Analysis by Osservatorio Repressione

Since the beginning of the health crisis, in Italy and elsewhere, various problems have emerged balancing constitutional rights seemingly conflicting. Balancing the safeguard of public health and the right of assembly in public places has been particularly risky. In recent months, too many decrees and ordinances have already restricted the right of assembly and demonstration for health reasons. As social tensions intensify, there is a serious danger that health protection may be used to restrict the possibility of demonstrations further. This would have a catastrophic outcome for the whole system of rights.

Article 17 of the Italian Constitution provides that the right to meet in a public place (a street, a public square) may be limited only “for proven reasons of public safety or security”. The limitations, ad hoc, and obviously temporary, must meet the requirements of proportionality and reasonableness. The Constitution insists: it prescribes the scenarios for limitation (public safety and security) and requires proof of the reasons for prohibiting the assembly.

The Decree of the President of the Council of Ministers (Dpcm) of 24 October 2020 only allows “demonstrations” in the static form (art. 1, par. 9, letter i). As such, it introduces an unprecedented form of general and preventive restriction of the right of assembly, albeit within the time limits of the decree. This had already happened with the start of “phase 2”. At that time, Decree-Law no. 33 of 16 May 2020, had provided for the holding of meetings “guaranteeing the respect of the interpersonal safety distance of at least one metre” (art. 1, c. 10) as of 18 May – therefore with a delay compared to the reopening of many production activities (ordered as of 4 May). The Dpcm of 17 May 2020 had specified that “public events” may take place, but only “in static form” (art. 1, letter i). Therefore, marches would be prohibited as “on the move” meetings.

Why? What is a proportionate and reasonable balance between the right to health and the right of assembly?

In the presence of a virulent epidemic, it is undoubtedly reasonable to demand that the measures to distance and contain the spread of Covid-19 should be respected in carrying out a demonstration, whether it is static or moving. However, it seems neither reasonable nor proportionate to prohibit marches or demonstrations tout court.

Preventing protests in the streets is a much more delicate matter than putting a few restraints on the nightlife. Anyone who intervenes in the matter without realising this enormous difference commits an irresponsible act. At this moment, we should all remember the fundamental teaching of the Age of Enlightenment and the struggle for human emancipation: the right to assemble, to express political opinion and to publicly express dissent, has been won with the blood of martyrs for democracy, and it is as valid as the right to life.

The right to publically express claims, proposals, dissent through demonstrations is essential for democracy; demonstrations and marches are essential tools for the expression of the conflicts that exist in society. Democracy lives on pluralism and conflict.

Unfortunately, a process of delegitimisation and repression of dissent has been underway for some time. The bipartisan measures on public safety introduced in recent years are emblematic. Most recently, the Security decree signed by the then Minister of the Interior Matteo Salvini (not touched on the point by the minimal and insufficient restyling carried out by the decree-law of 21 October) showcases this through the re-penalisation of the roadblock, the tightening of penalties for occupying buildings, the increase in the hypothesis of “urban banning order”. The ” criminal law of the enemy” is used against social movements and the organisation of workers. The social malaise is ghettoised. Social conflict is denied, mystified, repressed and anaesthetised.

Now, during the “second wave” of the pandemic that is hitting the peninsula from North to South, the considerable difficulties of millions of Italians living in total precariousness become visible. While during the “first wave”, the novelty and surprise had stimulated obedience and mass passivity and the confidence in the government was at its highest, during the “second wave” the situation is no longer acceptable for many due to economic and income reasons.

In many Italian cities, protest demonstrations have been taking. In some cases, there have been clashes, police charges, throwing firecrackers and even some Molotov cocktails. The social and political composition of these demonstrations is decidedly heterogeneous (in some cases they were initiatives of neo-fascist groups, but in fact in insignificant quantities). Those who play the very dangerous game of placing responsibility on the streets by talking about crowds of mafia criminals, right-wing extremists or dangerous subversives of the social centres that feed the protests are clamorously mistaken. Those who protest are those who cannot afford restrictions or die of hunger, those who cannot afford to choose between the right to health and the right to livelihood.

But it is not just a cry of pain that has risen from the South and found an echo in the North. The demonstrations have been a great burst of democracy, the most important one since the beginning of the pandemic. The demonstrations have broken the fear and depression. They are not “on principle” against the government: they call for measures, suggest initiatives, call for action. They want to be involved, they want to be taken into consideration. Because it is on their skin that the decisions are taken. The “universal” message that comes from the squares all over Italy is that if the government wants that “everything goes well”, it has to involve people in the decision-making, to listen to them, to understand the difficulties that they are experiencing. As the contagion is making society even more “liquid”, democracy is in real danger if the places of political decision making are closing themselves.