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Right to health of asylum seekers in Extraordinary Reception Centres (Cass, Order n. 4873/2022)

In March 2020, the Asgi Association had denounced the failure to apply, in the largest CAS in Bologna, the Mattei, the personal distancing measures provided for by the rules against the pandemic. After a very long battle, the Court of Cassation acknowledged that the right to health of asylum seekers should be protected also in the CAS, guaranteeing them the measures adopted by the State to fight the COVID-19 epidemic, without any discrimination.

The dispute started in March 2020 before the Court of Bologna, where ASGI filed an appeal asking the Ministry of the Interior, the Municipality of Bologna, the Region of Emilia Romagna and the Consortium L'Arcolaio to guarantee to the asylum seekers hosted in the CAS Mattei the personal distance imposed by the anti-Covid measures, claiming that in the structure they were not respected as the guests were forced to live in rooms of 8-10 people and without common spaces compatible with those measures.

The legitimacy judge accepted ASGI's arguments, stating that the right to health, even of asylum seekers, should be examined by the ordinary judge, i.e. the Court, because there is no discretionary power in front of measures pre-determined by the legislator in such a way as not to allow differentiated and discriminatory implementation (the measures on personal distancing).

The court of legitimacy recognises that the right to health (like all fundamental rights) must be guaranteed to all, without discrimination, and that its protection belongs to ordinary jurisdiction.

Prof. Avv. Paolo Iafrate

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