LIBERTÀ E DIRITTI AI TEMPI DEL COVID: L'ESIGENZA DI TUTELA DELLA SALUTE COLLETTIVA

FREEDOM AND RIGHTS IN THE TIME OF COVID: THE NEED FOR THE PROTECTION OF COLLECTIVE HEALTH Prof. Carlo Bosna Università degli Studi G. Marconi - Roma With this work we intend to analyze the effects that the regulatory interventions, exceptional and urgent, adopted to deal with the epidemic from Covid-19, have had on personal freedom, movement, assembly, religious freedom, the right to defense, education, freedom of private economic initiative and the individual right to health, all rights and freedoms guaranteed constitutionally and recessive in the face of the dangers to public health caused by the pandemic. The objective is to verify, through an examination of the constitutional discipline, of the jurisprudence of the Constitutional Court and of the doctrine, if the emergency measures adopted to deal with the spread of the contagion are justified by the priority need to protect collective health or should be considered illegitimate, as they compress freedoms and constitutional rights. We therefore start from an analysis of the freedoms and limited rights due to the emergency situation, in order to contain the spread of the new highly contagious and transmissible Coronavirus, starting with the analysis of personal freedom and freedom of movement, contemplated respectively in att. 13 and 16 of the Constitution, focusing on their distinction and concluding that the restrictions imposed on individual freedoms by emergency measures to deal with the pandemic, with particular regard to the obligation of quarantine, found their constitutional legitimacy in art. 16 of the Constitution, which allows limitations on freedom of movement for health reasons, in the cases established by law or by acts equivalent to it, which is the decree-law, "in general", that is, with reference to the generality of citizens and not to a specific category of people in violation of the principle of equality pursuant to art. 3 of the Constitution, resolving the case of the red areas, established in the first emergency phase, as attributable to the protection of health pursuant to art. 32 of the Constitution and not as an illegitimate discrimination against a group of people. In support of this conclusion, it should be noted that, while art. 13 of the Constitution on personal freedom provides for an absolute reserve of law and a reserve of jurisdiction, art. 16 of the Constitution on freedom of movement provides for a legal reserve reinforced in terms of content, in the sense that a limiting law or an equivalent act can intervene only for reasons of health or safety and is to be understood, according to the dominant doctrine, as a relative reserve , for which the limitations on freedom pursuant to art. 16 may be established not only by law or by equivalent acts, but also by secondary implementing or supplementary sources, provided that the legislator has attributed the relative power to them and indicated which health and safety reasons justify the issuance of the secondary legislation and which are the limitations allowed. As part of the same chapter, we then moved on to the analysis of the right of assembly pursuant to art. 17 of the Constitution, and related limitations, from which it emerged that the measures taken to deal with the emergency concerned both meetings in a public place, eg. squares and streets, both those in places open to the public, such as cinemas and theaters, as well as, in the period of maximum contagion, in a private place, i.e. the home of everyone, but also gatherings, i.e. the coexistence in the same place without the sharing of a common purpose, which constitute a case not directly contemplated by the freedom of assembly, but indirectly attributable to it, since by limiting gatherings, citizens cannot meet, regardless of whether they have a common purpose, as in the case of a meeting in the strict sense , or do not have a common purpose, as in the case of the gathering that occurs, for example, with the formation of a queue waiting for the shift. In fact, the objective of the emergency measures was to prevent the transmission of the infection from person to person, avoiding the coexistence of several people in the same place, regardless of whether or not they had a common purpose, in accordance with the jurisprudence of the Constitutional Court, the which specifies that the freedom of assembly can be limited to avoid the sacrifice of other assets of constitutional significance. Even in this case it was concluded that the restrictions adopted, going beyond the provisions of art. 17 of the Constitution, which only establishes that the right to meet in a public place may be limited "for proven reasons of public safety or security", find their constitutional legitimacy in art. 16 of the Constitution, which limits the freedom of movement in the cases established by law in general, for reasons of health or safety, given that meeting in any place necessarily implies freedom of movement. The religious freedom referred to in art. 19 of the Constitution, the highest expression of which is the public exercise of worship, from which examination it emerged that the restrictions resulting from the emergency measures to freedom pursuant to art. 19, in the absence of express limitation clauses related to the protection of health, unlike art. 16, 17 and 41, c. 2 of the Constitution, since only the limit of morality is foreseen, are justified in sources above the Italian legal system, such as the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 and the International Covenant on Civil and Political Rights of 1966, which establish that the freedom to manifest one's religion can be subjected to the restrictions provided for by the law necessary for the protection of public health, as well as in constitutional jurisprudence, from which it emerges that recourse can be made to the instrument of balancing this freedom with the right to health, understood as an indispensable condition for the exercise of other rights, strictly correlated with human dignity and therefore with the personalist principle referred to in art. 2 of the Constitution, as well as in the interest of the community related to the principle of solidarity, also referred to in art. 2. Furthermore, it has been specified that the limitation of religious freedom can be linked to the limitation of freedom of movement pursuant to art. 16 of the Constitution, in the sense that not being able to circulate, one cannot profess a cult publicly, just as one cannot participate in a procession with consequent limitation of the freedom of assembly, although this interpretation has been denied by the provisions of the emergency measures, which provide specific limitations for religious events or ceremonies. In any case, the protection of health was the basis of both the measures adopted in the first phase of the pandemic, essentially aimed at prohibiting any type of meeting, civil and religious, and the free movement on the national territory for health and safety reasons pursuant to of articles 16 and 17 of the Constitution, and those relating to the second phase, in which the measures to contain the spread of infections were extended to the performance of religious rites, through protocols signed by the Government, the Catholic Church and religious confessions other than Catholic for the definition of the necessary measures for the purpose of carrying out religious services in safe conditions. A similar conclusion on the need for health protection as a justification for emergency measures was also reached in the second chapter concerning the limits placed on judicial, civil, criminal and administrative activities. The provision of civil hearings figured with the participation of the defenders only and carried out through simple document exchange, as well as remote civil and criminal hearings, determined a compromise of the right of defense and of the contradictory principle, of which this right is an extension, in how much in the civil hearings the judge's decision was based on the preliminary requests replicated by the lawyers, while in the online hearings the adversarial principle and the right of defense were sacrificed in balancing with the principle of reasonable length of the trial, in order to avoid the postponement. The emergency measures in the justice sector, as elsewhere, arose from the need to protect health, as even the measures affecting the time and manner of the process cannot be exempt from the reasonableness that requires balancing and coordination. balanced of the interests at stake, that is, such as not to excessively sacrifice any of them. Therefore, the adoption of organizational measures aimed at minimizing the forms of personal contact and participation in the carrying out of judicial activities, through figurative civil hearings and remotely civil and criminal hearings, arose from the need not to sacrifice the right to health in the emergency situation, guaranteeing in any case the performance of the judicial activity. We then focused on the emergency measures concerning administrative justice, which provided for the compulsory paper-based process, without oral discussion, on the basis of the documents filed in contrast with art. 24 of the Constitution, as people have the right to be defended in an administrative judgment also orally, as this method is prescribed by the ordinary procedural discipline, with the subsequent attempt to remedy it through a remote hearing, at the request of a party or , even in the absence of a request by a party, if in any case deemed necessary, in order to recover orality. However, despite the doubts of constitutional legitimacy raised with reference to the compulsory paperwork process, it has been specified that the administrative jurisprudence has declared the issues of constitutional legitimacy raised as manifestly unfounded, as this process is provided for by a highly urgent measure of a strictly temporary nature. and motivated by reasons of protection of the right to health which constitutes, pursuant to Article 32 of the Constitution, the fundamental right of the individual and the interest of the community, or the first of the inviolable rights of man that the Republic, pursuant to Article 2 of the Constitution, not only recognizes, but guarantees. Therefore, the emergency measures concerning the civil, criminal and administrative judicial activity were the result of a balance between various needs, or on the one hand that of continuity of jurisdiction, intertwined with the rights of defense, to cross-examination, to the reasonable duration of the trial., while on the other, the need to protect individual and collective health. The third chapter analyzed the right to education, a social right that was most affected by the limitations imposed by emergency measures, with the closure of schools of all levels and universities and the frequency of remote activities, in order to contain the infection. It emerged that the risk classification system broken down by regional territories based on the monitoring of epidemiological data and the resilience of health services with a consequent differentiated discipline in the suspension of teaching activities in the presence, in order not to underestimate the effects of the restrictions in terms of access to the Internet, school inclusion, as well as in terms of pupils' health understood as an "overall state of physical, mental and social well-being and not simply the absence of disease", arose from the need to reconcile the right to health with the right to education, where health is understood, in a broad sense, as the right of the individual and the interest of the community. In the same chapter, the issue of the limits imposed by the emergency measures on the freedom of economic initiative pursuant to art. 41 of the Constitution, coming to the conclusion that the suspension or limitation of activities attributable to private economic initiative have found coverage in the protection of assets and purposes that the same art. 41 of the Constitution, at c. 2, admits as possible causes of limitation of the freedom enshrined therein, since, by providing that the freedom of private economic initiative "cannot be carried out in contrast with social utility or in such a way as to damage security, freedom, human dignity », Refers to the right to health, given that by constant constitutional jurisprudence, health is considered an asset of social utility and that the limit of safety, as public safety, is connected to it. The fourth chapter focused on the right to health and on the question that underlies this work, namely whether the emergency measures adopted to deal with the pandemic and limitations of freedom and constitutional rights are justified by the need to protect health. It was concluded that the priority of the right to health derives from its fundamentality, both in the individual dimension and in the collective dimension, specifying that in the emergency situation, health understood as an individual right, that is, as a condition of well-being of the individual, is not relevant. , full realization of his personality, but health understood as an interest of the community, although the protection of collective health includes the protection of the individual. The priority need to protect collective health during the Covid-19 pandemic would find justification in the location, within art. 32, of the individual right to health before the collective interest, for which the first constitutes the rule, while the second is the exception and since the pandemic is an exceptional condition, the preceding, in derogation from the ordinary regime, of the interest of the community with respect to the individual right to health. Furthermore, it was specified that the choice to protect collective health, during the health emergency from Covid-19, has a constitutional basis, for some rights, in the same provision that provides for them, as is the case in Articles 16, 17 and 41, c. 2 of the Constitution, which indicate reasons of public health or safety as limits to the enjoyment of the right, as well as for those rights, the exercise of which is connected to the freedom of movement or assembly, as in the case of the freedom to exercise religious cults and the right to education, which in the presence of dangers to public health or safety, may be subject to limitations. Last but not least, the compromise of the freedoms and rights guaranteed by the Constitution in the face of the priority need for the protection of collective health during the pandemic, has a constitutional basis in the principle of solidarity. Freedoms and rights have been limited due to an exceptional and unforeseeable event, however the Constitution, with a skillful balancing act, in proclaiming the protection of rights, recognizes that each of them, in certain circumstances, can find a limit in the need for protect another, and then re-expand in all its fullness. Therefore, the protection of a primary asset such as health, "fundamental right of the individual and collective interest" pursuant to art. 32 of the Constitution, an indispensable condition for being able to adequately exercise all other rights, strengthens the constitutional role of guaranteeing fundamental freedoms, not making the sacrifice of those who fought for the conquest of a state of law in vain and precluding an evocation of the " state of exception ”, on the part of those who affirm a“ growing tendency to use the state of exception as a normal paradigm of government ”, which determines“ the suspension of normal liberal-democratic guarantees ” . Moreover, "the state of emergency is not a state of exception in a descriptive sense, because there is no discontinuity in the action of the government, which now, as before, makes social coordination possible and makes rights and freedoms compossible - something that, often, it means limiting certain rights and freedoms, or the rights and freedoms of some, so that certain other rights and freedoms, or the rights and freedoms of certain others, may be ensured, and are equally so for all. It is not in the normative sense, because the values that justify government coercion - if and when that coercion is justified - always apply, even in emergency conditions» . Emergency and exception are different situations. The emergency situation is conservative, it is used to return to normality with a re-expansion of the previously compressed rights and includes exclusively powers aimed at the predetermined purpose of returning to normality, which cannot be specified in advance, as emergency situations they are not predictable with accuracy, so the duration of the powers depends on the duration of the situation to be brought back to normal. Instead, the situation of exception is renewal, it is used to break the rule, with the consequent imposition of a new order, and includes indeterminate powers, free in ends and means and, therefore, full powers, with indefinite suspension. rights . In light of this distinction, the Covid-19 pandemic is to be considered an emergency situation, caused by a highly contagious virus, and not a state of exception, as it does not presuppose a situation of deregulation, but uses conservative powers aimed at return to normality with the re-expansion, strengthening their value, of rights and freedoms enshrined in the Constitution, the compression of which is justified by the need to protect collective health, which includes the protection of individual health, as each individual is part of the community. The emergency situation caused by the spread of Covid-19 draws attention to health in its individual and collective dimension, as well as to the individual's freedom of self-determination in managing their health and to the principle of solidarity. Art. 2 of the Constitution in providing that "The Republic recognizes and guarantees the inviolable rights of man both as an individual and in the social formations where his personality takes place and requires the fulfillment of the mandatory duties of political, economic and social solidarity" states both the personalist principle is the solidarity principle, affirming on the one hand the centrality of the individual and the need to make the rights of the person inviolable from any form of arbitrariness, on the other hand the ownership by man of mandatory duties of solidarity that they arise from his belonging to society. Art. 32 of the Constitution in providing that "The Republic protects health as a fundamental right of the individual and in the interest of the community" is an expression of both principles, the personalist, where it establishes the protection of health as the right of the individual and the solidarist, where it affirms health protection as an interest of the community. Therefore health is not only a right of the person, but it is also a general interest for which the community is responsible, with the consequent need to recover the community dimension of our society, based on the principle of solidarity, which translates into the fulfillment of duties mandatory political, economic and social solidarity, as per art. 2 of the Constitution. Solidarity "is not a possibility, nor a prospect to be cultivated over time, but a current necessity, constitutive of the democratic political form". If solidarity is lacking, the cement that holds the Republic together fails, because without the Republic of mandatory duties, the Republic of inviolable rights also fails. And the former President of the Constitutional Court, Marta Cartabia, speaks of solidarity, stating that "The implementation of the Constitution requires a joint commitment, with the active, loyal collaboration of all institutions, including Parliament, Government, Regions and Judges. This cooperation is also the key to addressing the emergency ". This does not mean "that the Constitution contemplates a special right for exceptional times, and this for a conscious choice, but it also offers the compass to navigate the high seas in times of crisis, starting precisely with loyal collaboration between the institutions, which is the institutional projection of solidarity between citizens”. The centrality of the solidarity dimension also emerges in the decision arising from the challenge of a municipal ordinance of compulsory quarantine: "for the first time since the post-war period, provisions that are strongly compressive of even fundamental rights of the person have been defined and applied [...] in the name of a value of even more primary and general constitutional rank, public health, that is the health of the generality of citizens, endangered by the permanence of individual behaviors, while fully recognized in the ordinary way by the Law, but potentially such as to spread the contagion [...] the severity of the individual damage cannot lead to derogate, limit, compress the primary need for caution advanced in the interest of the community, corresponding to a national interest of Italy today that cannot be overcome in any way". In the emergency context, Article 32 of the Constitution, in conjunction with Article 2 of the Constitution, is to be considered pre-eminent, hence the need, imposed by the pandemic, to safeguard human life through the protection of health in its collective and at the same time individual, conditioning the enjoyment of freedom and rights, since the prevalence of the right to health arises from the impossibility of an alternative choice and therefore from the impossibility of a balance, which does not involve an excessive sacrifice of the right to health, given the its fundamentality is believed to be able to conclude, giving an exhaustive answer to the basic question of this work, that, during the emergency situation from Covid-19, the compression of the freedoms and rights guaranteed by the Constitution in the face of the priority need to protect the collective health, can find a constitutional foundation in the principle of solidarity, on the basis of which the limitation is justified and, highlighting the need to protect collective health, which is a priority in exceptional conditions such as the pandemic, allowing for the derogation from the ordinary regime for the protection of the individual right to health and the restriction of constitutional rights. With solidarity you can fight the strength of the new Coronavirus, turning this surreal event into a distant memory.

LIBERTÀ E DIRITTI AI TEMPI DEL COVID: L’ESIGENZA DI TUTELA DELLA SALUTE COLLETTIVA Prof.Carlo Bosna Università degli Studi G.Marconi - Roma ABSTRACT Gli interventi normativi, eccezionali ed urgenti, adottati per fronteggiare l’epidemia da Covid-19, hanno avuto ricadute sui diritti e libertà garantiti costituzionalmente e recessivi di fronte ai pericoli per la salute pubblica cagionati dalla pandemia. Le restrizioni fondano la loro legittimità costituzionale nell’art. 16 Cost., che consente le limitazioni alla libertà di circolazione per motivi di sanità, con riferimento alla generalità dei cittadini e non ad una determinata categoria di persone in violazione del principio di uguaglianza di cui all’art. 3 Cost., risolvendosi il caso delle zone rosse, istituite nella prima fase emergenziale, come riconducibile alla tutela della salute di cui all’art. 32 Cost. Libertà e diritti sono stati limitati a causa di un evento eccezionale ed imprevedibile, tuttavia la Costituzione, con una sapiente opera di bilanciamento, riconosce che ciascuno di essi, in certe circostanze, può trovare un limite nella esigenza di tutelarne un altro, per poi riespandersi in tutta la sua pienezza. Pertanto la tutela della salute, ex art. 32 della Costituzione, condizione indispensabile per poter esercitare adeguatamente tutti gli altri diritti, rafforza il ruolo costituzionale di garanzia delle libertà fondamentali, precludendo un’evocazione dello “stato di eccezione”. Del resto «lo stato di emergenza non è uno stato di eccezione in senso descrittivo e non lo è in senso normativo, perché i valori che giustificano la coercizione del governo – se e quando quella coercizione è giustificata – valgono sempre, anche in condizioni di emergenza» . Dunque la salute non è solo un diritto della persona, ma è anche un interesse generale, con la conseguente esigenza di recuperare la dimensione comunitaria della nostra società, fondata sul principio solidaristico, che si traduce nell’adempimento di doveri inderogabili di solidarietà politica, economica e sociale, di cui all’art. 2 della Costituzione. La solidarietà «non è una possibilità, e neppure una prospettiva da coltivare nel tempo, ma una necessità attuale, costitutiva della forma politica democratica». Se manca la solidarietà, viene meno il cemento che tiene unita la Repubblica dei doveri inderogabili e anche la Repubblica dei diritti inviolabili . L’ex Presidente della Corte Costituzionale, Marta Cartabia, afferma che «L’attuazione della Costituzione richiede un impegno corale, con l’attiva, leale collaborazione di tutte le Istituzioni, compresi Parlamento, Governo, Regioni e Giudici. Questa cooperazione è anche la chiave per affrontare l’emergenza». Ciò non significa «che la Costituzione contempla un diritto speciale per i tempi eccezionali, e ciò per una scelta consapevole, ma offre la bussola anche per navigare per l’alto mare aperto nei tempi di crisi, a cominciare proprio dalla leale collaborazione fra le Istituzioni, che è la proiezione istituzionale della solidarietà tra i cittadini» .