As of yesterday, the Constitutional Court has received two initiatives to review the constitutionality of articles of the new Law on the Protection of the Population from Infectious Diseases, which stipulate that mandatory vaccination is a condition for children to attend public and private kindergartens.
This was confirmed to "Vijesti" by the Constitutional Court, explaining that one initiative was submitted by a domestic non-governmental organization, and the other by an individual.
The initiatives claim that the disputed legal solution is contrary to the Constitution and ratified international conventions because, among other things, it violates the right to preschool education and upbringing and disproportionately restricts human rights.
"The Constitutional Court of Montenegro has received two initiatives to initiate proceedings to review the constitutionality of Articles 41 and 42 of the Law on the Protection of the Population from Infectious Diseases, which stipulate as a condition for children to stay in public and private preschool institutions that they have been vaccinated, except in cases of permanent medical contraindications for a particular immunization," said the Constitutional Court's PR. Danilo Ajković.
He also responded that the initiatives also request the determination of a temporary measure - that the Constitutional Court order the suspension of individual acts and actions adopted on the basis of the disputed legal provisions, due to the occurrence of irreversible harmful consequences for the rights of children.
"For the sake of efficiency of the procedure, the cases have been merged for the purpose of unified conduct of the procedure and decision-making and have been assigned to the judge rapporteur and the constitutional court advisor. In the further course of the procedure, the initiatives will be sent to the Parliament and the Government of Montenegro, so that they can respond to the allegations in the initiatives within the given deadline."
"The Constitutional Court will inform the public about the further course of the proceedings in a timely manner," said Ajković.
Article 41 of the Law, which entered into force on January 16, stipulates that a parent, adoptive parent or guardian is obliged to ensure that a child of preschool and school age is vaccinated against 11 infectious diseases - tuberculosis, diphtheria, tetanus, whooping cough, polio, measles, mumps, rubella, viral hepatitis B, Haemophilus influenzae type B and pneumococcus, except in cases of permanent medical contraindications. The previous law also provided for mandatory vaccination against ten infectious diseases, except for pneumococcus.
Article 42 stipulates that compulsory vaccination is a condition for children to stay in public and private preschool institutions of upbringing and education, except in cases of permanent medical contraindication for a particular immunization. According to the Law, a certificate of compulsory vaccination can only be issued by a designated pediatrician of the competent health center.
A bill that would prevent unvaccinated children from attending kindergarten was submitted to the Parliament by MPs Albin Ceman, Dragana Vucevic, Dane Markovic, Vaso Obradović, Amer Smailovic i Nikola Camaj, and was adopted through an urgent procedure just ten days later, on the last day of December. In principle, 44 deputies voted for this law, while only Nermin Abdić was restrained.
The Ministry of Health previously published the Draft Law in the second half of November, but, they claim, no one responded to the roundtable discussion, and no objections were received regarding the specific provision.
The Protector of Human Rights and Freedoms assessed that the state has the right to prescribe measures that will yield better results in protecting the population from infectious diseases, and which can be verified through judicial protection.
They claim that there is a case law of the European Court of Human Rights (ECHR) in the case against the Czech Republic, from 2021, which found that mandatory vaccination of children against nine infectious diseases infringes on the right to privacy, but does not constitute a violation of Article 8 of the European Convention on Human Rights when it comes to the “right to respect for private life”.
The Ombudsman institution reminded that some neighboring countries, due to the decline in mandatory immunization coverage, have also changed their legal regulations, such as the Republic of Croatia making attendance at kindergartens conditional on vaccination, the Republic of Serbia making attendance and stay at preschool and school institutions, as well as institutions for the placement of children without parental care, and that the constitutional courts of neighboring countries have also given their opinions on this.
On the other hand, the United Nations Children's Fund (UNICEF) said they do not support the new law that conditions a child's access to education on vaccination. They assessed that denying access to preschool education due to parental decisions leads to double punishment for children and claimed that their position on mandatory vaccination is based on scientific evidence and international law, in particular the Convention on the Rights of the Child.
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