Compulsory vaccinations for children: Balancing the competing human rights at stake

Abstract

Vaccination for children has been a controversial topic for decades and lately it has regained particular importance. We have seen an increase in vaccine hesitancy and decrease in vaccine confidence throughout Europe, particularly due to vaccine-safety concerns by parents. Consequently, vaccination rates for children have dropped and this in turn has led to an increased spread of vaccine-preventable infectious diseases, such as measles. As a reaction to this phenomenon of vaccine hesitancy, several European countries have introduced, while others are in the process of introducing, laws making vaccinations compulsory for children for a number of vaccine-preventable childhood diseases. The introduction of such laws affects and gives rise to several competing interests of the parents, the child and the State. Against this background, this article seeks to determine how the European Court of Human Rights should balance the competing human rights that are at stake in cases concerning compulsory vaccinations for children.

Introduction

Vaccines have saved millions of people from illness, disability and death from vaccine-preventable diseases. Indeed, it is estimated that vaccinations save two to three million children worldwide every year from common deadly childhood diseases such as measles, mumps, rubella, diphtheria, tetanus, polio, hepatitis B, pneumonia, haemophilius influenza type B and pertussis. ¹ The effectiveness of vaccines is evident from the successful eradication of the smallpox disease in 1979 through a global immunization campaign led by the World Health Organization (WHO). ²

Despite this, it is estimated that one and a half million children under the age of five die each year from the above-mentioned vaccine-preventable childhood diseases. ³ As described by Nelson Mandela, these are ‘needless deaths every year’. ⁴ Hence, one may argue that making vaccinations compulsory for children against such diseases is the solution to prevent their needless deaths. However, many parents worldwide disagree. In fact, more and more parents are becoming less fearful about the effects of the diseases that vaccines are designed to prevent and more concerned about the safety and effectiveness of vaccines. ⁵ As a result, parents are delaying to accept or outright refusing vaccinations for their children, despite the availability of vaccination services. ⁶ The common reasons for such vaccine hesitancy, fuelled by social media, include claims that the Measles, Mumps and Rubella vaccine causes autism; claims long debunked. ⁷ Other common reasons for vaccine hesitancy include the belief that natural immunity is better than vaccine acquired immunity; ⁸ the belief that vaccines contain unsafe toxins and that giving the child more than one vaccine so early in life overloads the child’s immune system. ⁹

In Europe, this increase in vaccine hesitancy, has caused vaccination rates to drop considerably, ¹⁰ leading to an increased spread of preventable infectious diseases, such as measles. ¹¹ Due to a sudden decrease of vaccinations against measles in Europe in 2017, 25,869 people contracted measles, with 42 dying from the disease. ¹² This number was more than tripled in 2018, as 83,540 people contracted measles, with 74 dying from the disease. ¹³ In the first two months of 2019, 34,300 cases of measles have been reported, including 13 deaths. ¹⁴ As a reaction, two European countries that were badly hit by this Measles epidemic, namely France and Italy, introduced laws making vaccinations compulsory for children against numerous vaccine-preventable childhood diseases. ¹⁵ Another European country that was heavily affected was Romania, which in reaction to such outbreaks, put forward a Bill in Parliament in 2017 to introduce similar compulsory vaccination measures. ¹⁶ Germany is the latest European country to follow this trend, by putting forward a Bill in Parliament in May 2019 to make the measles vaccination compulsory for all children after observing an increase in measles cases in the country. ¹⁷ A number of other European countries have had such compulsory vaccination measures in place for a long time, such as Bulgaria, Croatia, Czech Republic, North Macedonia, Latvia, Poland, Slovakia and Slovenia. ¹⁸ In some of these countries, particularly in Poland and Italy, several parents have protested against such compulsory measures and called for vaccinations to be made voluntary.

Compulsory vaccination laws raise the legal problem of how to strike a fair balance between the different competing interests that arise of the three main actors impacted by such laws, namely the parents, the child and the State. It is for this reason that this article takes a normative approach to analyse and determine how the European Court of Human Rights (‘ECtHR’ or ‘Court’) should fairly balance the competing interests that arise, in light of international standards. The research question that this article seeks to answer is: ‘How should the ECtHR balance the competing interests at stake in cases concerning compulsory vaccinations for children?’ For this purpose, this article analyses several sources, mostly primary sources along with relevant academic literature. ¹⁹

The research is limited to the European region, specifically the European Convention on Human Rights (‘ECHR’ or ‘Convention’) framework, for several reasons. The features of the ECHR, particularly its broadly worded provisions, make it possible to address a normative research question that may require the incorporation of international standards in the interpretation of its own provisions to improve the protection of human rights. ²⁰ Consequently, allowing the Convention to evolve with time and the changing legal and social conditions so as to maintain relevance. ²¹ To this end, it has been described as ‘a living instrument’. ²² Furthermore, the recent measles outbreaks in Europe, with the total number of people affected in the year 2018 being fifteen times the record low number of people affected in 2016, ²³ has prompted discussions in several European countries about the introduction of compulsory vaccination laws to prevent further outbreaks. Similarly, there have been no studies on the human rights implications of compulsory vaccinations under the ECHR.

Finally, such regional analysis is timely considering the current pending cases before the Court concerning compulsory vaccinations for children, namely Novotná, ²⁴ Hornych, ²⁵ Brožík, ²⁶ Dubský, ²⁷ Vavřička ²⁸ and Roleček v Czech Republic. ²⁹ In this regard it is important to point out that there is a wide gap in the ECHR jurisprudence as the last case decided on compulsory vaccinations for children was over twenty years ago. ³⁰ Moreover, all member states of the WHO unanimously adopted the Global Vaccine Action Plan in 2014, aimed at making vaccinations a priority worldwide. ³¹ In line with this plan, the WHO European Region has devised a set of priority goals as part of its European Vaccine Action Plan, which includes eliminating measles and rubella, maintaining a polio-free status and controlling hepatitis B infection. ³² This global and regional development further proves the increased importance of vaccinations and in turn the increased impetus by European countries to ensure vaccination rates are increased and maintained high.

This article proceeds as follows. Section 2 starts with definitions of important terms for this article, notably ‘vaccination’, ‘compulsory vaccinations’ and ‘children’. It then moves on to discuss the number of competing interests that arise as a result of compulsory vaccinations and the resulting legal problem that the Court is faced with. Section 3 analyses the different substantive human rights under the ECHR that are at stake upon the introduction of compulsory vaccination laws. These are the right to life, the right to private and family life, the right to freedom of thought, conscience and religion and the right to education. Section 4 then looks at the additional relevant rights enshrined under the Convention on the Rights of the Child (‘CRC’) that are also at stake in cases of compulsory vaccinations. These are the right of the child to health, the right of the child to express his or her views and the best interests of the child principle. The reason for this is to see whether the protections under the latter Convention, which deals specifically with children, could and/or should be read into the ECHR’s provisions to better safeguard human rights. Section 5 analyses the ECtHR’s jurisprudence relating to compulsory medical treatments, paying particular attention to the balancing exercise of the competing human rights at stake. The relevance of these cases derives from the fact that, as established by the ECtHR, a compulsory vaccination is a form of compulsory medical treatment. ³³ This section takes a chronological approach, starting with cases decided by the former European Commission of Human Rights (‘the Commission’) and ending with a brief analysis of the current pending cases before the Court concerning compulsory vaccinations for children. Section 6 then builds on the previous sections to determine how the protections under the CRC may be applied in similar future cases to ensure that an optimal balance of the competing interests at stake is obtained. The conclusion then summarises the main findings and proposes a two-step test for how the ECtHR should balance the competing interests at stake in cases concerning compulsory vaccinations for children.

The legal implications of compulsory vaccinations

Vaccination is the administration of a vaccine to stimulate the immune system to develop adaptive immunity to a particular disease. ³⁴ As no vaccine is 100 percent effective, more than one dose is recommended to increase the chance of the body developing immunity.

Compulsory vaccinations, for the purposes of this article, are understood as involuntary vaccinations that all children must receive by law with the only possibility of exemption being for medical reasons. ³⁵ Compulsory vaccinations entail an interference by the State with individuals’ personal lives, since they compel children to get vaccinated, irrespective of their parents’ consent. This is done either by the imposition of a fine against the parents of unvaccinated children, or by withholding a social service from the unvaccinated child such as by denying the latter access to day care centres and school, or through the use of both types of enforcement. ³⁶ The definition of children is derived from the CRC, which states that a child is a person below the age of eighteen years, unless majority is attained earlier according to the law applicable to that child. ³⁷ In this regard, it is worth noting that the Committee on the Rights of the Child (Com.RC) refers to children aged under eight years old as children in early childhood. ³⁸ This particular reference is important for this article due to the fact that the majority of children for whom vaccinations against childhood diseases are intended range between new-borns and seven year olds, according to the recommendations by the WHO. ³⁹

Upon the introduction of compulsory vaccination laws, a number of competing interests arise. There is the interest of the parents to make decisions for their child on the basis of their right to family life and their right to freedom of thought, conscience and religion. There is the interest of the child to his or her private life, to enjoy the highest attainable standard of health and to have the best interest principle given primary consideration in any decision affecting him or her. A child who is mature enough to express its own views, has an additional interest to have such views heard and taken into consideration in any decision affecting him or her.

There is also the interest of the State to interfere with and restrict the enjoyment of individuals’ rights on the basis of the protection of public health and for the protection of the rights and freedoms of others. On the one hand, it may be argued that due to the young age and immaturity of children to whom the vaccines are administered to, the parents are the ones most capable of making a substituted judgment on their behalf. In this regard, since vaccinations may cause serious side-effects, resulting in significant harm to their child’s health, it may be argued that the parents should be able to decide whether to put their child through such risk. On the other hand, there is the argument that vaccinations are a matter of public health that can affect others’ lives and that the State should be the one to decide on such matters as it has the obligation to protect the collective interest of its population. In this regard, there is also the plausible argument that the State has the duty to protect the right to health and right to life of those persons who cannot get vaccinated for medical reasons and rely on herd immunity. Herd immunity occurs when a significant proportion of a community is immune due to the maintenance of a high vaccination coverage. ⁴⁰ The more persons are vaccinated, the less likely it is that any person will be infected, because there are fewer hosts for the pathogens which makes it harder to spread from person to person. Herd immunity breaks down when vaccinations are not administered to all those who can medically receive them. ⁴¹

Furthermore, in cases where the State withholds access to a child’s education, additional competing interests arise. Namely, the interest of the child to have his or her right to education and the interests of the State to interfere with the child’s right to education for the protection of the health and life of all other children in the school.

The number of competing interests that arise show that human rights do not exist in a vacuum but are indivisible, interdependent and interrelated. ⁴² This raises the question: which interests shall prevail at the expense of others?

Substantive human rights at stake under the ECHR

The substantive human rights listed below are the four main grounds on which complaints with regards to compulsory vaccinations have been and are most likely to be lodged to the ECtHR. These four human rights safeguards under the ECHR protect the different interests of the three main actors discussed above, that is, the parents, the child and the State.

Article 2 - The right to life

This right is the foundational right which allows individuals to enjoy all other rights. The phrase ‘shall be protected’ enjoins the State not only to refrain from intentionally and unlawfully depriving individuals of their life, but also to take appropriate steps to protect the lives of the individuals within its jurisdiction. ⁴³ Article 2 is a common ground in cases concerning compulsory vaccination measures, on which the applicant usually claims to have suffered serious health consequences as a side-effect of the vaccinations administered, violating the right to life. ⁴⁴ However, both the Commission and the Court have failed to recognise a violation of Article 2 in such cases due to the lack of evidence proving a causal link between the harm suffered and the vaccination itself.

Notably, the positive obligation under Article 2 entails a primary duty on the State to put in place an effective legislative and administrative framework designed to deter against threats to the right to life. ⁴⁵ It also entails a duty to take preventive operational measures to protect an individual whose life is at risk from the acts of third parties. ⁴⁶ Hence, it may be argued that it is the duty of the State to ensure that everyone who can be vaccinated is vaccinated (through compulsory vaccinations), so as to protect the lives of those persons who rely on herd immunity for protection against such diseases.

Furthermore, it must be established to the satisfaction of the Court that the authorities either knew or ought to have known at the time that there was an actual and immediate risk to the life of a specific person or persons from the acts of a third party and they did not take appropriate measures within the scope of their powers to avoid such risk. ⁴⁷ Therefore, it may be argued that in the case of an epidemic, such as a measles outbreak, the State knew or ought to have known at the time of the immediate and real risk to the lives of those who cannot be vaccinated for medical reasons from the third parties who contracted the disease and the State did not take the appropriate measures to avoid such risk.

Article 8 - The right to private and family life

The Court has stated that the primary purpose of Article 8 is to protect against the arbitrary interferences by public authorities with the individual’s right to private life, family life, home and correspondence, ⁴⁸ of which private life and family life are relevant to this research article. The right to private life includes a person’s physical and psychological integrity, ⁴⁹ and this right is a common ground instituted by the child as the applicant in cases concerning compulsory vaccination. The Court has confirmed that compulsory vaccination constitutes an interference with this right. ⁵⁰ The term family life concerns the relations within a family, ⁵¹ and this right is a common ground instituted by the parents in such cases. The guarantees under Article 8(1) may be limited in accordance with Article 8(2).

Article 8(2) holds that State interference with the enjoyment of the rights under Article 8(1) may be justified if three main criteria are fulfilled. Notably, if the interference is: 1) in accordance with the law; 2) in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others; and 3) that such interference is necessary in a democratic society. The latter criteria is of crucial importance as it requires the balancing of the competing interests, and as such helps to answer the research question.

The term ‘necessary’ under Article 8 does not mean ‘indispensable’, ⁵² but that the interference corresponds to a pressing social need and is proportionate to the legitimate aim pursued. ⁵³ In order to determine whether the interference is proportionate to the aim pursued, a number of factors must be considered, including the interest to be protected from interference, the severity of the interference and the pressing social need that the State is aiming to address. ⁵⁴ The more severe an interference is, the weightier the reasons must be to justify it. ⁵⁵ Nonetheless, the margin of appreciation afforded to States plays a significant role when deciding whether the State interference is justified. In exercising its supervisory jurisdiction, the ECtHR should look at the impugned decisions in light of the case as a whole and determine whether the reasons adduced to justify the interference are relevant and sufficient. ⁵⁶

Article 9 - The right to freedom of thought, conscience and religion

Article 9 of the ECHR enshrines the right to freedom of thought, conscience and religion. Article 9(1) states that the right includes the manifestation of one’s religion or belief, in worship, teaching, practice and observance. States have a negative obligation to refrain from taking action that interferes with the right to freedom of thought, conscience or religion.

Similarly to Article 8(2), Article 9(2) contains a formula to balance individual rights against the relevant competing collective interests. ⁵⁷ It holds that State interference with the enjoyment of the rights under Article 9(1) may be justified if three criteria are fulfilled, namely if it is: 1) prescribed by law, 2) in the interests of public safety, for the protection of public order or health or morals or for the protection of the rights and freedoms of others and 3) that such interference is necessary in a democratic society. With regard to the latter criteria of necessity, the Court has explained that in order to be considered necessary, the measure must correspond to a pressing social need, must be proportionate to the legitimate aim pursued and must be justified by relevant and sufficient reasons. ⁵⁸ It has also emphasised that the hallmarks of a democratic society are pluralism, tolerance and broadmindedness. ⁵⁹

Notably, Article 9(2) does not refer to the rights guaranteed by paragraph 1 in general but specifies ‘manifestation’. The Court has stated that manifestation of religion or belief refers to acts which are central to the expression of a religion or belief and can be individual or collective, private or public. These acts must be distinguished from those that are merely inspired, encouraged or influenced by a religion or belief. ⁶⁰

Article 2 of Protocol No.1 - The right to education

Of relevance is the first sentence of this Article, which guarantees the right to individual education. The first sentence does not oblige States to make education available but it provides a right of access to the educational establishments that exist at a given time. ⁶¹ This right to education is indispensable to the furtherance of human rights and its role is so crucial that a restrictive interpretation of the first sentence would be inconsistent with the objective of Article 2 of Protocol No. 1. ⁶²

However, the right to education is not absolute and may thus be limited. According to the ECtHR, the limitations need to be foreseeable for the individuals concerned, must pursue a legitimate aim and must be proportionate to such aim. ⁶³ The latter proportionality test developed by the Court seems to be similar to that required under Articles 8(2) and 9(2) with the difference that the ECHR itself does not specify the criteria of when State interference with the right to education may be justified. The Court has emphasised that this Article must be read in light of Articles 8 and 9 of the ECHR ⁶⁴ and has also reiterated that any relevant rules and principles of international law must be taken into account when interpreting this right. ⁶⁵ Hence, the Court itself has acknowledged the importance of ensuring that relevant international standards are read into Article 2 of Protocol 1.

Additional relevant rights under the CRC

This article argues that the ECtHR should consider the below three additional rights enshrined under the CRC when deciding cases concerning compulsory vaccinations. This is because the ECHR is a living instrument that must be interpreted in light of present-day conditions, ⁶⁶ and should thus take into account additional relevant rights from other treaty systems that could influence the rights at stake under its own provisions. Under present-day conditions, the CRC is the most widely ratified international human rights Treaty. Furthermore, the recently adopted Com.RC General Comment (‘GC’) No. 14 provides detailed guidelines on how to interpret the principle of the best interests of the child which is a fundamental principle that should be applied in all actions and decisions concerning children. ⁶⁷

Article 12 - The right of the child to express his or her views

This right is a general principle of fundamental importance to the CRC and consists of two elements. First, the right of the child to express its views freely in all matters affecting him or her and secondly, to have such views given due weight in accordance with his or her age and maturity. ⁶⁸ The term ‘shall assure’ imposes a clear strict obligation on States to recognise this right and ensure its implementation. ⁶⁹ As the child grows and matures, the weight given to his or her views in the assessment of his or her best interests shall increase. ⁷⁰ This right is not as relevant to children in early childhood, as they tend to be immature and fully dependent on their parents at such tender age. However, this right becomes particularly relevant with respect to some specific vaccinations like the Human Papillomavirus (HPV) vaccine which is given to children (most often to girls) between the age of 9 and 14. ⁷¹ In such cases the level of maturity of the child needs to be evaluated by taking into account the child’s physical, emotional, cognitive and social development. ⁷²

Article 24 - The right to health

This Article guarantees the right for all children to enjoy the highest attainable standard of health. ⁷³ Health is a fundamental human right, essential for the enjoyment of other human rights. However, it is also dependent on the realisation of other human rights enshrined in the respective Conventions, ⁷⁴ particularly the right to life. Article 24(2) of the CRC holds that when implementing such a right, States should take appropriate measures to reduce infant and child mortality and to combat diseases. ⁷⁵ Notably, the Com.RC interprets children’s right to health as an inclusive right, extending to enabling children to grow and develop to their full potential by addressing the underlying determinants of health. ⁷⁶ It also emphasises that the implementation of Article 24 must be determined by public health standards and best practices that are evidence-based ⁷⁷ and explicitly recommends making vaccinations against the common childhood diseases universally available. ⁷⁸ Therefore, the Com.RC seems to acknowledge vaccinations as a requirement for children to be able to develop to their full potential.

Article 3 - The best interests of the child

Article 3(1) of the CRC states that in all actions concerning children, the best interests of the child shall be a primary consideration. The use of the word ‘shall’ implies that the best interests of the child is a legal obligation. ⁷⁹ The objective of this principle is to ensure the holistic development of the child and the full and effective enjoyment of all rights enshrined in the CRC. ⁸⁰ The Com.RC has clarified that this principle entails two separate obligations, that is, to actively and openly take into consideration the best interests principle in all actions affecting children in general or particular groups of children, and to take into consideration the best interests of the individual child in the specific circumstances of the case. ⁸¹ The Committee emphasises that the principle must be observed in all health-related decisions concerning both individual children and children as a group, ⁸² and recognises that this principle is most relevant to early childhood. ⁸³

Case-law concerning compulsory medical treatments

This section focuses on the jurisprudence of the Commission and the ECtHR relating to compulsory medical interventions on children and similar relevant cases. This is because of the limited case-law dealing specifically with the issue of compulsory vaccinations and because of the relevance of such cases on compulsory medical interventions in general, given that, a compulsory vaccination is a type of compulsory medical treatment. ⁸⁴ The commonality among these cases is that the aim pursued by the State in imposing such measures was for the protection of public health and/or the rights and freedoms of others and was deemed to be a legitimate aim by the Court.

Interpretation of Article 2

In the early case of Association X, ⁸⁵ the applicant was an association of parents whose children suffered severe and lasting damage or death from vaccinations. Although the vaccinations in this case were voluntary, the Commission’s interpretation of Article 2 is of particular relevance. The Commission interpreted Article 2(1) as obliging States not only to refrain from taking life intentionally but also to take adequate and appropriate measures to protect life. The Commission found that where a small number of deaths occur in the context of a vaccination scheme, whose ultimate aim is to protect the health of the public by eliminating infectious diseases, it cannot be said that there has been an intentional deprivation of life or that the State has not taken adequate and appropriate measures to safeguard life. ⁸⁶ It recognised that the State is aware of the possibilities of adverse reactions from vaccinations, some of which may result in serious damage or death. However, it emphasised that it cannot be concluded that the State intended for such consequences to occur. A large part of a vaccination scheme is concerned with preventing such adverse reactions from materializing and in fact the number of adverse reactions recorded are minimal. ⁸⁷

In Boffa and Others v. San Marino, ⁸⁸ the applicant claimed that the laws making it compulsory to vaccinate his child against a number of diseases, including hepatitis B, constituted an unjustified interference with his right to life. The Commission recalled that Article 2 primarily provides protection against deprivation of life and even if it is assumed that it guarantees a right not to be physically injured, a vaccination does not in itself constitute an interference prohibited by it. ⁸⁹ The Commission gave due importance to the fact that the applicant did not provide any evidence that the vaccinations would create a real medical danger to his child’s life, ⁹⁰ and concluded that there was no violation of this Article.

From the above, it seems that vaccinations, whether compulsory or not, do not by themselves amount to a prohibited interference with Article 2 and should not be dealt with under such Article. This approach seems to be affirmed by the ECtHR, as implied form the questions it posed to the parties in the pending cases of Novotna v. Czech Republic ⁹¹ and Hornych v. Czech Republic. ⁹² The applicants were refused admission to kindergarten for failure to prove that they did not take all vaccinations that were made a prerequisite for school attendance. In both cases, the applicants complain that the State had breached its obligations under Article 2. Despite the fact that the applicants claimed a violation of Article 2, the Court has directed its questions to Articles 8 and 9 only. This approach appears to be reasonable and in line with the Commission’s and ECtHR’s interpretation of Article 2 in general, whereby the State has the negative obligation to refrain from intentionally and unlawfully depriving individuals of their life. This cannot be said to be the case for compulsory vaccinations as the State has the opposite intention of saving lives with such vaccinations, as the Commission made clear in the case of Association X. In light of this, this article argues that Article 2 is relevant to compulsory vaccinations insofar as it places a positive obligation on States to protect the life of its citizens. In this regard, by introducing compulsory vaccinations as a means of preventing the spread of vaccine-preventable diseases, the State ensures herd immunity, which may be the only way to protect those individuals who cannot be vaccinated, against such diseases that threaten their right to life. Therefore, the right to life of those who cannot be vaccinated falls under ‘the protection of the rights and freedoms of others’ as a legitimate aim for the imposition of compulsory vaccinations.

Interpretation of Article 8

In the case of Acmanne and Others v Belgium ⁹³ , the applicants were fined for refusing to let their children undergo compulsory screening for tuberculosis. ⁹⁴ They complained that the compulsory vaccination screening law and their convictions interfered with their right to private life and cannot be considered necessary to protect health. In its observations, the Commission held that even a minor compulsory medical treatment amounts to an interference with the right to respect for private life. ⁹⁵ The Commission found that due to the lack of evidence produced by the applicants on the risks of significant harm that could result from the screening compared to the risks of significant harm that could result from contracting tuberculosis, particularly for the deprived, the applicants had a social duty to defer to the general interest and not endanger the health of others when their own life was not in danger. ⁹⁶ Accordingly, it found the interference to be justified and necessary to protect both the applicants’ health and public health in a democratic society within the meaning of Article 8(2). ⁹⁷

In Wedberg and Hillblom v Sweden, ⁹⁸ the applicants’ son was forcibly taken into public care for the purposes of undergoing surgery, despite his parents’ opposition. According to the medical authorities, the surgery was the son’s only chance of survival, however, the child died during the surgery. The applicants alleged that the State violated their rights, as parents, to their family life. In considering whether the interference was necessary, the Commission stated that despite the margin of appreciation, the Commission’s review should not only be limited to establish whether the State exercised its discretion reasonably, carefully and in good faith. ⁹⁹ Rather, the Commission must also ascertain whether the reasons adduced to justify the interference by the State are relevant and sufficient, whether they were considered in light of the case as a whole and in light of the situation prevailing at the time. ¹⁰⁰ It held that the death of the child cannot affect the assessment of whether there were relevant and sufficient reasons at the time to take the child into public care and undergo an immediate operation. The Commission accepted the State’s argument that the surgery was the only way of saving the child’s life and therefore concluded that the interference by the State was proportionate to the legitimate aim pursued of protecting the child’s life and health. ¹⁰¹ It seems that in this case the urgency of the matter constituted a pressing social need for the State to interfere with the rights of the parents and do what it deemed to be in the best interests of the child.

In the previously mentioned case of Boffa, the applicant also claimed that the laws that made vaccinations compulsory for children constituted an unjustified interference with his right to private and family life. The Commission held that a requirement to undergo medical treatment, such as a vaccination, on pain of a penalty amounts to an interference with Article 8. ¹⁰² In determining whether the interference was necessary, it stated that a vaccination campaign that makes it compulsory for an individual to defer to the general interest and not endanger the health of others where his own life is not in danger, falls within the margin of appreciation afforded to the State. ¹⁰³ Accordingly, it concluded that the interference was proportionate to the legitimate aim pursued.

In the case of M.A.K. and R.K. v. the United Kingdom ¹⁰⁴ , the first applicant took his nine year old girl (second applicant) to see a paediatrician as she had several bruises on her legs. She was admitted to hospital for examination. The father had to leave and gave the doctors express instructions not to take any further medical tests before his wife arrived at the hospital. However, by the time the mother arrived, photographs of the girl’s legs and also blood samples had been taken without either of the parents’ consent. The second applicant complained that the decision to take a blood sample and photographs against her parents’ express wishes when neither parent was present constituted an unjustified and disproportionate interference with her physical and moral integrity, protected by Article 8 of the Convention. ¹⁰⁵ The Court emphasised that in view of her parent’s express instructions, the only possible justification for the decision to proceed with the blood test and photographs was if they were required as a matter of urgency. The Court did not accept that there was a pressing social need to treat the girl’s symptoms because there was no evidence suggesting that her condition was critical or deteriorating or likely to deteriorate before her mother arrived at the hospital. Nor was there any suggestion that she was in pain or discomfort. ¹⁰⁶ The Court held that the interference was not justified and violated her right to private life, particularly her right to physical integrity. ¹⁰⁷ Notably, unlike in the case of Wedberg and Hillblom where prolonging surgery could have subjected the child to significant harm to his health, in this case there was no urgency to interfere as there was no risk of significant harm to the girl’s health if the authorities waited to get her parents’ consent first.

In the most recent Court case dealing with compulsory vaccination, namely that of Solomakhin v Ukraine, ¹⁰⁸ the applicant claimed that he was forcibly administered a diphtheria vaccination at the age of 34, which as a side-effect caused him to suffer from several chronic diseases. He complained that the compulsory vaccination unjustifiably interfered with his right to private life. The relevance of this case, despite it not dealing with a child, is to show the difference in approach by the Court in comparison to the previous Commission, if any, where the facts are similar to the previous cases on compulsory vaccination, except for the age of the person being administered the vaccine. In determining whether the interference was necessary, the Court acknowledged that necessary precautions were taken prior to the administration of the vaccine, to ensure that it would not be to the applicant’s detriment ‘to the extent that would upset the balance of interests between the applicant’s personal integrity and the public interest of protection health of the population.’ ¹⁰⁹ Here, the Court seems to imply that the applicant has a social duty to defer to the general interest even if he may be harmed in the process, as long as such harm is minimal when compared to the benefit achieved for the rest of the population, namely by having the spread of diphtheria controlled. The Court noted that there was no evidence of a causal link between the harm suffered and the vaccination and found no violation of Article 8. ¹¹⁰ In observing the reasoning of the domestic courts, it noted that the applicant’s allegations were thoroughly examined and that the findings of the domestic court seemed to be grounded on a sufficient evidential basis. It concluded that the findings of the domestic court were not arbitrary or manifestly unreasonable and that the applicant did not challenge the findings of the domestic authorities. Therefore, despite the margin of appreciation afforded to the State, the ECtHR, like the Commission in the case of Wedberg and Hillblom v. Sweden, ascertained that the reasons adduced to justify State interference by the domestic Court were relevant and sufficient and were considered in light of the situation prevailing at the time.

As noted above, where the individual interest of the child competes with the collective interest of the protection of public health, as was evident in the cases of Acmanne, Boffa and Solomakhin, the domestic authorities in the exercise of their margin of appreciation may make it compulsory for the individual to defer to the general interest and not endanger the health of others where the child’s life is not in danger. Where the individual interest does not compete with collective interests in the sense that the health of the public is not impacted by the decision taken with respect to the child, as was the case in Wedberg and Hillblom and M.A.K. and R.K. v the United Kingdom, it needs to be determined whether the medical intervention was required as a matter of urgency in the circumstances prevailing at the time so as to justify the interference of the State. The risk of significant harm that may occur to the child’s health, life or both needs to be assessed to identify the urgency of the matter.

It is clearly established by both the Commission and the Court, that any form of compulsory medical intervention, irrespective of its magnitude, constitutes an interference with the right to private life and family life under Article 8(1). This is evident also from the six current pending cases before the Court, where the Court poses two questions to the parties in the respective cases. First, it asks whether the refusal to admit the applicants to kindergarten in the cases of Novotna, Hornych, Brozik, Dubsky and Rolecek, and the imposition of the fine on the applicant in the case of Vavricka, amounts to an interference of the right guaranteed by Article 8(1). Taking into consideration the above analysis, it would follow that the answer to the first question would be affirmative. The Court’s second question is whether such interference was provided by law and was necessary within the meaning of Article 8(2) of the Convention. At this stage it must be determined whether there existed a pressing social need for the state to interfere with the applicant’s right to private life and/or family life.

Interpretation of Article 9

In the case of Boffa, the first applicant had also claimed that the laws that made vaccinations compulsory for children constituted an unjustified interference with his right to freedom of thought, conscience and religion. The Commission stated that Article 9 primarily protects the sphere of personal and private beliefs and those acts that are intimately linked to those beliefs such as acts of worship or devotion. However, it does not necessarily protect every act motivated or influenced by such beliefs. It noted that the obligation to be vaccinated, as set out in the law at issue, applies to everyone irrespective of their beliefs and hence does not constitute an interference with the freedom of thought, conscience and religion protected by Article 9(1). ¹¹¹ Here, the Court avoided going into any detail on Article 9 and simply determined at the outset that there was no interference with the applicant’s rights under said Article. However, it may well be argued that the act of refusal of vaccination constitutes a manifestation that is intimately linked to one’s belief as refusal is an expression of personal conviction.

In the case of Jehovah Witnesses of Moscow v Russia ¹¹² , the applicants complained that the dissolution of the community and banning of its activities because of its religious teachings to refuse blood transfusions violated their Article 9 rights. Despite dealing with adults, this case is of significant relevance because the Court makes two important distinctions when balancing a person’s right to refuse medical treatment on grounds of religious belief and personal autonomy and the State’s interest in interfering with the former to protect the lives and health of its population. ¹¹³ First, the distinction between medical treatments that solely affect the individual, and medical treatments that are needed to protect others. With regards to the former, the Court seems to imply that the individual’s right to personal autonomy in the sphere of physical integrity and religious beliefs overrides the State’s interest in protecting the health and lives of its citizens. The right to personal autonomy entails the freedom to accept or refuse medical treatment, even when the refusal might lead to a fatal outcome. ¹¹⁴ With regards to medical treatments needed to protect others, the Court seems to imply that the general interest overrides the individual’s right to personal autonomy. The Court indirectly held that when there is the need for the protection of the public interest, then individuals have a social duty to defer to such public interest and their individual rights and freedoms are justifiably overridden by the State’s interest to preserve and protect the health and lives of society at large. ¹¹⁵ Second, by specifying ‘competent adult patients’ the Court seems to make a distinction between those patients who are competent adults and those who are not, arguably children and incompetent adult patients. Hence, the Court may have reasoned differently if the medical treatment was for a child. It may be inferred from this distinction that in cases involving a child, the interference by the State in medical treatments that solely affect the child may be justified on the basis that the State is acting in the best interests of the child, to protect its right to health and right to life.

The Court seems to be willing to consider whether a violation of Article 9 occurred in five of the current pending cases before it. In fact, it has put two questions to the respective parties in each case. It firstly asks whether the refusal to admit the applicants to kindergarten in the cases of Novotna, Hornych, Brozik, Dubsky and Rolecek, and the imposition of the fine on the applicant in the case of Vavricka, amounts to an interference of the right guaranteed by Article 9(1). If this is established, it then asks whether such interference was provided by law and is necessary within the meaning of Article 9(2).

Interpretation of Article 2 of Protocol No.1

The only case to date where a person’s right to education was interfered with by the State for reasons of public health or for the protection of the rights and freedoms of others is that of Memlika v Greece. ¹¹⁶ In this case, the minor applicants, aged 7 and 11, were wrongly diagnosed with leprosy and were excluded from their primary school for reasons of public health. The applicants, relying on Article 2 of Protocol No. 1 alleged that their exclusion from primary school infringed their right to education. The ECtHR emphasised that the restrictions on the right to education must be foreseeable to the applicant, must pursue a legitimate aim and must be proportionate to such aim. ¹¹⁷ The Court acknowledged the need of public health authorities to take appropriate measures to ensure that serious and infectious diseases, such as leprosy, are prevented from being spread. ¹¹⁸ However, it found that in order to respect the proportionality between the competing interests, that is, between the interests of the community and the interests of the individuals subjected to such measures, the authorities have an obligation to act diligently and expeditiously. This is in order to reconcile the protection of the interests of the community and the interests of the individuals subjected to such measures. The authorities must ensure that particularly restrictive measures are maintained only for the period strictly necessary for the purpose for which they were imposed and withdrawn as soon as the said purpose no longer exists. ¹¹⁹ The unreasonable delay by the authorities in setting up a panel and implementing the process to determine whether the children truly suffered from leprosy was not proportionate to the legitimate aim pursued.

In this case, the Court acknowledged that the measures depriving children from access to school may in their very nature have serious effects on their lives. ¹²⁰ This is in line with the understanding of the right to education under the CRC that access to education is crucial for the development of the child. Moreover, despite the margin of appreciation afforded to the State, the Court held that the State’s interference with the right to education, although pursuing a legitimate aim, needs to be temporary and discontinued as soon as it is no longer required to pursue such aim. Notably, the Court did not make any reference to any other international human rights treaty nor to the best interests of the child principle, even though the case concerned the competing interests of children on both sides and despite it being decided after the adoption of the GC No. 14 by the Com.RC.

With regard to the current pending cases, the Court intends to address whether there was a violation of Article 2 of Protocol 1 in all five cases where the applicants were refused access to kindergarten. The Court has asked the parties whether the refusal to admit the applicants to kindergarten constitutes a violation of Article 2 of Protocol 1.

Synthesis of the case-law

Looking back at the cases dealing with medical interventions, it is notable that the notion of the best interests of the child was never explicitly mentioned by the Commission or the Court. Only in the case of Wedberg and Hillblom v Sweden where the acceptance by the Commission of the Government’s claim that the reason behind its authorities’ decision was for the ‘best interests of the child’ that may be understood as an indirect recognition of the best interests of the child principle. A reason for the lack of incorporation of this principle could be that it is relatively recent, having entered into force under the CRC in 1990 and for a long time no guidance or elaboration on its interpretation and application was provided until the recent GC No.14 was adopted in 2013. Thus it is plausible for all cases decided before 2013, that the interpretation and application of this principle was avoided due to lack of guidance and possibility of misuse. Yet, from the cases examined in this article, it can be seen that the case of Memlika despite being decided in 2015 and concerning children, still did not refer to this principle. This article argues that the pending cases before the Court provide the ECtHR with the perfect opportunity to make the connection between this fundamental principle and compulsory vaccinations. This is because it is the first time that the ECtHR will deal with cases concerning compulsory vaccinations specifically for children.

Applying the best interests principle: A two-step approach

As has been shown, a recurring issue that this article identifies in cases concerning compulsory medical treatment for children is the lack of recognition by the Court that it is dealing with children who require special protection due to their ‘dependency, maturity, legal status and often voicelessness’. ¹²¹ This lack of recognition is problematic for various reasons. One key reason is that the best interests principle is not applied and accordingly, what is in the best interests of the child is not determined, nor given primary consideration. Another reason is that by not explicitly recognizing the child as requiring special protection, the Court does not see the child as a rights holder and in turn makes little attempt to assess the facts of the case in terms of his or her individual rights under the Convention. This in turn implies that the child’s right to make his or her views heard and given due weight, in accordance with his or her age and maturity is disregarded.

The main grounds of compulsory vaccination, namely Articles 8, 9 and 2 of Protocol 1, require the application of the proportionality test to determine whether State interference with such rights was necessary. When a child is involved, there is no legal restriction to the application of the best interests of the child under the Articles referred to. However, neither is there an obligation arising from the ECHR to apply such principle. Rather, it is up to the ECtHR to prioritise this principle in reviewing the decisions reached by the domestic courts. This article asserts that the ECtHR needs to take a stance by consistently prioritises this principle in cases concerning children, to ensure that the best interest of the child is given primary consideration. In this regard, this Article proposes a two-step approach to be followed in balancing the competing interests at stake.

Step-One: Assessment of individual interest

The first step should be to give the best interests of the individual child in the specific circumstances of the case primary consideration. The determination of the best interests of the child is within the margin of appreciation afforded to the States. Nonetheless, the ECtHR, in its supervisory role, should adequately review the domestic Court’s determination of the best interests in accordance with the guidelines found in the GC 14. In this regard, it should assess and verify whether the domestic Courts took due consideration of 1) the individual circumstances of the child existing at the time, including his or her health condition; 2) the views of the child on the issue and gave such views due weight in accordance with the child’s age and maturity; and 3) the child’s right to the highest attainable standard of health. ¹²² The best interests of the child needs to be determined for all cases arising under Articles 8, 9 and 2 of Protocol 1 in cases challenging compulsory vaccinations for children. The Com.RC’s GCs, in particular, GC 14 should be referred to, to guide the Court in its interpretation and ensure that the principle is neither misinterpreted nor misused by the domestic authorities.

It is after determining what is in the best interests of the individual child that the balancing exercise between the established individual interest and the collective interests should proceed. The second step requires assessment of the necessity of the interference by the State in a democratic society. This requires examination of whether the restrictive measure- that is the law making vaccination compulsory- is proportionate to the legitimate aim pursued of protecting public health and/or the rights and freedoms of others.

Step two: Assessment of collective interests

Medically Necessary v. Practically Necessary

The Commission has emphasised that individuals have a social duty to defer to the general interest and not endanger the health of others when their own life is not in danger. ¹²³ This raises an important question: when does this social duty arise?

Compulsory vaccination laws have been compared to compulsory seatbelts, where despite there being a small chance of causing harm it has proven highly effective at preventing injuries and deaths from traffic accidents. ¹²⁴ In spite of similarities, this comparison is not entirely accurate. This is because whether a person in a specific vehicle wears a seatbelt or not, could only save that particular individual’s life in case of a traffic accident, whereas the life of the other individuals from said accident depends on whether they were themselves wearing their seatbelt. Hence, by wearing a seatbelt, a person is generally only protecting himself.

To the contrary, whether a person is immunised against an infectious disease or not, may affect others’ chances of contracting the disease. As explained earlier, by being vaccinated, the individual is protecting himself from the disease he or she is vaccinated against and also protecting others from such disease through herd immunity. Those who can get vaccinated but do not are perceived as free-riding on the immunity of others. ¹²⁵ If a significant number of individuals make such a decision then herd immunity will no longer be guaranteed, increasing the possibility of disease epidemics, ¹²⁶ as has happened in Europe with the outbreaks of measles. Nowadays, with increased globalization and the increased mobility of persons all over the world, more social responsibility is required towards achieving herd immunity and less freeriding. Thus, it may strongly be argued that it is justifiable to restrict individual autonomy in order to protect everyone, in particular those who cannot be vaccinated, against infectious diseases. However, herd immunity does not protect against all vaccine-preventable diseases, which raises another important question: Why should a vaccine be made compulsory if it does not induce herd immunity?

The type of disease, its seriousness and mode of transmission, along with whether there are other less intrusive alternatives to the vaccination for preventing the transmission of the disease need to be given due consideration. ¹²⁷ A clear example is HPV which is one of the most common sexually transmitted diseases and the primary cause of cervical cancer in women. ¹²⁸ HPV is a disease that is not spread by an airborne virus but is transmitted by sexual contact. ¹²⁹ This entails that it may be prevented by other means apart from vaccination, such as abstinence from sex or protected sex and regular disease screening. Despite there being a vaccination that may prevent its transmission, there are other equally or more effective (in the case of abstinence) alternatives to the vaccination. This is contrary to measles, which has no other reliable alternatives to vaccination as it is a highly contagious airborne disease and the only other ways to avoid it is by living in isolation. ¹³⁰

A distinction needs to be made between disease-preventable vaccines that are medically necessary and those that are not. ¹³¹ This article argues that medically necessary vaccines are those that according to medical evidence, induce herd immunity against particular serious infectious diseases and are the only known viable defences against that particular disease. Hence, medically necessary vaccines entail an element of strict necessity to protect public health. This means that the particular disease which the vaccine is designed to prevent must pose a risk of significant harm or death if its spread is not controlled. Further, there must be no other less intrusive means available to control its spread. This is because if there are alternative effective means that are less intrusive with an individual’s human rights to achieve the public health objective, then the element of strict necessity is lacking. ¹³² Other disease-preventable vaccines may be practically necessary, in the sense that, although not medically necessary, they are for one reason or another considered by the State as necessary to combat a particular serious disease effectively. ¹³³ For example, in a country where a high number of individuals engage in unprotected sexual activities resulting in cervical cancer spreading considerably and for some reason or another the alternatives to the vaccination are not resorted to, then the imposition of the HPV vaccination by the State may be seen as a practical necessity to control the spread of the disease. Given its effectiveness to prevent cervical cancer (which causes significant harm to women’s health and may lead to death) it may be considered necessary by the State to protect the health and life of its women. ¹³⁴

Referring back to the seatbelt analogy, the use of the seatbelt is clearly not a medical necessity, but is considered a practical necessity in most countries. This is due to the increasing number of motorised vehicles and road traffic accidents and its proven effectiveness in preventing injuries and deaths from such accidents. However, it is not the only way of preventing injuries and deaths from traffic accidents, nor does it induce some kind of herd immunity in the sense that by wearing a seatbelt yourself, you are protecting other person’s lives from road traffic accidents.

Likewise, the HPV vaccination is not medically necessary to preserve the community’s wellbeing as it does not induce herd immunity and there are other less intrusive means available to prevent the spread of the disease. One may argue that it is up to the individual to be responsible and take the necessary precautions, if and when they engage in sexual activities to prevent getting or transmitting such disease. Accordingly, the State can protect the general public against the spread of such disease through less intrusive means than compulsory vaccination. This can be done for example through adequate sexual health education along with the provision of contraceptives that reduce the risk of transmitting such diseases through sex, without compromising the child’s and/or his/her parents’ individual rights and freedoms.

Similarly, hepatitis B is transmitted through blood contamination and sexual contact and can be prevented by abstaining from sex or engaging in protected sex and not sharing drug syringes, apart from vaccination. ¹³⁵ Therefore, it can similarly be argued that the vaccination for hepatitis B is not medically necessary but may be practically necessary. It may be argued that the Court has already implicitly made a distinction between deferring to the public interest because of a social duty arising when the medical intervention is a medical necessity, as opposed to deferring to the public interest because of a practical necessity. In fact, as noted earlier, in Acmanne and Others, the Commission expressly referred to the ‘social duty’ arising in this case regarding screening for the highly contagious disease of tuberculosis. Whereas, in the case of Boffa and Others regarding compulsory vaccination against the disease of hepatitis B, although stating the need for the child to defer to the general interest of protection of public health, the Court refrained from stating there is a ‘social duty’.

In light of the above, distinguishing between vaccines that are medically necessary and vaccines that are practically necessary helps to define the limits of state interference with children’s individual rights and freedoms. This is because a compulsory vaccination that is medically necessary entails the social duty to defer to the general interest and is proportionate to the aim of protecting public health, unless it is sufficiently proven that it would endanger the life of the child, in which case the latter’s best interests shall prevail.

The social duty stems from a positive obligation of the State under Article 2 to protect the life of those who cannot be vaccinated. Hence, unless it is proven that the vaccination would cause significant harm to the individual child, the collective interest of the protection of public health shall prevail. A medically necessary vaccine entails a pressing social need to interfere with individual’s rights for the benefit of public health. On the other hand, a compulsory vaccination that is not medically necessary does not entail a social duty. If such compulsory vaccination is deemed practically necessary by the State, then it may be justified to require the child to defer to the public interest, however, only if there are sufficient and relevant reasons showing that it was indeed practically necessary in the circumstances present at the time. In this regard, two important factors need to be considered. Firstly, whether there were other reliable and less intrusive alternatives available. This would ensure that the right to personal autonomy is not unreasonably interfered with. Secondly, whether precautions were taken by the State to ensure that the vaccination would not endanger the life of the child.

The proportionality of vaccinations as a prerequisite for school attendance

In light of what has been said, in determining whether the interference by the State in making vaccinations a prerequisite for school attendance, a distinction must also be drawn between the vaccinations that are medically necessary, practically necessary or otherwise. This may also help in determining the best interests of the children as a group.

In this respect, Judge Simackova’s recent Dissenting Opinion of the Czech Republic’s Constitutional Court case on the country’s compulsory vaccination laws enforced as a prerequisite to preschool is worth considering. ¹³⁶ Although Judge Simackova did not refer to the terms ‘medically necessary’ or ‘practically necessary,’ she makes a similar argument arriving at a similar conclusion. She contends that the judgment does not adequately examine whether the regulation making nine vaccinations compulsory for children is proportionate to achieve the legitimate aim pursued of protecting the rights and freedoms of the other children. ¹³⁷ There may be children who are vaccinated only against certain diseases and not others, and there may be no proportionate relationship between the remaining vaccinations which they have refused and the legitimate aim pursued by making the latter vaccinations compulsory. ¹³⁸

In her Opinion, Judge Simackova insisted that is not proportionate to require vaccination against hepatitis B as a condition of admission to preschool as its communicability in children attending preschool is extremely unlikely. ¹³⁹ Given that the persons impacted by having vaccinations as a prerequisite to preschool are children, the best interests of children as a group needs to be considered. Notably, the right interfered with by the State, that is the right to education, is a fundamental right for ensuring children’s holistic development. If one compares the far-fetched aim of preventing the spread of hepatitis B among preschool children to the seriousness of the interference by the State in denying children access to preschool education, it is evident that the condition of compulsory vaccination is unreasonable and disproportionate to the aim pursued. This is because the risk of harm ensuing from not controlling the spread of hepatitis B within preschool is low, especially when compared to the risk of harm ensuing to the children’s development from not having access to education. ¹⁴⁰ Hence, it may be inferred that in such circumstances having the said vaccine as a prerequisite for school attendance is not a practical necessity and thus constitutes an unjustified and disproportionate interference with children’s right to education.

The situation may be different for older children who may be more likely to engage in sexual activities and therefore although still not medically necessary, the vaccine may be practically necessary to control the spread of such disease for the protection of the best interest of such children as a group.

Conclusion

This article has shown that the ECtHR in dealing with cases of compulsory vaccinations for children, has failed to apply the crucial principle of the best interests of the child to determine the best outcome for the child. Nor has it delved into the question of where to draw the line in lawful state interference on the basis of public health and/or the protection of the rights and freedoms of others.

This article has emphasised that the ECtHR should draw on CRC provisions in such cases concerning children and refer to the Com.RC to guide its interpretation. This would advance the protection and promotion of children’s rights in Europe, both at the regional level and at the domestic level, due to the ECtHR’s successful enforcement mechanism. Furthermore, it would ensure that the child is recognised as a rights holder entitled to special protection.

This article concludes that in balancing the competing interests at stake in cases concerning compulsory vaccinations for children, a two-step approach should be followed. The Court should first assess the determination of the child’s best interest by the domestic Court and verify whether the latter took due consideration of the child’s individual circumstances, his or her views in accordance with his or her age and maturity and his or her right to health. Once the best interest of the child is established and given primary consideration, the next step is to balance this individual interest of the child against the competing collective interests. In this regard, the Court must assess whether each vaccination made compulsory was medically necessary, practically necessary or simply unnecessary. Recognizing the distinction between medical necessity and practical necessity would facilitate the ECtHR’s assessment of the proportionality of vaccination measures to the legitimate aim pursued to ensure a fair balance of all interests at stake. This classification further helps to ensure that the margin of appreciation of States, when it comes to public health measures, is not widened unnecessarily at the expense of its citizens’ individual rights and fundamental freedoms, especially the right to personal autonomy.