integrity. For the protection of public health against the spread of infectious diseases in parent schools, it is, according to the applicant, necessary to examine whether there are more lenient measures than total exclusion from education, which can be described as a penalty against those who do not wish to submit to the prescribed scope of vaccination.
4. Moreover, in the event of refusal of the right to education of the applicant, the condition laid down in Article 4 of the Charter under which the limits of fundamental rights and freedoms may be governed only by law has not been fulfilled, as the scope of the vaccination obligation which is a condition for admission to a kindergarten is merely a decree. In this context, the appellant refers to the finding of the Constitutional Court sp. zn. The applicant submits that the scope of vaccination for access to education is determined without any legal limits by a mere decree. In order to respect constitutional requirements, the regulation would have to be defined by law as a minimum against which diseases the child should be vaccinated in order to allow him access to education. In this context, the appellant also refers to the findings of the Constitutional Court sp. zn.
5. According to the applicant, the condition of vaccination for access to pre-school education also interferes with the child's right to free and informed consent, protected by the Convention on Human Rights and Biomedicine, published under No 96 / 2001 Coll., hereinafter referred to as "the Convention '. In fact, his parents are forced to undergo an indirect sanction procedure, because exclusion from pre-school education will affect not only the child, but the whole family - especially the work opportunities of the child's mother, which rules out" freedom "of such consent. According to the appellant, the condition of vaccination against nine pre-school education diseases in the Czech Republic is not in line with the requirement of necessity in a democratic society, which is one of the conditions under which, under Article 26 of the Convention, the fundamental right may be limited to not being subjected to any medical treatment without the consent of its legal representatives.
6. The parents of the appellant decided to vaccinate the son at a later age only against certain diseases which they considered to be serious and for which they considered the benefit of the vaccination to be predominant over the risks of their belief in the best interests of the child and conviction in terms of freedom of thought and conscience pursuant to Article 15 of the Charter and Article 9 of the Convention on the Protection of Human Rights and Fundamental Freedoms ("the European Convention '). The appellant points out that the State is significantly failing in a vaccination policy that is non-transparent, with the State not taking any responsibility for any damage to the health of the child after vaccination. In this situation, involuntary vaccination (without parents' free consent) is a condition for pre-school education contrary to the" right to health 'of the applicant.
7. In the context of the fact that the claimant was not allowed to attend a maternity school and thus to participate in pre-school education, the family also had to face social exclusion not only of the child, but also of his mother, who was forced to be at home with the child for several years, which is inevitably linked to the overall reduction of family income and standard of living, in which the applicant finds infringement of the right to respect for private life and family life and discrimination based on family beliefs.
8. The applicant further contends that, in view of the fact that neither the Supreme Administrative Court nor the Regional Court in Brno have ever dealt with its arguments and substantiated arguments concerning the adequacy of the refusal of pre-school education to fully vaccinated children, there has been a breach of the right to a fair trial in the form of denegationis iustitiae (denial of justice) and of the right to justify the decision.
9. According to the appellant, the administrative courts also did not deal with the fact that no period of time for vaccination against so-called children's diseases (measles, rubella, mumps) was laid down in Decree No. 537 / 2006 Coll., on vaccination against infectious diseases, as amended, and therefore the completion of vaccination for pre-school education cannot be legally required. Nowhere does the legislation in force provide that the child should undergo this vaccination before entering a kindergarten. The failure to deal with this fact also infringed the right to a fair trial and the right to a reasoned decision.
10. In the light of the above, the appellant proposes, in its constitutional complaint to the Constitutional Court, that it annul the finding by which the judgment of the Supreme Administrative Court of 29 March 2013 No 8 As 20 / 2012-42 and the judgment of the Regional Court of 20 October 2011 No 29 A 69 / 2010-36 should be annulled and also proposed, within the meaning of Article 64 (1) (e) and Article 74 of Law No 182 / 1993 Coll., on the Constitutional Court of 20 October 2011, as amended (hereinafter referred to as "the Law on the Constitutional Court '), to adopt a decision repealing the provisions of Section 50 of the Law on Public Health Protection and Section 34 (5) of the Law of Education.
11. By order of 18 June 2014 No. I. ÚS 1987 / 13-1, the First Chamber of the Constitutional Court concluded that the application of Paragraph 34 (5) of the Education Act in conjunction with Section 50 of the Act on Public Health was the subject of a constitutional complaint, and therefore the appellant's proposal to abolish the contested provisions was referred to the plenary of the Constitutional Court pursuant to Article 87 (1) (a) of the Constitution of the Czech Republic.
Observations of the parties
12. The Constitutional Court, in order to examine the case, invited the parties to submit their observations on the application for annulment of the contested provision.
13. The Senate of the Parliament of the Czech Republic (hereinafter referred to as the "Senate"), as a party to the proceedings, stated in its observations that although the Education Act had been amended many times since its adoption in September 2004, the classification of the contested provision of Paragraph 34 (5) did not change and was not subject to any major criticism in plenary or in the Senate bodies during the examination of the draft Education Act or several dozen amendments. At this point, it can be noted that the obligation to respect the conditions laid down by the legislation (i.e. not only by the Act on Public Health) in respect of the admission of children to pre-school education applies in general and would undoubtedly apply even in the absence of provisions.
14. The Senate states to the draft Education Act itself that it was delivered to it on 21 July 2004 and was assigned a number of 403 in the Senate Registry of the 4th term. The Act was discussed by the Committee on Education, Science, Culture, Human Rights and Petitions, which recommended the Senate to return the bill to the Chamber of Deputies with the amendments set out in the Annex to the resolution of the Committee No 227 of 4 August 2004. None of these amendments concerned the area of pre-school education, i.e. part of the second draft. On 5.8.2004, at the 17th meeting of the fourth term, the Senate followed the recommendation of its committee and returned the bill to the Chamber of Deputies with amendments (Resolution 517). In the decisive vote (No 101), 55 senators voted in favour of 49, against which there was one. Thus, according to the Senate, it can be concluded that the Senate has been acting within the limits of the Constitution and in a constitutionally prescribed manner as regards the "upper 'chamber procedure for the examination of the Education Act.
15. The Senate further states in its observations that the contested provision of Paragraph 50 of the Act on Public Health Protection has been part of the Act since its inception, only with the exception that, with effect from 1 April 2012, [in connection with the adoption of Act No. 372 / 2011 Coll., on health services and the conditions for their provision (the Law on Health Services)], the term "crèches" was replaced by "childcare facilities up to 3 years of age in the daily regime." The bill on the protection of public health was passed to the Senate on 7.6.2000 and was assigned the number 276 in the 2nd term. Subsequently, the proposal was discussed by the Committee on Health and Social Policy, the Committee on European Integration and the Committee on Petitions, human rights, science, education and culture. As a result of the negotiations of all committees, the Senate plenary recommended that the bill be returned to the Chamber of Deputies with amendments. However, none of these amendments concerned the contested provision of Paragraph 50.
16. The Senate Plenum dealt with the draft on 30 June 2000 at its 20th meeting in the second term. The bill was returned to the Chamber of Deputies with amendments when, in vote 117, 39 of the 46 senators were voted against for the adoption of resolution 420. In conclusion, the Senate stated that it followed the procedure of the Public Health Protection Act within the limits of the Constitution and the constitutional procedure.
17. The Chamber of Deputies of the Parliament of the Czech Republic, as a party to the proceedings in its observations on the proposal, merely summarised the legislative process, which it stated that the proposals of the contested laws had been approved by both chambers of Parliament in a constitutional procedure, the laws had been signed by the relevant constitutional authorities and properly declared. In particular, the Chamber of Deputies stated that the draft Act on Public Health Protection was submitted to the Government of the Chamber of Deputies on 10 February 2000 (distributed to Members as House Press 538 / 0). The bill was discussed by the Chamber of Deputies at first reading on 23 February 2000 and was ordered by the Committee on Social Policy and Health. The Committee on Social Policy and Health 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 Chamber of Deputies discussed the proposal at second reading on 18 May 2000 and at third reading on 25 May 2000 at its 25th meeting it agreed to the draft law as amended by the amendments adopted, none of which concerned the contested provision. In vote 258 of the 165 Members present, 164 Members voted in favour of the bill and no one was against it. The bill was passed on to the Senate on 7 June 2000. The Senate returned the proposal to the Chamber of Deputies with amendments which also did not concern the provisions of Paragraph 50. The bill returned by the Senate was debated by the Chamber of Deputies on 14 July 2000 at its 26th meeting 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.
18. The draft Education Act was submitted by the Government of the Czech Republic to the Chamber of Deputies on 11 March 2004, where it was discussed under the number of the House Press 602 / 0. At the first reading at the 30th meeting on 1 April 2004, the proposal was ordered to discuss the Committee on Science, Education, Culture, Youth and Sports. The Committee on Science, Education, Culture, Youth and Sports discussed the draft law at the 31st meeting on 3 June 2004 and recommended that it be approved by the Chamber of Deputies as amended by the committee of proposed amendments. The second reading of the bill took place on 22 June 2004 at the 33rd meeting of the Chamber of Deputies. A summary of the amendments tabled was drawn up as House Press 602 / 2, none of the amendments concerned the contested provision. At the third reading, the bill was debated on 30 June 2004 at the 33rd session of the Chamber of Deputies, where it was approved in vote 418. Of the 182 Members present, 92 Members voted in favour of the bill and 82 Members opposed it. The Chamber of Deputies passed the bill on 21 July 2004 The Senate, which discussed it at the 17th meeting on 5 August 2004 and returned it to the Chamber of Deputies with amendments. The amendments did not concern the contested provision. The bill returned by the Senate was discussed by the Chamber of Deputies on 24 September 2004 at its 35th meeting and adopted it as amended by the Senate. In vote 98, 96 Members voted in favour of the 191 Law of the Members present, 91 Members voted against. The law was delivered to the President of the Republic on 8 October 2004, which signed it on 22 October 2004. The approved law was delivered for signature to the Prime Minister on 3 November 2004. The law was published in the Collection of Laws in the amount of 190 under No. 561 / 2004 Coll.
Government and Ombudsman position on the proposal
19. In accordance with Article 69 (2) and (3) of the Law on the Constitutional Court, he pointed out the provisions of the Law of 3 July 2014. The Constitutional Court of the Government and the Ombudsman of the pending proceedings, reminding them of the time within which they could intervene and, where appropriate, comment on the application.
20. The Government announced by letter of 30 July 2014 that it would intervene in the proceedings. At the beginning of its observations on the case, it stated that it did not agree with the conclusion resulting from the order of the Constitutional Court of 18 June 2014 No. I. ÚS 1987 / 13-1 on the need to re-examine the proposal to repeal § 34 (5) of the Education Act and § 50 of the Act on Public Health Protection. In this context, the Government recalls that the Constitutional Court has repeatedly devoted the issue of the constitutionality of the legal obligation to submit to the prescribed type of vaccination and the related assessment of the alleged violations of the right to education, interference with the rights guaranteed by the Convention or the alleged unconstitutionality of Decree No. 537 / 2006 Coll., on vaccination against infectious diseases. The Constitutional Court also addressed the general question of the degree of autonomy of parents when deciding on medical interventions towards their children. In its observations on the proposal in question, the Government stated that it did not consider it necessary to repeat the conclusions resulting from the previous relevant case-law and focuses in particular on the substantive justification for the legitimacy and rationality of the contested provisions of the Act on the Protection of Public Health and the Education Act, or the legitimacy of the objective pursued by the legislation on compulsory vaccination against infectious diseases - that is, the protection of public health, that is to say, the health of the population, including its specific groups, including children of pre-school age.
21. The Act on the Protection of Public Health provides for the obligation of a person to undergo regular vaccination, according to the provisions of Section 108 (4) of that Act, the Ministry of Health is based on recommendations from the World Health Organisation. The interest of all developed countries is in line with the recommendations of the World Health Organisation to maintain high vaccination against diphtheria, tetanus, cough, invasive disease caused by Haemophilus influenzae b, polio and viral hepatitis B, as well as measles, mumps and rubella at a level of around 90% of the population. Only with sufficient vaccination, it is possible to induce the so-called collective immunity, a form of immunity that occurs when a significant number of people in the population or group (e. g. a kindergarten) are vaccinated against specific infectious diseases. When inducing collective immunity, the pathogen does not circulate in the population, and as a result not only the vaccinated individual is not protected, but also those who are not vaccinated because of a permanent contraindication (about 5% of the population) or those who have not developed sufficient immunity after vaccination. Therefore, if an individual is not vaccinated - for example, a person who has been found to have a permanent contraindication to vaccination, there will be no risk of collective immunity but is protected by collective immunity. However, if the overall vaccination rate of the population falls below the protective level, collective immunity is at risk. Circulation of the agent in the population may increase and the number of new cases of disease may increase. Maintaining collective immunity is therefore essential in order to prevent the spread of infectious diseases in the population.
22. Collective immunity may therefore not affect the pathogenicity of the agent, but may reduce its circulation in the population, possibly lead to elimination of the agent in the population and, using indirect effect, lead to a decrease in the incidence of the disease also in the unvaccinated population (e.g. individuals with immune impairment, with permanent contraindication for vaccination). The indirect effect is then measurable by decreasing the incidence of disease in unvaccinated persons. The existence of collective immunity depends on two factors: the degree of vaccination and the effectiveness of vaccination or the effectiveness of the vaccine. However, it is only always induced when a certain (so-called sufficient) rate of vaccination is achieved. If, on the contrary, the population is affected by a decrease in vaccination rates below its sufficient level, the maintenance of collective immunity is at risk, or collective immunity for the disease may be lost. In this case, the circulation of pathogens in the population may increase and new cases of disease are rising - this is confirmed, for example, by the increased incidence of measles in the United Kingdom in the loss of collective immunity due to decreasing vaccination rates or, for example, an epidemic of black cough (about 225 000 diseases) due to the rejection of vaccination against this disease by certain religious groups in the UK between 1976 and 1982. The rate of vaccination may vary for individual diseases and is not always fixed. However, for all interhuman diseases, collective immunity can be discussed, only in order to achieve it requires a different level of vaccination.
23. As regards the effectiveness of vaccination, given the high effectiveness of the vaccines currently in use for the general vaccination, it can be concluded that the rate of vaccination is crucial for achieving collective immunity and reducing the circulation of infectious disease agents in the population. The absence of collective immunity at 100% of the population vaccination rate would only be possible for very few effective vaccines. This low efficacy is not demonstrated by any of the approved and registered vaccines for general vaccination. The decrease in serum antibody concentrations over time (the fastest decrease is within 1 year after vaccination followed by a relatively slow decrease in plateau concentration) does not mean a loss of immunity. The loss of immunity does not occur until it falls below the limit level. There is no loss of immunity due to the existence of memory cells (e.g. in the case of vaccination against viral hepatitis B) in any vaccination or if antibodies decrease. In diseases where the risk of disease persists throughout childhood or until adulthood, overvaccination is carried out which responds to a decrease in antibody concentrations. Maintaining collective immunity is therefore essential to preventing the spread of disease in the population and clearly outweighs individual fundamental rights.
24. The model laid down by law of the person to be vaccinated shall be applied in 12 countries (including Italy and France) from 28 countries in the European Union and 13 children's polio in those countries (in addition, Belgium). It is in the interest of all countries of the world that vaccination against underlying infectious diseases is maintained at a high level. In addition, restrictions on access of unvaccinated children to collective establishments, such as the United States of America, where unvaccinated children are not allowed to enter pre-school state institutions. Thanks to the regular vaccination, its control and high vaccination quality and the good quality of vaccines, the Czech Republic has managed to eliminate children's portable polio, eliminate diphtheria and significantly reduce the incidence of a wide range of infections against which it is vaccinated, which is evidenced by graphs on the analysis of vaccination trends, which was developed by the State Health Institute as a medical facility to perform tasks in the field of the Ministry of Health, and which the Government added to its observations. In its observations, the government further illustrates the link between the vaccination carried out and the permanent decline or disappearance of the disease on selected infectious diseases.
25. The purpose of the regulation contained in the appellant's contested provision § 50 of the Act on the Protection of Public Health is, according to the Government, to protect the health of a group of natural persons enjoying special legal protection - children. In particular, children attending childcare facilities of up to 3 years of age in the day-to-day regime or pre-school facilities - i.e. not only those using public service services to allow pre-school education to be attended by a kindergarten established under the school law.
26. The appellant's objection that the decision not to admit him to a parent school is a penalty, the Government refers to the explanatory memorandum to the law in question, as well as to the professional arguments mentioned above, and recalls that the only penalty that the law allows the appellant or his legal representatives to impose is the penalty for committing an infringement in the health sector under the provisions of § 29 (1) (f) of Act No. 200 / 1990 Coll., on infringements, as amended.
27. In the light of the above, the Government also points out that the applicant's claim that the State does not examine whether other children at the nursery are vaccinated. The fulfilment of the obligations under Section 50 of the Act on Public Health is subject to state health surveillance under the control plans of regional health centres, as well as to compliance with other obligations laid down by that Act.
28. To the appellant's objection that the scope of the vaccination obligation, which is a condition for admission to a parent school, is laid down by a "simple decree ', the Government recalls that the Constitutional Court has previously dealt with that objection, identifying the conclusions of the extended Senate of the Supreme Administrative Court, which in its decision of 3.4.2012 No. 8 As 6 / 2011-120, concluded that:" the framework regulation of the obligation of natural persons to submit to the vaccination provided for in § 46 of the Law on Public Health Protection and its specification in Decree No 537 / 2006 Coll. [cf. Resolution sp. sp. zn. II. ÚS 2873 / 12 of 13.12.2012 (available at http: / / nalus.ujud.cz) or at page III.
29. On the above, the Government merely adds that the vaccination calendar, embodied in the above-mentioned Decree, is based on the recommendations of the World Health Organisation, which aims to optimise the schemes and intervals between vaccination. However, the Government stresses that the vaccination calendar is not a fixed dogma, as is the result of successive changes to the vaccination rules against infectious diseases. The changes are based on the recommendations of the World Health Organisation based on the results of epidemiological vigilance (surveillance), an assessment of the impact of the age of the vaccinees and the number of doses on the current ability to produce protective antibodies, taking into account that different types of vaccines require different schemes, certain vaccines may be applied at the same time, but there is a need for distance between others. For this reason, too, it seems necessary to maintain the flexibility of responding to changes, which makes it possible to do so in the form of a decree.
30. As regards the appellant's objections that in some cases the Decree also provides for the vaccine to be vaccinated on a regular basis, the Government recalls that the appellant itself states in his proposal that it has not been vaccinated against measles, rubella and mumps and has not been vaccinated against viral hepatitis B. It is clear from the fact that the applicant was not vaccinated against viral hepatitis B, that he did not undergo regular vaccination with hexavalent vaccine, as foreseen in Section 4 of Decree No. 537 / 2006 Coll., but his periodic vaccination took place within the meaning of § 47 (1) of the Second Act on Public Health Protection. This provision allows for the use of a registered vaccine for regular vaccination other than that provided for by the Ministry of Health for antigenic composition in accordance with the procedure laid down in Paragraph 80 (1) (e) of the same Act. Thus, the law foresees and the procedure of the applicant or his legal representatives would not be contrary to it if the applicant submitted to the individual vaccination plan and the vaccination against viral hepatitis B as provided for in Section 4 of Decree No 537 / 2006 Coll.
31. In the context of the above, the Government also notes that the appellant's lack of obligation to demonstrate his or her vaccination status to parent school workers is superfluous, as these workers have already experienced or have been vaccinated against infections that are preventive by vaccination. To comment on the applicant's illegal conclusions to the address of the Ministry of Health and the National Immunisation Commission, the Government considers it unfounded, since, as mentioned above, vaccination (not only) of children is governed by scientific expertise.
32. The Government considers that the appellant, or his legal representatives, is completely unequivocally superior to the interests of his own child over the interests of other children and that they seek the provision of a public service (admission to a kindergarten) without being willing to submit to the legitimate conditions of the provision of such a service. However, in this case, the State cannot allow the individual's interest to outweigh the interests of other children. All children admitted to a kindergarten are subject to the same requirements laid down in Section 50 of the Public Health Protection Act and, for this reason, it would be absolutely absurd for the applicant to have the directors individually assess which types of vaccination will or will not be required for admission when taking children to a kindergarten. In addition, it must be stressed that parents can choose an alternative route and care for the child in different ways than using the services of a parent school established under the Education Act.
33. Finally, the Government expresses the belief that the appellant's contested legislation is constitutionally consistent and that the possible abolition by the appellant of the contested legislation would lead to a major negative breakthrough in public health protection legislation, at a time when, thanks to the activities of the opponents, vaccination is falling not only in the Czech Republic, but also in the world of vaccination and an increasing incidence of previously effectively controlled infectious diseases such as black cough or measles. If collective immunity is broken, children who have not been vaccinated for legally foreseeable reasons, or have not developed sufficient immunity after vaccination, will not be protected, which may gradually be negative not only in the spread of infectious diseases in the population, but also in the cost of treating people who could be protected by prevention. The Government also recalls that in assessing the issue of compulsory vaccination and its legal context, subjective rights and the freedoms of others must also be taken into account - all in the absence of the fact that there is a group of persons who cannot submit to vaccination for permanent contraindications and that even vaccination does not provide 100% resistance to the disease and therefore it cannot be assumed that children who are not vaccinated pose no risk. In the light of the foregoing, the Government considers that the Constitutional Court should reject or reject the application under point (b) of point Pl. ÚS 16 / 14.
34. The Ombudsman, by letter of 11 July 2014, informed the Constitutional Court that she would exercise her right to intervene. In her comments of 19 August 2014, she stated that the purpose of the maternity school is not only to babysit and care for children, but also to educate them. The fact that it is part of the right to education, not (just) the social service, results directly from the fact that education in kindergarten is referred to by the law of education, that is to say, the law which, within the meaning of Article 41 (1) The Charter implements the right to education. The intervention of a public authority or of a decision which is the formal subject of a constitutional complaint based on the contested provisions of the law is therefore affected by the basic right of the complainant to education under Article 33 (1) of the Charter, in combination with the fundamental right not to be discriminated against within the meaning of Article 3 (1) of the Charter, regardless of any other status, namely the state of health. In such circumstances, constitutional order does not provide for the definition of the enforceability of the law (limitation of the law) by law, and any interference with that law must be subject to a strict assessment of proportionality.
35. According to the Education Act, education is based, inter alia, on the principle of equal treatment without discrimination on grounds of race, colour, sex, language, faith and religion, nationality, ethnic or social origin, property, genus and health or other status.
36. Therefore, a child who cannot receive regular vaccination for his or her health should not be excluded from access to and provision of education. It is precisely Section 50 of the Public Health Protection Act that remembers such a situation. A child who cannot undergo permanent contraindication vaccination should thus enter the educational establishment with certainty that his or her health is not compromised. The contested provisions thus provide a child with a permanent contraindication practically equal access to education (otherwise it could be excluded from access to education). However, it does not appear that the legislation also provides for the protection of these children by imposing a vaccination obligation on staff of educational establishments.
37. However, Paragraph 50 of the Act on the Protection of Public Health also prevents access to and provision of education to children with temporary contraindications, as it does not, without exception, allow their admission to pre-school education. As a result, the provision interferes with the entire spectrum of fundamental rights of the child. In addition to the rights mentioned by the complainant, the unequal status of children with a permanent contraindication and of children whose temporary contraindication (sum of such contraindications) has also made it impossible to undergo "early 'compulsory vaccination. Paragraph 50, in conjunction with Article 46 of the Public Health Protection Act, therefore does not stand up to the so-called proportionality test, in particular the need test. If the State considers compliance with the obligation to submit to vaccination to be of such importance in order to protect public health, it should enforce compliance with it by the means provided for, namely, primarily (in the extreme case - after no result) by imposing a penalty for the offence.
38. However, instead of actually enforcing the obligation imposed (with the exceptions mentioned), the State is practically abusing an optically legitimate objective because it is effectively trying to achieve it through another "penalty" prosecuting parent, namely not accepting (partially) an unvaccinated child into a pre-school facility. The child thus takes the child hostage because, as a result, he punishes the child by denying him access to education without assessing the actual risk of endangering other children in a particular pre-school facility, and especially without exception - regardless of other reasons preventing the child from receiving vaccination before entering the pre-school facility (including a combination of temporary contraindications). In this context, it can be pointed out the unequal position of children with a permanent contraindication and children who have also been prevented from receiving compulsory vaccination (a summary of such contraindications). An example of the Ombudsman is cases of autistic children who have experienced serious complications following vaccination against mumps, measles and rubella. In practice, there may be various contraindications which are materially consistent with permanent contraindications but are not so labelled and therefore do not constitute an exception to compulsory vaccination.
39. The claimed target in the form of protection of other children in a particular pre-school facility will not stand up to the fact that all other children are vaccinated (in principle, an unvaccinated child cannot endanger them even if it is infected). The claimed goal cannot be led to vaccination against diseases whose transmission between children in pre-school facilities in the Czech Republic is not possible (e.g. tetanus, hepatitis B, polio). The idea that this is actually a different punishment (complication) for parents is also supported by the fact that the strict conditions required for admission to pre-school education will cease once the child is subject to compulsory education.
40. The Ombudsman considers the means to achieve the stated objective to be manifestly excessive (disproportionate and unnecessary) also because vaccination constitutes a means of purely preventive protection which practically precludes the creation of (real) threats to other (unvaccinated) children in the pre-school establishment. The exaggeration of the device (total exclusion of fully unvaccinated children) will stand out compared to the preventive measures taken by the surrounding States. They temporarily restrict access of sick and unvaccinated children to educational establishments only at the time of the disease, for the usual incubation period. The first objective (protection of public health by high vaccination rates) is achieved by these States by supporting voluntary flat vaccination in the form of reimbursement of vaccination from the health insurance system.
41. The results of the test of minimising interference with fundamental rights in the form of an examination of the substance and meaning of the restricted fundamental right (the order for optimisation) are largely based on considerations made for the purpose of the test of necessity. While the provision under assessment interferes with the very nature of the right to education (without exceptional exclusion from education), failure to comply with it is virtually not in a position to intervene immediately in the right of others to health protection. To the extent of the so-called weighing formula, the Ombudsman stressed that the application of the clause under assessment did not only lead to interference with the right to education. Any preference for the right to the protection of the health of others may also affect the other fundamental rights of the child (in particular his or her right to the integrity of the person, the protection of health and respect for private and family life).
42. In agreement with the complainant, the Ombudsman considers that neither the contested provisions nor the provisions of Section 46 of the Act on Public Health will meet the requirement of a legal basis for the possible limitation of fundamental law under Article 4 (2) of the Charter. In fact, the legislator did not define the essential parameters of the compulsory vaccination (did not establish limits of authorisation) and thus clearly delegated the imposition of primary obligations to power. The sublegal treatment itself, without any support in the law, defined the definition of compulsory vaccination.
43. In conclusion, the Ombudsman stated, in the light of the above, that Article 50 (in conjunction with Article 46) of the Law on the Protection of Public Health affecting the right to education under Article 33 (1) The Charter, combined with the interference with the right not to be discriminated against within the meaning of Article 3 (1) of the Charter, will not stand either in the proportionality test or in the requirement of a legal basis for the possible limitation of fundamental rights under Article 4 (2) of the Charter and proposed that the Constitutional Court annul Article 50 of the Act on Public Health Protection.
44. The Constitutional Court was also served on 28 August 2014 by the administration of amicus curiae brief by MUDr. Jan Vavrečka, Ph.D., as Chairman of the Unicampus Civil Association, o. s., which is dedicated to the protection of collective interests and consumer rights. In particular, the above-mentioned observations of the Government were addressed by the (Constitutional Court). It is stated that its own physical separation and the separation of unvaccinated children from children's collectives does not benefit anyone at all. The actual separation effects cannot be justified by any medical or medical need for such a condition. It stands completely against the protection of public health and against the theory of collective immunity to create the physical separation of unvaccinated children by their more numerous unprotected groups or communities in the population.
45. Physical separation of unvaccinated children from children's collective does not, according to the expression given, protect children vaccinated because they do not need such protection at all and even children not vaccinated because they do not need protection from vaccinated collective. Although the more it is in the population of protected individuals, the stronger the collective immunity is, the growing collective immunity serves the benefit of an ever smaller number of individuals. It is therefore irrational to want to achieve anti-drug protection for all individuals in order to maximise collective immunity. If the collective immunity of the population serves a completely negligible number of individuals, it itself is completely negligible, although it is very strong. Thus, the rational objective of protecting public health is the "optimal collective immunity."
46. Another amicus curiae brief was delivered to the Judge-Rapporteur on 1 June 2014 by Prof. Dr. Jan Jandy CSc, Chairman of the Czech paediatric Society's vaccination section, who states that a child not vaccinated against measles, rubella and mumps, who receives some of the above diseases outside of the school group, may infect children in the school group. The disease of an unvaccinated child introduced into a group of nursery schools may result in the transfer of infection to children for whom vaccination has been postponed from a serious health indication or in cases where the child has been vaccinated but for various, albeit rare reasons, no anticipated immunity has occurred. The threat to the staff of the parent school, when it comes to adults, is theoretically possible but highly unlikely. In the past, in the vast majority of cases, staff have been vaccinated or re-vaccinated in childhood, so the risk is minimal, but it cannot be excluded. Laboratory testing of the level of protective antibodies against the diseases would have to be performed. You don't normally do that.
47. An unvaccinated child included in a school group is at risk of measles, rubella and mumps. This infection can be obtained either from another unvaccinated child who introduced it into a group of nursery schools, or from a child who was vaccinated, but who did not have the expected immunity and obtained the infection outside the nursery school and who will take it there. As regards the risk of hepatitis B disease, pediatricians have repeatedly encountered cases where used injection needles used previously by drug addicts (e.g. in sandboxes where children play) are found in public areas outside the building. Injury by such a needle is associated with a clear risk of hepatitis B infection. In general, it can be added that the recommendation to vaccinate infants already of childbearing age is supported by the fact that hepatitis B virus infection at an early age is associated with a significantly higher risk of serious disease progression compared to infection at a later age.
48. Parents can not only endanger their own but also other children by taking a decision to do so. So this is about the principle of solidarity. In order to protect public health, it should outweigh the belief that the risks of the side effects of vaccination are completely comparable to those of the population of the so-called vaccination.
Replication of the applicant
49. In its reply to the observations of the parties to the proceedings and the interveners, the appellant stated in particular that almost everything was in line with the opinion of the Ombudsman in the present case. On the contrary, the government's argument and assertion is inconsistent and states that, although the state recommended and paid for vaccination is in line with the recommendations of the World Health Organisation, it does not recommend compulsory vaccination. It also states that sufficient vaccination, and therefore collective immunity, is ensured both in the compulsory vaccination system and in the voluntary vaccination system. Although vaccination rates are slightly lower in countries with a voluntary individual vaccination approach, they are still very high. According to the appellant, the Government is not able to ensure that the basic assumptions are at least legitimate, that is to say that its medical necessity is based on credible studies and that the authority that makes up the vaccination policy is credible, balanced, without conflicts of interest and acts in the interests of children.
50. According to the appellant, the government's argument is unilateral and manipulative, as it only mentions the advantages of vaccination and completely conceals the risks. A comprehensive analysis should be prepared for each compulsory disease, as well as for each disease against which the State recommends and covers, to assess both the benefits and risks as well as possible vaccination models and their effectiveness and friendliness and to determine whether compulsory vaccination is medically necessary.
51. In the case of the 100% vaccination rate of other children in kindergarten, the applicant considers that there is no reason to exclude a single unvaccinated child because there is no one to infect or threaten. The state also does not examine whether the kindergarten staff are vaccinated, and even if they were, each vaccine has only a limited duration of efficacy. The Government's assertion that legal representatives of a minor are completely unconditionally overriding their child's interests over the interests of other children, the appellant states that for each parent, the priority is the interest of his own child and also those parents who completely vaccinate the child in accordance with the official vaccination calendar, certainly not because they are overriding the public interest over the interests of their child, but because they believe that the vaccination is in the interests of the child himself.
52. At the end of its reply, the appellant reiterates that it asks the Constitutional Court to decide to repeal the provisions of Section 50 of the Public Health Protection Act and Section 34 (5) of the Education Act.
Abandonment of oral proceedings
53. Following the recap of the proceedings, the Constitutional Court concluded that there was no need to conduct oral proceedings in the case, as it would not have brought any further, or better and clearer clarification of the case than in the written proceedings of the appellant, the parties and the interveners. In view of the wording of Article 44 of the Constitutional Court Act, the Constitutional Court decided without holding oral proceedings.
Derogation of the contested provisions
54. The contested provision of § 34 (5) of the Education Act reads:
"The conditions laid down in a separate legislation shall be complied with when children are admitted to pre-school education. '
55. The contested provision of Section 50 of the Public Health Protection Act reads:
"A childcare facility of up to 3 years of age under daily conditions or pre-school facilities may only accept a child who has undergone the prescribed periodic vaccination, has evidence that it is immune to the disease or cannot undergo vaccination for permanent contraindication. ';
Assessment of the applicant's active legitimacy to submit a proposal
56. As mentioned above, the appellant submitted a motion to repeal the provisions cited together with a constitutional complaint under § 72 et seq. of the Constitutional Court Act. It is therefore based on Articles 64 (1) (e) and 74 of the Constitutional Court Act. In accordance with those provisions, the Constitutional Court had therefore first to examine whether the conditions for bringing such an application in the case of the complainant (s) were met.
57. The "application 'of the contested law is an essential precondition for the application of the application of Article 74 of the Constitutional Court Act. This means that it is only on the basis of the application of the provision (s) in question (s) that a decision, measure or other intervention by a public authority which is the subject of a constitutional complaint has been made which has manifested itself negatively in the individual legal sphere of the complainant, i.e. a breach of his constitutionally guaranteed fundamental rights and freedoms. There must be a close link between the constitutional complaint contested by a decision or other intervention by a public authority and the provision of a law proposed for annulment in the sense that, if it were not for the contested provision of a law, the contested decision would not have been given or any other intervention by a public authority.
58. In the present case, in view of the subject matter of the dispute - in which the appellant seeks annulment of the decision of the head of the parent school, on the basis of which he was not admitted to the maternity school for failure to fulfil the conditions of Section 50 of the Public Health Protection Act - only partially applies the provisions of Section 50 of the Public Health Protection Act.
59. In accordance with these conclusions, the Constitutional Court then submitted to a formal review only that part of the contested provision of Section 50 of the Public Health Protection Act, which states that: "only a child who has undergone the prescribed periodic vaccination can receive pre-school facilities, has proof that they are immune to the disease or cannot undergo vaccination for permanent contraindication '. Only in this part of the proposal, according to the Constitutional Court, under the provisions of Section 74 of the Law on the Constitutional Court, the applicant's active legitimacy is deductible.
60. On the contrary, in the part where the appellant, at least formally in the petite of his proposal, is opposed to the remainder of the contested provision of Paragraph 50 of the Public Health Protection Act laying down the quoted condition for the admission of the child to the "Child Welfare Facility under the age of 3 years under the daily regime ', the proposal is rejected as it is submitted by a person manifestly unjustified.
61. In the part of the proposal requesting the annulment of the provisions of Section 34 (5) of the Education Act, the applicant's active legitimacy to file it is not even partially fulfilled. The contested provision of Paragraph 34 (5) of the Education Act imposes an obligation to comply with the conditions laid down in the special legislation in cases of admission of children to pre-school education and thus lays down only the general principle that the special law takes precedence over the general law. It follows from this principle that, if the conditions for the application of specific rules are fulfilled, such rules must be applied and the general rules cannot be applied. It can therefore be attested to the Senate's assertion in its observations that the interpretation rule contained in Section 34 (5) of the Education Act would apply even in the absence of that provision. The contested decisions not to admit the appellant to nursery school would therefore have been issued even if it had not been for Section 34 (5) of the Education Act.
62. Therefore, the Constitutional Court concludes that, in relation to the contested provision of § 34 (5) of the Education Act, the appellant is not a legitimate appellant and, therefore, the conditions of his active legitimacy in the standard control procedure are not fulfilled in that part of his proposal.
Constitutional conformity of the legislative process
63. Pursuant to Article 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., the Constitutional Court - in addition to assessing the compliance of the content of the contested law with the constitutional laws - ascertains whether the law has been adopted and issued within the limits of the constitutional competence and the constitutional procedure.
64. Given that the appellant did not object to the fault of the legislative process or to the breach of the legislature's statutory competence, it is not necessary to examine this issue further, in the light of the principles of the process economy, and it is sufficient to take into account, in addition to the observations submitted by the Chamber of Deputies and the Senate, the formal verification of the conduct of the legislative process from a publicly available source of information at http: / / www.psp.cz.
65. Draft Act No. 258 / 2000 Coll., on the Protection of Public Health and on the amendment of certain related laws, containing the contested provision § 50 The Chamber of Deputies duly approved at its meeting on 25 May 2000 (Resolution No. 1020). The Senate returned the proposal with amendments to the Chamber of Deputies, which adopted it at its meeting on 14 July 2000 (Resolution No 1160). The President of the Republic signed the Act adopted on 26.7.2000. After the signature of the Prime Minister, the law was declared in the Collection of Laws in the amount of 74 under the number 258 / 2000 Coll.
66. The contested provision of Section 50 of the Public Health Protection Act was therefore adopted and issued within the limits of the Constitution and in a constitutional manner.
Legal evaluation of the Constitutional Court
67. The contested provision of Paragraph 50 of the Public Health Protection Act provides as a condition for the admission of a child to a pre-school establishment for the scheduled periodic vaccination, unless the child has evidence that he is immune to the disease or cannot undergo vaccination for a permanent contraindication.
68. The regular vaccination referred to in Article 50 of the Act on Public Health referred to above is provided for in Article 46 (1) of the Act on Public Health, so that the defined natural persons are required to comply with that provision, in the implementing legislation adapted to the cases and dates laid down by the type of regular vaccination. Pursuant to Section 108 (1) of the Act on Public Health Protection, the implementing legislation is the Decree of the Ministry of Health.
69. The appellant states, in its proposal, that the restriction of his fundamental right to education, but also the right to informed consent, or the inviolability of a person and of his physical integrity and privacy, the right to express his religion or faith and parental rights freely does not occur by law, but that the definition of the scope of the obligation to obtain vaccination is left to the Decree, which is the sphere of protection of fundamental rights and freedoms under the authority of the executive, which is not entitled to such powers. A similar objection to non-compliance with the requirement of a legal basis for the possible limitation of fundamental rights is also raised by the Ombudsman.
70. The Constitutional Court considers it essential that the provisions of Paragraph 50 of the Act on Public Health lay down the condition for subjecting to the prescribed periodic vaccination, without delaying or further adjusting the specific content of this condition in which it is to be established. The provisions of Section 46 of the Public Health Protection Act, which is followed by Section 50 of the Public Health Protection Act, are laid down.
71. The Constitutional Court, in its settled case-law, underlines the link between the petition and its reasoning, that is, the arguments put forward by the appellant. It therefore considers the proposal from other aspects of the protection of constitutionality than those set out in the statement of reasons for the proposal, but it cannot decide to repeal provisions other than those mentioned in the petition. The Court of First Instance has consistently held that, as a result of the annulment of a statutory provision, the provision of another provision on a prior dependent basis would lose reasonable meaning, that is to say, it would lose the validity of its normative existence, giving reason for the annulment of that provision, without being an ultra petitum procedure. The validity of such a provision expires on the basis of the principle of cessante ratione legis cessat lex ipse, and the derogation by the Constitutional Court is therefore only of a registered, technical nature [cf., for example, the find sp. zn. Pl. ÚS 59 / 2000 of 20.6.2001 (N 90 / 22 SbNU 249; 278 / 2001 Coll.)].
The proposal under consideration is not, however, in the light of the above, such a case. Paragraph 46 of the Act on Public Health Protection - against which the substance of the appellant's objections, albeit linked to the contested provision, is, in fact, directed, without requiring its annulment by the proposal - is not a provision which is merely legislative-technical to the provision which is proposed to be repealed. The situation here is to a certain extent the opposite, as this is precisely the contested provision of Section 50 of the Public Health Protection Act, or the envisaged condition for undergoing the prescribed vaccination for admission to a pre-school facility, the implementation of which could not be required in practice without the existence of Section 46 of the Public Health Protection Act. However, if the Constitutional Court had also examined, in the light of the appellants' objections in conjunction with the contested provision, Section 46 of the Public Health Protection Act, this would be an ultra petitum procedure.
73. In the light of the foregoing, namely that the contested Section 50 of the Public Health Protection Act regulates the condition for subjecting to the prescribed periodic vaccination without itself regulating the manner in which the periodic vaccination is to be provided, the Constitutional Court cannot attest to the objection of infringement of the law's reservation in connection with that provision.
74. The Constitutional Court therefore concludes that Article 50 of the Act on Public Health Protection does not infringe the rule of law in any way, since, on its basis, it is not even excluded that the obligation to submit to regular vaccination should be laid down solely by law. Paragraph 46 of the Public Health Protection Act, which, in conjunction with Section 108 (1) of the Public Health Protection Act, empowers the Ministry of Health to issue the relevant decree, provides for the adaptation of the obligation to submit to the vaccination referred to in its content. Therefore, the objection to a breach of the law's reservation may have constitutional legal relevance only in respect of the latter provisions of the law.
75. However, in addition to Paragraph 34 (5) of the Education Act, the appellant in his petition, which is bound by the Constitutional Court, who is not actively authorised to abolish it, is only opposed to Section 50 of the Act on Public Health Protection. Therefore, on the basis of the above, the Constitutional Court found the proposal to be manifestly unfounded in the part in which a breach of the law's reservation is alleged to have been infringed.
76. In addition, the Constitutional Court adds that the question of fulfilling the requirement of a legal basis in the context of Article 46 of the Public Health Protection Act has already been addressed in the case sp. v. Pl. ÚS 19 / 14, which concludes that "the text of the provision of Article 46 of the Public Health Protection Act is sufficiently clear and understandable and results in reliably basic attributes and the legal limits of 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. Therefore, there was no legislative interference in the guarantees granted to rightholders of fundamental rights and freedoms in Article 4 (1) and (2) of the Charter '(the finding of 27 January 2015 sp. zn. Pl. ÚS 19 / 14).
77. As regards the further objections of the appellant and the Ombudsman to the fact that the condition of vaccination for access to pre-school education contained in Section 50 of the Law on Public Health interferes with the right of the applicant to education, the right not to be discriminated against and does not stand in the proportionality test, the Constitutional Court notes that, in accordance with what is stated above (the petition), the Constitutional Court did not examine the constitutionality of the content of the legal obligation to submit to the prescribed type of periodic vaccination, in cases and times covered by the implementing legislation, both at the level of the law (provision of § 46 of the Law on Public Health Protection) and at the level of substatutory (Decree No 537 / 2006 Coll., on vaccination against infectious diseases).
78. In the aims of the review thus defined, the purpose of which, for the reasons set out above, is merely to determine part of the provisions of Section 50 of the Act on Public Health, laying down the condition for the admission of a child to a pre-school establishment, it is necessary to answer the question whether the care in a pre-school establishment falls under the Charter protected by the fundamental right of education, the infringement of which the complainant and the Ombudsman object.
79. Article 33 of the Charter, to which the right to education is guaranteed, does not specify the scope of the "education," which it covers in particular in the first sentence of its first paragraph. The Education Act, which is one of the laws implementing this provision, defines in Section 1 its subject matter of adaptation by: "This Act regulates pre-school, primary, secondary, higher vocational and certain other education in schools and educational establishments, lays down the conditions under which education and education (hereinafter referred to as education) takes place, defines the rights and obligations of natural and legal persons in education and lays down the scope of the authorities carrying out state and self-governing education '.
80. According to the explanatory memorandum to § 1 of the Education Act, for the purposes of this Act, the term "education 'referred to in Article 33 of the Charter is understood as" education' within the meaning of both the process and the "education 'in the sense of the result, i.e. the successful completion of the process completed by the generally reaching degree of education.
81. Paragraph 2 (2) of the Education Act then defines the general objectives of education, education and education within the meaning of Article 1 of the Education Act, where one of these objectives is, for example, under point (a), "the development of a person's personality which will be equipped with cognitive and social competence, moral and spiritual values for personal and civil life, the pursuit of a profession or work activity, the acquisition of information and learning throughout life."
82. Paragraph 33 of the Education Act sets out the objectives of pre-school education by: "Pre-school education promotes the development of the personality of a child of pre-school age, participates in its healthy emotional, mental and physical development and in the adoption of basic rules of conduct, basic living values and interpersonal relationships. Pre-school education creates basic conditions for continuing education. Pre-school education helps balance the unevenness of children's development before entering primary education and provides special educational care for children with special educational needs. '
83. Having regard to the above, and taking into account the case law of the European Court of Human Rights (hereinafter referred to as "the ECHR '), which stated that Article 2 The Additional Protocol to the European Convention guaranteeing that no one may be denied the right to education applies to all types and levels of education provided by the Contracting State (cf. Leyla Zahin's European Court of Human Rights judgment of 10 November 2005 No 44774 / 98, § 134), the Constitutional Court concluded that there is no reason for pre-school education as a process leading to the acquisition of defined skills, attitudes and knowledge, and not merely as a care for children or babysitting to exclude children from the scope of the right to education under Article 33 of the Charter (cf. CATZOVÁ, P. Školský Act: comment. Praha: Wolters Kluwer, 2009).
84. The right to education, contained in the title of the Fourth Charter, belongs to so-called social rights. Article 41 (1) of the Charter and the very nature of social rights exclude that the methodology of their review is identical to the methodology used in relation to "classical 'fundamental rights (contained in particular in Title II of the Charter), such as the" strict' test of proportionality, the application of which significantly limits the legislator's discretion when adopting legislation to regulate the subject matter of social relations. Having regard to Article 4 (4), However, the legislature's discretion is not entirely unlimited (from a constitutional point of view) nor in the field of the regulation of social and economic rights and may be subject to review by the Constitutional Court.
85. On the basis of this, the Constitutional Court, in its decision of 24 April 2012, sp. zn. Pl. ÚS 54 / 10 (N 84 / 65 SbNU 121; 186 / 2012 Coll.), constructed the so-called "Sensitivity Test" as a methodological tool for reviewing the legislature's intervention in the field of constitutionally guaranteed social rights. This test reflects both the need to respect the legislator's relatively large discretion and the need to exclude its possible excesses and consists of four following steps: 1. Definition of the meaning and substance of social law, namely its essential content. 2. Assessment of whether the law does not affect the very existence of social law or the actual realisation of its essential content. (3) Assessment of whether legal arrangements pursue a legitimate objective; Therefore, whether it is an arbitrary fundamental reduction in the overall standard of fundamental rights. 4. Consider whether the legal means used to achieve it is reasonable (rational), although not necessarily the best, most appropriate, most effective or wisest.
86. The first step of the review under this test is to define the meaning and substance of social law, in the case under examination the right to education within the meaning of Article 33 of the Charter.
87. As already stated above, the right to education can only be claimed under Article 41 (1) of the Charter within the limits of the law. Article 33 The Charter is issued primarily to the legislator to fill it with specific content. The fundamental rights contained in particular in the second title of the Charter differ from the fact that the right to education does not exist as a priori of an unlimited fundamental right which could be restricted by the legislator for reasons foreseen in the Charter, but is, on the contrary, the legislator itself, which gives it the relevant content and scope. Although the legislature has a relatively wide scope for the specific definition of the content and method of implementation of this Article, it is bound by the constitutional maximum, of which Article 4 (4) of the Charter constitutes the principal of Article 4 (4) of the Charter [cf.
88. However, even the relative freedom of the legislature resulting from Article 41 (1) of the Charter cannot lead to a breach by law of the substance and meaning of Article 33 of the Charter. However, to the nature of the right to education, the Constitutional Court noted in its previous case-law that "its conceptual character is in itself vague, since a number of social aspects and purposes are associated with this only universally formulated law, often with different social qualities and social impact. In the opinion of the Constitutional Court, the tendency to move any of these aspects and purposes to a plane capable of infringing this right would, as in a number of similar cases, be capable of causing a wide range of socially dysfunctional and adverse effects" [finding sp. zn.
89. The intervention into the very core of the right to education is something exceptional and can only occur in the event of obvious excesses. This could be the case, for example, in a situation where the legislation in question would have generally unacceptable (e.g. discriminatory) consequences or would not meet the requirements in the rule of law generally imposed on legislation (Resolution of 5 January 2011, sp. zn. II. ÚS 2446 / 10).
90. As part of the second step of the test, the Constitutional Court assesses whether the contested legislation does not deny the very existence, substance or meaning of constitutionally guaranteed social law. As mentioned above, Article 41 (1) of the Charter, in the light of Article 41 (1) The Charter cannot be interpreted as allowing the legal regulation of the constitutional guarantee to completely negate; otherwise, the constitutional arrangements for social rights would lack any practical meaning. However, there was no unconstitutional intervention in the present case, consisting of a breach of the nature and meaning of the right to education.
91. The contested provision of Section 50 of the Public Health Protection Act provides for the admission of the child to a pre-school establishment of a condition of compliance with the obligation to undergo the prescribed periodic vaccination. An exception where the child is not required to be admitted to a pre-school establishment is that condition, according to the contested provision, where the child has evidence that he is immune to the disease or cannot undergo vaccination for permanent contraindication.
92. The legislation cited constitutes, in view of the case law of the European Court of Human Rights, the necessary preventive measures to ensure that, in the context of this condition for the admission of a child to a pre-school establishment, no medical intervention will be taken in the form of vaccination at the expense of the child to an extent that would undermine the balance between its physical integrity and the public interest in the protection of the health of the population (see the ECHR judgment in the Solomachin case of Ukraine of 15.3.2012, No 24429 / 03, § 36, available in the Internet database HUDOC - http: / / hudoc.echr.coe.int).
93. In its observations, the Ombudsman contends that the contested provision, in that exception to that condition, gives rise to the unequal status of children with a permanent contraindication and children who have also been prevented from receiving compulsory vaccination, with reference to cases of contraindications which materially correspond to permanent contraindications but are not so labelled and therefore do not constitute an exception to compulsory vaccination, which is, as a result, discriminatory.
94. Paragraph 46 (2) of the Act on the Protection of Public Health provides that: "Before carrying out regular and specific vaccination, a natural person shall be required to undergo an examination of the state of immunity (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 shall enter the reason for the waiver in the health file. '; It follows from the provision cited that, by using the legislative abbreviation" permanent contraindication' in the contested provision, the case in which a child's health is established which prevents the administration of the vaccine is envisaged.
95. In addition, the Constitutional Court points out that the above mentioned finding of 27 January 2015, sp. zn. Pl. ÚS 19 / 14, according to which the institute must be accompanied by such legal guarantees as to limit the fundamental right, which would minimise its abuse and exclude medical performance in the absence of conditions for its implementation. Following this, the Constitutional Court stated in the cited finding that, without its intention to interfere with the professional aspects of the implementation of vaccination, it considers that the legislation contained in the provisions of Sections 46 (2) and (3) of the Act on Public Health Protection is such a guarantee.
96. The Constitutional Court reiterates at this point that the basic reasoning methods of the Constitutional Court's procedure in the standard control procedure are the principle of the priority of constitutionally conformal interpretation prior to the deregation, according to which, in a situation where a provision of legislation allows two different interpretations, one being consistent with the constitutional order and the other being contrary to it, there is no reason to repeal that provision. When applying the law, it is then the task of all public authorities to interpret it in a constitutional way. This method is based on the principle of division of power and associated principle of restraint, i.e. the principle according to which, if the assurance of constitutionality can be achieved by alternative means, the Constitutional Court elects the one which limits the legislative power to the minimum [e.g. the finding of sp. zn. Pl.
97. The Constitutional Court therefore notes that, when interpreting the contested § 50 of the Act on Public Health, or when assessing whether the condition of a permanent contraindication for exemption from the obligation to submit to a compulsory vaccination for admission to a pre-school establishment, care must be taken to ensure that there is no inequality between children who, in the long term, are prevented from administering the relevant vaccine (i.e. material aspect), regardless of whether the term "permanent contraindication 'is explicitly (formally) mentioned in the relevant certificate of the health service provider. That constitutional interpretation does not preclude the classification of the contested provision.
98. While the contested provision, misleading vaccination as a condition for the admission of a child to a pre-school establishment, undoubtedly constitutes, in view of the above, a certain restriction on the right to education, but it is not (even with regard to the law on the protection of public health provided for exceptions to the obligation to comply with this condition) an intervention which would prevent all unvaccinated children from entering the pre-school establishment without exception.
99. At the same time, in the view of the Constitutional Court, the contested provision clearly pursues the legitimate objective of protecting public health. This follows from the reasoning of the finding of 3 February 2011, sp. zn. The Constitutional Court recalls the opinion of the Committee on Human Rights and Biomedicine of the Council of the Government of the Czech Republic on Human Rights, according to which vaccination is one of the most effective health prevention procedures ever, when it is generally considered, along with the use of antibiotics, to be the cause of an extraordinary decrease in morbidity and mortality on infectious diseases and to be the greatest benefit and basis of modern medicine. A necessary part of the preventive action of vaccination is its wide deployment and the achievement of a high degree of vaccination, which is about 90% for vaccination. The compulsory vaccination is thus free, in relation to the complainant's fundamental right, to express its religion or belief by the permissible limitation of that fundamental right, since it is clearly necessary in a democratic society to protect the public safety, health and rights and freedoms of others (Article 16 (4) of the Charter) '. In the decision of 27.1.2015 sp. zn. Pl. ÚS 19 / 14, the Constitutional Court states that: "one of the legitimate objectives recognised is health protection, while in the case of compulsory vaccination it is not only a general vaccination of people ex-ante but also a mediocre protection of those individuals against communicable disease infection which for various reasons have not been vaccinated'.
100. According to the ECHR case-law, compulsory vaccination also pursues a legitimate objective of protecting public health (see the ECHR judgment in the Solomachin case against Ukraine of 15.3.2012, No 24429 / 03, § 35).
101. It remains therefore to be answered whether the contested provisions are a rational means of achieving that objective. According to the Constitutional Court, the limitation of the right to education under consideration is also eligible to pass the fourth step of the reasonable test.
102. According to the Constitutional Court, vaccination in general, as a means of immunisation against selected diseases, is a social benefit requiring shared responsibility from members of society, a certain act of social solidarity from those who are taking risks, but in the present majorically accepted scientific knowledge, which is considered minimal to protect the health of the whole of society. Vaccination of a sufficient majority of the population prevents the spread of disease of selected diseases, thus providing protection not only to those who have been vaccinated. The higher the proportion not vaccinated against the vaccinated population, the higher the risk of the re-spread of the disease, not only among those who voluntarily refused vaccination, but also among those who could not be vaccinated for serious, particularly health reasons. Last but not least, the spread of the disease also threatens the part of the person who has been vaccinated, but the vaccination has not achieved the desired effect. In the case under consideration, where vaccination is a condition for the admission of a child to a parent school, those persons at risk of being infected are in particular children who may face particularly serious consequences in the event of the disease.
103. For these reasons, the vaccination of a child before being admitted to a nursery school can be considered as an act of social solidarity which takes on its importance with an increasing number of vaccinated children in the collectivities of these pre-school establishments. On the contrary, as a social injustice, it would be possible to look at cases where a group of children admitted to pre-school institutions would reject vaccination without serious reasons and thus benefit from the success of vaccination or the willingness of other children attending pre-school institutions to take on the minimum risk arising from vaccination (cf. RUBIN, B., Daniel; KASIMOW, Sophie. The problem of vaccination Noncompliance: public health goals and the limits of tort law. Michigan Law Review, St. 107, No. 114, 2009).
104. Similarly, the view contained in the justification of the European Commission's decision on human rights in Acmanne and Others against Belgium, according to which human solidarity obliges individuals to bow to the public interest and not endanger the health of their neighbours, even if their life is not in danger (see the European Commission's decision on human rights in Acmanne and others against Belgium of 10.12.1984, 40 DR, p. 253).
105. The conclusion that the condition of subjecting to the prescribed vaccination for admission to a pre-school establishment is not irrational or perhaps arbitrary is also led by the fact that this type of restriction on the right to education can be met, for example, in France, where, under the Public Health Act, the presentation of a health journal or other documents describing the child's health situation with regard to compulsory vaccination is required for the admission of a child to any pre-school establishment. In the absence of them, compulsory vaccination is carried out within three months of the child being admitted to school (Article R-3111-17 of the Public Health Act).
106. Such an approach also corresponds to the content of the recommendation of the Parliamentary Assembly of the Council of Europe 1317 (1997) on vaccination in Europe, adopted on 19.3.1997, which calls on Member States, inter alia, to introduce comprehensive public vaccination programmes as the most effective means of preventing infectious diseases, thus ensuring a high level of immunisation of the population (available from http: / / www.coe.int).
107. The Constitutional Court therefore concludes that the legal establishment of the condition to be subject to the prescribed vaccination in order to allow the child to be admitted to a pre-school establishment is not an unconstitutional restriction on the right to education guaranteed by Article 33 of the Charter. The contested regulation has passed the test of rationality, as it does not interfere in the core of the right to education itself, pursues a legitimate objective and has chosen rational and not arbitrary means to achieve that objective.
108. On the basis of the reasons set out above, the Constitutional Court rejected the application for annulment of Paragraph 50 of the Act on Public Health in the words "pre-school establishments may only accept a child who has undergone the prescribed periodic vaccination, has evidence that he is immune to the disease or that he cannot undergo vaccination for a permanent contraindication 'and, in the rest, rejected it because of the lack of active procedural legitimacy of the appellant [Paragraph 43 (1) (c), in conjunction with the provisions of Section 43 (2) (b) of the Law on the Constitutional Court]. In the section requesting the annulment of the provisions of Section 34 (5) of the Education Act, the proposal was also rejected because of the lack of active procedural legitimacy of the applicant.
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 99 / 2015 Coll., on the application for annulment of § 50 of Act No. 258 / 2000 Coll., on the Protection of Public Health and on the amendment of certain related laws, as amended by Act No. 375 / 2011 Coll., and § 34 (5) of Act No. 561 / 2004 Coll., on pre-school, primary, secondary, higher vocational and other education (Education Act) |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 28.04.2015 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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