Italian Restrictions on Personal Freedom May Be Unconstitutional

Measures to stem the rate of coronavirus infection in Italy, including harsh home quarantines, are based only on decrees, not on laws, even though the penalties for breaching them include prison sentences.

During the Coronavirus emergency we have been learning about precautionary quarantine measures for those returning from abroad and those who have been in contact with people who have tested positive for Covid-19. These measures severely restrict people's freedom of movement but cannot turn into a deprivation of personal freedom, as it does for those who have tested positive for the virus. Only those who have tested positive are absolutely forbidden from leaving their homes.

The measures are constitutionally dubious

Even if these measures are justified by the need to protect public health (Art. 32 of the Constitution) and stem the spread of the virus, doubts regarding constitutional legitimacy have arisen in relation to the failure to provide for an individual written order delivered to the person concerned, informing them of the constraints applicable to them. Currently a telephone call or oral communication from a health care worker is sufficient.

This way of communicating, with the potential misunderstandings, risks rendering the measure ineffective. Authorities are also under no obligation to communicate that the penalty for breaching the quarantine is up to five years in prison, or a total ban on leaving their home. No information is provided about from which court the withdrawal or amendment of the measures applied to them can be requested. For a single violation of the absolute obligation to leave one's home (but without the result of creating a contagion) there is a penalty of up to 18 months in prison.

So the way the Italian government has decided to protect public health actually goes against Art. 13 of the constitution, which clearly prescribes legal limits on curtailing the freedom of the person. These measures are largely based on ordinances and ministerial decrees and only have a slim legal basis in a primary source (Decree Law 19/2020). But contrary to what is provided for by Art. 13 of the Constitution, the sign-off by a judge is not provided for.

A telephone call to inform people that they are being quarantined is not enough

These measures are imposed on those who have been in contact with people infected with COVID-19, even if unknowingly. In these cases, all it takes is a telephone call from a healthcare professional reporting the application of the measure and the ban on travel and social contacts, to be able to impose a criminal sanction in the event of the affected person violating the order.

When this does happen there is no judge who signs-off on the measure, to whom the individual can assert his or her arguments as to why the measure should not apply to them. Instead, they can only bring the case before the Administrative Regional Tribunal. Similar concerns arise, for example, when these restrictions are imposed on a large number of people (as was the case in Rome, for example, where 500 inhabitants of an occupied building, Selam Palace, were quarantined). If these people do not receive it is very hard for them to be fully aware of what they can and can't do, the consequences of transgressing the order, and the possibility (or lack thereof) of going before a judge to assert his/her reasons if they oppose these measures?

No law, no punishment?

If no changes are made by ordinary law, as is the case in England, there is a concrete risk that the measures will not be ineffective because the subjects will not be aware that they are mandatory. Moreover, the subsequent criminal sanctions may not actually be imposed because, since there is no individual written and clear order, a judge might consider the administrative violation not to have actually taken place as they is no law regulating it. This may be especially true in the face of measures that violate individual freedom, which is constitutionally guaranteed and assisted by specific guarantees.

Judge Andrea Natale, on Questione Giustizia, wrote: "the measures of compression of personal freedom cannot be adopted only by administrative means, but must - even today - be adopted according to the law and under the control of judicial authorities. To admit today a contravention of Art. 13 of the Constitution would risk introducing a dangerous precedent into the historical memory of the system. Today, the emergency that justifies the exception to Art. 13 of the Constitution is the coronavirus. Tomorrow, who knows... The hope is that the legislator - if he really wants to linger in the metaphor of war - will continue the battle against the epidemic with the weapons that the Constitution has entrusted to him".