Insights

On 19 May 2022, in the case of Cedric Anakha De Kok vs. the Netherlands, the European Court of Human Rights (‘‘ECHR’’) held that the obligation to purchase mandatory basic health insurance and the enforcement of that obligation through administrative penalties is compatible with the Convention for the Protection of Human Rights and Fundamental Freedoms (the ‘‘Convention’’).

Background

On 14 July 2015, Cedric Anakha De Kok (the ‘‘Applicant’’) was fined by the National Healthcare Institute (the ‘‘Institute’’) for failure to purchase basic health insurance in line with the obligation arising from Article 2(1) of the Healthcare Insurance Act (the ‘‘Healthcare Act’’). Under Dutch law, all residents must purchase basic health insurance which covers most medical expenses. In lieu of purchasing the same, an exemption is allowed for people who have a conscientious or religious objection to insurance however, anyone who avails of this exemption, is liable to pay higher taxes.

The applicant objected to the administrative fine, but the Institute dismissed his claims, holding that the obligation of taking out basic health insurance has been since time immemorial confirmed as being lawful under Dutch law and this obligation is based on the principle of solidarity.

Following the Applicant’s insistence not to purchase a basic health insurance, the Institute proceeded to purchase a basic health insurance on behalf of the applicant in line with Articles 9a to 9d of the Healthcare Act. A subsequent fine was issued to the Applicant by the Institute.

Proceedings before the ECHR

Following a series of failed attempts by the Applicant to overhaul the administrative fines, on the basis that mandatory health insurance amounted to a violation of his human rights, the Applicant brought a case before the ECHR. In his application, the Applicant held that the obligation to take out basic health insurance equalled to a violation of several human rights as safeguarded under the Convention, inter alia, Article 1 Protocol 1, Article 8, and Article 9 of the same.

Alleged Violation of Article 8 of the Convention

On the alleged violation of Article 8, the Applicant held that the obligation to take out basic health insurance and participate in a system of collective responsibility violated his right to respect to private life.  He made it clear that he preferred to go at it alone and opt to be responsible for his own health and to pay for the costs of homeopathic treatment (this being his preferred choice of healthcare) himself, rather than sharing the collective burden of conventional medical treatment covered by the basic insurance.

The ECHR observed that although the mandatory health insurance system in the Netherlands may amount to an interference with the right to respect to private life, such interference was necessary in a democratic society. It further noted that the system created under the Dutch healthcare was aimed at ensuring that everyone has affordable and accessible healthcare and the imposition of mandatory health insurance on all citizens was aimed at achieving this objective. Using this strategy, healthcare costs would be shared by all including those who did not want or need to make use of the treatment covered.

On this matter, the ECHR, citing jurisprudence, held that the importance of social or collective solidarity in matters of public health has long been recognised by the ECHR in several cases. Particularly in the context of mandatory vaccination in Vavřička and Others v. the Czech Republic, the ECHR held that while it recognised that mandatory vaccination is a sensitive matter, this was not limited to the perspective of those disagreeing with the vaccination duty, but encompassed the value of social solidarity, the purpose of which was to protect the health of all members of society.

On the alleged violation of Article 8, the ECHR further held that the State enjoys a wide margin of appreciation as regards the rules which it may choose to lay down when balancing competing private and public interests. It therefore concluded that the obligation to take out basic health insurance, and the Institute purchasing basic health insurance on behalf of the applicant, did not fall foul of Article 8 of the Convention.

Alleged Violation of Article 9 of the Convention

In his application before the ECHR, the Applicant further alleged that the mandatory health insurance amounted to a violation of his right to freedom of thought, conscience and religion, as safeguarded under Article 9 of the Convention. However, the ECHR rejected this argument in its entirety, stating that the Applicant’s distrust in the efficacy of conventional medical treatment covered by the basic insurance and his unwillingness to contribute to the system, did not amount to a conviction or belief of sufficient cogency, seriousness, cohesion and importance to fall within the scope of Article 9.

Alleged Violation of Article 1 of Protocol No. 1 of the Convention

The Applicant’s last plea before the ECHR dealt with an alleged violation of Article 1 of Protocol No.1 of the Convention, where the Applicant held that the obligation to pay health insurance premiums amounted to a clear interference with his right to the peaceful enjoyment of his possessions.

Yet again, the ECHR struck down the Applicant’s plea holding that although the obligation to pay health insurance premiums may amount to an interference with the Applicant’s right to the peaceful enjoyment of his possessions under Article 1 of Protocol No.1 of the Convention, this interference pursued a legitimate interest in accordance with the general interest. The ECHR further held that in implementing its social and economic policies, the State enjoys a wide margin of appreciation when it comes to balancing the general interests of the community, and the requirements of the protection of the individuals’ fundament rights.

Conclusion

In view of the foregoing considerations, the ECHR held that the Applicant’s claims were not admissible and lacked ‘‘seriousness, cohesion and importance’’ and therefore, the obligation of purchasing mandatory basic health insurance did not fall foul of the Convention.