Legal summary
August 2024
Pasquinelli and Others v. San Marino - 24622/22
Judgment 29.8.2024 [Section I]
Article 8
Article 8-1
Respect for private life
Employment-related measures imposed on health care and social health workers for refusing to get vaccinated against Covid-19:no violation
Facts – The applicants are health care and social health workers employed by the Social Security Institute (“SSI”). Under Section 14 of Law no. 85/2021, introduced in response to the Covid-19 pandemic, the applicants, as SSI employees, were invited to attend appointments to get vaccinated, which they declined. Under the relevant law and its later amendments declining such an invitation required the authorities to firstly attempt to organise the relevant service to minimise the applicants’ contact with users. Possibilities included reassignment to other services of the SSI, to other vacant public‑service positions or to community service in exchange for an allowance of a maximum of EUR 600 per month. If the other options were not viable or not accepted, temporary suspension from service could be ordered with an allowance of EUR 600 per month if the worker performed socially useful activities, the absence of which led to the loss of such an allowance. The applicants were affected by one or more of the measures.
The Constitutional Court, following an application brought by popular initiative, confirmed the legitimacy of the impugned legislation and its compatibility with the San Marino Constitution, European Convention of Human Rights and other instruments.
Law – Article 8:
(a) The scope of the complaint – Under the impugned law vaccination had not been compulsory and no vaccination duty had been imposed on the applicants. Statutory sanctions were not imposed and the failure to get vaccinated could in no way lead to a fine, administrative sanction or disciplinary sanction. Additionally, it had not led to any automatic consequences for the applicants and had been limited to health and socio‑health workers. Indeed, where possible, unvaccinated personnel in that sector had remained in their posts subject to minor arrangements limiting their contact with users. Where that had not been possible, reassignment to other services or optional social work had been offered and where the latter possibility was refused, the concerned personnel had been suspended without any remuneration. Each of these measures had been based on individual situations and in the light of the needs of the State services and therefore could not be considered as sanctions in disguise. To hold otherwise would mean to consider that any type of consequence, irrespective of its intensity and any other relevant factors, would make a recommended vaccination become compulsory. It followed that in the absence of nationwide or category-wide unescapable and serious consequences, it could not be held that there had been a general vaccination duty. As the complaint concerned solely the specific measures imposed on the applicants as a result, inter alia, of their choice not to get the optional vaccination, the case could be distinguished from Vavřička and Others v. the Czech Republic [GC].
(b) Admissibility – One applicant’s complaint was dismissed as incompatible ratione materiae as no measures had been applied to her, given that she had voluntarily vaccinated herself. In respect of the remaining applicants the specific measures imposed had been a result, inter alia, of their choice not to get the vaccination and given other relevant circumstances. While optional vaccination schemes did not of themselves amount to an interference with Article 8, the choice whether to get vaccinated or not was sufficiently linked to one’s personal autonomy to consider that the measures applied had been based, inter alia, on reasons encroaching upon the individual’s freedom of choice in the sphere of private life. Since the underlying reasons for the impugned measure affecting professional life were linked, inter alia, to the individual’s private life, those reasons sufficed to render Article 8 applicable. It followed that the measures complained of constituted an interference with the applicants’ private life.
(c) Merits – The lawfulness of the measures was not in question and had also been confirmed by the Constitutional Court. The objective of the measures had been to protect public health and maintain adequate safety conditions in the context of a pandemic which had posed a serious risk to the population at large. The Court had already previously noted that the Covid-19 pandemic had been liable to have very serious consequences for health. There was therefore no doubt that a series of restrictive measures in the health sector adapted to the constant evolution of the Covid-19 pandemic, as the ones in the present case, had pursued the legitimate aim of the protection of health and the protection of the rights and freedoms of others.
The Court had already considered that the Covid-19 pandemic was a situation that was to be characterised as an “exceptional and unforeseeable context”. It was in that context the Court had to determine whether the measures imposed on the applicants had been necessary in a democratic society. It was undisputable that unvaccinated persons had been and remained both susceptible to the infection and in a position to contaminate and spread the virus which had been actively circulating at the time. Thus, the maintenance of protective measures in respect of the entire population, and particularly the vulnerable population dependent on health and socio-health facilities, had continued to pursue a pressing social need at the time when the impugned measures had been put in place. All the impugned measures had been temporary and lasted between a minimum of less than two weeks and a maximum of fifteen months; in the majority of cases the measures had come to an end in less than seven months because the applicants had either recovered from Covid-19 infection, had been vaccinated, had been transferred permanently or their contracts had come to an end. Given that the vaccination had been voluntary, in reaching the relevant fair balance it had been solely the applicants’ financial interests which the State had had to balance against the momentous competing interests of the community as a whole. The applicants had suffered financial losses varying from around EUR 500 to around EUR 16,000 (with two exceptions). The majority of the applicants had been relocated for at least part of the time and had continued to receive a pay in exchange for their services in another post, albeit sometimes at a lower salary, and/or had received allowances in exchange for the hours of socially useful activities performed. Except for one applicant, none of those applicants who had actually performed work for a substantial amount of time had lost more than EUR 10,100.
The Covid-19 pandemic had demanded adaptation and special measures to counteract its effects and nonetheless had caused significant financial losses as well as an increase in unemployment. Such losses were an unavoidable consequence of a global pandemic and the exceptional and unforeseeable context States had found themselves in. The measures ultimately applied to each applicant had been dependent on the possibilities of the services within which they had worked, on any other needs in the public sector, as well as on their own choices. In view of the above and recalling that, in adopting legislation, States must in principle be allowed to determine the means which they consider to be best suited to achieving the aim of reconciling competing interests, the choice of the legislature to apply a graduated number of employment-related measures to a small number of individuals involved in the health and socio-health sector with the aim of protecting the health of the population in general and the rights and freedoms of others, had been justified and had stood in a reasonable relationship of proportionality to the legitimate aims pursued. It thus could not be said that the State had exceeded its wide margin of appreciation in health care policy matters.
Conclusion: no violation (unanimously).
In addition, the Court rejected the applicants’ complaints under Article 14 and Article 1 of Protocol No. 12 as manifestly ill-founded, considering that any difference in treatment as a result of the impugned legislation had been objectively and reasonably justified.
(See also Vavřička and Others v. the Czech Republic [GC], 47621/13 et al., 8 April 2021, Legal Summary; Terheş v. Romania (dec.), 49933/20, 13 April 2021, Legal Summary; Fenech v. Malta, 19090/20, 1 March 2022, Legal Summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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