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Tuesday 11 May 2021

Free Thought The serious unconstitutional restrictions suffered by the Italians

The serious unconstitutional restrictions suffered by the Italians

Author of the content

I do not know what happened abroad and I am not interested in investigating the extent and scope of protecting citizens' personal freedom outside the context of our constitutional rules.
On the other hand, not all the governments of the various countries have behaved uniformly in restricting the personal freedom of their citizens. 

There was talk for many of them of lockdown, but not in all States the measures adopted were coercive in the same way, sometimes they concerned only economic activities and provided for compensatory or compensatory forms without affecting the personal freedom of movement of citizens, nor have they always (and in any case never equally) been sanctioned with moderate fines or even considered crimes.
Examining the problem in its global scope would be a serious mistake, from a legal point of view and could only serve to further confuse the ideas to those who have never had them clear.

What, as an Italian citizen, I know well is that in the Bel Paese there has been a fierce quarrel to determine whether, on the occasion of the Coronavirus pandemic, the restrictions on citizens' freedom, to be authorized authoritatively, with the obligation not to leave their home and not to reach a second home (placed, perhaps, even a short distance from the first) were the responsibility of the State or the Region.
Nobody has ever argued that, in reality, neither the Central nor the local Government could act as they did, without blatantly violating the Constitution and placing themselves in an illiberal position that heavily concealed the freedom of citizens.

And this, regardless of the fact that they followed aberrant paths for their brazen violation of the law (administrative decrees of the President of the Council of Ministers were issued for a sort of "delegation" implicit in a law decree) that made the skin crawl even to simple doctors in law.
Yet, the wording of article 32 of the Italian Constitution is very clear "The Republic protects health as a fundamental right of the individual and an interest of the community and guarantees free treatment for the most deprived ... The law can in no case violate the limits imposed by respect of the human person ".

There can be no doubt that the right to health, although defined as "fundamental" in Article 32 of the Constitution, is on the same high level as the other individual rights defined as "inviolable" by Article 2, as stated in the "fundamental principles" of the Constitution.
In other words, it is an instance of the citizen, corresponding, for one part to a specific right of the individual and for another common to the interest of all the members of the community.

In other words, there is no reason or reason to consider it (arbitrarily) superordinate to other rights of freedom of the citizen.
The different adjective used for these rights by the constituent legislator (now fundamental, now inviolable) is perfectly consistent with the term “fundamental principles” placed at the head of the Constitution.
Less than ever it can be considered a right of the State to safeguard its own "human heritage". 

The times of the feudal lords who considered serfs their property ended with the French Revolution and only those peoples who have totally lost their freedom identify themselves, in a mystical way, with their leaders. 
The idea of ​​Rousseau, made its own, not surprisingly, by Hegel (to justify the Prussian Authority) is the patrimony of authoritarian regimes (Theocracies, Absolute Monarchies, Tyrannical Dictatorships), certainly not of the liberal democracies to which Italians still believe to belong.
The State, in relation to the health of citizens, has duties and not rights: it must provide the means so that it is adequately protected, in their personal or collective interest. And this always with respect for human freedom and dignity.

If, even, health checks and inspections can be arranged (based on another rule of the Constitution: article 14) only on the basis of a special law, the circumvention of the true essence of the problem in Italy , on the occasion of Covid19 it was quite evident.
Article 13 on the strict prohibition of "any restriction on personal freedom" cannot yield to Article 32 of the same Constitution which protects health as a right (equally fundamental, but not more) only for the individual, degrading it to mere interest for the community.

Questions: Could the compulsory restrictions imposed by the Italian Government for health reasons not follow the paths provided for by article 13? 

And could the central power not limit itself to an urgent invitation to citizens to stay at home as a precaution, without even providing for sanctions of considerable monetary and even criminal amounts?

Citizens who did not intend to yield to an imposition which they believed, not without plausible reasons, to be constitutionally illegitimate were not making use of rules relating to solemnly guaranteed personal freedom?

The Italian rulers declared themselves pompously proud to have imposed the most rigorous and restrictive lockdown since China. 
That country, however, is governed by a dictatorship; and the mystical identification of the people with the Chief is consequent. We are still, formally and despite the evidence to the contrary in recent months, a liberal democracy where the "misdeeds" committed in politics are evaluated in the electoral stage, when and if citizens are allowed to go to the vote.
The gravity of what has happened and may still happen in Italy cannot even exclude the possibility that the political action of overthrowing the current rulers and parliamentarians can follow and associate initiatives in various judicial offices aimed at obtaining from the leaders of a State so badly administered compensatory or remedial measures to compensate for the negative consequences produced, in various and multiple ways, by personal and collective restrictions on freedom. There have been suicides and depressive states that are difficult to recover, as a result of the restrictions imposed on citizens' freedom.

Should the constitutional protection of a fundamental and inviolable right be considered only as an inane momen? 

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