ВАКСИНИ - дискусия САМО за вредата от тях - тема 33

COUR EUROPÉENNE DES DROITS DE L’HOMME
EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 42197/98
by Ilaria SALVETTI
against Italy
The European Court of Human Rights, sitting on 9 July 2002 as a
Chamber composed of
Mr C.L. ROZAKIS, President,
Mr G. BONELLO,
Mr P. LORENZEN,
Mrs N. VAJIĆ,
Mrs S. BOTOUCHAROVA,
Mr V. ZAGREBELSKY,
Mrs E. STEINER, judges,
and Mr E. FRIBERGH, Section Registrar,
Having regard to the above application introduced with the European
Commission of Human Rights on 5 May 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by
which the competence to examine the application was transferred to the
Court,
Having deliberated, decides as follows:
2 SALVETTI v. ITALY DECISION
THE FACTS
The applicant, Mrs Ilaria Salvetti, is an Italian national, who was born in
1969 and lives in Caprino Veronese, Italy.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised
as follows.
In 1971 the applicant was struck down by paralysis, blindness and
dysarthria as a result of the compulsory polio inoculation provided by Law
no. 51 of 4 February 1966.
Section 2 of Law no. 210 of 25 February 1992 provided that people
struck down by permanent illnesses as a result of compulsory inoculations
were entitled to an allowance from the first day of the month following the
claim and to a lump-sum payment. In fact, by a judgment of 22 June 1990
the Constitutional Court had declared Law no. 51 of 4 February 1966
unconstitutional because it did not provide for any fair compensation for
illnesses as a result of compulsory polio inoculation.
On 13 January 1993 the applicant requested the compensation she was
entitled to.
On 26 April 1995 the Ministry of Health established, on the basis of the
applicant’s claim, that she was entitled to an allowance of 14,107,590
Italian lire (ITL) per annum from 1 February 1993.
On 18 May 1995 ITL 32,917,655 were paid in arrears for the period from
1 February 1993 to 31 May 1995.
By a judgment of 18 April 1996 the Constitutional Court declared
section 2 of Law no. 210 of 25 February 1992 unconstitutional because it
did not provide for any compensation for the period between the date on
which the cause of action arose and the award of the allowance.
In 1996, after the Constitutional Court’s judgment, several decree-laws
were issued and re-issued in order to resolve the matter of the retrospective
compensation. The last decree-law no. 548 of 23 October 1996 converted
into Law no. 641 of 23 October 1996 and later Law no. 238 of 25 July 1997
amended section 2 of Law no. 210 of 25 February 1992. According to the
new section 2, in addition to the principal allowance and lump-sum payment
already awarded, people injured by compulsory inoculations were entitled
to a further compensation for the period between the date on which the
cause of action arose and the award of the allowance, calculated for every
year at 30% of that allowance, without statutory interest and monetary
revaluation. Moreover, section 2 provided that people injured by multiple
illnesses as a result of compulsory inoculations were entitled to additional
compensation, to be determined by a decree of the Ministry of Health, of
not more than 50% of the principal award.
SALVETTI v. ITALY DECISION 3
On 20 July 1997 the applicant lodged an application with the County
Court (Pretura) alleging that the decree-law’s provisions were
unconstitutional on the grounds of the arbitrary reduction of the
retrospective compensation and requesting a declaration of her right to
obtain it without any reduction. The applicant also alleged that the provision
in relation to the additional award was unconstitutional, because it was
determined in a different way from the sum awarded to disabled workers
and ex-servicemen. In any case, the applicant requested a provisional order
against the Ministry of Health to pay the retrospective compensation as
determined by Law no. 210 of 25 February 1992 (that is, 30% of the
principal award) and statutory interest from 1 February 1993 to 31 May
1995 on the principal allowance arrears.
The Ministry of Health asked for the applicant’s requests to be
dismissed.
The County Court provisionally ordered that Ministry of Health pay
ITL 89,386,881 in retrospective compensation as determined by Law
no. 210 of 25 February 1992.
By judgment of 30 January 1997 the County Court found the applicants’
arguments concerning constitutionality to be manifestly ill-founded and
ordered the Ministry of Health to pay ITL 88,877,817 in retrospective
compensation as determined by Law no. 210 of 25 February 1992 and ITL
4,368,881 in statutory interest from 1 February 1993 to 31 May 1995 in
principal allowance arrears. The Court also declared that the applicant was
eligible for the additional compensation because of the multiple illnesses
following the compulsory inoculation but did not fix the amount because the
Ministry of Health’s decree had not yet been issued.
The Ministry of Health lodged an appeal against the County Court’s
judgment.
The applicant asked for the appeal to be dismissed and her previous
requests confirmed.
By judgment of 24 September 1998 the Labour Court upheld the County
Court’s judgment and ordered the Ministry of Health to pay additional
compensation of 50% of the principal award.
B. Relevant domestic law
By judgment no. 307 of 22 June 1990 the Constitutional Court declared
as follows:
Law no. 51 of 4 February (polio compulsory inoculation) is unconstitutional insofar
as it does not provide, outside section 2043 of the civil code, for any fair
compensation to be charged to the State for damage as a result of infection or other
serious illness following compulsory polio inoculation which have struck down
inoculated children or people who have personally and directly taken care of them.
4 SALVETTI v. ITALY DECISION
This unconstitutional declaration (...) introduces a compensation for damage as
direct result of compulsory medical treatment within the limits of a fair settlement
which considers all the aspects of damage. This compensation is justified (...) by a
balanced consideration of the principles of section 32 of the Constitution in relation to
the solidarity between individuals and the collectivity, which justifies the imposition
of medical treatment.
According to Section 1 of Law n. 210 of 25 February 1992:
Everyone struck down by illnesses or infirmities as a result of compulsory
inoculations (...) is entitled to a compensation to be charged to the State on the
conditions and in the ways established by the present law.
Section 2 of Law no. 210 of 25 February 1992 provided as follows:
The compensation (...) starts from the first day of the month following the claim.
By judgment no.118 of 18 April 1996 the Constitutional Court declared
as follows:
Section 2, par. 2 and 3, par. 7 of Law no. 210 of 25 February 1992 is
unconstitutional insofar as it denies the right of people struck down by illnesses as a
result of polio compulsory inoculation or of people who have personally and directly
taken care of them to a compensation to be charged to the State -outside the provision
of section 2043 of the civil code- for the period between the date on which the cause
of the action arose and the award of the allowance determined according to the law
above.
(...) The individual cannot be expected to sacrifice his own health for the benefit of
the whole community. The coexistence between the individual and the collective
aspect of constitutional discipline of health as well as the duty of solidarity,
established by section 2 of the Constitution, which ties the individual to the
collectivity, but also the collectivity to the individual, imposes a proper supporting
measure of fair compensation for damage to be arranged for people who have suffered
damage as a result of compulsory medical treatment. The compensation must be paid
independently of the one claimed by the part concerned, if the conditions of section
2043 of the civil code are satisfied. Whereas the defence against tort provided by the
section above necessarily and fully pays also for health damages -(...)- the
compensation at issue is not concerned with guilt but with the unbreakable duty of
solidarity overhanging in this case on the collectivity and, in its place, on the State.
Though this compensation could not be derisory and -(...)- must consider all the
aspects of damage, it has equitable nature.
SALVETTI v. ITALY DECISION 5
(...) This is a special duty. The issue for the collectivity is not only the duty to help
people in trouble for any cause, but also the duty to compensate the sacrifice that
someone can suffer for a benefit to the collectivity. It would be against principles of
justice, such as results from section 32 of Constitution, in the light of the duty of
solidarity of section 2 of Constitution, that people struck down were left to their own
destiny and resources or that the damage at issue was considered an unforeseen event
to be compensated with general instruments of public assistance, or that satisfaction
for compensation requests of damaged people was subordinated to the existence of
others’ negligent behaviour which could be missing.
Section 2 of Law no. 210 of 25 February 1992, revised by Law no. 641
of 23 October 1996 and later by law no. 238 of 25 July 1997, provides as
follows:
2. The allowance of par. 1 is integrated by a lump-sum payment corresponding to
the special additional compensation of Law no. 324 of 27 May 1959 (...) and starts
from the first day of the month following the claim (...) By claim and even if the
allowance has been already given, a compensation is paid to people indicated in
Section 1, par. 1 for the period between the date on which the cause of action arose
and the award of the allowance, calculated for every year at 30% of the allowance,
without statutory interest and monetary revaluation.
3.4.5.6 (...).
7. People injured by multiple illnesses with distinct disabling effects are entitled to
an additional compensation, to be determined by a decree of the Ministry of Health, of
not more than 50% of the allowance of par. 1 and 2.
COMPLAINTS
The applicant complains that Italian law imposes compulsory
inoculations but does not provide for fair compensation for illnesses or
infirmities as a result of them. In particular, she complains about the ceiling
established by Law no. 210 of 25 February 1992 of the amount of the
retrospective and additional compensation for which she is eligible. She
relies on Articles 2 § 1, 5 § 1, 12 and 17 of the Convention.
THE LAW
The applicant complains about the obligation to undergo compulsory
inoculations without fair compensation for damages as a result of them. In
particular she complains about the ceiling established by Law no. 210 of 25
February 1992 of the amount of the retrospective and additional
6 SALVETTI v. ITALY DECISION
compensation for which she is eligible. She relies on Articles 2 § 1, 5 § 1
and 17 of the Convention.
The Court considers that no issue arises under the Articles referred to by
the applicant. However, it recalls that private life includes a person’s
physical and psychological integrity (No. 32647/96, decision 1/7/98, D. R.
94, pp. 91-93). Consequently the Court has examined the application under
Article 8 of the Convention which provides as follows:
“1. Everyone has the right to respect for his private and family life, his home and
his correspondence.
2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others.”
The Court considers that compulsory inoculations as non-voluntary
medical treatments amount to an interference with the right to respect for
private life as guaranteed by Article 8 § 1 (see Matter v. Slovakia judgment
of 5 July 1999, § 64, unpublished).
Insofar as the applicant’s complaint should be understood as concerning
the obligation to undergo compulsory inoculation as such, the Court notes
that the circumstances relating to the inoculation at issue date back to 1971.
The Court observes that the recognition of the right of individual petition
under Article 34 of the Convention took effect in respect of Italy on 1
August 1973. It recalls that, according to the generally recognised principles
of international law, for all Contracting Parties, the Convention governs
only facts which arose after it came into force in respect of the Party
concerned.
Consequently, the circumstances relating to the inoculation in 1971 will
not be taken into consideration by the Court as they fall outside its
competence ratione temporis.
As to the complaint concerning the amount of compensation for health
damages as a result of the compulsory inoculation, even assuming that the
level of compensation is a relevant element when examining the necessity
of the interference under Article 8 § 2, the Court nevertheless considers that
this issue also falls outside its competence ratione temporis.
It remains to be examined whether the claim for compensation could
raise an issue under Article 1 of Protocol No. 1 to the Convention which,
insofar it is relevant, provides as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his
possessions. No one shall be deprived of his possessions except in the public interest
and subject to the conditions provided for by law and by the general principles of
international law”.
SALVETTI v. ITALY DECISION 7
In this respect the Court recalls that the Convention does not guarantee,
as such, social and economic rights (see Godfrey v. United Kingdom,
application no. 8542/79, Commission decision of 4 February 1982,
Decisions and Reports (DR) 27, p. 94 and Pančenko v. Latvia, (dec.),
no. 40772/98, 28 October 1999, unreported). Nor does the Convention grant
a right to compensation for a health damage which took place before the
Convention entered into force with respect to a particular State or before the
right of individual petition was recognized with regard to that State.
It is true that the applicant is already entitled to a specific allowance
because of her health damage. However, the Court considers that Article 1
of Protocol No. 1 cannot be interpreted as guaranteeing to the applicant an
increase of this amount.
In all circumstances, the Court considers that even if the applicant could
be said to have a right to compensation, it would not imply compensation of
a specific level.
It follows that this complaint is incompatible ratione materiae with the
provisions of the Convention within the meaning of Article 35 § 3 and must
be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.

Erik FRIBERGH         Christos ROZAKIS
Registrar                  President