Slovakia, The Supreme Court of the Slovak Republic , 30 June 2015 1Szd/1/2013

Identification of the case

• Right to the integrity of the person (art. 3 CFREU)
• Family and professional life (art. 33 CFREU)
• Health care (art. 35 CFREU)

• Slovak Constitution
• Act on the Protection, Promotion and Development of Public Health No 355/2007
• Administrative Procedure Act No 71/1967
• Decree of the Ministry of Health of the Slovak Republic No 585/2008
• The Slovak Act on Healthcare and Services Relating to Healthcare No 576/2004
• Civil Procedure Code No 99/1963

• CFREU
• TFEU

Summary of the case

The plaintiff, Ms. M.Š. received a €110 fine as she had refused to vaccinate her son against diphtheria, tetanus, whooping cough, and polio; mandatory for children of 6 years age as prescribed by Article 56(1)(k) stating the duty of their parents/guardians to ensure their mandatory vaccination, in conjunction with Article 51 concerning the duties of citizens with regards to public health. The defendant then unsuccessfully appealed this decision and subsequently filed a lawsuit against the Public Health Office at the Regional Court in Nitra.

The plaintiff claimed that the courts did not take into account the application of fundamental rights based upon international treaties, in particular, Articles 3, 33, and 35 CFREU and the Biomedicine Convention. Therefore, she believed that her constitutional rights were violated, including: The right to inviolability; the right not to be tortured or subjected to cruel or inhuman treatment; the right to unauthorized interference with private and family life; the fundamental right of parents to care for children and their upbringing; and the freedom of thought, conscience, religion and belief.. On the other hand, the defendant (the Slovak Public Health Office), believed that mandatory vaccination cannot be considered a violation of fundamental rights. The regional court found the motion unfounded and confirmed the Health Office’s decision. Accordingly, mandatory vaccination was based on the Act on Public Health, making Ms. M.Š. liable for a misdemeanour as she was not able to state medical issues that would preclude the mandatory vaccination of her child. The plaintiff then lodged an appeal.

As the Supreme Court was doubtful on the interpretation of the CFREU and the TFEU, the following preliminary questions were referred to the CJEU:

1. Is Article 35 of the CFREU meant to be interpreted (in the spirit of the European Union legal tradition) so that every right holder is entitled to choose whether or not to refuse access to preventive healthcare, regardless of the ordering conditions laid down by national laws and procedures, or without consideration of the public interest in ensuring a high level of health protection?

2. Is Article 168 of the TFEU, and in particular paragraphs 1 and 4(c), meant to be interpreted in the spirit that the Union's objective, in particular, to prevent human diseases and illnesses and also to eliminate sources of danger to physical and mental health, precludes European citizens from rejecting compulsory vaccination, as this approach constitutes a threat to public health?

3. How is parental care for minors balanced with the public interest of the protection of health, within the meaning of article 33 CFREU in conjunction with article 6(3) of the TEU, balanced with the public interest in the protection of health in favour of parental care for minors?

The Supreme Court reviewed the decision of the regional court and came to the conclusion that the appeal was unfounded, and that the regional court’s ruling was given in compliance with the Act on Administrative Procedure. The Court then mentions the principle of legal certainty, which precludes the possibility of deviation from previous decisions of the Slovak Supreme Court in similar cases, unless the facts of the case differ significantly. Accordingly, while giving its reasoning, the Court refers to its ruling No. 2Szd1/2013. In that ruling, the Court referred to the ECtHR’s Solomakhin case, stating that compulsory medical intervention, even of minimal importance, constitutes an interference with Article 8 of the ECHR. While this right is not absolute, its limitation must be 1) based in law; 2) pursue a legitimate aim; and 3) necessary in a democratic society. The ECtHR concluded in Solomakhin that although compulsory vaccination does constitute an intervention with Article 8 ECHR, such intervention is necessary in a democratic society. The Supreme Court applied this decision and pointed out that the violation in the Solomakhin was found only in relation to Article 6(1) ECHR, and therefore not concerning Article 8 ECHR. The Supreme Court therefore considered that the decision of the Public Health Office to impose such a fine is logical, clear, and comprehensible. Additionally, such a decision is not in contradiction of the Administrative Procedure Act.

Lastly, the Supreme Court comes back to the applicant’s complaints alleging an error in the assessment and application of Articles 33 and 35 CFREU. The Supreme Court stated that it had recognised the necessity to address and resolve the stated interpretation issue by referring preliminary questions to the CJEU. However, as the CJEU claimed no jurisdiction over the present case, while national courts are not empowered by the TEU to interpret primary EU law, it is not possible to grant judicial protection to the plaintiff’s objection. The Supreme Court then agreed with the ruling of the regional court, and stated that there was no relevant reason allowing deviation from established case-law, namely case No. 2Szd1/2013. At the same time, the Supreme Court had to deviate from the legal views established in case No. 3Szd/1/2013.

Not applicable – The CJEU rejected the preliminary questions as it had no jurisdiction to answer them.

Role of the Charter and role of the general principles on enforcement

The Charter was found inapplicable as the CJEU declared no jurisdiction with regards to the isolated interpretation of a CFREU article (in cases when such interpretation does not concern obligations imposed by the Union law). At the same time, national courts have no power to interpret primary EU law. The Slovak Supreme Court, therefore, found that judicial protection of the applicant’s objections regarding CFREU could not be acknowledged.

Elements of judicial dialogue

• Direct dialogue between CJEU and National court (preliminary reference)
• Dialogue between high court - lower instance court at national level

• Solomakhin v. Ukraine

Preliminary reference

To interpret article 35 CFREU with regards to mandatory vaccination and public health.

Additional notes on the decision

The stated case-law is being applied further in the same manner.

Dialogue between high court - lower instance court at national level: the plaintiff requested the Supreme Court to ask for a constitutional review – rejected by the Constitutional Court since a similar question was already ruled on in case No. PL. ÚS 10/2013.