Criminalizing joggers and walks: the Emilia-Romagna ordinance under the jurist's lens

By Wu Ming

WM :] Ordinances are an epidemic that grows out of an epidemic. We wrote it in the Viral Diary weeks ago, and it has never been more true than in the past 48 hours. Regions and municipalities have regurgitated dozens, perhaps hundreds of ordinances aimed at frightening those who still go out to do a motor activity or, simply, to take a breath of air, also in compliance with the rules so far in force and without gathering with anyone.

Below we host an analysis of the order of the Emilia-Romagna region, written by Luca Casarotti , jurist, member of the Nicoletta Bourbaki working group and coordinator of the Legal Team of the Wu Ming Foundation. Analysis that will be useful to all: it is highly probable that in the next few hours the umpteenth decree of the prime minister will accept those requests.

The incredible demonization of jogging, the more moralistic than health implications of this general outburst, was discussed at the bottom of Wolf Bukowski’s last post . It almost seems that the country’s problem is not the disastrous overload of the health system, no, the problem is … jogging. Those who jog are irresponsible, “do not do their part”, “are provocateurs”, for the simple fact of showing themselves out of the house “debases the effort” (only “war” is missing) of those who accepted the invitation to stay at home with as much zeal as possible and shoot the anthem of Mameli from the windows .

From there to blame the overload of health care directly on jogging could seem like a very long step, but with declarations such as that of the President of Emilia-Romagna Stefano Bonaccini, half has already been done:

“If anyone comes to explain to me that giving up jogging if you’re not safe is a dramatic problem, I’ll take it with me and take it to see the hospital wards.”

This is a clear example of bullshit , in the precise meaning proposed by the American philosopher Harry J. Frankfurt : a statement that is not true or false but only irrelevant and senseless.

As pointed out in the linked discussion, we are faced with a variant of the well-known imperative: “Eat even if you don’t like it, because in Africa children die of hunger!”, The best-known example of a para-logical connection with an outcome unnecessarily guilty, from which, plausibly, only eating disorders have arisen.

It should be obvious, and instead it must be pointed out: those who jog or walk at a safe distance have no responsibility for the aggravation of the situation in hospitals. Instead, that responsibility has the same political class of which Bonaccini is the perfect representative. Political class that today blames those who walk, but for thirty years has implemented neoliberal “reforms” and cuts of wards and beds. On corporatization, outsourcing, private entry, regionalization in a neoliberal key, the consensus was transversal, bipartisan. All governments are responsible for it. But if you point it out, if you indicate causes and responsibilities, when it is all right, you hear yourself say that “this is not the time!”, That “we will talk about it later!”. It is hard to understand that, in the perennial emergency, a real “after” never exists.

In any case, we are sure of one thing: stopping running or walking would not bring any improvement in the situation in hospitals, because the two are unrelated .

The other half step towards the accusation of runners to fill hospitals is done directly by the police or carabinieri who stop you, as evidenced by the anecdote of Wu Ming 2 that we report at the bottom of this post.

If the public authorities think that their measures are not working, look for the culprit in the mirror. Because the point is this: they are botched and at the same time authoritarian, inconsistent and at the same time classist, discriminatory measures. These are measures designed by incompetents – see the nice idea of ​​pouring tons of chickenpox on the streets – taken on the basis of the media and to have many likes on social media.

Instead, they blame those who jog, the “smart ones of self-certification” etc. It is very easy and convenient to point at scapegoats, to strike down , to blame us for their responsibilities, historical and recent.

We will see how far they will go, and even if they manage to stop: they are prisoners of the same terror that they are sowing.

In the meantime, it is important to provide interpretation and self-defense tools to both the over fifty thousand people already reported, and to anyone who does not agree to wall themselves alive. (Getting away is one thing, building oneself alive quite another.) The testimony from the center of Bologna linked by Luca in his post shows that in these days Giap’s reading helps not to drop the trousers in front of anyone with a uniform.

It is a service that we will continue to provide, at least as long as we are online. But now let’s pass the word on to Luca. Enjoy the reading. [ WM ]

by Luca Casarotti

This post is an addendum to the article The emergency by decree , published last March 13 on the Jacobin Italia website . Just like the dpcm of 8, 9 and 11 March that I analyzed in that article, the decree of the president of the Emilia Romagna region issued on Wednesday 18 March has an essentially rhetorical purpose, and contains vague formulations, even in contradiction with the premises themselves act.

Let’s see the short device step by step. Art. 1, paragraph I: “In order to avoid gatherings of people, public parks and gardens are closed to the public.” Reading this sentence one realizes how involuntarily (and rather macabre) ironic it is: public parks closed to the public. So in practice, no longer public, at least in the possibility of using it. Net of how revealing certain lapsus calami are (it would have been enough to write “public parks and gardens are closed”), this is one of the few places where the ordinance actually has something that has not already been arranged elsewhere, namely in the notorious dpcm that we have learned about since the beginning of the emergency.

The provision does nothing but generalize the initiatives already taken by some Emilian mayors to the whole regional territory: Wolf Bukowski spoke about it in detail . Note that the rule is not addressed to the community, as would have happened if, we assume, we had instead chosen to introduce a ban on frequenting parks and public gardens. The authority is the recipient of the regulation: “parks and gardens are closed”, in fact, it means that the public authority must implement the closure and monitor its maintenance. The choice is probably conscious. I mean this: whoever wrote the provision knew very well that they found collaboration and support in local administrations.

We continue. This is the rest of the art. 1:

“The use of the bicycle and walking are allowed only for the reasons allowed for the movement of individuals (work, health reasons or other needs such as food purchases). In the event that the motivation is motor activity (walking for health reasons) or going out with the pet for its physiological needs, you are obliged to stay close to your home. »

Although the formulation tries to be hyper-detailed, with the result – as it almost always happens in these cases – of appearing incredibly convoluted, nothing is said here that has not already been established in art. 1, paragraph 1, lett. a), of the Prime Ministerial Decree of 8 March: “Avoid any movement of natural persons […] except for journeys motivated by proven work needs or situations of necessity or movements for health reasons.”

Indeed, in hindsight, the minute hypotheses and practical examples of Bonaccini’s order end up creating even more confusion. Why make the specific case of traveling by bicycle and on foot, if it is reiterated that these “are allowed only for the reasons allowed for the movement of individuals”? The Dpcm was already enough, which applies to every “movement of individuals”: on foot, by bicycle, on a scooter, on a tricycle and with all other means of locomotion. So what good is this exemplification?

The answer is that this exemplification, casekeeper, points precisely to the behaviors – cycling, jogging, walking with the dog – on which the stigma of social-journalistic reprobation, and of political reference has been pinned. Bonaccini has chosen to mention them all expressly in his ordinance, and to translate the social stigma into the norm of the system, even if the norm does nothing but reiterate what has already been established in the Dpcm of 8 March: this is the rhetorical purpose I was talking about at the beginning. Rhetorical purpose which, however, has the effect of a tightening in controls: I will get there in a moment.

Another question: what does it mean that «in the case in which the motivation is the motor activity (walk for health reasons) or the exit with the companion animal for its physiological needs, one is obliged to remain in the proximity of the own home »? What is meant by “proximity”? There are those who have heard “100 meters”, as in the impressive anecdote told in this comment , who “300 meters”, as this article from ZIC says . Given that no legal norm defines the concept of “proximity” (so much so that, as can still be read in the article of ZIC, some mayors are already thinking of establishing fixed distances), the term must be understood in its common meaning. To understand this, this is the lemma «proximity» in the Treccani dictionary:

«[From lat. proximĭtas -atis, der. of proxĭmus «next»]. – Great proximity (in space and, less com., In time): the climate of the country is mild for the p. of the sea; a comfortable home for the p. of the station (or for its p. to the station); the p. the deadline gives me much anxiety; the p. an anniversary, a holiday etc. “

A meaning, if not completely vague, at least variable according to the context. It is the use of terms with such imprecise denotation that opens the space to discretion. And also to the improper recourse to criminal law, as evidenced by the complaints for violation of art. 650 code pen. who began to hail from the beginning of the emergency, and who – according to Repubblica – reached an incredible fifty-three thousand in eight days.

In this regard it is important to reiterate one thing. Also art. 1 of Bonaccini’s ordinance, despite using the expression “you are obliged to stay close to your home”, does not introduce a prohibition whose violation complements the crime referred to in art. 650 of the penal code. This is because, like the Dpcm of 8, 9 and 11 March, the ordinance is also formulated in general and abstract terms, not individual and concrete. That is to say, it is not addressed to one or more specific people (such as me or the three members of the Wu Ming collective), and it was not issued in concrete circumstances. Instead, it generally addresses all the inhabitants of the region, and hypothesizes in advance some situations that could actually occur. That could actually occur , notthat have already occurred .

Article. 650 of the Criminal Code, let us repeat it once again, punishes the transgression to the provisions legally given by the authority: and in order to be such, it must jointly have the characteristics of individuality and concreteness. Characteristics that Bonaccini’s ordinance, general and abstract, does not have. On the use of criminal law in this emergency I return shortly for a final consideration.

First, let’s finish looking at the text of the ordinance. Art. 2:
“In order to further combat the forms of gathering of people to protect public health on the regional territory, the opening of food and drink administration establishments, […] placed in the service and refueling areas: a) it is allowed along the motorway network […] and along the network of main suburban roads […] b) it is allowed only for the time slot that goes from six to 18 from Monday to Sunday, for shops located along the roads secondary suburban […] c) it is not allowed in the service and refueling areas located in the classified road sections that pass through inhabited centers. »

We neglect the formal defects, such as the useless clarification that the time slot referred to in letter b) “runs […] from Monday to Sunday”: to establish that the time slot would be worth 7 days out of 7 it was sufficient to simply write “from 6 to 18 hours », without adding anything else; or at most «every day from 6 to 18». Why did Bonaccini impose a ban on opening bars and similar in service stations in inhabited centers?

In the preamble to the decree, the measure is motivated as follows:
“the rationale for the waiver for food and drink administration services located in the service and refueling areas located along the road network for such exercises by the Prime Minister’s Decree of 11 March [resides ] in the possibility of offering refreshment to those who for work reasons face long-distance journeys. »
And this derogation, continues the preamble, is not considered “justifiable for the administration of food and drinks placed in the service and refueling areas located inside the inhabited centers which, conversely, lend themselves to be places of aggregation and potential contagion. , likewise those for which closure with the aforementioned Prime Minister has already been ordered. »

It seems to me that the measure adopted is not logically consequential to the motivation given to it. In the preamble of the Bonaccini decree it is said that the reason why the DPCM of 11 March kept the bars of the service stations open is to offer a refreshment for those who face long business trips: yet, as a result of the Bonaccini decree itself , who for work crosses Emilia Romagna must also take charge of finding a bar open outside the inhabited centers, perhaps taking roads that have nothing to do with his itinerary. All this, to be noted, is based on a “lend themselves”: that is the way in which the normative language says “it is not known if this is really the case, but in doubt it is better to order”. The precautionary principle is right, nobody doubts it:

Here too, the decree aims above all to give an impression: what the president of the region does not look at, but takes initiatives, tackles the bad habits of the citizens head-on, gives a crackdown.

Article. 3 of the decree is a final provision, which establishes the duration of the measures from 19 March to 3 April.

Finally, I return to the role of criminal law in the emergency. These days, those who tune in to Sky TG24 would from time to time appear in superimposed a writing that reads, I go to memory: “violations are crimes and criminal records”. It is a perfect example of how the emergency uses criminal law. That writing wants to convince us that there is a sort of immediate transition between the dispute of a violation and having a precedent against it. In the oversimplified message that dominates the public discourse, and of which the Sky TG24 writing is the brutal synthesis, it seems that the criminal code necessarily follows the complaint: no right of defense, no right to trial. Violation = denunciation = sanction. On the merits of the complaints,

Let’s repeat it again, to avoid misunderstandings. The spread of the virus and the need to protect yourself and others are not in question. The point is this: we already have, and reasonably, fear for our health. Just as we fear, equally reasonably, the physical and psychological consequences of containment measures. This ubiquity of criminal law, in which it seems that we must incur every movement of ours, only serves to throw us even more into panic, but it does not help us in dealing with the contagion in a rational way.

Ultimately, it is a question of not accepting the idea that the governed should be kept in a state of minority, threatening them with all their behavior with a criminal sanction, in the belief that otherwise they will not obey. But it is also a question, if we wish, of reserving to criminal law the function that must be its own: that of extrema ratio, with which to punish only truly offensive behavior.

An elementary principle that, for two centuries, not the critics of the law, but all the jurists, at least in words, have agreed to affirm.

A testimony from Wu Ming 2

This morning, taken for a walk by my dog, I passed by a group of financiers who controlled an old man. While Scotty was shitting, I stopped to listen. They complained that he was not in the vicinity of his home: he had walked for a kilometer. The old man replied that if you take the car and go to 60 per hour where there is a limit of 50, you know you have committed an infringement. But if someone tells you to stay “near” your home, as it is written in Governor Bunazzén’s latest decree, how do you know where you start breaking the ban? Is it possible to fine someone who cannot know if he is violating the law?

The financiers attacked the pippone on the intensive care places that are likely to implode, because of people who do not respect the rules. The old man replied that he would gladly put it in writing, that if he is sick with the virus they don’t even have to cure it, so he doesn’t take the place of anyone. “I am 83 years old,” he insisted. – And I didn’t even hope to get there, at this age. If the extra time I’m allowed to live like this, plugged in the house, alone, I might as well die.

The financiers let him go: – This time you walk, but from now on stay in the streets below your house. – The old man replied: – Yes, yes, – how do you give reason to a pain in the ass. He intertwined his hands behind his back and reversed the course of his walk.

The porch, however, was more crowded than usual. Certainly not a gathering, but more people than the last time I was there, about a week ago. Before then, the parks were open, and I took the dog to the gardens. Then they closed them, and I took the dog to a secret forest behind the industrial chemistry faculty. Then the porter of the faculty told me that it was not possible, and the next day they closed the gate and affixed a sign “Dogs are forbidden to enter”. Now the porch has become the place where most people in the neighborhood take a walk with their dog.

With the parks open, there was less crowded.

And finally … Molotov Quarantine!

In the days when any leaving home becomes an excursion, in several cases even risky, Alpinismo Molotov tells the anti-emergency survival of a minimal conflictual practice: walking .

«In this context, what in other situations would be normal walks become” other “, become real Molotov tours. Indeed, in this scenario of closed parks, controls and barriers, it is possible that they are the most Molotov cocktails that we have ever done. After all, “[…] mountaineering is ‘Molotov’ to the extent that it brings out new contradictions and new conceptual, cognitive narrative tools to face them. We go to the mountains to return with “new weapons” to show off in our daily lives. We go to the mountains aware that we always proceed in the balance “. (see the Molotov Mountaineering manifesto).
Never as at this time do we need to “bring out new contradictions” and equip ourselves with “new tools, conceptual – narrative – cognitive”.
Hence the idea of ​​telling our excursions – it doesn’t matter if you were kilometers long or a few hundred meters for shopping – in an attempt to frame what surrounds us from oblique perspectives and return ex post, at least in the story, the collective dimension of that oratory step that is denied us today. “