In order to control coronavirus spreading in Italy public administration adopted a number of containment measures, regarding schools, public transports, and every public service. As the scenario of the pandemic is changeable from a local and temporal point of view, public regulation could not but find fulfilment, in many aspects, in meticulous and detailed administrative provisions. Thus, the emergency has marked a sudden reversal in the long-term trend that goes from the centrality of administrative supremacy, typical of the liberal phase, to parity between public administration and citizens, which characterizes contemporary constitutional democracies. The reaffirmed unilateral power of administrations in the emergency, however, is not a return to the past, thanks to the now well affirmed authoritativeness of the administrative judiciary. Administrative judge was given many powers in the reforms of the past decades, so really becoming the guardian of rationality in public choice.
From the very beginning of Covid-19 pandemic, Italian government, invested with law-making powers, made intense use of criminal law for the containment of the infection. The attitude to use punitive power as the main tool to face emergency, in contrast with the extrema ratio principle, reached its climax with the pandemic but – indeed – is not new in the Italian context. Criminalization, being the strongest reaction of the legal system to unwanted behaviours of citizens, has become an ordinary way to express not only social but also moral blame against the violation of the rules of conduct that regulate emergency. However, this “re-moralization” trend of criminal sanctions in emergency times, with its implicit authoritarian tendency, finds a limit in the judiciary. Thus, the liberal-democratic order can be reaffirmed through the operativity of judicial control, being a mechanism of check and balances in the constitutional system.
The main concern is to identify what should be the role (if any) of constitutional justice and, when appropriate, of the international and supranational system for the protection of human rights during the pandemic. Firstly, courts have scrutinized whether proper procedures are followed and that the emergency response is rooted in law. Secondly, some courts have engaged in substantive rights review, with the goal of ensuring that the restrictions on rights are necessary, proportional and equally applied. Thirdly, some courts have even demanded that the executive take action, especially in contexts where the governments failed to adequately respond to the pandemic. Fourthly, we find that some courts have had to grapple with whether the pandemic allows for elections to be postponed. Nonetheless, the fact that many courts have involved themselves in the pandemic response is a strong indication that executive power has not been entirely unbound during the current pandemic.