On February 9, 2023, the Constitutional Court of Italy issued Decision No. 35 (the Decision) declaring the unconstitutionality of article 3, paragraph 1 of Law No. 210 of February 25, 1992, concerning Compensation for Injuries Caused by Irreversible Complications due to Compulsory Vaccinations, Transfusions, and Administration of Blood Products.
Background to the Decision
The Italian Constitutional Court was called to decide on the constitutionality of article 3, paragraph 1 of Law No. 210 in a case pending between the Ministry of Health and the legal representatives of a minor. Also intervening in the case were the President of the Council of Ministers and the Association of Blood Transfused and Vaccinated Patients. (Decision, Considerations of Fact, no. 1, para. 1.) The Supreme Court of Justice (Corte di cassazione) had raised the question of whether article 3, paragraph 1 of Law No. 210 violated articles 2 (inviolability of rights of the person), 3 (equal social dignity and equality before the law), 32 (fundamental right to health and prohibition of compulsory health treatment), and 38 (right to welfare support) of the Italian Constitution. (No. 1, para. 2.)
In particular, the constitutional question referred to the challenged provision’s restriction of the statutory period for the calculation of compensation for injuries arising from forced vaccination of patients to three years, counted from the moment when the plaintiff became aware of the injury. (No. 1, para. 2.) Hence, the Constitutional Court was requested to decide whether the plaintiff had a right to obtain compensation in its entirety — that is, without the limit of the prior three-year period. (No. 1.1.)
The Constitutional Court Discussion
The discussion centered on whether under the Constitution the right to compensation extended beyond the three-year period established by Law No. 210. The court noted that an awareness of the harmful effects of a vaccination would require the victim’s ability to perceive the early manifestations of such a pathological state, particularly when the harmful inoculation occurred at an early age. (No. 1.2, paras. 2 & 3.) In addition, the temporary restriction would completely frustrate the purpose of the compensation and would thus generate “a conspicuous and unreasonable difference” in the constitutional treatment of vaccination victims who enjoy social security benefits (pensions). (No. 1.2, paras. 2 & 3.) The court acknowledged that both the compensation for vaccination injury and the pension for vaccination injury possess equal claims as “welfare” under constitutional guarantees. (No. 2.2, paras. 2–3.) In other words, at the core of the discussion was the issue of whether compensation for injury caused by forced vaccinations constituted civil compensation or a social welfare benefit. (Decision, Considerations of Law, No. 1.1, para. 1.)
Reasoning of the Court
The court affirmed that both prongs of the disbursements — the pension and the compensation — possess an “analogous constitutional foundation” as both are “based on the obligations of social solidarity established by the Constitution.” (No. 1.1, para. 1.)
The court recalled its own precedents, including Decision No. 307 of 1990 on the mandatory character of polio vaccination established by Law No. 51 of February 4, 1966, in which it declared unconstitutional the law’s failure to compensate those injured from the compulsory anti-polio vaccination. (No. 5, para. 1.) The court reaffirmed that the need to balance the individual and collective dimensions of the constitutionally protected right to health implies the recognition of a just compensation to those who — while forced to undergo a medical treatment involving a specific risk — suffer injury beyond normal (and tolerable) consequences from a given medical intervention. (No. 5, para. 2.)
The court also reasoned that Law No. 210 was approved in the context of the aforementioned balance established by Decision No. 307 of 1990, establishing the right to compensation by the state to anyone who has suffered, due to vaccinations required by law or by order of a health authority, injuries or illnesses resulting in a permanent impairment of their psycho-physical integrity. (No. 5.1, para. 1.) The court also mentioned Decision No. 118 of 1996, which declared unconstitutional a provision that excluded compensation for injuries resulting from the compulsory polio vaccination that occurred before the effective date of the law. That decision held that the challenged provision placed a time limitation that was equivalent to a constitutionally impermissible “partial reduction of damages to be compensated” (riduzione parziale del danno indennizzabile). (No. 5.2, para. 1.)
In addition, the court recognized that the Constitution delegated to the legislator the determination of the content and terms of the respective compensation, but that such discretion must be exercised within the limits of a rational balance of the values constitutionally protected. (No. 5.4, para. 1.) The court affirmed that the compensation established by Law No. 210 of 1992 leads one to believe that the knowledge of the injury — which marks the starting point of the three-year period for the submission of the claim and constitutes the basis for the enforceability of the right to compensation — assumes that the injured party has acquired awareness not only of the externalization of the permanent impairment of the psycho-physical integrity and its traceability, but also of its legal relevance. (No. 6, para. 1.)
Ultimately, the court recalled its consistent jurisprudence (based, among others, on its Decisions No. 14 of 2023, No. 15 of 2023, and No. 258 of 1994) affirming that fair compensation in favor of the injured party is an essential element for the necessity of medical treatment arising from compulsory vaccination. (No. 5.3, para. 4.) Therefore, the court affirmed that the three-year period for the presentation of the complaint from the moment the plaintiff became aware of the injury sets a time limitation that collides with the constitutional guarantee of the right to the benefit, thus nullifying its exercise and, ultimately, preventing the completion of the “solidarity pact” required by the Constitution. (No. 6, para. 2.)
Holding of the Court
Because of a lack of standing grounds, the court (1) dismissed the participation of the Association of Blood Transfused and Vaccinated Patients in the proceedings (including its amicus curiae) since in an incidental constitutional legitimacy case only those possessing a qualified interest that is directly and immediately related to the substantial relationship upon which the case is based are allowed to intervene (No. 2, paras. 2 & 5), and (2) declared unconstitutional article 3, paragraph 1 of Law No. 210 of February 25, 1992, for excluding compensation for injuries caused by compulsory vaccinations, transfusions, and administration of blood products beyond a three-year period from the date on which the plaintiff becomes aware of the injury (Decision, Holding).
Dante Figueroa, Law Library of Congress
April 25, 2023
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