Anti rave party decree: the theses of the government, the criticisms of some jurists
What goes and what is wrong with the anti rave party decree. The aims of the government and the doubts of lawyers and constitutionalists
Endless controversy over the government decree against rave-parties even if the text does not delimit the provision for raves. This is one of the points raised not only by the opposition but also by jurists, lawyers and constitutionalists.
With a question that also arises from today's interview with the owner of the Viminale who precisely specifies and reassures: the decree is only valid for rave parties. But are newspaper interviews sources of law? And the magistrates, given the mandatory nature of the prosecution, must they contemplate the interpretations of the Interior Ministry also made via newspapers?
Here is what Minister Matteo Piantedosi said and what jurists and lawyers claim.
ANTI RAVE PARTY DECREE, WHAT THE MINISTER OF THE INTERIOR SAYS
Interior Minister Matteo Piantedosi responds to criticisms and objections in an interview with Corriere della Sera . In which he premises that "the objective of these rules approved by the Council of Ministers is to bring us into line with the legislation of other European countries, also in order to dissuade the organization of such events, which above all endanger the participants themselves – I remember that in Modena they danced in a crumbling warehouse and there was a risk of a massacre – and they end up keeping entire areas in check, compromising commercial activities and roads. We must ensure, first of all, that young people can have fun without exposing themselves to dangers for their safety and then protect entrepreneurs who suffer competition from those who act in defiance of any rule ».
The head of the Interior Ministry, on the other hand, finds it offensive "to attribute to us the will to intervene in other contexts, in which constitutionally guaranteed rights are exercised, to which the law clearly makes no reference. In any case, the conversion of the decrees is done in Parliament, not on social networks. At that time, every proposal will be examined by the government ”.
THE ANALYSIS OF THE JURIST AZZOLLINI
“Insidious, poorly written rule, theoretically applicable to any gathering that the public authority deems dangerous in its judgment. A completely discretionary judgment, because the law does not provide criteria for defining the danger – the jurist Vitalba Azzollini wrote on Twitter – The law serves to give the power to evacuate. Today, any unauthorized occupation, even that of high school, can be cleared if the authority deems ex ante, in a discretionary way, that it could be dangerous ".
POSSIBLE INTERCEPTIONS
The president of the Criminal Chambers, Gian Domenico Caiazzo, explained yesterday that wiretapping (excluded by the government according to journalistic reconstructions) is still possible. And for a very simple reason: it has a six-year sentence. And listening to communications is possible for all crimes involving a penalty of more than five. An interpretation also adopted by Vittorio Manes, professor of criminal law at the University of Bologna, in an interview released today at the Resto del Carlino : «The organizers of a rave don't have a business card. Thus the hunt for organizers could result in listening to even simple participants. Because in the case of an investigation who promotes the event, who supports it or who participates – assuming it is so certain to define the individual roles – we understand only at the end, not at the beginning ".
THE COMMENTS OF MANES AND CAIAZZA
Manes explains that the new art. 434-bis "consists in the arbitrary invasion of land or buildings of others, public or private, committed by a number of people greater than fifty, in order to organize a meeting," when a danger to public order or public safety or public health ". It is an extremely general and therefore slippery forecast. Because no one escapes that, on the basis of an assumption of danger to public order or public safety or public health, any meeting of more than 50 people on public and private land or buildings of others could fall within the crime envisaged by the decree. . Even unauthorized meetings of a political, educational or sporting nature, just to give examples ».
FLICK'S OPINION ON THE ANTI RAVE DECREE
Even the former president of the Constitutional Court Giovanni Maria Flick – underlines Open – attacks the Meloni-Piantedosi rule. "As I remember – says the former Minister of Justice today in the Republic – the Constitution speaks of limitations" only for proven reasons of security or public safety "while it does not mention dangers to order or public health. The constitutionality of this extension of limits should be immediately verified ”. Finally, Flick criticizes the approach towards young people: "The idea of combating their discomfort with criminal instruments and penalties that appear very heavy and with a new crime, when those that already exist are more than enough" .
THE THESES OF THE CONSTITUTIONALIST AZZARITI
The same arguments are raised by Gaetano Azzariti, constitutionalist of Sapienza: «There is a tightening and control over individuals that can be deduced from the possibility of intercepting everyone, even minors. In spite of the assurances of government officials, prosecutors will be able to control the phones of many people, albeit very young, without having committed any crime. Without even being able to exclude those of politicians or trade unionists who organize rallies considered dangerous ». Professor Manes, on the other hand, points his finger at another decisive point: «A meeting is triggered, the police arrive, identify organizers and participants and report them to the judicial authorities. At that point the law must take its course. In which sports hall or stadium do we take the trial? ».
THE CRITICISM OF PROFESSOR PADOVANI
"The law begins with a definition, as vocabularies do", commented in a conversation with Il Foglio Tullio Padovani, professor emeritus of Criminal Law at the Scuola Superiore Sant'Anna in Pisa: "The text, however, only establishes that the crime it exists when there is an invasion of someone else's land or building, and when there are at least 50 people. Nothing is said about when there is a danger to public order or public safety or public health, which remains vague, very vague notions. In other words, the object to be defined is repeated, through a tautological mechanism. Either it is a mockery or it is a case of absolute legislative illiteracy ”. “We are faced with concepts that are not defined anywhere, with cases that will therefore be filled in ex post by the interpreter”, adds Padovani. And precisely because of its vagueness, the rule can easily be applied also to cases of occupation of school and university buildings ”.
THE COMMENT OF THE JURIST GUZZETTA
Illiberal and unconstitutional provision? The jurist Giovanni Guzzetta answers no in an interview with the newspaper Il Giornale : “This matter is governed by the Constitution. The art. 17 guarantees the freedom to meet and provides that the meeting is protected within certain limits. The text of article 5 of decree-law 162 of 2022 sets the danger to public health, public order and public safety as conditions for the criminal sanction. From the point of view of the assumptions, therefore, we are perfectly within the boundaries allowed by the Constitution. It is, then, a political choice of the legislator to establish what kind of sanctions to envisage, but it certainly cannot be said that this is an illiberal provision because it fits perfectly within the framework of the Constitution. The Charter, then, provides for an obligation of notice for meetings of this kind, as in the case of rave parties that take place without notice with occupations owned by others ".
Is it true that this rule would punish school occupations? Guzzetta says: «Assuming that school occupations are not a constitutional right, the definition of the case in point of the decree-law seems to me very rigorous. The law speaks of arbitrary and dangerous gatherings for safety, security and public health. I think this is the border. So when it applies, it all depends on these limits. In short, if the occupation of a school does not threaten safety, security and public health, this rule does not apply. Furthermore, establishing a criminal sanction means ensuring that this assessment is left to a judge. Therefore, it goes even further than the Constitution because the Charter provides that these events can be prohibited by the public security authorities. Here the scrutiny is up to the judge ».
This is a machine translation from Italian language of a post published on Start Magazine at the URL https://www.startmag.it/mondo/decreto-anti-rave-party-governo-giuristi/ on Wed, 02 Nov 2022 08:03:59 +0000.