The Constitutional Court, it was announced, will issue a decision on September 24th.
The public hearing also read the position of Dr. Ranko Rajović, a specialist in internal medicine and an expert in neurophysiology, educational neuroscience and early childhood development. He pointed out that the ECHR, in the case of Vavrička v. the Czech Republic, did not say that absence from kindergarten is not important.
"On the contrary, she pointed out that the child was thereby losing an important opportunity and that the measure was temporary."
He believes that an alternative preschool education and upbringing program should be provided for children in order to protect the child's development regardless of the decision of adults.
Retired law professor, Prof. Dr. Nevena Vučković Šahović, said that international human rights law, including the Convention on the Rights of the Child, clearly confirms the obligation of states to develop effective immunization programs to protect the health of children and the population.
"However, international law does not oblige a state to regulate child immunization as a legal obligation. This is not written anywhere, in any international document that binds Montenegro. The Convention on the Rights of the Child, with 196 ratifications worldwide, does not require such a model or the standards developed by the Committee on the Rights of the Child. At the same time, the practice of the ECHR confirms that the legal obligation of immunization is not in itself incompatible with the right to respect for private life, provided that it meets the requirements of legality, legitimate aim and proportionality," she said.
She said that the Vavrička v. Czech Republic ruling seemed relevant to this case, although she did not consider it to be that important.
"All of this is important for assessing the constitutionality of Article 41, but a full assessment of this issue would require epidemiological, medical, and public health data that go beyond the professional scope of my opinion...", said the professor.
Speaking about Article 42, she said that it opens up a second and narrower legal question - if the state has prescribed mandatory vaccination, can enforcement be ensured by denying the child access to upbringing and education.
"The goal of protecting public health is not in dispute, but the choice of means by which the state achieves that goal," she said.
She said that the Convention does not provide answers in advance for every situation, but rather establishes a legal framework for various legal and legitimate interests, assessing that there was a conflict of two rights. The professor said that the ECtHR had considered the Czech system and concluded that in this particular case there had been no violation of Article 8.
"However, the court did not establish a single model of mandatory immunization. It based its assessment on the specific circumstances of the Czech system and recognized a wide margin of appreciation for states. This space is not unlimited, this margin of appreciation because measures must be justified and proportionate. It cannot be concluded from the Vavricka v. Czech Republic judgment that mandatory vaccination is necessary in every state, nor that any conditioning of access to preschool institutions is in accordance with international standards," said Vučković Šahović.
The example of Sweden is illustrative, he claims, which does not mean that it can be applied in another country, but rather confirms that the choice of measures depends on the epidemiological and cultural context.
She told the judges that it was necessary to separate Article 41 and Article 42, and that the proportionality test was important for lawyers.
"First, does the measure achieve a legitimate aim, the answer is yes, second, is it a suitable measure, can it be accepted that it can contribute to increasing coverage and that there is a reasonable connection...", she said.
She pointed out, however, that after those two questions came two others that represented the essence of the assessment in relation to Article 42.
"Whether it was necessary, whether the legislator showed that there was no other means, less restrictive of the rights of the child, is the decisive question," the professor concluded.
She said that it is especially important who bears the burden of the measure, and that is the child.
Psychologist and expert in developmental psychology, family psychology and early child development, Ivana Mihić, explained in detail from a professional perspective the benefits of attending preschool, saying that every child has a place in kindergarten.
Judge Jovan Jovanović asked the professor whether the effects achieved in preschool institutions, which concern the development of children, can be achieved and to what extent if children are raised in a family with parents and other persons responsible for taking care of them.
"Most concisely, no," she replied.
Judge Mugoša recalled UNICEF's position from February this year, expressing the impression that that body had revised its position somewhat.
UNICEF's Child Rights Monitoring Program Coordinator Nela Krnić said that the position is clear and that she can present it very concisely.
"We, as UNICEF, have emphasized several times that we absolutely support the legitimate goal of the state to increase the coverage of children with vaccination and have been doing so globally for decades... However, today we are talking about whether this goal was really necessary and whether we actually have a balance between requiring children to be immunized and conditioning a child to attend preschool and whether we have established a balance and found the right solution when comparing two rights that are not opposed to each other."
Krnić said that the two rights should complement each other and that the state is obliged to guarantee all children's rights prescribed by the convention - both the right to health and the right to education.
"We believe that the state should find an adequate, less restrictive solution that has less of an impact on the child's right to attend preschool education because it is an extremely important developmental period. One does not exclude the other and we believe that the state should have introduced less restrictive measures before this one," she said.
Constitutional Court Judge Faruk Resulbegović asked whether milder measures such as mandatory education would have yielded better results here, given that in some Scandinavian countries vaccination is not mandatory, but they have high coverage. Begić responded that international experience shows that there is no universal solution, and that our experience shows that what is applicable in Sweden may not yield results here.
"High coverage must be achieved, and it implies a sufficient number of staff and services - not only available, but also accessible. Our evidence suggests that knowledge per se is not enough to lead to behavioral changes and maintain such behavior," said Begić.
Begić said that we can no longer compare ourselves with neighboring countries, because Montenegro has reached the same level as Yemen, Madagascar, South Africa and Guinea in terms of the number of vaccinated children.
"For certain vaccines, we are even below these countries," he said. Begić explained that UNICEF has conducted at least 19 studies that measured the level of trust and acceptance of measures, including vaccination, and unfortunately found that Montenegro is one of the societies with the highest level of trust in conspiracy theories.
UNICEF's Child Rights Monitoring Program Coordinator Nela Krnić said that the body recognizes increasing the coverage of children with routine immunization as a legitimate goal, as it is one of the most effective health protection measures.
Accordingly, he claims, there are no specific comments regarding Article 41.
"However, it is useful to distinguish mandatory vaccination from Article 42, which stipulates that mandatory vaccination is a condition for attending public and private preschool institutions. From a child rights perspective, it is important to consider how this regulation affects other children's rights, as well as whether this article is formulated in a way that simultaneously protects children's health and enables the realization of all other rights guaranteed by the Convention on the Rights of the Child," she said.
Krnić emphasized that children's rights are universal, indivisible, interconnected, and that this issue cannot be reduced to a choice between a child's right to health and a child's right to health.
She said that the constitutionality assessment in question should be viewed through the principle of proportionality. In accordance with this principle, she argues, a restriction of rights can only be acceptable if four conditions are cumulatively met: the achievement of a legitimate aim, suitability for its achievement, necessity which implies the absence of other measures that could achieve the same aim with less interference with other rights, and that a fair balance has been established between the interests of the community and the rights of the individual.
"In the specific conditions of Montenegro, it has not been clearly demonstrated that other measures that would lead to an increase in the coverage of vaccinated children have been previously considered and implemented," she said.
Professor at the Faculty of Medicine of the University of Montenegro (UCG), epidemiologist Dragan Laušević said that since 2023, over 2.000 text messages have been sent, very kindly inviting the parent to come and receive the vaccine.
"Some parents couldn't come during working hours or in the afternoon, so we organized vaccinations over the weekend, without an appointment," he said.
He said that this is the last measure and that we must not wait for an epidemic to react reactively.
UNICEF representative, epidemiologist Senad Begić, assessed that vaccines have changed the course of human history, preventing disease, death, and permanent disability in large numbers of people.
He pointed out that mandatory vaccination was introduced in Montenegro in 1891.
Begić said that today routine vaccination protects children from 11 diseases and that vaccines must undergo testing, and that there are a number of regulatory bodies that analyze all available evidence, and that before and after approval there are national and international mechanisms for monitoring effectiveness and adverse events, which is important to take into account.
"It is very important to note that most adverse events are mild and short-term, serious ones are possible, but the benefits of vaccination outweigh the risks," said Begić.
He pointed out that an analysis led by the WHO and UNICEF showed that vaccination had saved 154 million lives in half a century. The same analysis, he said, showed that immunization had reduced infant mortality by about 40 percent over the same period.
Professor at the Faculty of Medicine of the University of Montenegro (UCG), epidemiologist Dragan Laušević, said that the basic postulate is that everything that can be prevented with reasonably safe measures and that is effective from the point of view of resource engagement should be applied.
He asked what happens if there is a mass outbreak. He explained that he had only seen a measles epidemic early in his career, after which a second dose of the vaccine was introduced.
Laušević emphasized that the goal of vaccination is to reduce the incidence of most diseases and cited what the consequences of an epidemic would be.
"Health centers are overwhelmed, and we have children who cannot be vaccinated and children who have other diseases, we have children absent from school, rare deaths are possible, polyclinics and children's hospitals are overwhelmed, kindergartens would be closed as an anti-epidemic measure...", he said.
Laušević said that a number of adults have only received one dose and that some of them do not have antibodies, and it is adults who make up the largest percentage of those infected in Europe, while the highest rate of illness is among infants who cannot be vaccinated before the age of 12 months.
He emphasized that measles is the most contagious disease and a person is most contagious four days before the rash appears.
"Measles is not a very serious disease in terms of mortality, but it causes a large number of complications and the question arises whether one to three children should die out of every 1.000 infected people when we have an effective and reasonably safe vaccine," said Laušević.
He emphasized that the provisions are a forced measure and, roughly speaking, crisis management, and that the question arises whether it is responsible to lift a preventive measure in a place where the virus can spread most easily, in a situation where coverage is low, and we already have epidemics and cases of the disease in the region.
Constitutional Court judge Predrag Krstonijević asked Laušević which disease, protected against by vaccines, currently carries the greatest epidemiological risk.
Laušević said that the most important is smallpox, or measles, due to the easy spread of the virus among the susceptible population.
"In kindergartens, contacts are closer and the situation is less favorable. We would have to implement unpopular measures that involve separating children and closing kindergartens, and teachers would also get sick. Whooping cough is also dangerous for infants and children aged two to three, and it is also a serious disease. Mothers, or pregnant women, are vaccinated to provide passive protection for children until they receive the vaccine. We have diphtheria, polio, or polio, but we hope to eliminate it quickly... We have been very close to eliminating it several times, but we have not succeeded... That vaccine is removed from the program if the disease is eradicated. Tetanus is not a contagious disease, but it is a serious disease, from which many people used to die," said Laušević.
Responding to the consequences of illness, he said that sometimes they are terribly painful, meaning the loss of someone, and some are not painful but require the involvement of the state.
"Remember the ship carrying hemorrhagic fever, and we don't have a vaccine. I wouldn't want to go back to the time of our ancestors on the coast, who closed the gates due to cholera and plague epidemics and spent 45 days in quarantine. Families disappeared, and it happened that London and Paris lost a third of their citizens due to epidemics. We need vaccines so that we can live a quality life," Laušević emphasized.
Constitutional Court President Snežana Armenko said that the Constitutional Court acts as a positive legislator and cannot create norms, but she concluded that the interpretation of all cases of the European Court of Human Rights has introduced a protective mechanism in 14 of the 47 member states of the Council of Europe.
She said that according to the principle of solidarity, which is itself the basis for mandatory vaccination, a state that introduces such a measure for the benefit of all must be itself obligated to take responsibility and pay compensation to those who have experienced harmful side effects.
Photos from the public hearing
Many countries, Armenko explained, have introduced lex specialis laws for unwanted effects.
She said that, while reading the Ministry of Health's program, she determined that one of the points was the introduction of a compensation fund, so she asked the representatives whether they had a normative policy and how they planned to implement what they had partially foreseen.
Constitutional Court Judge Nikola Mugoša, citing parts of the Ministry of Health's Action Plan, said that the department acknowledges that there are doctors in the system who spread misinformation regarding vaccination.
He asked the government representatives, considering everything that has been done regarding vaccination, whether the measures from the action plan have remained a dead letter on paper and whether they have been implemented.
He pointed out that preschool children are very mobile, spend time in playrooms and socialize outside of kindergarten, so he asked if they thought a good balance had been established.
He also asked how many pediatricians and healthcare workers had been reported for spreading disinformation to the public, and State Secretary of the Ministry of Health Mirjana Vlahović Andrijašević responded that there had been no such reports.
Judge Farik Ruselbegović said that the goal of the hearing was to determine whether the state remained within the limits of its constitutional powers.
"The law you are defending sets a strict limit - 'No vaccine - no kindergarten'. However, life brings specific situations that are not black and white. What happens to a child who is in the process of being tested for, not acutely, a neurological disorder where vaccination must be temporarily postponed, and official medicine cannot yet issue a permanent certificate of exemption," said Ruselbegović.
He asked government representatives whether the law recognizes these gray areas or whether it leaves such a child's situation outside the education system and punishes parents who only follow the advice of doctors.
"Specifically. Is a child who has an allergy, so that citizens understand, to peanuts exempt from the preschool education system?" he asked.
Jelica Krsmanović, Director General of the Directorate for Public Health and Biomedicine at the Ministry of Health, said that any selected pediatrician can refer a child to a multidisciplinary team if there is a permanent contraindication.
Judge Jelena Ružičić said that the factors influencing this issue are recognized, namely insufficient knowledge of contraindications among pediatricians, the strong influence of the anti-vaccination movement, and insufficient communication between pediatricians and parents.
She asked representatives of the Ministry of Health whether they were aware that during vaccination, the focus is on vaccine safety, including adverse reactions, in order to ease doubts and concerns among parents.
Jelica Krsmanović, Director General of the Directorate for Public Health and Biomedicine at the Ministry of Health, said that they are trying to locate which pediatricians and in which health institutions they are conducting negative campaigns, but they do not have exact information about who these pediatricians are. She said that they will continue to organize education on communication with parents when it comes to pediatricians.
Ružičić asked how the problem of children with temporary contraindications is solved in practice. Krsmanović said that these are acute conditions that normally prevent children from attending kindergarten, and that after the condition is resolved, they report to the selected pediatrician and continue their stay in the educational institution.
Judge Jovan Jovanović asked representatives of the Government, namely the Ministry of Health, whether they had information on how many workshops, seminars, and round tables there had been in the last five years, concerning preventive measures - education of healthcare workers and work with educational institutions and parents, before the law was passed.
Director General of the Directorate for Public Health and Biomedicine at the Ministry of Health, Jelica Krsmanović, listed dozens of annual training courses for healthcare workers and parents.
Director General of the Directorate for Public Health and Biomedicine at the Ministry of Health, Jelica Krsmanović, said that the goal is to act preventively, not when a measles epidemic occurs.
She said that the Ministry did not try to solve the problem with this measure alone, but together with the Institute of Public Health, health centers and international partners, they have organized a series of professional and preventive measures to strengthen citizens' trust in the last three years.
She explained that some of the measures included introducing additional vaccination appointments on weekends, without appointments, SMS reminders, calling parents who are late with vaccinations, numerous media campaigns, organizing scientific forums...
Based on all of the above, she said that despite a significant number of preventive activities, there has not been an increase in coverage necessary for collective immunity.
But, she presented data from August 1 to September 12, which shows an increase in the coverage of those vaccinated ahead of the start of the school year.
She said that from August 1 to September 12, 5.113 doses containing the Dpt component were administered, and in the seven previous months, 12.436 doses.
He claims that progress with the first dose of the MMR vaccine is also encouraging - from August 1 to September 12, 3.668 doses were administered, or twice as many as in the previous seven months.
She explained that there was particularly significant progress among children born in 2024, as coverage was 13,2 percent, and on September 12th it was 33,5 percent.
State Secretary of the Ministry of Health Mirjana Vlahović Andrijašević said that she deeply appreciates the fears and concerns of parents, but that the goal of the provision was not to exclude and punish the child, but, on the contrary, it is a constitutional and human duty established in Article 68 of the Constitution of Montenegro - to create a safe, warm, secure environment for every child.
The main goal of prescribing the provision in question, she claims, is to improve the protection of the population from infectious diseases, especially children who cannot receive the vaccine due to contraindications.
Vlahović Andrijašević emphasized that Montenegro faces enormous challenges in accepting vaccination, which has been detected since 2014.
She explained that there has been a decline in coverage of almost all vaccines and boosters from the regular program, even though 11 are mandatory.
"In recent years, coverage with the first dose of the MMR vaccine has been the lowest in Europe and among the lowest in the world. In addition to the significant drop among preschoolers, for the past three years, around 15 percent of children have been entering school without having received a single dose of the MMR vaccine," she said.
Judge Nikola Mugoša said that the task of the Constitutional Court today is essentially to weigh between two rights - the right to health and the right to private life.
He recalled Article 8 of the European Convention on Human Rights.
He asked the initiators how the state, in a country where by all standards there is a very low level of immunization, can protect the right to life of children who are completely dependent on vaccination, that is, on the results of collective immunity.
Vesko Pejak from Alternative said that the message is being sent to children that there are equals and more equals, and asked if this is the healthcare system we want.
He described the practice in Sweden, where mandatory vaccination is not a requirement for attending kindergarten, while MMR vaccine coverage is above 90 percent.
He problematized that the consequences of the decision not to vaccinate a child are not borne by the parent, but by the child.
"Why don't the consequences apply to the person who made the decision?" Pejak asked.
He said that the Ministry of Health shared private data (on vaccination status) with institutions, namely kindergartens, which do not include the storage and processing of such data in their statutes.
Lepa Žunjić from the Parents Association said that it is important for them to consider how this situation will affect Montenegro and to take into account the practice where vaccination is not mandatory, in order to see how these countries build trust and manage to make their citizens trust them.
She said that the state is obliged to protect the health of children, but that the best interest of the child is not just health and that children should not suffer due to the inability of adults to resolve this issue.
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