a) Hungary / b) Constitutional Court / c) / d) 20-06-2007 / e) 39/2007 / f) / g) Magyar Közlöny (Official Gazette), 2007/77 / h) .
Keywords of the Systematic Thesaurus:
Fundamental Rights - General questions - Positive obligation of the state.
Fundamental Rights - Civil and political rights - Right to physical and psychological integrity.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Effective remedy.
Fundamental Rights - Economic, social and cultural rights - Right to health.
Keywords of the alphabetical index:
Vaccination, obligatory / Public health, vaccination, obligatory.
The protection of children's health and the protection against contagious diseases justify compulsory vaccination for certain age groups from a constitutional perspective.
I. The Constitutional Court reviewed petitions criticising the regulations of the Health Act on compulsory vaccination. A couple refused to have their child vaccinated under the compulsory vaccination scheme set out in the law then in force. The couple asked the Constitutional Court to assess the compliance with the Constitution of the relevant provisions of the Health Act.
Act CLIV of 1997 on health care permits health care authorities to limit individuals in the exercise of their rights to personal freedom in order to prevent and combat contagious diseases and epidemics, and to increase the human body's resistance to contagious diseases. The purpose of vaccination is to develop active and/or passive protection against contagious diseases. The Minister for Health Care, Social and Family Affairs sets out in a decree the contagious diseases for which compulsory vaccination may be required, on an age-related basis. If somebody required to undergo vaccination fails to satisfy this obligation, despite written notification, the health care authority shall order vaccination by a resolution. Such a resolution is enforceable straightaway, regardless of legal remedy (Articles 56-58).
II. The Court's decision stated that the protection of children's health and the protection against contagious diseases justify from a constitutional standpoint compulsory vaccination at certain ages. The Court accepted the presupposition of legislators based on scientific knowledge, that the benefits of compulsory vaccination for both the individual and society outweigh any possible harm that may affect vaccinated children as side effects. The system of compulsory vaccination was found not to contravene children's rights to physical integrity. At the same time the Constitutional Court stated that the system of compulsory vaccination may result in more significant harm for parents whose expressed religious conviction or conscience is not in harmony with vaccination. Yet it judged that the regulation is in accordance with the requirements of the neutrality of the state. The objective legal norms (which are binding on everybody) protecting the health of children (and all other children, all in all society as a whole) are based upon regulation based on natural sciences, rather than the acceptance of the truth content of different ideologies.
Health authorities order vaccination by means of a decision, if somebody does not comply with a preliminary written notice. The medical officer may grant temporary or permanent exemption, where vaccination would probably have a harmful impact on somebody's health.
The Constitutional Court found that there had been an unconstitutional omission to legislate. Parliament had failed to provide an effective legal remedy in cases of denying exemptions from compulsory vaccination. It called upon Parliament to fulfil its legislative duty by 31 March 2008.
The Constitutional Court pronounced unconstitutional the provisions of the Health Act under which a decision ordering vaccination is enforceable immediately, with no recourse to legal remedy. It directed the immediate repeal of this provision. The Constitutional Court observed that only an extraordinary danger of epidemic would justify such a provision. The fact that there was no scope for taking into consideration the views of the person affected was unconstitutional.
The Court ruled that a provisional regulation I (not presently in force) was unconstitutional, on the basis that the rights and duties of children and parents in relation to compulsory vaccination were not wholly discernible from provisions.
Péter Kovács presented a dissenting opinion to the decision, which Barnabás Lenkovics also joined. They expressed concern that legal formality should not overwhelm medical sciences, medical deontology and the medical profession, as this would not assist with the protection of public health.