“No constitutional violations, the right to health is a priority”

Predict the green pass to access bars and restaurants, as France has decided to do, would be compatible with the Constitution because it would be an adequate, proportionate and temporary measure with respect to a pandemic emergency which, moreover, is not only Italian but international. For the president emeritus of the Consulta, Cesare Mirabelli, there is a fundamental difference, from a legal point of view, between a choice like this and, for example, compulsory vaccination.
“We are not talking about an obligation but a burden or a requirement to carry out a specific activity. There must be a reasonable request, that is, there must be a danger that carrying out that activity could lead to the spread of the epidemic. After all, once upon a time, those who worked in public establishments, bars or restaurants, had to have a health certificate to prove that they were free from tuberculosis when this disease was highly widespread and infectious “.

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However, there are those who spoke of an unconstitutional measure. Can you explain to us why you think it is not?
“It is not an absolute prohibition that affects the freedom of the person, if you want to carry out certain activities that put at risk the people you come into contact with in relation to that activity, then it is reasonable”.

Leaving the legal language, do you mean that since no one forces us to do or not to do certain activities, if we decide to practice them it would be reasonable for us to be asked for a certificate in a pandemic situation?
«The reference criteria are always the same, the question is: is it an adequate, necessary and proportionate limitation? For example: in the excellent Italy-England football final we saw people not far apart, without masks and screaming, a great party for the virus. In those situations it can be asked that whoever enters the stadium has the green pass or the negative buffer? Nobody prevents me from leaving the house if I don’t have it, nobody can ask me for it if I’m in my car, but if I go to a crowded place, or enter a hospital, placing a ban or a burden to ensure health an adequate, reasonable and temporary limit “.

In short, is it an obligation compatible with the Constitution?
“Exactly. The individual right to health also means that I cannot be harmed by others, there is an interest of the community and of other people not to be infected. Another thing if there was a compulsory vaccination, in that case a legislative foundation would be needed, a law would be needed ”.

As we know health is a regional matter, can the regions therefore go in no particular order or is it the principle of the collective good established by the state to dominate?
«The principles have already been established by a sentence of the Constitutional Court at the beginning of this year in a dispute between the State and the Autonomous Region of Valle d’Aosta. The pandemic matter is the exclusive competence of the State, therefore the measures can be adopted by the State, the Regions cannot depart. Of course, once again, there may be a judgment on the appropriateness, adequacy and proportionality of these measures. If there were any non-functional or excessive compressions of rights, there could be a conflict ».

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So is this a conflict that only the Constitutional Court could resolve?
“Exactly, the Regions can appeal if they believe that their field is invaded and the State if the Region adopts measures that are not aligned with the unitary plan. In this case, in my opinion, they would be because the spread of the epidemic is not only a national but an international affair and Article 117 of the Constitution, even after the modification of Title V, still includes “international prophylaxis” among the exclusive competences of the State. “.