Surprise! The green pass falls into the category of administrative certificates and is therefore self-certifying
The green pass falls into the category of administrative certificates and is therefore self-certifying. We talk about it with the lawyer Angelo Di Lorenzo, president of the ALI (Free Lawyers Association)
Lawyer Di Lorenzo, one of the ALI's “workhorses” is the possibility of self-certifying the green pass… can you tell us how?
More than a workhorse, it is a possibility granted by law.
The Consolidated Law on the legislative and regulatory provisions on administrative documentation (Presidential Decree No. 445 of 28 December 2000) establishes that all citizens who come into contact with public administrations and with public service operators (post offices, banks, transport, etc.) can replace the formal administrative certificates concerning status, personal qualities and facts, with substitutive declarations of the certificates themselves, which have the same temporal validity as the deed they replace.
The covid-19 green certificate, renamed by Law 11/22 with the media name green-pass, falls within the category of administrative certificates pursuant to art. 1 letter f) Presidential Decree 445/2000, defined as the document issued by a public administration having the function of recognition, reproduction or participation in third parties of states, personal qualities and facts contained in public registers, lists or registers or in any case ascertained by persons in charge of public functions .
The green pass is a certificate (digital or paper) issued by a Public Administration for the assessment, certification and information to third parties of the anti-SARS-CoV-2 vaccination or of the recovery from COVID-19 or of the carrying out of screening tests with negative results for the SARS-CoV-2 virus in the previous 48 hours or, finally, of the healing after the administration of the vaccine, but let's say immediately that it is not a medical certificate
or health care, as not issued by doctors or health workers who, on the other hand, after having formed the actual medical certificate (the negative swab or vaccination or recovery report) transmits the data of the report to the public administration through a material operation of insertion in the computer system " Health Card " which collects them, archives them and, on the basis of their processing, issues an administrative certificate (the green pass in fact).
The art. 40 DPR 445/2000 establishes that administrative certifications “are valid and usable only in relations between private individuals. In relations with public administration bodies and public service managers, certificates and deeds of notoriety are always replaced by the declarations referred to in articles 46 and 47 ″.
Two types of replacement certificates correspond to these two articles, namely:
– Art. 46 Presidential Decree 445/2000, entitled "substitutive declaration of certification" – also called self -certification – allows self-certification of the statuses, conditions and qualities strictly indicated in the long list of the law (eg birth, residence , registrations in registers, existence in life , etc.).
– Art. 47 Presidential Decree 445/2000, instead entitled "substitutive declarations of the deed of notoriety", establishes that "subject to the exceptions expressly provided for by law , in relations with the public administration and with the concessionaires of public services, all states, personal data and the facts not expressly indicated in article 46 are proven by the interested party by means of the substitutive declaration of notarial deed ", that is, by means of a declaration signed by the interested party and presented personally together with a copy of an identity document, or sent by fax, through a representative, or by post.
And this is exactly the regulatory tool to be used to self-certify the green pass, that is the same tool used until April 2021, when the pandemic legislation required the citizen to self-certify the legal conditions required to "leave the house", provided that there was a suspicious health condition, such as a body temperature above 37.5 °, the presence of symptoms, quarantine, isolation or contacts with positives, also duly self-certified.
That the self-certification can be used to replace the green pass administrative certificate is demonstrated not only by the existence of the law that admits it, but also by the entire pandemic legislation of the Conte-bis government (which required it with dpcm and decrees that published facsimiles on the institutional websites of some ministries), only to fall into oblivion with the advent of the green pass used by the Draghi government , without however being expressly excluded by law – as provided for by art. 47 paragraph 3 of Presidential Decree 47/2000 – the possibility of replacing the administrative certificate with self-certification.
On the contrary, the current executive – after a quick passage in the "capacities" dpcm of October 2021 where it stated that "under current legislation" the green pass would not be self-certifying -, with art. 6 decree-law n. 5 of 4.2.2022, the express possibility of self-certifying the negative condition of students under self-supervision, making a self-administered antigenic swab (ie "at home") and self-certifying the result, demonstrating that if the self-certification is used for the public administration – in this case the school – for the exercise of the right, in the same way it must be used to exercise any right subject to the buffer assessment (green pass base).
In conclusion, under current legislation, the green-pass administrative certificate, not being a medical certificate (not self-certifying pursuant to art.49 DPR 445/2000) and in the absence of express regulatory prohibitions, can be replaced in relations with the PA and with the managers of public services through the substitutive declaration of the affidavit referred to in art. 47 Presidential Decree 445/2000.
How is the green pass self-certified, has ALI prepared a model?
It is made with the declaration referred to in art. 47 Presidential Decree 445/2000 which declares not to be in compromised health conditions, not having 37.5 °, not being in quarantine, not having had direct contact with positives, not having symptoms that could give rise to the suspected of a contagion and, ultimately, of having self-administered the rapid antigen test in the previous 48 hours with negative results.
The self-administration of the rapid antigen test can be done autonomously, as long as in the previous 48 hours and preferably with commercially validated instruments, preferably purchased at a pharmacy while keeping the receipt.
This self -certification can be shown instead of the green pass to access all the activities for which the basic green pass is required, accompanying the self-certification with a copy of the identity document.
Avvocati Liberi has published on its website www.avvocatiliberi.legal a facsimile of a self-certification pursuant to art. 47 DPR 445/2000 easily downloadable and editable at the following link http://avvocatiliberi.legal/te-lo-do-io-il-green-pass-come-autocertificare-il-certificato-verde-covid-19-tutti- the-necessary-documents /
Does it also apply to the super green pass?
For the super green pass, the situation is different.
As mentioned, the prerequisite for a legitimate use of self-certification is the declaration of true facts.
Therefore he cannot self-certify that he is not required to vaccinate if over 50, if he is a health worker, if he is a teacher or member of the police, as it would not correspond to the true self-certification of having vaccinated or being cured when this is never happened.
Basically it is not possible to use the self-certification to evade the vaccination obligation without incurring the penal sanctions referred to in art. 76 DPR 445/2000.
Apart from the forgery, also in this case, it will be possible to self-certify the possession of the super green pass if the declarant is actually in possession of it.
Apparently it may seem useless to self-certify a certificate of which you have the original, but the implication instead is of enormous importance because it would once again demonstrate the uselessness of an administrative pass which according to the law can and must be replaced but which, instead, due to the cultural and psychological habit of many, it seems to have become the only key to be able to open the doors of a dignified existence.
The self-certification of the super green pass would also diminish the binding force of the instrument, which was candidly defined as the means to induce citizens to undergo mandatory health treatment , but which would lose its raison d'etre in one fell swoop. if it is admitted, as is a duty under the law, the possibility of replacing it with one's own solemn and formal declaration.
Finally, the enormous usefulness of self-certification is noted in cases where, for any reason, a subject has acquired the right to issue the super green pass but this, for reasons not attributable to him and in any case attributable to delays or inefficiencies of the public administration, is not released immediately after recovery, after vaccination or after the presentation of an exemption (today also digitalized by virtue of DPCM 4.2.2022).
It must be said that the vaccinated, cured or exempted subject immediately accrues the right to exercise the activities subject to the pass at the exact moment of the occurrence of the de facto conditions (vaccination; recovery or exemption), so that he cannot be limited even a minute more due to inefficiencies of the public administration, denials, abuses, delays, technical difficulties or culpable delays of health professionals in releasing reports or uploading data to the computer system, and the frequency of this case can be resolved with self-certification of having (not the super green pass, but of having accrued) all the legal conditions to obtain the release of the enhanced certificate and, thus, to exercise the activities to which one is fully entitled.
How can you react to a refusal?
In the face of the refusal, various forms of protection are triggered, given that the public employee or the operator of public services is obliged to accept the presentation of the self-certification, and cannot refuse.
The art. 43 Presidential Decree 445/200 provides that public administrations and public service managers are required to acquire the information object of the self-declarations pursuant to articles 46 and 47 and to accept the self-declaration produced by the interested party, while art. . 74 DPR 445/2000 qualifies the refusal of the public official to receive self-certification as a violation of official duties.
Always the art. 74 cit. provides for further cases of violation of official duties in the event of refusal to accept the self-certifications pursuant to art. 46 and 47 (already punishable in itself) and, in particular, the request to exhibit the administrative certificate which would be replaced with self-certification (letter a), thus integrating a double violation of the public employee or the operator of public services which, on the one hand, does not accept the self-certification and, on the other, asks for the administrative certificate which was to be replaced with the non-accepted self-certification.
It must be said that these days the law is not "grounded" in civil society, where there are distortions and abuses of all kinds, but this does not mean that the daily violation of rights and the law is overcome by the will of an employee of the state, the post office or the bank: these subjects must also comply with the law and must assume civil-criminal-disciplinary responsibility for their work. Therefore, when a citizen with the legal requirements to exercise his right or any activity will be prevented from accessing essential services (post office, bank, courts, etc.) in the workplace, leisure or private – if he does not want to continue to suffer the abuses – not only report the violation to the disciplinary body, but he can also file a complaint for private violence, for abuse of office and for the interruption of public service towards the '' entitled person prevented and, moreover, if the fact will be a harbinger of economic damage or foreclosures (think of the appropriation of pensions not paid by the Post Office to the elderly, or the expiry of the payment of taxes or fees with F23; or the delays for late payments; or forfeiture of appeals, appeals or notifications by post, etc) the individual employee may be summoned in civil court for compensation for damage.
Avvocati Liberi, in the same section of the site where the self-certification model is published, has also published facsimiles of the disciplinary report pursuant to art. 74 Presidential Decree 445/2000 as well as a facsimile of complaint-lawsuit pursuant to art. 610-323-340 of the Criminal Code as well as a draft of a summons of public employees and managers of essential services before the justice of the peace for the compensation of the damage that the citizen can introduce alone, without the assistance of a lawyer and without the assumption of the relative costs (a bit like it is possible to challenge a fine).
Furthermore, as regards this is happening in post offices and in some banks, Avvocati Liberi has prepared a preventive warning that every citizen can send to the managers of these essential services, downloading it freely at the following link http://avvocatiliberi.legal/diffida- Italian-post-offices-and-banks /
Are there risks for self-certifying and, if so, what are the consequences?
You risk what you risked before: that is, the falsity of acts.
The art. 76 DPR 445/2000 punishes anyone who makes false declarations, forms false documents or makes use of them, bearing in mind that "substitutive declarations made pursuant to articles 46 and 47 are considered to have been made to a public official".
The solemnity of the self-certification is sanctioned by the need to include in the self-certification the declaration of being aware of the sanctions referred to in art. 76 DPR 445/2000 in case of falsehood, because the declarant cannot and must not declare things that are not true.
If the declarant uses the self-certification in an improper, untrue or instrumental way, he will therefore be punished by art. 76 cit. with the penalties of articles 482-483-493 of the penal code increased from one third to one half.
Having said this, unless they are falsely filled in, the substitutive declarations of a deed of notoriety always exclude the crimes of forgery because these require willful misconduct and, therefore, the conscience and will to declare a fact that is not true.
If you are convinced that you are negative, that you have no symptoms, that you are not in quarantine or have not had direct contact with the infected and if you have done a rapid antigen test as required by art. 9 paragraph 2 of Legislative Decree 52, and it is declared, a possible contrary finding should demonstrate that the declarant knew he was positive (perhaps because he had taken a test) or was in quarantine (there is a duly notified provision) and despite this he declared the contrary, but outside of these cases, the psychological aspect of the declarant can never be said to be malicious, if anything erroneous, or vitiated by an error or ignorance on a fact that excludes the guilt of the crime.
The premier announced the end of the state of emergency on March 31 but not the end of restrictions, including the green pass. Do you think it is possible? If so, on what legal bases?
In my opinion, there is no legal basis – if anything had even existed before – to justify the extension of measures restricting fundamental freedoms, equality and human dignity, a fortiori in the absence of an extraordinary condition of necessity and urgency.
In almost all the case law of the pandemic era, the judiciary justified the restrictive measures (lockdown; dad; curfew; masks; colored zones; basic or reinforced green pass; suspension from work and salary; limits on health care; limits on research, culture, events, circulation, worship and ceremonies, economic initiative; sport, property; generalized vaccination obligation, etc.) as temporary, proportionate and adequate measures to counter the health emergency, ended the restrictions and measures taken to address it should also immediately cease.
After all, all the pandemic-based regulatory measures, but all of them, were issued as a result of "the declaration of a state of emergency" with the declared intent to "contain the spread of the virus", so much so that these conditions and purposes have constituted the a justifying ratio as well as an admissibility threshold, so that it would be legally abnormal to maintain measures affecting so severely on people's lives and on their natural rights once the conditions on which their introduction were based no longer exist.
Faced with a sanction, which roads can citizens take?
If, even after the end of the state of emergency, some restrictions are maintained, especially the most hateful and divisive ones for society (green pass and generalized vaccination obligations), we at Avvocati Liberi – but I hope all Italian lawyers do the same who still have in mind a high level of democratic sense, justice and social solidarity – we will challenge and contest in every forum – judicial and otherwise – the persistence of constitutionally aberrant, unjust, legally illicit and socially hateful measures, as well as harmful to the economic restart of the country.
Citizens, however, are also called to their part, and not only the "consumers" of the activities or services, but also the merchants and employers, who must return to respect the fundamental law, the rights of others and the productivity interests of own companies, with the awareness that any sanctions imposed for violations of illegitimate rules must be appealed to have them annulled in court.
We already have many precedents of cancellation of sanctions, mostly fines, imposed for violations on the discipline of masks, distancing, curfew, etc, and most of those challenged (in particular from mid-2021) have been filed by the Prefects and, even if confirmed in the first instance, demolished by the justices of the peace.
Lately we have also registered a flood of sentences, coming from all types of jurisdictions (administrative; civil; criminal), which have ascertained the illegality of the sanctions for suspension from work and workers' remuneration, or which have raised issues of the constitutionality of vaccination obligations. .
Furthermore, rulings have been issued declaring the illegality of the state of emergency and restrictive measures, so it does not take long to understand that it is not about personal opinions or ideological visions, but about the rulings of Italian courts. Now all that remains is to become aware of this, to execute the sentences and carry their principles into the social conscience which, when it has understood the legal illegitimacy of such measures, can only ignore them and consider them tanquam non esset.
The real junction to overcome consists in the splitting of the legal analysis of an instrument with the use made of it, because every discussion on these issues is tainted by prejudice and by the claim of unconditional acceptance of a truth and a justice treated as " act of faith ”, taking a stand on ideological or political aspects that have nothing to do with health care or with the law.
https://www.studiocataldi.it/articoli/43980-il-green-pass-si-puo-autocertificare.asp
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The article Surprise! The green pass falls into the category of administrative certificates and therefore can be self-certified and comes from ScenariEconomici.it .
This is a machine translation of a post published on Scenari Economici at the URL https://scenarieconomici.it/sorpresa-il-green-pass-rientra-nella-categoria-dei-certificati-amministrativi-e-dunque-e-autocertificabile/ on Wed, 02 Mar 2022 21:03:50 +0000.