"Viruses can have more powerful consequences than any terrorist action"
Tedros Adhanom Ghebreyesus, World Health Organisation (WHO), 11 February 2020
See also N. Canestrini Closed doors, virus infects Italian criminal trial
The publicity of court proceedings protects defendants against secret justice: does Italian COVID 19 regulation regarding cloud doors respect the rule of law?
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 provisionsin 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.
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
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 access to court offices and courtrooms (see Closed doors, virus infects Italian criminal trial;
- 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 (,.
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 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.
canestriniLex.com, 24 March 2020
updated: 26 March
See also N. Canestrini Closed doors, virus infects Italian criminal trial
See Triestino Mariniello, “Prolonged emergency and derogation of human rights: Why the European Court should raise its immunity system”, German law Journal, Volume 20, Issue 1, February 2019 , pp. 46-71, Cambridge UniversityPress: 13 March 2019.
The abuse of applicable provisions allowing governments to limit and derogate from certain rights contained in international treaties has challenged many scholars in a closer examination of the conditions and grounds for permissible limitations and derogations in order to achieve an effective implementation of the rule of law: see, for example, the so called “Siracusa Principles” on Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights in https://www.icj.org/siracusa-principles-on-the-limitation-and-derogation-provisions-in-the-international-covenant-on-civil-and-political-rights/. For concerns regarding Human Rights Dimensions of Covid-19 Response see https://www.hrw.org/news/2020/03/19/human-rights-dimensions-covid-19-response, 19 March 2020. So far, following Law Decrees have been approved by the Government: decreto-legge 17 March 2020, n. 18 (avaiting confirmation by the Parlament); decreto-legge 8 March 2020, n. 11 (avaiting confirmation by the Parlament); decreto-legge 2 March 2020, n. 9 (avaiting confirmation by the Parlament); decreto-legge 23 febbraio 2020, n. 6 confirmed with Law 5 marzo 2020, n. 13. At the time of 23 March, following President of Council of Miniserts have been enacted: d.P.C.M. 22 March 2020; d.P.C.M. 11 March 2020; statement 9 March 2020; d.P.C.M. 9 March 2020; d.P.C.M. 8 March 2020; Decision of the Council of Ministers 5 March 2020; d.P.C.M. 4 March 2020; statement 2 March 2020; d.P.C.M. 1 March 2020; d.P.C.M. 25 February 2020; d.P.C.M. 23 Febraury 2020: 16 governmental bills and regulations in 30 days. Ministers, Civil Protection and other authorities have ruled as well, with presumably over 100 orders.
English version here http://www.protezionecivile.gov.it/en/transparent-administration/legal-measures/detail/-/asset_publisher/default/content/decreto-legislativo-n-1-del-2-gennaio-2018-codice-della-protezione-civi-1. It should be noted that the code in its previous version of 1992 has been used often, and especially in case of natural calamities such as storms and earthquakes; dryness in the north of Italy; the presence of Roma population in Campania, Lazio and Lombardia; the high number of immigrants in the south of Italy; saving the archaeological site of Pompei; the Iraqi war: in order to face any terroristic attack or immigrant flows; managing of garbage disposal in Campania, Sicily, Calabria; traffic in Rome, Naples, Reggio Calabria, Vicenza and Treviso.
The Decree Law 6/2020 can be read in Italian here: https://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legge:2020-02-23;6!vig=. 4 . It rules that In order to counter and contain the spread of the Covid-19 virus the following containment measures are adopted (initally only on specific “red zones”):
- a) prohibition of leaving/departing from the Municipalities for all persons present in the Municipalities;
- b) prohibition of access to Municipalities;
- c) suspension of events or initiatives of any nature, of events and of any form of meeting in public or private places, including those of a cultural, recreational, sporting and religious nature, even if held in closed places open to the public;
- d) suspension of educational services for children and schools of all levels, as well as attending school and higher education activities, including university, except for distance learning activities;
- e) suspension of educational trips in Italy or abroad organized by schools of the national education system;
- f) suspension of the opening to the public of Museums and other cultural institutes and places;
- g) suspension of the activities of public offices, without prejudice to the provision of essential and public utility services, according to the methods and limits indicated with the provision of the territorially competent Prefect;
- h) suspension of public insolvency procedures;
- i) closure of all commercial activities, with the exception of those of public utility and essential public services according to the methods and limits indicated with the provision of the territorially competent Prefect, including commercial establishments for the purchase of basic necessities;
- l) obligation to access essential public services, as well as stores for the purchase of basic necessities by wearing Personal Protective equipment or by adopting particular precautionary measures identified by the Prevention Department of the healthcare authorities competent for the territory;
- m) suspension of freight and passenger transport services, land, rail, inland waters and local public, including non-scheduled ones, with the exclusion of the transport of essential and perishable goods and without prejudice to any exceptions provided for by the territorially competent Prefects;
- n) suspension of all work/business activities for companies, with the exception of those that provide essential and public utility services, including veterinary activities, as well as those that can be carried out at home or remote mode. The Prefect, in agreement with the competent authorities, can identify specific measures aimed at guaranteeing the activities necessary for the breeding of animals and the production of food and non-deferrable activities as they are connected to the biological cycle of plants and animals.
In the Italian Constitution there is not an explicit provision on the suspension of constitutional rights and guarantees, declaration of the state of war excepted (art 78 It. Constitution). Despite the lack of a constitutional rule explicitly allowing the limitation of rights, the Italian lawmaker several times limited fundamental rights in order to face security threats and those laws were also submitted to the review of the Constitutional Court, using Decree Laws thought to face any situation of extraordinary need and urgency and regulated by the Constitution (art. 77). The Decree Law is a source of law passed by the Government and issued by the President of the Republic that has the same status of a statute law of Parliament in the hierarchy of law sources. The executive can pass a Decree Law only in case of extraordinary necessity and urgency (Art. 77.2, Italian Constitution). Moreover, the Decree Law has to be confirmed by Parliament in a statute law within 60 days after the publication. The Houses are allowed to amend the confirming bill, whose original content is the same of the Decree Law. If the latter is not passed by the Parliament, it loses its effect also in the past so it is like it had never been in force, though the Parliament may rule (by statute law) on the legal relations produced by the non confirmed Decree Law (art. 77.3, Italian Constitution). Therefore, it is an extraordinary instrument as the Constitutional Court held. Quoted from Gabriella Angiulli, “States of emergency and fundamental rights Italy. The state of emergency in Italy”, Comparing Constitutional Adjudication, 2009, Università di Trento.
“Limitations/restrictions to non-absolute rights are allowed when they are prescribed by law, pursuant to a legitimate aim and when such limitation is necessary in a democratic society and proportionate to the identified legitimate aim. Limitations allow for the balancing of individual and collective interests and are built into several provisions of the ICCPR and the ECHR (and its Protocols), to which Italy is a party. While worded in slightly different ways, both the ECHR and the ICCPR identify legitimate aims including national security, public safety, public order, public health or morals, as grounds for limiting – by law and when necessary and proportionate to such identified aims – the following rights: the right to respect for private and family life (Art. 8 ECHR), freedom to manifest one’s religion or belief (Art. 9 ECHR and Art. 18 ICCPR), freedom of expression (Article 10 ECHR and .Art. 19 ICCPR), freedom of assembly and association (Art. 11 ECHR and Arts 21-22 ICCPR), freedom of movement (Art. 2 ECHR Protocol no. 4 and Art. 12 ICCPR).”, Alessandra Spadaro, “Do the containment measures taken by Italy in relation to Covid-19 comply with human rights law?”, March 16, 2020, https://www.ejiltalk.org.
It has been especially questioned if the source of the regulation is compliant with the Constitution (see, for example, Marco Plutino , “I decreti di Conte sul Coronavirus sono sconosciuti alla Costituzione”, 14 March 2020 https://www.ilriformista.it/i-decreti-di-conte-sul-coronavirus-sono-sconosciuti-alla-costituzione-62221/; see also Arianna Vedaschi, Chiara Graziani “Coronavirus Emergency and Public Law Issues: An Update on the Italian Situation”, Verfassungsblog.de, 12 March 2020 and Arianna Vedaschi, Chiara Graziani, “Coronavirus, Health Emergencies and Public Law Issues”, Verfassungsblog.de, 6 March 2020: the scholars point out that “Compliance with the rule of law implies that openness towards citizens is a primary duty of public authorities, even during emergency, as long as information is verified and correct, and its disclosure is necessary in the light of public interest. Lack of information may impair people’s confidence towards public institutions, resulting in the erosion of democracy”.).
Decree Law n. 11/2020 and DPCM March 4, March 8 and March 12, 2020; lastly, the Decree Law 18 of March 17 contains specific provisions regarding criminal justice (article 83 regarding criminal proceedings and article 123 regarding home detention for inmates who met the conditions set out in the Decree Law).
See articles 83 and 123 Decree Law 18/2020 available here (ITA) https://www.gazzettaufficiale.it/eli/id/2020/03/17/20G00034/sg
Hearings has to be mandatory rescheduled after 15 April 2020; from 16 April to 30 June 2020 it is up to the courts to reschedule trials or to adopt adequate containing measures (closed court, ...).
“As least six inmates have died, and at least 50 others have escaped from an Italian prison in the southern region of Puglia on Monday amid extensive rioting in 27 prisons across the country after visitation rights were curtailed due to the rapid spread of the novel coronavirus”, Barbie Natza Nadeau “Italy Prison in Flames in Coronavirus Lockdown Riot Among Cut-Off Inmates”, March 9 2020 https://www.thedailybeast.com.
The Decree Law refers to a provision in the prison code which does not make any distinction between family members and defence counsel: as a result, it could be argued that any contact with the inmate has to take place via videoconference (if available, which means in very few cases) or telephone call, having the law increased the number of calls the inmate is allowed to make.
The provision is completely inadequate, since it (1) is a copy of an existing regulation (law 199/2019) and (2) needs electronic bracelets to be implemented, but there are no bracelets available. The Italian Union of criminal lawyers made a press statement CYNIC AND IRRESPONSIBLE CHOICES LINKED TO BRACELETS THAT DO NOT EXIST, 18 March 2020, https://www.camerepenali.it/cat/10388/carcere_scelte_ciniche_e_irresponsabili_legate_a_braccialetti_che_non_esistono.html; scholars and even judges association raised concerns as well.
See, for example, art 15 European Convention on Human Rights. In the interpretation and application of Article 15, European judges have held that their approaches must take into account the “need, inherent in the Convention system, for a proper balance between the defence of the institutions of democracy in the common interest and the protection of individual rights….” (ECtHR, Fox, Campbell and Hartley v. UK, App. No. 12244/86; 12245/86; 12383/86, para. 28 , August 30, 1990), http://hudoc.echr.coe.int/.).
Crime is a misdemeanor, being its deterrent effect quite low. It hadto be added that since leaving home is permitted in specific cases, as proven working needs, cases of need, health reasons, police asks to sign a statement to whoever is questioned; who makes false statements commits a felony, punished with the imprisonment up to six years (art. 495 Italian criminal code). Incredibly, no reference has been made so far to a specific misdemeanor regarding the spread of an infectious human disease as consequence of a not obeying am order of an authority (art. 260 It. Code of health provisions).
“State power - we see it in Italy at every daily press conference on updates about the evolution of the pandemic - tends to communicate in an increasingly reticent way”, Luca Guglielminetti, Pandemic Risk Communication: The Anticipated Regret, 18 March 2020, https://hommerevolte2.blogspot.com/2020/03/pandemic-risk-communication-anticipated.html. Same author points out that “It's dangerous to handle the Covid-19 emergency like it's a war” and Hannah Arendt talks about it in the final section added to the second edition of her book, The Origins of Totalitarianism, in 1958, when she highlights how individual isolation and loneliness are preconditions for totalitarian domination. Concept then taken up in her later paper Public Rights and Private Interests (1974), in Coronavirus Outbreak and Rule of Law: Need for Vigilance, 16 March 2020. Finally, Prof. Guglielminetti pointed out that “it's dangerous to handle the Covid-19 emergency like it's a war and Hannah Arendt talks about it in the final section added to the second edition of her book, The Origins of Totalitarianism, in 1958, when she highlights how individual isolation and loneliness are preconditions for totalitarian domination”.
The Italian Constitution promulgated a complex system of autonomous territories including municipalities, provinces and regions, all operating under the national government. Between 1970 and 2001, regions progressively became fully operational, with powers and resources transferred from the national government under Article 117 of the Italian Constitution; since 2001, regions and autonomous provinces gained more regulative power in important issues, such as health care. See Chiara De Cuia, How Italy Is Handling the Coronavirus,https://www.lawfareblog.com/how-italy-handling-coronavirus, 6 March 2020.
Administrative regulations that rule sanctions for disobeying seem not to be an issue under art. 7 ECHR: in fact, “when speaking of “law”, Article 7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises statute law as well as case-law and implies qualitative requirements, including those of accessibility and foreseeability” (ECHR, II section, Parmak and Bakr vs. Turkey 2019, par. 58). The court specified that “Article 7 § 1 of the Convention goes beyond prohibition of the retrospective application of criminal law to the detriment of the accused. It also sets out, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege). While it prohibits in particular extending the scope of existing offences to acts which previously were not criminal offences, it also lays down the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy. It follows that offences and the relevant penalties must be clearly defined by law. This requirement is satisfied where an individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him or her criminally liable” (ibidem); the ECtHR pointed also out that “the guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 of the Convention in time of war or other public emergency. It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment” (ibidem).
Some cases of arbitrary law enforcement have been reported (Pietro de Vivo, «È colpa di quelli come te se c’è il contagio!». Abusi in divisa e strategia del capro espiatorio nei giorni del coronavirus, https://www.wumingfoundation.com/giap/2020/03/vendicatori-in-divisa-coronavirus/). Connection between legal uncertainty and arbitrary is analysed in my interview “Il diritto argini la paura” Quali sono i rischi connessi all'emissione di una legislazione d'emergenza?, https://www.salto.bz/it/article/23032020/il-diritto-argini-la-paura.
In addition, it has to mentioned that at emergency legislation has been used against ONG rescuers, since Italian authorities have subjected non government sea rescue organisations assisting migrants and asylum seekers – and only them! - to quarantines at dock (despite crew members and passengers testing negative for the virus). In a context in which civilian rescue missions have been consistently undermined, blocked, and even criminalized, potentially unnecessary quarantines might be used to deter rescue at sea. As Human Rights Watch argued, The Coronavirus pandemic should not be used to criminalise or obstruct the work of civil society organisations (HRW Report, 19 March 2020, quoted above). See also Alessandro Puglia, “Coronavirus, se l'emergenza impedisce il soccorso in mare” 2 March 2020, http://www.vita.it/it/article/2020/03/02/coronavirus-se-lemergenza-impedisce-il-soccorso-in-mare/154234/).
See also N. Canestrini Closed doors, virus infects Italian criminal trial