Right to Health Care: Some Constitutional Problems (Conflict of the Constitutional Values)

Abstract

The aim of the article is to contribute in the discussion should the vaccination be voluntary only or not from the constitutional values' point of view. The author underlines 2 problems.The first one is how to solve the conflict of the constitutional values while distribute the vaccines in the fairest way? The author shows the national example of the positive discrimination -some groups of Ukrainians have the choice, when it comes about the vaccine's producer, some -don't. Though there are a lot of countries, that use the vaccine of the only one producer (Azerbaijan) or do not allow the residents to choose the type of the vaccine they will get (the United Kingdom).The second one is how to solve the conflict of the constitutional values while deciding should the vaccination be mandatory or not? The author comments the decision of the Supreme Court (of Ukraine) on rather a scandalous case on the access to the secondary school education based on the vaccination. Supreme Court gave preference to the public health (interest) in this conflict of constitutional values -between this interest and the right to education in the form of visiting the secondary school. The Supreme Court also formulated the very important thesis, that the removal of a child from visiting the secondary school in such a case is not a punishment -but a preventive measurement (in terms of the public health issues). The author mentions Vavřička v. the Czech Republic case of the European Court of Human rights and mentions that: a) this vaccination case of the ECHR is one of the very rare cases, when the Court decision goes along with the Ukrainian Supreme Court's practice, including the argumentation; b) still the Ukrainian courts pass different decisions on the vaccination cases like mentioned above -so, the unified practice is not created yet.