Article title The Issue of Dispositiveness of National Legal Regulation of Relations in the Field of Immunization of the Population in the Context of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms

Head of Legal Department, LLC "Help"(Poltava, Ukraine)


Name of magazine Legal journal «Law of Ukraine» (Ukrainian version)
Issue 3/2021
Сторінки [91-102]

Most modern states governed by the rule of law guarantee at the constitutional level the recognition of a person, his life, health, honor and dignity as the highest social values. However, status, what is perceived under normal living conditions as a constant or an axiom, can be significantly affected and pressured during a crisis. The issue of combating the COVID-19 pandemic, which includes, in particular, established by the state obligation to be vaccinated, is acute today. Nevertheless, as it is known, there are different views in society even on issue of voluntary vaccination, and the last one sometimes causes panic among the people. One of the serious consequences of that may be expulsion from kindergarten or school as a reaction of the state to such behavior of the individual. Clearly, that there will be further confrontations with the state institutions in litigations. Thus, it raises the question: is it permissible to restrict certain rights of that category of individuals, from the standpoint of the fundamental principles of a society where law is respected, including in particular the principles of justice and the rule of law? Is it possible to recognize the primacy of public interest over private? Wouldn’t this be a disproportionate interference with personal autonomy?

The purpose of the article is to clarify the balance between private and public interest, to determine the proportionality of possible restrictions on the rights of individuals, including guaranteed by Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, in the context of immunization.

The results of the research show that the European Court of Human Rights recognizes the impossibility of giving a comprehensive definition of the concept of privacy guaranteed by Article 8. However, this category unambiguously is not limited by the ‘inner circle’ in which people can live their own personal lives and exclude any contacts with the outside world. The principles of respect for human dignity, justice, proportionality and the rule of law, especially in the area of interference with a personal autonomy are emphasized in a number of judgments and decisions.

The first judgment of the European Court of Human Rights on child vaccination is in the case of Vavřička and others v. the Czech Republic, in which the court clearly ruled: requirement to those, who can be vaccinated without dangerous health risks, is proportional. It seems obvious, corresponding to common sense, that the safety of life and health of society as a whole is of paramount importance to the state, so exercising of specific individual rights may be limited as a proportionate response to a waiver of a statutory obligation.


Keywords vaccination; health care; right to refuse; proportionality; private interest; public interest; European Court of Human Rights case law



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