Security decree, prosecutors request referral to the Council

The first legal objections to the security decree law are beginning to arrive from the public prosecutors' offices. While a few days ago, during a hearing in Parliament, both magistrates (Anm) and lawyers (Criminal Chambers) underlined all the criticalities of the new rules that have been in force for a few days, since 12 April, the Public Prosecutor's Office of Foggia asks to raise a question of constitutional legitimacy for reasons of both method and merit. More general the former, specific the latter.

The case concerns defendants charged with resisting a public official and personal injury against two police officers on duty at the railway police station. The prosecutor contested the two new aggravating circumstances: in relation to the injuries, the common aggravating circumstance for having 'committed the act inside or in the immediate vicinity of railway stations and subways or inside convoys used to transport passengers'; in relation to the resistance to a public official, the newly introduced special circumstance, provided for the case in which 'the violence or threat is carried out to oppose a judicial or public security police officer or agent while he is performing an official act'.

The latter aggravating circumstance ends up producing a disparity of treatment: distinguishing the conduct of a person who, using violence or threats, opposes an act of the office of an officer/agent of the judicial police or public security from that of a person who engages in the same conduct against other public officials, 'although this notion, according to the definition given in Article 357 of the Criminal Code, is very broad, including all those who exercise any other legislative, judicial or administrative public function'. Similarly for the common aggravating circumstance, which unifies a large number of very heterogeneous offences under the same category.

In general terms, the memorandum points out the absence of the requirements of necessity and urgency of recourse to the decree-law, moreover in criminal matters, when the same legislative text had been under discussion in Parliament for more than a year, presented to Parliament asa simple government initiative bill, that is, without any reason of necessity and urgency.

"Such a choice,' warns the memorandum, 'not only betrays the real purpose of resorting to the instrument of the urgency decree, which is drawn upon for the sole purpose of speeding up, if not actually nullifying, the legislative procedure ordinarily provided for by Articles 72 et seq. of the Constitution, but appears even more pernicious if one only considers that, even where the two legislative texts present differences, these appear to be justified by real choices of opportunity rather than by a particular contingent factual situation.