Italy, Court of Cassation, 15 February 2022, No. 4873
Case overview
Country
Case ID
Decision date
Deciding body (English)
Deciding body (Original)
Type of body
Type of jurisdiction
Type of Court (territorial scope)
Instance
Area
Vulnerability groups
Outcome of the decision
Link to the full text of the decision
General Summary
The Court of Cassation had to decide whether the jurisdiction concerning an interim procedure for implementation of COVID-19 measures in a structure hosting asylum seekers belongs to the civil judge or the administrative judge. The Court pointed out that the right to health is a fundamental right and that the COVID-19 measures enacted regarding social distancing, did not imply an administrative power to carry out a balance of interests and therefore affect, in concrete, the extent and the limits of the protection of the aforementioned rights. Therefore, the absence of a discretionary administrative power justifies the jurisdiction of the civil judge.
Facts of the case
An association for legal studies of the immigration filed an interim relief application before the civil court and asked that emergency measures against COVID-19 and on social distancing, be implemented with regards to asylum seekers. In particular, the Plaintiff pointed out that an existing immigration center was overcrowded and therefore asked that some asylum seekers be transferred to other facilities properly equipped to implement emergency measures. The First Instance Court declined jurisdiction, considering the matter to fall within the jurisdiction of the administrative courts. The Plaintiff challenged the decision and asked for a finding that the right to health of asylum seekers had been violated. The Defendant, the Ministry of Internal Affairs, underlined the lack of jurisdiction and the court decided to refer the question to the Court of Cassation.
Measures, actions, remedies claimed
- Interim relief
- Ascertainment of jurisdiction
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private collectiveDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
The Court pointed out that the case deals with a fundamental right, the right to health, which belongs to those “superior interests” not subjected to alterations by administrative powers. From a general point of view, therefore, the jurisdiction should belong to the civil judge. However, the Court noted, it is important to determine, in concrete, whether or not the legislature, in implementing, through a measure, such fundamental rights, also provided for some kind of mediation to be exercised by the public administration, which could therefore be called to carry out a balancing between fundamental rights and other interests and define limitations for the exercise and protection of such rights. In this specific case, the Court pointed out that the emergency measures to fight the pandemic, do not provide for discretionary spaces by public administration in protecting the right to health. Furthermore, the very same public administration, highlighted the importance of ensuring the health of the asylum seekers and implementing anti-COVID-19 measures in immigration centers. Therefore, the emergency measures do not provide for any discretion that may be exercised by the public administration, thus the jurisdiction belongs to the civil judge.
Conclusions of the deciding body
The Court upheld the jurisdiction of the civil judge
