Submitted by Denitsa on
ITALY
Title:
Judgment No. 86 of 2009
Court:
Constitutional Court
Date:
27 March 2009
CRC Provisions:
Article 26: Social security
Article 27: Standard of living
Domestic Provisions:
Article 85 of presidential decree No. 1124 (on compulsory insurance against industrial accidents and occupational diseases): entitlement to spousal and child annuities following the death of a worker
Article 3 of the Constitution: equal rights of citizens without distinction
Article 30 of the Constitution: rights of illegitimate children born out of wedlock to the same legal and social protection as legitimate children
International Provisions:
Charter of Fundamental Rights of the European Union, Article 21: prohibition of discrimination
Charter of Fundamental Rights of the European Union, Article 24: Right to protection and care as is necessary for child's well-being; child's right to express views freely and have views taken into consideration; and the child's best interests must be a primary consideration.
Case Summary:
Background:
This case was referred to the Constitutional Court by a lower court with a request to review the constitutionality of Article 85 of presidential decree No. 1124 which stated that a married spouse is entitled to an annuity equivalent to 50% of the annual salary of the deceased worker; a legitimate or recognised biological child or adoptive child is entitled to an annuity equivalent to 20% of the annual salary of the deceased worker; and an orphan who has lost both parents is entitled to 40% of the annual salary of the deceased workers.
The case concerned an application by the unmarried mother of a child whose father was killed in an industrial accident for the award of a widow's annuity on the same conditions as a married widow (i.e. 50% of the annual salary of the deceased father), or in the alternative, the recognition of the right of the child to an annuity (equal to 40% of the annual salary of the deceased father), from the National Institute for Insurance against Industrial Accidents (Inail).
As the provision does not take into consideration the death of a parent within a de facto family situation, the surviving child in this case was only entitled to a 20% annuity and was also deprived of the annuity that the mother would have been entitled to had she been married to the deceased. The referring courts submitted that the provision was, therefore, in violation of a number of constitutionally protected rights, including the right to protection from discrimination in Article 3 and the right of illegitimate children born out of wedlock to the same legal and social protection as legitimate children in Article 30 of the Italian Constitution.Finally, the contested provision was stated to violate Article 117 of the Constitution on the grounds that it does not comply with the requirements laid down by EU law - the EU Treaty and the Charter of Fundamental Rights of the European Union - and international law obligations - the UN Convention on the rights of the child.
Issue and resolution:
Social security and legitimacy of children. The Constitutional Court rejected the mother's claim to be entitled to the same annuity as a married widow as well as the claim that Italy was not complying with its EU and international law obligations. However, with regard to the child, the Constitutional Court decided that the provision is discriminatory in violation of Articles 3 and 30 of the Constitution as the biological child of the unmarried couple is in the same position as a child who has lost both parents and should be awarded the same 40% annuity rather than just 20%.
Court Reasoning:
The Court said it is settled law that under the Constitution, there is a distinction between de facto families and families founded on marriage, due to the aspects of stability, certainty, reciprocity and of rights and duties which are born only out of that marital bond. Marriage is directly protected by Article 29 of the Constitution and, therefore, distinctions in the law based on the legal status of marriage are justified and not unreasonable.
However, The Court ruled that, in providing that the post-accident annuity is to be awarded at the level of 20% to each legitimate, biological, recognised or recognisable child up until the age of eighteen, and 40% for children who have lost both parents, the contested provision discriminates between biological children and legitimate children and hence violates Articles 3 and 30 of the Constitution. Whereas for legitimate children the death of a spouse from an accident entails the award of an annuity to the surviving spouse at the level of 50%, and to each child at 20%; the death due to accident of a person who is not married and has recognised biological children does not entail the award to the surviving parent of any post-accident annuity, whilst the children have the right only to 20% of the annuity.
Although legitimate or biological recognised children enjoy – in the event of a fatal accident to their parent – the post-accident annuity at the same level, the discrimination however derives from the fact that only legitimate children may receive that additional benefit of the 50% of the annuity awarded to the surviving parent. Whereas, for the purposes of the determination of the level of post-accident annuity the minor is in a similar situation to that of a child who has lost both parents – not receiving any financial benefit, even indirectly, to that end by virtue of the survival of the other parent, who is not entitled to any annuity due to the fact that he or she is not married – he only has the right to 20% of the annuity, and not also to the 40% due to children who have lost both parents.
The Court therefore found that the contested provision was unconstitutional insofar as, in providing that in the event that the insured person is fatally injured, children who have lost both parents shall be entitled to 40% of the annuity, it precludes the award of the annuity at the same level also to a child who has only lost one biological parent.
Excerpts citing CRC and other relevant human rights instruments:
This above principle that special protection be granted to families is also inspired by the Convention on the Rights of the Child, signed in New York on 20 November 1989 and ratified in Italy by law No. 176 of 27 May 1991, Article 27 of which requires the states to adopt appropriate measures, in accordance with national conditions and within their means, to assist parents to implement the right of every child to a standard of living adequate for the child's physical, mental, spiritual and social development.
However – as pointed out in the referral order – the legislation does not take into consideration, given also the period when it was adopted, cases involving the death of a parent within a de facto consolidated family situation, with the result that also in this case the surviving child is only paid twenty percent of the annuity. In this way, the child is deprived also of that share of the annuity reserved for the spouse which is naturally destined to satisfy the requirements of the nuclear family and not only the spouse's own maintenance requirements. This fact is also recognised by the Convention on the rights of the child signed in New York on 20 November 1989 and ratified in Italy by law No. 176 of 27 May 1991 which, in order to guarantee protection and particular care to the child, also makes provision for the protection of the family (not understood in a narrow legal sense) as the “fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children”. In particular, Article 27 of the Convention recognises the right of every child to a standard of living adequate for the child's mental, spiritual, moral and social development, and states that the parents have primary responsibility to secure the conditions of living necessary for the child's development. On the other hand, signatory states to the Convention are required to adopt “all appropriate measures to secure the recovery of maintenance for the child from the parents”. Precisely due to Article 27 of the Convention, the refusal by the Inail to grant a lower annuity to the mother only because she was not recognised as the “spouse” is argued to impinge upon the guarantees provided to the child.
Such protection is also explicitly referred toin Article 24 of the Charter of Fundamental Rights of the European Union of 7 December 2000, which enshrines the right of the child to well-being and asserts the principle of the primary interest of the child in all actions taken by public authorities or private institutions, and similar protection is also guaranteed under Articles 26 and 27 of the Convention on the rights of the child.
Article 27 of the Convention on the rights of the child expressly provides that “the States Parties recognise the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development (...) the States Parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child”.
CRIN Comments:
CRIN believes this decision in consistent with the Convention. Article 2 of the CRC prohibits all forms of discrimination against children irrespective of the child's or his or her parent's or legal guardian's status.
Citation:
Judgment No. 86 of 2009
Link to Full Judgment:
http://www.cortecostituzionale.it/documenti/download/doc/recent_judgments/S2009086_Amirante_Finocchiaro_en.pdf
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.
