Milan, Italy.

Anti-COVID Measures Restricting Civil Liberties in Italy: Issues of Legality and Legitimacy

By Stefania Negri

Since March 2020, more than 60 million people in Italy have experienced human rights restrictions that are unprecedented in the country’s republican history.

Following the Council of Ministers’ declaration of the state of emergency for a period of six months (based on articles 7 and 24 of the Civil Protection Code), a wealth of legal measures aimed at preventing and containing the spread of COVID-19 have been adopted by the Government, the Prime Minister and the Ministry of Health through acts of primary and secondary rank (decree-laws, decrees of the Prime Minister and executive orders) based on the exercise of urgent and emergency powers. In most cases, their legal basis is to be found in articles 16, 32 and 117 of the Italian Constitution.

The first governmental decree-law (no. 6 of February 23rd, converted with amendments into Law no. 13 of 5 March 2020) introduced public health measures applicable to the Northern Regions at the epicenter of the disease. It also conferred emergency law-making powers on the Prime Minister to adopt and implement additional restrictive measures. Pursuant to this provision, several decrees (Decrees of the President of the Council of Ministers, or DPCM) were approved by the Prime Minister Giuseppe Conte upon proposal of the Ministry of Health and following consultation with the Government and the Regions.

In fact, most of the measures which have progressively limited fundamental human rights (especially freedom of movement and of assembly and the right to privacy and to property), first in Northern Italy and then for the entire national territory, up to the nearly total lockdown extended until 3 May 2020, were adopted by means of DPCMs. These acts were communicated to the Presidents of the two Chambers of Parliament and to the general public. Consultation with the leaders of the opposition parties guaranteed democratic participation in the decision-making process, but political dissent on the methods and procedure employed by the Prime Minister was, to a certain extent, openly manifested.

Nonetheless, and despite a lively academic debate about the legitimacy of these decrees – especially in relation to the indeterminacy of the boundaries of the Prime Minister’s emergency law-making powers – no initiative was taken in Parliament to challenge them, nor was any question of constitutional legitimacy raised before the Constitutional Court. The Council of State (the Italian highest administrative court), which had the opportunity to scrutinize some of the public health measures adopted by the Premier, confirmed their legitimacy in the light of the unquestionable and non-derogable primacy of the collective interest to public health protection, as guaranteed by article 32 of the Constitution, over individual rights and interests.

The general reaction of the Italian population to the increasingly restrictive measures imposed on them was overwhelmingly supportive. Apart from the unrest spread in prisons across the country following the suspension of family visits, some degree of violation of the new rules inevitably occurred, but this was in most cases due to irresponsible behavior rather than to civil resistance or dissent. In order to deter non-compliance for futile reasons, maximum fines were raised for violations of the limitations on freedom of movement and assembly from €206 to €3,000, while breaching mandatory or fiduciary quarantine was qualified as “culpable spread of epidemics” punishable under art. 438 of the Criminal Code with imprisonment up to 12 years.

As expected, some measures have had an especially adverse impact on the most vulnerable groups – first and foremost the elderly, the homeless (both Italians and migrants), victims of domestic violence, and people working in the shadow economy. The lockdown has also disproportionately affected seasonal workers, artisans, small businesses and the owners of hotels, restaurants, and cafeterias. Some of these groups are now publicly contesting the Prime Minister’s roadmap to gradually move to “phase 2,” claiming that the lockdown exit plan is discriminatory and risks bringing them to the brink of economic disaster.

Moreover, the leaders of the opposition parties and some representatives of the civil society claim that there is no longer any need to decide the exit measures by means of emergency decrees. They urge a return to transparent and democratic decision-making within the Parliament, so as to guarantee that emergency powers remain limited in time and scope and do not turn into ordinary practice.

Against this background, it is evident that “phase 2” is going to further test Italy’s resilience and the limits of democracy, but the major challenge now is to strike a fair balance between public health and economic and social rights, with an eye toward protecting the weakest.

 

Stefania Negri (M.P.S., Ph.D.) is Associate Professor of International Law (since 2004) at UNISA School of Law, where she teaches Public International Law (since 2010) and International Human Rights Law (since 2001, in English since 2015).

The Petrie-Flom Center Staff

The Petrie-Flom Center Staff

The Petrie-Flom Center staff often posts updates, announcements, and guests posts on behalf of others.

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