Coronavirus, fixed number parties and masks at home: these are the sanctions (but few possibilities for the spy)

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Fixed number of invitations to dinners and parties. Even weddings or religious parties. Mask at home even with family members who do not live together. No contact sports. Doubts about the entrance to the arcades. These are some of the measures contained in the Dpcm in force since Wednesday, October 14 in an anti-contagion function. But the legal value of the new provisions is not always the same. And so are the consequences for those who try to “dribble” them (potential offenders) and for those who, instead, try to enforce them (law enforcement officers or interested citizens).

What are the preventive rules of conduct?

Let’s start from the beginning. The legislator almost never “recommends”, “advises” or “suggests” – as indicated several times in the text of the new decree – without practical implications. In any case, it develops the so-called preventive rules of conduct.

The Dpcm, for example, “recommends” avoiding domestic vacations, having no more than six people in the house and wearing a mask when receiving people who do not live together. When dangerous situations increase, the law generates the so-called precautionary rules of conduct that have the function of containing the risk within socially acceptable limits. These rules, in general, can be written and unwritten. The unwritten ones have the diligence and prudence of all, the writings can be contained in laws, regulations, decrees, orders and disciplines.

In criminal law, failure to comply with the so-called precautionary rules of conduct is an objective requirement of guilt: their violation can trigger culpable liability. This is the function of emergency decrees that occur in a pandemic period to try to prevent the danger that human behavior can generate. Where unwritten precautionary rules seem not to be enough, the hand of the legislator steps in.

What appear to be mere recommendations actually serve to delineate the boundaries of guilt. Many violations, for example, can lead to the challenge of the crime of culpable epidemic, provided for in article 452 of the Penal Code. In practice, it is difficult to trace the causal chain of the “Covid 19 contagion” event, but in the abstract the unprotected private part could be the cause of a contagion that could trigger crime through guilt. The function of the standard is technically to resolve the conflict between two opposing interests: that of the free movement of people and that of health, marking the scope and limits of the authorization. It is “recommended” not to exceed the number of six people because a higher number would not guarantee distancing, but each case can be evaluated on its own.