Illegal gatherings: note from the Italian Penal Chambers and response from the government

Posted on December 12, 2022 by Davide Mastrangelo in Right

The new government has issued the decree law n.162 of the 31 October 2022 governing for the first time, Moreover, even illegal gatherings. This provision, even if it arises from real needs, appears overly general and hastily adopted. Hence the reaction of the criminal chamber which was followed by an ad hoc amendment of the government.
Index

The decree law n.162/2022 and the note on date 20 November 2022 of the Italian criminal chambers
The government's response
Conclusions

1. The decree law n.162/2022 and the note on date 20 November 2022 of the Italian criminal chambers
The original text of the law decree n.162/2022, to the article 5, It inserts into the body of the criminal code, After the article 434, l’art. 434-Bis entitled "Invasion of land or buildings for large gatherings for public order or public safety or health or health", thus modifying the rules relating to the invasion of land or buildings, public or private, with the provision of imprisonment from 3 a 6 years and the fine from 1.000 a 10.000 euro, If the fact is committed by more than 50 people in order to organize a gathering from which a danger to public order or public safety or public health may derive.
For the mere fact of participating in the invasion the penalty has decreased. In the event of sentence or application of the sentence at the request of the parties, The confiscation of the things used to commit the crime is expected[1].
This new crime immediately aroused numerous controversies and there are three main main disputes that are exceeded:

The crime does not expressly speak of rave, With the consequence that the participants of a peaceful event could also be punished;
The crime of invasion of land or buildings already existed;
The penalty is disproportionate, with the aberrant result of sanctioning much more heavily those who organize a party than whom, for example, He makes himself the author of a personal injury.

In fact, the formulation of the rule does not specify the concrete cases in which the crime is committed. It is for this reason that some authors believe that the new crime is devoid of "taxation", in the sense that the extremes of the criminally relevant fact are not indicated in detail, that is, when a gathering becomes dangerous for public order, Greenings or public health.
The norm, Moreover, does not clarify if the organization of the gathering should foresee at least from the beginning 51 participants (The law speaks of "a number of people greater than 50") to constitute a crime or if this threshold can also be reached progressively and integrate the offense anyway.
Another censorship of the new decree concerns the existence of a crime completely similar to that just introduced, namely that invasion of land or buildings referred to in art. 633 c.p.
Effectively, This crime presents analogies to that of illegal rallies, both because it punishes the invasion of land or buildings, public or private, both because it provides more severe penalties when the fact is committed by several people (at least six).
But above all they could define themselves in profiles of constitutional illegitimacy for the new case. Indeed, Although "the extraordinary necessity and urgency of introducing provisions on the prevention and contrast of the phenomenon of the rallies from which a danger for public order or public safety or public health" is affirmed in the, In reality, this extraordinary need or urgency does not exist. Indeed, The phenomenon of illegal gatherings, despite being recurrent, does not take on such relevance as to require the adoption of a decree law, and therefore it stands in contrast with the art. 77, The paragraph, the Constitution.
Also the president of the Italian criminal chambers, Giandomenico Caiazza, With note of the 20 November 2022, has criticized the choice of the government to resort to urgent decrease to introduce the new rules on illegal gatherings at a strong risk of constitutional illegitimacy, also considered the heterogeneity of the content of the provision.[2]
What raises the greatest alarm, In the opinion of Caiazza, It is the drafting of the provision that seems to allow in many places the "exercise of an interpretative power of the almost unlimited and uncontrollable rule", practically a "white sheet that each judge will fill to his liking, according to their personal cultural sensitivity, legal and political ".
This is precisely the case of the Rave Party conduct, which would allow to punish any form of assembly with more than 50 people on private land or land open to the public without authorization from the owner or public authority.
The notion of "danger to public order", which should connote punishable conduct, would be completely unsuitable to define with certainty and prior knowledge, what is dangerous and what is not. Furthermore, the president of UCPI would be critical of the choice to include the new crime in the catalog of those for which the anti-mafia code allows prevention and, then, believes it would be “like using a cannon to swat flies”.
Should, then, be necessary in any case, continues Caiazza, that it was clear that the crime intended to be punished is the rave party and not any form of gathering.

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2. The government's response
But the Government's response was not long in coming and was presented on the date 30 November 2022 an amendment to the decree, which rewrites the text and also changes the article number of the Penal Code. The new provisions will not affect, indeed, the 434 to, my he 633 to c.p. It would change. So. the type of crime, and the most critical parts of the measure would be excluded from the law, which lent itself to multiple interpretations, and for this reason it had caused discussion not only among the opposition parties, but also those of the same majority.[3]
The amendment, presented to the Senate Justice Committee, limits the crime to “anyone who organizes and promotes the arbitrary invasion of other people's land or buildings, public and private, in order to create a musical gathering or for other entertainment purposes” when “a concrete danger arises from the invasion” for public health or safety due to non-compliance with drug regulations, safety and hygiene.[4]
The law is now more correctly transferred to Title XIII, Cape I, of the penal code among crimes against property through violence to things and people. Furthermore, the article becomes the number 633 to, while maintaining almost the same heading "Invasion, occupation of land or buildings for gatherings dangerous to public order or public safety or public health".[5]
The provision should now limit the crime to "anyone who organizes and promotes" what is defined as the "arbitrary invasion of other people's land or buildings, public and private", but for the sole purpose of creating "a musical gathering or having other entertainment purposes". The sanction would be applied if the invasion itself "arises a concrete danger" regarding public health or safety, due to non-compliance with drug regulations, safety and hygiene.
In essence the crime becomes, with the proposed amendment, a type of intentional crime of damage, specific and more serious, than that provided for by the aforementioned art. 633 c.p.
The new case, which would fall within the provisions of the aforementioned art. 633 on the “Invasion of land or buildings” of the Penal Code, becoming the 633 to, would thus specify the type of employment, referring to very specific situations, and would be linked to the violation of the rules governing the events. And above all it would exclude occupations carried out by students and those that take place within public demonstrations, which in the previous version could be sanctioned.
With the amendment, the hypothesis of greater rigor is limited only to the organizers and promoters of illegal gatherings. For them there is a penalty of imprisonment 3 to 6 years, and for this reason it would remain possible to activate telephone interceptions in the investigations on the present culprits. The amendment also provides for fines from 1.000 to 10 thousand euros. And the confiscation of things that "were used or were intended to commit the crime" is always foreseen, as well as the things that are the product or profit thereof".
In this way the new art. 633 bis refers to specific situations and is linked to the violation of the rules on safety and hygiene at events and those on narcotic substances.
Participants also continue to be punishable, but only based on the article 633 the Penal Code, which provides for imprisonment in prison 2 to 4 years and a fine come on 206 to 2.062 euro.
The hypothesis of greater rigor is therefore limited to the organizers and promoters of rave parties; the participants will be, instead, always punishable, but only based on the mentioned article 633 c.p., which concerns the invasion of land or buildings. The new text also reformulates the rule that already provided for mandatory confiscation, extending the provision also to the profits of rave parties, to act as a further deterrent and is “the confiscation of the things that were used or intended to commit the crime is always ordered, as well as the things that are the product or profit thereof”.
3. Conclusions
In conclusion, it is believed that the amendment in question rewrites the crime in order to correct the most macroscopic critical issues, but to remain unchanged, But, it is the security vocation that guided the government to draft the law: very severe penalties, seizures and interceptions.
If the original text had been inspired by the legislative offices of the Ministry of the Interior, the new formulation is the result of the work of the Ministry of Justice and is therefore directly issued by the Keeper of the Seals, who spoke of "self-criticism" and necessary corrections.
However, the profiles of constitutional illegitimacy also reported by the President of the Criminal Chamber do not disappear. The decree-law[6], indeed, it is a provisional regulatory act having the force of law, adopted in extraordinary cases of necessity and urgency by the Government pursuant to art.77 of the Constitutional Charter, and regulated pursuant to art. 15 the law 23 August 1988, n. 400.[7]
It is also true that the union on necessity and urgency[8] of the act is of a purely political nature; however it is consolidated[9] the tradition of a jurisdictional fallout (with consequent evaluation of the act, even just from a formal point of view)[10], so it happened that the Constitutional Court[11] declared a paragraph of a decree regarding local authorities unconstitutional due to lack of necessity and urgency requirements[12].
The political message, then, this is what crimes resulting from musical gatherings or events, although not very frequent events, are to be considered very serious, so much so as to justify a very strong reaction from the legal system and be sanctioned with rigorous penalties, certainly more severe than those envisaged for other crimes which occur on a daily basis and are more risky, which undermine individual and collective security, causing strong social alarm (manslaughter, beatings, negligent injuries, threats, stalking, kidnappings, theft and so on).
Therefore, hopefully, that despite the presentation of the amendment, when converting the decree, further necessary precautions can be taken to make the measure better defined than the one proposed e, anyway, we trust that the Judiciary can apply it with the usual necessary balance and in compliance with constitutional principles.

Note
[1] P. Gentilucci, Prevention and combating illegal gatherings: profiles of constitutional legitimacy, in Diritto.it of 7 November 2022.
[2] S. Occhipinti, The decree on rave parties and impeding crimes is illegitimate: the complaint from the Criminal Chambers, in Altalex of December 1st 2022.
[3] Editorial team, Rave Decree, Split government backtracks: what changes, in QuiFinanza del 30 November 2022.
[4] Editorial team, Anti-rave decree, the government presents an amendment that limits the crime, in Sole24 ore of 30 November 2022.
[5] G. Panassidi, Anti-rave decree, the amendment rewrites the type of crime, in Very common of 2 December 2022
[6]Decree, in Treccani Portale (XML), are Treccani.it. URL.
[7] S. Battaglia, Large dictionary of the Italian language, vol. IV DAH-DUU, p. 103.
[8] C. Dyers, Legislative urgency and the practice of decree-laws. Social Updates 48, no. 3, March 1997, pp. 223-231.
[9] G. Seventy, The legislative function and decree-laws. in Sweater & Strini, 1923.
[10] Online Consultation – Constitutional Court ruling. n° 171/2007, are giurcost.org.
S Judgment no 171 of 2007.
[12] R. Romboli, A "historic" ruling: the declaration of unconstitutionality of a law decree due to the evident lack of the conditions of necessity and urgency, in Foro It., 2007, 1986 ss.

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Illegal gatherings: note from the Italian Penal Chambers and response from the government

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