The pandemic passes, the constitutional lesions remain: the principle of proportionality is overturned

A quiet gentleman – I am not saying coming from the red planet but from much closer, from some other European country – could certainly surprise our anti -Covid strategy gradually aggravated, to the point of making it difficult to read, combined as it is on four colors. territorial (white, yellow, orange, red), on three types of Green Pass (basic, reinforced, booster s), with a detailed list of the allowed actions, plus a sophisticated quarantine discipline brought to perfection with regard to the school. Certainly a construction carried out under the banner of algorithms, so as to make this strategy of geometric power on paper, as evidenced by the analytical reconstruction that requires a dozen cards, to cope with all possible combinations. Of course, that gentleman will say, a tribute to the intelligence and availability of the Italians, redeemed from the usual atavistic prejudices, expressed with that saying assumed as their principle of life "Franza, Spagna, or Alemanna provided that if magna" .

Except that after the moment of admired amazement, going a little further inside, it would seem to him a megalomaniac approach to presume to 100% control the spread of a virus that now in the Omicron variant is spreading uncontrollably, until it stops air traffic with South Africa, as if this alone could prevent their arrival in Italy. A suspicion fully confirmed by the last Dpcm – exhumed as a privileged regulatory source – already for having requested the possession of a Green Pass to access the post office and tobacconists, but even more so for having thought of limiting entry into supermarkets to the sole purchase of primary goods, having withdrawn only at the time of having to list those goods that should have been considered as such, leaving the cashiers as the last judges.

The aim is the same, to force the unvaccinated to surrender unconditionally, pursuing the strategy of identifying in them the enemy to beat; so, after having introduced the obligation for workers over fifty, sanctioned by the loss of wages, here is groped to do something attenuated, but still burdensome, for retirees, placing the prohibition for those without a Green Pass to withdraw their pension at post office counters. Not only that, because it was necessary to lengthen the deprivations to which the no-vax were subjected , after having excluded them from 90 percent of social life, here was a rage on "voluptuous" expenses, such as that of buying cigarettes.

To tell the truth, it only penalizes pensioners who do not have an account on which to credit the pension, as well as those who do not have a relative or an acquaintance to whom to delegate, but which also matters here in the name of the public good. , that kind of Moloch that characterizes ideological dictatorships, from the Jacobin to the Communist. There is no balanced compromise between the two opposing values ​​of public health and personal freedom, with the justification not only for the absolute prevalence of public health, but for its transformation into a guarantee of universal personal freedom, shared among the vaccinated who would have right to a normal life and the unvaccinated who would avoid the serious consequences of the pandemic. This has been facilitated by the fact that while it is extremely easy to calculate the cost of the presence of no-vax in terms of flooding the hospital system and otherwise avoidable deaths, the cost of deprivation of personal liberty is beyond any numerical calculation. It is generally perceived only by a minority, which today in Italy does not coincide at all with the opponents of vaccines, because not a few of those who have made them find the government's health policy excessively invasive compared to the evolution of the pandemic into an endemic.

That this evolution is underway is a widespread prediction in many countries, which, consequently, are abandoning the more restrictive measures, thanks to the increasing prevalence of Omicron over the Delta , with a faster but less serious spread. There is a peak to be discounted that should settle on a plateau, and then not only gradually decrease but take the form of a flu with which to get used to living together, no longer betting everything on a totalitarian vaccination, since this is not able to stop the viral spread. A prediction not even ignored here, where the same official science – the one concentrated in the CTS, with a small court of television virologists as a critic, assumed as the "Science" par excellence, with all due respect to all that cultivated abroad – continues to repeating the mantra of keeping one's guard up, but assuming that the turning point has already occurred or is very close.

If this is the case, it would not seem understandable the strong tightening of the restrictive measures, with the imposition of the Green Pass at the peak to be able to work for all over-50s, starting from February 15, with a possible significant effectiveness only two / three weeks later. , that is, in early March. But the suspicion is that reversing the policy followed up to now, of combining terrorist propaganda – well expressed in the words of the Prime Minister, for which not being vaccinated was equivalent to a certain death – with a substantial compulsion to do so, to the point of wanting to bend even those who no longer work because they are retired would mean blatantly denying this policy, conducted without any transparency. Obligation is spoken of only for some categories for which it can be justifiable; but the point of fall is a substantial lockdown of the unvaccinated, with the use of a Green Pass , duly graduated, like an ever tighter noose around their necks.

Thus, even if the peak were reached and exceeded, with a deflation of the number of infected – which, among other things, would certainly be reduced if one began to distinguish between positive and non-positive – the official verdict would always be in the sense of seeing it as the result of the breathless hunt for no-vaxes , without taking on the fact that all of this happens before their restrictive measures can have any effect.

It is certainly not the case to think of an international conspiracy aimed at creating a world under strict control as in the much-cited book by Orwell, "1984" , even if today it would be much more practicable than yesterday, but only taking for granted an unthinkable planetary agreement in this sense; and not even a Big Pharma cartel aimed at unlimited exploitation of their power on the market, putting their own patents at risk. But if and when this emergency, transformed into a situation of exception, is behind us, it will be possible to make an account of the constitutional damage produced, which, once it has ceased to report, will make history in terms of precedents. An obsessive terrorist campaign also makes us live this one that seems to be the tail of the pandemic according to the classic image of shipwrecked people huddled on a rescue boat who oars repel those who cling to it at the risk of making it sink; therefore no concessions to the no-vax , which are those who expose those already rescued to the risk of falling back into the water.

This demonization of a minority of the minority appears problematic in itself, as it is labeled, as if scarce numerical relevance constituted in itself a justification in a democracy; but even more the little or no evaluation that is underlying it, about the extent to which personal freedom can be constrained. While making itself strong of the art. 32 of the Constitution, second paragraph – first relegated to legitimizing compulsory hospital treatment, then elevated to the pillar of government health policy – it should have been taken into account that that paragraph not only requires a law, but always with the limit of "in no case violate the limits imposed by respect for the human person ”, which does not seem to be respected with the blackmail of removing or making it difficult to perceive what may be the only income, salary or pension.

However, there is much more destined to remain, such as the overturning of the principle accepted and upheld by the constitutional judge, that between two equal rights, such as those of public health and freedom of the person, there is no prevalence, but only a balanced composition inspired by reasonableness and proportionality. Can this be said with regard to health policy that is even hardened precisely in view of a mitigation of the Covid emergency? It would be hoped that the question would come to the examination of the Council, but it would take a magistracy willing to give the green light to an exception of constitutionality, something that has not been seen to date.

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This is a machine translation from Italian language of a post published on Atlantico Quotidiano at the URL on Mon, 24 Jan 2022 03:47:00 +0000.