PASQUINELLI et autres contre SAINT-MARIN
Jugement du 29 août 2024
de la Cour Européenne des Droits de l'Homme
Il s'agit d'un arrêt qui retient légitimement l'attention des opposants au vaccinisme.
Toutefois, il faut en prendre connaissance d'une manière non pas émotionnelle mais rationnelle, en tenant compte de sa portée réelle et en analysant posément ce qu'il dit pour droit effectivement.
Pour pouvoir être lu également par des non-juristes, je vais m'efforcer de ne pas en faire une analyse trop juridique d'un point de vue technique.
Remarques liminaires
Mais tout d'abord, il est utile de rappeler ce qui suit.
Un Etat de Droit, ce n'est pas un pays dans lequel la majorité des citoyens ou la majorité de leurs représentants peut décider à sa guise de tout et de rien.
Ce qui le caractérise d'abord, c'est le fait que la liberté des citoyens y est la règle et que toute limitation à cette liberté est une exception qui doit être justifiée.
A l’intérieur de cette notion générale de liberté, il y a ce que l'on peut considérer comme des murs porteurs de l'Etat de Droit, des fondamentaux du contrat social, à savoir les droits fondamentaux et les libertés publiques.
Ceux-ci ne peuvent être restreints à la légère.
Classiquement, il sera exigé que toute limitation à ces libertés soit, et cumulativement, nécessaire, efficace pour atteindre un intérêt légitime supérieur et proportionnée.
Nécessaire, cela implique qu'il n'existe aucun moyen non attentatoire aux droits fondamentaux d'atteindre ou de préserver un intérêt légitime supérieur. En l'occurrence, s'agissant de vaccinisme, c'est bien sûr de la santé publique dont il sera exclusivement question.
Efficace, cela signifie qu'il est établi - j'insiste, établi, prouvé et non pas simplement cru ou supposé - qu'une mesure restrictive des droits fondamentaux assure effectivement la protection de la santé publique.
Proportionnée, cela requiert que la mesure restrictive des droits fondamentaux sera dosée à ce qui est strictement indispensable pour atteindre de facon satisfaisante l'objectif de santé publique.
Il s'y ajoute le plus souvent que la restriction ne doit pas être telle qu'elle ne respecte pas le contenu essentiel des droits fondamentaux en cause. Aussi bien l'article 52, paragraphe 1, de la Charte des Droits fondamentaux de l'Union européenne que l'article 37 de la Constitution luxembourgeoise le précisent.
Il existe aussi une condition formelle que la restriction doit être prévue par la loi, ce qui fait sens car, dans les démocraties libérales, ce sont les parlements qui sont mandatés par le corps électoral de la nation pour légiférer. Mais, la jurisprudence récente de la Cour de Justice de l'Union européenne (et de la Cour européenne des Droits de l'Homme) a tellement galvaudé la notion de "loi" que la disposition n'a plus beaucoup de signification en pratique (voir, par exemple, le point 61 de l'arrêt C-458/22 P Roos et autres / Parlement européen
https://curia.europa.eu/juris/document/document.jsf?text=covid&docid=279764&pageIndex=0&doclang=fr&mode=req&dir=&occ=first&part=1&cid=7624042#ctx1
En revanche, et le principe est enseigné depuis le Moyen-Âge dans les facultés de droit, les restrictions sont des exceptions apportées au principe de liberté et, comme telles, elles doivent être interprétées restrictivement (exceptio strictissimæ interpretationis est).
La portée de l'arrêt
Le jugement ne porte pas sur une situation factuelle où la vaccination contre le covid 19 avait été rendue obligatoire, ni ouvertement, ni implicitement. Les requérants étaient du personnel soignant qui, ayant refusé l'injection du produit alors expérimental, avaient fait l'objet de mesures de réaffectation, temporaires, mais qui avaient pu aller, en l'absence d'autre possibilité, jusqu'à une suspension avec une allocation mensuelle de € 600. Il s'agissait donc d'une mesure nettement moins brutale que la suspension du personnel soignant ourdie en France.
L'arrêt reconnaît que les mesures qui affectaient le personnel soignant prises par Saint-Marin étaient susceptibles de restreindre le droit à la protection de la vie privée garanti par l'article 8 de la Convention européenne des Droits de l'Homme.
C'est un point positif pour un pays comme le Luxembourg dont la Chambre s'obstine opiniâtrement à refuser de ratifier la convention d'Oviedo du Conseil de l'Europe qui ne fait pourtant que traduire en droit contraignant les principes qui avaient été retenus lors des procès de Nuremberg contre les crimes perpétrés par les médecins et infirmiers nazis.
Mais, comme la France a ratifié ladite convention, qu'elle a donc, conformément à l'article 55 de la Constitution francaise, une autorité supérieure à la loi francaise, c'est évidemment en priorité sur cette base-là que les soignants suspendus devraient fonder leurs recours.
Les points positifs
Je vais reproduire des passages de l'arrêt qui me semblent positifs du point de vue de la protection des droits fondamentaux ou à tout le moins corrects:
- la confirmation que l'obligation vaccinale en droit ou en fait attente à la protection de la vie privée
point 55:
Conversely, where the requirement
to undergo vaccination was on pain of a penalty, it could amount to
an interference with the right to respect for private life
(see Boffa
and Others v. San Marino,
no. 26536/95, Commission decision of 15 January 1998, DR 92-B,
p. 27, concerning compulsory vaccination of children against certain
diseases). The fact that compulsory inoculations/vaccinations, as an
involuntary medical treatment, amounted to interference was confirmed
by the Court where the applicant had actually been vaccinated (see
Salvetti v. Italy
(dec.), no. 42197/98, 9 July 2002,
and Solomakhin
v. Ukraine,
no. 24429/03, § 33, 15 March 2012) but also where there
was an obligation or duty to get vaccinated (i.e. the law provided
for vaccination to be compulsory), even if the applicant had not been
vaccinated, and had not been forced to be vaccinated (because it
could not be directly imposed in the sense that there was no
provision allowing for vaccination to be forcibly administered). This
was so on the basis that the applicants bore direct consequences of
non‑compliance with the vaccination duty (see Vavřička
and Others, cited above,
§§ 263 and 293). In the latter case the child applicants had been
denied access to nursery school, and the parent applicant had been
fined as a result of not vaccinating his child, both of which were
found to be interference with the right to respect for private life
(ibid., §§
263 and 264
point 59:
However, the Court notes that the
law in the present case did not impose any statutory sanctions. In
particular, failure to get vaccinated could in no way lead to a fine
or other administrative sanction (see, conversely, Vavřička
and Others, cited above, § 263), nor to any disciplinary
sanction.
point 60:
Additionally, it did not lead to any
automatic consequences on the applicants (such as the
non-admission into nursery school for all the unvaccinated children,
which in Vavřička and Others, cited above,
§§ 264
and 294, the Court considered was an interference for the purposes of
Article 8 § 2).
The impugned law in the present case, which was limited to health and
socio-health workers, only referred to “may” have consequences
(see paragraph 24 above).
Indeed, where it was possible, unvaccinated personnel in this sector
remained in their posts subject to minor arrangements limiting their
contact with users. Where this was not possible, reassignment to
other services or optional social work were offered (within the
limits available) and, in the worst-case scenarios, where
unvaccinated personnel refused the latter possibility, they were
suspended without any remuneration. Each
of these measures was based on individual situations and in the light
of the needs of the State services.
The Court thus considers that none of these measures can be
considered as sanctions in disguise (see, a
contrario,
Sodan v. Turkey, no. 18650/05, §
49-50, 2 February 2016, concerning a permanent
transfer based on private-life considerations).
point 64:
In the present case, it considers that the subject matter of
the case for the purposes of the complaint under Article 8 cannot
concern a vaccination duty which
did not exist, therefore it solely concerns the specific measures
imposed on the applicants as a result, inter
alia, of their choice
not to get the optional vaccination and other relevant circumstances.
Thus, it will be for the Court to assess the measures applied to the
applicants (see the appended table for details) and to determine
whether they fall within the scope of Article 8 in line with the
Court’s case‑law in relation to employment disputes (see
Denisov v. Ukraine [GC], no. 76639/11, §§ 115-16, 25
September 2018).
point 69:
The Court reiterates that employment-related
disputes are not per se
excluded from the scope of “private life” within the meaning of
Article 8 of the Convention. There are some typical aspects of
private life which may be affected in such disputes by dismissal,
demotion, non-admission to a profession or other similarly
unfavourable measures. These aspects include (i) the applicant’s
“inner circle”, (ii) the applicant’s opportunity to establish
and develop relationships with others, and (iii) the applicant’s
social and professional reputation. There are two ways in which a
private-life issue would usually arise in such a dispute: either
because of the underlying reasons for the impugned measure (in that
event the Court employs the reason-based approach) or – in certain
cases – because of the consequences for private life (in that event
the Court employs the consequence-based approach) (see, Denisov,
cited above, § 115).
point 70:
Under the reason-based approach, complaints
concerning the exercise of professional functions have been found to
fall within the ambit of “private life” when factors relating to
private life were regarded as qualifying criteria for the function in
question and when the impugned measure was based on reasons
encroaching upon the individual’s freedom of choice in the sphere
of private life (see, Denisov, cited above, §§
103-04, and the examples cited therein, which in the area of public
service, refer to factors such as sexual orientation, close private
relationships, choice of clothing and make up, living arrangements
and an applicant’s beliefs). When the underlying reasons for the
impugned measure affecting professional life may be linked to the
individual’s private life, these reasons themselves may render
Article 8 applicable (ibid., § 106).
point 77:
Since the underlying reasons for
the impugned measure affecting professional life in the present case
are linked, inter alia,
to the individual’s private life, these reasons suffice to render
Article 8 applicable (see paragraph 70 above).
Comme vous le voyez, tous ces points sont importants pour cadrer la portée de l'arrêt qui n'est certainement pas à considérer comme un blanc seing au totalitarisme vacciniste, ce que les féaux de la "généreuse" industrie pharmaceutique ne vont probablement pas manquer de faire. Ne soyons pas dupes.
Les points criticables
Malheureusement, il y a bien des points juridiquement criticables et même très criticables dans ce jugement et je vais les prendre dans l'ordre où ils apparaissent.
Point 56:
It was not for the Court to
determine whether a different, less prescriptive policy might have
been adopted, as had been done in some other European States
(§ 310).
Il s'agit d'une citation d'un jugement antérieur, bien connu des opposants au totalitarisme vacciniste,
Vavřička and Others
Cette phrase est un non-sens juridique. Bien sûr que l'existence, dans d'autres Etats, de politiques moins contraignantes, doit nécessairement être prise en compte dans l'évaluation concrète de la proportionnalité de la restriction apportée aux droits fondamentaux. Si d'autres pays, ce qu'il faut évidemment qu'une juridiction vérifie, ont mis en place des politiques de santé moins restrictives des droits fondamentaux, s'ils ont tout de même assuré une protection adéquate de leur santé publique, s'il n'y a pas de circonstances objectivement spécifiques au pays qui avait adopté des mesures plus restrictives, c'est la démonstration même que les mesures dudit Etat étaient disproportionnées !
C'est cette même assertion bancale qui se retrouve au point 92:
The Contracting Parties, in accordance with the principle of
subsidiarity, have the primary responsibility to secure the rights
and freedoms defined in the Convention and the Protocols thereto, and
in doing so they enjoy a margin of
appreciation, subject to the supervisory jurisdiction of the Court.
Because of their direct knowledge of their society and its needs, the
national authorities are in principle better placed than the
international judge to evaluate local needs and conditions and to
decide what is in the public interest (see, among many other
authorities, Hatton and Others v. the United Kingdom [GC],
no. 36022/97, § 97, ECHR 2003‑VIII; Dickson v. the
United Kingdom [GC], no. 44362/04, § 78, ECHR 2007-V;
and Vistiņš and Perepjolkins v. Latvia [GC], no.
71243/01, § 98, 25 October 2012). In
particular, healthcare policy matters come within the margin of
appreciation of the national authorities, who are best placed to
assess priorities, use of resources and social needs. In this field,
the Court has already had occasion to state that the margin of
appreciation afforded to the States must be a wide one (see
Communauté genevoise d’action syndicale (CGAS), cited
above, § 160, and Vavřička and Others, cited above,
§§ 274 and 280).
Point 96:
There is 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, pursued the legitimate aim of the protection of health
and the protection of the rights and freedoms of others.
La rédaction de ce point montre combien la manière de raisonner de la Cour est contestable.
S'il faut, pour pouvoir légalement restreindre des droits fondamentaux, que la mesure qui les restreint soit nécessaire, efficace et proprtionnée, cela requiert évidemment que la charge de la preuve que la mesure est effectivement nécessaire, efficace et proportionnée repose intégralement sur l'autorité qui veut introduire ladite mesure.
Des déclarations, des croyances, des suppositions, des convictions que les mesures sont destinées à la protection de la santé publique ne sont pas suffisantes. On ne restreint des droits fondamentaux que sur base de preuves bétonnées que la restriction sera effectivement nécessaire, efficace et proportionnée.
Point 97:
The Court notes that on 31 December 2020 WHO validated the first
anti-Covid-19 vaccine through the emergency use procedure. On 5 May
2023, following a mass vaccination campaign (more than 13 billion
vaccine doses administered worldwide) which
had made it possible to contain the effects of the disease, WHO
lifted the alert classifying Covid-19 as a public‑health
emergency of international concern. By
that date, more than 766 million cases of Covid-19 infection and
almost 7 million deaths had been recorded worldwide (see
Communauté genevoise d’action syndicale (CGAS), cited
above, §§ 17-18, and the references therein). The Court has already
considered that that situation was to be characterised as an
“exceptional and unforeseeable context” (see Terheş,
and Fenech, § 96, both cited above).
Quelque chose qui n'est pas moralement, et donc pas juridiquement, acceptable, c'est de relativiser l'examen d'une situation à la lumière de ce que l'on savait prétendument au moment des faits sans jamais se poser la question de savoir si les informations disponibles audit moment étaient sincères ou frauduleuses.
Or, nous savons bien que l'OMS fait profession de manipuler les informations dans un sens favorable aux intérêts de l'industrie pharmaceutique qui couvre 80 % de son budget opérationnel. Et cela ne date pas d'hier:
https://www.brighteon.com/adb53b59-d5d0-4a0b-a81d-e3702457c63c
ni même d'avant-hier
https://www.brighteon.com/1fa2d51e-f345-4558-80b3-963a1aec4d27
Il est maintenant établi que les statistiques concernant les cas de COVID étaient universellement frelatées, avec une confusion volontaire entre personnes décédées "avec" et personnes décédées "du" COVID, sur base de tests PCR dont l'inventeur, le prix Nobel de chimie Kary Mullis, avait affirmé qu'ils ne permettaient d'établir ni infection, ni contagiosité:
https://www.brighteon.com/358d6aab-020b-4653-b67a-70f60cb45648
Heureusement que Christian Drosten, bien qu’il n’ait jamais eu de prix Nobel, en savait plus que Kary Mullis !
C’est qu’ils étaient sensibles, ces tests pcr. Ils trouvaient des
infections au covid 19 dans des papayes, dans des cailles, des chèvres …
https://www.youtube.com/watch?v=rMUUC1Z-mV4
Et le tout dans un contexte où les media mainstream (BBC, Le Monde) étaient arrosés de généreux dons d'acteurs majeurs de l'industrie pharmaceutique.
Point 99:
The applicants argued that, as unvaccinated persons, they did not pose a higher risk to others than vaccinated persons. The Constitutional Court in San Marino found otherwise (see paragraph 16 above). The Court observes that on the material available at the time, the Parliamentary Assembly of the Council of Europe considered that “Vaccination and recovery from past infection may well reduce the risk of transmission, but the extent and duration of this effect are currently uncertain” (see paragraph 27 above). However, while the applicants’ submissions are based to a large extent on that argument, the Court need not determine that question. This is so because it is undisputable that unvaccinated persons (which was the situation of all persons prior to the arrival of the vaccine) were and remained, both susceptible to the infection and in a position to contaminate and spread the virus, which was actively circulating at the time (2021-2022).
Il n'est pas juridiquement compréhensible que la Cour ne se pose pas, en 2024, la question de savoir si la documentation disponible au moment des faits n'était pas frelatée. On ne peut pas construire un raisonnement juridiquement valable en retenant pour probantes des fraudes sous prétexte qu'elles n'avaient pas encore été éventées au moment des faits, dès lors qu'il appartenait à l'autorité qui estimait nécessaire d'introduire des restrictions aux libertés publiques de prouver, et évidemment loyalement et sincèrement, que lesdites restrictions étaient nécessaires, efficaces et proportionnées.
Point 100:
Further, the Court cannot ignore that the impugned law was a result of a global reduction of restrictive measures, in the light of the availability of vaccination in 2021, which became necessary to avoid the world coming to a standstill and further economic decline. Thus, the Court considers that even if the effectiveness of vaccination in limiting contagion was still dubious, it was not unreasonable to alleviate measures in respect of vaccinated persons who themselves were less at risk, while maintaining them for the applicants who, apart from certainly posing a risk to others, also remained themselves at risk of infection and serious consequences on their health. Indeed, the applicants did not dispute that vaccination was effective in terms of diminished symptoms, thus implicitly that unvaccinated people were more vulnerable to serious consequences of the disease (a factor already scientifically established at the time as admitted by the applicants, see paragraph 83 above).
Les failles du raisonnement de la Cour sont à nouveau bien visibles dans ce point. On ne peut pas légalement restreindre des droits fondamentaux quand l'efficacité de la vaccination pour limiter la contagion ést "encore douteuse". En fait, Mme Small, Directrice de Pfizer, a avoué au Parlement européen que sa firme ne disposait d'aucun élément établissant que son vaccin réduirait la contagion. De toute facon, bien avant cet aveu, des spécialistes avaient déclaré que ces vaccins n'empêcheraient pas la contagion.
Ainsi, dès le printemps 2021, Dr Christina PARKS, diplômée en biologie cellulaire moléculaire de l’Université du Michigan déclarait à un hearing public devant la House of Representatives de l’État du Michigan justement sur le projet de rendre obligatoire l’injection : «Vaccine requirements on mandates are based on the faulty assumption that the vaccines in question prevent transmission of the pathogen. Does the vaccine for DT prevent transmission ? No. Does the vaccine for flu prevent transmission ? No. Do the vaccines for COVID prevent transmission ? No. In fact, they were never DESIGNED to do that. You’re asking : what about this 95 % effectiveness ? If you look at those clinical trials, they do not say that they prevent transmission. They expressely say that they are measuring, whether they attenuate symptoms. So they’re 95 % effective based on their clinical trials at attenuating symptoms for the first variant, which is essentially gone in our population. (…) In Barnstable, Massachussets, the CDC tracked an outbreak of 469 cases of COVID. 74 % occurred in fully vaccinated and 4 out of 5 of those hospitalized were vaccinated. And so we’re mandating that people get a vaccine that could actually make them more sick when they are exposed to the virus. In fact this week a paper came out and what it shows is that, with this Delta variant, when you’re vaccinated, your body makes antibodies supposed to neutralize the virus but they were supposed to neutralize the old variant. When they see this new variant, what they’re actually doing ; the antibodies are taking the virus and help it infecting the cells"
Par conséquent, en dehors des médecins, des chercheurs et des biologistes en conflit d'intérêts avec l'industrie pharmaceutique, des media mainstream bénéficiaires de ses provendes et des partis politiques financés en partie par ses subsides, on avait dès 2021 l'information scientifique que, non, ces vaccins COVID ne contrarieraient pas la contagion.
Point 108:
In view of the above and recalling that, in adopting legislation intended to strike a balance between competing interests, States must in principle be allowed to determine the means which they consider to be best suited to achieving the aim of reconciling those interests(see Vavřička and Others, cited above, § 273), the Court considers that the choice of the San Marino legislature to apply a graduated number of measures effecting employment 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, including the applicants themselves, and the rights and freedoms of others, was justified and stood in a reasonable relationship of proportionality to the legitimate aims pursued by the respondent State. It thus cannot be said that the latter exceeded its wide margin of appreciation in health care policy matters.
Ici, la Cour procède à des affirmations dont on a vu qu'elle n'avait pas vérifié leur réalité factuelle. On ne peut pas appeler cela autrement que de l'amateurisme juridique. Dans une matière aussi grave qu'une restriction à des droits fondamentaux, le justiciable s'attend évidemment à ce que le juge vérifie que les restrictions apportées étaient vraiment nécessaires, efficaces et proprtionnées au vu de preuves solides dont le caractère non frauduleux avait été établi.
Voilà ce que l'on peut en dire sans entrer dans tous les détails. Mais je reproduis le texte intégral officiel de l'arrêt ci-après:
FIRST
SECTION
CASE OF PASQUINELLI AND OTHERS v. SAN
MARINO
(Application no. 24622/22)
JUDGMENT
Art 8 • Private life • Employment-related
measures imposed on health care and social health workers for
refusing to get vaccinated against Covid-19 •
Vaccination under impugned legislation not compulsory •
Impugned legislation did not impose statutory sanctions or
lead to automatic consequences • Measures
based on individual situations and could not be considered sanctions
in disguise • Distinguishable from Vavřička
and Others v. the Czech
Republic [GC] • Vaccination choice
sufficiently linked to personal autonomy •
Art 8 applicable
• Legitimate aims of protecting health and rights and
freedoms of others • Impugned measures
justified and proportionate to legitimate aims pursued •
Wide margin of appreciation in health care policy matters not
exceeded
Prepared
by the Registry. Does not bind the Court.
STRASBOURG
29
August 2024
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Pasquinelli and Others v. San Marino,
The European Court of Human Rights (First Section), sitting as a
Chamber composed of:
Ivana Jelić,
President,
Alena Poláčková,
Lətif
Hüseynov,
Péter Paczolay,
Gilberto Felici,
Erik
Wennerström,
Raffaele Sabato, judges,
and Liv
Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 24622/22) against the Republic of San
Marino lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by nineteen nationals of San Marino, six Italian
nationals and one Moldovan national whose details are found in the
appended table (“the applicants”), on 30 April 2022;
the decision to give notice of the application to the San Marinese
Government (“the Government”);
the decision of the Governments of Italy and Moldova not to make use
of their right to intervene in the proceedings (Article 36 § 1
of the Convention);
the parties’ observations;
Having deliberated in private on 9 July 2024,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The
application concerns a group of health care and social health workers
who refused to be vaccinated against Covid-19 (SARSCoV-2, hereinafter
“Covid-19”). In consequence, they were affected by one or more
measures, mainly, related to their employment.
THE FACTS
2. The applicants
were represented by Ms F.M. Bacciocchi, a lawyer practising in
Serravalle.
3. The Government
were represented by their Agent Ms S. Bernardi, Representative of San
Marino to the European Court of Human Rights.
4. The facts of
the case may be summarised as follows.
BACKGROUND OF THE
CASE
5. ln May 2021,
the applicants, who are health and social and health workers employed
by the Social Security Institute (hereinafter ‘SSI’ – a public
body responsible for the management of the health and social and
health sector) were urged by the same body to get vaccinated against
Covid‑19 pursuant to Section 14 of Law no. 85/2021 concerning
the vaccination of public health and social and health personnel.
Such invitation was declined by the applicants.
6. The provisions
contained in the aforementioned law were amended, pending its
implementation, by the subsequent Law no. 97/2021, later ratified by
Law no. 107/2021 (which entered into force on 16 June 2021), which
laid down specific provisions for the same public sector personnel.
Its Section 8 established that in the case that the health and social
and health personnel of the SSI declined the invitation formulated
pursuant to Section 14 of Law no. 85/2021 the SSI, taking into
account the need to ensure the continuity and adequacy of the
service, should first consider the possibility of changing the
organisation of the service in order to minimise contact with users
and, where this was not possible, such employees were ordered to
remain on duty, without prejudice to their obligation to take an
antigenic test (for Covid-19) every forty-eight hours.
7. The law also
provided for a further range of options for unvaccinated staff in the
event that reorganisation of the service was not possible (see
paragraph 24 below). In
particular, the alternative options included the possibility of
reassignment to other services of the SSI or to other offices of the
Public Administration in vacant job positions with the right to
receive the relevant salary or to use holidays and leave accrued in
the year 2020, or, as an extreme alternative, if the other options
were not viable or were not accepted, the temporary suspension from
service with a suspension allowance of 600 euros (EUR) per month
before taxes and social security contributions, in addition to the
possibility to retain the full amount of any family allowances
received.
8. Suspension
from service with the relevant allowance also provided for the
obligation for the worker to perform socially useful activities,
without prejudice to the proportionality of the working hours to the
amount of the aforementioned allowance, under penalty of loss of the
right to receive such allowance.
9. In the case of
health and social and health personnel who could not be
vaccinated
due to an objective danger caused by documented and certified health
conditions, the law provided for them to be placed on leave of
absence with the right to receive their full salary.
10. ln cases
where the reorganisation of the service did not make it possible to
avoid their contact with users, the applicants, having refused to be
vaccinated, exercised their right of option pursuant to Section 8 (5)
(6) and (7) of Law no. 107/2021. The measures applied to each of the
applicants are indicated in the appended table.
PROCEEDINGS
BEFORE THE CONSTITUTIONAL COURT
11. In
an application by popular initiative (lodged on 27 July 2021 upon the
collection of 750 signatures as required by domestic law to obtain
access to such a remedy) it was argued that Sections 2 and 6 of Law
no. 107/2021
were violating the principle of equality and the
correlative prohibition of discrimination, enshrined in the
Declaration of the Citizens’ Rights and Fundamental Principles of
the San Marino Constitutional Order (“the San Marino
Constitution”), the European Convention of Human Rights (“ECHR”
or “the Convention”) and its Protocol No. 12, and the Universal
Declaration of Human Rights. It was argued that there was no reason,
either legal or scientific, that could support the different
treatment between vaccinated and unvaccinated persons because there
was no certainty that those who received the Covid-19 vaccine were
immune to infection and not contagious: rather, medical research,
scientific studies, pharmaceutical companies and international bodies
were emphasising this uncertainty, pointing out that vaccinated
persons could still contribute to the spread of the virus, so
adopting prudent norms even after receiving the vaccine was still
recommended. It was further argued that Section 8 of Law no. 107/2021
constituted an abusive interference of public power in the private
sphere of healthcare workers and was violating not only the principle
of equality but also the right to work, the right to
self-determination and the right to health, enshrined in the San
Marino Constitution, the ECHR and its Protocol No. 12, and the
Universal Declaration of Human Rights. Moreover, whereas the vaccines
were experimental and pursuant to Commission Regulation (EC)
No. 507/2006 received a “conditional marketing authorisation”,
the provision of Section 8 of Law no. 107/2021 was also violating the
fundamental principles enshrined in the “Nuremberg Code”, in the
“Declaration of Helsinki”, in the “Oviedo Convention”, and in
the “Universal Declaration on Bioethics and Human Rights” (which
are all part of the San Marino legal system pursuant to Section 1 of
Law no. 59/1974).
12. The
applicants having the nationality of San Marino participated in this
procedure, but not the applicants of Italian/Moldovan nationality,
it being solely open to voting citizens of the electorate of San
Marino (see paragraph 21
below).
13. By
means of judgment no. 11 of 2 November 2021, the
Constitutional Court admitted the application and, on the merits,
confirmed the legitimacy of the impugned law and its compatibility
with the San Marino Constitution, the ECHR and other instruments.
14. In
particular it considered that according to the case-law of the
European Court of Human Rights (ECtHR), although the right to
health was not, as such, among the rights guaranteed under the
Convention and its Protocols, the positive obligation under Article 2
of the Convention to take
appropriate steps to safeguard the lives of those within a State’s
jurisdiction had to be construed as applying in the context of
any activity, whether public or not, in which the right to life may
be at stake, including in the public‑health sphere. Against
that background, it had to be noted that on 30 January 2020 the World
Health Organisation (“WHO”) issued a statement declaring Covid‑19
a public-health emergency of international concern (“PHEIC”) and
on 11 March 2020 it declared it a pandemic. While various States
put in place emergency measures, the European Union (“EU”)
Parliament emphasised that the measures could only be justified if
they were necessary, proportionate and limited in time. Given the
nature of the virus, namely, the possibility of transmitting it due
to its imperceptibility until symptoms appear, or until being made
aware of the contagion, the principles of prevention and precaution
where necessarily at play, nevertheless measures put in place had to
reach a fair balance.
15. As to the
argument put forward concerning the “legitimacy of the obligation
to get vaccinated”, the Constitutional Court considered that the
law at issue had been enacted in extraordinary circumstances of
necessity and urgency. Referring to the ECtHR case-law on the
possible restriction of rights under Articles 8, 9, and 10 of the
Convention it recalled that such restrictions were possible for the
protection of public health which certainly came to play in a global
pandemic. The provisions put in place in San Marino had not made it
obligatory to get vaccinated but provided for a pre-specified and
limited difference in treatment between vaccinated and unvaccinated
persons. It was to be noted that according to the ECtHR case-law (see
Vavřička and Others v. the Czech Republic [GC], nos.
47621/13 and 5 others, 8 April 2021) even the obligatory vaccination
of minors (in relation to certain serious pathologies) had been
justified to protect the health of other persons, particularly
vulnerable persons. It followed that, in relation to serious
diseases, a State was even entitled to make vaccination obligatory
and to apply sanctions in the absence of the fulfilment of this
obligation.
16. The
difference in treatment between Covid-19 vaccinated and unvaccinated
persons was justified given the objective and evident different
situation between the two. The
principle of the collective protection of health implied a temporary
sacrifice on behalf of those not vaccinated. The
impugned law did not consider that vaccinated persons were immune to
the disease but rather, and in line with scientific evidence, that
they suffered less serious repercussions and fewer risks of death.
Also “vaccinated persons spread the infection less than vaccinated
persons”. Given that the ECtHR case-law had approved of
imposed vaccination, and consequent sanctions in the absence of
vaccination, for the collective
good, it was evident that the same would hold to simple
differences in treatment. In San Marino there was no obligation to
get vaccinated against Covid-19 (thus no issue related to consent or
self‑determination) but solely a recommendation to do so, and
any measures applied to those who chose not to do so had been
proportionate to the aim pursued. As
to the arguments raised related to the vaccine itself, it was noted
that no medical treatment was 100 % risk free and the fact that all
Covid-19 vaccines were also not risk free did not justify a
declaration to the effect that it was useless or should not be
administered.
17. In
respect of the proportionality of the measures it was important to
point out that the Government (Congresso
di Stato) had gradually
decreased any restrictions in line with the progress of the pandemic
in order to limit their effects. The discretion applied by the State
had therefore been reasonable and was moreover subject to judicial
review. All the elements of the proportionality test
(lawfulness, necessity and proportionality) had thus been fulfilled.
Indeed, the exceptional and serious nature of the events at issue
could not be overlooked together with the idea of social solidarity
in such a crucial time. The EU texts relied on by the claimants did
not lead to any different conclusion. Resolutions 2361(2021) and
2383(2021) of the Parliamentary Assembly of the Council of Europe
(see paragraphs 26 and 27
below) did not exclude such measures rather they considered that they
had to be justified, which in the present case they had been given
the extraordinary situation of a pandemic.
18. In so far as
the claimants complained about the impact on their employment, the
law had only prohibited their contact with users. Thus,
unvaccinated persons could be offered either other tasks within the
same service which did not involve such contact, or reassignment to
another service, or the possibility to make use of accumulated leave.
If none of those options suited them, they could be suspended –
during which time they would, however, receive a monthly indemnity of
EUR 600 [maximum]. This had not been a disciplinary sanction, but
rather a measure which sought a fair balance between the right to
work and the right to health of persons using the health services.
The latter group of persons included vulnerable individuals who
necessitated health services and could not make the choice to avoid
contact with health-care personnel. The
more primordial interest of public health prevailed over a temporary
restriction of the right to work of single individuals who refused to
get vaccinated. Indeed, every individual freedom had its limits in
the duty of solidarity towards the community they lived in. This duty
of solidarity was all the more relevant in the public-health sector,
to which the impugned measures had been limited.
19. In conclusion
and bearing in mind that the ECtHR had already had occasion to note
that the Covid‑19 pandemic is liable to have very serious
consequences not just for health, but also for society, the economy,
the functioning of the State and life in general, and that the
situation should therefore be characterised as an “exceptional and
unforeseeable context” (see Terheş v. Romania
(dec.), no. 49933/20, 13 April 2021) the plaintiffs’ claims
about the illegitimacy of the impugned law had to be rejected.
OTHER PROCEEDINGS
20. Pending the
above-mentioned judicial review of constitutionality, four of the
applicants (Ms or Mr Battistini, Ms Gabotti, Mr Vignali and Ms
Felici), who had been suspended from service, lodged an application
before the Judge of first instance (Commissario della Legge)
in his administrative competence to annul the suspension measure
applied to them. The applications lodged by Ms or Mr Battistini, Ms
Gabotti and Mr Vignali were declared inadmissible, on procedural
grounds (related to the power of attorney), on 7 October 2021. The
applicant Ms Felici withdrew her application on 23 December 2021.
RELEVANT LEGAL
FRAMEWORK
RELEVANT DOMESTIC
LAW
Remedies
21. The relevant
provision of Law no. 55/2003 concerning the “organisation,
incompatibilities, functioning, forms of appeals and proceedings,
effects of the decision of the Constitutional Court” reads as
follows:
Section 12 (Direct review)
“1. Applications for review
of constitutionality may be lodged [...] by a number of voting
citizens making up at least 1.5% of the electorate resulting from the
last and definitive annual review of the electoral lists.
2. The appeal shall be filed
with the Registry of the Constitutional Court (Collegio Garante
della Costituzionalità delle Norme), which shall transmit a copy
thereof to the Heads of State (Capitani Reggenti). Appeals
against laws or acts having the force of law shall be filed within
the mandatory time-limit of forty-five days from the official
publication of the law or of the act having the force of law subject
to publication. In order to be admissible, the appeal shall clearly
indicate the provisions of the law or those having the force of law
whose legitimacy is doubtful or controversial, as well as the
allegedly infringed provisions and principles of Law no. 59 of 8 July
1974 as amended by subsequent laws.”
22. In so far as
relevant, the provision of Law no. 68/1989 concerning “administrative
jurisdiction, control of legitimacy and administrative sanctions”
reads as follows:
Section 9 (Acts subject to
appeal)
“The administrative judicial
authorities shall be called upon to decide on appeals for lack of
competence, excess of power or violation of law, against acts or
measures adopted by institutional bodies of the Public Administration
in general, including acts of the administrative bodies of the Social
Security Institute and of Public Entities and autonomous State
Corporations, when they pursue the interests of a natural or legal
person.
This shall be without
prejudice to different law provisions of judicial protection.
Acts relating to public
employment shall be subject to the administrative jurisdiction
provided for in this law ...”
Emergency legislation
23. Law no.
85/2021, concerning further provisions to loosen the measures of the
management of the Covid-19 epidemic, in so far as relevant reads as
follows:
Section 14 (Vaccination for
health and social and health personnel)
“1. From the entry into
force of this Decree-Law and until 31 December 2021, in order to
protect public health and maintain adequate safety conditions in the
provision of care and assistance, failure to be voluntarily
vaccinated for the prevention of SARSCoV-2 infection by health, and
social and health personnel working at the Social Security Institute
[SSI] and publicly-owned health and social and health facilities,
under any contractual formula, shall result in the suspension of the
right to perform services or duties involving interpersonal contact
with patients or users of the above facilities.
2. Within five days of the
entry into force of this Decree-Law, the SSI Office of Personnel and
Free Practice shall transmit to the Hospital Department Manager the
list of health and social and health personnel serving at the SSI and
publicly owned health and social and health facilities under any
contractual formula.
3. Within five days of the
date of receipt of the list referred to in paragraph 2, the Hospital
Department Manager shall verify the vaccination status of each worker
listed therein and forward to the SSI Single Booking Centre the names
of unvaccinated persons, also indicating any one of them who has
received a certificate of recovery from COVlD-19, and relevant date.
4. Upon receiving the report
referred to in paragraph 3, the Single Booking Centre shall formally
urge unvaccinated people to be vaccinated against SARSCoV-2 taking
into account the possible date of recovery in accordance with the
Operational Document "Operational Indications for Anti Covid-19
Vaccinations", referred to in Company Procedure no. 71 of 25
February 2021, indicating the date, time and place of vaccination, by
registered mail with acknowledgement of receipt. The notification
shall be deemed to have been affected on the date of delivery of the
registered letter to the addressee’s domicile, and, in any case, on
the date when the postal officer declares it undelivered.
5. If the expressly invited
worker does not show up for vaccine administration, the Single
Booking Centre shall forward his/her name to the SSI Head of
Personnel for proper consideration.
6. The Head of Personnel shall
consider possible alternative duties to which the unvaccinated worker
may be assigned in order to protect public health and maintain
adequate safety conditions in the provision of care and assistance,
also taking into account actual service needs.
7. If it is not possible to
assign the unvaccinated person to alternative duties, he/she shall be
placed on compulsory unpaid leave of absence, which shall not be
counted for the purposes of the leave referred to in Article 45 of
Law no. 41 of 22 December 1972 and subsequent amendments.
8. As an alternative to the
leave of absence referred to in paragraph 7, the unvaccinated person
may use ordinary and other leaves, and overtime work hours accrued in
2020.
9. If the person is
vaccinated, the leave referred to in paragraph 7 shall cease and the
person shall be entitled to resume previously held work.
10. If failure to get
vaccinated as referred to in paragraph 1 is consequent to a certified
health hazard, in relation to specific clinical conditions documented
and attested by a general practitioner, and it is not possible to
assign the person to alternative duties pursuant to paragraph 6, the
SSI Head of Personnel may order paid leave of absence.”
24. The relevant
provisions of Law no. 107/2021, ratifying Law no. 97/2021 –
update of the provisions to loosen the measures of the management of
the Covid-19 epidemic – in so far as relevant read as follows:
Section 1 (Purpose)
“1. The objective of this
Decree-Law shall be to continue the gradual loosening of the
restrictions provided for the containment of the spread of the
Covid-19 virus, in line with the progression of the vaccination
campaign and on the basis of data on the evolution of infections.
2. Where not in conflict with
this Decree-Law and unless otherwise provided for in the following
articles, the measures of Decree-Law no. 85 of 30 April 2021,
Decree‑Law no. 63 of 8 April 2021, Decree-Law no. 62 of 31
March 2021, Decree-Law no. 57 of 23 March 2021, Decree-Law no. 58 of
23 March 2021, and Decree-Law no. 26 of 26 February 2021 shall be
extended until 5 a.m. of 2 July 2021.”
Section 2 (General
Provisions)
“1. It shall be mandatory to
properly wear a mask, both outdoors and indoors, except when a
person: a) is alone or together with the members of his household; b)
is expressly exempted from wearing a mask.
2. As of 7 June 2021, wearing
a mask outdoors shall be strongly recommended. Properly wearing a
mask indoors shall remain mandatory with the exceptions referred to
in paragraph 1, letters a) and b).
3. The requirement referred to
in paragraphs 1 and 2 shall not apply to: a) children under the age
of six; b) persons with forms of disability that are not compatible
with the continuous wearing of a mask and persons interacting with
them; c) vaccinated persons.
4. Workers in the private and
public sectors who are vaccinated shall be exempt from the
requirement to wear a mask.
5. Mass gatherings shall be
prohibited in public or private places. A mass gathering shall be a
grouping of more than ten persons where it is not possible to
maintain a safety distance of at least one metre. This maximum number
may be waived in the case of members of the same household or if all
persons present, with the exception of cohabiting minors, are
vaccinated.
6. The activities of
institutional bodies and institutional activities in general shall be
allowed in compliance with hygienic and sanitary measures or in the
manner established by a special decision of the Government (Congresso
di Stato). If all persons present are vaccinated or cannot be
vaccinated, institutional activities shall be allowed as an exception
to the rules on distancing and mask wearing.
7. In all possible cases,
meetings and assemblies shall be held remotely. Meetings,
conferences, congresses, conventions and the like shall be allowed,
in compliance with the applicable sanitary and hygienic measures,
with particular regard to social distancing and the proper use of
personal protective equipment. The restrictions referred to in this
paragraph shall not apply if all participants are vaccinated.
8. In-person educational
activities shall be allowed, in compliance with the applicable
sanitary and hygienic measures, with particular regard to social
distancing and the proper use of personal protective equipment. The
restrictions referred to in this paragraph shall not apply if all
participants are vaccinated.
9. [...]
10. The declaration of being a
member of the same group of cohabitants, as well as proof of being
vaccinated or being a person who cannot be vaccinated in compliance
with these regulations, shall be a matter of individual
responsibility.
11. Buffet catering of food
and beverages shall be allowed. It shall be allowed to consume food
and drinks while standing, either indoors or outdoors, except at the
counter, provided that the time spent at the counter is limited and
an interpersonal distance of at least one metre can be guaranteed.
11 bis. In places open to the
public where food and drinks are provided, customers shall be served
only if they are seated at tables, based on the application of the
requirement to maintain a distance of at least one metre between
adjacent tables and an interpersonal distance of at least one metre,
either indoors or outdoors, accommodating up to six people based on
the application of the correct distancing. It shall be possible to
derogate from such maximum number only if the persons sitting at the
same table belong to the same group of cohabitants or are all
vaccinated.
11 ter. The SSI Executive
Committee may issue more restrictive provisions with regard to the
wearing of masks in their premises.”
Section 6 (Provisions on
schools)
“1. Vaccinated teaching and
non-teaching personnel in schools of all levels are exempt from the
requirement to wear a mask inside and outside the school building.
2. Teaching and non-teaching
personnel of schools of all levels, who are not or cannot be
vaccinated, shall wear a mask at all times inside and outside the
school building.
3. Pupils and students in
schools of all levels, as well as students of the San Marino Music
Institute and the University, shall no longer be required to wear a
mask while sitting at their desks.
4. Where an adequate air
exchange is not guaranteed as prescribed, and in cases where it is
not possible to respect social distancing, wearing a mask shall be
mandatory.
5. SSI Departments, in
agreement with the Education Department, may amend the provisions
referred to in this Article by issuing a special circular.”
Section 8 (Vaccination for
health and social and health personnel)
“1. Until 31 December 2021
or until the end of the health emergency, in order to protect public
health and maintain adequate safety conditions in the provision of
care and assistance, the failure of health and social and health
personnel working at the Social Security Institute and publicly owned
health and social and health facilities, under any contractual
formula, to voluntarily be vaccinated for the prevention of
SARS‑CoV-2 infection may result in the suspension of their
right to perform services or tasks involving interpersonal contact
with patients or users of the above-mentioned facilities.
2. Upon receiving the
notification referred to in Article 14, paragraph 3, of Decree‑Law
no. 85/2021, the Single Booking Centre shall formally urge those who
have not been voluntarily vaccinated to be vaccinated against
SARS-CoV-2, and notify the date, time and place of the vaccination by
registered letter with acknowledgement of receipt. Notification shall
be deemed to have been affected on the date of delivery of the
registered letter to the addressee’s domicile, and, in any case, on
the date when the postal officer declares it undelivered.
3. If the expressly urged
worker does not show up for vaccine administration, the Single
Booking Centre shall forward his/her name to the SSI Head of
Personnel for proper consideration.
4. In relation to employees
who have not been voluntarily vaccinated, the SSI Head of Personnel,
taking into account the need for continuity and adequacy of service,
shall first consider the possibility of changing its organisation so
that contact between the affected employee and the users is kept to a
minimum. Where such reorganisation is possible, the person who has
not been voluntarily vaccinated shall be required to take antigenic
swabs every 48 hours at their own expense at a cost at the SSI of 7
Euro per swab.
5. If it is not possible to
proceed in accordance with paragraph 4, the SSI Head of Personnel
shall consider possible alternative duties to which the unvaccinated
person may be assigned, in order to protect public health and
maintain adequate safety conditions in the provision of care and
assistance, also taking into account actual service needs. The person
who has been voluntarily vaccinated may be reassigned only to vacant
or temporarily vacant job specifications until the return of the
incumbent, which are to be effectively filled either within the SSI
or, after consultation with the Directorate General of Civil Service,
within the Public Administration or another Public Entity or an
Autonomous State Corporation of the Overall Public Sector. Should the
person who has not undergone voluntary vaccination be usefully
reassigned pursuant to the preceding sentence, he/she shall receive
the salary provided for the Job specification that he/she will
temporarily fill, the costs, of which shall be borne by the Budget of
the State or of the Public Entity or Autonomous Corporation of
reassignment.
6. If it is not possible to
assign the person who has not been voluntarily vaccinated to
alternative duties and he/she does not wish to avail himself/herself
of the alternatives for reassignment referred to in paragraph 5 or of
the use of holidays, leave or recover overtime work hours, as
referred to in paragraph 8, the SSI Head of Personnel shall
temporarily suspend him/her from service. The suspension shall not be
relevant for disciplinary purposes and does not result in the
termination of incompatibilities provided for public employees.
Employees who have not been voluntarily vaccinated shall also be
suspended from the right to perform intramoenia or extramoenia
professional activity.
7. Any employee who, as a
result of the procedures described in the preceding paragraphs, is
temporarily suspended from service shall be entitled to a suspension
allowance of 600 EUR per month gross of relevant taxes and SSI and
FONDISS contributions, in addition to the retention of the full
amount of any family allowances received. The employee who is granted
this allowance shall be called to perform socially useful activities
specified by the Administration in accordance with the principles of
Delegated Decree no. 200 of 29 December 2010 and subsequent
amendments, and Regulation no. 8 of 4 November 2020, without
prejudice to the proportionality of the working hours to the amount
of the aforementioned allowance. The personnel who refuse to be
assigned to socially useful activities shall lose the right to
receive the suspension allowance, as well as the full amount of any
family allowances.
8. As an alternative to the
suspension referred to in paragraph 6 and 7, the unvaccinated person
may use ordinary and other leave, and overtime work hours accrued in
2020.
9. In the event of
vaccination, as of the date of administration of the first dose, the
provisions of paragraphs 4, 5, and 6 shall cease, and the person
shall be entitled to resume previously performed service.
10. If the failure to get
vaccinated as referred to in paragraph 1 is consequent to a certified
health hazard, in relation to specific clinical conditions documented
and attested by a general practitioner, and it is not possible to
proceed according to paragraphs 4 and 5, the SSI Head of Personnel
may order a 100% paid leave of absence.”
25. Law no.
72/2022 established the end of the health emergency on 1 April
2022. However, with regard to health and social and health personnel,
Section 17 of the same law maintained the measures in place in
respect of this sector of personnel, specifying that failure to get
vaccinated and to receive the relevant booster doses within nine
months of the completion of the previous vaccination cycle would
entail the implementation of the options already provided for by the
previous legislation. Section 17 was repealed on 29 September
2022 by means of Law no. 137/2022.
RELEVANT
INTERNATIONAL MATERIAL
26. Resolution
No. 2361(2021) of the Parliamentary Assembly of the Council of
Europe, adopted on 27 January 2021, concerning Covid-19 vaccines:
ethical, legal and practical considerations, in so far as relevant,
reads as follows:
“1. The pandemic of
Covid-19, an infectious disease caused by the novel coronavirus
SARS-CoV-2, brought about much suffering in 2020. By December 2020,
more than 65 million cases had been recorded worldwide and more than
1.5 million lives had been lost. The disease burden of the pandemic
itself, as well as the public health measures required to combat it,
have devastated the global economy, laying bare preexisting
fault-lines and inequalities (including in access to healthcare), and
causing unemployment, economic decline and poverty.
2. Rapid
deployment worldwide of safe and efficient vaccines against Covid-19
will be essential in order to contain the pandemic, protect
healthcare systems, save lives and help restore global economies ...
3. For the vaccines to be
effective, their successful deployment and sufficient uptake will be
crucial. However, the
speed at which the vaccines are being developed may cause a feeling
of mistrust that is difficult to combat. An equitable deployment of
Covid-19 vaccines is also needed to ensure their efficacy. If not
widely enough distributed in a severely hit area of a country,
vaccines become ineffective at stemming the tide of the pandemic.
Furthermore, the virus knows no borders and it is therefore in every
country’s interest to co-operate in ensuring global equity in
access to Covid-19 vaccines. Vaccine hesitancy and vaccine
nationalism have the capacity to derail the so‑far surprisingly
fast and successful Covid-19 vaccine effort, by allowing the
SARSCoV-2 virus to mutate and thus blunt the world’s most effective
instrument against the pandemic so far.
...
7. Scientists have done a
remarkable job in record time. It is now for governments to act. The
Assembly supports the vision of the Secretary-General of the United
Nations that a Covid-19 vaccine must be a global public good.
Immunisation must be available to everyone, everywhere. The Assembly
thus urges member States and the European Union to:
...
7.2.3. ensure that persons
within the same priority groups are treated equally, paying special
attention to the most vulnerable such as older persons, those with
underlying conditions and healthcare workers, especially those who
work closely with persons who are in high-risk groups, as well as
people who work in essential infrastructure and public services, in
particular in social services, public transport, law enforcement and
schools, as well as those who work in the retail sector;
...
7.2.6. ensure that every
country is able to vaccinate their healthcare workers and vulnerable
groups before vaccination is rolled out to non-risk groups, and thus
consider donating vaccine doses or accepting that priority be given
to countries which have not yet been able to do so, bearing in mind
that a fair and equitable global allocation of vaccine doses is the
most efficient way of beating the pandemic and reducing the
associated socio-economic burdens;
7.2.7. ensure that
Covid-19 vaccines whose safety and effectiveness have been
established are accessible to all who require them in the future, by
having recourse, where necessary, to mandatory licences in return for
the payment of royalties;
7.3. with respect to
ensuring a high vaccine uptake:
7.3.1. ensure that
citizens are informed that the vaccination is not mandatory and that
no one is under political, social or other pressure to be vaccinated
if they do not wish to do so;
7.3.2. ensure that no one
is discriminated against for not having been vaccinated, due to
possible health risks or not wanting to be vaccinated;
7.3.3. take early
effective measures to counter misinformation, disinformation and
hesitancy regarding Covid-19 vaccines;
7.3.4. distribute
transparent information on the safety and possible side effects of
vaccines, working with and regulating social media platforms to
prevent the spread of misinformation;”
27. Resolution
No. 2383(2021) of the Parliamentary Assembly of the Council of
Europe, adopted on 22 June 2021, concerning Covid passes or
certificates: protection of fundamental rights and legal
implications, in so far as relevant read as follows:
“1. The socio-economic cost
of Covid-19-related restrictions continues to be huge and the
political pressure to limit and withdraw them is real and
understandable. At the same time, the health situation remains very
precarious: Covid-19 is still a disease that could easily get out of
control, causing further widespread sickness and death. In this
respect, the Parliamentary Assembly recalls its Resolution 2338
(2020) “The impact of the Covid-19 pandemic on human rights and the
rule of law”, in which it stated that “[t]he positive obligations
under the European Convention on Human Rights (ETS No. 5, the
Convention) require States to take measures to protect the life and
health of their populations”. Furthermore, sustainable
socio-economic recovery will only be possible once the disease is
durably under control. Vaccination will be an essential public health
measure for achieving this, but it will be insufficient by itself.
...
3.
Vaccination and recovery from past infection may well reduce the risk
of transmission, but the extent and duration of this effect are
currently uncertain. Furthermore, different vaccines and vaccination
regimes may vary in their effectiveness at reducing transmission
risk, and in their effectiveness against SARS-CoV-2 variants. A
negative test result is only indicative of a historical situation,
which can change at any moment after the sample is taken. These
differences are relevant to whether specific use cases of Covid
passes are medically justified and non-discriminatory.
...
10. If the
consequences of refusing vaccination – including continuing
restrictions on the enjoyment of freedoms and stigmatisation – are
so severe as to remove the element of choice from the decision, it
may be tantamount to making vaccination compulsory. This may lead to
a violation of protected rights, and/or be discriminatory. The
Assembly recalls its Resolution 2361 (2020) “Covid-19
vaccines: ethical, legal and practical considerations”, in which it
called on member States to “ensure that citizens are informed that
the vaccination is not mandatory and that no-one is under political,
social or other pressure to be vaccinated if they do not wish to do
so”. Any undue indirect pressure on people who are unable or
unwilling to be vaccinated may be mitigated if Covid passes are
available on grounds other than vaccination.
...
The
Assembly therefore calls on the member States of the Council of
Europe to:
13.1 continue
implementing the full range of public health measures needed to bring
Covid-19 durably under control, in accordance with their positive
obligations under the European Convention on Human Rights, and
institute Covid pass regimes only when clear and well-established
scientific evidence exists that such regimes lower the risk of
transmission of the SARS-CoV-2 virus to an acceptable level from a
public health point of view;
13.2 take
full account of the latest evidence and expert advice, in particular
from the World Health Organization (WHO), when implementing measures
such as Covid passes that involve relaxation of restrictions intended
to prevent the spread of the SARS-CoV-2 virus;
13.3 ensure
that measures such as Covid passes that exempt their holders from
certain restrictions on protected rights and freedoms are applied in
such a way as to maintain effective protection against the spread of
the SARS-CoV-2 virus and avoid discrimination ...”
28. Regulation
(EU) 2021/953 of the European Parliament and of the Council of 14
June 2021, on a framework for the issuance, verification and
acceptance of interoperable COVID-19 vaccination, test and recovery
certificates (EU Digital COVID Certificate) to facilitate free
movement during the COVID-19 pandemic provided, in its preamble, as
follows:
“(36) It is necessary to
prevent direct or indirect discrimination against persons who are not
vaccinated, for example because of medical reasons, because they are
not part of the target group for which the COVID-19 vaccine is
currently administered or allowed, such as children, or because they
have not yet had the opportunity or chose not to be vaccinated ...
In addition, this Regulation
cannot be interpreted as establishing a right or obligation to be
vaccinated”.
THE LAW
PRELIMINARY
OBJECTIONS
The parties’
submissions
The Government
29. The
Government submitted, first and foremost, that the application was
abusive in so far as the applicants had omitted to mention that four
of them had instituted administrative proceedings.
30. In the
alternative they considered that all the applicants had not exhausted
domestic remedies in reference to the administrative proceedings,
which most of the applicants did not undertake, and the ones who did,
had not appealed their decisions before the Administrative Judge of
Appeals, nor had the latter attempted to lodge a fresh application,
or requested that court to suspend the measure temporarily pending
proceedings. Moreover, Ms Felici had withdrawn her application
before the administrative jurisdiction, she could therefore not even
be considered a victim of the alleged violation.
31. As to the
effectiveness of administrative proceedings, the Government submitted
that despite the Constitutional Court’s dismissal of their
complaint and its confirmation of the legitimacy
of the impugned law as well as its compatibility with the
Constitution and the Convention, the applicants could have challenged
the impugned law on other grounds such as “violation of
legislation, incompetence of the body, inadequate statement of
reasons, excess of power, and further procedural profiles”. The
Government further pointed out that “in the administrative
proceedings the applicants could have submitted to the competent
judge a further request for a review, through incidental action of
the constitutionality of the rules applied to their case and held to
be in conflict with other constitutional parameters”.
The applicants
32. The
applicants submitted that once the Constitutional Court had upheld
the legitimacy of the impugned law, it was of no use to challenge the
suspension measures resulting from that law before the administrative
courts. The omission to pursue that avenue was therefore irrelevant
to the application. Given that ordinary judges were bound by the
findings of the Constitutional Court concerning the law, any
applications to the administrative courts had no prospect of success.
Moreover, administrative review only concerned “defects of
legality” (vizi di legittimità) (incompetence, excess of
power and violation of legislation) of an act issued by a body of the
public administration not a law, which was what the applicants were
challenging. Furthermore, contrary to that alleged by the Government
at paragraph 31 above,
according to Section 13 of Law no. 55/2003, where a question of
constitutional legitimacy has been raised and settled in a direct way
(by citizens’ petition before the Constitutional Court), the same
question cannot be reproposed by the administrative judge
incidentally, by means of a referral.
33. The lack of
any prospects of success was precisely the reason why Ms Felici
withdrew her application before the administrative court. There was
also no doubt that she had been a victim of the alleged violation
under Article 8 alone and in conjunction with Article 14 given that
she, like all the other applicants, had been subjected to measures as
a result of the impugned law.
34. They
concluded that the only remedy that could have examined the
legitimacy of the law had been the Constitutional Court, and the
applicants who had had access to it, did undertake that remedy
relying on the provisions of the Convention and raising arguments to
the same effect on the basis of domestic law in a manner which left
no doubt that the same complaints that have been subsequently
submitted to this Court had been raised at the domestic level. As to
the applicants who had had no access to that remedy, the Court’s
case-law did not require applicants to pursue remedies to which they
had no direct access.
The Court’s
assessment
General principles
35. The general
principles concerning exhaustion of domestic remedies have been
recently summarised in Communauté genevoise d’action syndicale
(CGAS) v. Switzerland ([GC], no. 21881/20, §§ 138-43, 27
November 2023).
36. In particular
the Court reiterates that, where an applicant challenges a provision
of a statute or regulation as being in itself contrary to the
Convention, the Court has held that a remedy recommended under
national law to review the compatibility of legislation with
provisions of superior legal force is a
domestic remedy that must be exhausted, provided that it is directly
accessible to litigants (see S.B. and Others v. Belgium
(dec.), no. 63403/00, 6 April 2004; and, a contrario,
Tănase v. Moldova [GC], no. 7/08, §§ 122 and
123, ECHR 2010) and provided that the court applied to has
jurisdiction, in theory and in practice, to abrogate a provision of a
statute or of regulations that it considers contrary to a provision
having superior legal force (see Grišankova and Grišankovs
v. Latvia (dec.), no. 36117/02, ECHR 2003-II
(extracts), and Burden v. the United Kingdom [GC], no.
13378/05, § 40, ECHR 2008). Generally speaking, it is clear from the
Court’s case-law that whether a particular remedy, allowing for
review of a law’s compatibility with provisions
of superior legal force, is required under Article 35 § 1
of the Convention will depend largely on the particular features of
the respondent State’s legal system and the scope of jurisdiction
of the court responsible for carrying out this review (see Communauté
genevoise d’action syndicale (CGAS), cited above, § 145).
37. Further,
the Court reiterates that an applicant is not obliged to have
recourse to remedies which are inadequate or ineffective. It follows
that the pursuit of such remedies will have consequences for the
identification of the “final decision” and, correspondingly, for
the calculation of the starting point for the running of the
six-month rule (see Barc
Company Ltd v. Malta
(dec)., no. 38478/06, 21 September 2010, Toniolo v.
San Marino and Italy, no. 44853/10, §§ 34 and 38, 26
June 2012, and the case-law cited therein). In other words,
Article 35 § 1 allows only remedies which are normal and
effective to be taken into account as an applicant cannot extend the
strict time‑limit imposed under the Convention by seeking to
make inappropriate or misconceived applications to bodies or
institutions which have no power or competence to offer effective
redress for the complaint in issue under the Convention (see Zaghini
v. San Marino, no. 3405/21, § 47, 11 May 2023, and Lopes de
Sousa Fernandes v. Portugal [GC], no. 56080/13, § 132,
19 December 2017). However, the provision cannot be interpreted
in a manner which would require an applicant to inform the Court of
his complaint before his position in connection with the matter has
been finally settled at the domestic level, otherwise the principle
of subsidiarity would be breached (see Lopes de Sousa Fernandes,
cited above, § 131, and Mocanu and Others v. Romania
[GC], nos. 10865/09 and 2 others, § 260, ECHR 2014 (extracts)).
38. As
concerns the rejection of an application on grounds of abuse of the
right of application, it is an exceptional measure (see Miroļubovs
and Others v. Latvia, no. 798/05, § 62, 15 September 2009)
and has been applied only in a limited number of cases.
For
example, the Court has rejected applications as abusive under Article
35 § 3 of the Convention if they were knowingly based on untrue
facts or misleading information (see Gross
v. Switzerland
[GC], no. 67810/10, § 28, ECHR 2014; Pirtskhalaishvili
v. Georgia
(dec.), no. 44328/05, 29 April 2010; Khvichia
v. Georgia
(dec.), no. 26446/06, 23 June 2009; Keretchashvili
v. Georgia
(dec.), no. 5667/02, 2 May 2006; and Řehák
v. Czech Republic
(dec.), no. 67208/01, 18 May 2004). Similarly, an
application can be rejected as abusive if applicants – despite
their obligation under Article 47 of the Rules of Court – fail to
inform the Court about new, important developments regarding their
pending applications given that such conduct prevents the Court from
ruling on the matter in full knowledge of the facts (see Bekauri
v. Georgia
(dec.), no. 14102/02, §§ 21‑23, 10 April 2012, and, a
contrario,
Peňaranda
Soto v. Malta,
no. 16680/14, § 35, 19 December 2017).
Application
to the present case
39. The Court
notes that the applicants formulated their complaints at the domestic
level principally with reference to the law, its “illegitimacy”
vis à vis the Convention and its Protocol No. 12 and other
domestic and international instruments. In that light, given that the
Constitutional Court in San Marino can review the compatibility of
legislation with provisions of superior legal force and repeal them,
if necessary, it would in principle be a domestic remedy that must be
exhausted. However, the Court observes that, in San Marino, access to
the Constitutional Court is not directly available to individuals and
was not directly available to the applicants in the present case. In
the first place, those applicants who were not voters of the
electorate, namely the foreign applicants, had no access whatsoever
to the procedure undertaken by the applicants of San Marino
nationality. Secondly, even the applicants of San Marino nationality,
as individual litigants, were not entitled to apply directly to the
Constitutional Court (compare Parrillo v. Italy [GC],
no. 46470/11, § 101, ECHR 2015) but rather required 750
signatures to obtain such access, which therefore cannot be
considered direct. It follows that a complaint before the
Constitutional Court had not been required of any of the applicants
in the present case, without prejudice to the Court’s right to take
account of those findings in line with the principle of subsidiarity,
if it were to examine the merits of the case.
40. The Court
finds it also relevant to point out that while in San Marino an
administrative court hearing the merits of a case has the possibility
of making a reference to the Constitutional Court, at the request of
a party or of its own motion, such an application cannot be a remedy
whose exhaustion is required under the Convention (see, mutatis
mutandis, Parrillo, cited above § 101, in respect of the
Italian context) in the absence of exceptional circumstances taking
into account the specifics of the functioning of constitutional
review proceedings in the domestic system at issue (see, for example,
Fizgejer v. Estonia (dec.), no. 43480/17, §§ 73-77, 2
June 2020).
41. In so far as
the Government argued that the applicants should have undertaken
administrative proceedings tout
court, the Court observes that contrary to the
French system, ordinary administrative courts in San Marino could not
enter into the Convention compatibility of a law (see, a
contrario, Zambrano
v. France (dec.), no. 41994/21, 21
September 2021, and Thevenon v. France,
(dec.), no. 46061/21, 13 September 2022).
Moreover, in the present case the matter was already before the
Constitutional Court on 27 July 2021 (the same month in which
the applicants became affected by these measures) which
determined the issue on 2 November 2021. Therefore, there is
little doubt that following the Constitutional Court’s judgment, it
would have been highly unlikely that the administrative courts would
have offered any prospect of success, be it in respect of the law in
general or the specific measures applied to each of the individual
applicants given that the Constitutional Court had examined the
Convention compatibility of the impugned provisions and confirmed it
(see, a contrario,
Zambrano, cited above §
27, where the Conseil constitutionnel
did not take decisions on Convention compatibility).
42. Indeed,
the Government appear to concede that this was the case given that
their argument concerning the effectiveness of administrative
proceedings is mainly that the applicants could have challenged the
impugned law on other grounds. However, the Court emphasises
that according to Article 35 § 1 it is the complaints
intended to be made subsequently before the Court that should have
been made to the appropriate domestic body (see, Azinas v. Cyprus
[GC], no. 56679/00, § 38, ECHR 2004-III, and Vučković and
Others v. Serbia [GC], nos. 17153/11 and 29 others,
§ 72, 25 March 2014). In the
present circumstances it cannot be held that administrative
proceedings had any prospects of success concerning the complaint
brought before this Court.
43. In
the absence of any accessible and effective remedies which the
applicants were required to pursue, the Government’s objection of
non-exhaustion of domestic remedies, as well as that concerning Ms
Felici’s victim status, in so far as she had withdrawn the
administrative proceedings she had undertaken after the
Constitutional Court determination, are therefore dismissed.
44. Similarly,
the administrative proceedings being futile, and of no relevance to
the assessment of the complaints, there is no question of bad faith
or improper behavior by the four applicants who had instituted
administrative proceedings (see paragraph 20
above) and omitted to inform the Court thereof,
and therefore the Court sees no reason to uphold the Government’s
objection of abuse of petition, which is therefore also dismissed
(compare Balsamo v. San Marino, nos. 20319/17 and
21414/17, § 48, 8 October 2019, and Aboya Boa Jean v. Malta,
no. 62676/16, § 37, 2 April 2019).
OTHER
ADMISSIBILITY CONSIDERATIONS
45. The
Government raised no further objections. However, given the
findings concerning the unavailability of remedies made at paragraph
43 above, the Court
considers that it is necessary to examine the timeliness of the
application lodged with the Court. In this connection, the Court
points out that it is not open to it to set aside the application of
this rule solely because the respondent Government have not made a
preliminary objection to that effect (see Blečić v. Croatia
[GC], no. 59532/00, § 68, ECHR 2006‑III,
and Peňaranda Soto, cited above, § 43, and the
case‑law cited therein).
46. The
Court observes that before the entry into force of Protocol No. 15
to the Convention (1 August 2021), Article 35 § 1 of the Convention
referred to a period of six months, from the final domestic decision,
within which an applicant could lodge application with the Court.
Article 4 of Protocol No. 15 has amended Article 35 § 1 to
reduce the period from six to four months. According to the
transitional provisions of the Protocol (Article 8 § 3), this
amendment applies only after a period of six months following the
entry into force of the Protocol (as from 1 February 2022), in order
to allow potential applicants to become fully aware of the new
deadline. Furthermore, the new time-limit does not have a retroactive
effect, since it does not apply to applications in respect of which
the final decision within the meaning of Article 35 § 1 of the
Convention was taken prior to the date of entry into force of the new
rule (see the Explanatory Report to Protocol No.15, § 22).
47. The
Court reiterates that the requirements contained in Article 35 § 1
concerning the exhaustion of domestic remedies and the six-month (now
four-month) period are closely interrelated (see Jeronovičs
v. Latvia [GC], no. 44898/10, § 75, 5 July 2016). As
a rule, the six-month (now four-month) period runs from the date of
the final decision in the process of exhaustion of domestic remedies
(see Blokhin v. Russia [GC], no. 47152/06, § 106,
23 March 2016). However, where it is clear
from the outset that no effective remedy is available to an applicant
the period runs from the date of the acts or measures complained of,
or from the date of knowledge of that act or its effect on or
prejudice to the applicant (see Mocanu
and Others, cited above,
§ 259). Nevertheless, in
cases where there is a continuing situation, the period starts to run
afresh each day, and it is in general only when that situation ends
that the period actually starts to run (see Varnava and
Others v. Turkey [GC], nos. 16064/90 and 8 others, § 159, ECHR
2009).
48. The
Court refers to the extensive case-law to the effect that an
application for retrial or similar extraordinary remedies such as
requesting a court to review its decision, or requesting the
reopening of proceedings, cannot, as a general rule, be taken into
account for the purpose of applying Article 35 § 1 of the
Convention (see, for example, Tumilovich
v. Russia (dec.),
no. 47033/99, 22 June 1999; Prystavska
v. Ukraine
(dec.), no. 21287/02, 17 December 2002; Berdzenishvili
v. Russia (dec.),
no. 31697/03, 29 January 2004; and Çinar
v. Turkey (dec.),
no. 28602/95, 13 November 2013) except in special
circumstances where, for example, it is established under domestic
law that such a request does in fact constitute an effective remedy
(see, for example, Shibendra
Dev v. Sweden (dec.),
no. 7362/10, 21 October 2014). The Court has also
accepted that situations in which a request to reopen the proceedings
is successful and actually results in a reopening may be an exception
to this rule (see Sapeyan v. Armenia, no. 35738/03,
§ 23, 13 January 2009, and the cases cited therein).
49. Similarly,
the Court considers that the situation in the present case may be
regarded as falling into a category of exceptional cases. While the
Constitutional Court is not a remedy which the applicants were
required to pursue in the absence of direct access to it (see
paragraph 39 above), the
Court cannot ignore that some of the applicants, together with other
individuals, reached the threshold of 750 signatories and thus
obtained access to that remedy, and that the Constitutional Court
accepted their application and examined the same Convention
complaints raised before this Court (see paragraph 13
above). The Court emphasises that the national courts should
initially have the opportunity to determine questions regarding the
compatibility of domestic law with the Convention. In particular,
when the Court is called upon to address the complex and sensitive
question of the balance to be struck between the various interests at
stake for the purpose of verifying the necessity and proportionality
of a given restrictive measure, it is essential that this balancing
exercise has been carried out beforehand by the domestic courts (see
Communauté genevoise d’action
syndicale (CGAS),
cited above, § 138, and Zambrano, cited above, §
26, in the specific context of the Covid‑19 pandemic).
Furthermore, had the Constitutional Court upheld those arguments and
repealed the impugned provisions this would have paved the way for
the lifting of the measures applied to all the applicants.
50. The Court
observes that the latter’s assessment concerns a valuable
contribution for its own assessment of the complaints before it, as
State authorities are in
principle better placed than an international court to assess the
local needs and context (see Communauté
genevoise d’action syndicale (CGAS),
cited above, § 138). In that light, and bearing in mind that Article
35 § 1 cannot be interpreted in a manner which would require an
applicant to inform the Court of his complaint before his position in
connection with the matter has been finally settled at the domestic
level, the Court considers that the relevant time period in respect
of all the applicants must be considered to have started to run on
the date of the delivery of the Constitutional Court’s judgment,
that is on 2 November 2021, and
therefore that the application was introduced within six months
(applicable prior to 1 February 2022).
ALLEGED
VIOLATION OF ARTICLE 8 OF THE CONVENTION
51. The
applicants complained that the obligation imposed upon them, as
health care and social health workers, to get vaccinated against
Covid-19 in accordance with Section 8 of Law no. 107/2021 and
subsequent consequences, was contrary to Article 8 of the Convention,
which reads as follows:
“1. Everyone has
the right to respect for his private and family life, his home and
his correspondence.
2. There shall be
no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a
democratic society in the interests of national security, public
safety or the economic well-being of the country, for the prevention
of disorder or crime, for the protection of health or morals, or for
the protection of the rights and freedoms of others.”
The scope of the
complaint
52. The Court
notes that the applicants complained about the indirect obligation to
get vaccinated against Covid-19 (despite this vaccination being still
experimental) and about the consequent suspension from their posts or
other employment related measures, arising from Section 8 of Law
no. 107/2021. They explained that although Law no. 107/2021 did
not contain a provision for vaccination to be forcibly administered,
the obligation for healthcare workers was surreptitious and enforced
indirectly through the application of immoderate measures, consisting
of relocation to another position, if possible, and of the suspension
from the service, without salary, only with the possibility of
performing socially useful activities in exchange for an allowance of
EUR 600. They considered that both compulsory vaccination and
restrictions related to a profession amounted to interference for the
purposes of Article 8.
53. The
Government challenged the attestation that there had been an
obligation, as vaccination had been purely on a voluntary basis for
the entire population in San Marino without distinction. With
reference to the specific health and social and health sector at
issue in the present case, the vaccination remained voluntary
(contrary to the situation in, for example, Italy, Germany and
France) and failure to choose that option only led to suspension in
extreme circumstances where no other measure was possible.
54. The Court
observes that in Association of Parents v. the United Kingdom
(no. 7154/75, Commission decision of 12 July 1978, Decisions and
Reports (DR) 14, p. 31), the Commission considered that a “voluntary
vaccination”, that is where States did not compel persons to
vaccinate themselves, either directly or indirectly, by imposing
sanctions on those who do not get vaccinated, did not amount to an
interference with the right to respect for private and family life.
Similarly, in Baytüre and Others v. Turkey ((dec.), no.
3270/09, §§ 24, 30 and 31, 12 March 2013) where the Government
challenged the applicability of Article 8, on the basis that the
vaccination administered to the daughter of the applicants (which
caused her to be paralysed) concerned a “recommended vaccination”,
the Court fell short of qualifying the latter as an interference,
rejecting the complaint ratione materiae.
55. Conversely,
where the requirement to undergo vaccination was on pain of a
penalty, it could amount to an interference with the right to respect
for private life (see Boffa
and Others v. San Marino,
no. 26536/95, Commission decision of 15 January 1998, DR 92-B,
p. 27, concerning compulsory vaccination of children against certain
diseases). The fact that compulsory inoculations/vaccinations, as an
involuntary medical treatment, amounted to interference was confirmed
by the Court where the applicant had actually been vaccinated (see
Salvetti v. Italy
(dec.), no. 42197/98, 9 July 2002,
and Solomakhin
v. Ukraine,
no. 24429/03, § 33, 15 March 2012) but also where there
was an obligation or duty to get vaccinated (i.e. the law provided
for vaccination to be compulsory), even if the applicant had not been
vaccinated, and had not been forced to be vaccinated (because it
could not be directly imposed in the sense that there was no
provision allowing for vaccination to be forcibly administered). This
was so on the basis that the applicants bore direct consequences of
non‑compliance with the vaccination duty (see Vavřička
and Others, cited above,
§§ 263 and 293). In the latter case the child applicants had been
denied access to nursery school, and the parent applicant had been
fined as a result of not vaccinating his child, both of which were
found to be interference with the right to respect for private life
(ibid., §§
263 and 264). The significance of those measures was found to
be relevant only to the assessment of the intensity of the
interference (ibid., § 294).
56. However, the
Court observes that in Vavřička and Others, the Grand
Chamber acknowledged that there existed, among the Contracting
Parties to the Convention, a spectrum of policies on vaccination,
ranging from one based wholly on recommendation, through those that
make one or more vaccinations compulsory, to those that make it a
matter of legal duty (§ 278). The Court considered that, where the
view is taken that a policy of voluntary vaccination is not
sufficient to achieve and maintain herd immunity, or herd immunity is
not relevant due to the nature of the disease, domestic authorities
may reasonably introduce a compulsory vaccination policy in order to
achieve an appropriate level of protection against serious diseases
(§ 288). Indeed, in that case it found that the choice of the Czech
legislature to apply a mandatory approach had been justified and that
the measures complained of by the applicants, assessed in the context
of the domestic system, stood in a reasonable relationship of
proportionality to the legitimate aims pursued by the respondent
State through the vaccination duty (§ 309). It
was not for the Court to determine whether a different, less
prescriptive policy might have been adopted, as had been done in some
other European States (§ 310).
57. In view of
the above, the Court considers that whether the vaccination is
compulsory or duty based, as opposed to voluntary or recommended, is
relevant to determining the approach to be taken in a given case. It
falls thus for the Court to assess what type of system existed in San
Marino in relation to the Covid-19 vaccination campaign.
58. The Court
observes that Section 8 of the impugned law referred to “voluntarily
be vaccinated”. Thus, statutorily, vaccination was not compulsory,
and no direct vaccination duty was imposed on the applicants (see,
conversely, Vavřička and Others, cited above, §§ 75 and
260). The same was confirmed by the San Marino Constitutional Court.
59. The
applicants argued that “a voluntary or recommended vaccination”
could become mandatory indirectly due to the consequences which
ensued following the failure to get vaccinated. However,
the Court notes that the law in the present case did not impose any
statutory sanctions. In particular, failure to get vaccinated could
in no way lead to a fine or other administrative sanction
(see, conversely, Vavřička and Others, cited above, § 263),
nor to any disciplinary sanction.
60. Additionally,
it did not lead to any automatic
consequences on the applicants (such as the non-admission into
nursery school for all the unvaccinated children, which in Vavřička
and Others, cited above,
§§ 264
and 294, the Court considered was an interference for the purposes of
Article 8 § 2).
The impugned law in the present case, which was limited to health and
socio-health workers, only referred to “may” have consequences
(see paragraph 24 above).
Indeed, where it was possible, unvaccinated personnel in this sector
remained in their posts subject to minor arrangements limiting their
contact with users. Where this was not possible, reassignment to
other services or optional social work were offered (within the
limits available) and, in the worst-case scenarios, where
unvaccinated personnel refused the latter possibility, they were
suspended without any remuneration. Each
of these measures was based on individual situations and in the light
of the needs of the State services.
The Court thus considers that none of these measures can be
considered as sanctions in disguise (see, a
contrario,
Sodan v. Turkey, no. 18650/05, §
49-50, 2 February 2016, concerning a permanent
transfer based on private-life considerations).
61. 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. This cannot be the
case, indeed even the Parliamentary Assembly of the Council of Europe
in its Resolution No. 2383(2021) considered that
“severe” consequences, and not any
consequences, of refusing vaccination could be tantamount to making
vaccination compulsory (see paragraph 27
above).
62. It
follows that, in the present case, in the absence of nationwide or
category-wide unescapable and serious consequences,
it
cannot be held that there was a general vaccination duty.
63. In
light of the above, the Court distinguishes the present case from
Vavřička and Others (cited above, §§ 259-60) where the
Court considered that the subject matter of the complaint under
Article 8 was the vaccination duty and the consequences on the
applicants of non-compliance with it, which could not be dissociated.
64. In the
present case, it considers that the subject matter of the case for
the purposes of the complaint under Article 8 cannot concern a
vaccination duty which did not exist, therefore it solely concerns
the specific measures imposed on the applicants as a result, inter
alia, of their choice
not to get the optional vaccination and other relevant circumstances.
Thus, it will be for the Court to assess the measures applied to the
applicants (see the appended table for details) and to determine
whether they fall within the scope of Article 8 in line with the
Court’s case‑law in relation to employment disputes (see
Denisov v. Ukraine [GC], no. 76639/11, §§ 115-16, 25
September 2018).
Admissibility
The parties’
submissions
65. The
Government raised no objections other than those set out above.
66. The
applicants submitted that the notion of “private life” also
includes activities of a professional or business nature, and
according to settled case‑law of the Court restrictions imposed
on access to a profession can affect “private life”, as can the
loss of
employment. Likewise, dismissal from office has been
found to interfere with the right to respect for private life. In
essence, employment-related disputes generally engaged Article 8 of
the Convention either where a person lost a job because of something
he or she had done in private life (reason-based approach) or when
the loss of job impacted on private life (consequence-based
approach).
67. They
contended that, in the present application, the interference resulted
from the applicants’ choice not to get vaccinated, i.e., from
something they did in their private lives. However, the interference
also impacted their private lives, because they were removed and kept
away from their regular work without their salary and forced to carry
out socially useful activities to receive the suspension allowance.
They considered that the measures imposed on unvaccinated healthcare
workers had affected them to a very significant degree, both
financially and emotionally, with serious consequences for their
financial situation and their social and professional reputations,
also considering their central role in responding to Covid-19
diseases during the pandemic. They relied on their claims for just
satisfaction, where, for the purposes of pecuniary damage, the
applicants claimed the difference between the allowance received (if
any) for performing socially useful activities or the remuneration
received as a result of relocation (if they had been relocated) and
their regular/usual salary (i.e. the one to which they should have
been entitled to in the absence of the legislative intervention at
issue). Thus, in their view, Law no. 107/2021 crossed the “threshold
of seriousness” for an issue to be raised under Article 8 of the
Convention.
The Court’s
assessment
General principles
68. The Court
observes that the Government have not raised any objection to this
effect. However, it reiterates that the applicability of a provision
relates to the Court’s competence ratione materiae to assess
a complaint, and therefore is a matter which goes to the Court’s
jurisdiction and which it is not prevented from examining of its own
motion (see Pasquini v. San Marino, no. 50956/16, § 86,
2 May 2019, and Pasquini v. San Marino (no. 2),
no. 23349/17, § 31, 20 October 2020).
69. The Court
reiterates that employment-related
disputes are not per se
excluded from the scope of “private life” within the meaning of
Article 8 of the Convention. There are some typical aspects of
private life which may be affected in such disputes by dismissal,
demotion, non-admission to a profession or other similarly
unfavourable measures. These aspects include (i) the applicant’s
“inner circle”, (ii) the applicant’s opportunity to establish
and develop relationships with others, and (iii) the applicant’s
social and professional reputation. There are two ways in which a
private-life issue would usually arise in such a dispute: either
because of the underlying reasons for the impugned measure (in that
event the Court employs the reason-based approach) or – in certain
cases – because of the consequences for private life (in that event
the Court employs the consequence-based approach) (see, Denisov,
cited above, § 115).
70. Under the
reason-based approach, complaints
concerning the exercise of professional functions have been found to
fall within the ambit of “private life” when factors relating to
private life were regarded as qualifying criteria for the function in
question and when the impugned measure was based on reasons
encroaching upon the individual’s freedom of choice in the sphere
of private life (see, Denisov, cited above, §§
103-04, and the examples cited therein, which in the area of public
service, refer to factors such as sexual orientation, close private
relationships, choice of clothing and make up, living arrangements
and an applicant’s beliefs). When the underlying reasons for the
impugned measure affecting professional life may be linked to the
individual’s private life, these reasons themselves may render
Article 8 applicable (ibid., § 106).
71. If the
consequence-based approach is at stake, the threshold of severity
with respect to all the above-mentioned aspects assumes crucial
importance. It is for the applicant to show convincingly that the
threshold was attained in his or her case. The applicant has to
present evidence substantiating consequences of the impugned measure.
The Court will only accept that
Article 8 is applicable where these consequences are very serious and
affect his or her private life to a very significant degree
(ibid., §§ 115‑16). The Court has established criteria for
assessing the severity or seriousness of alleged violations in
different regulatory contexts. An applicant’s suffering is to be
assessed by comparing his or her life before and after the measure in
question. The Court further considers that in determining the
seriousness of the consequences in employment-related cases it is
appropriate to assess the subjective perceptions claimed by the
applicant against the background of the objective circumstances
existing in the particular case. This analysis would have to cover
both the material and the non-material impact of the alleged measure.
However, it remains for the applicant to define and substantiate the
nature and extent of his or her suffering, which should have a causal
connection with the impugned measure. Having regard to the rule of
exhaustion of domestic remedies, the essential elements of such
allegations must be sufficiently raised before the domestic
authorities dealing with the matter (ibid., § 117).
Application to the
present case
72. The Court
notes first and foremost that while the suspension order in respect
of the twenty-fifth applicant (Ms Vitali) indicated that suspension
was to start on 19 July 2021, according to the information supplied
by the Government in their observations no measures under Section of
8 Law no. 107/2021 were applied to her given that she
voluntarily vaccinated herself on 21 July 2021. The applicant did not
dispute that in her observations in reply.
73. In
consequence, in the absence of any measure which could constitute an
interference, Article 8 is not applicable to her situation. It
follows that the complaint in her regard must be dismissed as
incompatible ratione materiae with the Convention pursuant to
Article 35 §§ 3 (a) and 4.
74. The remaining
applicants (hereafter “the applicants”) have been affected by one
or a combination of the following measures complained of: suspended
without pay where they refused to carry out socially useful
activities; undertook community service in exchange for an allowance
proportionate to the hours worked (but not exceeding EUR 600 per
month); or were relocated to vacant posts in the public
administration at the same pay or at a lower pay level than they were
entitled to prior to the transfer (see the appended table for
details). All these measures (alone
or in combination) were temporary and lasted between a minimum of
less than two weeks and a maximum of around fifteen months; in
the majority of cases the measures lasted less than seven months
because the applicants either recovered from Covid-19 infection, got
vaccinated, were transferred permanently or their contracts came to
an end.
75. The Court
must therefore answer the question whether these measures affected
the applicants’ private life, rendering Article 8 applicable.
76. The Court
will first examine the way in which a private-life issue could arise
in the present case: whether because of the underlying reasons for
the measures applied to the applicants or because of the consequences
for their private life (see paragraph 69
above, and, for example, Mile Novaković v. Croatia, no.
73544/14, § 47, 17 December 2020, and J.B. and Others v. Hungary
(dec.), nos. 45434/12 and 2 others, § 130, 27 November
2018).
77. The Court has
already held at paragraph 64
above that the specific measures imposed on the applicants were a
result, inter alia, of their choice not to get the optional
vaccination and other relevant circumstances. While it reiterates
that optional vaccination schemes do not of themselves amount to an
interference with Article 8, the Court is ready to accept that the
choice whether to get vaccinated or not, which presumably in the
present case is based solely on the applicants’ concern for their
physical integrity, is sufficiently linked to one’s personal
autonomy to consider that the measures which had been applied to the
applicants, in consequence of their refusal to voluntarily vaccinate
themselves, 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 in the present
case are linked, inter
alia, to the
individual’s private life, these reasons suffice to render
Article 8 applicable (see paragraph 70 above).
78. It follows
that the measures complained of (see paragraph 74
above), constitute an interference with the applicants’ private
life, the significance of which will be relevant to the assessment of
the intensity of the interference (see Vavřička and Others,
cited above, § 294).
79. The Court
notes that this complaint, in so far as it concerns all, but the
twenty-fifth applicant, is neither manifestly ill-founded nor
inadmissible on any other grounds listed in Article 35 of the
Convention. It must therefore be declared admissible.
Merits
The parties’
submissions
The applicants
80. The
applicants claimed that Section 8 of Law no. 107/2021 represented an
abusive and illegitimate interference by the public power in their
private life and that the provision of relocation or temporary
suspension from service (without salary) through their choice not to
get vaccinated constituted a violation of their right to respect for
private life. They noted that even if it were lawful and in pursuance
of a legitimate aim, the measures had nevertheless to be necessary in
a democratic society.
81. As to the
consequences on their employment arrangements, they submitted that
given the concept of human dignity underpinning the spirit of the
Convention, the San Marino legislator had overstepped its margin of
appreciation as “the penalty” imposed on the applicants had not
been proportionate to the aim of stopping the spread of the virus.
The “punishment” had thus infringed their human dignity, causing
emotional disturbance which affected their psychological well-being,
dignity and moral integrity, and it had impaired the very essence of
the rights protected by Article 8.
82. The efficacy
and safety of Covid-19 vaccines had never been recognised, given that
they were new and experimental, against a disease not well known to
medical science. The uncertainty of the vaccines, both in terms of
efficacy in preventing the infection/contagion, and in terms of
safety and adverse effects, could not (and had not to) be ignored by
the legislator. The pharmaceutical companies, the scientific
community and the relevant national and international organisations,
bodies and agencies, have shown the scientific uncertainties of the
Covid-19 vaccines, both in terms of efficacy (in preventing the
infection and the contagion) and in terms of safety (given the lack
of studies on possible medium and long-term side effects).
83. The
applicants emphasised that all Covid-19 vaccines, as reported in
their respective official datasheets, were licensed for the
prevention of symptomatic Covid-19 disease and not for the prevention
of asymptomatic infection. Accordingly, when scientists were talking
about “efficacy” of the Covid-19 vaccines, they referred to the
effect of the vaccine on the symptoms, and not to the prevention of
infection; when pharmaceutical companies claimed that their product
was 95% effective, it meant that the vaccine had reduced symptoms of
the disease in a certain percentage of people who had tested positive
in trials; it did not mean that, among the vaccinated people, 95% of
them were immune. It followed that the vaccines were not expected to
prevent infection, but only to modify the symptoms of infected
people. The applicants submitted numerous supporting documents,
including package leaflets of the vaccines, consent forms, various
studies, information notices and guidelines by national and
international bodies, emphasising the experimental nature of these
vaccines and the scientific uncertainties about their efficacy in
preventing infection and their safety or adverse effects.
The Government
84. The
Government submitted that the Constitutional Court had already held
that the legislator had exercised its legislative power in full
compliance with the principle of legality pursuant to Article 2,
paragraph 2, of Constitutional Law no. 183/2005. Law no. 107/2021 was
part of the overall regulatory framework adopted by the national
legislator in order to update and adjust the restrictive measures to
tackle and manage the Covid-19 epidemic and was based on the state of
medical and scientific knowledge at that specific moment in time.
Considering the positive evolution of symptomatic cases and
infections in San Marino, on the one hand, Law no. 107/2021
intended to make less burdensome or, in some cases eliminate, in the
areas subject to lower risk, the restrictions already imposed by
previous regulatory acts.
On the other hand, with reference to health and social
and health personnel, the legislator confirmed the provision, already
contained in the previous Law no. 85/2021, in order to protect public
health and maintain adequate safety conditions in the provision of
care and assistance while introducing broader alternative employment
opportunities in other sectors of the public administration other
than the SSI, thereby increasing the chances of effective relocation.
The option introduced by the legislator had been the result of the
necessary balancing of the need to protect individual freedom and
self-determination in relation to treatments affecting individual
health with the need to protect public health.
85. In
particular, Section 8 of Law no. 107/2021 provided several options
for persons who chose not to vaccinate themselves, including, the
reorganisation of the service so that contact between the affected
employee and the users is kept to a minimum; alternative duties to
which the unvaccinated person could be assigned, taking into account
actual service needs; the use of holidays, leave or recover overtime
work hours accrued in 2020; temporary suspension from service (with a
suspension allowance in exchange for the performance of socially
useful activities (see paragraph 24
above). It was only personnel who refused to be assigned to socially
useful activities who lost the suspension allowance, as well as the
full amount of any family allowances (sub-paragraph 7 of Section 8).
86. Moreover,
according to sub-paragraph 10 of Section 8, persons who had chosen
not to vaccinate themselves due to a certified health hazard, in
relation to specific clinical conditions documented and attested by a
general practitioner, could benefit of 100% paid leave of absence
where reorganisation or reassignment was not possible.
87. The
Government submitted that the need to balance the individual rights
and those of the community had become dramatically topical during a
health emergency with very specific characteristics, initially
defined by the WHO as an internationally relevant public health
emergency (30 January 2020) and then considering the levels of
diffusion and seriousness reached at a global level, classified as a
pandemic (11 March 2020). In such a situation, the right of each
person to self-determination, not only in relation to his own health
but in relation to every aspect of private life, could be
legitimately restricted – as de facto had occurred in many
States – for the sake of the entire community. This was by virtue
of the principle of horizontal solidarity that connected each member
of the community to the other members of the community. Thus, the San
Marino legislator, adopted, on the basis of the scientific evidence
available at the time, the impugned restrictive measures to cope with
such emergency, with a purely public purpose.
88. The specific
measures introduced by Section 8 for health and socio-health sector
personnel were deemed necessary because of the increased risk
associated with performing work duties in close contact with people
who were particularly vulnerable because of their health conditions
and in order to ensure the continuity and efficiency of the
socio-health service at a particularly critical time. The timeliness
of the measures aimed at preventing any increase in the
epidemiological curve had been a decisive factor to combat the virus,
and it was for that reason that the San Marino legislator promoted
the vaccination campaign and adopted the measures referred to in
Section 8 with respect to the personnel of the health and
socio-health sector.
The Government submitted that vaccination of
health and social health workers served the purpose of protecting
both the employees and the patients from the risk of infection.
89. Contrary to
what the applicants claimed, vaccination was introduced by the
legislator after carefully assessing and examining the scientific
evidence available at the time concerning the efficacy and safety of
the Sputnik V and Pfizer vaccines used by the Republic of San Marino
during the vaccination campaign. The outcome of the so-called phase 3
studies on the Sputnik V vaccine, a vaccine that had already been
distributed on 11 August 2020 by the Russian Ministry of Health, had
already been published in February 2021, where it had been shown that
the vaccine had an overall efficacy rate of 91,6% and 100% efficacy
in the ease of moderate to severe infections. Studies had also shown
no unusual side effects, with only flu symptoms, headaches, asthenia
or soreness in the area of inoculation. With reference to the Pfizer
vaccine, on 28 January 2021, the EMA (European Medicines Agency)
published the first pharmacovigilance report on this vaccine, which
had been based on the available studies on the [then] current
vaccinations in Europe. The report had highlighted the substantial
safety of the Pfizer vaccine, noting that the benefits of vaccination
outweighed the risks. In their view, scientific data had also been
acquired regarding the efficacy of vaccines in reducing contagion.
90. The measures
put in place had thus not been unreasonable or disproportionate in
relation to the legitimate aim pursued. The measures imposed on the
applicants had not definitively affected their working position, as
they were limited to the period of the health emergency and had been
terminated at the latest on 1 October 2022. They, moreover, had had
no effect for disciplinary or social security purposes. Furthermore,
the reduction in the payment, in some cases, or the non-payment, in
other cases, of the allowance for socially useful activities was a
consequence of the failure of the applicants to perform, in whole or
in part, the socially useful activities on which the payment of that
allowance depended. More globally, the reduction of their income was
just a consequence of the impossibility to carry out their usual
functions because of a force-majeure situation, and their decisions
in that respect. In a nutshell, with Law no. 107/2021, the
legislator, having to strike a prudent and correct balance between
the protection of collective health and the rights of each
individual, had undoubtedly deemed the former to prevail as had also
been confirmed by the Court in its case-law.
The Court’s
assessment
General principles
91. To
determine whether an interference entailed a violation of Article 8
of the Convention, the Court must examine whether it was justified
under the second paragraph of that Article, that is, whether the
interference was “in accordance with the law”, pursued one or
more of the legitimate aims specified therein, and to that end was
“necessary in a democratic society” (see Vavřička
and Others, cited above,
§ 265). An interference will be considered “necessary in a
democratic society” for the achievement of a legitimate aim if, it
answers a “pressing social need” and, in particular, is
proportionate to the legitimate aim pursued (see Boffa,
cited above, § 4 in fine, and Vavřička and
Others, cited above, § 273).
92. The
Contracting Parties, in accordance with the principle of
subsidiarity, have the primary responsibility to secure the rights
and freedoms defined in the Convention and the Protocols thereto, and
in doing so they enjoy a margin of
appreciation, subject to the supervisory jurisdiction of the Court.
Because of their direct knowledge of their society and its needs, the
national authorities are in principle better placed than the
international judge to evaluate local needs and conditions and to
decide what is in the public interest (see, among many other
authorities, Hatton and Others v. the United Kingdom [GC],
no. 36022/97, § 97, ECHR 2003‑VIII; Dickson v. the
United Kingdom [GC], no. 44362/04, § 78, ECHR 2007-V;
and Vistiņš and Perepjolkins v. Latvia [GC], no.
71243/01, § 98, 25 October 2012). In
particular, healthcare policy matters come within the margin of
appreciation of the national authorities, who are best placed to
assess priorities, use of resources and social needs. In this field,
the Court has already had occasion to state that the margin of
appreciation afforded to the States must be a wide one (see
Communauté genevoise d’action syndicale (CGAS), cited
above, § 160, and Vavřička and Others, cited above,
§§ 274 and 280).
Application to the
present case
93. The Court
notes that none of the arguments brought to its attention are capable
of putting into question the lawfulness of the measures put in place,
which was also confirmed by the Constitutional Court.
94. With regard
to the aims pursued by those measures, as argued by the Government
and as recognised by the Constitutional Court, the objective of the
measures was to protect public health and maintain adequate safety
conditions in the context of a pandemic which posed a serious risk to
the population at large. The Court has already had occasion to note
that the Covid‑19 pandemic was liable to have very serious
consequences for health (see Terheş v. Romania (dec.),
no. 49933/20, 13 April 2021, and Fenech v. Malta,
no. 19090/20, § 96, 1 March 2022). As noted by the Constitutional
Court, under Article 2 of the Convention member
States have a positive obligation to take appropriate steps to
safeguard the lives of those within their jurisdiction.
95. Indeed,
in relation to the Covid-19 pandemic the Court did not exclude that
individuals could be victims of an alleged violation of Article 2
upon substantiating that in their own circumstances the acts or
omissions of the State have or could have put their life at real and
imminent risk (see Fenech,
§ 104, cited above).
In a prison context, the Court also held that given the nature of
Covid-19, its well-documented effects, as well as the fact that it is
easily transmitted from one person to another (via
droplets or airborne particles containing the virus), in order to
protect physical well-being of vulnerable individuals, the
authorities had the obligation to put certain measures in place aimed
at avoiding infection. It had also considered that the passage of
time brought along extended scientific knowledge of the virus as well
as relevant responses (both through vaccinations and medical
treatment). All those factors had made it possible for
Governments to adapt their policies and protocols to the changing
circumstances (ibid., §§ 129‑30).
96. There
is 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, pursued the legitimate aim
of the protection of health and the protection of the rights and
freedoms of others.
97. The Court
notes that on 31 December 2020 WHO validated the first anti-Covid-19
vaccine through the emergency use procedure. On 5 May 2023, following
a mass vaccination campaign (more than 13 billion vaccine doses
administered worldwide) which had
made it possible to contain the effects of the disease, WHO
lifted the alert classifying Covid-19 as a public‑health
emergency of international concern. By
that date, more than 766 million cases of Covid-19 infection and
almost 7 million deaths had been recorded worldwide (see
Communauté genevoise d’action syndicale (CGAS), cited
above, §§ 17-18, and the references therein). The Court has already
considered that that situation was to be characterised as an
“exceptional and unforeseeable context” (see Terheş,
and Fenech, § 96, both cited above).
98. It is in that
context, and without the benefit of hindsight, that the Court must
determine whether the measures imposed on the applicants were
necessary in a democratic society.
99. The
applicants argued that, as unvaccinated persons, they did not pose a
higher risk to others than vaccinated persons. The Constitutional
Court in San Marino found otherwise (see paragraph 16
above). The Court observes that on
the material available at the time, the Parliamentary Assembly of the
Council of Europe considered that “Vaccination
and recovery from past infection may well reduce the risk of
transmission, but the extent and duration of this effect are
currently uncertain” (see
paragraph 27 above).
However, while the applicants’ submissions are based to a
large extent on that argument, the Court need not determine that
question. This is so because it is
undisputable that unvaccinated persons (which was the situation of
all persons prior to the arrival of the vaccine) were and remained,
both susceptible to the infection and in a position to contaminate
and spread the virus, which was actively circulating at the time
(2021-2022). Thus, the maintenance of protective measures in respect
of the entire population, including the applicants, and particularly
the vulnerable population dependent on health and socio-health
facilities continued to pursue a pressing social need, at the time
when the impugned measures were put in place, which was before 5 May
2023.
100. Further, the
Court cannot ignore that the impugned law was a result of a global
reduction of restrictive measures, in the light of the availability
of vaccination in 2021, which became necessary to avoid the world
coming to a standstill and further economic decline. Thus,
the Court considers that even if the effectiveness of vaccination in
limiting contagion was still dubious, it was not unreasonable to
alleviate measures in respect of vaccinated persons who themselves
were less at risk, while maintaining them for the applicants who,
apart from certainly posing a risk to others, also remained
themselves at risk of infection and serious consequences on their
health. Indeed, the
applicants did not dispute that vaccination was effective in terms of
diminished symptoms, thus implicitly that unvaccinated people were
more vulnerable to serious consequences of the disease (a
factor already scientifically established at the time as admitted by
the applicants, see paragraph 83
above). Moreover, besides concerns for the applicants’ own health,
it also cannot be ignored that in the likely event that the
applicants fell ill, their sick-leave absence – which was possibly
long-term in the event of serious symptoms – would also have been a
burden on the State services, particularly in one of the most
important sectors, namely health and socio‑health care, which
had been particularly solicited at the time.
101. As to
whether a fair balance has been reached between the above‑mentioned
public interests and the individuals’ rights under Article 8
concerning their employment, the Court observes that the applicants
have been affected by one or a combination of the following measures
complained of: suspension without pay where they refused to carry out
socially useful activities; undertaking community service in exchange
for an allowance proportionate to the hours worked (but not exceeding
EUR 600 per month); or relocation to vacant posts in the public
administration at the same pay or at a lower pay level than they were
entitled to prior to the transfer (see the appended table for
details). All these measures were temporary and lasted between a
minimum of less than two weeks and a maximum of fifteen months; in
the majority of cases the measures came to an end in less than seven
months because the applicants either recovered from Covid-19
infection, got vaccinated, were transferred permanently or their
contracts came to an end.
102. Indeed, in
relation to the implication of these measures on the applicants, the
latter did not explain in what way they had been emotionally affected
by them, or in what way their dignity had been affected. Given that
the vaccination was voluntary, and the applicants were free not to
take it – an opportunity which they availed themselves of – in
reaching the relevant fair balance it was solely the applicants’
financial interests which the State had to balance against the
momentous competing interests of the community as a whole.
103. In so far as
at the applicants referred to the financial repercussions which they
had suffered, by relying on their non-pecuniary just satisfaction
claims, the Court observes that they had suffered financial losses
varying from around EUR 500 to around EUR 16,000 (with two
exceptions, the seventh and twenty-fourth applicants, amounting to
around EUR 26,000 and EUR 74,000 respectively – which in the latter
case the Government claimed to be EUR 60,000) (see the appended table
for details). The Government challenged parts of those calculations
for some of the applicants, but the Court considers that any
discrepancies are not sufficiently consequential to be determined at
this stage. Indeed, the applicants failed to set out any argument as
to how such a reduction in their salary, or no salary at all (where
they chose to not to undertake the voluntary work option) had
worsened the material well-being of each applicant and their
respective families.
104. In this
connection the Court notes that – always on the sole basis of the
sums as set out by the applicants, which remained challenged by the
Government – the losses allegedly incurred by some of the
applicants amounted to a few hundred euros (see, for example, the
second and eight applicants). While it is true that for the others it
was significantly more substantial, the Court observes that with one
exception (the ninth applicant) the applicants having suffered the
biggest losses (around and over EUR 10,100) occurred where the
applicants refused to undertake any socially useful work whatsoever
(see, for example, the seventh and twenty-fourth applicants) or for a
substantial amount of time (see, for example, the first, sixth and
twenty-first applicants). The applicants presented no justification
for their refusal to undertake the socially useful activities in
cultural institutes, or other sectors, offered to them. In the
Court’s view it could not be expected of individuals to continue to
receive a pay when refusing to undertake any work whatsoever.
105. As for the
majority of the applicants, they were relocated for at least part of
the time and continued to receive a pay in exchange for their
services in another post, albeit, sometimes at a lower salary and/or
received allowances in exchange for the hours of socially useful
activities performed according to the needs available or their choice
in this respect. Except for the ninth applicant, none of these
applicants, who actually performed work for a substantial amount of
time, lost more than EUR 10,100.
106. There is no
denying that the Covid-19 pandemic demanded adaptation and special
measures to counteract its effects, it nonetheless caused significant
and even huge financial losses, as well as an increase in
unemployment, in various sectors, businesses and industries. The
Court considers that such losses are an unavoidable consequence of a
global pandemic and the exceptional and unforeseeable context States
found themselves in at the relevant time.
107. Moreover,
the Court observes that the State of San Marino had put forward a
number of possibilities, and that the measures ultimately applied to
each applicant had been dependent on the possibilities of the
services within which they worked, or any other needs in the public
sector, as well as their own choices in that regard.
108. In view of
the above and recalling that, in adopting legislation intended to
strike a balance between competing interests, States
must in principle be allowed to determine the means which they
consider to be best suited to achieving the aim of reconciling those
interests (see Vavřička and Others, cited
above, § 273), the Court considers that the choice of the San Marino
legislature to apply a graduated number of measures effecting
employment 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, including
the applicants themselves, and the rights and freedoms of others, was
justified and stood in a reasonable relationship of proportionality
to the legitimate aims pursued by the respondent State. It
thus cannot be said that the latter exceeded its wide margin of
appreciation in health care policy matters.
109. It follows
that there has been no violation of Article 8 of the Convention.
ALLEGED VIOLATION
OF ARTICLE 14 AND ARTICLE 1 OF PROTOCOL No.
12
110. The
applicants further complained under Article 14 of the Convention and
Article 1 of Protocol No. 12 to the Convention that according to
Section 8 of Law no. 107/2021 only vaccinated persons could
continue pursuing their professions in their posts and that Sections
2 and 6 of Law no. 107/2021 provided special liberties from
restrictions only to vaccinated persons. This in their view
constituted discriminatory treatment, contrary to Article 14 of the
Convention and Article 1 of Protocol No. 12, which read as follows:
Article 14
“The enjoyment of the rights
and freedoms set forth in [the] Convention shall be secured without
discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other
status.”
Article 1 of Protocol No.
12
“1. The enjoyment of any
right set forth by law shall be secured without discrimination on any
ground such as sex, race, colour, language, religion, political or
other opinion, national or social origin, association with a national
minority, property, birth or other status.
2. No one shall be
discriminated against by any public authority on any ground such as
those mentioned in paragraph 1.”
The parties’
observations
The applicants
111. The
applicants submitted that Law no. 107/2021 had been discriminatory in
respect of unvaccinated healthcare workers in so far as its Section 8
provided for them be moved and/or suspended from their service (with
the relevant conditions mentioned above), and its Sections 2 and 6
had given preferential treatments to vaccinated people, exempting
them from the restrictions: such as respecting the distancing
requirement, the ban on gatherings and the use of face masks in
public spaces.
112. They
considered that no legal or scientific reason could support this
difference of treatment. In particular, the need to protect public
health could not constitute valid justification as there was no
certainty that those who got vaccinated were immune and not
contagious: rather, the scientific community emphasised that
vaccinated people might contribute to the spread of the virus, with
the possibility of infection and contagion. It was for that reason
that all the relevant bodies had recommended continued prudent norms
even after receiving the vaccine. The applicants reiterated their
submissions set out above (see paragraph 83).
113. The
objective confirmation that the different treatment between
vaccinated and unvaccinated persons was not justified, could also be
seen through the data of contagions recorded by the SSI of San
Marino, which demonstrated that compared to 2020, in 2021 the number
of infections doubled. Comparing the update statements of 13 December
2021 and 12 December 2020, it transpired that over the same
period in 2020 there had been 147 new cases detected and 269 active
positive cases, while in 2021 there had been 375 new cases and 528
active positive cases.
The Government
114. The
Government submitted that Parliament had carefully assessed the
evolution of the epidemic curve and, as a result of the massive
vaccination campaign that started in February 2021, had introduced
Law no. 107/2021 with the aim of gradually loosening the restrictive
measures previously imposed, establishing, in the areas of lower
risk, a differentiated treatment for vaccinated and unvaccinated
persons. This different regime had been introduced on the basis of
the scientific evidence available during the relevant period which
proved the effectiveness of the vaccination campaign, the reduced
infections as a result of vaccination and in consequence the reduced
possibility of vaccinated persons to spread the virus. Moreover, the
legislator did not take into account only the subjective
characteristics of the addressees of the rule, i.e. their status as
vaccinated or unvaccinated persons, but also the objective context of
its application. The loosening of preventive measures had thus been
adapted to the context, including the workplace, in which the rules
were to be implemented.
115. As to the
impugned Section 8, the Government submitted that in the health and
social health sector contact with people who were ill and therefore
particularly vulnerable and fragile, and whose health had to be
protected from the risk of possible Covid-19 infection through
stricter pharmacological (vaccination) and non-pharmacological
(masks) prevention measures, was very high. This could not be said of
other contexts such as those concerned by Section 2 and 6 of Law no.
107/2021 where the diffusion of the virus entailed a lower risk
compared to the health context.
116. As noted by
the Constitutional Court those measures had been justified by the
principle of community protection, which, in order to protect the
health of all citizens, imposed the temporary and limited restriction
of the rights of unvaccinated persons. Moreover, no legal text had
stated that vaccinated persons were automatically immune. The basis
for the differentiation with unvaccinated persons had been the
statistical data corroborated by official science and health
institutions, according to which vaccinated persons had a much lower
risk of serious illness and/or death than unvaccinated persons.
Likewise, vaccinated persons carried the infection less than
unvaccinated persons.
117. In relation
to the numerical data set out by the applicants the Government
submitted that what was relevant was not the number of contaminations
in 2021 but the reduced number of deaths and hospitalisations
following vaccination.
The Court’s
assessment
The complaint in
respect of Section 6 of Law no. 107/2021
118. The
Government have not raised any objection in this respect. However,
the Court has already held that it is not prevented from examining of
its own motion an applicant’s victim status since it concerns a
matter which goes to the Court’s jurisdiction (see Buzadji
v. the Republic of Moldova [GC], no.
23755/07, § 70, ECHR 2016 (extracts); Orlandi and Others v.
Italy, nos. 26431/12 and 3 others, § 117, 14 December
2017; and Unifaun Theatre Productions Limited and Others v. Malta,
no. 37326/13, § 64, 15 May 2018).
119. The Court
reiterates that, in order to be able to lodge an application in
accordance with Article 34 of the Convention, an individual must be
able to show that he or she was “directly affected” by the
impugned measure (see Burden v. the United Kingdom [GC],
no. 13378/05, § 33, ECHR 2008, and Communauté genevoise d’action
syndicale (CGAS), cited above, § 105). The Court has
consistently held in its case-law that the Convention does not
provide for the institution of an actio popularis and that its
task is not normally to review the relevant law and practice in
abstracto, but to determine whether the manner in which they were
applied to, or affected, the applicant gave rise to a violation of
the Convention (see, among other authorities, Beizaras and
Levickas v. Lithuania, no. 41288/15, § 75, 14 January
2020; Roman Zakharov v. Russia [GC], no. 47143/06,
§ 164, ECHR 2015; and N.C. v. Italy [GC], no.
24952/94, § 56, ECHR 2002‑X). The Convention does not permit
individuals or groups of individuals to complain about a provision of
national law simply because they consider, without having been
directly affected by it, that it may contravene the Convention (see
Verein KlimaSeniorinnen Schweiz and Others v. Switzerland
[GC], no. 53600/20, § 460, 9 April 2024, and Centre for
Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC],
no. 47848/08, § 101, ECHR 2014).
120. The Court
notes at the outset that, although the burden is on the applicants to
produce reasonable and convincing evidence as to their victim status
(see Mittendorfer v. Austria (dec.) no. 32467/22, § 31,
32467/22, 4 July 2023) at no point in their applications or
submissions have the applicants explained in what way they had been
affected by Section 6 of Law no. 107/2021 which concerned
schools. Indeed, none of them claimed to be students or to having
worked in a school at the time when the provision was in force. It
follows that the applicants cannot be considered as having been
affected by the impugned provision of the law (compare Zambrano,
cited above, § 43).
121. Accordingly,
this part of the complaint must be declared inadmissible pursuant to
Article 35 §§ 3 (a) and 4 of the Convention for
being incompatible ratione personae
with the provisions of the Convention.
The complaint in
respect of Sections 2 and 8 of Law no. 107/2021
General principles
122. The Court
notes that whereas Article 14 of the Convention prohibits
discrimination in the enjoyment of “the rights and freedoms set
forth in [the] Convention”, Article 1 of Protocol No. 12 extends
the scope of protection to “any right set forth by law” (see
Sejdić and Finci v. Bosnia and Herzegovina [GC], nos.
27996/06 and 34836/06, § 53, ECHR 2009), and beyond, in so far as
its paragraph 2 further provides that no one may be discriminated
against by a public authority (see Savez crkava “Riječ života”
and Others v. Croatia, no. 7798/08, § 104, 9 December
2010). According to the Explanatory Report on Article 1 of Protocol
No. 12, the scope of protection of that Article concerns four
categories of cases, in particular where a person is discriminated
against:
“i. in the enjoyment of any right
specifically granted to an individual under national law; ii. in
the enjoyment of a right which may be inferred from a clear
obligation of a public authority under national law, that is, where a
public authority is under an obligation under national law to behave
in a particular manner; iii. by a public authority in the
exercise of discretionary power (for example, granting certain
subsidies); iv. by any other act or omission by a public
authority (for example, the behaviour of law enforcement officers
when controlling a riot).” Therefore, in order to determine whether
Article 1 of Protocol No. 12 to the Convention is
applicable, the Court needs to establish whether the applicants’
complaints fall within one of the four categories mentioned in the
Explanatory Report (ibid., §§ 104-05).
123. The notion
of discrimination prohibited by both Article 14 of the Convention and
Article 1 of Protocol No. 12 is to be interpreted in the same manner,
namely, “discrimination” means treating differently, without an
objective and reasonable justification, persons in similar situations
(see Sejdić and Finci, cited above, § 55).
124. Article
14 does not prohibit all differences in treatment but only those
differences based on an identifiable, objective or personal
characteristic, or “status”, by which persons or groups of
persons are distinguishable from one another (see Carson
and Others v. the United Kingdom [GC],
no. 42184/05, §§ 61 and 70, ECHR 2010, and Kjeldsen,
Busk Madsen and Pedersen v. Denmark,
7 December 1976, § 56, Series A no. 23). It lists specific
grounds which constitute “status” including, inter
alia, sex, race and
property. However, the list set out in Article 14 is illustrative and
not exhaustive, as is shown by the words “any ground such as” (in
French “notamment”)
(see Engel and Others
v. the Netherlands,
8 June 1976, § 72, Series A no. 22, and Carson
and Others, cited
above, § 70) and the inclusion in the list of the phrase “any
other status” (in French “toute
autre situation”).
The words “other status” have generally been given a wide meaning
(see Carson and Others,
cited above, § 70) and their interpretation has not been limited to
characteristics which are personal in the sense that they are innate
or inherent (see Clift
v. the United Kingdom,
no. 7205/07, §§ 56-58, 13 July 2010; Kiyutin
v. Russia, no. 2700/10, § 56, ECHR 2011; and the Advisory
opinion on the difference in treatment between landowners’
associations “having a recognised existence on the date of the
creation of an approved municipal hunters’ association” and
landowners’ associations set up after that date [GC], request
no. P16-2021-002, French Conseil d’État, § 72, 13 July
2022). The same holds true for the purposes of Article 1 of Protocol
No. 12.
Application to the
present case
125. The Court
considers that even assuming that any of the two provisions are
applicable in the present case and particularly that a person’s
unvaccinated status can be considered as falling under “any other
status”, the complaint is inadmissible for the following reasons.
126. The Court
has already held, at paragraph 108
above, in relation to Section 8 of the impugned law, that the choice
of the San Marino legislature to apply a graduated number of measures
effecting employment 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, including the applicants themselves,
and the rights and freedoms of others, was
justified and stood in a reasonable relationship of proportionality
to the legitimate aims pursued by the respondent State and that it
cannot be said that the latter exceeded its wide margin of
appreciation in health care policy matters.
127. For the same
reasons the Court considers that any difference in treatment as a
result of Section 8, as well as of Section 2 of the impugned law
whose implications were even less intense for the applicants, was
objectively and reasonably justified. Indeed, the Court
considers that mask-wearing and protective distancing (referred to
under Section 2 of the impugned law) as temporary measures during a
global pandemic, are measures of limited intensity, while the
applicants have not indicated what mass gatherings they wished to
attend and were prohibited from so doing (see in this connection the
Court’s reasoning at paragraph 120
above).
128. Furthermore,
the Court notes that, as admitted by the applicants, their complaint
in relation to Section 2 of Law no. 107/2021 concerns a preferential
treatment given to vaccinated persons, in the framework of the
alleviation of restrictive measures during the Covid-19 pandemic. The
Court has already held at paragraph 100
above that it was not unreasonable
to alleviate measures in respect of vaccinated persons who themselves
were less at risk, while maintaining them for the applicants
who remained themselves at risk of infection and serious consequences
to their health. Additionally, a
limited preferential treatment (see the preceding paragraph) was
objectively and reasonably justified in so far as such preferential
treatment encouraged the
uptake of vaccination allowing for the Covid-19
pandemic to be durably under control
(see paragraph 97
above with reference to Communauté genevoise d’action syndicale
(CGAS), cited above, §§ 17-18).
Reiterating that the margin of appreciation afforded to the States in
health care policy is a wide one (see Communauté genevoise
d’action syndicale (CGAS), cited above, § 160, and Vavřička
and Others, cited above, §§ 274 and 280) and bearing
in mind the temporary nature of the measures put in place, their
limited intensity, and the exceptional context in which they took
place, the legislature’s policy choice in the alleviation of
restrictive measures in respect of vaccinated persons cannot be
considered discriminatory.
129. It follows
that this part of the complaint must be rejected as manifestly
ill‑founded, in accordance with Article 35 §§ 3 and 4 of the
Convention.
FOR THESE REASONS,
THE COURT, UNANIMOUSLY,
Declares the complaints concerning Article 8 in respect of
all but the twenty-fifth applicant admissible and the remainder of
the application inadmissible;
Holds that there has been no violation of Article 8 of the
Convention.
Done in English, and notified in writing on 29
August 2024, pursuant to Rule 77 §§ 2 and 3
of the Rules of Court.
Liv
Tigerstedt Ivana Jelić
Deputy Registrar President
