health pass

The Court of Cassation (Italian Supreme Court) has stated that the conduct of a magistrate who does not attend work due to the lack of the COVID-19 certificate (“green pass”) does not constitute a “habitual and unjustified withdrawal from service activities” and, therefore, is not subject to disciplinary sanctions.

The Supreme Court’s General Prosecutor had promoted a disciplinary action against a prosecutor who had stopped going to work after the introduction of mandatory COVID-19 certificates to access certain places such as tribunals. The magistrate’s conduct had made it necessary to re-distribute trials among her colleagues, as she could not access the working place.

Nonetheless, the disciplinary section of the Supreme Council of Magistrate (CSM) had rejected the General Prosecutor’s claim. According to the CSM, under Article 9 sexies of the Law Decree no. 52 of 2021, the legislator had decided to introduce specific anti-COVID rules for the judiciary, which differentiate between being absent from work due to the lack of green pass and showing up to work regardless not having the COVID certificate. Indeed, only for the latter conduct, the legislator had established a disciplinary sanction.

The General Prosecutor appealed the decision before the Court of Cassation. Article 9 sexies co. 2 of Law Decree no. 52 of 2021 considers any absence from the office resulting from failure to produce the COVID-19 green certificate unjustified and that, for the days of unjustified absence, no pay or other remuneration is owed. As pre-existing legislation provides for disciplinary sanctions in case of “habitual and unjustified withdrawal from service activities” (Legislative Decree No. 109 of 2006, Articles 1.1 and 2.1 letter d and r), the General Prosecutor thus claimed that the prosecutor should have faced disciplinary consequences.

The Court of Cassation rejected such an interpretation, as conflicting with the explicit will of the legislator expressed in the sectorial regulation.

The lawmaker has indeed decided to balance individual rights of the magistrates (especially health self-determination protected by Article 32 of the Italian Constitution) with the public interest by only sanctioning the conducts which pose collective health at risk – namely, going to work without proving to be vaccinated (Italian Constitutional Court 14/2023, 15/2023, 185/2023). Such a choice was thus calibrated on the specific goal of preserving citizens’ health. The Court noted this is the same underlying ratio of the discipline of COVID certificates for civil servants contained in Article 9 quinquies of Law Decree No. 52/2021. According to this provision, civil servants without a green pass are considered unjustified absentees but are not sanctioned. Moreover, they keep their job even if they are not paid while absent. Being the underlying ratio the same, it would have been discriminatory to pose additional sanctions on the members of the judiciary absent from work due to the lack of green pass.

On these bases, the Cassation Court dismissed the action. The judgment is consistent with previous case law of the Constitutional Court and of the Council of State, which underlined the legitimacy of green pass as a measure to protect public health and the non-sanctioning nature of the suspension of payments for non-vaccinated people unable to going to work.

Full text of the decision available at olympus.uniurb.it it