Italy – Court of Rome declares ministerial anti-coronavirus decrees illegitimate, freedoms and constitutional rights violated
The Court of Rome, Civil Section 6, in Order n. 45986/2020 R.G. of December 16, 2020, aimed at resolving a dispute regarding the request for validation of expulsion for arrears of a commercial operation during the period of the Covid-19 emergency, has entered fully into the issue of the pandemic by declaring the full illegality of the Ministerial Decrees (DPCM) of the President of the Council of Ministers Giuseppe Conte and his government.
As expected, Judge Alessio Liberati came to the conclusion that the DPCM “are tainted by violations due to lack of motivation” and “multiple profiles of illegitimacy” and as such are “null and void”, that is, they do not produce concrete effects from a jurisprudential point of view. Therefore, they must be annulled. The decrees with which the government intervened are not “normative in nature” but have an “administrative character”, so they should refer to an already existing law, which the DPCM does not do.
Several authoritative constitutional scholars had also noted this problem in recent months, arguing that they were unconstitutional. Already Annibale Marini, President Emeritus of the Constitutional Court, commented on April 29 in Adnkronos:
“… Wanting to save its legitimacy, it is unconstitutional where it does not provide for a time limit. It therefore contains a reparable defect, since it is sufficient to set the “time limit”. The fact remains that, in my view, the DPCM cannot affect the rights to liberty. It has been used at least of dubious constitutionality, “outside the system”, which has completely changed the structure of all the institutional bodies”.
In the judgment of the Court of Rome, we now read that the DPCM “imposed a renewal of the limitation of the rights to liberty” when it would have required “a new passage in a different Parliament” from the one that took place for the conversion of the decree “I stay at home” and “Cura Italia”.
“Therefore, these are measures that contrast with articles 13 to 22 of the constitution and with the discipline of article 77 of the constitution, as outlined in the authoritative constitutional doctrine.”
“An interesting statement, which almost becomes a warning to become aware of the real value of the decrees issued in recent months”, comments the lawyer Stefania Pomaro consulted by us, who continues to explain:
“The judge of the Court of Rome summed up well all aspects of the illegitimacy, not only constitutional, of the DPCM issued by the government. The most relevant aspect of the sentence is found in the thought of the magistrate, who argues that the problems of crisis in the broadest sense that afflict many people and productive activities do not stem from Covid itself, but from the regulation of this situation carried out by the government through the DPCM, which has limited some of the fundamental freedoms, directly causing the crisis mentioned above. The magistrate in question also says that it is precisely these DPCM, illegitimate from countless points of view, that must be challenged (as long as it is in force), eliminating the (negative) consequences that derive from it. In short, the time has come to act for the protection of one’s rights, both as individuals and as citizens.”
Lawyer Pomaro concludes as follows:
“Fundamentally, in order to resolve the problems arising from the limitations imposed by the government, we must direct our energies, rather than against other citizens, who are in fact in the same situation as us, towards those who have contributed to causing today’s injustices, in order to generate, in this way, a positive ripple effect for everyone.”
However, the new “bomb” regarding the government DPCM went unnoticed by the media, which chose to ignore it (with the exception of some newspapers such as Il Giornale and Libero).
However, the decision went around the web, becoming viral on social media and was widely commented on by independent news and journalism websites and channels. These same channels that false news groups and “information professionals” would like to censor in order to create a monopoly on certified information.
25 pages document to read HERE
The 4 main reasons for the illegality of ministerial decrees:
No. 1 – The DPCM “is not of a regulatory nature but administrative”
The ministerial decrees (DPCM), with which the government intervened to close Italy and manage the pandemic, has no legal value because “it is not regulatory but administrative in nature. In order to function, it is necessary to refer to a law, but the DPCM does not do so, it compresses fundamental rights, given the pandemic, and that’s all. Various authoritative constitutional scholars had also highlighted this problem, claiming that the DPCM was unconstitutional. The Civil Court of Rome cites to explain it “all the presidents emeritus of the Constitutional Court, Baldassarre, Marini, Cassese”.
No. 2 – The government could only intervene in situations of a state of war
The government could intervene with this type of measure in a state of war. The real ones, where people shoot, buildings collapse, etc … But the real war is not there. Nor is there “any ordinary law that gives the Council of Ministers the power to declare a state of emergency because of health risks. It follows that all DPCMs are illegitimate.
No. 3 – Phase 2, CPMDs would have required a subsequent passage through Parliament
The DPCMs governing Phase 2 also have the same problem. “They imposed,” the judge explained, going into detail, “a renewal of the limitation of freedom rights that would have required a new passage through Parliament different from the one that took place for the conversion of the “I stay at home” and “Cura Italia” decrees (see Marini). These are provisions that contradict articles 13 to 22 of the constitution and the discipline of article 77 of the constitution, as the authoritative constitutional doctrine points out.
No. 4 – The DPCM must specify a reason, as administrative acts, to be valid
Ministerial decrees then also have the problem that, in order to be valid as administrative acts, “they must be motivated, in accordance with Article 3 of Law 241/1990. Even DPCMs are not exempt from this obligation“, the Court continues to explain. The DPCM cites the analyses of the Technical Scientific Committee (CTS) as the basis for their motivations. It is a pity that these analyses were made public by the government close to the deadlines of the DPCM themselves, because for a long time, they were classified as confidential. The reasons therefore remained unknown. “Such a delay,” explains the judge, “to the point of not allowing the activation of judicial protection. As a result, the obligation to give reasons was not fulfilled. Moreover, the reasons behind the DPCM are generic, illogical and imperfect, leading to an excessive power vacuum on the part of the government.
All measures which, as Affari Italiani writes again, have not proven the facts, given that Italy is the country with the highest number of deaths in Europe and the second highest in the world for deaths per million inhabitants among countries with a population over 10 million.
Anti-Covid DPCMs are illegitimate
Judge Dr. Alessio Liberati makes it clear that the DPCM has imposed the compression of the fundamental rights of Italians in flagrant violation of the Constitutional Charter. We report an excerpt from the most striking content of the minutes of the hearing: “It is clear that the limitation of fundamental and constitutionally guaranteed rights that occurred during the period of the health emergency is therefore not due to the intrinsic pandemic spread of an “ex se” virus, but to the “external” adoption of provisions of various natures (regulatory and administrative) which, in the hypothesis of the existence of a health emergency, have compressed or even suppressed some of the fundamental freedoms of man, recognized both by the Constitutional Charter and by international conventions.”
“To illustrate this, it is well known that the aforementioned fundamental rights and freedoms have been engraved with different modalities and intensities in the different countries of the globe, and some States, such as Sweden, have even limited themselves to indications and suggestions, without imposing limits on the enjoyment of the rights, at least during the initial period. The undisputed point is that the fundamental freedoms of individuals have been compressed through ministerial decrees.”
This act, as we know, is not of a legislative nature, but of an administrative nature. This nature remains even when a provision with the force of law has been previously “legitimate”, and provided that such “delegated” legitimacy is attributed within the authorized limits. “The opinions of those (for all the presidents emeritus of the Constitutional Court Baldassare, Marini, Cassese) who raised the unconstitutionality of the DPCM were different and authoritative. As already pointed out by another jurisprudence (Justice of the Peace of Frosinone), a DPCM cannot be considered to impose limitations on freedoms guaranteed by the Constitution, having no force in the eyes of the law.”
In fact, it should not be forgotten that with the Resolution of January 31, 2020, the Council of Ministers of the Italian Republic, published in the Official Gazette General Series No. 26 of 1.2. 2020, declared a state of national emergency due to the health risk deriving from transmissible viral agents:
“in accordance with and for the purposes of Article 7, paragraph 1, a state of emergency shall be declared for six months from the date of this provision, as a consequence of the health risk related to the occurrence of pathologies deriving from transmissible viral agents; 2) for the implementation of the interventions referred to in Article 25, paragraph 2, letters a) and b) …”.
However, in the words of the case law cited above, “If you look at the case referred to in the above-mentioned communiqué, it should be noted that no reference to “health risk” is found, even from “viral agents”.”
In fact, Article 7, paragraph 1, letter c) of Legislative Decree No. 1/18 establishes that “emergency events of civil protection are distinguished: …. C) emergencies of national importance related to calamitous events of natural origin or resulting from human activity.”
These are natural disasters, i.e. earthquakes, avalanches, floods, fires and others; or resulting from human activity, i.e. wintering, human polluting activities and others, but none of the cases referred to in Article 7, paragraph 1, letter c) of Legislative Decree No. 1/18 is attributable to “health risk”.
To this it must be added, again with the words of the above-mentioned judge, that “our Constituent Fathers have provided in the Constitution of the Republic only one hypothesis of specific cases attributed to specific normative powers and that is that of the state of war. There is no reference in the Italian Constitution to the hypothesis of the declaration of a state of emergency due to the health risk and as provided for by Legislative Decree no. 1/18. Therefore, the declaration adopted by the Council of Ministers on 31 January 2020 is illegitimate, as it is dealt with in the absence of legislative prerequisites, as no source of constitutional or ordinary law gives the Council of Ministers the power to declare a state of emergency due to health risk.”
“From this stems the illegitimacy of all consequent administrative acts. (…) Also the DPCM, which governs the cd. Phase 2, in the opinion of this judge, is subject to doubts about constitutionality since it imposed a renewal of the limitations on the rights of liberty that would have required a new passage through Parliament different from the one that took place for the conversion of the decree “I stay at home” and “Cura Italia”. Therefore, these are measures that contrast with articles 13 to 22 of the Constitution and with the discipline of art. 77 of the Constitution, as indicated by the authoritative constitutional doctrine. Moreover, it should be added that even if the limitation of individual freedoms were considered legitimate, it would be necessary to specify a term in the Prime Minister’s decree. On this point, however, the temporality of the Prime Minister’s decree appears in reality to be only formal, as the jurisprudence of the Lazio Regional Administrative Court has recently pointed out. »
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