is it possible to get compensation? The sentences

The obligation to wear masks in school for children under the age of 12 falls within the DPCM of 3 December 2020 and 14 January 2021. In particular, it concerns the part where they require the use of masks in school, even in situations of compliance with the distances provided for in the Covid-19 emergency legislation.

The January provision of the President of the Council of Ministers was considered illegitimate by a well-known phrase in TAR, No. 9343 of 2021, as no measures are envisaged to ensure that a minor, even without any complete pathologies, could be exempted from the use of The mask in the classroom if he was influenced by decrease in oxygenation or other ailments or difficulties.

According to the Tar 21 Decision of 2021, the contested Prime Minister’s Decree will differ from the findings of the Technical Scientific Committee (CTS) without giving reasons and without recalling the hypotheses considered to be prevalent with regard to the technical-scientific opinion of the CTS . . It should be emphasized, however, that the provision of the Administrative Court of Lazio, which we will discuss briefly, only partially accepted the appeal lodged, which offset the costs between the parties.

Let’s analyze togethercase law which then resulted in this 2021 administrative provision.

Forensic analyzes and the possibility of litigation

Legal process

Before dealing analytically with the judgment in TAR, already the Council of State, by decree of 26 January 2021 n. 304, had taken up the question of the obligatory nature of the mask minor students.

In particular, the Council of State suspended the duty to wear a mask for a student certified oxygenation defects and caused by prolonged use of personal protective equipment throughout the lesson.

The danger of respiratory fatigue in the absence of constant verifiability using an oximeter (which did not exist in that class) was in fact considered to be too severe and immediate. It should be noted that in the class in which the minor participated, there was not even an oxygenation control device available, an instrument with minimal cost and very simple applicability in cases like the one each teacher suggested to intervene at the very first signs of difficulty breathing.

With this statement from the Council of State, the safety request proposed by the parents of a child was therefore accepted for the reform of the Lazio TAR judgment regarding the obligation to wear masks in after-school care for minors under 12 years of age.

Analysis of the Tare’s theorem

Lazio TAR’s judgment of 9 August 2021 n. 9343 was issued following an administrative procedure initiated with an initial appeal, in which the applicants, all primary and secondary school students (with the relatives exercising parental responsibility), had challenged the provision in art. 1 piece. 1 letter. b) and para. 9 let. s) in the Prime Minister’s Decree of 14 January 2021, which obliged pupils to wear masks in school, even in situations of static electricity at the desk in accordance with the distances provided for in the emergency regulations.

In particular, the applicants complained about the abnormality and illogicality, as well as the lack of motivation and scrutiny. According to them, there were no specific reasons why the mask could not be removed under static conditions when it was possible to guarantee the distance between the benches, as recommended by WHO and UNICEF, as well as by the Technical Scientific Committee itself (CTS).

This DPCM for the plaintiffs was to be considered illogical, deficient in motivation, technically improbable and, moreover, a warning of potential harm to children’s psycho-physical health, reminiscent of some scientific studies in this regard. The public administration appeared in court and argued for the legality of the contested measures on the basis of the principles of prudence, proportionality and adequacy in the context of the epidemiological context. The two groups of interveners, all equally parents of primary and secondary school students, formulated complaints of a similar nature.

By Executive Order No. 1222 of 26 February 2021, the section accepted the precautionary request by ordering a remand in custody to the administration to re-evaluate the contested prescription. For further reasons, the same applicants challenged the similar provision contained in the Prime Minister’s Decree of 2 March 2021. The administration also resisted this burden. By Executive Order No. 2237 of 15 April 2021, the section rejected the additional precautionary request, asthe effectiveness of the contested Prime Minister’s Decree had now expired.

In the light of the substantive discussion, the appellant submitted a concluding statement in which he stated that there was still interest in the decision with a view to a possible claim for damages.

An important aspect to consider in the examination of the process leading to the issuance of the provision in the TAR is that the contested Prime Minister’s Decree and all the others who had faithfully reproduced the same obligations at that time now had its effects ceased.

The Board was therefore right to point out that the application for annulment of all the contested acts, which had ceased to have effect, could not be rejected on the ground of lack of interest. In a nutshell, the applicants, as pupils (with their parents) attending primary and secondary school, complained that the introduction of the mask obligation during the entire teaching period “in presence” was unjustified and subject to a lack of preliminary examination, as it was adopted contrary to the indications of the Technical Scientific Committee and the World Health Organization, without, however, providing any support in support of this Decision.

They complained that no measures had been taken to ensure that a minor, even without complete pathologies, could be exempted from using the mask in the classroom where he suffered from loss of oxygen or other ailments or difficulties. They also complained that the aforementioned taxation was disproportionate and unreasonable where educational institutions are able to secure the distance between the desks.

On this point, the TAR Board explicitly referred to another of its decisions, again concerning the challenge of a Prime Minister’s Decree: this is sentence No. 2102 of 19 February 2021, where the illegality of the Prime Ministerial Decree of 3 November 2020 was found due to a significant lack of investigation, unreasonableness and contrast to the indications in the CTS. Therefore, in this provision (before the one covered by this article), the judges focused on the legality or not of the imposition of the obligation on children between the ages of 6 and 11 to wear a mask during the “In Presence” instruction referred to in the contested provision. , and they found it unlawful after a thorough examination of all the positions offered in court.

First, the TAR found in that decision that the CTS had not itself imposed the use of the mask, which essentially ensured the maintenance of the physical distance, while the contested DPCM, which therefore differs from the CTS, had complied with the mask obligation itself. during school hours, without giving reasons for one’s different orientation nor remembering preliminary evidence. For this reason, the TAR found that the complaint concerning the arbitrary imposition of the mask also in schools that have adopted measures to ensure distance between the desks was well-founded.

And again, the administrative judges noted that the contested actions should also be criticized from a incorrect exercise of administrative discretion in the form of surplus power. With regard to the applicants’ objection of non-compliance with the precautionary principle, the judges made a subtle distinction between precaution and prevention, claiming, as in the present case, although it is common ground that the measures taken to address health contingency were in place. inspired by the precautionary principle, precisely because of the lack of motivation, it must be doubted that the judgment of “strict necessity”, through which the very precautionary principle itself is expressed, is fully fulfilled.

It is the same shortcomings that can also be seen in the subsequent Prime Minister’s Decree of 14 January 2021 that can be appealed if the basis of investigation is substantially unchanged.

In conclusion, the Regional Administrative Court of Lazio states:

  • declared inadmissible for supervision lack of interest the initial appeal and further reasons;
  • for compensatory purposes only, it declared illegal by the Prime Minister’s Decree of 14 January 2021 within the limits set out in the explanatory memorandum;
  • reimbursed the costs of the proceedings between all parties.

It can therefore be said that sentence No 09342/2021 of the Regional Administrative Court of Lazio – Rome, for compensatory purposes onlydeclared the illegality of the Prime Minister’s Decree of 3 December 2020 and the Prime Minister’s Decree of 14 January 2021.

Pursuant to that provision, there is therefore a possibility for the applicants and the persons intervening in the judgment to re-apply for compensation for the damage suffered, both in terms of property and non-property.

How to sue

Without prejudice to the provisions of the TAR judgment and the possibility for each individual to protect his rights by appointing a trusted lawyer, the initiative proposed by the Committee on Constitutional Freedoms is interesting. In fact, through their website, it is possible to join a class action lawsuit to compensate for damages for illegitimacy of the Prime Minister’s Decree of 3 December 2020 and the Prime Minister’s Decree of 14 January 2021 for non-exemption and exemption conditions for minors under 12 as provided by international indications WHO and Unicef.

To comply with this action and proceed with the assignment of the relative task, complete the following form by paying a small amount.

The form to be completed also clarifies that if the under 12-year-old minor, on the other hand, has not only suffered general non-financial damage but also serious health damage, demonstrated by analyzes, medical certificates, psychological reports or otherwise, it will be possible to promote a personal action to be evaluated, with the legal team on a case-by-case basis.

Conclusions

There is one aspect that immediately proved relevant in the case in question: the Prime Minister’s decree, which was challenged in the Tar judgment, and all the others who faithfully reproduced the same obligations have now ceased to have effect. That is, they are somehow “expired”. Therefore, in this regard, it is completely useless to initiate new reasons or in any case refer to the pronunciation in question in order to avoid bringing the masks to the teaching or elsewhere.

In fact, as we have seen, while declaring the substance of the case and sanctioning the abstract illegitimacy of the Prime Minister’s Decree, the TAR first dismissed the appeal on the ground of lack of interest in the claim for annulment, precisely because the contested action ceased in all effect.

What is the purpose of the administrative court’s decision then? To allow the continuation of the civil case in order to achieve compensation for damageif any damage is ever detected.

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