“The law does not apply, it is interpreted.” Never has this definition of the Italians’ relationship to public order had so much resonance. That of the voices of a thousand far-right activists shouting “present” while brandishing their right arms in a fascist salute resounded throughout the world. A shocking video made the rounds in the international media. Last January 7 took place, as every year, the commemoration in Rome of the assassination during the years of lead (1970) of two members of the youth of the Italian Social Movement (MSI), direct heir of the Mussolini party, in which Giorgia Meloni made his debut in politics before founding Fratelli d’Italia, whose logo features the flame – MSI’s standard evoking the Duce’s tomb.
“Are we in 2024 or in 1924? asked the secretary of the Italian Democratic Party, Elly Schlein. What happened is not acceptable. Neofascist organizations must be dissolved, as the Constitution says. The perpetrators of these actions must be prosecuted. The defense of Mussolini’s regime is a danger for democracy and must be banned.” It already is, thanks to a whole legal arsenal. Article XII of the transitional provisions of the Italian Constitution of 1948 prohibits the “reorganization, in any form whatsoever, of the dissolved fascist party.” In 1952, article 5 of the so-called “Scelba” law made advocating fascism an offense punishable by imprisonment. In 1993, the so-called “Mancino” law punished acts of discrimination or violence of a racial nature. In fact, they are very rarely applied and are likely to be even less so in the future.
Legal ambiguity
Because if the courts are spoiled for choice when it comes to prosecuting those nostalgic for the black shirts, the sanctions do not depend on the application of the texts in force, but on the assessment of the incriminated facts. An ambiguity confirmed by the Supreme Court of Cassation, which ruled this Thursday, January 18 on the video of January 7. Certainly, the highest criminal court in the country confirms that the apology of fascism is an offense and that the rituals of the commemoration which aroused so much emotion are “evocative of the gestures specific to the dissolved fascist party”. As such, they fall within the scope of the law. However, the supreme judges consider that the crime of apologizing for fascism “is not manifest in the context of a commemoration if it is not proven that the people who carry it out have the intention of resuscitating the fascist party “It is appropriate, in order to sanction, to take into account the concrete danger of reorganization of the dissolved fascist party.”
A danger that proves practically impossible to verify. Far-right groups and small groups are exulting at the announcement of this sentence. “In Italy, we do not punish opinions,” rejoiced Domenico Di Tullio, the lawyer for the activists prosecuted for making Roman salutes, who had brought the appeal to the Court of Cassation. “This salute is about individual freedom of expression, not about apologizing for a dictatorship.” Georgia Meloni remained silent. The opposition, for its part, calls for an “ambiguous decision which reinforces the feeling of impunity which those who practice the Roman salute already enjoy. It is a political gesture which evokes a dictatorial regime and acts of violence.”
Deliberate lack of clarity
The historian Francesco Filippi is not surprised by this controversy. “The decision of the Court of Cassation does not resolve anything, it is an Italian decision,” laments the author of the book with the provocative title “Are there any good dictators? Mussolini a historical amnesia” (Vuibert, 2020). If, he says, our Constitution indeed prohibits fascism and laws sanction its apology, there is no precise definition of what this covers. “Since the end of the war, contradictory decisions follow one another against a backdrop of political exploitation of the parties of the right and the left. This lack of clarity is voluntary, because it comes from the bad conscience and bad historical memory of the Italians, a people who experienced 20 years of dictatorship. The debate is often historic on this question. Fascism died in 1945, but tens of thousands of people still embrace it today. The intellectual debate does not take it into consideration enough. This is not just a historical question, but a topical issue.”
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