PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE LEMMENS

1. I fully agree with the Court’s decisions, except for that concerning the complaint under Article 2 of Protocol No. 1.

In this separate opinion I would like briefly to highlight one element of the judgment with which I am in agreement, and also explain why I respectfully disagree on the above-mentioned point.

2. As to the main issue in this case, namely whether the vaccination duty is compatible with Article 8 of the Convention, I would like to stress the importance of the Court’s reference to the value of social solidarity (see paragraph 279 of the judgment; see also paragraph 306).

While everyone enjoys fundamental rights in a given society, a fact which must be respected by the State, individuals do not live in isolation. By the nature of things, they are members of that society. Life in society (“living together”) requires respect by each member of society for certain minimum requirements (see S.A.S. v. France [GC], no. 43835/11, § 121, ECHR 2014 (extracts)).

One of these requirements is respect for the human rights of the other members of society.

As the judgment makes clear, the vaccination duty is one way by which the authorities choose to fulfil their positive obligation to protect the right to health. While the right to health is not as such protected by the Convention, it is a fundamental right.

The Court has since long recognised that in democratic societies it may be necessary to place restrictions on an individual’s freedom in order to reconcile the interests of the various individuals and groups and to ensure that everyone’s rights are respected (to paraphrase Kokkinakis v. Greece , 25 May 1993, § 33, Series A no. 260 ‑ A). Restrictions not for the sake of restrictions, but in order to make sure that everyone’s rights are respected. The present judgment is in line with that view: a restriction, in the form of an obligation to vaccinate, may be placed on the applicants’ right to physical integrity in order to “protect the health of all members of society, particularly those who are especially vulnerable with respect to certain diseases” (see paragraph 279 of the judgment).

As such, the judgment sends the message that apart from fundamental rights, there are also fundamental duties and responsibilities (see Resolution 1845(2011) of the Parliamentary Assembly of 25 November 2011 on fundamental rights and responsibilities, quoted in paragraph 143 of the judgment).

3. I regret that the majority do not find it necessary to examine the complaint under Article 2 of Protocol No. 1 (see paragraph 345 of the judgment). This complaint raises various issues.

A preliminary issue is whether Article 2 of Protocol No. 1 is applicable to preschool education (see paragraphs 340, 342 and 343 of the judgment).

A further issue, which seems to be the main one, is touched upon by the Court within its discussion of the Article 8 complaint. There, the Court accepts that “the exclusion [of the applicant children] from preschool meant the loss of an important opportunity for these young children to develop their personalities and to begin to acquire important social and learning skills in a formative pedagogical environment” (see paragraph 306 of the judgment). The Court goes on to point out that these children “were not deprived of all possibility of personal, social and intellectual development, even at the cost of additional, and perhaps considerable, effort and expense on the part of their parents”, as well as to the fact that “the effects on the child applicants were limited in time” (see paragraph 307 of the judgment). While the latter statements may seem to suggest that the complaint under Article 2 of Protocol No. 1 cannot succeed, such an inference is not certain if it is not drawn explicitly.

Finally, another possible issue under Article 2 of Protocol No. 1 is to what extent the children should suffer the consequences of their parents’ refusal to have them vaccinated.

I would have preferred to have had all these issues properly and separately examined.