Pregledni rad
https://doi.org/10.32984/gapzh.15.1.4
From the Case Sanofi Pasteur v. France to the Case Vavrička and Others v. Czech Republic – Vaccination and its Consequences: Limitations of Convention Rights?
Gabrijela Mihelčić
; Sveučilište u Rijeci, Pravni fakultet
*
Loris Belanić
; Sveučilište u Rijeci, Pravni fakultet
Maša Marochini Zrinski
; Sveučilište u Rijeci, Pravni fakultet
* Autor za dopisivanje.
Sažetak
In this paper, the authors analyse the impact and role of the principle of proportionality in the
field of compulsory vaccination as a possible limitation of certain convention rights sui generis.
In particular, this is observed in the light of the rights protected by Articles 6 and 8 of the
European Convention for the Protection of Human Rights and Fundamental Freedoms. The
starting point of the research is the claim of the European Court of Human Rights in the case
of Sanofi Pasteur v. France that “it was necessary to weigh between two aspects of the protected
right to a fair trial - the right of access to court and (the principles) of legal certainty and
determine which one to give priority to.” In this light, the “moderation” of the principle of proportionality
and the margin of appreciation of states is observed with regard to the indicated
aspects of the right to a fair trial in civil matters and the convention protection granted. On
the other hand, in the case Vavrička and others v Czech Republic, the introduction of measures
of compulsory vaccination of children is observed in the context of Article 8 of the Convention
and it directs the answer to the question of the necessity and proportionality of restriction,
also in the context of margin of appreciation, in order to answer whether or not it violates a protected right. The principle of proportionality helps to achieve a ‘fair balance’ between conflicting
convention rights (or two conflicting aspects of an individual right) on the one hand,
and between convention law and general or public interests, on the other. Therefore, the application
of that principle is also evident in the above mentioned cases in which the Court examined
the ‘conflict’ between two aspects of the right to a fair trial, the right of access to court
and legal certainty, as well as the ‘conflict’ between the right to respect for private and family
life and the protection of the health and rights of others.
One of the elements for assessing the proportionality of restrictions is the “adequacy” of the
civil law system of damages, which should be examined under national law. By exploring the
influence and role of the margin of appreciation as another aspect of the principle of proportionality,
in light of the conclusions drawn from these cases, it is evident that the breadth of
its permissible limits varies and depends on various factors such as the nature of the relevant
convention law, the importance of the right of the individual, the extent and strength of interference,
and the nature of the objective of the restriction. Following this, one of the relevant
questions is whether the application of the principles of proportionality and of the margin of
appreciation differs in the above mentioned cases. In the context of these cases, the most recent
decision of the European Court against Croatia (J.Č. v. Croatia) will be mentioned in light
of the previous decision of the Constitutional Court (U-III-7725/2014), in which the European
Court examined the national framework and existing case law regarding compulsory vaccination
of children. Another dimension to the research is provided by an overview of different
options for insuring against the risks of vaccination consequences, ranging from product liability
insurance to life insurance and accident insurance.
Ključne riječi
Hrčak ID:
318942
URI
Datum izdavanja:
11.7.2024.
Posjeta: 0 *