Italian Families vs. Who? The COVID-19 Lawsuit Against “Persons Unknown”

By: Emily Bengel

The Novel Coronavirus (AKA COVID-19) has been on the world’s radar since early 2020. Many governments have faced criticism regarding their responses to the virus, whether it be internal or external. Italy was unquestionably one of the hardest hit nations in terms of COVID-19 cases.[1] In fact, Italy quickly became an example of what not to do to combat COVID-19.[2] Now, families of Italian pandemic victims have taken to the Italian justice system in search of closure. A group of Italian families has filed complaints against “persons unknown” in Bergamo, Lombardy for the poor handling of the pandemic.[3] These questions remain: who will be held responsible, how will the entity responsible be punished, and might this complaint have implications for the rest of the world?

Italy’s criminal justice system is adversarial in nature and is based in written laws passed by the legislative branch of the Parliamentary Republic.[4] Prosecutors in Italy are largely independent from the executive and legislative branches of the government.[5] At issue here is the process of filing a criminal complaint. A complaint is a “statement by means of which an individual who was a victim of crime expresses a wish that the offender be prosecuted.”[6] After a complaint is lodged, the prosecution conducts a preliminary investigation, whether directly or with the help of the police.[7] If there is no probable cause after the preliminary investigation, the prosecutor will request that the judge presiding over it dismiss the case.[8] If there exists probable cause, there is a formal charge, and a judge holds a preliminary hearing after which she will issue an order for trial or pronounces a no case judgment.[9]

Complaints against “persons unknown” in Italy can be developed into complaints against discernable persons.[10] The authorities may be able to find information complainants cannot and may be in a better position to investigate an unknown person. Meanwhile, in England and Wales the court may lodge an injunction against an unknown party without identification of the party against whom the complaint is filed.[11] Italy also allows these types of complaints to be filed against a general portion of society, such as bystanders to a crime.[12] These types of complaints can be interpreted to be against society for its failures.

In early June, Italy’s justice system saw one of these complaints against “persons unknown” in response to the handling of the COVID-19 pandemic.[13] A group of fifty families of Italians who had died from COVID-19 filed a complaint in Bergamo, Lombardy.[14] Lombardy was the place in Italy hit hardest by the virus and the families felt that it had “become the symbol of this tragedy.”[15] The families came from all over Italy to file the complaint, feeling that the pandemic could have been handled more graciously and competently.[16] The families were not sure who was to blame for how the pandemic was handled, but they want to find out and they want someone to take responsibility.[17]

Possibly in response to these complaints, Italian prosecutors have questioned regional and national leaders in Italy about the response to COVID-19.[18] In mid-June 2020, prosecutors questioned the prime minister, health minister, and interior minister regarding the management of the crisis in Italy.[19] There is a question as to whether it was the regional officials or the national officials who should have taken earlier action. Local officials maintain that it was the national government’s responsibility to lock down regions impacted by the virus while the prime minister steadfastly claims that local governments have the authority to lock down regions that need to be locked down.[20]

In Italy, negligence involves three elements: duty, breach, loss to the injured party. The party must prove that “there was a duty of care owed.”[21] The party must next prove that “the duty was breached.”[22] The last element the party must prove is that “a loss was caused to the injured party as a result of the breach.”[23] So, the families of the deceased must prove each of these elements if they wish to recover from the government, the healthcare system, or anyone else. The first step for these plaintiffs will be to articulate who exactly to blame for their families’ deaths.

The first element of this claim will be to establish that a duty was owed to the plaintiffs. The plaintiffs would most likely find their greatest success against either the Italian national government or the Italian health department. These are the two entities most likely to have had the duty necessary for a negligence claim.

The second element of this claim will be to establish that someone breached this duty. If the plaintiffs can establish that some administration owed them and their families a duty, it seems that they would have an easy time convincing the court that the administration breached this duty. The plaintiffs will likely allege that there was enough information at the outset of the pandemic for the government to take some action to combat it, and it would be difficult to argue otherwise.

The third element of this claim will be to establish that the plaintiffs have suffered an injury. This is where the plaintiffs may find trouble. The plaintiffs will have to either allege that they suffered an injury themselves that is less attenuated than their relatives dying or will have to sue as a representative of their relatives who died of COVID-19.

In conclusion, the plaintiffs may be successful in a negligence claim, but the most important factor will be the factual information regarding the COVID-19 response they are able to gather. The question we must ask is, what success in this lawsuit in Italy could mean for governments across the world of countries hit hardest by COVID-19.

#Italy #COVID-19 #Pandemic #Bengel #International #Law #Blog #Post

[1] Praveen Duddu, COVID-19 Coronavirus: Top Ten Most-Affected Countries, Pharmaceutical Technology (Apr. 2, 2020), https://www.pharmaceutical-technology.com/features/covid-19-coronavirus-top-ten-most-affected-countries/.

[2] Gary P. Pisano, Raffaela Sadun & Michele Zanini, Lessons from Italy’s Response to the Coronavirus, Harvard Business Review (Mar. 27, 2020), https://hbr.org/2020/03/lessons-from-italys-response-to-coronavirus.

[3] ‘We Want Truth and Justice’: Families of Italy’s Coronavirus Victims File Complaint, The Local IT (June 10, 2020), https://www.thelocal.it/20200610/we-want-truth-and-justice-families-of-italys-coronavirus-victims-file-complaint [hereinafter We Want Truth].

[4] Pietro Marongiu & Mario Biddau, World Factbook of Criminal Justice Systems: Italy, 3 https://www.bjs.gov/content/pub/pdf/wfbcjsit.pdf (last visited Aug. 28, 2020).

[5] Id.

[6] Italy: Reporting a Crime and my Rights During the Investigation or Trial, european e-justice (last visited Aug. 28, 2020), https://e-justice.europa.eu/content_rights_of_victims_of_crime_in_criminal_proceedings-171-IT-maximizeMS-en.do?clang=en&idSubpage=6&member=1.

[7] Marongiu & Biddau, supra note 4, at 19.

[8] Id.

[9] Id.

[10] European Court of Human Rights, Mihova v. Italy: Information Note on the Court’s Case Law, No. 128, (Mar. 2010).

[11] Brett Wilson LLP v. Persons Unknown [2015] QB 2628 at [16] (Eng.).

[12] Rape Woman Files Complaint, ANSAen (July 3, 2019), https://www.ansa.it/english/news/general_news/2019/07/03/rape-woman-files-complaint_4e0958ae-7dfd-460a-8d49-3f3d40b69925.html.

[13] We Want Truth, supra note 3.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Sylvia Poggioli, Prosecutors Question Italy’s Top Leaders Over Coronavirus Response, npr (June 12, 2020), https://www.npr.org/sections/coronavirus-live-updates/2020/06/12/876143187/prosecutors-question-italys-top-leaders-over-coronavirus-response.

[19] Id.

[20] Id.

[21] Giambrone Law ILP, Italy: The Elements of a Professional Negligence Claim, mondaq (Jan. 9, 2014), https://www.mondaq.com/italy/professional-negligence/285294/the-elements-of-a-professional-negligence-claim.

[22] Id.

[23] Id.