The Court of Reggio Emilia has issued a controversial ruling. On January 27, investigating judge Dario De Luca acquitted a couple who had been on trial for forgery of a public document. The incidents date back to March 13, 2020, when Italy was in the grip of the coronavirus, in the midst of lockdown. The couple had been stopped by the Carabinieri of Correggio for a check and had presented a self-certification stating that the woman needed to undergo tests at a hospital. The man, a friend of hers, was accompanying her. Subsequently, the officers conducted a second series of checks, cross-referencing the woman's information with that of the Correggio hospital. The result? Completely false. The woman did not even enter the hospital ward that day. A complaint was filed and the Public Prosecutor requested a criminal conviction, which was later rejected by the investigating judge. The judge acquitted them, deeming the Prime Ministerial Decree unlawful.
For the judge Dario De Luca, in fact, it is established that "the indisputable illegitimacy of the Prime Ministerial Decree of 8 March 2020”, as well as “all those subsequently issued by the Head of Government”, when these include a ban on moving around the city. “This provision – writes the magistrate – establishing a general and absolute ban on moving outside one’s home, with limited and specific exceptions, constitutes a real obligation to remain at home. However, in our legal system, the obligation to remain at home consists of a criminal sanction restriction of personal freedom which is imposed by the criminal judge for certain crimes following the trial”.
It can also occur in pretrial detention cases, of course, but in any case it must be ordered by a judge. Not by a prime ministerial decree.
The anti-Covid decrees are then unconstitutional? Yes, at least according to the magistrate. This can be deduced from Article 13 of the Constitution, which specifically prohibits limitations on personal freedoms, except with an "act motivated by the judicial authority". "The first corollary of this constitutional principle - adds the magistrate - is that a prime ministerial decree cannot provide for any limitation of personal freedom, since it is a merely regulatory source of secondary rank and not a normative act having the force of law". On closer inspection, according to De Luca, not even a law (or a decree law) could lock up "an indeterminate plurality of citizens" at home: the obligation can only be imposed on a specific subject and only with the prior authorization of the judge, certainly not with a general rule. The judge reiterates that "freedom of movement concerns the limits of access to certain places, such as the stated prohibition of access to certain circumscribed areas that are said to be infected, but can never entail an obligation to remain at home". Furthermore, "when the ban on movement is absolute", as in the case of the Prime Ministerial Decree, "which provides that the citizen cannot go anywhere outside his own home", then it is "indisputable that it is clear and illegitimate limitation of personal freedom”. A freedom that the administrative authority cannot preclude in any way. Not even the Prime Minister. Consequently, without even resorting to the Constitutional Court (the Prime Ministerial Decree not being a law), the judge “disapplied” the decree which was found to be unconstitutional.
If the rule that prescribed the obligation to stay at home was illegitimate, the "incompatible with the rule of law" was also theself-certification that citizens were forced to fill out. Therefore, although it is true that the two defendants from Emilia committed an ideological forgery, their conduct is not punishable because it “integrates a useless forgery”. Since there is no obligation to fill out the self-certification, since the Prime Ministerial Decree that requires it must be disapplied, “the ideological forgery contained in such an act is necessarily harmless”.
Pig iron https://www.ilgiornale.it/news/politica/covid-sentenza-violare-zona-rossa-non-reato-1930372.html
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