By Alessio Sgherza
The University of Trento, in collaboration with the WHO, has created an open database with judicial decisions from all over the world regarding the measures adopted by governments to contrast the pandemic. Because with the coronavirus "the whole world is a country". The coordinator of the project tells us: "It is striking how the courts of different systems arrive at very similar balances between rights".
IN AUSTRIA, the rapid swabbing of students and the compulsory wearing of masks do not violate the right to study even though it may force some students to distance learning. In Australia, restricting gatherings is lawful even if it impacts religious celebrations. In Zambia, the government can limit rallies in election campaigns, but cannot use covid as an excuse to limit par condicio on radio and TV.
Saying "all the world's a country" has never been more true than during the Covid-19 pandemic. Governments, citizens and judges from New Zealand to Canada all found themselves facing - albeit within different social, political and legal systems - the same emergency. With similar measures and similar challenges to rights. We have all given up portions of our freedom, whether it be of movement or self-determination in health measures or even the right to study (distance learning is not like going to school, there is nothing to do).
The Covid-19 litigation project was born from this awareness, a free access database that collects all the judgments and decisions of judicial bodies around the world. Created by the University of Trento and with the collaboration of the WHO, the project is coordinated by Professor Paola Iamiceli, Professor of Private Law at the University of Trento.
The cases are identified through an international network of judges and scholars built ad hoc, with the support of public databases and transversal and extensive media research. A crowd sourcing tool has also been activated, allowing for broader community involvement. "We've been working for over a year on this project," says Iamiceli, "and we've involved a lot of people. The database will be continually updated to reflect developments in the law in each jurisdiction. An interactive search is made available so that users can also provide suggestions for the integration of the database, its use and usefulness.”
"Over the past two years," Iamiceli continues, "we have become accustomed to giving up something of our rights. The pandemic puts us in front of this need, with an intensity and a strength that we had not known. In every country legislators and judges are confronting public health and rights.”
Compared to pre-pandemic, the professor reasons, it almost seems as if rights 'threatened' by the emergency are back in fashion. "Because rights cannot be forgotten in the medium and long term, it is good to see citizens stepping up to defend them." But beware: we are not talking about no-vax or those who deny the existence of the emergency. More so, of a reinvigorated focus on what our basic freedoms are. "This pandemic has also reminded us of the existence of many rights, the importance of some freedoms, for religious freedom, the right to education, privacy. Only now are we able to appreciate them."
There is no hiding the fact that many of the no-vax issues are based precisely on this defense of freedom. "individual dimension of health and a collective dimension. And according to the norms and constitutions, the former can be limited for public health. It is necessary to find a balance between freedom and solidarity. And in all the decisions analyzed by the database, solidarity is preponderant."
Yet it seems strange that countries so different can learn from each other. India is very different from the United States, which is very different from Italy. Iamiceli continues: "You need awareness of the diversity of systems. But what you see when you study the decisions in the database is that states and judges have used different principles to address very similar problems and in the end have defined very similar balances. And in other countries, for example some in South America, where awareness of the importance of emergency measures was lower, it is the judges with their decisions that have stimulated governments to address the problems, and take certain measures. Where there has been more slowness sometimes it has been the courts themselves that have contributed. There are many examples in India as well."
The goal of this project is to provide a tool for guidance and comparison for those who must make decisions, but it also indirectly targets policy makers who must take these steps. "And you will see that claims by individuals or groups for damages suffered from the restriction of their freedoms will start to grow. With this database, we want to provide tools also to those who have to make decisions to understand how the choices are evaluated by the judges and provide them with food for thought."
There was a time when Roman law was considered a single, valid and supranational source. For centuries, Europe and beyond relied on the norms of Rome as the basis for judicial decisions. Pandemic takes us back there. "Or at least we're trying to," Iamiceli chuckles.
