Nobody these days wants to listen to hair-splitting legalese. Still, when this COVID-19 tragedy is over, the survivors hopefully question what happened to our Constitutional rights. Maybe some scholars investigate the flaws of the emergency legislation, or the risks the democratic institutions took, or how the bureaucracy monster has not given up his lust for the sacrifices that feed him.
The case of the “self-certification” of the path and the reasons justifying the departure from home that authorities imposed is the most obvious example. First of all, it is not a “self-certification”.
The “self-certification” serves to inform the public administration that it already owns certain information, and not to tell something that it does not. Just read Article 46 of Presidential Decree 445/00 and compare it with the form the Government made available to understand it.
But, one may say, when I declare my details and the address I am self-certifying my date of birth and my residence. Of course, but then the police operator who performs the check should not ask us for an ID because he “should trust” your statement. So, rather than a “self-certification”, this is a ‘self-declaration’ that would fall under Article 47 of Presidential Decree 445/00 whose text reads
Article 47 (R) Declarations taking the place of an affidavit
1. The affidavit concerning the status, personal qualities or facts which are of direct knowledge of the person concerned shall be replaced by a declaration made and signed by him/her in accordance with the procedures laid down in Article 38.
2. The declaration made in the declarant’s interest may also cover the personal circumstances, personal qualities and facts relating to other persons of which he has direct knowledge. …
But what does “self” statement mean?
A statement is such, without the need for prefixes. Does the legal system create “heterostatements” that, therefore, must be differentiated from the former? Secondly: this statement works in the interaction with the public administration. In other words, I need to release this statement if I “ask something” from the public administration, and this latter – to answer me – needs information. Therefore, Article 47 of Presidential Decree 445/00 cannot be applied either. But then where is the sense of – and what value does it have – this “self-declaration” imposed for police controls?
Well, as first, it is not “imposed” by a law. In any case, it cannot replace the official statement of the police operator, because this report is an act having a full evidentiary value of the facts which it documents.
And since we speak of “documentation” of the facts, this “self-declaration form” contains statements which are superfluous and/or impossible to make:
the law does not admit ignorance, so all the “declarations of knowledge” relating to the legislation in force and its obligations are useless,
- the only way to know ‘not to be quarantined’ and ‘not to have tested positive for COVID-19’ is to take the swab and test negative (at the date of collection, moreover),
- It is not possible, therefore, to state what is “required” by the form.
To conclude, a few oddities on the form’s bureaucracy.
Urgency is urgency without ifs and buts. To qualify it as “absolute” is useless because if I can avoid doing something, then this “something” is not “urgent”. I hear echoes of the famous “flexible vaccination obligation” conceived in the – hopefully now definitely over – NoVax Era.
COVID-19 is defined by medicine and not by law. But the form thunders: declares not to have tested positive to the COVID-19 referred to in Article 1 paragraph 1 letter c) of the Decree of the President of the Council of Ministers 8 March 2020. As if, à la Lysenko, the law could shape reality and not the contrary (and the Russians tragically discovered this after the Party applied the scientific-Marxist theories of Stalin’s agronomist).