The Power of Persuasion of the Ruling of European Court of Human Rights in Vavřička and Others Case

Abstract

In its activity the European Court of Human Rights goes far beyond that of a mere judicial body dealing with the complaints of states and individuals. It maintains and promotes the ideals and the values of a democratic society; it disseminates the spirit and the significance of the Convention on Human Rights and Fundamental Freedoms 1950; it also develops the legal doctrine of human rights. It essentially informs us what it takes to stand by on the sidelines as a citizen or public functionary and act in the name of the state when it comes to human rights. With regard to the role of the Court, the expectations of the international community towards jurisprudence are constantly increasing. In the eyes of this community the Court designs the present and future standards of human rights law. Acting as a role model in the sphere of law means the Court must pay particular attention to the broad implications of its judgements: in other words not only to what has been expressed in its judgements, but also to what is unexpressed. The authors are fully aware of the importance attached to the Court’s ruling in Vavřička and others against the Czech Republic and of the impact that this ruling may have on the state’s public health policy, including the state’s approach with regard to mandatory vaccination during the COVID-19 pandemic. The aim of these considerations are twofold. The authors have investigated whether what has gone unexpressed in the Court’s ruling might be interpreted in favour of compulsory vaccination against COVID-19 and so used in a public debate as an argument for the introduction of such course of action. A secondary question here would also determine whether the Court deliberately left such a door open for a broader interpretation of this famous ruling and, if so, the reason behind this. The authors have also closely monitored the way the Court pays attention to the clarity of its message, including the linguistic aspects of the judgement.