Halime Sare Aysal, Application No: 2013/1789, 11 November 2015 [Compulsory Vaccination – Article 17(1) of the Constitution – Violation – Retrial]

A) Facts

In the concrete incident, the Provincial Directorate of the Ministry of Family and Social Policies requested a decision from authorized Court for taking health measures for the applicant due to the fact that her parents did not vaccinate her during infancy, and the Court has approved this request. The parents of the applicant appealed against this decision to no avail. Thereupon, they applied to the Constitutional Court claiming that the relevant judicial decision is unlawful, and violates the physical integrity of the applicant as well as her right under Article 17 of the Constitution guaranteeing the personal inviolability, corporeal and spiritual existence.

B) Judgment and Reasoning of the Court

Firstly, the Constitutional Court analysed the application in terms of jurisdiction. It held that it has jurisdiction rationae personae as there is a danger that the applicant’s physical integrity may be directly affected by the health measures taken in line with judicial decision, and since ongoing situation will conclude in the implementation of that decision; therefore, an actual and personal right of the applicant is directly affected due to the action of public authorities. In terms of merits, the Court stated that the compulsory vaccination for infants constitutes an interference to the right of the applicant to protect and improve her corporeal and spiritual existence. In its assessment of the legitimacy of this interference in accordance with Article 13 of the Constitution, the Court came to the conclusion that neither the interference, nor the related provisions of the Law no. 5395 and 1593 satisfy the principle of legality, which is listed as one of the preconditions for legitimacy. Therefore, it was concluded that Article 17 of the Constitution has been violated:

“There is a dispute between the public authorities and the applicant on whether the children whose parents object to the compulsory vaccination can be regarded as the children in need pursuant to the Law no. 5395. On the other hand, the relevant legal provision which stipulates, without clarifying the kind and scope of the medical intervention, that general measures will be taken to protect physical and mental health of the children (including temporary or permanent medical care and rehabilitation) cannot be understood to allow to vaccine every infant based on a certain age period against the consent of their parents. In the contrary case, various types of disagreed medical interventions without any clarity as to their scope and kind might be taken. (§ 68)

[…]

It can be said that the kind of vaccines within the Circular are not limited to the illnesses listed exhaustively in Article 57 of the Law no. 1593. The kinds of vaccines to be applied to the applicant, namely HepB, DaBT, İPA, Hib and KPA, do not completely correspond to the illnesses listed under the said article. In this regard, it is not possible to accept that Article 72 of the Law no. 1593, which is related to the use of serum or vaccines to patients where a specific illness listed under Article 57 or a suspicion of them exists, forms the legal basis of the relevant judicial decision.” (§ 71)

By majority vote, the Court ordered a retrial. The dissenting judge stated that taking into account the nature of the compulsory vaccination, which is an “urgent social need,” it is proportionate. Therefore, the measure is compatible with Turkish Constitution, ECHR and the precedents of the ECtHR; consequently, the Article 17 of the Turkish Constitution is not violated.

C) Significance of the Judgment

It is the first judgment of the Constitutional Court analysing the right to refuse treatment.