|Statewatch article: RefNo# 28946
|Statewatch Bulletin; vol 19 no 1 January-March 2009
|In Italy, from the 1970s onwards, the method of governance has consisted of a succession of emergencies. The quintessential emergency, the one represented by the fight against “terrorism”, was born in response to the struggles that began with the so-called Autunno Caldo [the Hot Autumn of 1969, a season of many student and labour mobilisations]. From 1975 (and the passing of the Reale Law, no. 152/1975), laws on public order, detention in police custody, the interrogation of suspects, telephone and “social scene” interceptions or special imprisonment regimes have been presented as indispensable to defend the “public democratic order” from “political violence” and “terrorism”. In truth, the Reale Law was little more than a useful symbolic watershed - it was the moment of the overt emergence of what would become “special legislation”. However, in the previous year with Law Decree no. 99 of 11 April 1974, preventive imprisonment had been extended to up to eight years. In October 1974 Law no. 497 re-introduced interrogation by the judicial police with the sole safeguard of the presence of a defence lawyer, thwarting the effects of Law no. 932 of 5 December 1969, which had stripped the police of the right to interrogate people who had been arrested or held in custody.
The Reale Law
The Reale Law expanded the circumstances in which the use of firearms by law enforcement agency officers was deemed lawful. In instances in which abuse was obvious and undeniable a favourable trial regime was introduced for officers that, in practice, guaranteed them impunity: investigations would not be carried out by the competent judge, but rather, by the Court of Appeal’s general prosecutor who would decide whether to proceed in person or to entrust the trial to the state prosecution service. This ran contrary to several articles in the Constitution, particularly Article 3 (on equality and equal dignity for citizens before the law), Article 25 (which states that nobody may be removed from the jurisdiction of the natural judge as determined by law) and Article 28 (on the responsibility of civil servants and state employees acting in violation of an individual’s rights).
From 1975 to date, there have been 665 victims of the law enforcement agencies (276 deaths and 389 injuries) and of these cases as many as 218 involved individuals who were not committing, nor were about to commit, a crime. A typical context for these (that applies in 162 cases) occurs at a roadblock or following an order to stop. In 75 cases police forces resorted to the justification of a “shot that was fired accidentally”. But the Reale Law did not only deal with shootings: Article 4 enabled on-the-spot individual searches in the absence of a magistrate’s authorisation, which is at odds with Article 13 of the Constitution. Moreover, Article 4 expanded the definition of an “offensive weapon” permitting an arrest for being caught in the act of carrying “any other instrument [that is] not expressly considered a pointed or cutting weapon, but [that] can clearly be used, as a result of the contextual time and place, to harm a person”.
Article 5 forbade participation in demonstrations while wearing a “protective helmet” or “with one’s face fully or partly covered through the use of any means [that is] suitable to make recognising the person difficult”. This offence is punished with imprisonment of between one and six months and a fine under criminal law. Later, Law no. 533 of 1977 increased sentences (to a minimum of six months), introduced discretionary arrest for those caught in the act [in flagrante delicto] and even went so far as to extend the prohibition on covering one’s face beyond the context of demonstrations. It turned “concealing one’s face” (travisamento, in Italian) into a “crime of suspicion” that can be incurred by anyone who, on any public occasion, is “difficult to recognise”. Finally, Article 18 re-established the historic fascist practice of “confinement” (a form of internal exile) for political reasons.
Rights of defence and detainees
In 1977, Law no. 534 would also be approved, modifying the penal procedure code by launching a serious attack on defence rights. In fact, Article 6 drastically reduced the grounds on which proceedings could be annulled due to violations of detainees’ defence rights through the formula of “irremediable invalidity”. There was even a possibility that a trial would commence without the defendant and defence counsel having even been informed of the countless acts to instruct the trial that have been carried out without them intervening. Law 534/1977 introduced another important modification to the code of penal procedure, by inserting Article 48 bis which provided that charges that are connected to each other (for example, participation in an armed group, weapons possession and murder) may each be ruled upon in a separate trial.
On 6 February 1980 parliament approved Law no. 15 (known as the “Cossiga law”) that represents a further shift by introducing temporary [provisional] detention in police custody, extending search powers without a mandate from the competent judge, further increasing the length of preventative imprisonment, and introducing the criminal offence of subversive association. The Cossiga law also introduced sentencing discounts for “terrorists” who choose to co-operate; this was the first special law on “repentance” that entered the Italian legal order.
Emergency laws were added to the prison reform law (Law 354 of 26 July 1975) that came into force in April 1976, and was modified by Law no. 1 of 12 January 1977. In the same period, the controversy over supposed “easy prison releases” and probation judges began, and it continues to this day. On 20 July 1977, the Chamber of Deputies (the lower house of parliament) approved Law no. 450, which provides that permits authorising prison leave due to specific temporary circumstances (eg. a funeral) would only be granted in “exceptional cases” or for “family events of particular seriousness”.
In 1992, following the Mafia massacres in Capaci and via D’Amelia, Palermo [which resulted in the deaths of judge Giovanni Falcone, his wife Francesca Morvillo, and three members of his escort, and of Paolo Borsellino and five members of his escort] the code of penal procedure was modified by Law no. 356 of 7 August 1992 (a conversion of the so-called Martelli decree), through which the powers of the judicial police were increased and it was established that preliminary inquiries could be extended for a maximum period of two years. During the early 1990s the so-called “war against drugs” was an integral aspect of the fight against crime that impacted on the freedom of citizens most directly. Law no. 162 of 26 June 1990, the so-called “Jervolino-Vassalli law”, was one of the most vexatious laws ever approved in Italy and its key feature was an ideological-moral statement: “The personal use of proscribed drugs is forbidden”. The Jervolino-Vassalli law placed drug dealing and possession on an even-footing and sentences were extremely high: between eight to 20 years’ imprisonment in the case of hard drugs and between two and six years for soft drugs.
In the first half of the 1990s, a succession of special laws sought to strike at football violence and at sports events in general. Article 6 of Law no. 401 (13 December 1989) introduced the pre-emptive instrument of the “diffida” [a sort of banning order or notice] that prohibits entry to “places where competitions take place”. The diffida is not issued by a judicial authority, but rather, by the questore (police chief in a given city) to people singled out by the police forces. The maximum duration of the “diffida” is 12 months. Law decree no. 717 of 22 December 1994, better known as the “Maroni decree” and converted into law no. 45 on 24 February 1995 strengthened the mechanism of “diffide” by preventing the recipient of the order from being in the vicinity of sports venues.
Another defining element of emergency legislation in the 1990s concerned migration flows. Law no. 40 of 6 March 1998, known as the “Turco-Napolitano law”, introduced harsh treatment for “illegal” migrants who are excluded from so-called “amnesties” and regularisations. They were forced to reside in “temporary detention centres”, the infamous CPTs (centri di permanenza temporanea), while waiting to be escorted to the border.
Reaction to 11 September 2001 and beyond
The new century started with Law no. 78 of 30 March 2000, dealing with the reorganisation of the carabinieri, the state forestry corps, the Guardia di Finanza (customs police) and the state police. The effects of the law become evident in the repression of April 2001 in Naples and especially during the tragic days of July in Genoa during the G8 Summit.
The attacks in the USA on 11 September 2001 gave rise to a series of legislative measures on the fight against terrorism. The first package of measures was passed a few weeks afterwards, but a qualitative shift in these special laws occurred after the attacks in London in July 2005. On 1 August 2005, parliament approved Law no. 155, also known as the Pisanu decree, which established expulsion on national security grounds, enhanced controls on data transmission, telephone communications and Internet cafes and extended powers for law enforcement agencies when they held suspects in provisional custody. The new wave of terrorist emergencies made sentences harsher for migrants as well. Law no. 189 of 2002, better known after the names of its two proponents, Bossi-Fini, made the previous Turco-Napolitano law even harsher. It contained two new features: the criminal offence of “illegal” immigration that automatically caused “irregular” migrants to enter the criminal justice system, and making CPTs operate to the maximum of their capabilities.
On 28 February 2006, Law no. 49 on drugs, known as the Fini-Giovanardi law, came into force. Article 1 of the “stralcio” [a provisional order approving measures deemed urgent from a wider ranging draft law], introduced into the law decree on the winter Olympics in Turin, reads: “Anyone who, without authorisation, grows, produces, extracts illegal drugs...is punished with detention for between six and 20 years and a fine of between 26,000 and 260,000 Euros”. Thus, the distinctions between soft and hard drugs, and drug use and dealing, disappeared. Whoever is caught in possession of a quantity for personal use may incur administrative sanctions such as the suspension of their driving license, their license to carry weapons, their passport or their residence permit for tourist purposes.
Sentences for “ultras” [organised football supporter groups] were further increased. In 2003 the first Pisanu decree, no. 28 of 24 February, introduced the notion of arrest in “deferred flagrancy”, which allows the police to arrest a supporter up to 36 hours after the offence they are accused of occurred as if they were caught in the act. A second Pisanu decree, no. 162 of 17 August 2005, introduced turnstiles and match tickets bearing the user’s name. After the incidents in Catania that resulted in the death of police officer Filippo Raciti, Law 41/2007 was passed (at the proposal of ministers Amato-Melandri), imposing bans on fans travelling to away games and increasing the punishment for those who throw missiles. The Amato decree on security adopted on 1 November 2007 extended the possibilities of expelling non-Italian nationals.
On the wave of emotion caused by the events that followed the Gabriele Sandri murder, (another victim of the Reale law), when a Lazio football fan was killed on 11 November 2007 by a police officer near a motorway café/restaurant, interior minister Giuliano Amato made Law 41/2007 even harsher.
New government takes authoritarian direction
During its first nine months, the Italian government has displayed an authoritarian character. The norms in the field of security, provided for by law 125/2008 (that converts decree no. 92/2008 into law), undoubtedly represent a further step in the criminalisation of migrants. Hence, there is the insertion of the criminal offence of “illegal” immigration into the legal order, alongside the proposal to increase the maximum time for administrative detention in CPTs to a year and a half. The norms contain a provision for a new “common aggravating circumstance” inserted in the text of Article 61 of the penal code, applicable to cases in which the offence is committed by a foreigner who, at the time of the events in question, is “illegally” in the national territory. By virtue of this aggravating circumstance an increase of one-third of the sentence will be imposed for the author of the crime.
Moreover, there has also been a modification of the norm detailed in Article 656 of the code of penal procedure (the Simeone law) in which people who had a custodial sentence amounting to less than three years passed against them could request the concession of alternative measures to detention in prison before they began serving their sentence. The recent reform means that the application of this sentence, which benefits individuals who have been found guilty, will no longer be allowed in relation to sentences regarding crimes such as robbery, burglary and aggravated theft as well as “crimes involving the aggravating circumstance detailed in art. 61, first point, number 11 bis” [see above] of the penal code. This means that foreigners who have already been sentenced to prison, and to whom the aggravating circumstance of “clandestinity” [illegal/ irregular status] has been applied, will no longer be able to ask for alternative measures while they are still free but only after the start of their imprisonment.
Defining the lack of a residence or entry permits as a criminal offence, aside from being a legal aberration and inhumane, means creating the conditions for irreversibly clogging up courtrooms and overcrowding prisons beyond limit.
New powers to localities and military
The government has decided that faced with the impasse of the democratic system caused by the rubbish crisis, the arrogance of the Camorra and the absurdity of a local political class that is unable to heed environmental knowledge with regards to the treatment of the cycle of waste disposal, the solution is for a plenipotentiary to decide everything on his own. This has resulted in the army being deployed to protect waste pits and incinerators which have been declared areas of strategic military interest entailing the measure of immediate arrest for anyone who opposes the devastation of the territory.
In short, the army has been deployed, the territory militarised and sentencing is harsher; these developments are all envisaged in the terrifying security package. Furthermore, interior minister Maroni is due to send a directive to prefetti [government envoys in charge of security in a given area] that establishes a general prohibition of demonstrations in the vicinity of places of worship and even in front of supermarkets and shopping centres, monuments and sites of public interest. They are solutions that will inevitably fail, and at an extremely high cost for everyone - the long-term reduction of freedom and rights. Faced by this scenario one cannot be silent. Urgent work is needed to make the absurdity of this drift evident, for mobilisation and social opposition to the government under Berlusconi to overturn this paradigm of intolerance, racism and the criminalisation of social movements.
Italo di Sabato, in charge of the Osservatorio sulla repressione (Observatory on repression) of the PRC/SE (Partito della Rifondazione Comunista/Sinistra Europea): http://www.osservatoriorepressione.org
Translation by Statewatch
1. Statewatch, vol. 10 no. 1, January-February 2000, “Italy: Deaths and deportations spotlight detention centres”.
2. Statewatch, vol. 10 no. 2, March-May 2000, “Italy: carabinieri’s new status sparks controversy”.
3. Statewatch, vol. 18 no. 4, October-December 2009, “Italy: Making sense of the G8 trials and aftermath”.
4. Statewatch news online August 2005, “Italy: Tough new anti-terrorist laws adopted”, available at: http://www.statewatch.org/news/2005/aug/italy-new-terror-laws.pdf.
5. Statewatch, vol. 12 no. 5, “Italy: Immigration law amended”.
6. Statewatch news online, February 2004, Briefing: “Italy: New drugs law heralds the mass criminalisation of drug users”, [about the entire draft law] available at: http://www.statewatch.org/news/2004/feb/italy-new-drugs-law.pdf; Statewatch, vol. 16 no. 1, January-February 2006, “Italy: Flood of legislation as term comes to an end – The harshest drug laws in Europe and the toughest internet regulations” [details on the adopted extract].
7. Statewatch, vol. 18 no. 1, “Italy: Restricting freedom of movement for EU nationals”.
8. Statewatch, vol. 18 no. 2, April-June 2008, “Italy: Institutionalising discrimination”.
9. Statewatch news online, March 2009, “Italy: Interior ministry directive on demonstrations in urban centres”, available at: http://www.statewatch.org/news/2009/mar/01italy-demos.htm
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