Guide on Article 8 of the Convention – Right to respect for private and family life
woman in police custody to a noncustodial gynaecological examination was not performed in accordance with the law and violated Article 8 (Y.F. v. Turkey, §§ 41-44). 126. The Court further determined that there were Article 8 violations when a State failed to provide adequate information to divers about the health risks associated with decompression tables (Vilnes and Others v. Norway, § 244) and when another State failed to provide adequate means of ensuring compensation for injuries caused by State medical errors (Codarcea v. Romania). The Court, however, declared inadmissible a case against Turkey concerning the failure to compensate individuals who were injured by a non-compulsory vaccine (Baytüre and Others v. Turkey (dec.)). 127. In the context of taking evidence in criminal proceedings, the taking of a blood and saliva sample against a suspect’s will constitutes a compulsory medical procedure which, even if it is of minor importance, must consequently be considered as an interference with his right to privacy (Jalloh v. Germany [GC], § 70; Schmidt v. Germany (dec.)). However, the Convention does not, as such, prohibit recourse to such a procedure in order to obtain evidence of a suspect’s involvement in the commission of a criminal offence (Jalloh v. Germany [GC], § 70). In Caruana v. Malta (dec.), the Court considered that the taking of a buccal swab, was not a priori prohibited in order to obtain evidence related to the commission of a crime when the subject of the test was not the offender, but a relevant witness (§ 32). 128. In Vavřička and Others v. the Czech Republic [GC], the Grand Chamber considered several complaints concerning a statutory duty to vaccinate children against common childhood diseases. One applicant was a parent who had been fined for failing to comply: the others were lodged by parents on behalf of their underage children after they had been refused permission to enrol them in preschools or nurseries. The Court accepted that both compulsory vaccination and the consequences of non-compliance interfered with the right to respect for private life. However, it went on to find no violation of Article 8. First of all, the Court considered this to be an area where the State had a wide margin of appreciation. Not only was it a matter of healthcare policy, but there was no consensus among member States on a model of child vaccination; it was accepted that vaccination was a successful and cost-effective intervention; and under domestic law no vaccinations could be administered forcibly. The Court further considered the Czech policy to be consistent with the best interests of children, as a group, and proportionate to the legitimate aim pursued. Although it acknowledged that the exclusion of children from pre-school meant the loss of an important opportunity to develop their personalities and to begin to acquire social and learning skills, it considered this loss to be the direct consequence of their parents’ choice not to comply with the vaccination duty.
4. Mental illness 20/mesure of protection 129. With regard to the positive obligations that Member States have in respect of vulnerable individuals suffering from mental illness, the Court has affirmed that mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life (Bensaid v. the United Kingdom, § 47). 130. The Court has long held that an individual’s right to refuse medical treatment falls within the scope of Article 8 (see above). This includes the rights of mentally ill patients to refuse psychiatric medication. A medical intervention in defiance of the subject’s wishes will give rise to an interfer20
See also other chapters of the Guide for further references.
European Court of Human Rights
35/161
Last update: 31.08.2021
