Foreign companies operating in Italy by way of a subsidiary or a branch might be confused by the requirements? that allow people to circulate under the exemption set forth by the government in the COVID-19 quarantine regime.
In the event of a police check, every individual who is caught in the street is supposed to exhibit a “self-certification” or “self-declaration” that justifies the abandonment of his house. This is one of the biggest worries for citizens and for companies whose employees have to go around for maintenance work, deliveries or anything that requires current production needs.
Although, in order to avoid aggravating the already difficult situation of police officers carrying out checks, it is advisable to produce the required documentation, it must be said that this is an act of questionable legal value and of little use for the purposes of proving a criminal offence has been committed.
First of all, it is not a “self-certification” because “self-certification” is meant to to prevent the public administration from asking for information which it already has in its possession. In fact, even the form issued by the Ministry of the Interior does not contain any reference to Presidential Decree 445/00, which is, in fact, the basic rule on self-certification, citing only Article 495 of the Criminal Code which punishes
Anyone who falsely declares or attests to the public official the identity, status or other qualities of himself or others.
The be relevant as evidence, the statement must be contained in a formal deed and therefore, in the case of a police check, the operator must fill in a report with the personal details of the person concerned and any statements (including those relevant to compliance with COVID-19 regulations). It is therefore not necessary to carry the model prepared by the authorities because all these statements should – indeed, they must – be recorded in a formal statement, in response to specific requests from the police operator.
The point is, however, that the COVID-19 regulation contains a prohibition, but not the penalty for those who violate it. Therefore, the police operator, strictly speaking, would not know what to object to the person stopped.
Since there are no administrative sanctions to be contested, therefore, the only options for the officer or the agent is to report to the judicial authority that a crime has ben committed. But if they fail to ascertain it at the moment the falsehood of the statements (for example, by asking for a prescription or a supermarket receipt proving the motive of the movement), the charge cannot be formalized, the criminal investigation is not opened, and hardly could be in the future.
The public prosecutor, in fact, cannot “go fishing” for crimes, but intervenes upon a police report or on direct knowledge of the commission of a crime. Therefore, he cannot randomply extract from the pile of “self-declarations” the name of the subject to be controlled, as in a decimation, but he must move on the basis of concrete and specific elements. But in this case, the suspect would not have the duty to co-operate in the investigation, and in the face of the request to produce evidence regarding the content of the declaration then released to the police, he could simply answer “I do not remember”. And therefore, in the absence of evidence, the proceedings would have to be dismissed.
Secondly, coming to the daily court practice: provided that the Public Prosecutor’s Offices have carried out the investigations to prove the actual violation of the rule, charging somebody fore to the violation of Article 650 of the Criminal Code will result in a sentencing to pay about 50 Euros. Or, by opposing the “criminal decree of conviction” (perhaps because you do not want to stay for some time with a criminal record) and paying about 180.00 Euro, you can immediately extinguish the crime.
Excluding the case of more serious crimes, therefore, the criminal sanction is of little deterrence because of the (low) probability of being convicted, the (very long) time for the celebration of the trials and the (minimum) consequences of the application of the penalty. In addition, since these violations are punished on a deferred basis and therefore without immediate effectiveness (there is no provision for arrest either), the preventive effect is even less effective.