SECOND SECTION
DECISION
Application no. 65209/13
Vasile MORARU and Others
against the Republic of Moldova
The European Court of Human Rights (Second Section), sitting on 16 January 2024 as a Committee composed of:
Jovan Ilievski, President,
Lorraine Schembri Orland,
Diana Sârcu, judges,
and Dorothee von Arnim, Deputy Section Registrar,
Having regard to:
the application (no. 65209/13) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 4 October 2013 by the applicants listed in the appended table (“the applicants”), who were represented by Mr R. Zadoinov, a lawyer practising in Chișinău,
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns the alleged violation of the applicants’ (two parents and their children) rights under Articles 8 and 14 and Article 2 of Protocol No. 1 to the Convention in relation to the non-admission to nursery school in September 2013 of the children applicants, who had not received a compulsory prophylactic vaccine.
2. The parents refused to vaccinate their children with the compulsory prophylactic vaccine introduced with Law no. 10-XVI of May 2009 due to an increased health risk stemming from an alleged prior incident in which one of the children had been treated in hospital after a strong adverse reaction to another vaccine. The applicants allege that the doctor’s note in the medical records exempting the child from vaccination was deleted by the village doctor.
3. The Law no. 10-XVI, which allows participation in community groups (colectivități) and admission to educational and recreational institutions only for vaccinated children (section 52(6)), was subject of constitutional review on two occasions. In 2013 the Constitutional Court discontinued the proceedings due to a parity of judges’ votes, which implied, under the domestic law, that the law was compatible with the Constitution. Judges who considered the law compatible with the Constitution referred, inter alia, to statistical data concerning the death rate in children due to contagious diseases and to recent local outbreaks of such diseases that had affected almost 90,000 children and had led to 48 deaths. With reference to the Court’s case-law and various decisions of international organisations, the judges in question held that the interference was proportionate, given that vaccination was the most cost-effective way of preventing epidemics and protecting not only the individuals vaccinated, but also those at particular risk who could not be vaccinated. The collective (or herd) immunity, obtained by having a high number of persons vaccinated, offered an additional layer of protection to such vulnerable individuals.
4. As to the limitation of parents’ right to choose the manner of protecting the health of their children, the judges considered that nothing in the various laws and international agreements allowed parents to take decisions endangering the health or development of their children.
5. Finally, as regards the limitation of children’s access to educational and recreational institutions, the judges held that closed spaces with direct contact among children, as was the case in educational and recreational institutions, were susceptible to outbreak of epidemics among unvaccinated children. By reducing the risk of epidemics, such restrictions also reduced absenteeism and unsettling influences on the educational process. At the same time, the law allowed alternative forms of education, such as home schooling and distance learning. Moreover, access to educational institutions was allowed to unvaccinated children with a medical contraindication.
6. In a judgment no. 26 of 30 October 2018, the Constitutional Court found that section 52(6) of the Law and the Government’s Immunisation Plan aimed to protect individual children’s and public health. The court balanced the conflicting interests, namely the individual’s and public health, on the one hand, and the right to respect for private life and the right to education of those concerned, on the other hand, and found that temporary non‑admission to educational institutions did not place a disproportionate burden on unvaccinated children with no contraindication. Failure to vaccinate such children entailed their exclusion from education and exposed them to the risk of contracting a serious illness. Similar considerations applied to children with contraindications who, although eligible for admission, were also exposed to the risk of contracting an illness from their unvaccinated peers with no contraindications. Individuals did not exercise their rights in an existential vacuum, but within an organised society. The court also referred to the alternative forms of education available to unvaccinated children without contraindications. The difference in treatment between vaccinated and unvaccinated children was objectively justified and reasonable.
7. The applicants complained under Article 8 and Article 2 of Protocol No. 1 of the Convention that the children’s access to education was dependent on their vaccination. They were thus forced to vaccinate their children, despite the risks involved, especially for one of the children who allegedly had already suffered serious side-effects from a previous vaccine. They finally complained of a violation of Article 14, without providing any further details.
THE COURT’S ASSESSMENT
8. The Court notes that the applicants did not raise their complaints before any national judicial authority. However, the Court need not determine whether the complaints should be rejected for non-exhaustion, because the application is inadmissible for the following reasons.
9. It has established in its case-law that compulsory vaccination, as an involuntary medical intervention, represents an interference with the right to respect for private life within the meaning of Article 8 of the Convention (see Solomakhin v. Ukraine, no. 24429/03, § 33, 15 March 2012, with further references, and Vavřička and Others v. the Czech Republic [GC], nos. 47621/13 and 5 others, § 263, 8 April 2021).
10. In the present case, the Court notes that, as established by the national Constitutional Court, the domestic law did not introduce an absolute obligation to vaccinate: not only was there no provision allowing for vaccination to be forcibly administered, but also medical exemptions were possible and alternative forms of education were allowed (Vavřička and Others, cited above, §§ 276 and 291-4). Thus, parents could decide not to vaccinate their children, but they would have to opt for alternative forms of education and recreation which were reasonably available.
11. It further takes note of the assessment and the reasons given by the Moldovan Constitutional Court, in particular those concerning the existence of the pressing social need to protect children’s health through vaccination. Noteworthy is the background information at the time, in particular the outbreaks of illness and deaths amongst children in the region; the need to protect, through “herd immunity”, vulnerable children who could not be vaccinated; the potential disruption of the educational process and putting in place the most cost‑effective ways of dealing with infectious diseases. These are matters which are in principle within the margin of appreciation of each State (ibid., §§ 274 and 277).
12. On the other hand, the applicants did not complain, either before the domestic courts or before the Court, that the children applicants had any contraindication to vaccination. Nor they submitted any evidence to corroborate their allegation of a serious adverse reaction from a previous vaccine. Furthermore, the applicants did not inform the Court of the period during which their children had been affected by the impugned measure and thus of the overall effect on their educational and recreational opportunities.
13. In view of the above, and in the absence of any arguments capable to distinguish the present case, in its relevant part, from the judgment in Vavřička and Others (ibid., §§ 258-312), their complaint under Article 8 of the Convention must be declared inadmissible as manifestly ill‑founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
14. In the light of these findings, the Court considers that there is no need to examine the application separately under Article 2 of Protocol No. 1 (ibid., § 345).
15. Lastly, the applicants also complained of a violation of Article 14 of the Convention. In the light of all the material in its possession, the Court finds that this complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
16. Accordingly, this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 8 February 2024.
{signature_p_1} {signature_p_2}
Dorothee von Arnim Jovan Ilievski
Deputy Registrar President
APPENDIX
List of applicants:
Application no. 65209/13
No.
Applicant’s Name
Year of birth
Nationality
1.
Ruslan MORARU
1979
Moldovan
2.
Alic MORARU
2008
Moldovan
3.
Vasile MORARU
2010
Moldovan
4.
Eugenia CARACAS
1988
Moldovan
5.
Albert-Beniamin CARACAS
2010
Moldovan
6.
Ruben-Ariel CARACAS
2011
Moldovan