The complete sentence issued in Reggio Emilia which demolishes the Prime Minister’s Decree

As we know, the Judge of the Preliminary Investigations of Reggio Emilia blatantly acquitted a couple from Emilia who had been stopped, fined and denounced by the carabinieri for having made a false self-certification, claiming to have gone to the hospital for a visit.

Judge Dario De Luca ruled with a non-place to proceed due to the evident unconstitutionality of the Prime Minister's Decree that required self-certification to move, as they are completely and clearly unconstitutional as they clash with Article 13 of the Charter.

Since it is right that we can read the entire sentence which is sensational.

ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
COURT OF REGGIO EMILIA
GIP-GUP section

The judge, Dr. Dario De Luca, acting in the Council Chamber on the request for the issue of the criminal decree of conviction advanced, as in the documents, by the Public Prosecutor, pronounced and published the following

JUDGMENT

against: CD and GM, generalized / a / i, defended / a / i. and accused / a / s, as per attached copy of the request for the issue of a criminal decree of conviction, of the crime referred to in Article 483 of the Criminal Code, [a) of the offense p. and p. by art 483 CP, because, by filling out a formal self-certification deed to give knowledge of their being outside the home in contrast with the obligation imposed by the DCPM 08.03.2020, they falsely attested to the Carabinieri of Correggio: GM that she had gone to undergo clinical examinations; CD of having accompanied her. In Correggio on 13.03.2020]

EXPLANATORY STATEMENT

Proceeding criminally against each accused for the crime in the rubric respectively ascribed, the prosecutor requests the issuance of a criminal decree condemning the sentence determined to the extent specified in the documents.
The GIP believes that the request for the issuance of a conviction decree cannot be accepted and that an acquittal sentence must take place, pursuant to art. 129 CPP, due to the following brief considerations.
Indeed:
– given that the crime referred to in art. 483 CP "… because, by completing a formal self-certification to give knowledge of their being outside the home in contrast with the obligation imposed by the DCPM 08.03.2020, they falsely attested to the Carabinieri of Correggio: GR that she had gone to undergo clinical tests; CD of having accompanied her … ",
having the personnel under the Carabinieri Command of Correggio ascertained that the woman had not made any access to the Correggio Hospital that day;
– highlighted that the alleged violation finds as its prerequisite – in order to justify one's removal from the home – the obligation to fill in the self-certification imposed in general by effect of the Decree of the Presidency of the Council of Ministers (DPCM) cited in the self-certification itself;
– in an absorbing way, the unquestionable illegitimacy of the Prime Minister's Decree of 8.3.2020, evoked in the self-certification signed by each accused as well as all those subsequently issued by the Head of Government, where it provides that “1. In order to counter and contain the spread of the COVID-19 virus, the measures referred to in art. 1 of the decree of the President of the Council of Ministers of 8 March 2020 are extended to the entire national territory ", and of the postponed Prime Ministerial Decree of 8.3.2020, where it establishes that" Art. 1 Urgent measures to contain the contagion in the Lombardy region and in the provinces of
Modena, Parma, Piacenza, Reggio nell'Emilia, Rimini, Pesaro and Urbino, Alessandria, Asti, Novara, Verbano-Cusio-Ossola, Vercelli, Padua, Treviso, Venice.
– 1. In order to counter and contain the spread of the virus "COVID-19 in the Lombardy region and in the provinces of Modena, Parma, Piacenza, Reggio nell'Emilia, Rimini, Pesaro and Urbino, Alessandria, Asti, Novara, Verbano-Cusio -Ossola, Vercelli, Padua, Treviso and Venice, the following measures are adopted:
– a) avoid any movement of natural persons into and out of the territories referred to in this article, as well as within the same territories, except for movements motivated by proven
work needs or situations of necessity or travel for health reasons ".
– This provision, establishing a general and absolute prohibition of moving outside one's home, with limited and specific exceptions, configures a real obligation to stay at home. However, in our legal system, the obligation to stay at home consists in a criminal sanction restricting personal freedom that is imposed by the criminal judge for some crimes following the outcome of the trial (or, as a precautionary measure, in a measure of precautionary custody ordered by the Judge, in the recurrence of the strict legal conditions, at the outcome of a procedure governed by law), in any case in compliance with the right of defense. Certainly in the jurisprudence it is undisputed that the obligation to stay at home constitutes a restrictive measure of personal freedom.
Moreover, the Constitutional Court considered that a restriction of personal freedom in situations much lighter than the obligation to stay at home such as, for example, the "blood sample" (Sentence no. 238 of 1996) or the obligation to present it to the 'Authority of PG in conjunction with the conduct of sporting events, in case of application of the DASPO, so much so as to require a validation by the Judge in very limited terms. Even the forced accompaniment of the foreigner to the border was considered a restrictive measure of personal freedom, with a consequent declaration of constitutional illegitimacy of the legislative discipline which did not provide for the control of the ordinary Judge on the measure, a control then introduced by the legislator in execution of the decision of the Court. Constitutional; the discipline on compulsory medical treatment, equally, since it has an impact on personal freedom, provides for a timely check by the Judge regarding the existence of the application conditions strictly required by law: in fact , art. 13 of the Constitution establishes that the restrictive measures of personal freedom can be adopted only on "an act motivated by the judicial authority and only in the cases and methods provided for by law"; the first corollary of this constitutional principle, therefore, is that a Prime Ministerial Decree cannot have any limitation on personal freedom, since it is a merely regulatory source of secondary rank and not a legislative act having the force of law; The second corollary of the same constitutional principle is that according to which not even a law (or a legislative act having the force of law, such as the decree-law) could provide in general and abstract way, in our legal system, the obligation to stay at home against an indeterminate plurality of citizens, given that art. 13 of the Constitution postulates a double reservation, of law and jurisdiction, necessarily implying an individual measure, therefore directed against a specific subject, in compliance with the provisions of the aforementioned art. 13 of the Constitution
– Moreover, in this case, since it is a DPCM, that is an administrative act, the ordinary Judge must not refer the question of constitutional legitimacy to the Constitutional Court, but must proceed, directly, to the non-application of the illegal administrative act for violation of the law ( Constitutional),
– Finally, the extreme attempt of the supporters, at any cost, of the compliance with the Constitution of the obligation to stay at home on the basis of the consideration that the DPCM would be in accordance with the Constitution, as it would provide for legitimate limitations of freedom, cannot be shared.
of circulation pursuant to art. 16 of the Constitution and not of personal freedom. In fact, as the Constitutional Court clarified, freedom of movement concerns the limits of access to certain places, such as, for example, the affirmed prohibition of accessing certain limited areas that would be infected, but can never entail an obligation to stay at home ( Corte Cost., N.68 of 1964). Basically the
freedom of movement cannot be confused with personal freedom: the limits of freedom of movement pertain to specific places whose access can be precluded, because for example they are dangerous; when, on the other hand, the prohibition of movement does not concern places, but people, then the limitation is configured as a real limitation of personal freedom. Certainly when the travel ban is absolute, as in the present case, where it is foreseen that the citizen cannot go
nowhere outside one's home is it indisputable that there is a clear and illegitimate limitation of personal freedom.
– In conclusion, the illegitimacy of the Prime Ministerial Decree indicated for violation of art. 13 of the Constitution, with the consequent duty of the ordinary Judge to disapply this Prime Ministerial Decree pursuant to art. 5 of the law n. 2248 of 1865 Attachment E.
– Because, precisely by virtue of this decree, each accused was "forced" to sign a self-certification incompatible with the rule of law of our country and therefore illegitimate, it derives from the non-application of this rule that the false behavior, materially proven as in the documents, however, it is not punishable since in this case the circumstances set out exclude the concrete unlawfulness of the conduct and, in any case, because the concrete conduct, after the necessary disregard of the law that illegitimately imposed self-certification, integrates a useless, configurable false when the falsity affects a document that is irrelevant or not influential for the purposes of the decision to be issued in relation to the legal situation in question: in this regard, the jurisprudential interpretation, also of legitimacy, according to which "It does not integrate the crime false ideology in a public act by misleading the public official the attachment to the application for renewal of a concession provision of a false document that has not explained any effect, as it has no probative value, on the outcome of the administrative procedure activated. (Case relating to the renewal of a mining concession) "[Cass. Pen. Section 5, Judgment n. 11952 of 22/01/2010 (dep. 26/03/2010) Rv. 246548 – 01]: since, in the present case, the juridical rule contained in the Prime Minister's Decree which required the compilation and signing of the self-certification is constitutionally illegitimate, and therefore must be disapplied, the ideological falsehood contained in this act is necessarily harmless; therefore, the request for a criminal decree cannot be accepted.
In the light of all that has been said so far, a sentence of acquittal must be pronounced against each accused, because the fact does not constitute a crime,

PQM

Given the art. 129, 530, as well as 459 III CPP, declares no need to proceed against CD and GM in relation to the crime respectively ascribed to them because the fact does not constitute a crime.
Reggio Emilia, 27.01.2021.

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The article The complete sentence issued in Reggio Emilia that demolishes the DPCM comes from ScenariEconomici.it .

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This is a machine translation of a post published on Scenari Economici at the URL https://scenarieconomici.it/la-sentenza-completa-emessa-a-reggio-emilia-che-demolisce-i-dpcm/ on Wed, 17 Mar 2021 07:00:49 +0000.