COVID-19 and Constitutional Issues in Italy

There is an increasing criticism of the constitutional legitimacy of government action in the COVID-19 emergency, and even in this specific area, there is inaccurate information circulating about the arbitrary “suspension of individual rights” and the centralization in the hands of the executive of (very) strong powers.

At least from a formal point of view, the rules are followed as the suspension of certain fundamental rights (freedom of assembly, freedom of movement, freedom of teaching, freedom of assembly and freedom of business activities) was ordered by decree-law no. 6 of 23 February 2020.

The problem is, therefore, not the absence of a legitimate act having the force of law, but the fact that with this decree – mind, written by the government – this latter self-attributes the power of how to limit these rights.

Specifically, the critical points that emerge from the decree-law are:

  • use (in “European Commission style”) of the generic notion of “competent authorities” as subjects “obliged” (is it an obligation? a faculty? a discretionary choice?) to adopt “adequate” and “proportionate” measures. This vagueness has also allowed Regions and Municipalities to consider themselves as “competent authorities” and therefore to claim a decision-making role that, in reality, they should not have, in a national emergency,
  • lack of clarity in the enforcement of Article 650 of the Penal Code. Article 4 of the Decree-Law states that
    unless the fact constitutes a more serious offence, failure to comply with the containment measures set out in this Decree is punishable under Article 650 of the Penal Code.
    Still, the sanction should have concerned the failure to comply with the provisions imposing the containment measures,
  • lack of coordination between Law 125/08 (“Safe Roads”) allowing the use of the army to support public security activities in the fight against crime and Article 5 of the decree-law allowing the Prefects, having informed the Minister of the Interior, to request the intervention of the armed forces (including, therefore, the Navy and Air Force). The deployement involves the military belonging to the “Safe Roads” operation, then it would have been necessary to change Article 7 bis of the law and extend the operational scope of the soldiers. But this has not been done,
  • attribution to the armed forces of the duty of carrying out executive actions against the citizenship (the provision verbatim reads: The Prefect, …, ensures the execution of the measures … where necessary, of the Armed Forces). That is, in other words, to intervene by force.

We are talking about severe issues that have already had a real impact on our freedoms and on which a broad public debate would be desirable.

But there is a widespread silence around these issues, broken only by the insubstantial lamentations of the “defenders of privacy” facing the mere possibility that the government might? geolocalise people to limit contagion.

Ah yes, how stupid, I forgot: fundamental rights (the real ones) do not generate billing time…

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