ITALIAN NATIONAL REPORTS - Università Degli Studi Di Palermo

Alessandro Pace
Are Human Rights Universal and Binding?
Court of Cassation, Civil Division, Section I, judgment no. 16417 of 25 July
2007; Tribunal of Rome, 28 March 2008; Tribunal of Nola, 6 February 2008);
on the principle of non-discrimination in social welfare (judgment no.
432/2005; jurisprudence on the merits, see also Tribunal of Bergamo, 27
November 2009), on the principle of reasonableness, in addition to the right
to the safeguarding of health and social assistance (judgment no. 306/2008;
see also the Court of Cassation, Civil Division, Section I, judgment no. 20561
of 22 September 2006; the Court of Cassation, Civil Division, Section I,
judgment no. 1531 of 24 January 2008; Tribunal of Bergamo, 14 March 2008;
Tribunal of Reggio Emilia, 7 January 2008; Tribunal of Rome, 27 September
2001), on the principle of parity of treatment with respect to Italian workers in
relation to possible employment by the Milanese Transport Company
(Tribunal of Milan, 20 July 2009).
To these must be added several important decisions of the
Constitutional Court, which while not cancelling the provision seized,
imposed on the judge a quo to deliver a given interpretation in line with the
Constitution (known as the «interpretative» judgments of rejection). This was
the case of judgment no. 454/1998 which deemed that non-EU workers «who
are entitled to accede to permanent subordinate employment in Italy in
conditions of parity with the citizens, and who meet the requirements» are
entitled to be enrolled in the lists for the purposes of mandatory hiring.
Similarly judgment no. 198/2000 confirmed the right of foreigners, including
those without a regular permit of stay, who receive a measure restricting their
freedom to self-determination, to be put in the condition of understanding its
content and meaning (in a similar vein, see judgment no. 10/1993, mentioned
above).
Various other decisions should then be recalled, which while not
upholding the question raised by the judge a quo, nonetheless confirmed the
foreigner’s entitlement to a given fundamental right. This was the case in
judgment no. 252/2001, according to which a foreigner who entered Italian
territory illegally to replace a prosthesis on an amputated leg could not be
expelled, insofar as «the guarantee of the nucleus of the right to health
safeguarded by the Constitution as an inviolable area of human dignity, (…)
obliges not to constitute situations without safeguards, which could prejudice
the implementation of that right (compare, ex plurimis, judgments nos.
509/2000, 309/1999 and 267/1998)». In the same direction, but in more
general terms, went judgment no. 19393 of 9 September 2009 of the Court of
Cassation, Civil Division, Section I (which was important also because it
rejected the jurisdiction of the administrative courts insofar as humanitarian
protection cannot be subjected to discretional assessments by public
administration bodies).