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Mandatory outdoor masks, public places closed at midnight, and goodbye to school excursions. These are some of the main novelties of the last Dpcm fired by the Conte government. We asked the constitutionalist Michele Ainis and the jurist Carlo Taormina for their opinion on the legality of this provision.
With the extension of the state of emergency and with these strong recommendations to be implemented within their homes, there are those who complain about a suspension of democracy. What you think?
Ainis: “What The state of emergency is accompanied by a contraction of freedoms and rights are part of the very nature of the state of emergency. In this matter, and I am referring to the last Dpcm, it seems to me paradoxical that there are recommendations in a legislative act. What is the prescriptive effect of a recommendation and advice? The norms regulate, they do not advise, they impose duties and limits or they establish rights, but I do not even remember the antecedents of a recommendation contained in a norm. Then we could also write about a rule that says you should love your mom and brush your teeth every morning. I believe that the formula of the recommendation arises from an entirely political difficulty (which, later, is also legalized) to find a binding, coercive instrument with respect to the private sphere of people ”.
Taormina: “I believe that it is not a suspension, but a real suppression of democracy. It is not, in fact, true that being a simple recommendation this does not mean that the police cannot enter the house. It is absolutely false. I give an example: If a neighbor, having heard noises, believes that there are more than 6 people in a house, he can call the police who may very well intervene, in this case that citizen risks even a fine. But not alone. According to the Article 1 of the Consolidated Law of Public Security, the police can enter and listen to the people present to resolve private disputes between neighbors. If there are public security reasons, the police can safely enter private houses. not only because we are in state of emergency, the public authorities such as the prefects have all the possibilities to dictate the measures that they consider indispensable and that can favor the intervention of the police ”.
How is article 32 that safeguards public health reconciled with article 14 that establishes that the home is inviolable? Was the idea of the police entering the house to check and inform the neighbors unconstitutional?
Ainis: “If it is a recommendation, the State obviously renounces the use of force. What is the State? According to Max Weber, it is an entity that has a legitimate monopoly of force, but this monopoly is accompanied by mandatory norms. standards are recommendations, this premise vanishes Constitution it is like a mosaic or a firmament of stars that provides a balance between conflicting rights. The general rule is that no one can be completely suppressed. I will explain. If I establish that there is a value of marital fidelity, I cannot sublimate this value to the point of cutting off the hand of the adulteress as happens in some parts of the world because this would expose us to what Karl Schmitt called the “tyranny of values” , that is to say. a value that asserts itself above all others. In a democratic system in which there is a pluralism of values, ways must be found to make these values coexist. Sometimes it is necessary for one value to impose itself on others, but not to the point of suppressing its essential core. “
Taormina: “Housing is inviolable. It can only be violated through the intervention of the judicial authority. They may affect health reasons, but we need a regulation that, in the case at hand, therefore, we do not have everything related to the invasion of the House”. private is a serious violation of constitutional principles. “
Does the policy of television advertisements that are later disproved by government-issued texts run the risk of fueling fear and confusion?
Ainis: “Politics, all over the world, has become spectacular. Even Obama knew how to step on the stage. It is not a phenomenon that was born with the Conte government and, not in vain, now there are television personalities who propose themselves as mayors from Rome. Now the world has changed compared to when De Gasperi and Berlinguer were. Politics are made with tweets, with noisy announcements and by their very nature they are announcements that cause anxiety as they affect the emotional sphere “.
Taormina: “There is great confusion among the population that, at this point, feels at the mercy of the public power that can do anything for their person, their family and their privacy.”
How does the right to health coexist with the right to freedom of business with the forced closure of certain activities such as discos and all those sectors that serve a large influx of people? I refer, for example, to the world of catering, events and “wedding” …
Ainis: “The pandemic, like a war, leaves victims on the ground. These victims, unfortunately, are people of flesh and blood, but they are also companies. If we refer to constitutional values, we must remember that Right to health it is the only one that the Constitution proclaims as fundamental. But not only. Freedom of private economic initiative is not absolute, but must be carried out in harmony with social utility, as required by article 41 of the Constitution. A sacrifice of freedom of enterprise, provided it is not a suppression of that freedom, is a sacrifice that can be understood in certain phases. Next, it is necessary to see, case by case, how much this justification exists and how much does not “.
Taormina: “We must all be cautious and we must observe the three rules that doctors tell us: wear a mask, maintain a distance of one meter between people and wash your hands. Once this is done, I think there is no need to limit the freedom of The important thing is that there is compliance with these rules and sanctions for those who violate them, but I do not think that what has been done with this decree is useful. Closing a place at a certain time if the tables are set or not is a simple joke … “
On the one hand, the State has imposed the obligation to wear a mask even outdoors, but on the other the situation of public transport is such that it does not guarantee the safety of its citizens. Not only. Counter-terrorism law would require you to shoot with your face uncovered, while the Dpcm with your face covered. Are we not faced with obvious contradictions?
Ainis: “In public transport, attempts have been made to find an exhausting and probably unsatisfactory balance. The problem is that limits such as 80% capacity are always conventional, a bit like air pollution limits. One of the criteria is to resolve the Contradictions between norms is the criterion of the specialty. The special law is valid in an exceptional situation. This is an exceptional situation and implies the obligation to wear a mask that, however, should not normally be used precisely because it is not possible to disguise the During a state of emergency, protection ordinances may provide for the repeal of the laws in force and, therefore, of the hierarchy of sources for which the law precedes the decree and the decree before the ordinance is repealed ”.
Taormina: “Here we have to correlate the problem of safeguarding the greeting personal with that of the community. Certainly the mask is an inescapable precaution where there is no social distancing because if I am on the street three meters away, I do not understand why I should wear it. However, I think it is indispensable in public transport. In general, the right to health always prevails. Then it comes to understanding how serious the danger to our health is due to conflicting information. Faced with a virus that is less powerful, I am more concerned about the danger of terrorism. On the contrary, the terrorist takes a back seat to a deadly virus. “
