Home » The criminal populism of the new government – Alessandro Calvi

The criminal populism of the new government – Alessandro Calvi

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The criminal populism of the new government – Alessandro Calvi

Giorgia Meloni and Carlo Nordio in parliament. Rome, October 14, 2022.

(Guglielmo Mangiapane, Reuters / Contrasto)

The rule wanted by the government of the right to counter the phenomenon of rave parties is very bad. And it is to the point that, as soon as the government announced it, its own majority admitted that we will have to get back to parliament.

In the version approved in the Council of Ministers, that law introduced a new crime, which consists in the invasion of land or buildings for gatherings that are dangerous for public order, public safety or public health. Anyone who organizes or promotes the invasion is punished with up to six years’ imprisonment. The problems posed by this norm are many, and of particular importance. Just think of the delicate issue of wiretapping, which is made possible by the fact that the maximum penalty for those who commit the crime is more than 5 years in prison. But the most serious question is certainly the vagueness with which the new crime was formulated. Or, as the constitutionalist Michele Ainis writes, the “violation of the principle of determination of criminal law, deriving from the slippery language used by the government”.

The law, in fact, as many jurists and constitutionalists have pointed out, does not allow to establish unambiguously whether, in the presence of a gathering of people, one is faced with the exercise of a right protected by the constitution, such as that of meeting , or if instead you are faced with a crime. This will be determined from time to time by the authority that manages public order: prefects, quaestors, policemen. They will be able to do so with a wide margin of discretion on how to enforce the ban, and whether or not to enforce it. In short, in deciding on the freedom of citizens, they will behave as judges, even if they do not have the authority. And so, as the jurist Giovanni Fiandaca wrote in the paper, this crime “re-exhibits the face of the old criminal law of the police, usable with a discretion bordering on arbitrariness”.

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Among the risks there is also that of this crime being used to suppress political disputes. “We will not deny anyone to express dissent”, said the prime minister Giorgia Meloni, however, using a particularly disturbing expression: the freedom of expression of thought is in fact protected by the constitution, and certainly does not need ministerial authorization. Even the Minister of Justice Carlo Nordio affirmed that the law “does not affect, nor could it affect in the least the sacrosanct rights of free expression of thought and free assembly”.

Many have wondered why Nordio accepted to be approached with a text of this nature

But verbal reassurances are of little use: it is the letter of the law that will be applied by the police authorities, not the reassuring words of the government. And the law remains what it is: “An absolute case of legislative illiteracy. It is a distressing text, because it does not correspond to anything that is required of a criminal law ”, explained Tullio Padovani, professor emeritus of criminal law at the Scuola Superiore Sant’Anna in Pisa.

All this is even more surprising if we consider that, immediately after his appointment to the ministry, the former magistrate Nordio had illustrated the government’s line on justice, indicating as a priority the efficiency of the system and therefore its speeding up, in line with the his professional history but also with the needs of the National Recovery and Resilience Plan (Pnrr). This should also have been achieved through a “strong decriminalization, therefore a reduction in crimes”.

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In the past, the current minister had also supported this need. He recently pointed this out to Il Foglio, picking up an old reflection by Nordio. Which is this: “Security must be guaranteed in a preventive manner and therefore through the control of the territory, the strengthening of the police and all those useful prevention activities, to be used as long as they remain secret, such as wiretapping. And the mistake, the misunderstanding of the right, is to think of guaranteeing security through the increase of penalties, the creation of new crimes ”. Instead, the first act of the government of which Nordio is a part is a decree that introduces a new crime, allows wiretapping, and puts in the hands of the police the decisions on the lawfulness of the exercise of a constitutionally protected right by citizens, which is the opposite of what the minister said.

Subsequently, the majority said they were aware at least of the fact that the standard has technical defects. And while the government still defended it, a discussion had already begun among the parties of the right on how to change it in parliament. But in the meantime many, among politicians and jurists, have recently wondered why a person like Nordio, with a reputation as a liberal and guarantor, has accepted to be compared to a text of this nature. Probably Nordio himself had to obey the reasons for the propaganda. And these, considering the difficulties in which the government is moving, demanded an immediate signal on the issues dear to their electorate, to reassure them.

It was decided to give this identity signal with a provision that has all the characteristics of the law-manifesto. In short, we are returning to the scene of criminal populism, that is, the demagogic use of the penal code to address the issues that emerge from society. And, indeed, we are faced with a particular declination of this idea: legislative populism which, as the philosopher of law Luigi Ferrajoli states in his book Rights and guarantees (Il Mulino, 2013), “is manifested above all in the security campaigns and in the demagogic production of manifesto laws that only serve to feed fear and through it popular consent”.

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In the specific case, among the many news cases that distress public opinion, “the one that most urges the imagination that once we would have defined right-thinking was chosen”, wrote the journalist Flavia Perina. Crowds of young people gathered, without control, without permits, who indulge in a Dionysian rite made of music, drugs and collective stupor are the perfect enemy for every electoral segment of FdI ”. This right, in short, “seeks confirmation of consent”, and “responds to its people more than to abstract principles”.

The fact that, in pursuit of the needs of propaganda, the right has ended up betraying even the promises of its own minister of justice is very worrying. On the one hand, the content of the public discussion that took place on the anti-rave decree did nothing but confirm that the right are capable of addressing social issues only as matters of public order. On the other hand, criminal populism, being nothing more than a form of political propaganda that uses the law, is accompanied by a raising of tones on issues concerning security, and is a prelude to an ever more marked closure of the spaces of freedom. And, as the former president of the constitutional court Giovanni Maria Flick observed, “if criminal law, rather than extrema ratio, is used to combat social and cultural diversity, by defining specific criminal cases, it ends up slipping on the crest of security democracy” .

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