DISSENTING OPINION OF JUDGE WOJTYCZEK

1. I agree with the general view that the Convention does not exclude the introduction of an obligation to vaccinate in respect of certain diseases, coupled with exceptions based upon conscientious objection. Objectively, there are strong arguments in favour of such a system and they may justify such an interference, even under the very high standards of scrutiny set out in Article 8. At the same time, I consider that the specific arguments adduced by the respondent Government and relied upon by the majority in the instant case to justify the compatibility with the Convention of mandatory vaccination in general and of the interference with the rights of the applicants in particular are not sufficient. Moreover, the judgment raises important issues of procedural justice.

2. A fair procedure requires legal rules which are determined with sufficient precision to allow the parties to choose their argumentative strategies. While the parties to proceedings should display due diligence and procedural caution, they cannot be guided by a principle requiring them to expect and anticipate the least favourable procedural decisions (“always expect the worst”). In the instant case, at least three problems arise in this context. The first is connected with the purpose of the proceedings and the role of the Court. The second concerns the burden and standard of proof and argumentation. The third concerns the establishment of facts on the basis of their tacit acknowledgment by the parties.

3. The first and most fundamental question about any judicial proceedings concerns their purpose and the role of the judicial body. Should the proceedings before the Court be based upon the principles of material (substantive) truth and the possibility for the judge to act proprio motu , or should they be based upon the principles of formal truth and the activity of the parties alone? Or should they mix elements from these two systems? (For a deeper examination of this question, see K. Wojtyczek: “La procédure devant la Cour européenne des droits de l’homme – principaux dilemmes” in: O. Dubos (ed.), Mélanges en l’honneur de Bernard Pacteau, Cinquante ans de contentieux publics , s.l., Mare et Martin 2018.)

Article 38 of the Convention does not give a clear answer to this question but empowers the Court, “if need be”, to “undertake an investigation”. The Court may therefore, under certain circumstances, act proprio motu in the form of an “investigation” in order to establish the relevant facts. Obviously, it should seek to establish the material truth. The existing case ‑ law does not shed much light on the precise meaning of Article 38 with regard to the role of the Court. In many cases, the Court’s reasoning states that the Court can rely upon evidence introduced proprio motu and suggests that its role is to establish the material truth (see, for instance: Ireland v. the United Kingdom , 18 January 1978, § 160, Series A no. 25; McCann and Others v. the United Kingdom, 27 September 1995, § 173, Series A no. 324; Andronicou and Constantinou v. Cyprus , 9 October 1997, § 174, Reports of Judgments and Decisions 1997-VI; Osman v. the United Kingdom, 28 October 1998, § 114, Reports 1998-VIII; Tahsin Acar v. Turkey [GC], no. 26307/95, § 210, ECHR 2004-III; N. v. Finland, no. 38885/02, § 160, 26 July 2005; Catan and Others v. the Republic of Moldova and Russia [GC], nos. 43370/04 and 2 others, § 116, ECHR 2012 (extracts); Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 116, ECHR 2012; J.K. and Others v. Sweden, no. 59166/12, § 90, 4 June 2015; and Guðmundur Andri Ástráðsson v. Iceland [GC] , no. 26374/18, § 257, 1 December 2020). Under such an approach the outcome of the case should not depend upon the quality of the pleadings.

In other cases, the Court relies on the submissions of the parties alone and, in so doing, suggests that it refrains from acting proprio motu (see, for instance, Turek v. Slovakia , no. 57986/00, § 99, ECHR 2006-II (extracts), Peev v. Bulgaria , no. 64209/01, § 62, 26 July 2007; Starokadomskiy v. Russia , no. 42239/02, § 83, 31 July 2008; Gubkin v. Russia , no. 36941/02, § 155, 23 April 2009; Oliari and Others v. Italy , nos. 18766/11 and 36030/11, § 185, 21 July 2015; Ibrahimov and Others v. Azerbaijan , nos. 69234/11 and 2 others, § 80, 11 February 2016; Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, §§ 193-199, 23 February 2016; Biržietis v. Lithuania , no. 49304/09, § 58, 14 June 2016; Kryževičius v. Lithuania , no. 67816/14, §§ 67-70, 11 December 2018; P.T. v. the Republic of Moldova , no. 1122/12, §§ 29-33, 26 May 2020; and Yunusova and Yunusov v. Azerbaijan (no. 2) , no. 68817/14, §§ 152-159, 16 July 2020). Under this approach, the outcome of a case may depend upon the quality of the pleadings of the parties (see my separate opinion appended to the Biržietis judgment, cited above, and especially point 2).

The comprehensive system of presumptions developed in the Court’s case-law suggests that the Court relies upon formal truth and the activity of the parties alone. Similarly, the fact that the Court usually accepts as established those factual allegations that are made by one party and not rebutted by the other party also points to this conclusion (for factual allegations not contested by the Government, see, for instance: Kudła v. Poland [GC], no. 30210/96, §§ 95-97, ECHR 2000-XI; Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 235, ECHR 2000-VIII; Hermi v. Italy [GC], no. 18114/02, § 82, ECHR 2006-XII; Catan and Others , cited above, § 142; Mozer , cited above, §§ 193-199; Cirino and Renne v. Italy , nos. 2539/13 and 4705/13, §§ 72, 75-77, 26 October 2017; Černius and Rinkevičius v. Lithuania , nos. 73579/17 and 14620/18, § 70, 18 February 2020; for factual allegations not contested by the applicants, see, for instance: Dimitras v. Greece , no. 11946/11, § 46, 19 April 2018; Ilnseher v. Germany [GC], nos. 10211/12 and 27505/14, § 91, 4 December 2018; N.D. and N.T. v. Spain [GC], nos. 8675/15 and 8697/15, §§ 225, 228, 13 February 2020; Bahaettin Uzan v. Turkey , no. 30836/07, §§ 53-55, 24 November 2020; and L.B. v. Hungary, no. 36345/16, § 57, 12 January 2021).

In some cases, certain elements of both typical systems coexist, although their interaction is not explained (see, for instance, Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, ECHR 2004-VII, in §§ 13 and 18 for one approach and §§ 142 and 145 for the other).

The existing case-law and judicial practice are highly unclear and ambiguous with regard to the role of the Court and the purpose of the proceedings (establishing the material or formal truth). While the answer to this question may admittedly in some instances have no bearing on the manner in which the parties plead or on the outcome of the case, in many other cases it may be fundamental for the parties’ pleading strategies and determinative for the outcome. There is therefore an urgent need to clarify this issue in order to ensure procedural fairness. At the same time, the choice between the available options is not easy, because there are strong arguments for and against each one. A possible solution could consist in a system based upon formal truth and the activity of the parties alone as a general rule, with some exceptions which would allow for the Court’s proprio motu activity, directed at the establishment of material truth. These possible exceptions should be circumscribed by clearly defined principles. In any event, the rules of the game must be clear and known in advance to the parties.

In the instant case, the evidence which, in my view, would be necessary to show that the interference complained of was compatible with the Convention does exist, but has neither been submitted by the parties nor gathered proprio motu by the Court. However, I cannot rely upon my own knowledge of the matter and scientific data gathered by my own means in order to supplement the shortcomings in the material gathered by the Court (compare Mehmet Ulusoy and Others v. Turkey , no. 54969/09, §§ 109-110, 25 June 2019). The parties must have an opportunity to express their views on all the evidence, whether adduced by the other party or introduced proprio motu . Since the instant case concerns a general issue that is important for all 47 High Contracting Parties, its resolution should not depend upon the quality of the parties’ pleadings. In a case such as this one, there are strong reasons to rely upon the principle of material truth and the Court’s entitlement to act proprio motu and, in particular, to appoint independent experts. In the absence of such steps, the remaining – although highly unsatisfactory – option is to apply the principle of formal truth and to decide the case on the basis of submissions and evidence put forward by the parties.

4. The Court has established the following procedural requirement as an essential element of a fair trial (see Čepek v. the Czech Republic, no. 9815/10, § 48, 5 September 2013, French original; confirmed by Alexe v. Romania, no. 66522/09, § 37, 3 May 2016):

“Courts must exercise special diligence where the dispute takes an unexpected turn, especially where it concerns a matter that is left to the discretion of the court concerned. The principle of adversarial proceedings requires that courts should not base their decisions on elements of fact or law which have not been discussed during the proceedings and which give the dispute an outcome which neither party would have been able to anticipate”.

Procedural fairness depends upon clear principles concerning the burden and standard of proof and argumentation. These principles are intrinsically linked to the standards of scrutiny applied in specific proceedings. Predictability in this domain is essential, because principles enshrining the standards of scrutiny and allocating the burden and the determining standards of proof and argumentation will guide the parties in devising their pleading strategies. The issue is important in any proceedings but has a special bearing in proceedings based upon the principles of formal truth and the activity of the parties alone.

The existing case-law clearly determines that in disputes concerning the compatibility with the Convention of an interference with Article 8 rights, the burden of proof and argumentation lies upon the Government. Under this case-law, the Government must justify the interference complained of, by providing relevant and sufficient reasons (see, for instance, K. and T. v. Finland [GC], no. 25702/94, § 154, ECHR 2001-VII; Kutzner v. Germany, no. 46544/99 , § 65, ECHR 2002-I; P., C. and S. v. the United Kingdom, no. 56547/00, § 114, ECHR 2002-VI; S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 101, ECHR 2008; S.H. and Others v. Austria [GC], no. 57813/00, § 91, ECHR 2011; Piechowicz v. Poland , no. 20071/07, § 212, 17 April 2012; Hanzelkovi v. the Czech Republic , no. 43643/10, § 72, 11 December 2014; Parrillo v. Italy [GC], no. 46470/11, § 168, ECHR 2015; Zaieţ v. Romania , no. 44958/05, § 50, 24 March 2015; Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC], no. 17224/11, §§ 89, 121, 27 June 2017; and Pavel Shishkov v. Russia , no. 78754/13, §§ 95, 97, 2 March 2021). This case-law entails a legitimate procedural expectation for the parties. Applicants bringing cases under Article 8 have a strong legitimate expectation that the Court will continue to impose upon the respondent Government the burden of justifying the given interference. Relying upon this expectation, applicants may in good faith decide to refrain from pleading against the rationality of the interference complained of. In the instant case, it is for the Government to show a pressing social need and to provide relevant and sufficient reasons justifying the obligation to vaccinate for each and every one of the diseases in question.

Moreover, the existing case-law suggests that any interference with the freedom not to undergo an unconsented medical intervention requires a strong justification and that the margin of appreciation left to the States parties is narrow (see point 7 below). The applicants in the present case could reasonably have expected that the Court would continue to apply this standard in cases concerning bodily integrity. Taking into consideration (i) the relatively high threshold for the justification of an interference with the freedom to dispose of one’s own body; and (ii) the nature of the arguments put forward by the Government, the applicants might have considered that it was not necessary to respond and to argue the case further.

The Court, however, established a standard of scrutiny based upon a wide margin of appreciation (see in particular paragraphs 284, 285 and 310 of the present judgment), justified by questionable arguments and coupled with a marked deference to the choices made by the domestic authorities (see in particular paragraphs 285, 288, 289 and 306). The standard of scrutiny actually applied is even lower than that stated. In my view, this approach amounts to an unexpected jurisprudential development, impacting upon the litigation. In any event, even assuming that the applicable standard of scrutiny may be open to dispute, it would have been necessary to warn the parties in advance about the envisaged standard of review and to request their views on this issue, enabling them also to bring – if they considered it necessary – additional substantive submissions under a more precisely identified standard of scrutiny.

5. As stated above (see point 4), under its established case-law the Court usually considers facts that are alleged by one party and not contested by the other party to be established, even if the factual allegations are not substantiated or corroborated by any evidence. The parties might reasonably have expected that the same principle would be applied in the instant case and would have adapted their pleadings accordingly.

I note in this context that the applicants formulated an important number of factual allegations which are relevant in the instant case and which have not been contested by the Government. The applicants allege, for instance: the existence of unlimited discretion on the part of the Minister of Health in determining the scope of mandatory vaccination (see the Applicants’ observations, pp. 5-6); a failure to analyse the medical necessity of mandatory vaccination for each and every disease in question (ibid., pp. 4 ‑ 5); the fact that the Government did not provide various documents requested by citizens (ibid., pp. 7-8); certain specific facts indicating conflicts of interest within the WHO and certain expert bodies, such as income received by certain experts from pharmaceutical companies (ibid., pp. 4, 8-11, attachments nos. 7 and 8); detailed information concerning the efficiency of some vaccines (attachment no. 9).

The parties could have expected that such uncontested allegations would be considered as established by the Court. However, they do not form part of the factual findings made in the instant case. Some allegations pertaining to the integrity of the decision-making process were dismissed as unsubstantiated (see paragraph 279 of the judgment) while others were simply ignored. One may argue that the Court found these allegations to be devoid of relevance, yet I am not persuaded by this possible argument in respect of some of these allegations.

In this context, the Court should clarify the issue of tacit recognition of facts. In particular, it is necessary to explain in detail under which conditions the Court considers allegations made by one party and not contested by the other to be established. Clarity in this respect is essential for the parties.

6. In order to assess whether an interference with rights is compatible with the Convention, it is necessary, in particular, to establish the applicable standards of scrutiny and the relevant factual circumstances and to weigh the conflicting values. My objections pertain in particular to: (i) the standard of scrutiny established by the majority; (ii) the factual basis of the judgment; (iii) the way in which the conflict of values has been approached; and (iv) the assessment of the decision-making process at the national level.

The question to be answered is not whether vaccination campaigns serve public health but whether it is acceptable under the Convention to impose sanctions for non-compliance with the legal obligation to undergo vaccination. More specifically, the question is whether the added value brought by the obligation justifies the restriction on freedom of choice. For this purpose, it is necessary to demonstrate that the values protected in such a system outweigh the values which are affected. It is necessary to show, in particular, that the benefits for society as a whole and for its members outweigh the individual and social costs and justify taking the risk of suffering the side-effects of a vaccination. Given the weight of the values at stake, such an assessment requires extremely precise and comprehensive scientific data about the diseases and vaccines under consideration. Without such data the whole exercise becomes irrational.

7. The Court has expressed the following views in its earlier case-law ( Solomakhin v. Ukraine , no. 24429/03, § 33, 15 March 2012):

“The Court reiterates that according to its case-law, the physical integrity of a person is covered by the concept of “private life” protected by Article 8 of the Convention (see X and Y v. the Netherlands , 26 March 1985, § 22, Series A no. 91). The Court has emphasised that a person’s bodily integrity concerns the most intimate aspects of one’s private life, and that compulsory medical intervention, even if it is of a minor importance, constitutes an interference with this right (see Y.F. v. Turkey , no. 24209/94, § 33, ECHR 2003‑IX, with further references). Compulsory vaccination – as an involuntary medical treatment – amounts to an interference with the right to respect for one’s private life, which includes a person’s physical and psychological integrity, as guaranteed by Article 8 § 1 (see Salvetti v. Italy (dec.), no. 42197/98, 9 July 2002, and Matter v. Slovakia , no. 31534/96, § 64, 5 July 1999).”

It further stated in other cases (here, Parrillo , cited above, §§ 168-9; see also Paradiso and Campanelli v. Italy [GC], no. 25358/12, §§ 179-184, 24 January 2017):

“168. The Court reiterates that in determining whether an impugned measure was “necessary in a democratic society”, it will consider whether, in the light of the case as a whole, the reasons adduced to justify that measure were relevant and sufficient for the purposes of paragraph 2 of Article 8 (see, among many other authorities, S.H. and Others v. Austria , cited above, § 91; Olsson v. Sweden (no. 1), 24 March 1988, § 68, Series A no. 130; K. and T. v. Finland [GC], no. 25702/94, § 154, ECHR 2001-VII; Kutzner v. Germany , no. 46544/99, § 65, ECHR 2002-I; and P., C. and S. v. the United Kingdom , no. 56547/00, § 114, ECHR 2002-VI).

169. Furthermore, a number of factors must be taken into account when determining the breadth of the margin of appreciation to be enjoyed by the State in any case under Article 8. Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will usually be restricted (see Evans , cited above, § 77, and the other authorities cited therein, and Dickson v. the United Kingdom [GC], no. 44362/04, § 78, ECHR 2007-V). Where, however, there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider (see S.H. and Others v. Austria , cited above, § 94; Evans , cited above, § 77; X, Y and Z v. the United Kingdom , 22 April 1997, § 44, Reports of Judgments and Decisions 1997-II; Fretté v. France , no. 36515/97, § 41, ECHR 2002-I; Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 85, ECHR 2002-VI; and A, B and C v. Ireland , cited above, § 232).”

Moreover, under the existing case-law the freedom to dispose of one’s own body is a fundamental value that is protected by the Convention (see, for instance, Pretty v. the United Kingdom , no. 2346/02, § 66, ECHR 2002 ‑ III, and K.A. and A.D. v. Belgium , nos. 42758/98 and 45558/99, § 83, 17 February 2005). The Court further stresses that “a person’s body concerns the most intimate aspect of private life” (see Y.F. v. Turkey , no. 24209/94, § 33, ECHR 2003-IX). “The notion of personal autonomy is an important principle underlying the interpretation of the guarantees of Article 8” (see A.P., Garçon and Nicot v. France , nos. 79885/12 and 2 others, § 123, 6 April 2017), a principle which is invoked to narrow the margin of appreciation even in the absence of European consensus (ibid., §§ 121-123). “The margin will tend to be relatively narrow where the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights” (see Dubská and Krejzová v. the Czech Republic [GC], nos. 28859/11 and 28473/12, § 178, 15 November 2016; see also, for instance, A.D.T. v. the United Kingdom , no. 35765/97, § 37, ECHR 2000-IX, and Hämäläinen v. Finland [GC], no. 37359/09, §§ 68-69, ECHR 2014).

One might add that, in a completely different context, the Court has found that a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be (see Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 82, ECHR 2005 ‑ IX).

8. The majority in the instant case defines the applicable standard in the following way:

“280. As reiterated above (see paragraph 274), the Court has previously held that health-care policy matters come within the margin of appreciation of the national authorities. Having regard to the above considerations and applying its well-established case-law principles, the Court takes the view that in the present case, which specifically concerns the compulsory nature of child vaccination, that margin should be a wide one.”

This approach is difficult to accept. Under the established case-law, when determining the margin of appreciation, the Court considers that the following factors may plead in favour of widening it, without however prejudging its precise scope:

(i) a lack of consensus within the member States of the Council of Europe as to the relative importance of the interest at stake;

(ii) a lack of consensus within the member States of the Council of Europe as to the best means of protecting it;

(iii) the fact that the case under examination raises sensitive moral or ethical issues.

Against this backdrop it should be noted that there is a broad consensus within the member States of the Council of Europe that:

(i) bodily integrity should be protected against involuntary medical treatment;

(ii) the most appropriate method of protecting it consists in subjecting such interventions to the consent of the persons concerned.

It is worth recalling, in this context, that the Oviedo Convention contains the following provision:

“Article 5 – General rule

An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it.

This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks.

The person concerned may freely withdraw consent at any time.”

Obviously, some exceptions to free consent may be justified but they require particularly strong justifications.

As stated by the majority in paragraph 279, “childhood vaccination, being a fundamental aspect of contemporary public-health policy, does not in itself raise sensitive moral or ethical issues”.

Moreover, there is no consensus that the interference under consideration, namely the obligation to vaccinate, is necessary for protecting public health (see point 14 below). According to the majority themselves, it is the fact of making vaccination a matter of legal duty which can be regarded as raising sensitive moral or ethical issues (see paragraph 279 of the judgment).

Furthermore, the margin of appreciation in the field of health-care policy has – rightly – been stressed in the context of complaints about access to certain forms of medical treatment (see, for instance, Hristozov and Others v. Bulgaria , nos. 47039/11 and 358/12, ECHR 2012 (extracts), relied upon in paragraph 274). The instant case is neither about access to health services nor the manner in which they are organised (positive rights) but about the freedom to dispose of one’s own body and freedom from unconsented medical intervention (negative rights).

The issue at stake is crucial to the individual’s effective enjoyment of the most intimate rights, in a context in which there is no direct conflict between two or more rights and in which the right-holder asserts freedom from interference and does not claim any positive entitlements. Restrictions on the freedom to make choices about one’s own body, imposed outside the context of a direct conflict between two or more rights, require strong justifications. In this domain, the margin of appreciation should be narrow and the threshold to justify the interference very high. The approach adopted may give the impression that without a low standard of scrutiny the finding of no violation would not have been possible.

9. In the Czech Republic, the list of compulsory vaccinations encompasses nine diseases. These diseases are very different to each other. A rational assessment of whether the obligation to vaccinate complies with the Convention requires that the case be examined separately for each disease, proceeding on a disease-by-disease basis. For each and every disease, it is necessary to establish:

- the manner and speed of its transmission;

- the risks for infected persons;

- the average cost of individual treatment for the disease in the case of non-vaccinated patients, and the prospects of success of such treatment;

- the precise effectiveness of the available vaccines;

- the average cost of a vaccination;

- the risk of side effects of vaccination;

- the average costs of treating the undesirable effects of the vaccination;

- the minimum percentage of vaccinated persons which would prevent the disease from spreading (if applicable) and the prospects of achieving such an objective.

10. The majority’s overall approach is summarised in the following quote (see paragraph 300 of the judgment): “As for the effectiveness of vaccination, the Court refers once again to the general consensus over the vital importance of this means of protecting populations against diseases that may have severe effects on individual health, and that, in the case of serious outbreaks, may cause disruption to society (see paragraph 135 above)”.

It seems that both the respondent Government and the majority consider that the answer is so self-evident that it is unnecessary to resort to more detailed considerations to justify the interference. I do not share this view. The assessment of the legitimacy of the interference in the instant case requires expert medical knowledge.

Although the materials presented to the Court and summarised in the reasoning, particularly in paragraphs 152-157, include extensive expert statements, they do not contain the crucial data listed above. It is therefore not true that extensive scientific evidence has been gathered in the instant case (see paragraph 306). In particular, it is not sufficient to establish that the specific risk posed to an individual’s health by a vaccination is “very rare” (as indicated in paragraph 301). It is necessary to calculate with the utmost precision the risk for each and every disease separately, on the basis of comprehensive and reliable data, collected not only in the Czech Republic but also in other States. The possible counterargument that the vaccines have been tested, considered as safe and approved by the competent public bodies does not suffice to justify the obligation to vaccinate.

In my view, given that the evidence submitted by the parties is not sufficient to decide on the general issues raised in the case and that the decision-making process at the domestic level was not fully satisfactory (see point 16 below), the Court should have appointed independent experts in order to have sufficient grounds to evaluate the possible risks properly and to take a rational judicial decision in the instant case.

11. It is important in this context to delimit the mandate of such experts. For this purpose, one must distinguish between theoretical and practical reason. Theoretical reason formulates propositions about facts and demonstrates their truth, resorting, in so far as possible, to scientific knowledge and method. Practical reason identifies and weighs the conflicting values and interests at stake and takes decisions, choosing between the possible trade-offs. The role of experts is limited to matters of theoretical reason, that is, to providing and explaining factual elements. Taking decisions is a matter of practical reason and as such belongs to the political authorities, acting under the supervision of the domestic and international courts. Experts, like any citizens, may of course formulate value judgments – which, according to the Court, are not susceptible of proof although they should have a sufficient factual basis (see, for instance, Morice v. France [GC], no. 29369/10, § 126, 23 April 2015) – but even if experts master the factual basis better than anyone else, they have no specific competence or any other title to express practical reason. Expertise in medicine does not endow one with specialist knowledge for deciding conflicts of values and interests. In particular, experts may calculate risk, but they cannot price it in axiological terms.

I note in this context that the majority shows a reluctance to rely on hard scientific data. They prefer to rely on value judgments and policy recommendations formulated by experts as if these had the same value as experts’ statements concerning facts.

12. I would like to note, firstly, the following specificity of the interference. The obligation to vaccinate concerns children and constitutes a State interference with the bodily integrity of children. This is an important argument for applying even higher standards of scrutiny to the justification of the interference.

Small children usually resist vaccination. It is not true that “there is no provision allowing for vaccination to be forcibly administered” (see paragraph 293 of the judgment). While it is true that the State cannot apply coercion directly in respect of children in this context, the whole system relies upon the following principle: sanctions are imposed upon parents so that they convince their children or, if necessary, use coercion to force their own children to undergo vaccination.

13. The majority addresses in this context the issue of the best interests of the child. They express, in particular, the following views (see paragraph 288 of the judgment):

“It follows that there is an obligation on States to place the best interests of the child, and also those of children as a group, at the centre of all decisions affecting their health and development. ... The Court understands the health policy of the respondent State to be based on such considerations, in the light of which it can be said to be consistent with the best interests of the children who are its focus ....”

This approach triggers the following remarks. It is for the parents, not the State, to take decisions pertaining to children, to define their best interests and to guide the children in the exercise of their rights (compare M.A.K. and R.K. v. the United Kingdom, nos. 45901/05 and 40146/06, §§ 75-79, 23 March 2010 ) . Parental rights may be limited only in exceptional circumstances (see Strand Lobben and Others v. Norway [GC], no. 37283/13, 10 September 2019) and, in principle, the best interests of a child may be invoked against parents only once the latter’s parental rights have been limited or forfeited.

In the instant case, the central question around the best interests of the children is not whether the general health policy of the respondent State promotes the best interests of children as a group, but instead how to assess in respect of each and every specific child of the applicant parents, with the child’s specific health background, whether the different benefits from vaccination will indeed be greater than the specific risk inherent in it. The parents – sometimes rightly, sometimes wrongly, but in good faith – may identify certain very individual risk factors which escape the attention of other persons.

14. The applicants rely upon the argument that less restrictive alternatives are available, in that the same aims can be achieved without imposing the obligation to vaccinate. They rely for this purpose on comparative law, which indicates that many States consider that public-health objectives may be achieved without making vaccinations compulsory. This argument has not been convincingly rebutted by the Government, which merely mentioned, in a very general way, the risk that “a possible decline in the rate of vaccination would [arise] were it to become a merely recommended procedure” (see paragraph 283 of the judgment). However, the applicants’ argument deserves very thorough consideration and requires a persuasive rebuttal.

I note in this context that the Court has previously expressed the following views on these questions:

“65. As to the Federal Court’s argument that the question whether there were other possibilities apart from the dissolution of the association was of little importance in the present case (see point 4.3 of the Federal Court judgment, paragraph 23 above), the Court would observe that it has ruled in a different context that, in order for a measure to be considered proportionate and necessary in a democratic society, there must be no other means of achieving the same end that would interfere less seriously with the fundamental right concerned (see Glor v. Switzerland , no. 13444/04, § 94, ECHR 2009). In the Court’s opinion, in order to satisfy the proportionality principle fully, the authorities should have shown that no such measures were available.” ( Association Rhino and Others v. Switzerland , no. 48848/07, § 65, 11 October 2011),

and

“... in order for a measure to be considered proportionate and necessary in a democratic society, there must be no other means of achieving the same end that would interfere less seriously with the fundamental right concerned. In the Court’s opinion, in order to satisfy the proportionality requirement, the burden is on the authorities to show that no such measures were available (see Association Rhino and Others , cited above, § 65).” ( Biblical Centre of the Chuvash Republic v. Russia , no. 33203/08, § 58, 12 June 2014).

For further examples, see also: Ãœrper and Others v. Turkey , nos. 14526/07 and 8 others, § 43, 20 October 2009; Nada v. Switzerland , [GC], no. 10593/08, § 183, ECHR 2012; Stanev v. Bulgaria [GC], no. 36760/06, § 242, ECHR 2012; Piechowicz , cited above, § 220; P. and S. v. Poland , no. 57375/08, § 148, 30 October 2012; Saint ‑ Paul SA Luxembourg v. Luxemburg , no. 26419/10, § 44, 18 April 2013; R.M.S. v. Spain , no. 28775/12, § 86, 18 June 2013; Fernández Martínez v. Spain [GC], no. 56030/07, § 146, ECHR 2014 (extracts); and Ivinović v. Croatia , no. 13006/13, § 44, 18 September 2014.

The Court has also sometimes expressed the opposite view (see Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 110, ECHR 2013 (extracts):

“The central question as regards such measures is not, as the applicant suggested, whether less restrictive rules should have been adopted or, indeed, whether the State could prove that, without the prohibition, the legitimate aim would not be achieved. Rather the core issue is whether, in adopting the general measure and striking the balance it did, the legislature acted within the margin of appreciation afforded to it ( James and Others v. the United Kingdom , § 51; Mellacher and Others v. Austria , § 53; and Evans v. the United Kingdom [GC], § 91, all cited above).”

It is not clear why in some cases the Court addresses the issue of the existence of less restrictive alternatives, whereas in most cases it passes the question under silence and in other cases it explicitly rejects the test in question. The issue is important for devising pleading strategies. Had the applicants known that the “less restrictive alternative” test would be rejected, they would have probably pleaded the case differently. In my view, it is necessary to provide clarity concerning the scope of application of the “less restrictive alternative” test, so that the parties may rely upon more precise principles in future cases.

I also note that no evidence was presented to the Court which would show that those States which have introduced the obligation to vaccinate perform better in terms of public health than the States which have not introduced such an obligation. In this second group, no decline in the rate of vaccination below the recommended targets has been established before the Court. The fact that in many States the objectives of health policy can apparently be achieved without introducing an obligation to vaccinate is a very powerful argument that less restrictive means are indeed available and that the impugned interference is not necessary in a democratic society. The fact that the majority explicitly dismisses the “less restrictive alternative” test without further explanations for this rejection gives the impression that the applicants’ point under this test would have been taken had it been applied.

15. The majority relies upon a number of specific but questionable arguments.

In paragraph 272 of the judgment the majority states:

“With regard to the aims pursued by the vaccination duty, as argued by the Government and as recognised by the domestic courts, the objective of the relevant legislation is to protect against diseases which may pose a serious risk to health. This refers both to those who receive the vaccinations in question as well as those who cannot be vaccinated and are thus in a state of vulnerability, relying on the attainment of a high level of vaccination within society at large for protection against the contagious diseases in question.”

In paragraph 306 they further argue:

“The Court considers that it cannot be regarded as disproportionate for a State to require those for whom vaccination represents a remote risk to health to accept this universally practised protective measure, as a matter of legal duty and in the name of social solidarity, for the sake of the small number of vulnerable children who are unable to benefit from vaccination.”

The problem is that this argument is valid for some diseases only. It does not work for a disease like tetanus, which is not contagious (WHO, Tetanus, https://www.who.int/immunization/monitoring_surveillance/burden/vpd/surveillance_type/passive/tetanus/en/ ) and is problematic for pertussis because of the specificity of vaccine protection ( Pertussis vaccines: WHO position paper – August 2015 , Weekly epidemiological record, No. 35, 2015, 90, 433–460 https://www.who.int/wer/2015/wer9035.pdf?ua=1 ).

In paragraph 288 the majority argues:

“Those to whom such treatment cannot be administered are indirectly protected against contagious diseases as long as the requisite level of vaccination coverage is maintained in their community, i.e. their protection comes from herd immunity. Thus, where the view is taken that a policy of voluntary vaccination is not sufficient to achieve and maintain herd immunity, or herd immunity is not relevant due to the nature of the disease (e.g. tetanus), domestic authorities may reasonably introduce a compulsory vaccination policy in order to achieve an appropriate level of protection against serious diseases.”

I do not see any logical link between the first and the second sentence: this is a non sequitur . Moreover, the fact that “herd immunity is not relevant due to the nature of the disease (e.g. tetanus)” does not suffice to justify the power of the domestic authorities to “introduce a compulsory vaccination policy in order to achieve an appropriate level of protection against serious diseases”.

In paragraph 308 the following argument is raised:

“Lastly, the applicants argued that the system was incoherent, in that while small children were required to be vaccinated, this did not apply to those employed in preschools. The Court notes, however, the Government’s reply that the general vaccination duty, which consists of initial vaccinations as well as booster vaccinations, applies to everyone residing in the Czech Republic permanently or on a long-term basis (see paragraphs 11 and 77 above), so that the staff members concerned should normally have received all the prescribed vaccinations at the relevant time, as required by law.”

The problem is that the obligation to vaccinate in respect of certain diseases was introduced after some older staff members had become adults, so they would have not received all the currently prescribed vaccinations at the relevant time. For instance, the vaccine against rubella became available only in the late 1960s, while the vaccines against hepatitis B and Haemophilus influenzae type b infections became available only in the 1980s. Moreover, any staff members who spent their childhood abroad have not necessarily received all the vaccinations currently prescribed in the Czech Republic.

In paragraphs 279 and 306 the majority refers to “social solidarity” (“ solidarité sociale ”). It is not clear what this concept (bringing to mind the work of Émile Durkheim) means here. The New Oxford Dictionary of English (Oxford 1998, p. 1772), provides the following definition of solidarity tout court : unity or agreement of feeling or action, especially among individuals with a common interest; mutual support within a group. The Dictionnaire Larousse 2019 (Paris 2018, p. 1081) gives the following meanings of the word “ solidarité ” in French: 1) dépendance mutuelle entre des personnes liées par des intérêts communs, esprit de corps ; 2) sentiment qui pousse les hommes à s’accorder une aide mutuelle (the meanings in legal language have been omitted here; see also E. Littré, Dictionnaire de la langue française , Paris, Hachette 1874, t. 4, p. 1968). Although the French word solidarité may also have a different meaning ( le fait de faire contribuer certains membres d’une collectivité nationale à l’assistance (financière, matérielle) d’autres personnes ( Le Petit Robert , Paris, Le Robert 2013, p. 2390)), the very idea of solidarity, as initially understood in ordinary language (stemming from legal language), presupposes spontaneous self-organisation, not sacrifices imposed by State power. The two underlying concepts of social organisation are very different, the second approach (based upon legal obligations) compensating for shortcomings in the first.

16. In assessing the proportionality of measures restricting Convention rights the Court takes sometimes into account the quality of the domestic decision-making process (see Animal Defenders , cited above, §§ 113-116; see also Budayeva and Others v. Russia , nos. 15339/02 and 4 others, § 136, ECHR 2008 (extracts); Brincat and Others v. Malta , nos. 60908/11 and 4 others, § 101, 24 July 2014; Parrillo , cited above, § 170; Garib v. the Netherlands [GC], no. 43494/09, § 138, 6 November 2017; and Lekić v. Slovenia [GC], no. 36480/07, §§ 109, 117 ‑ 118, 11 December 2018). The applicants point to numerous deficiencies in the decision ‑ making process at the domestic level. They restate and endorse very precise factual allegations made in the Czech press. They allege, in particular, conflicts of interests among persons involved in the decision-making process and the fact that documents on which the risk evaluation of the different vaccines were based have not been made public.

The majority replies with this argument in paragraph 297 of the judgment:

“As for the integrity of the policy-making process, the Court notes that in reply to the applicants’ claim about conflicts of interest the Government have explained the procedure followed by the NIC, in accordance with relevant European and international standards (see paragraph 200 above).”

With all due respect, the system of declarations described in paragraph 200, which is apparently devoid of sanctions for making false declarations, is clearly insufficient.

The majority further argues in the same paragraph:

“In the light of the elements before it, the Court considers that the applicants have not sufficiently substantiated their allegations that the domestic system is tainted by conflicts of interest, or their suggestion that the position on vaccination adopted by the relevant Czech expert bodies, or by the WHO, is compromised by financial support from pharmaceutical corporations.”

This is precisely where the problem lies: many citizens no longer trust public institutions. It is not sufficient that decision-making processes are fair: they must be perceived to be fair, and there should therefore be far ‑ reaching legal arrangements to protect the integrity of the process and build public confidence. The pro-choice attitude in the field of vaccination reflects a broader problem of mistrust among citizens vis-à-vis the democratic institutions.

I further note that no national document containing a precise assessment of the various vaccines’ efficiency and the attendant risks has been presented to the Court, as though no such assessment had ever been made in the respondent State or had ever been the subject of public debate. The fundamental issues enumerated above (see point 6 of this votum separatum ) appear to have been left unaddressed in publicly available documents related to the decision-making process at national level. The persons affected by the obligation to vaccinate are entitled to know not only the precise risk for each and every disease, but also how this risk was calculated and assessed by those who took the decision to introduce the obligation to vaccinate. Their legitimate queries in this respect remain without a satisfactory answer.

17. Concerning the complaint under Article 9, I consider that the applicants made a sufficient prima facie case that the legislation under consideration interferes with their rights as protected by this provision. The issue of whether a risk inherent in a medical intervention is one that is worth being taken may be a matter of personal belief, protected by this provision. Moreover, it is problematic to refer to developments in the domestic case ‑ law subsequent to the facts of the case and to blame the applicants, with the benefit of hindsight, for failing to explore the avenues opened by this subsequent case-law and to assert certain rights which were not previously protected (see paragraphs 292 and 335 of the judgment). In any event, the legal recognition of exceptions to the obligation to vaccinate based upon conscientious objection is a very important argument in favour of the compatibility of the obligation in question with the Convention.

18. The instant judgment is flawed by certain procedural shortcomings. Moreover, certain essential factual elements have not been established. The majority expresses strong value judgments without a sufficient factual basis.

In my view, there are strong objective arguments in favour of finding a non-violation of the Convention rights. These possible arguments would have prevailed – at least in respect of most of the diseases in question – over possible counterarguments, even if we apply a very strict standard of scrutiny and give credence to a number of factual allegations made by the applicants. Without entering into detail, it suffices to note here that vaccinations save numerous human lives and prevent substantial damage to health, and also liberate enormous financial and social resources by lowering the costs incurred by the health protection system. These resources may then be allocated to saving lives threatened by other diseases.

However, the precise factual elements at the basis of these and many other possible arguments in favour of finding a non-violation are missing in the materials submitted to the Court. Under these specific circumstances and without any prejudice for possible future cases concerning similar issues, I have no other option than to rely on the principle of formal truth and to find that the respondent Government failed to adduce sufficient reasons capable of justifying the interference complained of by the applicants in the instant case.