The Court of Cassation and compensation for unlawful deprivation of liberty: Cass. civ. n. 33290 of 2024

The judgment of the Court of Cassation no. 33290 of 2024 offers an important clarification regarding civil liability connected to the unlawful deprivation of liberty through a compulsory health treatment (TSO). In this case, the Court reiterated that, despite the unlawfulness of the TSO, compensation for damages cannot be automatically recognised but must be proven.

The context of the judgment

In the case examined, A.A. had undergone a TSO declared unlawful, for which he sought damages. The Court of Appeal of Ancona had rejected the claim, arguing that adequate proof of the damage suffered had not been provided. The Court of Cassation, in reviewing the case, highlighted the need to prove the existence of unjust damage as a consequence of the deprivation of liberty.

The Court stressed that the annulment of the TSO does not exempt the appellant from the burden of proving the damage suffered.

Legal implications

The judgment refers to important legal principles, particularly those relating to articles 2043 and 2059 of the Civil Code and the rights enshrined in the Italian Constitution and the European Convention on Human Rights. In particular, the Court of Cassation highlighted that any health treatment, even if unlawful, requires an accurate assessment of the damages suffered, which cannot be considered in re ipsa.

• The TSO must be motivated and justified by a health emergency situation.
• The appellant must demonstrate the existence of pecuniary or non-pecuniary damage resulting from the treatment received.
• The patient's psychological fragility must not be considered an excuse to deny the assessment of damages.

Conclusions

The judgment of the Court of Cassation no. 33290 of 2024 represents a significant reference point in Italian jurisprudence regarding compensation for damages from unlawful TSO. It reaffirms the importance of proof in quantifying non-pecuniary damage, emphasising that even in cases of violation of fundamental rights, the injured person must demonstrate the negative consequences suffered. Therefore, this case serves as a warning to healthcare facilities and competent authorities to adhere to the principles of legality and respect for individual rights.