“Day 1: Exposure, Day 3: Infection, Day 8: Epidemic, Day 15: Evacuation, Day: 20: Devastation”. There was a small perfume of 28 Days Later, Danny Boyle’s remarkable zombie movie, in the Italian air this morning of 10 March 2020. The day before, Prime Minister Conte had decided a total lockdown of the country as a response to the exponential growth of the Covid-19. The spread of the virus is rampant: in one day, more than 1500 infections and the numbers are likely to double, quadruple anytime soon. The government had to take exceptional measures which have been interpreted by many as an obligation to stay at home. However, as I argue, if the government wants to lock Italian residents in their houses, it will have to declare another type of state of emergency.
Let’s take a closer look at the decision
The decision of Monday 9thof March was a decree-law adopted upon the basis of article 15 of the law of 15 August 1988, itself adopted under article 77 of the Constitution. Article 15 grants the government temporary legislative powers “in case of necessity or emergency”. These conditions are fulfilled. And the government can decide an extension to the whole Italy of the measures previously applied in Lombardia and in fourteen other provinces (article 1 of the Decree). The 18 measures are, among others: interdiction of public gatherings (bars, cultural places), cancellation of exams, and prohibition of leaving the contaminated area for other reasons than work, health or return to the place of residence.
The extension of these measures created a massive confusion. Closure of public places we got it, but does it also mean that, until the 3rdof April, the government imposed a nation-wide curfew? Is everyone leaving his or her home falling under the threat of criminal sanctions? Am I seriously risking a jail sentence if I take my dog out or if I decide to enjoy the beauties of empty Firenze? The answer is no, obviously. The extension of the measures is not synonymous of a nation-wide curfew. But getting rid of irrational fears and misconceptions is not easy-peasy. It is necessary to bring some rational thinking back into this madness.
Why our freedom of movement is only partially limited
First, the Italian authorities do not have the means to make a nation-wide curfew effective. The police cannot patrol in every street of every Italian streets and the justice system cannot deal with thousands of potential lawbreakers. The second reason is consecutive of the definition of the restriction provided by the law-decree. Giuseppe Conte’s decision did not change the content of the previous measures. The new decree-law only extended, geographically speaking, a legal regime to the whole of Italy. The definition of area remained the same: it can be at maximum applied to the scale of a region, and at minimum applied to the scale of the province. It can potentially be at the scale of a city (but then it would imply a new decree-law) but it can never be at the scale of a street nor of a house.
Any derogation to fundamental rights must be justified and proportionate. Freedom of movement is a right which can be limited if its application creates a danger for the public order (security of the state, viability of the state infrastructures, security of other persons, etc.). In Italian constitutional law, the current restriction is an application of article 16 of the Constitution which gives the possibility for restricting freedom of movement for reasons of health or security. Are the measures justified and proportionate? In our case, the restriction is fully justified by the danger created by people traveling back and forth between a contaminated and a non-contaminated area. The risk is even higher in Italy, in which millions of Southern Italians work in the North (a contaminated area), and decide, quite oddly, to come back to the South (a non-contaminated area) despite its poor medical infrastructure. The derogation is also proportionate precisely because the restriction is not a curfew. If we were forced to stayed home, then the restriction would probably fall outside the scope of the current legal framework.
Can a curfew be imposed on specific areas?
Yes, it can be, but not under the current legal framework of the decree-law. The Italian government, as any other democratic governments, can restrict personal liberty to the extent of locking people in their house. If the government decided to impose a curfew, the legal regime of restriction would shift from freedom of movement to personal liberty. In Italian law, this situation is foreseen under article 13 of the Constitution which states that “personal liberty is inviolable” and article 25 which states that “no restriction may be placed on a person’s liberty save for as provided by law”. Imposing a curfew is a whole new ball game. A curfew is an infringement of personal liberty because it allows the police to arrest a person who has not committed a criminal offense. It is an infringement of the most basic fundamental freedoms. Such a decision cannot happen without a new evaluation of the state of emergency which would justify the restriction of personal liberty.
The legal restrictions on state of emergency is what distinguishes democratic regimes from authoritarian ones – it is necessary to keep it mind and to use words wisely, or we might lose their meaning and accept an abusive use of exceptional powers. Having said that, why does the Italian government keep the confusion on the nature of the measures going? Because nudging people in staying locked down has a clear medical benefit – it is an efficient way of avoiding the spread of the virus. But nudging is not synonymous of legally binding. Unless a sufficient threshold of emergency is passed, and the government decides to activate exceptional measures, the government cannot force people to stay home. But it is the moral responsibility of everyone to act in accordance with the gravity of the situation.