Abstract
“Viruses can have more powerful consequences than any terrorist action”,
State of emergency: Legal framework in Italy
States of emergency pose the most significant challenges to the safeguarding of fundamental rights and civil liberties. 1 The strengthening of executive power to the detriment of judicial authority and parliamentary oversight, absent effective domestic mechanisms of supervision of that executive power and the replacement of the judicial role with police operations represent a symptom of how prolonged emergencies lead to the eclipse of legal certainty and may cause the rapid and irreversible degradation of the rule of law. 2
The outbreak of the Covid-19 – first detected in China at the end of 2019 – triggered an epidemic (which evolved into a pandemic 3 ); the World Health Organization, on 30 January 2020, declared an international public health emergency.
Soon after that, the governments of many countries in the world issued a declaration of emergency, among them Italy: on 31 January 2020, the Italian Government formally declared the state of emergency pursuant to Legislative Decree 1/2018 (Civil Protection Code
4
) recognizing that Covid-19 disease had to be considered as an “emergency of national importance connected with natural origin or man-made disasters which, by reason of their intensity or extension, must, with immediate intervention, be faced with extraordinary means and powers to be employed during limited and predefined periods of time pursuant to Art. 24.”
Italian Civil Protection Code legislation does not explicitly empower the Government to limit rights and freedoms.
Since the Italian Constitutional rules that restrictions to (some of the) fundamental freedoms cannot be enacted nor regulated by means other than laws and acts having the force of law, on 23 February 2020, Decree Law n. 6 5 was issued, containing emergency provisions 6 in order to limit infection due to the Covid-19 Virus, granting the ‘competent authorities’ with the power to order ‘any appropriate restrictive measure’ on those living in affected areas (‘red areas’).
Initially, only 10 municipalities in Lombardy and 1 in Veneto were declared red areas; rapidly, measures were extended to the whole Lombardy and 14 provinces of other Regions, and finally on 9 March 2020, restrictive measures applying to ‘red areas’ have been extended to the entire Italian territory until 3 April 2020 by the head of the Italian Government, the President of the Council of Ministers, through an administrative order called ‘Decree of the President of the Council of Ministers’ (DPCM).
Essentially, as a result of the emergency legislation, the whole country has been put in lockdown: citizens were prevented from leaving their homes, except for ‘well grounded work-related reasons or situations of need or movements for health reasons’. At the same time, school and university activities as well as public events and sport competitions were suspended nationwide; the closure of museums, cultural centres and sport facilities have been ordered, as well as any non-essential commercial activity 7 ; stores different from pharmacies and supermarkets have been closed; trains and public transport have been shut down or limited; and religious ceremonies, including funeral ceremonies, have been suspended.
More and more restrictions were applied on a day-by-day basis: the roll-out of the new restrictions has been chaotic, as they casme from many different sources, including decrees or orders of different Ministers (Minister of Economics and Finance, Minister of Health, Minister of Interior), Head of Government, Presidents of Regions or Autonomous provinces, City Mayors and Civil Protection Department.
These measures were described as the largest lockdown in the history of Europe 8 : in fact, they establish unprecedented limitations to individual freedom and rights for a non-authoritarian regime.
Lockdown affected, inter alia, fundamental principles of the Italian democracy, such as personal liberty, freedom of movement, freedom of assembly and freedom to profess one’s religious belief; free enterprise is strongly impacted as well; the right to education may also be impaired; and the right to privacy may be affected by (announced) use of surveillance technologies (such as cell-phone location tracking, advanced video analytics and biometric surveillance). 9
Criminal justice and Covid-19 disease: Emergency rules and fair trail rights
The coronavirus pandemic has upended the day-by-day operations of the Italian justice system, raising significant questions regarding the limits of derogatory regulations in emergency situations. 10
Limiting the present analysis on the impact of the lockdown on procedural criminal justice, it has to be said that, so far, two Decree Laws and three DPCM have been enacted. 11
Focusing on the most recent provision, that is, Decree Law No. 18 of 17 March 2020, it contains – among other provisions – specific rules about criminal justice in the Covid-19 emergency 12 : there are mandatory rules, which applied by law until 11 May 2020 (extendiong the first deadline of 15 April 2020), and rules that could be enacted by Courts on a discretional basis in the period between 12 May 2020 and 31 July 2020.
For the emergency period until 11 May 2020, such legislation rules:
✓ automatic rescheduling of every hearing and postponement of deadlines in criminal proceedings, 13 except specific hearings – which will be held in closed court – such as
juvenile criminal justice hearings,
habeas corpus hearings in case of arrest by police forces or
hearings with defendants in pretrial detention if the accused or the defence lawyer file a specific request to hold the hearing,
urgent evidentiary hearings;
✓ suspension of the limitation period in criminal proceedings (noting that limitation periods are a part of substantive criminal law in the Italian system);
✓ suspension of all procedural time limits, including deadlines for the notification of proceedings before the Court, enforcement and appeal procedures;
✓ derogation of personal notification to the defendant of rescheduled hearing;
✓ limitation of public access to court offices and courtrooms;
✓ limitations for inmates regarding family (visits and contact to external world, including parole benefits) 14 ;
✓ limitation to access to the lawyer for inmates 15 ;
✓ improving home detention for inmates with less than 18 months to serve in order to relief the overcrowded Italian prisons. 16
If the existence of emergency situations may require authorities to take measures that normally diverge from the standard human rights protections afforded under the ‘European system’, 17 it has to be recognised that some of the said provisions do impact on fundamental criminal justice rights as well as on fair trial rights, such as reasonable length of proceeding, access to a lawyer, effective participation in the proceeding, publicity of the hearing, right to be present at the hearing, preparation of the defence and right to have lawfulness of detention decided speedily by a court (being postponed the duty to deliver the reasons in appeals proceedings about pretrial detention).
Criminal justice and Covid-19 disease: Sanctions for not respecting containment measures
The breach of any disease containment measure at the start of the emergency period constituted a criminal offense: Decree Law of 23 February 2020, n. 6 established that failure to comply with any of the containment measures should be punished with detention up to 3 months or with a fine up to EUR 206.00 pursuant to article 650 of the Italian Criminal Code (‘non-compliance with the Authority’s provisions’). 18 Additionally, individuals who have been tested positive to the coronavirus and defy mandatory quarantine could have been prosecuted pursuant to articles 438 or 452 of the Criminal Code, with penalties up to life imprisonment.
The main problem regarding the sanctions was the overlapping of information/overregulation 19 from different sources and the complexity of prescribed measures: among the regulations provided by the Government (decrees of the President of the Council of Ministers, of Ministry of Health and Ministry of Interior), many other local authorities had enacted containment measures, such as Presidents of Regions/Autonomous Provinces or even City Mayors. 20
The partition of authority between regional and national officials had not only caused political tensions among the authorities themselves, but it resulted in different regulations, which did not allow legal certainty, a general principle of European Union and Conventional law. The international standard in this regard rules that an individual must be able at least to be aware of which acts and/or omissions will make him/her criminally liable and what penalty will be applied for the act committed and/or omission. 21
This confusion may have been one of the reasons of the impressive result of police monitoring: from 11 March 2020 to 23 March 2020, over 2,000,000 people have been questioned by police about the reason of their presence in public and almost 100,000 of them are investigated. 22,23
On March 25, the Decree law 19/2020 abolished the criminal sanctions for not respecting containment measures and introduced a brand-new fine up to EUR 4000: since it is an administrative proceeding, 24 the burden of proof is put on the alleged trespasser and Beyond-Any-Reasonable-Doubt rule does not apply any more; in this context, the main problem remains the knowledge of which activity is admitted or prohibited outdoor. Even worse, Italian police forces interpret extensively limitations (which should be restrictively applied), and doing so they reduce fundamental rights to authorisations! 25
Conclusions
No question about the need for containing emergency measures, since it was crucially urgent to postpone the peak outbreak, in order not to burden healthcare facilities.
However, any emergency legislation always represents a risk for the rule of law, because it has to be kept in mind that once a precedent to any kind of derogation of a fundamental right has been set, who can rule out the possibility that the same restrictions on fundamental rights will be reactivated again in the future in the name of another supposed emergency? 26
That is why we must stay vigilant and protect the right to health as well as the rule of law and prevent the virus from infecting the rule of law.