New criminal measures

Security Decree, roadblocks not punished if inconvenience is reduced

The Supreme Court's report on the new penal measures. At risk of unconstitutionality the cover for 007s at terrorist summits

27 June 2025

3' min read

From roadblocks to restrictive measures for mothers and pregnant women, from aggravating circumstances to protect the police to undercover actions of secret agents. The Supreme Court of Cassation has now intervened on the security decree, with a 130-page report by the Office of the Supreme Court, which is anything but merely compilative on the numerous novelties of substantive and procedural criminal law introduced since 12 April, the date on which the provisions came into force and which were then fully confirmed during conversion.

Partly admittedly in a plush manner, ascribing the critical issues to the analysis of doctrine rather than to the opinion of the Superior Council of the Judiciary or to the very first requests to raise a question of constitutional legitimacy, but partly also intervening by assuming the authorship of the doubts, the Court reviews the contents of one of the most controversial measures of this part of the legislature.

Roadblocks

Beginning with an absolute novelty, just a few days ago again at the centre of controversy on the occasion of the metalworkers' strike, such as the absolute ban, sanctioned on a penal level and no longer only on an administrative level, of proceeding with road or rail blockades as an expression of dissent, protest or form of union struggle.

The Supreme Court then observes first of all that the conduct must be suitable for preventing circulation on ordinary roads or railways. One must ask oneself," continues the report of the court of first instance, "whether, in order to realise the described case, a disturbance of the circulation such as to block it for an appreciable length of time must be necessary, or may also be sufficient conduct capable of merely making the passage of motor vehicles or trains more difficult.

It could be the case of a protest demonstration that slows down traffic considerably, without impeding the passage of vehicles, creating significant slowdowns or traffic jams; or, a single person standing in the middle of a road, forcing road users to slow down or even stop and thus manoeuvre to overcome the obstacle.

In any case, also in order to comply with the principle of offensiveness, it should be irrelevant from a criminal law point of view that the conduct of a person who 'impedes free movement' by means of minor disturbances, such as that of standing in front of a car holding a banner for a few seconds, or that of creating with one's body an obstacle to road traffic, which can nevertheless be easily overcome or circumvented by a non-dangerous manoeuvre.

Agents at the Top of Terrorist Organisations

Doubts of possible unconstitutionality then for the assumption of executive positions in terrorist organisations by agents of the services to avert attacks or criminal actions. A very different hypothesis, the Court recalls, from the tried and tested simple infiltration, so much so that the coverage given by the security decree was considered 'disproportionate, if not downright dysfunctional'.

Pregnant women and mothers

With regard to the rule that opens the doors of prison institutes also to mothers of children up to one year of age and to pregnant women in case of social dangerousness and risk of reiteration of the crime, the knot to be unravelled is that of possible retroactive application (the very first measure on the matter, by the surveillance magistrate of Bologna, excluded this).

Resistance to a public official

At risk of unconstitutionality for violation of the principle of equal treatment is the provision of an aggravating circumstance for crimes of violence, threats, resistance to public officials. An aggravating circumstance for the protection only of officers or agents of the judicial police or public security, and not instead of all public officials and public service employees. Perplexities on the level of constitutional tightness that also affect the punishability (for the first time, considering the previous criminal irrelevance of conduct of simple inaction), within prisons, of conduct of passive resistance as a challenge to orders received.