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Commentary: Does the COVID-19 disease infect the rule of law in Italy?

FairTrialsAdmin - April 2, 2020 - COVID-19 Updates, Commentary, Court closures, Prisoner releases, Access to a lawyer

This post was written by Nicola Canestrini, an Italian lawyer. It was first published on canestrinilex.com

"Viruses can have more powerful consequences than any terrorist action"

Tedros Adhanom Ghebreyesus, World Health Organisation (WHO), 11 February 2020

1. State of emergency: legal framework in Italy

States of emergency pose the most significant challenges to the safeguarding of fundamental rights and civil liberties: strengthening of the executive power to the detriment of judicial authority and parliamentary oversight, absence of effective domestic mechanisms of supervision of the executive power, 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.

The outbreak of the Covid-19 – first detected in China at the end of 2019 and then spread in at least 90 countries – triggered an epidemic (which evolved into a pandemic); the World Health Organisation, 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) recognizing that Covid-19 disease has to be considered as “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.”.

Article 24 of Civil Protection Code (“Resolution on the state of emergency of national importance”), rules that the Council of Ministers can declare the state of national emergency, which has to be limited in its duration (12 + 12 months maximum) and determine  its territorial extension, with reference to the nature and quality of events; the declaration of emergency authorises the issue of civil protection orders, which can be adopted “in derogation to any current provision, within the limits and with the methods indicated in the resolution on the state of emergency and in compliance with the general principles of the legal system and the European Union rules”.

Italian Civil Protection Code legislation does not explicitly empower the Government to limit rights and freedoms. 

Since the Italian Constitution rules that restrictions to (some of the) fundamental freedoms cannot be enacted nor regulated by sources other than laws and acts having the force of law, on 23 February 2020, Decree Law n. 6was issued, containing emergency provisions 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 one in Veneto were declared red areas; rapidly, measures were extended to thewhole 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 is in lockdown: citizens are 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 are suspended nation-wide; the closure of museums, cultural centres and sport facilities has been ordered, as well as any non-essential commercial activity; stores different form pharmacies and supermarkets are closed; trains and public transport are limited, religious ceremonies, including funeral ceremonies, are suspended.

More and more restrictions are being currently applied on a day-by-day basis: the rollout of the new restrictions has been chaotic, as they come 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, Civil Protection Department. ..

On 25 March 2020 Decree Law n. 19 has been enacted by the government, trying to put restrictions in order and introducing new sanctions for who does not respect same restrictions.

These measures were described as the largest lockdown in the history of Europe: in fact, they establish unprecedented limitations to individual freedom and rights for a non-authoritarian regime.

Lockdown affects, inter alia, fundamental principles of the Italian democracy, such as liberty, freedom of movement, freedom of assembly, 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). 

 2. 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.

Limiting the present analysis on the impact of the lockdown on criminal justice, it has to be said that, so far,  two Decree Laws and three DPMC have been enacted.

Focusing on the most recent provision,  i.e.DecreeLaw No. 18 of 17 March 2020, it contains – among other provisions - specific rules about procedural criminal justice in the Covid-19 emergency: there are mandatory rules, which apply by law until 15 April 2020, and rules that could be enacted by Courts on a discretional basis in the period between 16 April  and  30 June 2020.

For the emergency period until 15 April 2020, such legislation rules:

  • automatic rescheduling of every hearing and postponement of deadlines in criminal proceedings, 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 pre-trial detention if the accused or the defence lawyer file a specific request to held 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 defendantof rescheduled hearing;
  • limitation of public accessto court offices and courtrooms;
  • limitations for inmates regarding family (visits and contact to external world (including parole benefits);
  • limitation to access to the lawyer for inmates;
  • improving home detention for inmateswith less than 18 months to serve in order to relief the overcrowded Italian prisons.

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”, it has to be recognized that some of 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, right  to have  lawfulness  of detention  decided  speedily by  a  court (being postponed the duty to deliver the reasons in appeals proceedings about pre-trial detention).

3. Criminal justice and Covid-19 disease: sanctions

The breach of any disease containment measure constituted - in a first period -  a criminal offense: Decree Law of 23 February 2020, n. 6 established that failure to comply with any of the containment measures shall 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”). Additionally, individuals who have been tested positive to the Coronavirus and defy mandatory quarantine can be prosecuted pursuant to Articles 438 or 452 of the Criminal Code, with penalties up to life imprisonment.

On March, 25, a new Decree Law has been approved by the Council of Ministers, imposing an administrative fine up to 4.000 € for who does not respect the emergency contenitive measures. Criminal sanctions have been explicitely excluded, except for who was not respecting "quarantine" for being positive for COVID-19 virus (but the law still does not rule about the reqirments and guarantees of the imposing order of quaratine: since it is a restriction of personal liberty, Italian Constitution requestas a judiciary order and cases manner has to be provided by law).

The main problem is represented by the overlapping of information / over regulation 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 have enacted containment measures, such as Presidents of Regions / Autonomous Provinces, or even City Mayors. 

The partition of authority between regional and national officials has not only caused political tensions among the authorities themselves, but it resulted in different regulations, which do 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.

 This confusion may be one of the reasons of the impressive result of police monitoring: from 11 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 have been investigated.

Conclusions

No question about the need for containing emergency measures, since it is crucially urgent to postpone the peak outbreak, in order not to burden healthcare facilities.

 But any emergency legislation is always a risk to 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?

And: someone may remember the metaphor of the boiled frog. If it is put suddenly into boiling water, it will jump out, but if the frog is put in tepid water which is then brought to a boil slowly, it will not perceive the danger and will be cooked to death. Risk is that we get used to ‘temporary’ restrictions on fundamental rights, so that they become dangerously .. permanent.

That’s why we have to stay vigilant and defend the right to health as well as the other fundamental rights, preventing that the virus infects the rule of law. 

That’s 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.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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