Lecture 26

Question 1

Constitutional Rights: CIvil Rights– freedom of communation

Answer 1

• Freedom and confidentiality of correspondence and of every other form of communication
• Historical context: communication via mail (and,
  maybe, via phone)
• The “open clause” allows art. 15 to be interpreted in an evolutive way, to reflect the cultural and
  technological evolution of our society
• Individual liberty: protects both the “sender” and
  the “receiver” of the communication (not just the
  message as it “travels”)
• Inviolable right (also guaranteed by Art. 7 of the EU Charter of Fundamental Rights)
• Recognized to all persons
• Art. 15 is also the legal basis (with art. 2) for the
  recognition of the right to data protection
• Requirements for a “communication” to be protected by article 15
• Previously determined and identifiable sender and receiver who have an actual interest to keep the communication confidential
• Confidentiality: use of adequate technical instruments
• Article 15 does not protect only the content of the communication but also: the historical fact that a
  communication took place; the identity of the sender and the receiver; the time and date of the
  communication (Corte Cost. n. 81/1993

Question 2

Constitutional Rights: Civil Rights– freedom of communication; Absolute statutory limit and Jurisdictional Limit

Answer 2

• Seizure: to find and confiscate the material
  elements of a communication (only for serious crimes and with strong evidences of a crime)
• No exception: the intervention of the police without a warrant from a judge is not allowed. However, the Criminal Procedure Code provides for the possibility of a temporary block of mail by an intervention (“fermo della corrispondenza”) of police officials, subject to communication to a judge and ratification within 24 hours
• Wiretapping (“intercettazioni”): to listen or to read a communication by phone or email, or with specific stealth applications
• Possible only for serious crimes and with serious evidence of a crime, with the previous authorization of a judge. The public prosecutor must ensure that all nonnecessary elements or sensitive data are struck out of the record of the wiretapping. The judge orders the acquisition of (only) the relevant communication and the elimination of the non relevant communication, which cannot be used (and must remain secret). The parties (and especially the defendant) may have a copy of the tapes/records. All communication that are non-necessary for the criminal procedure/trial must be destroyed

Question 3

Constitutional Rights: Civil Rights– freedom of movement

Answer 3

• Freedom of circulating and settling down in any part of the territory of the Republic, to go abroad and to come back
• Individual right (guaranteed also by Art. 45 of the EU Charter of Fundamental Rights)
• Art. 16 states that this right is recognized only to
  citizens
• Recognized to EU citizens (extended to non-EU
  citizens legally on the national territory

Question 4

Constitutional Rights: Civil Rights– freedom of movement; relative statutory limit

Answer 4

• Relative statutory limit: general restrictions may be enforced by statutory law for health (e.g.:
  quarantine) or public safety (e.g.: no entry for dangerous situations) reasons
• Extended by the Constitutional Court’s to other general constitutional interests (i.e.: protection of
  the environment/cultural heritage; common use of an infrastructure for transportation; etc.)
• Any form of restriction for political reasons is absolutely forbidden (historical context)
• “Legge Reale” (law n. 152/1975: counter-terrorism): the use of instruments to prevent personal identification by the police is forbidden in public and open-to-public places, save for “just causes”
• “T.U.L.P.S.” (R.D. n. 773/1931: laws on public security): the use of masks is forbidden, save for the times when it is allowed by public authorities (e.g.: carnival festivities)
• Criminal code (art. 699): it is forbidden to move outside of one’s home while carrying a weapon
  without a firearms license
• The “Anti-Covid-19 Legislation” (since law-decree n. 6/2020) allowed the President of the Council of
  Ministers, with his own decrees (d.p.c.m.: decrees of the PdCM), to:
  1. Limit freedom of movement on the territory of the Republic
  2. Limit freedom of movement to and from the
  territory of the Republic
  3. Impose active quarantines at home or in hospitals
  4. Limit or suspend public transportation in those
  areas where there are people infected by COVID-19

Question 5

Constitutional Rights: Civil Rights– freedom of assembly

Answer 5

• Freedom to assemble peacefully and without arms
• “Assembly”: voluntary gathering (can be
  spontaneous, but not “random”), for a common
  purpose (but without any stable relationship), static or moving (processions), for a certain (limited)
  period of time, in any private, open to the public
  (“aperto al pubblico”), or public place
• “Weapons”: any instrument that could be used to
  hurt someone or damage something
• Recognized to citizens (guaranteed also by the Art. 12 of the EU Charter of Fundamental Rights)
• Extended to every person by the constitutional
  jurisprudence
• Individual right that must be exercised collectively(more than one person needed to have an “assembly”)
• No statutory or jurisdictional limit

Question 6

Constitutional Rights: Civil Rights– freedom of assembly; private, public and if it degenerates

Answer 6

• For assemblies in private or open to the public spaces: no prior notification
• For the assemblies in public spaces a prior notification (“preavviso”; 3 days) by the organizers
  to public authorities is required (this is NOT an authorization). The public authority may adopt
  limitations or bans (proportionality), but only for justified reasons of public security
• The assembly can still take place (it is not illegal), but the organizaers are responsible
• If the assembly degenerates, and the violent or armed people cannot be isolated by the police, the assembly is forcibly dissolved by the police after a prior warning
• Different kinds of “participants” in the assembly
  (they exercise the same right in different ways)
  1. Organizers
  2. Speakers
  3. Simple “participants”

Question 7

Constitutional Rights: Civil Rights– freedom of assembly; possible limitations

Answer 7

• “Legge Reale” (law n. 152/1975: counter-terrorism): the use of instruments to prevent personal identification by the police is always forbidden in public meetings (no “just cause” defence)
• “T.U.L.P.S.” (R.D. n. 733/1931: laws on public
  security): the use of masks is forbidden, save for the times when its is allowed by public authorities (e.g.: carnival festivities)
• “Decreto Sicurezza bis” (Law-Decree n. 53/2019:
  security measures): during a demonstration in a
  public place, or in a place open to the public, it is
  unlawful to launch, or to use, rockets, flares, fireworks, firecrackers, smoke, or gas containing
  stinging active principles, in such a way as to create an actual danger for the safety of people or the
  integrity of property, or to use any other object
  (such as sticks, clubs, etc.) in such a way to create
  an actual danger for the safety and security of
  people and objects
• “Anti-Covid-19 Legislation” (since Law-Decree n.
  6/2020) allowed the President of the Council of
  Ministers, with his own decrees (d.p.c.m.), to
  suspend
  1. Meetings
  2. Events (also cultural, recreational, sport and
  religious)
  3. Assemblies in public, open to public and private
  places in those areas where there are people infected by COVID-19