The Cassation opens to compensation for illegitimate acts of the State (including anti-Covid ones)
The United Sections of the Court of Cassation have issued an order which, in the language of common law jurists, could be called a landmark : that is, intended to redesign the legal scenario of reference. In fact, the United Sections have admitted the feasibility of an application for compensation for damages pursuant to Article 2043 of the Italian Civil Code caused by the "illegitimate" exercise of legislative power, thus overturning the orientation so far consolidated in the sense of denying the configurability of the so-called "constitutional offense ", Reserving the hypothesis of State responsibility for the sole case of failure to comply with EU law (as a superordinate source).
The principle is no longer the one famously summarized in the maxim King can do no wrong (which, in the Kelsenian reinterpretation, establishes in the sense of a substantial immunity of public authorities, since what matters is that "jurisprudence cannot recognize in no act is an offense of the State "), but the exact opposite of King can do wrong : also the adoption of a legislative act that is illegitimate, as it conflicts with superior sources or even with general principles, and that has caused damage to a person, it can be a source of compensation obligation.
Another is the opportune place to face with due depth the profiles, certainly problematic, that this pronouncement poses. Here, however, on the one hand, some critical issues that interest not only the legal scholar, but more broadly the citizen interested in good governance, can be quickly outlined, and, on the other hand, try to imagine the scenario – at the point of judicial dispute – that these United Sections have opened, with particular regard to the current state of the government of the pandemic.
On the first side, an intuitive feeling of material justice or common sense seems to respond to the perspective according to which the legislator should be condemned who, with his own act at least negligent (i.e. contrary to minimum rules of expertise), has caused the private individual a “unfair” damage, since it is detrimental to a subjective legal situation worthy of protection according to the legal system. On the other hand, it could well be said that if the unlawful act of a private individual against another obliges the former to compensate the damage caused, it is at least legitimate to expect that the same rule applies to the State, especially where the latter exercises an immense power like the legislative one.
However, as that fellow said, the situation appears a little more complex. First of all, it is doubtful that an institution of private law – which is, and remains, civil liability – is adequate in a publicistic context such as that of control over the exercise of legislative power. The risk is, in fact, that of overloading the responsibility of functions that do not belong to it, with the result of making it explode. If it is true that the great gain of modernity (which, it must be admitted, some days resembles an illusion) is the imposition of precise legal constraints on political power (no longer legibus solutus ), it is equally true that the jurisdictionalization of political life should be viewed with healthy skepticism.
The attempt to make the utopia of law coexist with the reality of politics, to recall Miglio's introduction to the densest of Schmitt's pages, cannot in fact result in the integral subjugation of the second to institutions, categories and general principles conceived for relations between equals, because this would end up both by cracking those boundaries between powers that are still a guarantee of freedom today, and by weakening a certain "general" dimension of control, which is expressed, for example, in the activation of the judgment of constitutionality (not for case referred to a “very special” judge such as the one who sits in the Palazzo della Consulta).
In fact, certain statements contained in the order in question seem to open up the possibility for the individual judge, invested with the claim for damages, to directly assess the "legitimacy" of the act, without waiting for a previous declaration of unconstitutionality, and using a parameter very broad, such as that of the principles that could be said of a constitutional, internal and supranational “two process” . In this way, however, there is a risk of confusing the limits between a formal review of the political act and the judgment on the configuration of the harmful fact that is the source of compensation obligation, to the point where one can doubt whether to repeat – as they did again on this occasion the United Sections – the inadmissibility of the first is nothing more than a formalistic adherence to the principle of separation of powers, while this is weakened from a substantial point of view.
Having exposed some of the perplexities that accompany a first reading of the ordinance, it is now possible to attempt to reduce what has been said on the level of law into that of material reality. Unfortunately for us, current events are still marked by profound disputes over the legitimacy of the measures to contain the pandemic emergency: precisely the latest decision of the government – the so-called super Green Pass – seems to show serious profiles of unreasonableness (given a certain absence proportionality of the measures envisaged for white and yellow areas, as well as for its increasingly resembling a surreptitious vaccination obligation).
Consider also the case of the blocking of evictions. Recently, the Constitutional Court has "saved" the discipline in force , highlighting however "its intrinsically temporary nature", that is, reiterating "the impossibility that it can be extended beyond the deadline of 31 December 2021". However, on that same occasion, the Court left without prejudice to "the possibility for the legislator, should the evolution of the pandemic emergency so require, to adopt measures other than that of suspending the execution of the release measures (or of some they) and suitable for achieving an adequate balance of the constitutionally relevant values that come into play ". Where the legislator operates in this direction, every single owner-lessor, who deems the new measures illegitimate, will be able – instead of asking for a question of constitutionality to be raised, as has happened so far – to act directly for the claim for damages.
Obviously, the case of pandemic management is the easiest to imagine, given its topicality, but the list of examples is virtually unlimited, covering any law, with any object. It is assumed that many, armed with the new principle of law according to which King can do wrong , will therefore want to appear before the ordinary judge and, without even asking the question of whether a specific act is contestable, claim that they have been infringed in their own fundamental right from the "illegitimate" exercise of public power, requiring consequent compensation for damage. This will induce the ordinary jurisdiction to try to contain the flow of disputes, probably by identifying rigorous parameters in terms of the legislator's fault and alleged damage: but, while serving these limits, there is no doubt that that of the "constitutional offense" is a disruptive novelty. .
The post The Supreme Court opens compensation for illegitimate acts of the State (including anti-Covid ones) appeared first on Atlantico Quotidiano .
This is a machine translation from Italian language of a post published on Atlantico Quotidiano at the URL http://www.atlanticoquotidiano.it/quotidiano/la-cassazione-apre-ai-risarcimenti-per-gli-atti-illegittimi-dello-stato-inclusi-quelli-anti-covid/ on Sat, 27 Nov 2021 03:52:00 +0000.