The principle of non-refoulement provided for by Article 33 of the Geneva Convention constitutes a principle of international law with a significant role in the protection of human rights. This principle has been confirmed by the European Court of Human Rights, which has affirmed the state's responsibility for returning an asylum-seeker to a country where he risks being subjected to inhuman and degrading treatment or torture, in breach of Article 3 of the European Convention on Human Rights. Considering this reasoning, in the case of Hirsi Jamaa and others v. Italy, the European Court of Human Rights found the Italian State responsible for violating Article 4 of Protocol No. 4 for the collective refoulement of migrants without a procedure for assessing their individual situation in a state where they could face inhuman and degrading treatment, as well as for violating Article 13 of the European Convention on Human Rights, as the applicants had been denied the opportunity to appeal before the expulsion measure was carried out. Recently, the European Court of Human Rights' orientation has changed since, in the case of N.D. and N.T. v. Spain, the Court excluded the violation of both Article 4 of the 4th Protocol and Article 13 of the European Convention on Human Rights, stating that the collective rejections were due to the “applicants' own conduct”. This decision entails many perplexities regarding the protection of human rights. Received: 24 January 2022 / Accepted: 19 March 2022 / Published: 5 May 2022
This article aims to analyze the thematic of medical team liability considering the recent Italian Supreme Court case-law, highlighting the various problems linked to the identification of the responsibility of each member of the team. The participation of several subjects in the execution of medical treatment makes the question of criminal liability very complex, especially when it comes to inauspicious events, such as injuries or death, occurring during medical treatment. The question concerns the exact identification of the duty of care and vigilance of the medical team and whether this duty is in line with the principle of individual criminal responsibility guaranteed by Article 27 of the Italian Constitution. In this regard, the case-law has elaborated the so-called “principle of reasonable confidence”, according to which the division of labour that belongs to each member should involve a delimitation of his responsibility, limited only to what is within his competence, except in case of the person who organizes, directs, and controls the team. Precisely, based on this principle, the Italian Supreme Court in 2018 reasserted that in the medical team is necessary to identify the role played by each member, thus avoiding resorting to objective responsibility.
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