The State of Exception and its Effects on Civil Liberties in Italy During the COVID-19 Crisis

The ongoing global pandemic represents an unprecedented challenge for contemporary political systems. The novel coronavirus SARS-CoV-2 was identified as the source of a series of atypical respiratory diseases in the Hubei Province of Wuhan, China, in December 2019 (hence the term COVID-19). On 30 January 2020, following the recommendations of the Emergency Committee, the WHO Director-General declared COVID-19 a Public Health Emergency of International Concern (PHEIC) and exhorted the international community to find ways to significantly accelerate intervention and containment measures. The declaration of COVID-19 as a global pandemic was not late in coming. On 11 March 2020, Dr. Tedros Adhanom Ghebreyesus, the WHO Director-General declared COVID-19 a pandemic: “This is not just a public health crisis, it is a crisis that will touch every sector; so every sector and every individual must be involved in the fights” (WHO 2020; see also Cucinotta and Vanelli 2020). Governments invoked states of emergency, or states of exception (SoE) (Agamben 2005), with an observable expansion of their power, which – at least from the perspective of the Western world – deeply shook the basic structural principles of democratic societies, and first and foremost the principle of separation of powers. Hence, the scholarship has critically observed the oscillation between states of normality (hereinafter the term normality is understood in its etymological meaning of “conform to a norm or standard”1) and SoE, and the consequent delicate operation of rights’ weighing (life and health vis-à-vis other fundamental rights and liberties, such as freedom of movement, privacy, and education). The way SoE affected or jeopardized the foundations of democracy has been increasingly evident in several delicate moments for Western democracies. One example of this is in the aftermaths of the two world wars, when democratic regimes were transformed by the gradual expansion of executive powers and the subsequent SoE. Another example comes from international human rights law, where the approach is known as a State of Derogation, and implies that, in emergency situations, a state is allowed to suspend and restrict certain treaty rights.2 In case of a public emergency that threatens the societal security of a nation, international human rights treaties allow the states to suspend the protection of certain fundamental rights. Agamben (2005) lists the cases of the International Covenant on Civil and Political Rights (ICCPR; entered into force in 1976), Art. 4; the European Convention on Human Rights (ECHR; entered into force in 1950), Art. 15; the American Convention on Human Rights (ACHR; entered into force in 1978), Art. 27. The SoE ignited as a response to the global pandemic seems to stem from this latter case. In an article of early 2020, Agamben raised his criticism on the SoE established in Italy, claiming that the (then) epidemic was conjured up by the Italian authorities and exacerbated by national media (Agamben 2020). For the Italian philosopher Agamben, there was an instrumentalization of the virus as a form of mass panic and as a pretext to extend emergency executive powers (Agamben 2020). Agamben’s provocative statement stimulates a debate on the definition of SoE, its legitimacy, and its impact on the limitation of rights and liberties of a democratic state. Research for this chapter focuses on the impacts of the pandemic containment measures and the consequent considerable restrictions to constitutional rights and civil liberties (Cercel et al. 2020). Little research has been conducted to assess whether these containment measures qualify as SoE, as well as on the risks of continuous oscillations between SoE and states of normality. Our contribution addresses this gap by answering the following overarching research questions: What are the constituent elements and principles governing SoE? And, how have they been impacting the system of civil liberties in Italy? By tackling these questions, we also address how the SoE and its containment measures have been impacting the system of civil liberties in Italy, and what the constituent elements (content) and effects of containment measures have been in Italy. We address the issue of parliamentary control over the measures adopted in times of emergency (oscillations between SoE and states of normality), and finally, we reflect on how democracies can respond to the current global health crisis effectively, while protecting the democratic values of rule of law, human rights, and civil liberties. To answer our research questions, we develop a conceptual definition of SoE, looking into its foundations (justification), limits (temporal, objectives), and scrutinizing the domestic attempts to regulate, limit, mitigate, and control the oscillations between SoE and states of normality. We test our application on the case of Italy, looking into the containment measures adopted throughout the three pandemic waves, and examining our results through the lens of both SoE regulation and implementation. Our method involves a critical analysis of legislation, administrative acts, and case law, together with a literature review from both the public policy area and the legal domain. Following this Introduction, in Section 6.2, we define the essential elements of SoE both in general and in the Italian context; in Section 6.3, we explore some of the features that characterize the declaration and implementation of SoE on a global level with a focus on the COVID-19 emergency; in Sections 6.4 and 6.5, we analyze, respectively, the regulation and implementation of SoE and containment measures in Italy during the COVID-19 pandemic; in Section 6.6, we highlight the effects of SoE and containment measures on civil liberties. Finally, in Section 6.7, we draw some conclusions regarding the main critical aspects of SoE in Italy and some implications relevant to both research and policymaking.