IS divided into three heads, the D.l. 44/2021 (text at the bottom), converted into law on 28 May last (Law 76/2021) and contains heterogeneous but very important interventions:
- containment of the epidemic, rules on vaccinations, criminal shield for health professionals;
- rules on justice during the emergency period and up to 31 July next;
- simplification of public competitions.
So let’s see the main innovations introduced by the decree and the conversion law.
Reopening of visits to the nursing homes
The containment measures contained in the law decree and valid for the period from 7 April to 30 April last (Article 1) as well as the measures on the reopening in the presence of primary and lower secondary schools (Article 3) have been superseded by rules of the reopening decrees.
On the other hand, an important novelty, introduced during the conversion of the decree into law, concerns the reopening of visits to the elderly in the nursing homes. The new article 1 to restores access to nursing homes throughout Italy and to all residential, long-term care and social welfare facilities, to family members and visitors with green passes, in compliance with the guidelines issued by the Ministry of Health on 8 May 2021.
Not punishable for death and injury caused in the administration of the vaccine
Confirmed in its original form the rule that exempts the staff who administers i vaccines from liability for manslaughter or culpable injury. The disclaimer is verbatim configured as one cause of exclusion of punishment, subject to proof that the vaccine has been used in accordance with the indications contained in the marketing authorization provision and the circulars of the Ministry of Health on vaccination activities (Article 3)
Criminal shield for doctors and nurses, for the period of Covid emergency
A significant change introduced during the conversion is the limitation of the criminal liability of medical personnel for the crimes of manslaughter and personal injury occurred during the emergency period. (art. 3 bis). Crimes occurring in the exercise of a health profession that are caused by an emergency situation benefit from a “criminal shield”. In fact, the punishment takes place only in the case of gross negligence of the doctor.
The new rule also specifies that among the factors that can exclude the seriousness of the fault, the judge may also consider:
- the narrowness of scientific knowledge at the time of the fact about the pathologies caused by the virus and about the appropriate therapies;
- the scarcity of human and material resources concretely available in relation to the number of cases to be treated;
- the lesser degree of experience and technical knowledge of the unskilled personnel employed during an emergency.
Obligation to vaccinate health personnel
Until the complete implementation of the vaccination plan, and in any case no later than 31 December 2021, in order to ensure adequate safety conditions, thevaccination obligation for healthcare professionals and healthcare professionals (Article 1 of Law 43/2006) who carry out their services:
- in health facilities
- in social and health structures
- in social welfare structures
- in pharmacies and parapharmacies
- in professional offices
Vaccination is an essential requirement for the performance of work and for the exercise of the health profession. It can only be avoided in the event of an established danger to the health due to particular documented clinical conditions. Failure to vaccinate leads to suspension from duties involving interpersonal contacts, with consequences in terms of pay. (Article 4 paragraph 8)
Justice and problems of electronic filing of criminal acts
The Dl. 44/2021 extended the measures provided for by the Ristori decree (Legislative Decree 137/2020) until 31 July 2021, (art.23 remote hearings, council chamber in the Supreme Court for cases for public treatment unless otherwise requested, council chambers from remote, executive copies of sentences and other measures issued with electronic document; art.23 bis: criminal appeals in the council chamber, unless requested for oral discussion; art.23 ter: provisions on the suspension of the prescription course and the terms of custody precautionary measures in criminal proceedings, as well as on the suspension of terms in disciplinary proceedings against magistrates; Article 24: Provisions for the simplification of the filing of deeds, documents and requests).
The novelties of the decree, substantially unchanged in the conversion into law, concern:
- the extension of the paper appeal provided for by art. 23 bis of Legislative Decree 137/2020 also to the real precautionary appeal against the orders regarding preventive seizure and against the decrees revoking the preventive seizure ordered by the PM (art.322 bis cpp).
- The filing of criminal acts through the portal of the electronic process is considered timely as occurred within 24 hours of the day of expiry.
- To remedy the problems of filing documents in the event of a PDP malfunction, the Director of the DGSIA of the Ministry of Justice must certify the malfunction and report it on the PST portal. This certification is considered a case of “force majeure” for remission in terms of art. 175 cpp
With the conversion law, an ad hoc provision was dictated for the elections of the members of the council of lawyers and state prosecutors. The new art. 7 bis introduces the possibility of voting by post (by registered letter), if the elections are held in a period of emergency, ensuring in any case the right to the secrecy of the vote.
Stabilization of socially useful workers
The possibility of stabilizing socially useful workers hired by the Public Administration has been extended (paragraph 495 of Law 160/2019), until 31 July 2021) even if in excess of the staffing resources, the plan for staff needs and hiring constraints foreseen
Public competitions: the pre-selection for qualifications only envisaged in the first formulation of the decree is no longer valid.
The protests of young people on the preselection for qualifications only in public competitions provided for by the so-called Brunetta Reform have been accepted. In the aftermath of the publication of Legislative Decree 44/2021 it had aroused controversy and serious doubts of constitutionality the possibility provided for by art. 10 to delete the quizzes in the presets of all public competitions and proceed to the evaluation for qualifications only. Minister Brunetta then reassured his intention to provide for the preselection based on qualifications only for recruitments destined for highly specialized positions and yet despite the assurances of the creator of the reform, a very vague wording of the text remained. The well-founded fear was that even for public competitions for “basic” positions (such as the competitions held by the Municipality of Rome) the Administrations could simplify the pre-selection phase with the evaluation based on qualifications only, ending up excluding from the competitions precisely the most Young people. The rule remained broad also in reference to the subsequent phase of formation of the rankings for which qualifications and experiences gave the right to a higher score, again to the detriment of the youngest who did not have work experience.
The disputed provision was in article 10 paragraph 1 lett. c) and the wording provided “a phase of evaluation of the legally recognized qualifications for the purposes of admission to the subsequent competition phases. The qualifications and any professional experience, including service titles, can contribute to the formation of the final score “.
During the conversion into law, Parliament appropriately corrected the shot. The new wording of letter c) in fact limits the pre-selection for qualifications only to competitions for qualified profiles in the call as “With high technical specialization“, Provided that the securities valued are “Legally recognized and closely related to the nature and characteristics of the banned positions”. IS a new paragraph c-bis) has also been added, which correctly and in compliance with constitutional principles, places the limit of 1/3 to the value that qualifications and experience assume in the formation of the final score.
DL 1 APRIL 2021, N. 44 (COORDINATED TEXT) >> DOWNLOAD THE PDF TEXT
Legal Newspaper public Lex – Agenda Coronavirus, the collection of all the legislative measures issued since the identification of the first case of contagion from COVID-19, to date.