Strasbourg Observers

Pasquinelli and others v San Marino – The momentous competing interests of the community as a whole against healthcare workers refusing the COVID-19 vaccine

October 04, 2024

1. Introduction

On 29 August 2024, the European Court of Human Rights (ECtHR) delivered a judgement in Pasquinelli and others v. San Marino (24622/22) concerning COVID-19 (SARS-CoV-2) vaccines. The judgement, issued by the Court’s First Section, supplements the Court’s previous case law concerning COVID-19 vaccination and the pandemic in general (Communauté genevoise d’action syndicale (CGAS) v Switzerland (2023, GC), Le Mailloux v France (Dec., 2020), Terheş v Romania (Dec., 2021), Madgić v Croatia (Dec., 2022), Lörnic and others v Slovakia (Dec., 2022)).. Although the most challenging phases of the coronavirus pandemic are likely behind us (for now), in Council of Europe member states, the legal issues raised by the pandemic under the ECHR should be examined with future pandemics in mind.

In Pasquinelli, the Court found that the measures taken against social and healthcare workers who refused to take the COVID-19 vaccine did not violate Article 8 (right to respect for private and family life) of the European Convention on Human Rights (ECHR). In this blogpost, we will compare this  judgement  with the Court’s earlier ruling in the (non-COVID related) vaccination case of Vavřička and others v the Czech Republic (47621/13), and contextualise it by situating it in the Court’s broader pandemic related case law.

2. Overview of the facts

In San Marino, under the emergency legislation of 2021, social and healthcare personnel working directly with patients were to be vaccinated against COVID-19. Receiving the vaccine was not mandatory, but the law provided for measures that could be taken if an employee refused vaccination. The law allowed for work tasks to be reorganized or employees to be reassigned to vacant positions within public administration to minimise contact with patients and social welfare clients. Employees could also use their leave days or opt to take an antigen test every 48 hours. If these alternatives were not feasible or accepted, the last resort was temporary suspension from service, with monthly compensation, which in turn required employees to perform socially useful activities.

The government argued that the vaccination of employees was justified by the elevated risk of contracting COVID-19 associated with their work tasks because they worked closely with individuals whose health conditions made them particularly vulnerable to the virus. They also argued that the measures were justified by the need to ensure the continuity and adequacy of the social and healthcare system. Moreover, vaccination aimed to protect both the workers and the patients. A group of social and healthcare sector workers refused to be vaccinated, leading to the implementation of various temporary measures described above. The applicants argued that the mandate violated their right to respect for private and family life under Article 8 of the ECHR. They also claimed that differentiating between vaccinated and unvaccinated individuals was discriminatory and thus contrary to Article 14 (prohibition of discrimination) of the ECHR in conjunction with Article 1 of Protocol No. 12 to the Convention (general prohibition of discrimination). Before making its way to the ECtHR, the issue was addressed by the national constitutional court, which found that the emergency legislation fulfilled all elements of the proportionality test, especially considering the exceptional and serious nature of the events, and struck an appropriate balance between the right to work and the right to health of individuals using the healthcare services.

3. Summary of the judgment

The case at the ECtHR can be seen as twofold: firstly, the applicants argued that although vaccination for healthcare professionals was not obligatory per se, it was effectively mandatory in its nature, due to the possible sanctions following from refusal. Therefore, they argued that this mandatory vaccination programme interfered with their right to private and family life. Referring to its previous  vaccination related case law (Association of parents v the United Kingdom (1978), Boffa and 13 others v San Marino (1998), Solomakhin v Ukraine (2012), and Vavřička and others v the Czech Republic), the Court stated that voluntary vaccinations as such did not amount to an interference with the right to respect for private and family life, the threshold for interference being either direct consequences from noncompliance or compulsory inoculations as an involuntary medical treatment. In Pasquinelli, the Court argued that there was no direct duty to get vaccinated, because there were no statutory, disciplinary, or other administrative sanctions in place, nor were there fines or other disguised sanctions for refusing the vaccination. For this reason, there was no mandatory vaccination programme that could interfere with the applicants’ rights.

Secondly, Article 8 was ruled to be applicable in the context of the impugned measures affecting professional life based on choices made in private life. The criteria of lawfulness and legitimate aim were not contested by the applicants or the government. Instead, the focus was on whether the measures were ‘necessary in a democratic society’. Whereas the applicants argued that the sanctions had been disproportionate compared to the aim and had infringed their human dignity, especially given the alleged experimental nature of the vaccine, the government contended that the possibilities for alternative work tasks, leave provisions, and the last resort of allowance were the result of a legislative balancing exercise between individual freedom and public health. The government maintained that in balancing collective health protection against the rights of individuals, the former must prevail.

The Court acknowledged that freedom of choice falls within the sphere of private life and that the measures complained of constituted an interference with private life. However, it found that the series of restrictive measures in the health sector, adapted to the evolution of the pandemic, pursued the legitimate aim of protecting health and safeguarding the rights and freedoms of others. The continuation of those protective measures was based on a pressing social need. When assessing the proportionality of the measures, the Court noted that the applicants were unable to demonstrate how the impugned measures had affected their emotional well-being or dignity, as they alleged. As such, the balancing exercise was reduced to considering the applicants’ financial interest. In balancing their financial losses, which the Court viewed as unavoidable consequences of a global pandemic, against a compelling interest in protecting public health in general, the measures were found to be justified and proportionate to the legitimate aims pursued by the State. The wide margin of appreciation afforded to the States in health policy matters was not exceeded, and there had been no violation of Article 8. The allegations of discrimination, based on the alleged infringement of Article 14 of the Convention in conjunction with Article 1 of Protocol No. 12 to the Convention, were declared inadmissible for being manifestly ill-founded. The Court reaffirmed that a limited preferential treatment of vaccinated persons was objectively and reasonably justified to encourage vaccination and ensure the pandemic was durably controlled. Furthermore, the temporary nature of the measures, their limited intensity, and the exceptional context in which they took place, meant that the easing of restrictions for vaccinated people could not be considered discriminatory.

4. Analysis

As a result of the COVID-19 pandemic, courts have faced new kinds of legal challenges. The unprecedented restrictive measures aimed at stopping the spread of the virus and preventing healthcare services from collapsing have raised novel questions about safeguarding fundamental rights during health crises.

From the cases brought before the ECtHR two types can be identified: On the one hand, there are cases where a member state allegedly went too far in its virus control measures, which were claimed to have violated rights enshrined in the Convention. These include, for example, restrictions on gatherings or various events (see, for example, Communauté genevoise d’action syndicale (CGAS) v Switzerland (2023, GC) and Madgić v Croatia (Dec., 2022)). On the other hand, case law also reveals instances where it is alleged that a member state did not take sufficient measures to prevent the spread of the virus (see, for example, Le Mailloux v France (Dec., 2020)). This could suggest that the states should have implemented stronger or broader restrictive measures.

Although the Convention does not provide a right to health as such, it guarantees the right to life (Art. 2), and right to private and family life (Art.8). The Court has, through its case law, addressed various health-related factors in its rulings concerning these rights, intertwining these together (i.e. Brincat and others v Malta (2014), Centre of Legal Resources on behalf of Valentin Câmpeanu v Romania (2014, GC))). The Court has found that States have a positive obligation to take action to protect the lives and physical integrity of individuals within their jurisdiction (see, for example, L.C.B v United Kingdom (1998)). Consequently, member states must act in situations of serious infectious disease, such as pandemics, and the Court has not ruled out the applicability of Article 2 in certain COVID-19 related cases (Fenech v Malta (2022), § 107).

The case of Pasquinelli and others v San Marino (2024) builds upon the previous, though still limited, body of judgements issued by the ECtHR concerning the COVID-19 pandemic. Furthermore, by focusing on COVID-19 vaccinations, the case adds to the case law on vaccines, providing an interesting counterpart to the Grand Chamber judgement in Vavřička and others v the Czech Republic (2021, GC), which proved vaccinations in general to be a problematic theme with multiple interests at stake. If we understand Vavřička to define a baseline for national vaccination programmes in times of normalcy, Pasquinelli illustrates how it is possible to deviate from this baseline in times of crisis.

In 2022, the World Health Organization (WHO) published a policy brief on ethical considerations surrounding COVID-19 and mandatory vaccinations. In this policy brief, the WHO distinguishes between mandatory and compulsory vaccinations, describing the former as policies that constrain ‘individual choice in non-trivial ways, for example, by carrying consequences that make noncompliance challenging’. The Council of Europe, in its Resolution No. 2383(2021), cautioned States that if the consequences of refusing vaccination are so severe as to remove the element of choice, vaccinations may be treated as compulsory. The Court interpreted these documents to define a threshold, where only severe consequences would eliminate actual choice, thus making the vaccinations mandatory. In the Pasquinelli case, the possible, but not immediate, consequences did not cross that threshold (§ 61–62). Therefore, no duty to get vaccinated was imposed on the applicants. Interestingly, with these arguments the Court distinguished this case from Vavřička, where the complaint concerned an actual duty to get vaccinated and direct consequences of non-compliance.

In both cases, the interference – namely, the duty to vaccinate (Vavřička) and the voluntary vaccinations (Pasquinelli) – was based on proper national legislation. Especially in Pasquinelli, this was never contested. Moreover, in both cases, the legitimate aim pursued was recognized. In Vavřička, this aim was to protect against diseases that might pose a serious risk to health, public safety and society at large (§ 272). In Pasquinelli, the aim was to protect public health and maintain the adequate safety conditions essential to protecting the right to health and other rights and freedoms in the context of a global pandemic (§ 94–97).

The effect of the pandemic can especially be seen in arguments assessing whether the measures taken were necessary in a democratic society. Any interference needs to be proportionate to the legitimate aim pursued and address a pressing social need. In Vavřička, this assessment began with acknowledging that protecting individual and public health against diseases is a pressing social need, which can be addressed with suitable vaccine coverage achieved through vaccination duty, with non-compliance leading to the impugned measures (§ 284, 289). Since individuals could be exempted from this vaccination requirement due to contraindication to vaccines (§ 291), the Court did not regard it as disproportionate to vaccinate individuals to whom the vaccine itself posed only a small risk, aiming to protect the health of the most vulnerable through vaccine coverage (§ 306). Therefore, the impugned measures, in this case an administrative fine (‘relatively moderate’ and not ‘unduly harsh or onerous’ considering the applicant’s situation (§ 293)) and the exclusion of unvaccinated children from preschool, were ruled to be within the State’s margin of appreciation and necessary in democratic society (§ 310).

In Pasquinelli, the Court stated that unvaccinated persons were more susceptible to infection and more likely to spread the virus, so the pressing social needwas to protect the applicants, the vulnerable patients in healthcare, and the functioning of the health sector (§ 99–100). When assessing proportionality, the Court noted that since the applicants were unable to demonstrate how the impugned measures had affected their emotional well-being or dignity, the balancing exercise was reduced to weighing the applicants’ financial losses on one side and the ‘momentous competing interests of the community as a whole’ on the other (§ 102). The Court further stated that, because the legislation affected only a small number of individuals working in the health sector and because the financial consequences (that could have been avoided when accepting the options for alternative work provided by the law) were not disproportionate compared to the legitimate aim, the impugned measures were ruled to be necessary in a democratic society. These arguments highlight the stance the Court has taken in its previous case law concerning the pandemic. In general, the ECtHR has viewed the pandemic as capable of having very serious consequences, not just for health but also for society, the economy, the functioning of the State, and life in general (Terheş v Romania (Dec., 2021) § 39). The Court has also held that general complaints (actio popularis) regarding restrictive measures are not sufficient for a complaint to be examined. It is required to be demonstrated, that the measures have specifically affected the applicants (see, for example, Lörnic and others v Slovakia (Dec., 2022)). Furthermore, to claim a victim status, an applicant must provide reasonable and convincing evidence of a violation of their rights – the mere in abstracto complaints not being enough (Le Mailloux v France (Dec., 2020), § 12). This line of argumentation was repeated in the judgement of Pasquinelli, where the Court found that some of the applicants were unable to explain how the measures affecting them had impacted their mental well-being or in what way their dignity had been affected (§ 102). Therefore, only the financial losses were considered to have been duly demonstrated. The Court, however, gave little to no weight to these, stating that even significant financial losses are an unavoidable consequence of an exceptional and unforeseeable global pandemic (§ 106), adding that these losses were also mostly results of the applicants’ own actions (§ 107).

5. Conclusion

The rulings of the ECtHR are setting important legal benchmarks for future pandemics, and the case of Pasquinelli and others v San Marino (2024), as a judgement on COVID-19 vaccinations, is undoubtedly the first of many. When read through the lens of the pandemic, it strengthens the initial stances the Court has taken in its case law. When compared to the previous vaccine-related judgement of Vavřička and others v The Czech Republic (2021, GC), it is easy to see the effect the pandemic has had on these arguments, further widening the margin of appreciation afforded to the States in health policy matters, at least in times of crisis.

Throughout this new judgment, the Court emphasised how unprecedented and unforeseeable the pandemic was, leading to unavoidable consequences. Regarding vaccines, the Court has now drawn a line in the sand: When there are momentous competing interests of the community and society as a whole at stake, the threshold for considering vaccinations obligatory is high, demanding direct and severe measures in response to non-compliance. This threshold will, no doubt, be referenced in the future if applications challenging States with different approaches to COVID-19 vaccinations are brought before the Court.

These momentous competing interests referred to in the judgement also create quite a strong precedent for the future understanding of how the pressing social need and the proportionality of the impugned measures will be assessed, especially when read alongside previous case law concerning the pandemic. With this judgement, the Court basically ruled that financial losses of non-compliant individuals are to a great extent outside the scope of this balancing exercise, especially if there is no legal duty to vaccinate.

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