Sull’appellabilità del decreto cautelare monocratico: tra esigenze di tutela conseguenti alla pandemia e orientamenti giurisprudenziali contrastanti

Law 205/2000 introduced the possibility for the applicant to apply directly to the president of the court in order to obtain a provisional precautionary measure in cases of "extreme gravity and urgency, such as not to allow even the extension until the date of the council chamber". The law provided that the president of the court would provide by means of a reasoned decree, a decision with a limited time validity, that is, effective until the ruling of the collegiate body, called to confirm or cancel the aforementioned presidential provision.
Right from the start, the conviction about the inadmissibility of the appeal against the provision itself was affirmed. Today, art. 56, paragraph 1 of the administrative process code provides that in case of extreme gravity and urgency, such as the impossibility to wait until the date of the council chamber, the applicant can ask the president of the T.A.R. or also of the section to which the appeal is assigned, to order provisional precautionary measures; the President provides with a "reasoned decree that cannot be appealed". Well, in the face of the aforementioned clear regulations in force, for some time now, in particular in correspondence with the explosion of the pandemic from Covid-19 for the related reasons of urgency in relation to various issues submitted to the administrative judges, it has been stated a jurisprudential line in the sense of the admissibility of the appeal against the precautionary decree in question. this, in particular, where a definitive and irreversible loss of a good of life corresponding to a constitutionally protected right of the person concerned is configurable.