Resolution U.no.30/2014

U.no.30/2014

On the basis of Article 110 of the Constitution of the Republic of Macedonia, Article 28 line 3 and Article 71 of the Book of Procedures of the Constitutional Court of the Republic of Macedonia (»Official Gazette of the Republic of Macedonia«, no.70/1992), at its session held on 8 October 2014, the Constitutional Court of the Republic of Macedonia passed the following

RESOLUTION

1. NO PROCEDURE IS INITIATED for the appraisal of the constitutionality of:

– Article 33 paragraph 2 and Article 67 item 6 of the Law on the Protection of the Population against Infectious Diseases (“Official Gazette of the Republic of Macedonia”, nos.66/2004, 139/2008, and 99/2009), and
– Article 46 paragraph 2 of the Law on Basic Education (“Official Gazette of the Republic of Macedonia”, nos.103/2008, 33/2010, 116/2010, 156/2010, 18/2011, 42/2011, 51/2011, 6/2012, 100/2012, 24/2013 and 41/2014).
2. The application for initiation of a procedure for the appraisal of the constitutionality of Article 30-a paragraph 5 line 1 of the Law on Child Protection (“Official Gazette of the Republic of Macedonia”, nos.98/2000, 17/2013, 65/2004, 113/2005, 98/2008, 107/2008, 83/2009, 156/2009, 51/2011, and 157/2011) IS DISMISSED.3. Stamen Filipov from Skopje filed an application to the Constitutional Court of the Republic of Macedonia for instigation of proceedings to appraise the constitutionality of the Articles of the Laws noted in items 1 and 2 of this Resolution.

According to the application, the contested legal provisions violated the fundamental rights and freedoms of the man and citizen recognised in international law and defined by the Constitution, the rule of law, humanism, social justice and solidarity, provided for in Article 8, paragraph 1, items 1, 3 and 8 of the Constitution.

The disputed provision of Article 33 paragraph 2 of the Law on the Protection of the Population from Infectious Diseases violated the equality of the citizens before the Constitution and laws, because according to its content the obligation concerned only persons of a certain age, and not all. From another controversial angle, it was imprecise and vague as it was not defined and determined who the persons of a certain age were, which meant that it violated the legal certainty of citizens, as an element of the rule of law under Article 8, paragraph 1 line 3 of the Constitution.

Furthermore, according to the applicant the provision of Article 67 item 6 of the same law was not clear and precise, since Article 33 paragraph 2 referred to all persons of a certain age, and Article 67 item 6 referred to the natural person who refused vaccination. However, in practice, vaccination approve the children’s parents, and not them, and for these reasons these provisions left opportunities for different interpretations and their different application and an opportunity for great legal uncertainty of the citizens.

The applicant believes that these provisions violated Article 11 paragraph 1 and Article 12 paragraph 1 of the Constitution, which stipulated that freedom, physical and moral integrity of the person were inviolable. Moreover, even under Article 39, paragraph 2 of the Constitution, citizens had the right and duty to self-protect and promote their own health and the health of others. Hence, the applicant considers that the state cannot be more interested in and more concerned for the child and his health than his parents, as a result of which it was unconstitutional from a constitutional-legal aspect to force citizens, punish mothers for a misdemeanor and not be able to exercise, that is, lose the already acquired right to parental benefit only because they would refuse compulsory vaccination. According to the application, is the right of the citizen, not the legislator, to decide whether to perform the required vaccination or not.
The contested Article 46 paragraph 2 of the Law on Primary Education, according to the allegations in the application, was contrary to Article 44 of the Constitution, since this legal norm conditioned the enrollment of children in the first grade with the submission of confirmation for received mandatory vaccinations, which  questioned the right to education.

From these reasons, the applicant proposes to annul the contested provisions of the said laws and the Court to make a decision to stop the execution of the individual acts and actions taken on the basis of the contested legal provisions, since their execution could result inconsequences that would be hard to remove.

4. At its session the Court established that under Article 33 paragraph 2 of the Law on the Protection of the Population from Infectious Diseases, Session the Court found that under Article 33 paragraph 2 of the Law on the Protection of the Population from Infectious Diseases, vaccination was compulsory for all persons of a certain age against tuberculosis, diphtheria, tetanus, pertussis, polio, measles, rubella, mumps, Haemophilus, influenza type B (Hib) and hepatitis B virus.

According to Article 67 item 6 of the same law, a fine of 300 to 650 euros in denar counter-value shall be imposed for a minor offence on the natural person who refuses vaccination for the diseases specified in Article 33 of this Law or protection with specific immunoglobulin (Article 34) drug care (Article 36).

Article 30-a paragraph 5 line 1 of the Law on the Protection of Children provides that the right referred to in paragraph 1 of this Article may not be exercised, that is, the alrady acquired right shall be lost if the compulsory vaccination of the child in accordance with the law is not preformed.

Under Article 46 paragraph 2 of the Law on Primary Education, when enrolling children in first grade parents are obliged to submit confirmation for received mandatory vaccinations for the children, issued by a competent health institution.

5. Pursuant to Article 8, paragraph 1, lines 1, 3 and 8 of the Constitution, the fundamental values of the constitutional order of the Republic of Macedonia are the basic rights and freedoms of the man and citizen recognised in international law and defined by the Constitution, the rule of law and humanity, social justice and solidarity.

Under Article 9, paragraph 2 of the Constitution, citizens are equal before the Constitution and the laws.

Under Article 11 paragraph 1 of the Constitution, physical and moral integrity of the person are inviolable.

Pursuant to Article 12 paragraph 1 of the Constitution, the freedom of man is inviolable.

Article 39, paragraph 2 of the Constitution stipulates that citizens have the right and duty to protect and promote their own health and that of others.

Under Article 40, paragraph 1 of the Constitution, the Republic provides special care and protection of the family.

Under Article 41 paragraph 1 of the Constitution, it is the right of the man to freely decide on the procreation of children.

Article 44 of the Constitution provides that everyone has the right to education. Education is available to all on equal terms. Primary education is compulsory and free.

Article 54, paragraph 1 of the Constitution provides that the rights and freedoms of man and citizen may be restricted only in cases determined by the Constitution.

From the said constitutional provisions, as well as the nature of the Republic of Macedonia as a welfare state seeking to establish social care and justice, the Republic provides for health care which is based on the fundamental values of the constitutional order of the Republic of Macedonia – humanism, social justice and solidarity.

Thereby, the Constitution establishes the right to social security and guarantees the right to health care, and the conditions, manner and scope of rights are regulated by law.

In this respect, the Law on the Protection of the Population from Infectious Diseases defines the measures for preventing the emergence, early detection, prevention of the spread and suppression of communicable diseases and infections, the rights and obligations of health care institutions, legal entities and individuals, as well as the supervision over the implementation of the measures aiming at protecting the population from infectious diseases (Article 1).

Under Article 2, item 1 of the same Law, “infectious disease” is defined as a disease caused by a biological agent (bacteria, viruses, parasites, fungi) or their toxins, which may directly or indirectly be transmitted to humans.

Article 4 of the Law stipulates that everyone has the right to protection from infectious diseases and the obligation to protect themselves and others from infection.

Chapter II of the Law entitled “Measures for prevention and suppresion of infectious diseases,” is contained in Article 11, which stipulates that the protection of the population from infectious diseases includes general and specific measures to prevent the occurrence, early detection, prevention of spreading and eradication of infectious diseases and infections.

In terms of Article 13 of the Law, the vaccine is provided for as a separate measure implemented by the health facility.

Under Article 33, paragraphs 1 and 2 of the Law immunoprophylaxis is implemeneted with vaccine (vaccination) or with the use of specific immunoglobulins (seroprophylaxis) and vaccination is mandatory for all persons of a certain age against tuberculosis, diphtheria, tetanus, pertussis, polio, measles, rubella, mumps, Haemophilus influenzae type B (Hib) and hepatitis B virus.

The contested Article 67 section 6 of the Law, which is included in Chapter VI entitled “Penal provisions”, stipulates that a fine in the amount of 300 to 650 euros in denar counter-value shall be imposed on a natural person for a minor offence, if he/she refuses vaccination for the diseases specified in Article 33 of this Law or protection with specific immunoglobulin (Article 34) or protection with medicines (Article 36).

From the analysis of these legal provisions vis-à-vis the allegations contained in the application, and within the constitutional norms, the Court found that the allegations in the application for violation of the provisions of the Constitution that are invoked in the application are unfounded, for the following reasons.

Mandatory vaccination, envisaged in the contested Article 33 paragraph 2 of the Law, at no moment whatsoever can be brought into question with regard to the provisions of the Constitution, particularly to Article 39 paragraph 2 and Article 40 paragraph 3 of the Constitution, where it is stipulated that citizens have the right and duty to protect and promote their own health and that of others, and that parents have the right and duty to take care of and raise their children.

From the above, it clearly and unequivocally arises that in case of refusal of vaccination by the parents, they not only endanger the health of their children, but also the health of other persons who due to medical contraindications are not vaccinated and thus deny them the right to a healthy life. In this connection in order to secure this right, according to the Court’s opinion, it is constitutionally justified by law to oblige the citizens to vaccination against diseases whose prevention is in the interest of the Republic of Macedonia.

Regular vaccination is one of the specific measures of protection against infectious diseases. Its obligation is established only for certain infectious diseases and certain age set with the calendar for immunisation, which has a medical justification. Not only does regular vaccination protect the person vaccinated but it also creates collective immunity among the population preventing the circulation of infectious agents. Hence, in order to protect the health of the child and the child’s right to health, the Court found that it is justified the parents to be denied the freedom to non-vaccination for a reason that the right to health of the child is stronger than the parents’ right to choice.

Immunisation is one of the most successful and effective health interventions to protect children’s health. The contested provision gives responsibility for a particular group of people of a certain age for compulsory vaccination only for certain diseases such as measles, polio, diphtheria, tetanus, pertussis, and with a view to preventing real and unnecessary health risks.

According to the Court, the obligation for mandatory vaccination is allowed limitation of the fundamental rights of the person concerned given that it is a necessary measure in the democratic state to protect public safety, health, rights and freedoms of others. Compulsory vaccination is essentially a restriction on the right of the individuals to decide on activities relating to their own personality and body, the right to protection of physical integrity (Article 11 of the Constitution) and the right to voluntary medical treatment, but in our opinion, such a restriction is proportionate, and thereby in accordance with the Constitution.

When building this legal opinion the Court had in mind the fact that the benefits from mandatory vaccinations for the health of individuals and members of the wider community exceed the effects of interference with (limitation of) the constitutional rights of individuals, but according to the Court compulsory vaccination, as determined by law, is not an excessive measure.

Article 40 of the Constitution generally obliges the state to provide, among other things, special care and protection of the children. Special care and protection must be provided to children in the field of health care as well. By stipulating mandatory vaccinations for certain statutory diseases, the legislator, according to the Court, acted in accordance with the obligation to provide for all, especially for children, preventive health measures necessary to guarantee the highest possible level of health.

Namely, the purpose of vaccination is to develop active and passive protection against infectious diseases, and in turn, the protection of children’s health and protection from infectious diseases from a constitutional aspect justify mandatory vaccination at a certain age.

Regarding the disputed Article 67 item 6 of the Law, which stipulates a fine if not acted in accordance with Article 33 of the Law, the Court found that it is the right of the legislator to regulate penal policy for breach of legal obligations, as a result of which it may not be questioned with regard to the constitutional norms.

The conditioning of the enrollment of children in primary school provided for in the disputed Article 46 paragraph 2 of the Law on Primary Education, with the enclosure of a proof of vaccination, according to the Court, does not constitute discrimination, which is indicated in the application, for reasons that this is only one kind of mechanism to protect and ensure the child’s right to health. Parents who would enrol a child in a school who has not received the necessary vaccines would violate the right to health of their child and the other children attending the same school.

By its definition discrimination means different treatment against persons in the same or relevantly similar situations without objective and reasonable justification, which means that it does not pursue or does not seek a legitimate aim or there is not a reasonable proportionality between the measures used and the purpose that is wanted to be achieved.

From the above, according to the Court, it cannot be considered that non-vaccinated children from pre-school and primary school age unjustifiably have the right to education restricted due to non-vaccination. This concerns special rights, as a result of which the full realisation of this stage of development of health and education, and the development of society as a whole, cannot be successfully brought into correlation in terms of prohibition of discrimination.

Regarding allegations that the disputed Article 46 paragraph 2 of the Law on Primary Education violated Article 44 of the Constitution and limited the right to education, the Court found that the said conditioning, that is, limitation is exclusively and solely because of the existence of the interest of public order and peace, protection of health, morals and the rights and freedoms of others, which means the protection of the rights of the group over individual rights. Hence, the boundary between positive and negative requirements of the state in accordance with this provision of the Law may not be precisely defined, however, in both contexts the State enjoys a certain discretion of assessment.

The stipulation of mandatory vaccinations for certain infectious diseases, according to the Court, is aimed at eliminating diseases of the overall population, which is a positive obligation of the state in terms of protecting the health of its citizens. This is even more so as the specific issue interferes into the professional medical field, and it is not a matter for the exercise of the guaranteed right to freedom of conscience and belief.

Given that in the primary schools in May all children who are eligible for enrollment in the first grade must enroll, it is evident that the large number of students who enroll from different areas (geographic, social, ethnic, etc.) can be potential danger to other students for the spread of certain diseases, if they have not been vaccinated against tuberculosis, diphtheria, tetanus, pertussis, polio, measles, rubella, mumps, Haemophilus influenzae type B (Hib) and hepatitis B virus, such as stipulated in Article 33 paragraph 2 of the Law on the Protection of the Population from Infectious Diseases.

Parents who refuse to vaccinate their children should keep in mind that other parents have the right to protect their children from potential risks of serious illness. In unvaccinated children there is a greater risk of spreading the disease especially in child care, schools and faculties.

Pursuant to Article 39 paragraph 2 of the Constitution of the Republic of Macedonia, citizens have the right and duty to protect and promote their own health and that of others. Under this constitutional provision everyone in the Republic of Macedonia, in addition to their health, are also obliged to protect the health of others. In this respect, the legislator, taking into account the public interest in healthy young population, found that when enrolling the child in first grade the parent is obliged to submit confirmation for received mandatory vaccinations for children, issued by a competent health institution. Accordingly, the provision of Article 46 paragraph 2 of the primary education is not unconstitutional, because it protects the health also of students who are enrolling in first grade in elementary schools, as well as the health of other students in the school.

Pursuant to Article 24 of the Convention on the Rights of the Child, which was ratified by law by the Republic of Macedonia, member states recognise the right of the child to the highest level of health and medical care and rehabilitation. Member states shall strive no child to be deprived of the right of access to such health care. Member states are also committed to the full exercise of this right.

The Republic of Macedonia, as a country that has ratified this Convention , is also obliged to apply the provisions of the Convention.

According to the aforementioned, the Court found that this legislation does not violate the fundamental values of the constitutional order of the Republic of Macedonia, as provided for in Article 1 paragraph 1, Article 8 paragraph 1 lines 1, 3 and 8, Article 9 paragraph 2, Article 11 paragraph 1, Article 12 paragraph 1, Article 39 paragraph 2, article 41 paragraph 1, Article 42 paragraph 2, article 4, Article 51 and Article 54 paragraph 1 of the Constitution of the Republic of Macedonia.

6. As for the allegations in the application contesting Article 30-a paragraph 5 line 1 of the Law on Child Protection (“Official Gazette of the Republic of Macedonia” no.98/2000 …….. 157/2011) the Court found that with respect to this issue the conditions provided for in Article 28 line 3 of the Rules of the Constitutional Court of the Republic of Macedonia to reject the application are met, for a reason that there are procedural obstacles to decision-making in this part of the application.

The Law on the Protection of Children which is challenged with the application is no longer in the legal system, since on 12 February 2013 the Assembly of the Republic of Macedonia adopted a new Law on the Protection of Children, which is published in the “Official Gazette of the Republic of Macedonia” no.23/2013.

Article 243 of the Law stipulates that on the date of entry into force of this Law, the Law on Child Protection (“Official Gazette of the Republic of Macedonia” nos.98/2000, 17/2003, 65/2004, 113/2005, 98/2008, 107/2008, 83/2009, 156/2009, 51/2011 and 157/2011) shall cease to be valid.

Under Article 244 of the Law, this Law shall enter into force on the eighth day from the date of its publication in the “Official Gazette of the Republic of Macedonia”.

Since this Law was published in the “Official Gazette of the Republic of Macedonia” on 14 February 2013, it entered into force on 21 February 2013, when the previous Law ceased to be valid, in the sense of Article 243 of the new Law.
For these reasons, given that the challenged Law is out of the legal order, according to the Court the requirements of Article 28 line 3 of the Rules of the Constitutional Court of the Republic of Macedonia to denounce the application in this area are met.

7. In connection with the request of the applicant to the Constitutional Court to issue a decision on an interim measure until the adoption of a final decision, the Court found that in this case, and due to the above stated reasons, the conditions provided for in Article 27 of the Rules of the Constitutional Court the Republic of Macedonia are not met to adopt a decision to stop the execution of individual acts or actions taken on the basis of the contested provisions of the said laws.

8. On the basis of what has been stated, the Court decided as in items 1 and 2 of this Resolution.

9. The Court passed this Resolution in the following composition: the President of the Court Elena Gosheva, and the judges: Dr Natasha Gaber-Damjanovska, Mr Ismail Darlishta, Mr Nikola Ivanovski, Mr Jovan Josifovski, Mrs Vangelina Markudova, Mr Sali Murati, Dr Gzime Starova and Mr Vladimir Stojanoski. The Resolution regarding Article 67 item 6 of the Law on the Protection of the Population against Infectious Diseases and Article 30-a paragraph 5 line 1 of the Law on the Protection of Children was adopted with a majority vote.U.br.30/2014

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