La responsabilità della P.A. per danno da vaccinazione: il bilanciato legame tra dovere di solidarietà e dignità umana

Abstract

The history of yesterday and today – think of the emergency caused by the spread of the infection from Covid- 19 – tells us about the suspension of constitutional guarantees, reason of State and emergencies that justify the limitation or cancellation of fundamental rights; as well as “full powers” granted to governments and continuous attempts to consider the freedoms recognized as excessive in relation to the needs of social control or economic development. In this context, a relationship that tends to be equal between the State and the individual has been accompanied by an unequal relationship in which the inequality is the fundamental constitutional rule, since everyone knows that subjective rights, even those that represent the most immediate incarnations of individual freedom are by definition yielding to public power, which in turn refers to the necessary or reason of the state as the exclusive organization of the social order. This can be clearly understood in terms of compulsory health treatment, in which public opinion is strongly divided on the issue of vaccination between those who support the discriminatory nature of this legislative choice, unjustifiably limiting other fundamental freedoms, and those who see the need of such limitations in the name of public health protection. The paper consist of two parts: the first will investigate how constitutional jurisprudence has, over the years, attempted to preserve the value of the human person in terms of vaccination, pursuant to art. 2 of the Constitution; in the second, instead, an attempt will be made to highlight how the duty of solidarity – places to safeguard a balances social bond – has affirmed the general character of the responsibility of the Public Administration from lawful activity. It will be particularly highlighted how the “person-state” holder of eminent dominion over all goods and interest, which reserved to the Legislator to choose of recognizing a compensation for the sacrifice made to the interest of the individual – has affirmed the general principle of state compensatory intervention in favor of the person injured by the vaccine.