La responsabilità civile della pubblica amministrazione per lesione di diritti fondamentali e risarcimento del danno non patrimoniale (Tar Milano, Lombardia, Sez. III, 6 aprile 2016, n. 650 e Consiglio di Stato, Sez. III, 21 giugno 2017, n. 3058)

The paper analyses the decisions rendered by the Italian Administrative Courts related to the Englaro Case, among the very few cases of condemnation of a Public Administration by Administrative Courts to refund non-pecuniary damages suffered as a consequence of the breach of the Fundamental Right to Health. The Administrative Courts ordered the Lombardy Region to compensate the non-pecuniary damages suffered as a consequence of its breach of the Right to Health, interpreted as the right to refuse medical treatments. The paper illustrates how much the Administrative Courts’ power in protecting Fundamental Rights has increased in the last decade, highlighting the most important steps that has led to such change and focusing on the issues that are still unsolved. Among those issues are the relation between the above described power of Administrative Courts to protect Fundamental Rights and the so-called “incompressible rights’ theory” (teoria dei diritti indegradabili), the nature of Public Administration’s civil liability, the subjective element of the breach and the criteria for the measurement of non-pecuniary damages suffered as a consequence of breach of Fundamental Rights.