Case 252/2001

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The Court evaluated the constitutionality of article 19, para. 2 of the legislative decree 25 July 1998 no. 286 (Consolidating act on Immigration and Norms concerning the Status of Foreigners) (the Decree) which implicitly allowed the expulsion of a foreigner entering Italian territory without documentation and staying for the sole reason of completing essential medical treatment.

The Petitioner, a Senegalese citizen, entered Italy without proper documentation and without undergoing border control. The foreigner had his foot amputated outside of Italy and entered Italy with the sole intent of replacing his foot prosthesis, not having the opportunity to receive the medical treatment in his country. At the time of trial, the foreigner was located in a national care facility waiting for the new device, while being monitored by a voluntary organization.

Article 35, para. 3 of the Decree provided a list of health care interventions available to foreigners even if they had not fulfilled mandatory entrance requirements. The Decree guaranteed insured public and accredited outpatient care or hospital access for illness or injuries, however urgent or essential.

The Petitioner was given a prefectorial decree of expulsion, to which he appealed to the Court of Genoa. The Court of Genoa through its Order of 4 March 2000, found that Article 35, para. 3 of the legislative decree was inapplicable as it applied only to foreigners who became sick while in Italy. Unwilling to question the essentiality of the medical treatment, the Court of Genoa raised the question of the Decree to the Constitutional Court.

The Constitutional Court held that the decree of expulsion did not violate the Petitioner’s fundamental right to health as long as the Petitioner’s medical needs were not “urgent or however essential.” If the foreigner could prove that his expulsion would cause an irreparable injury to his right to health, a court must stop the deportation.

The Court stated that Articles 2 and 32 of the Italian constitution guarantee a right to health that includes an “irreducible core” of protection of health for all individuals, including foreigners. The “irreducible core” includes all necessary treatment, even continuing treatment, for sickness or injury. Outside of this irreducible core, the right to health is “balance[d] with other constitutionally guaranteed interests,” such as the protection of public order and security.

The Court found that the legislative decree, which described the different medical services available to different categories of foreigners, provided an articulated health care system for foreigners in line with the right to health. Also, the Court found that article 35, para. 3 was applicable to the present case, in part because the legislature wanted to include foreigners in irregular status as their status could cause a “barrier to the provision of therapeutic services.” However, the paragraph must be read as non-exhaustive to ensure the foreigner’s right to health.

“il “nucleo irriducibile” del diritto alla salute garantito dall’art. 32 Cost.; stante la lettera e la ratio delle disposizioni sopra riportate, a tali soggetti sono dunque erogati non solo gli interventi di assoluta urgenza e quelli indicati dall’art. 35, comma 3, secondo periodo, ma tutte le cure necessarie, siano esse ambulatoriali o ospedaliere, comunque essenziali, anche continuative, per malattia e infortunio.”

“Questo “nucleo irriducibile” di tutela della salute quale diritto fondamentale della persona deve perciò essere riconosciuto anche agli stranieri, qualunque sia la loro posizione rispetto alle norme che regolano l’ingresso ed il soggiorno nello Stato, pur potendo il legislatore prevedere diverse modalità di esercizio dello stesso.”

“Qualora risultino fondate le ragioni addotte dal ricorrente in ordine alla tutela del suo diritto costituzionale alla salute, si dovrà provvedere di conseguenza, non potendosi eseguire l'espulsione nei confronti di un soggetto che potrebbe subire, per via dell'immediata esecuzione del  provvedimento, un irreparabile pregiudizio a tale diritto.”

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