Resumen de Il «fondamentale» diritto alla salute nell’emergenza pandemica: "princeps" o tiranno?
The aim of this paper is to provide a constitutional framework for the most relevant public health measures that affected the enjoyment of (constitutionally protected) freedoms during the Covid-19 pandemic, and to reflect on the constitutional relevance of individual and collective health and its implications. In this regard, it is first highlighted how the protection of health represents a limitation explicitly and specifically laid down in the provisions relating to certain constitutional rights (i.e. freedom of movement and freedom of assembly), whereas other obligations and prohibitions that have characterized the pandemic legislation, such as quarantine and mask mandates, should be traced back to Article 23 of the Italian Constitution (No obligation of a personal or financial nature may be imposed on any person except by law). Secondly, the fundamentality issue is addressed: what meaning should be assigned to the fundamental nature that, by the express and singular provision of Article 32 of the Constitution, distinguishes health as an individual right and a collective interest? On this point, we believe that the fundamental nature of health protection places it in a position of greater resistance to opposing rights and interests: a position that, without excluding the possibility of balancing, still aims to ensure that the enjoyment of other constitutional rights does not have harmful or detrimental consequences for the psychophysical well-being of the individual.
