(Sept. 6, 2019) On July 24, 2019, the Italian Constitutional Court declared unconstitutional article 21-bis, paragraph 2(a) of Decree-Law No. 113 of October 4, 2018 (D.L. No. 113), thereby invalidating the expansion of urban DASPOs to protect public decorum and safety on the grounds that such expansion violates the constitutional right to health. (Decision No. 195 of July 24, 2019 (the Decision) (in Italian). A DASPO (Divieto di Accedere alle manifestazioni sportive) was originally a ban on access to sporting events to prevent violence at stadiums, but under recently enacted “Urban DASPOs” (Daspo Urbano), the use of DASPOs was later expanded to temporarily exclude from certain local areas individuals engaging in behaviors considered a possible threat to public order, safety, morality, or decency. The Court’s decision also nullified article 28, paragraph 1 of D.L. No. 113 concerning the local prefect’s “substitutory powers” in cases of mafia-infiltrated local autonomies.
1. Unconstitutionality of Expansion of Urban DASPO
The Constitutional Court performed its review of article 21-bis, paragraph 2(a) in light of, among others, articles 3; 32; and 117, third paragraph of the Italian Constitution (English translation), which guarantee the right to social dignity, freedom, and equality before the law; health as a fundamental human right and as a collective interest; and the legislative power of the regions in matters not expressly reserved to national legislation.
Reasoning of the Court
The Court declared the unconstitutionality of two phrases of article 21-bis, paragraph 2(a) of D.L. No. 113 that eliminated the need for the respective prefect and the most representative local organizations to consult the State-city Conference and the unified State-regions Conference and the local autonomies before approving measures that would provide a more effective prevention of illegal acts that are dangerous to public safety within and in the immediate vicinity of public establishments.
According to the Court, the provision was unconstitutional because it broadened excessively the list of places with respect to which the urban DASPO could be imposed.
The Court agreed with the argument that DASPO measures are aimed at protecting public order, but noted that the constitutional right to health would be violated if a person in need of medical care was banned by a DASPO order from urban areas where health facilities exist. (Considerations of law § 1, paras. 1, 2.)
2. Unconstitutionality of Powers to Dissolve Provincial and City Councils in Cases of Mafia Infiltration (Substitutory Powers)
The Constitutional Court performed its review of article 28, paragraph 1 in light of, among others, Constitution articles 5; 97, second paragraph; 114; 118, second paragraph; and 120, second paragraph, which regulate the autonomy and decentralisation of local autonomies; efficiency and impartiality of public offices; composition of the republic by municipalities, provinces, metropolitan cities, regions, and the state; competences of municipalities, provinces and metropolitan cities; and grounds for intervention by the national government in the regions, metropolitan cities, provinces, and municipalities.
Reasoning of the Court
The Court observed that article 28, paragraph 1 had inserted a new paragraph (7-bis) in article 143 of Legislative Decree No. 267 of August 18, 2000, Consolidated Text of Laws on the Organization of Local Entities (L.D. No. 267), authorizing local prefects to adopt measures to restablish order if city and provincial councils were found to have been infiltrated or compromised by organized crime, including the suspension or dissolution of such councils (called “substitutory power”). Under L.D. No. 267, in case of dissolution, the president of the Republic appoints a local administrator to administer the councils. (Considerations of law § 8, para. 2; § 9, para. 4.)
Under L.D. No. 267, the extraordinary measure of dissolution may be adopted only in the presence of “illicit and reiterated serious conduct” that is necessarily supported by objective findings of Mafia infiltration. Later Constitutional Court decisions have clarified that the required standard is evidence that is “concrete, unambiguous, and relevant.” (§ 10, para. 5.)
The Court found the legislative language (“illicit and reiterated serious conduct”) to be vague and poorly defined and contrary to the constitutional requirement that the prefect’s power be exercised according to the principles of subsidiarity and loyal collaboration, while respecting the autonomy of local entities. (§ 13, paras. 8 & 12; § 15, para. 1.) The Court added that the challenged provision compromised the constitutional guarantee of the autonomy of local territorial entities. (§ 1, para. 5; § 15, para. 6.)