Coronavirus: what you risk leaving home. The offenses you can incur and some "life saving" suggestions

(To Avv. Marco Valerio Verni)
13/03/20

As is known, the emergency linked to the spread of Covid-19, better known in the public opinion as Coronavirus, is these days.

Started from China, for reasons still to be clarified, which do not concern the topic of this article, it spread gradually in different parts of the world (on 30 January 2020, the World Health Organization declared, in this regard, the state of public health emergency of international relevance, and on 11 March 2020 that of pandemic), Including Italy.

Which, through the Conte government, is trying to deal with the situation through some measures, one after the other quickly, on the one hand, perhaps, for an initial underestimation of the problem, on the other, of course, for the continuous evolution the epidemiological situation, and the particularly widespread nature of the virus, with the consequent increase in cases also on the national territory.

In the face of the aforementioned (measures), the aspect that certainly had the greatest impact on the population is that concerning the prohibition or limitation of movements, by car, on foot, or by any other means, as well as the increasingly stringent suspension of different activities.

So much confusion and the sense of bewilderment of the population, dictated by a series of factors: (yes, you can learn it), the official communication, the flaws of which have already been evident since what happened since the evening of March 7, for example, when, on the eve of the issue of the first real "restrictive" measure, several trains were stormed by a multitude of people intent on abandoning the areas that, shortly thereafter, would become "red" (unfortunately ignoring the fact that, in doing so, they put the health of other parts of the population at risk).

In secundis, from several rather rough press articles in reporting the planned measures and, above all, in analyzing the risks deriving from their possible violation.

So, also in light of the first data provided by the Interior Ministry1 on the "control services carried out by the police force throughout the country to verify compliance with the measures adopted to limit the spread of the COVID-19 virus", According to which, on the day of 11 March alone, 2.162 people and 113 business owners were reported, we try to take stock of the situation: in particular, on criminal risks which, evidently, could result from an incorrect interpretation of the numerous rules issued in such a short time.

The regulatory framework

Although it is a work that for many could be boring, it is necessary, first of all, to summarize the decrees that, within a few weeks, decided, in a certainly drastic but necessary way (at least in the writer's opinion), the forced reorganization of the life of all.

At national level, therefore, the measures issued are as follows:

1) the resolution of the Council of Ministers of 31 January 2020, with which it was declared, for six months, the state of emergency on the national territory relating to the health risk associated with the onset of diseases deriving from transmissible viral agents;

2) the decree of the President of the Council of Ministers of 23 February 2020, containing "Implementing provisions of the decree-law of 23 February 2020, no. 6, containing urgent measures relating to

containment and management of the epidemiological emergency from COVID-19 ", published in the Official Gazette no. 45 of 23 February 2020;

3) the decree of the President of the Council of Ministers 25 February 2020, containing "Further implementing provisions of the decree-law 23 February 2020, n. 6, containing urgent measures in

matter of containment and management of the epidemiological emergency from COVID-19 ", published in the Official Journal no. 47 of 25 February 2020;

4) the decree of the President of the Council of Ministers 1 March 2020, containing "Further implementing provisions of the decree-law 23 February 2020, n. 6, containing urgent measures relating to

containment and management of the epidemiological emergency from COVID-19 ", published in the Official Gazette no. 52 of 1 March 2020;

5) the decree of the President of the Council of Ministers 4 March 2020, containing "Further implementing provisions of the decree-law 23 February 2020, n. 6, containing urgent measures relating to

containment and management of the epidemiological emergency from COVID-19, applicable on the whole national territory ", published in the Official Gazette no. 55 of 4 March 2020;

6) the presidential decree of the Council of Ministers of 8 March 2020, and published in the Official Journal, on the same date, containing "Further implementing provisions of the decree-law 23 February 2020, n. 6, containing urgent measures regarding containment and management of the epidemiological emergency from COVID-19 ";

7) the Prime Minister's decree, issued on March 9, 2020, and published in the Official Journal, also on the same date, containing "Further implementing provisions of the decree-law of February 23, 2020, No. 6, containing urgent measures on the containment and management of the epidemiological emergency from COVID-19, applicable on the entire national territory ", also published on the same date in the Official Gazette, to which the restrictions laid down by the decree of 8 March 2020 have been laid, as specified Article 1 of the same: “In order to counter and contain the spread of the COVID-19 virus, the measures referred to in art. 1 of the Prime Minister's decree of 8 March 2020 are extended to the entire national territory ";

8) lastly, the presidential decree of the Council of Ministers, issued on 11 March 2020, and published in the Official Journal on the same date, bearing, "Further implementing provisions of the decree-law 23 February 2020, n. 6, containing urgent measures on the containment and management of the epidemiological emergency from COVID-19, applicable on the whole national territory ".

Of course, new interventions are not excluded, but what will be analyzed shortly will probably remain valid regardless.

Movement limitation.

It is the Prime Ministerial Decree of March 8, 2020 that introduced the first standards, then extended to the whole national territory, from the Prime Minister's Day of the next day, valid until April 3, 2020, and further modified by that of March 11, 2020 (also valid until 3 April 2020), aimed at prohibiting any movement of natural persons into and out of all the territories of the Peninsula (including islands), as well as within them: an absolute prohibition for those forced to quarantine or infected with the virus , provide exceptions for those who need to move due to proven working needs, situations of necessity o health reasons.

In addition to the substantial suspension or limitation (through specific measures) of all activities that can lead to a gathering of people, such as to encourage the spread of the virus in question.

However, in the face of these decidedly invasive interventions, what has aroused a great deal of surprise and criticism, is the use of the self-certification tool, to demonstrate, by those who should be stopped outside the home, that they can do so as "discriminated against" from one of the cases mentioned above.

Why all this? Basically, there is the fact that a self-declaration, meanwhile, would presuppose the exact knowledge of the normative data within which we move and for which it is required.

Although in our legal system, as in others, there is the principle according to which ignorance of the law is not a justification, it would be utopian to think that everyone can be well informed about the rules and, above all, about their correct interpretation.

Secondly, clearing the field of any fake moralism and hypocrisy, a self-declaration would presuppose honesty on the part of those who carry it out, but reality has often accustomed us to the contrary.

Imagine, then, if, to enter the game, then take over components such as the feeling of being forced to stay at home, maybe not seeing a friend, relative, boyfriend, or not being able to do what, up to a few hours ago, it was usually done. This is at risk not only of the person who leaves the house without a valid reason, but also of those who come into contact with it, reciprocally increasing the risk of contagion, since, perhaps, one can also be infected without knowing it.

With the consequent desire to look for a ploy interpretative, or, more simply, to "risk it", rather than satisfy what one's own drive, at that moment, impels irrepressibly to do.

The forms prepared by the Ministry of the Interior, downloadable from the network, but also several others, through which to self-declare their own movement and the relative "discriminating" justification, report an explicit reference to the violations required by law, in the event of in the case of "false declarations to a public official" (art. 76 Presidential Decree 445/2000 and art. 495 of the Italian Criminal Code), to which, in this case, two further offenses could be added, namely that of "Non-compliance with the Authority's provisions" ( 650) and the one concerning "culpable crimes against public health" (Article 452 of the Italian Criminal Code), which pursues all the appropriate conduct to produce a danger for the community.
Well, let's examine, specifically, what is at risk.

False statements to public officials

In the concrete case, they concern those statements that, made orally or reported in the paper model that should be delivered to the police operator at a possible roadblock, are, in fact, false, or untruthful.

This crime is envisaged both by art. 76 of Presidential Decree no. 445/2000, which refers to crimes of forgery, also committed against public officials, and their punishment under the penal code and special laws, and by art. 495 of the Criminal Code (which, moreover, express reference is made both in the model downloadable from the website of the Ministry of the Interior, and in most of those found online), according to which: "Anyone who falsely declares or certifies to the public official, in an public, identity or status or other qualities of one's own person or that of another person is punished with imprisonment for up to three years.

Those who commit the fact in a declaration intended to be reproduced in a public act are subject to the same penalty. The imprisonment is not less than one year: 1) if it concerns declarations in civil status documents; 2) if the false declaration on one's identity, state or personal qualities is made by a defendant to the judicial authority, or if due to the false declaration, a criminal decision is entered in the criminal record under a false name.

The penalty is lessened if the person who declared the forgery intended to obtain, for himself or for others, the issue of certificates or administrative authorizations under a false name, or with other false indications ".

Now, the limits of the recourse to the institution of self-declaration have already been said. On a technical level, the maximum penalty, if you read the rule well, is certainly such as to act as a deterrent, although with an alternative rite and, perhaps, the application of a mitigating circumstance, it could easily be brought back within the limit set for the suspension conditional sentence.
A discourse which, even more so, is worth the minimum penalty, which could be very small.

Among the deterrent aspects is the possibility of arresting the false declarant, if caught in flagranza (even if the Prime Minister's Decree provides for the possibility of carrying out checks even after the declarations made), and / or to apply personal precautionary measures. Certainly, in practice, it is legitimate to ask, if a foreigner is arrested, or, especially at stations and airports, he is asked to fill in the self-declaration form, how can this be immediately remedied, given that, if ignorance of the law does not excuse, the non-comprehensibility of the acts by non-Italian speaking people is certainly a serious problem.

Just as if, in fact, the arrest of those caught in the act of crime will be ordered. A measure perhaps necessary, in the specific case, given the seriousness of the situation.
A further criminal offense, concurrent or alternative to the one mentioned above, could be seen in that contained in art. 483 of the Italian Criminal Code, according to which: Anyone who falsely certifies to the public official, in a public deed, facts of which the deed is intended to prove the truth, is punished with imprisonment up to two years. If it is a question of false attestations in civil status records, the imprisonment cannot be less than three months. A slight offense, for which neither arrest, nor detention, nor personal precautionary measures are envisaged.

Also for it, very light penalties, obviously, especially if imposed following alternative rites and / or applications of mitigating circumstances.

Non-compliance with the Authority's provisions

Article 4 of the Prime Ministerial Decree of 8 March states, in paragraph II that:

"Unless the fact constitutes a more serious offense, failure to comply with the obligations set out in this decree is punished pursuant to article 650 of the penal code, as provided for by art. 3, paragraph 4, of the decree-law of 23 February 2020, n. 6 ".

Well, in the case of the Coronavirus emergency, this offense could occur when one or more provisions of the regulatory system referred to in the introduction were violated. For example, if you should be surprised outside the home without a valid reason, among those provided in the causes of exclusion of the travel ban.

This offense, contemplated by art. 650 of the Criminal Code, provides that:

"Anyone who does not comply with a provision legally given by the Authority for reasons of justice or public safety, or of public order or hygiene, is punished, if the fact does not constitute a more serious crime, with an arrest of up to three months or with a fine of up to two hundred and six euros".

It is a criminal offense. The punishment is very small and certainly could be evaluated, in a hypothetical balance of risks from the more prudent ones.

This offense, in fact, provides for the arrest of up to three months (therefore, in the minimum, it could even be only 5 days) or the fine of up to 206 euros: the criminal proceeding that would result could easily result in a criminal conviction decree ("Reduced" to a mere pecuniary penalty) or, at the request of the accused, (also following his opposition to the provision mentioned above, that is the criminal conviction decree) with an oblation request (which consists in paying of a sum of money equal, in this case, to half of the maximum foreseen) and consequent extinction of the crime.

For it, among other things, the same considerations apply as for the crime referred to in the previous paragraph: in the worst case scenario, that is, by means of an alternative rite, the penalty could very well be contained in very negligible quantities.

The fact that the control can also be carried out subsequently raises doubts: given the atavistic problems that afflict the public administrations, it is reasonable to doubt that these investigations will actually be carried out, in the future, however, to be defined.

With the obvious corollary that, further on, these checks should take place, more, in the meantime, the time necessary to prescribe any crime committed would have started to run.

This provision is of course also applicable to asset managers for whom particular measures have been ordered, which in fact are not followed,

Among the most serious conceivable crimes, to which the regulation in question refers, that of the "Resistance to a public official", Foreseen by theart. 337 of the Criminal Code (where, for example, the person on duty, to escape a check, resists the police), or, precisely, that referred to in art. 452 of the Criminal Code which will be discussed further on.

For the first of them, the article of which reads

Anyone who uses violence or threats to oppose a public official or a person in charge of a public service, while performing an act of office or service, or to those who, upon request, assist him, is punished with imprisonment from six months to five years

the penalty envisaged is, at most, rather high and, in the (probable) case of flagrancy, arrest is permitted, as well as, regardless of the application of personal precautionary measures.

Culpable crimes against public health

If, to remain in the concrete case of the Coronavirus, the subject caught outside the home is found infected, or perhaps there was an obligation to stay at home for the so-called quarantine, the offense that could also be contested is that referred to in art. 452 of the Italian Criminal Code, which punishes a series of behaviors, committed with guilt (i.e. with inexperience, recklessness or negligence), capable of attacking public health, for which the possibility of proceeding to arrest in the act, the arrest of a suspect is foreseen of crime and the application of personal precautionary measures, Among them, the explicit reference to the cause of an epidemic, given the explicit reference to art. 438 of the same penal code:

"Anyone who is guilty of committing any of the facts provided for in the articles 438 e 439 is punished:

1) with imprisonment from three to twelve years, in the cases for which the said provisions establish the death penalty;

2) with the reclusione from one to five years, in the cases for which they establish thelife sentence;

3) with imprisonment from six months to three years, in case the article 439 establishes the penalty of imprisonment.

When any of the facts provided for in the articles are committed through fault 440, 441, 442, 443, 444 e 445 the penalties respectively established there reduced from one third to one sixth".

Now, while in this article, as mentioned, the offender's action is foreseen by way of guilt, as already specified, whose punishment, however, does not require the creation of a concrete danger is preferably used for public health, being sufficient that the damage to the latter can result in conduct that has in itself the "simple" aptitude to produce it, the provision of art. 438 of the Criminal Code, however, concerns the case in which someone voluntarily, cause an epidemic. Hypothesis that we hope to be residual, but which also deserves a mention, also for being brought to the attention of someone with malicious intent. The rule referred to states that

"Anyone who causes aepidemic through the diffusion of pathogenic germs is punished with thelife sentence".

It is the most serious offense, for which there is an obligation to stop in the act and the application of personal precautionary measures, with the provision of thelife sentence what only penalty.

Some "life-saving" suggestions

Naturally, the hypotheses in which thequarantine obligation or if you are infected, for which there is an obligation to stay at home, for all other cases, the advice is, first of all, of don't leave home: in the event that it should be done, "reenter" one of the reasons listed above, bringing with it all the possible documentation attesting to the justifying cause.

If you were to stop (even on foot), while you are going to work, it would be a good idea to have a copy of the employment contract with you, or any other document that can demonstrate the truthfulness of the declaration.
If you are going to carry out outdoor sports activities (which is not prohibited), bring with you a copy of the decree of 8 March 2020, where this possibility is expressly provided, provided that certain precautions are followed (if alone, nulla quaestio ; if in company, for example, keep a distance of at least one meter from each other). This is because it is not certain that whoever had to carry out the check would have in turn read, line by line, the substantial production of legislation on the subject, which took place in such a short time.
With the foresight, of course, to be and be credible: claiming to have to go climbing on a mountain tens of kilometers away from your home, it would certainly not make sense and would certainly be inappropriate.
Ditto if you had to go to the pharmacy or bring subsistence to a sick relative.
In this period it is necessary to balance interests, arming oneself with so much common sense.
Therefore, subterfuges or tricks of any kind are not allowed, designed to circumvent the rules that, perhaps belated, and probably to be further integrated, were nevertheless enacted to try to get out of a really big emergency.

One last note: to avoid misunderstandings, given the confusion on this point as well, it is good to bring one or more copies of the self-declaration form with you, in case, for example, you had to submit it several times, during the course of the same day (imagine the example of one who goes out to go to work in the morning, and is stopped for a check, and, returning home in the evening, suffers the same fate again.

Remembering that what matters is what is stated in it.

Monitoring entities

Precisely with regard to the persons in charge of the control, the Prime Ministerial Decree of 8 March 2020 identifies them in the territorially competent Prefects, to whom it assigns the specific task of ensuring compliance with the limits and rules provided therein, which may make use of police forces, firefighters and armed forces (while, as regards the monitoring of the trend of home isolations, as well as the mapping and spread of the virus, the decree identifies the health workers). Well, here too it is reasonable to assume that, given the difficulty in which, even in an ordinary situation, these subjects are called to operate, control can hardly be widespread or, at least, of adequate effectiveness. Especially then, when, in addition, there is the widespread revolt of many Italian prisons, which will certainly divert a lot of energy to these already stressed state forces.

In short, you pay the price, at all levels, of a policy that, for some time now, has mistreated the most beautiful country in the world: can only touch, once again, the Italian people, who in difficulties has always recompacted, showing or rediscovering great talents, resist and revive the fate of their nation.