“Anti-coronavirus Dpcm are illegitimate”

Anti-coronavirus Dpcm are illegitimate because an administrative act cannot limit constitutional freedoms: with this motivation, he says Italy today, the sixth section of the civil court of Rome ordered the release of a property whose tenant company complained of a drop in billing. The sentence is dated December 16 and bears the signature of Judge Alessio Liberati: now the parties have fifteen days to initiate the mediation procedure. According to the motivation, the dpcm continues to be an administrative act that cannot restrict fundamental freedoms, although “legitimizing” is an act that instead has the force of law, while the party that does not challenge it – observes the judge – becomes itself himself in the cause of the consequences. negative about the full usability of the property.

In summary: the judge shares “the authorized constitutional doctrine” according to which it is contrary to the Constitution to provide general and abstract rules through decrees of the presidency of the Council of Ministers, which also limit fundamental human rights. More. The first decree law that “legitimized” the dpcm did not establish a single term or classify the powers: it contained a list by way of example and thus allowed the adoption of unnamed acts, in addition to not establishing the modalities of the exercise of powers.

The health emergency, the ordinance later says, is not “in itself an impeding condition in absolute terms”: the measures adopted during the emergency are.

Finally, with the extraordinary anti-Sars-Cov-2 measures, the legislator has taken the path of the tax credit for the tenant without widespread intervention in private rental relationships, while for example it has explicitly intervened in sports facilities. In short: the rental voucher would be meaningless if it were possible to suspend, reduce or cancel rentals. The parties have six months to complete the mediation process.

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Last August, the sentence of a justice of the peace from the Frosinone court made it sound that he had canceled the fine imposed on father and daughter for violating the quarantine during the confinement (the two had been blocked outside the house while they were on their way to refuel water to a card fountain) for “illegitimacy even of the state of emergency that can only be declared by Civil Protection, as established by the Civil Protection Code.” The sanction was lifted because, according to the honorary magistrate, the state of emergency that the government can decree does not include “health risks.”

On November 20, however, another justice of the peace, the one from the Busto Arsizio court, made a completely different decision, rejecting the resources of two citizens who had been found by the carabinieri to whitewash the walls of his shop in order to sanitize the environment and had given this reason to leave home. Reasoning rejected because “the two applicants do not play the role of house painters” and their choice to go to the store was not allowed as “not protected as an exception to the general prohibition, which the applicants should have respected.

But the judge went out of his way to explain that the state of emergency was also legitimate. This is because, according to Il Sole 24 ore, with the decree law of March 25 n. 19 with which, in fact, the Government’s Dpcm were transferred to the body of the emergency measure and authorized by vote in the two Chambers. For this reason, as the Justice of the Peace of Busto Arstizio now writes in the sentence filed on November 20, 2020, “no conflict with the constitutional norms can be recognized in the appeal before the Dpcm, which, therefore, seems fully legitimate, as expressly authorized by Parliament. “

Source: Italy Today →