Administrative court of Lazio accepts the appeal to allow minors below 12 years to be able to stay at the school desk without a mask

 

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N. 11506/2020 REG.RIC.

N. _____ / ____ REG.PROV.CAU.

N. 11506/2020 REG.RIC.

ITALIAN REPUBLIC

The Regional Administrative Court for Lazio

(Section One)

pronounced this

ORDER

on the appeal number of the general register 11506 of 2020, supplemented by reasons

added, proposed by

xxxx, on their own and as parents exercising parental authority

on the minor xxxxx, represented and defended by the lawyers Francesco Scifo e

Linda Corrias, with digital address as per PEC of the Registers of Justice;

versus

Presidency of the Council of Ministers, Ministry of Health, Ministry of the Interior,

Ministry of Education, in the person of their respective pro tempore legal representatives ,

represented and defended by the State Attorney General, where they are

domiciled by law in Rome, via dei Portoghesi, 12;

Autonomous Province of Bozen and Bolzano-Europe Multi-Comprehensive Institute 1, non

constituted in court;

and with the intervention of

ad adiuvandum :

xxxxxxxxx,

represented and defended by the lawyer Antonella Stefani, with digital address as per

PEC from the Registers of Justice;

International Coordination of Associations for the Protection of Minors (CIATDM)

ONLUS, represented and defended by Annalisa Del Col, Alessandra Barana

and Alessandra Devetag, with digital address as per PEC of the Registers of Justice

and elected domicile at the xxx studio in Pordenone, viale Martelli,

11;

xxxxx, represented and defended by the lawyer. Nino Filippo Moriggia, with

digital domicile as per PEC of the Registers of Justice;

xxxx, on their own and as

exercising power over the minor xxxxxxxx, represented and defended

by the lawyer Clara Provezza, with digital address as per PEC of the Registers of

Justice and elected domicile at his office in Milan, via Simone D'Orsenigo,

 

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6;

xxxxxxxx, represented and defended by Laura Mana e

Monica Seri, with digital address as per PEC from the Registers of Justice;

xxxxxx with 942 others (if od. O.) Intervening, represented and defended

by lawyers ti Nino Filippo Moriggia, Mauro Sandri and Maurizio Giordano, with

digital domicile as per PEC from the Registers of Justice;

for cancellation

after suspension of effectiveness,

as for the introductory appeal :

- of the decree of the President of the Council of Ministers of 3 December 2020, laying down

"Further implementing provisions of the decree-law of 25 March 2020, n. 19, converted,

with amendments, by law 22 May 2020, n. 35, bearing: «Urgent measures for

coping with the epidemiological emergency from COVID-19 "and the decree-law 16

May 2020, n. 33, converted, with amendments, by law 14 July 2020, n.

74, bearing: «Further urgent measures to deal with the epidemiological emergency

from COVID-19 ", as well as the decree-law 2 December 2020, n. 158, bearing:

 

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«Urgent provisions to deal with the health risks associated with the spread of

COVID-19 virus ", art. 1 paragraph 1 letter. b) and paragraph 9 lett. s), where it does not provide

the exemption or exemption circumstances for minors under the age of 12 as provided

from the international guidelines WHO and Unicef ​​";

as for the additional reasons :

- of the Decree of the President of the Council of Ministers of 14 January 2021

"Further implementing provisions of the decree-law of 25 March 2020, n. 19, converted,

with amendments, by law 22 May 2020, n. 35, bearing: «Urgent measures for

coping with the epidemiological emergency from COVID-19 "and the decree-law 16

May 2020, n. 33, converted, with amendments, by law 14 July 2020, n.

74, bearing: «Further urgent measures to deal with the epidemiological emergency

from COVID-19 ", as well as the decree-law 2 December 2020, n. 158, bearing:

«Urgent provisions to deal with the health risks associated with the spread of

COVID-19 virus ", art. 1 paragraph 1 letter. b) and paragraph 9 lett. s), where it does not provide

the exemption or exemption circumstances for minors under the age of 12 as provided

from the international guidelines WHO and Unicef;

- of the entire Prime Ministerial Decree as an act directly damaging to the applicants;

- of all the acts challenged with the introductory appeal, as presupposed acts.

Given the appeal, the additional reasons and related annexes;

Given the act of appearance in court of the Presidency of the Council of Ministers

with the Ministry of Health, the Ministry of the Interior and the Ministry of Education;

Given the request for suspension of the execution of the contested provision,

presented incidentally by the appellant;

Given the intervention documents;

Given the art. 55 cod. proc. amm .;

Having seen all the acts of the case;

Withholding its jurisdiction and competence;

Speaker, in the council chamber on 10 February 2021, Dr. Laura

 

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Marzano in remote connection via videoconference, pursuant to art. 4 DL

28/2020, converted into law, with amendments, by art. 1 L. 25 June 2020, n.

70, to which art. 25 DL 137/2020, as specified in the minutes;

Given that:

- that the applicants state that their youngest daughter is attending school

of the obligation and is forced to use the mask continuously at school without

exceptions, with the aggravating circumstance that the PPE is also imposed during the hours of

physical education without exception;

- that they, in remembering that this tax derives from art. 1 paragraph 1 letter. b) and

paragraph 9 letter. s) of the Prime Ministerial Decree of November 3, 2020 which has been exactly replicated

in the subsequent Prime Ministerial Decree of December 3, 2020 and January 14, 2021, subject to

appeal, believe that these measures, as regards the imposition of use

masks to children during school hours, are affected by numerous

vices, including that of abnormalities, affecting inviolable rights

going beyond the power attributed to the President of the Council of Ministers;

- that, in particular, as regards the measure in question, they complain about the defect of

motivation and preliminary investigation, as no evaluation of the

actual local and regional epidemiological situation nor resulting reasons

specifications for which the bezel cannot be removed under

static nature, when it is possible to guarantee the spacing between the counters, such as

recommended by WHO and UNICEF, as well as by the Technical Committee itself

Scientific (CTS);

- which, therefore, they argue that the disputed provision of the Prime Ministerial Decree would be

illogical, without motivation, technically implausible and, also, a harbinger of

potential damage to the psycho-physical health of children, recalling some studies

scientists evaluating the possibility of hypoxia caused by prolonged use of

masks;

- that, from this last point of view, they point out that their youngest daughter, although not

 

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having specific pathologies, he has revealed and evident problems of defect

oxygenation for prolonged use of PPE during the whole lesson time, such as

documented by medical certification;

- that, moreover, they denounce the lack of preliminary investigation and motivation also in

order to the balancing of constitutionally guaranteed values, possibly placed

at the basis of the contested measure;

- that, with additional reasons, the applicants, in challenging the measure of identical content

replicated in the Prime Ministerial Decree of 14 January 2021, they ascribe the same vices;

- that the administration has appeared in court supporting the legitimacy of the

measures challenged on the basis of the principles of precaution, proportionality and

adequacy according to the epidemiological context in place as well as dwelling

on the issue of the constitutional legitimacy of the emergency legislation issued for

contain the risks deriving from the spread of the Covid-19 contagion, in particular

analyzing the nature of extra- ordinances of necessity and urgency of the DPCM,

affirming compliance with the absolute law and jurisdiction reserve,

discussing the issue of the limit to fundamental rights based on

balancing with other rights and freedoms recognized by the Constitution;

- that, as regards the specific issue of the use of masks in the school environment,

the state defense recalls the note from the Ministry of Health - General Management

of the Prevention of 29 December 2020, filed in compliance with the ordinance

investigation issued in another dispute but also paid in deeds in the present

judgment, which would have ruled out that the use of masks during the hours

scholastic may cause harm to the physical and mental health of minors

between 6 and 11 years;

- that the intimate administrations maintain that the contested provision would be

in line with the indications provided on the subject by the CTS in minutes no. 104 of 31 August

2020, in which the technical recommendations for the use of the

surgical mask at school and that the Ministry of Education published on

its institutional website a note dated 9 November 2020, addressed to executives

 

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scholastics in order to dispel some interpretative doubts on the use of masks, in

to which “the opinion expressed by the CTS in minutes no. 124 relating to

session of 8 November 2020;

- that moreover the CTS, in the minutes n. 143 of 8 January 2021, he would have made his own

the notice expressed by the Ministry of Health in the note prot. n. 42458 of 29

December 2020 and recalls that the CTS had already expressed itself in the minutes no. 124 of

meeting of 8 November 2020, clarifying the scope of art. 1 paragraph 9, lett. s), of

DPCM November 3, 2020 and recalling the minutes no. 104 of 31 August 2020 of

same CTS;

- that, in any case, the state defense supports the unquestionability of the assessments

technical-scientific administration of the Administration for which manifest error has not been proven

and that they remain within the sphere of opinion within the community

scientific as, dealing with technical discretion, the trade union

jurisdictional should be limited to the examination of "extrinsic" reasonableness and of

absence of obvious illogicality of the motivation of the measures adopted on the basis

the opinions of the bodies (such as the CTS) institutionally responsible for this;

- that the interveners, all parents of children under 12, as well as an ONLUS

which has as its corporate purpose the protection and promotion of children's rights,

in adhering to the complaints contained in the additional grounds, they formulated grievances

of similar tenor with which, in a nutshell, they censor the DPCM of 14

January 2021, in the part of interest, for lack of preliminary investigation and motivation, for

unreasonableness and lack of proportionality where the obligation to wear the

masks was imposed on children between the ages of 6 and 11, in

absence of scientific studies demonstrating its usefulness and absolute necessity

generalized obligation, even where schoolchildren are seated at the desk and between the desks

there is the prescribed distance, contrary to the indications of the CTS itself;

- that all parts report the danger of prolonged use of the mask

can have negative consequences for the physical and mental health of children,

 

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recalling, in this regard, scientific studies which would not exclude this risk;

Detected:

- that, although there are no precautionary requirements relating to the contested acts

with the introductory appeal, which have lost effectiveness, the examination of the same yes

imposes for reasons of logical and legal antecedence as well as for compensation purposes

announced by the applicants;

- that the contested measure was imposed, for the first time, with the DPCM of 3

November 2020, which recalls minutes nos. 122 and 123 of the sessions of the CTS,

respectively, of 31 October and 3 November 2020;

- that the first (no. 123) did not concern the measures relating to teaching in

"Presence" and, in the second (n. 124) the CTS, called to express an opinion on the

draft of the adoption of the DPCM, he limited himself to evaluating “congruous the general layout

of the Prime Minister's Decree relating to the adoption of further measures aimed at containing the

contagion from the Sars virus - coV-2 commensurate with the current epidemiological phase "without

nothing to indicate on the specific point of the use of masks at school;

- that in the minutes no. 124 of 8 November 2020, subsequent to the aforementioned date

DPCM, in answering some questions posed by various Ministries, the CTS after having

reported the text of the contested provision found that “the same Prime Ministerial Decree

does not indicate any exceptions related to distancing for the school context "

adding that “also in consideration of the trend of the contingency

epidemiological, the CTS considers it desirable and appropriate to confirm the measure

adopted in coherence with the scalability of the measures envisaged by the “Measures of

prevention and recommendations for school students of all levels

for the resumption of the school year 2020-2021 "approved in the session of the CTS of

31/08/2020 ";

- that in the aforementioned report no. 104, dedicated exclusively to the theme of

imminent reopening of all schools, we read: “ The restart of activities

schools, therefore, must continue to take evolution into account

of the epidemiological trend, also providing for modularity and scalability

 

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preventive actions including the one in question [NDR the use of the mask].

In particular, the World Health Organization, in a recent document

of 21 August provides indications regarding the use of masks in the field

school, differentiating them by age groups: - Between 6 and 11 years: conditional use

the local epidemiological situation, paying attention, however, to the context

socio-cultural and factors such as the child's compliance in using the

mask and its impact on learning skills; - From 12 years onwards:

use the same forecasts of use as adults ";

- which, again in the same minutes, the CTS states: “ Stressing the importance

of the use of these masks, it is specified that: -In primary school,

to facilitate learning and relational development, the mask can be

removed in static conditions (ie children sitting at the counter) with respect for

distance of at least one meter and the absence of situations that foresee the possibility

aerosolization (eg singing) ";

- that, therefore, in the specific document in which the CTS expressed its opinion on the

theme of the use of masks at school, in advance of adoption

of administrative acts (minutes n.104 of 31 August 2020), this technical body-

scientific advice did not recommend to impose its use, indiscriminately, on children

aged between 6 and 11, stating vice versa that “ the mask can

be removed in a static condition (ie children sitting at the counter) with the

respect for the distance of at least one meter and the absence of situations that foresee

the possibility of aerosolization (eg singing) ";

- that, again in the minutes no. 104, the CTS specified that the restart of the activities

school will have to continue to take into account the evolution of the trend

epidemiological, also providing for a “ modularity and scalability of the actions of

prevention "including that of the use of masks, therefore excluding one

indiscriminate imposition of the use of masks but suggesting to modulate e

scale the measures in pejus or in melius in consideration of both evolution

 

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of the epidemiological trend and of the objective “respect for the distance of at least

one meter "between the benches;

- that, again, in the minutes under review the CTS reiterated “ that the distancing

physical (intended as a minimum distance of 1 meter between the pupils' mouth rhymes and, a

greater protection of teachers, of two meters in the interactive area of ​​the chair

between the teacher himself and the desks) remains one of the points of primary importance

in the actions of prevention of epidemic containment and is to be understood in

school context, in general, both in static and moving conditions ";

- that, in the minutes no. 133 of 3 December 2020, referred to in the subsequent DPCM of

3 December 2020, the CTS assessed the general layout of the draft of

DPCM submitted to your attention, but did not express anything in order

the imposition of masks on children during school hours;

- that, finally, also in the minutes no. 144 of 12 January 2021, referred to in the Prime Minister's Decree

of 14 January 2021, the CTS did not make any observations on the measure in

speech, object of appeal;

Considered:

- that, on the basis of the reconstruction carried out so far, the Prime Ministerial Decree of 3 November

2020 seems to have deviated from the preventive and specific indications provided by the

CTS in the minutes n. 104 quoted, without however giving any reasons on the reasons for

different opinion and without adducing or recalling different preliminary evidence

notice, in cases deemed to prevail over the technical-scientific opinion of the CTS;

- that, in fact, the two minutes of the CTS (no.122 and no.123) referred to in the Prime Ministerial Decree of 3

November 2020 which, for the first time, imposed the unconditional use of the

mask for children under 12, express nothing on the specific point

object of complaint, so that there appears to be the alleged lack of motivation and of

investigation;

- that the same defect appears perpetuated in subsequent Prime Ministerial Decree, in the part in which

they reiterated the censored measure without providing for the possibility of removing the

mask “ in static conditions (ie children sitting at the counter) with respect

 

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of a distance of at least one meter and the absence of situations involving the

possibility of aerosolization (eg singing) ", as recommended by the CTS in the minutes no.

104, in the absence of a different and / or prevalent preliminary support;

- which, in order to cover a measure, which the applicants strongly believe

invasive and potentially harmful to the psycho-physical health of minors, it does not seem

the mere evaluation of the adequacy of the general system of the subsequent ones is sufficient

DPCM expressed by the CTS;

- that, more and more, the position of the CTS appears perplexed which, in the minutes no. 124 relative

at the session of 8 November 2020, “believes it desirable and appropriate to confirm the

measure adopted "but" in line with the scalability of the precautions "envisaged by the

“Prevention measures and recommendations for school students of all

order and grade for the resumption of the school year 2020-2021 ", approved in

session of the CTS n. 104 of 31 August 2020;

- which, indeed, since the aforementioned document expressly indicated the possibility of

remove the mask in a static condition and with the spacing, appears

intrinsically contradictory is the affirmation of hoping for the confirmation of one

measure that was placed in dystonia with the document “Prevention measures e

recommendations for school students of all levels for recovery

of the school year 2020-2021 ", continuing however to postpone and, substantially,

to confirm the full validity of this document;

- that, finally, the note from the Ministry of Health - General Direction of

Prevention of December 29, 2020, indicates only certain evidences

have been assumed as the technical-scientific basis of the imposition

of the contested measure, but limits itself to referring to various scientific literature in which

the issue of possible repercussions on the psycho-physical health of children is addressed

resulting from prolonged use of the mask, in which discomfort was detected

psychological use caused by this use and it was considered “that the perceived discomfort and the

negative attitudes associated with the use of masks during the pandemic

 

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COVID-19 can be at least partially explained by attempts to comply

three basic psychological needs (autonomy, relationship and understanding), rather than

with a real physiological discomfort ";

- that the CTS, in the minutes no. 143 of January 8, 2021, did not “own” the notice

expressed by the Ministry of Health in the note prot. n. 42458 of 29 December 2020,

as claimed by the tax defense, but limited itself to acquiring it and retransmitting it to

Litigation Service of the Department of Civil Protection for the follow-up of

competence, without providing any autonomous response to the inquiry request in

function for which this note was prepared;

- that, therefore, the validity of the argument appears to be confirmed overall

lack of preliminary investigation and motivation;

Valued:

- that the precautionary needs proposed by the applicants - without prejudice to the legitimate

exemption from the use of PPE "for people with pathologies or disabilities incompatible with

the use of the mask ", where certified, as required by art. 1, paragraph 9, lett. s)

of the contested measures - can find adequate protection in a remand

to the administration to re-evaluate the prescription under review, concerning

the obligation for minors between the ages of 6 and 11 to wear the

mask in the school environment, in light of the specific indications dictated by

CTS in the document “Prevention measures and recommendations for students

of schools of all levels for the resumption of the school year 2020-2021 ",

providing, if necessary, the possibility of removing the mask “ in condition of

static (ie children sitting at the desk) with respect for the distance of at least one

meter and the absence of situations that foresee the possibility of aerosolization (eg.

canto) "and also taking into account, possibly and in the light of scientific data, the

local epidemiological situation as suggested by the World Organization

of Health in the document of 21 August 2020 referred to by the CTS in the aforementioned

minutes no. 104;

- that the administration will have to provide for this on the occasion of the re-edition of

 

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power, in view of the expiry of the DPCM of 14 January 2021, which remains

effective also in the part subject to appeal and up to new decisions

of the administrative authority, in compliance with the precautionary principle;

Considered:

- that a public hearing on 14th must be set for the discussion of the merits

July 2021;

- that the expenses of this phase can be compensated in consideration

the absolute novelty of the issues dealt with;

Also noted:

- that access to the digital file requested by Ms

, the latter having to be

ousted, to the state, from the judgment, having deposited an irrational memorandum of

constitution;

PQM

The Regional Administrative Court for Lazio, Rome, Section One, accepts

the aforementioned precautionary request in accordance with the motivation, maintaining firm

the effectiveness of the contested provision.

Fixed, for the discussion of the merits, the public hearing of July 14, 2021.

It compensates all the parties for the expenses of this phase.

Authorizes Messrsxxxxx to access the file

digital. xxxxxx excluded from the judgment.

This ordinance will be executed by the Administration and is filed with the

court secretariat that will notify the parties.

Considering that the conditions referred to in article 52, paragraphs 1, 2 and 5, of the

legislative decree 30 June 2003, n. 196, and of article 6, paragraph 1, letter f),

of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27

April 2016, sends the Secretariat to proceed, in case of reproduction in any

form, obscuring the personal details of the two minors and their respective subjects

 

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exercising parental authority, mentioned in the provision.

So decided in the council chamber of Rome on 10 February 2021, in

remote connection via videoconference, pursuant to art. 4 DL 28/2020,

converted into law, with amendments, by art. 1 L. 25 June 2020, n. 70, of which

refers to art. 25 DL 137/2020, with the intervention of the magistrates:

Antonino Savo Amodio, President

Laura Marzano, Director, Writer

Francesca Petrucciani, Director

THE EXTENDER

PRESIDENT

Laura Marzano

Antonino Savo Amodio

THE SECRETARY

In case of disclosure, omit the personal details and other identification data of the interested parties within the terms

indicated.