1. The "containment" measures in the Prime Ministerial Decrees of March 8,9 and 11

The Italian Government has issued  ̶ with the Decree of the Prime Minister dated  March  8, 2020  ̶ the first urgent measures for the containment and management of the epidemiological emergency caused by COVID-19.

These measures, initially addressed mainly to residents of the so-called "reinforced containment areas", were further extended, a few days later, through a new Decree of the Prime Minister published on March 9, 2020 (and effective from the day after), "to the entire national territory". The same Decree also provided for a new containment measure, according to which “any form of gathering of people in public places or places open to the public in the national territory is prohibited”.

With the most recent Prime Minister’s Decree dated March 11, 2020 (published on the same date in the Gazzetta Ufficiale – Official Journal and effective from today), new and even more stringent containment measures have been adopted. In particular, the new Prime Minister’s Decree provides that, throughout the country:

• retail trade activities are suspended (except for commercial activities selling food or essential goods specifically listed in the Prime Ministerial Decree  ̶ such as, for example, pharmacies, retail trade activities selling motor fuel, computer equipment, sanitary equipment, lighting items, hardware components, newspapers, personal hygiene products, soaps, detergents, etc.); on the other hand, newsstands, tobacco shops, pharmacies and drugstores remain open, while markets must remain closed, regardless of the type of activity carried out, except for those selling just food;
• catering activities are suspended (including bars, pubs, restaurants, ice cream parlors and pastry shops); on the other hand, home food delivery is permitted (but it has to be carried out in compliance with health and hygiene regulations);
• activities related to personal services (such as hairdressers, barbers and beauticians) are suspended.

The new Prime Ministerial Decree also provides that each President of any Italian Region may 'schedule the service provided by local public transport companies, including tramp shipping, in terms of  reduction and suppression of services in relation to the health interventions necessary to contain the coronavirus emergency [...] for the sole purpose of ensuring the minimum essential services', and that the Ministry of Infrastructure and Transport may 'schedule [...] the reduction and suppression of interregional automobile services and rail, air and sea transport services [...] for the sole purpose of ensuring the minimum essential services'.

In any case, banking, financial and insurance services, as well as agricultural and zootechnical activities (including supply chains) remain guaranteed in compliance with health and hygiene standards.

Lastly, the new Prime Minister's Decree provides for a number of measures that have to be implemented in productive and professional activities such as smart working, paid holidays and leave for employees, sanitization operations in the workplace, suspension of activities in company departments that are not essential for the production and the arrangement of "anti-contagion safety protocols", as well as the restriction on movement in production sites (also limiting access to common areas).

The measures of the new Prime Ministerial Decree are "effective until March 25, 2020".

2. Non-compliance with containment measures

Failure to comply with the measures provided for the containment of the contagion indicated in the above-mentioned Prime Ministerial Decree is expressly punished pursuant to article no. 650 of the Italian Criminal Code, unless the act constitutes a more serious offence.

Article no. 650 of the Italian Criminal Code occurs when "anyone fails to comply with a measure imposed by the authority for reasons of justice or public safety or public order or hygiene" and the penalties provided for in the above-mentioned article are imprisonment for up to three months or a fine of up to €206.

Since it is a contravention, it is both punishable for intention and fault, but the infringer can be admitted to the particular legal institute called “oblazione” (i.e. to the payment of half of the  maximum penalty), which extinguishes the crime, if (i) the infringer eliminates ̶ as far as it is concretely the cause  ̶ the harmful or dangerous consequences of the crime; and (ii) the judge does not consider the committed action as "particularly serious".

3. The "most serious" configurable crimes

Dealing with the other "more serious" types of crime that could occur, it should be noted that the "Directive to the Prefects for the implementation of controls” of the Italian Interior Minister of March 8,  2020, states that: "The personnel  working will also make the interested parties aware of the fact that the most serious consequences of a behaviour that does not comply with the provisions of the D.P.C.M, even if only negligent, may lead to liability for different crimes, such as those referred to in Article no. 452 of the Italian Criminal Code (offence against public health)."

In particular, one of the conducts punished by article no. 452 of the Italian Criminal Code consists in having caused  ̶ also by negligence  ̶ "an epidemic by spreading pathogenic germs". The Italian Interior Minister therefore states that if the offender, by violating the provisions contained in the Decree, causes (or aggravates) the epidemic, he/she may be held liable for this more serious offence. It should also be noted that, both in doctrine and case law, it is still controversial whether this crime should be considered as a case of "damage offence" or "danger offence": In the latter case, it would be sufficient for the judge to ascertain if the violation of the rules pointed out by these provisions has caused a concrete "danger" of the spread of the epidemic.

Dealing with the spread of the epidemic’s risk, article no. 260 of Royal Decree no. 1265 of July 27, 1934 ("Consolidated text of health laws") could also be applicable. The article states that “anyone who fails to observe a legally binding order given to prevent the invasion or spread of an infectious human disease” is punished with imprisonment for up to six months and a fine. Moreover, it should be underlined that there might be an increase in the sanctions "if the act is committed by a person exercising a health care profession or skill".

In the most serious cases, however, it is not excluded that the crime of negligent physical injury may be alleged, in cases where the offender, by adopting a behaviour in violation of the rules adopted by the Government, ends up infecting other people. In this regard, it should be noted that in order to consider whether this crime was committed, it would be necessary to ascertain the causal connection between the negligent conduct and the illness caused to third parties, and so it should be proved that the violation of the precautionary rules contained in these  Prime Ministerial Decrees has actually caused the infection.

This offence also has an impact on employers' liability: If employers do not take precautions to protect their employees from the risk of contagion, in violation both of the provisions of the Prime Ministerial Decree (the Prime Ministerial Decree of March 11, 2020, recommends, for example, the adoption of "anti-contagion security protocols"), and of the Legislative Decree no. 81 of 2008 regarding the health and safety of workers in the workplace, they could expose themselves to the risk of being liable for the crime of negligent physical injury. In any case, the Public Prosecutor has to prove that the pathology contracted by the worker derives from the employer’s negligent conduct, excluding any alternative causes.

For employers of companies that provide a public service (which are therefore obliged to guarantee its continuity) there is also the risk of committing the crime of interruption of public service, which punishes, with imprisonment of up to one year, "anyone who causes an interruption or disrupts the regularity of a public office or service or a service of public necessity". 

Moreover, within the same enterprise, only some services might be considered as a "public necessity", and therefore the entrepreneur will necessarily have to assess:

• which services must necessarily be guaranteed to the public and which services may or must be suspended; the new Prime Minister's Decree provides for the "suspension of departments of companies  that are not essential for production";
• which activities can or have to be carried out in a way that limits the risk of spread of the virus and what precautionary measures have to be taken (the new Prime Ministerial Decree indicates, for example, the need to limit movements within sites and access to common areas).

Finally, there is also the possibility to be held liable for the crime of resisting a public official in cases where violence or threats are used, for example, in order to obstruct police from monitoring the compliance with the provisions of the decrees. In fact, article no. 337 of the Italian Criminal Code punishes "anyone who uses violence or threats to oppose a public official or a person in charge of a public service, while performing an act of office or service".

4. Travel restriction measures

Among the measures set out in the Prime Ministerial Decree of March 8, 2020, there is also the measure for people to "avoid any  movement into and out of the territories referred to in this article [...], as well as within those territories, except for movements necessitated by proved working demands or situations of need or movements for health reasons".

As mentioned above, this measure was initially provided for the residents of the so-called "reinforced containment areas" and then extended, with the Prime Ministerial Decree dated March 9, 2020, to all citizens on the national territory.

Moreover, in a vademecum published on the Presidency of the Council of Ministers’ website on March 10, the Government specified that:

• citizens must "avoid leaving the house. You can go out to work or for health reasons or other needs, such as the purchase of essential goods; however, it is recommended to work remotely, where possible, or take holidays or leave";
• for self-employed workers "it is always possible to go out to work, although it is recommended to work remotely, where possible, or take holidays or leave".

The vademecum then specifies that the term "proved working demands” means, "that you must be able to prove that you are going to (or coming back from) work, even with a binding self-declaration [...] or by any other means of proof".

In any case, as stated in the Government's vademecum, there are no restrictions on the transit of goods: "all goods (i.e. not only those of basic necessity) may be transported on national territory".

Likewise, there are no restrictions on the movement of goods’ couriers and on the transit and loading/unloading of goods.

5. Self-declaration for travel and consequences in case of "false" declarations

In the Interior’s Minister’s "Directive to the Prefects for the implementation of controls" it is further specified that “the burden of proving the existence of the situations giving the possibility to move falls on the interested party. [...] it is assumed that such a burden can be discharged by producing a self-declaration according to articles no. 46 and no. 47 of the D.P.R no. 445 of December 28, 2000, which can also be produced [the self-declaration] by filling in the forms specifically given to the operators of the police".

Basically, in case of controls by the Public Security Authority, all citizens who do not already have the "self-declaration" must fill in the one provided by the police, in which they have to declare the existence of the needs or situations indicated above.

The Ministry of the Interior has already published on its website the model of this self-declaration and has stated that "the truthfulness of the self-declaration can also be verified by subsequent checks".

Also in the vademecum, the Government declared that "the truthfulness of self-declarations will be subject to subsequent checks and non-truthfulness constitutes a crime ".

In the event of a false declaration in the self-certification, you could be held liable for the crime provided for in Article 495 of the Italian Criminal Code (the crime expressly mentioned  in the self-certification form published on the website of the Ministry), which, under the heading "False declaration or declaration to a public official about the identity or personal qualities of oneself or others", punishes with imprisonment of up to six years "anyone who falsely declares or certifies to a public official the identity, status or other qualities of themselves or others".