FIRST SECTION
CASE OF PASQUINELLI AND OTHERS v. SAN MARINO
(Application no. 24622/22)
 
 
JUDGMENT
 
Art 8 • Private life • Employment-related measures imposed on healthcare and social health workers for refusing to be 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 healthcare policy matters not exceeded
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
29 August 2024
 
FINAL
 
29/11/2024
 
This judgment has become final under 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 of the Republic of 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 healthcare and social health workers who refused to be vaccinated against COVID-19 (SARS-CoV-2) (hereinafter “COVID-19”). As a consequence, they were affected by one or more measures, mainly with regard 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 to THE CASE
5. In May 2021 the applicants – who are healthcare and social health workers employed by the Social Security Institute (hereinafter “the SSI” – a public body responsible for the management of the healthcare and social health sector) – were urged by the SSI to be vaccinated against COVID‑19 pursuant to section 14 of Law no. 85/2021 concerning the vaccination of public-health and social health personnel. The applicants declined that invitation. 6. The provisions contained in the above-mentioned Law were amended, pending its implementation, by subsequent legislation, namely 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. Section 8 of Law no. 107/2021 provided that in the event that healthcare and social 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 how the service was organised 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 antigen 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 vacant job positions in other offices of the public administration with the right to receive the corresponding salary, or to use up ordinary and other leave accrued in the year 2020, or, as an extreme alternative, if the other options were not viable or were not accepted, 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 of retaining the full amount of any family allowances received. 8. Suspension from service with the relevant allowance also meant that there was an obligation for the worker to perform socially useful activities, subject to the proportionality of the hours worked to the amount of the above-mentioned allowance; failure to do so would result in the loss of the right to receive the allowance. 9. In the case of healthcare and social health personnel who could not be vaccinated owing 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 contact with users, personnel who refused to be vaccinated could exercise their right to choose from among the options set out in section 8(5), (6) and (7) of Law no. 107/2021. The measures that were applied to each of the applicants in the present case 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 in breach of the principle of equality and the corresponding 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 on Human Rights (“the Convention”) and Protocol No. 12 thereto, and the Universal Declaration of Human Rights. It was argued that there was no reason, either legal or scientific, that could support the difference in 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 and pointing out that vaccinated persons could still contribute to the spread of the virus, so adopting a prudent approach even after receiving the vaccine was still recommended. It was further argued that section 8 of Law no. 107/2021 constituted an abusive interference by the public authorities in the private sphere of healthcare workers and that it violated not only the principle of equality but also the right to work, the right to self-determination and the right to health, as enshrined in the San Marino Constitution, the Convention and Protocol No. 12 thereto, and the Universal Declaration of Human Rights. Moreover, whereas the vaccines were experimental and, furthermore, received a “conditional marketing authorisation” (under Commission Regulation (EC) No. 507/2006 of 29 March 2006 on the conditional marketing authorisation for medicinal products for human use falling within the scope of Regulation (EC) No. 796/2004 of the European Parliament and of the Council, OJ 2006 L 92, p. 315), the provisions of section 8 of Law no. 107/2021 also violated the fundamental principles enshrined in the Nuremberg Code, the Declaration of Helsinki, the Oviedo Convention, and the Universal Declaration on Bioethics and Human Rights” (all of which are part of the San Marino legal system pursuant to section 1 of Law no. 59/1974). 12. The applicants who had San Marinese nationality participated in this procedure, but not those of Italian or Moldovan nationality, it being solely open to citizens of San Marino eligible to vote (see paragraph 21 below). 13. By means of judgment no. 11 of 2 November 2021, the Constitutional Court declared the application admissible and, on the merits, confirmed the legitimacy of the impugned law and its compatibility with the San Marino Constitution, the Convention and other instruments. 14. In particular, it considered that according to the case-law of the European Court of Human Rights, although the right to health was not, as such, among the rights guaranteed under the Convention and the Protocols thereto, 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 might 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 Organization (WHO) had issued a statement declaring COVID‑19 a public health emergency of international concern (PHEIC) and on 11 March 2020 it had declared it a pandemic. While various States had put in place emergency measures, the European Parliament had 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 its being transmitted owing to its imperceptibility until symptoms appeared, or until the infected person became aware of the contagion – the principles of prevention and precaution necessarily came into play; nevertheless, any measures put in place had to reach a fair balance. 15. As to the argument put forward concerning the “legitimacy of the obligation to be vaccinated”, the Constitutional Court considered that the law at issue had been enacted in extraordinary circumstances of necessity and urgency. Referring to the European Court’s case-law on the possible restriction of rights under Articles 8, 9, and 10 of the Convention, the Constitutional Court observed that such restrictions were possible for the protection of public health, a factor which certainly came into play in a global pandemic. The provisions put in place in San Marino had not made it obligatory to be vaccinated but had provided for a pre-specified and limited difference in treatment between vaccinated and unvaccinated persons. It was to be noted that according to the Court’s 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 those who were vulnerable. It followed that, in relation to serious diseases, a State was even entitled to make vaccination obligatory and to apply sanctions in the event of failure to fulfil that 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 who were 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. Furthermore, “vaccinated persons spread the infection less than unvaccinated persons”. Given that the Court’s case-law had approved of imposed vaccination, and of consequent sanctions in the absence of vaccination, for the collective good, it was evident that the same would apply to simple differences in treatment. In San Marino there was no obligation to be vaccinated against COVID-19 (thus, there was no issue relating to consent or self‑determination), merely a recommendation to that effect, and any measures applied to those who chose not to do so had been proportionate to the aim pursued. As to the arguments raised relating 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 they were ineffective or should not be administered. 17. As regards the proportionality of the measures, it was important to point out that the government (Congresso di Stato) had gradually lifted any restrictions in line with the progress of the pandemic in order to lessen 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 at such a crucial time. The European Union texts relied on by the claimants did not lead to any different conclusions. Moreover, 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 the measures 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 of making 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 to strike a fair balance between the right to work and the right to health of persons using the health services. That group of persons included vulnerable individuals who required health services and who could not choose to avoid contact with healthcare personnel. The more fundamental interest of public health prevailed over a temporary restriction of the right to work of single individuals who refused to be vaccinated. Indeed, every individual freedom had its limits in the duty of solidarity towards the community. 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 Court had already had occasion to note that the COVID‑19 pandemic was 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 Battistini, Ms Gabotti, Mr Vignali and Ms Felici), who had been suspended from service, lodged an application with the judge of first instance (Commissario della Legge), exercising administrative jurisdiction, to set aside the suspension measure applied to them. The applications lodged by Ms Battistini, Ms Gabotti and Mr Vignali were declared inadmissible on procedural grounds (relating to the authority form) 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 as derived 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 lodged 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, review 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 jurisdiction, excess of authority or violation of the law, against acts or measures adopted by institutional bodies of the public authorities 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 provisions of the law affording 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 ease the measures in place for managing the COVID-19 epidemic, reads in so far as relevant as follows:
Section 14 (Vaccination for healthcare and social 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 SARS-CoV-2 infection by healthcare and social health personnel working at the Social Security Institute (SSI) and publicly owned healthcare and social health facilities, under any contractual arrangement, 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 healthcare and social health personnel serving at the SSI and publicly owned healthcare and social health facilities under any contractual arrangement. 3. Within five days of the date of receipt of the list referred to in subsection 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 the relevant date. 4. Upon receiving the report referred to in subsection 3, the Single Booking Centre shall formally urge unvaccinated people to be vaccinated against SARS-CoV-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 acknowledgment of receipt. The notification shall be deemed to have been effected on the date of delivery of the registered letter to the addressee’s home address, and, in any event, 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 or 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 or she shall be placed on compulsory unpaid leave of absence, which shall not be counted for the purposes of the leave referred to in section 45 of Law no. 41 of 22 December 1972 and subsequent amendments. 8. As an alternative to the leave of absence referred to in subsection 7, the unvaccinated person may use ordinary and other leave, and overtime work hours accrued in 2020. 9. If the person is vaccinated, the leave referred to in subsection 7 shall cease and the person shall be entitled to resume the employment previously held. 10. If failure to be vaccinated as referred to in subsection 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 subsection 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 ease the measures in place for managing the COVID-19 epidemic – read in so far as relevant as follows:
Section 1 (Purpose)
“1. The objective of this Decree-Law shall be to continue the gradual easing 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 trend of infections. 2. Where not in conflict with this Decree-Law and unless otherwise provided for in the following sections, 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. on 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 or her household; or (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 subsection 1 (a) and (b). 3. The requirement referred to in subsections 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; and (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 hygiene and public-health 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 public-health and hygiene 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 public-health and hygiene 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 that 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 shall be 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 flow 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 section by issuing a special circular.”
Section 8 (Vaccination for healthcare and social 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 healthcare and social health personnel working at the Social Security Institute and publicly owned healthcare and social health facilities, under any contractual arrangement, to be voluntarily 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 section 14(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 acknowledgment of receipt. Notification shall be deemed to have been effected on the date of delivery of the registered letter to the addressee’s home address, and, in any event, on the date when the postal officer declares it undelivered. 3. If the expressly invited worker does not show up for vaccine administration, the Single Booking Centre shall forward his or 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 antigen swabs every 48 hours at his or her own expense at a cost at the SSI of 7 euros per swab. 5. If it is not possible to proceed in accordance with subsection 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 posts 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 authorities 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 or she shall receive the salary provided for the post that he or 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 to which he or she has been reassigned. 6. If it is not possible to assign the person who has not been voluntarily vaccinated to alternative duties and he or she does not wish to avail himself or herself of the options for reassignment referred to in subsection 5 or of the possibility of using up ordinary or other leave or recovering overtime work hours, as referred to in subsection 8, the SSI Head of Personnel shall temporarily suspend him or her from service. The suspension shall not be relevant for disciplinary purposes and shall not result in the termination of the 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 subsection, is temporarily suspended from service shall be entitled to a suspension allowance of EUR 600 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. Employees who are granted this allowance shall be called upon to perform socially useful activities specified by the authorities 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. 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 subsections 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 subsections 4, 5, and 6 shall cease, and the person shall be entitled to resume the activity previously performed. 10. If the failure to be vaccinated as referred to in subsection 1 is consequent to a certified health risk, in relation to specific clinical conditions documented and attested by a general practitioner, and it is not possible to proceed in accordance with subsections 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 healthcare and social health personnel, section 17 of the same Law maintained the measures in place in respect of this sector of personnel, specifying that failure to be 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. Parliamentary Assembly of the Council of Europe (PACE) Resolution 2361 (2021) on COVID-19 vaccines: ethical, legal and practical considerations, adopted on 27 January 2021, reads in so far as relevant 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 pre-existing 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 SARS-CoV-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. PACE Resolution 2383 (2021) on COVID passes or certificates: protection of fundamental rights and legal implications, adopted on 22 June 2021, reads in so far as relevant 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 (OJ 2021 L 211, p. 1) 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 an abuse of the right of application in so far as the applicants had omitted to mention that four of them had instituted administrative proceedings. 30. In the alternative, they submitted that none of the applicants had exhausted domestic remedies with reference to administrative proceedings; most of the applicants had not instituted such proceedings, and those who had had not appealed against the decisions to the administrative judge of appeals, nor had they attempted to lodge a fresh application, or requested that court to suspend the measure temporarily pending the outcome of the proceedings. Moreover, Ms Felici had withdrawn her application to the administrative court. 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 the applicants’ complaint and its confirmation of the legitimacy of the impugned law, as well as of the compatibility of the law with the Constitution and the Convention – the applicants could have challenged the impugned law on other grounds, such as “violation of the law, 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, there was no use in challenging the suspension measures arising from that law in the administrative courts. The omission to pursue that avenue was therefore irrelevant to the application. Given that the ordinary judges were bound by the findings of the Constitutional Court with regard to the law, any applications to the administrative courts had no prospect of success. Moreover, administrative review only concerned “defects of legality” (vizi di legittimità) – in terms of lack of jurisdiction, excess of authority and breaches of legislation – of an act issued by a body of the public administration that was not a law, whereas what the applicants were challenging was a law. Furthermore, contrary to what the Government alleged in paragraph 31 above, section 13 of Law no. 55/2003 provided that where a question of constitutional legitimacy had been raised and settled in a direct way (that is, by a citizens’ petition lodged with the Constitutional Court), the same question could not be submitted again by the administrative judge as an incidental issue, by means of a referral. 33. The lack of any prospects of success was precisely the reason why Ms Felici had withdrawn her application to the administrative court. Furthermore, there was no doubt that she had been the victim of an alleged violation under Article 8 taken 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. The applicants contended that the only remedy that could have led to an examination of the legitimacy of the law had been an application to the Constitutional Court, and that the applicants who had had access to that remedy had indeed availed themselves of it, relying on the provisions of the Convention and putting forward arguments to the same effect on the basis of domestic law in a manner which left no doubt that the same complaints that had been subsequently put forward before the 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 the 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, it 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 used for exhaustion purposes, provided that it is directly accessible to litigants (see S.B. and Others v. Belgium (dec.), no. 63403/00, 6 April 2004, and contrast 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 a 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 the review (see Communauté genevoise d’action syndicale (CGAS), cited above, § 145). 37. Furthermore, 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, and Toniolo v. San Marino and Italy, no. 44853/10, §§ 34 and 38, 26 June 2012, and the cases 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, Article 35 § 1 cannot be interpreted in a manner which would require an applicant to inform the Court of his or her 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). 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 and Others v. Georgia (dec.), no. 26446/06, 23 June 2009; Kerechashvili v. Georgia (dec.), no. 5667/02, ECHR 2006‑V (extracts); and Řehák v. the Czech Republic (dec.), no. 67208/01, 18 May 2004). Similarly, an application can be rejected as abusive if applicants – despite their obligation under Rule 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 contrast 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 Protocol No. 12 thereto, and other domestic and international instruments. In that light, given that the Constitutional Court in San Marino may review the compatibility of legislation with provisions of superior legal force and abrogate them if necessary, an application to that court would in principle be a domestic remedy that must be used for exhaustion purposes. However, the Court observes that, in San Marino, access to the Constitutional Court is not directly available to individuals and so was not directly available to the applicants in the present case. Firstly, those among the applicants who were not voters of the electorate – namely the foreign applicants – had no access whatsoever to the procedure undertaken by the applicants with San Marinese nationality. Secondly, even the applicants with San Marinese 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); instead, they were required to collect 750 signatures to obtain such access, which therefore cannot be considered direct. It follows that the applicants in the present case were not required to lodge a complaint with the Constitutional Court, without prejudice to the Court’s right to take account of that court’s findings in line with the principle of subsidiarity, should it go on to examine the merits of the case. 40. The Court also finds it relevant to point out that whereas in San Marino an administrative court hearing the merits of a case has – either at the request of a party or of its own motion – the possibility of making a reference to the Constitutional Court, such an application cannot be a remedy whose use is required for exhaustion purposes 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 (contrast 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 the measures in question), and that court 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 (contrast Zambrano, cited above, § 27, where the French Constitutional Council did not rule 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 in accordance with 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 found that administrative proceedings had any prospects of success concerning the complaint brought before the 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 her application to the administrative court following the Constitutional Court’s 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 behaviour on the part of the four applicants who instituted such 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 the right 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 made at paragraph 43 above concerning the unavailability of remedies, the Court considers that it is necessary to examine the timeliness of the application lodged with it. In this connection, the Court points out that it is not open to it to set aside the application of the rule relating to time-limits 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 cases 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 an application with the Court. Article 4 of Protocol No. 15 has amended Article 35 § 1 to reduce the period from six to four months. In accordance with 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 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 amending the Convention, § 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 a 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, ECHR 2004‑II; and Çınar v. Turkey (dec.), no. 28602/95, 13 November 2003) 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 an application to 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 the fact 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 that were subsequently raised before the 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 should have been carried out beforehand by the domestic courts (see Communauté genevoise d’action syndicale (CGAS), § 161, and Zambrano, § 26, both cited above, in the specific context of the COVID‑19 pandemic). Furthermore, had the Constitutional Court upheld those arguments and struck down 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 Constitutional Court’s assessment serves as a valuable contribution to 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 or her complaint before his or her position in connection with the matter had 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 lodged within six months (the period 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 healthcare and social health workers – to be vaccinated against COVID-19 in accordance with section 8 of Law no. 107/2021 and the consequences of that obligation were 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 be vaccinated against COVID-19 (despite this vaccination being still experimental) and about their consequent suspension from their posts or other employment-related measures arising from section 8 of Law no. 107/2021. They argued 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 excessive measures, consisting of reassignment to another position, if possible, and suspension from service, without salary, with the only other alternative being to carry out socially useful activities in exchange for an allowance of EUR 600. They contended that both compulsory vaccination and restrictions relating to a profession amounted to interference for the purposes of Article 8 of the Convention. 53. The Government challenged the assertion that there had been an obligation to be vaccinated, as vaccination had, without exception, been purely on a voluntary basis for the entire population in San Marino. With reference to the specific healthcare and social health sector at issue in the present case, vaccination remained voluntary (contrary to the situation in, for example, Italy, Germany and France) and the refusal to choose that option merely led to suspension in extreme circumstances where no other measure was possible. 54. The Court observes that in Association X v. the United Kingdom (no. 7154/75, Commission decision of 12 July 1978, Decisions and Reports (DR) 14, p. 31), the European Commission of Human Rights considered that “voluntary vaccination” – that is, where States did not compel persons to be vaccinated, either directly or indirectly, by imposing sanctions on those who were not 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 had caused her to be paralysed) concerned a “recommended vaccination”, the Court fell short of characterising the vaccination as an interference and rejected 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 the 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 be vaccinated (that is, the law provided that vaccination was 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 that there was no provision allowing for vaccination to be forcibly administered). This was so on the basis that the applicants bore the direct consequences of non‑compliance with the vaccination duty (see Vavřička and Others v. the Czech Republic [GC], nos. 47621/13 and 5 others, §§ 263 and 293, 8 April 2021). In the case cited, the child applicants had been denied access to nursery school, and the parent applicant had been fined as a result of not vaccinating his children, both of which actions were found to be an interference with the right to respect for their 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 made one or more vaccinations compulsory, to those that made it a matter of legal duty (ibid., § 278). The Court considered that, where the view was taken that a policy of voluntary vaccination was not sufficient to achieve and maintain herd immunity, or herd immunity was not relevant owing to the nature of the disease, domestic authorities could reasonably introduce a compulsory vaccination policy in order to achieve an appropriate level of protection against serious diseases (ibid., § 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 (ibid., § 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 (ibid., § 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 thus falls to 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[eing] 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, owing to the consequences which ensued following the failure to be vaccinated. However, the Court notes that the law in the present case did not impose any statutory sanctions. In particular, failure to be vaccinated could in no way lead to a fine or other administrative sanction (see, conversely, Vavřička and Others, cited above, § 263), or to any disciplinary sanction. 60. Additionally, it did not lead to any automatic consequences for the applicants (such as non-admission to nursery school for all unvaccinated children, which in Vavřička and Others, cited above, §§ 264 and 294, the Court considered to be an interference for the purposes of Article 8 § 2). The impugned law in the present case, which was limited to healthcare and social health workers, only used “may” in relation to the 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 was 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 to be taken on the basis of 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 to be sanctions in disguise (contrast 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 2383 (2021) considered that the “severe” consequences, and not simply 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 the light of the above, the Court distinguishes the present case from Vavřička and Others (cited above, §§ 259-60), where it considered that the subject matter of the complaint under Article 8 was the vaccination duty and the consequences for 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 take up the optional vaccination, and of 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 included activities of a professional or business nature and, according to settled case-law of the Court, restrictions imposed on access to a profession could affect “private life”, as could the loss of employment. Likewise, dismissal from office had 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’s loss of employment resulted from something he or she had done in his or her private life (reason-based approach) or had an impact on private life (consequence-based approach). 67. The applicants contended that, in the present case, the interference had resulted from their choice not to be vaccinated, that is, from something they had done in their private lives. However, the interference had also impacted their private lives, because they had been 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 argued 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, including in view of their central role in responding to COVID‑19 infections 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 reassignment (if they had been reassigned) and their regular/usual salary (that is, 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 the applicability of Article 8 of the Convention. 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 which event the Court employs the reason-based approach) or – in certain cases – because of the consequences for private life (in which 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 (ibid., §§ 103-04, and the cases 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 her suspension was to start on 19 July 2021, according to the information supplied by the Government in their observations no measures under section 8 of Law no. 107/2021 were applied to her given that she voluntarily vaccinated herself on 21 July 2021. The applicant did not dispute that point in her observations in reply. 73. Consequently, 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 respect of her must be dismissed as incompatible ratione materiae with the Convention pursuant to Article 35 §§ 3 (a) and 4. 74. The remaining applicants (hereinafter “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; performance of community service in exchange for an allowance proportionate to the hours worked (but not exceeding EUR 600 per month); or reassignment to vacant posts in the public administration on the same or a lower pay rate 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 approximately fifteen months; in the majority of cases the measures lasted less than seven months because the applicants had either recovered from COVID-19, had been vaccinated, had been permanently transferred or their contracts had expired. 75. The Court must therefore answer the question whether these measures affected the applicants’ private life, rendering Article 8 applicable.
76.

Outcome for Article 8: no_violation