CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 29 août 2024

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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 establish