The Reasonable Balancing of Rights and Interests at the Time of Pandemic

Abstract

This essay starts with the consideration that the precautionary measures adopted by the Italian legislator and the public administration to deal with the pandemic emergency, while highly restrictive of constitutional freedoms, were commonly deemed reasonable and proportionate. It then continues with some recent rulings of the Italian Constitutional Court. The analysis aims to show that the balance of rights implemented by the legislator and judged by the Court is affected by the state of emergency: the state of emergency makes reasonable what, in ordinary conditions, would have been absolutely disproportionate. Proportionality, in fact – which is necessarily inherent to precautionary approach – finds a different balance point according to the context in which the precautionary measures are adopted. In 2006, Italy adopted its pandemic plan, which was never updated as was required in accordance with the WHO guidelines formulated in 2017 and 2018. Nevertheless, the essay points out that the precautionary principle must not only shape the answer to the state of emergency, but also affect its planning and prevention. Moreover, the findings show there was no lack of emergency forecasts or of measures suitable for the pandemic purpose, and that Italy had failed to implement these measures. Therefore, in the long term, the measures adopted by the Italian legislature and the public administration have turned out to be completely unreasonable.