Freedom of choice in Italy at the time of Covid

Most Italians experienced the arrival of vaccines against Covid-19 as the liberation from a nightmare, the return to the old, more familiar, and safer road, a road that would allow them to definitively set aside not only quarantines, gloves, masks, and disinfectants but, above all, would prevent them from falling ill and dying from a seemingly apocalypticdisease.

Aided by the big media, many Italians found the position of those who distrusted vaccines unreasonable. Refusing vaccination, refusing the infamous swab and the green (or black…) pass were understood as an escape from one's responsibilities and many here in Italy openly sided with the punitive constraints invented by the government and with the truncheons that the police democratically distributed, with no avarice at all, on the demonstrators who dared to protest.

The efficacy of vaccines and their side-effects would deserve a separate encyclopaedia, but it can still be said that, so far, they have not been quite the dazzling invention for which they were sold to us, and potentially there are hidden aspects that could be tragically evident in the not-too-distant future, with consequences not only related to the purely medical sphere.

Until recently, the Italian judiciary seemed invisible, frozen, or unable to take clear positions with respect to the choices of the government headed by Mario Draghi and only recently have there been rulings against the government.

Italian lawyers have also generally followed the government line and there are not many who have gone out of their way to defend those who have been suspended because they lack a health pass or because they have not been vaccinated.

Between doctors at risk of suspension even though they have treated and saved thousands of patients, such as Dr. Andrea Stramezzi, a seemingly indecisive judiciary, and lawyers who are reticent if not openly hostile towards the unvaccinated, there was and is little to be cheerful about for those who oppose the vaccine in this Italy of ours at the time of Covid.

However, there are exceptions. One is the lawyer Alessandro Fusillo, who has gone to great lengths to provide legal assistance to those who felt that the Draghi government's decisions were unfair. Fusillo is, by the way, one of the lawyers defending doctor Stramezzi. The questions I put to him seek to clarify once again the unheard reasons of many Italians and bring to light the deep division that has arisen in our beloved country.

Do you think it is correct to call those who refuse Covid vaccines no-vax?

This is incorrect and the term is deliberately used in order to deflect attention from the serious issues surrounding the so-called Covid-19 vaccines. The term 'no-vax' traditionally described people who were prejudiced against all vaccines, e. g., for religious reasons or distrust of traditional medicine and pharmaceutical companies. In the case of Covid-19 vaccines, all those who were labelled 'no-vax' did not actually assert any prejudiced position against vaccines but affirmed the value of free choice and highlighted the very serious problems surrounding these therapies. They are, in fact, drugs that are still in the experimental phase, the medium- and long-term adverse effects of which are unknown. These so-called vaccines have been strongly recommended and sometimes imposed on the entire population while the risk associated with Covid-19 disease is very different between age groups, which would have required a differentiated assessment for each patient. Furthermore, the mRNA tech is new, never used before in human vaccines, and many feel treated, rightly, like guinea pigs. Finally, vaccines are not effective. There are many cases of vaccinated individuals re-infecting themselves with Covid-19 disease and in turn infecting others, as is obvious in cases of influenza viruses that mutate very rapidly and make vaccines often completely useless. Furthermore, the government has not commissioned any independent analysis of the vaccines, the exact chemical composition of which is not even known because the pharmaceutical companies consider it to be information covered by industrial secrecy. Anyone who has not uncritically accepted the official narrative has been labelled 'no-vax' and contrary to science, whereas it is precisely the scientific method that demands that everything be verified, checked, and questioned.

What are the rights of those who oppose Covid vaccines and where do they derive from? How difficult is it to defend these rights here in Italy?

The real problem arises from the imposition of vaccines as an obligation for a number of categories, health workers, school and university teachers, military and law enforcement personnel and, lastly, the over-50s. The right to freely dispose of one's body even by refusing medical treatment is a principle of natural law. Its denial entails the assertion that some people have the right to dispose of the bodies of others, by force if necessary. Systems that deny the inviolability of the body are founded on arbitrariness and the right of the strongest. In fact, compulsory health treatment is prohibited by a number of sources of international law: first of all, the Oviedo Convention and the Charter of Fundamental Rights of the European Union, which make all health treatment dependent on the free and informed consent of the person concerned. The principle of informed consent has a long legal tradition that can be traced back to the Nuremberg Code, which arose after the tragic experience of Nazi medicine that used concentration camp prisoners as guinea pigs for medical experiments. Even the Italian constitution, although it allows compulsory medical treatment, does not allow a vaccine to be imposed, unless it is a drug that is useful both to the person taking it and to everyone else, that there are no adverse effects other than those that are normal and tolerable, and that the law in any case provides for compensation in the event of adverse effects. Covid-19 vaccines do not fall within these very restrictive parameters set by our Constitutional Court. To date, it is very difficult to enforce the right to health self-determination in Italy, and the responsibility for this situation lies mainly with the judges and to a lesser extent with the legal and medical profession. While it is true that at last some courts (in particular the Sicilian Administrative Justice Council) have raised the issue of constitutionality, it is also true that many important judges, in particular the Council of State, have systematically refused not only to see the obvious problems of constitutionality, but also to disapply the rules on vaccination obligations as they could have done very easily under European law. The magistrates, instead of controlling the government's actions, as would be their duty, have seen themselves as the executors of the government's health policy. The supreme administrative judge continues, then, in his judgments to state an untrue fact and that is that the vaccines would not have serious adverse effects, whereas AIFA itself, the Italian authority of pharmacovigilance, has established thousands of very serious cases, including some dozens of deaths, although they use an algorithm that excludes all cases occurred after 14 days of inoculation and, therefore, is unable to take into account the adverse effects in the medium and long term. We lawyers, too, could and should have done more. There are many colleagues who have not even realised the unprecedented attack on human rights that has been perpetrated over the last two years in Italy. No less responsible are the doctors who first had an obviously flawed protocol for the treatment of Covid-19 imposed on them (acetaminophen and "watchful waiting”) and then accepted the vaccination obligation without argument. A simple strike by all doctors could have turned the government around in a short time.

Can you remind us of what a decree-law is and whether, in your opinion as a lawyer, there has been an abuse of this legislative instrument by the last two governments?

A decree-law is a measure with the force of law adopted by the government in cases of extraordinary necessity and urgency that must be approved by parliament within sixty days under penalty of forfeiture, i. e., ineffectiveness. This is what the constitution provides for. There is, however, the misguidedness of governments (not only the last two) to abuse this instrument in two respects, the first being to disregard the requirements of necessity and urgency, which are often an empty formula. The other aspect, which is even more serious, is that of linking the conversion into law of the decree-law with the so-called question of confidence, i. e., the vote on the government's remaining in office. This puts parliament in the uncomfortable situation of having to bring down the government if the decree is not converted into law, and thus the parliament is literally dispossessed of the possibility of debating and amending legislation. In addition, individual parliamentarians are not only dependent on the decision of party leaders whether or not to nominate them as candidates for the next elections, but many are also financially dependent on the extremely high salaries (among the highest in the world) that few parliamentarians would be able to earn while working. The result is a parliament subservient to the decisions of the government and lacking the capacity and authority to curb the abuses of the ever-increasingly powerful government.

There is not only the government with its ministers but also the Parliament and the President of the Republic. Don't you think that a reciprocal control function that should have prevented or at least moderated any political distortions has been lost?

The system of checks and balances designed by the constituent fathers of the republic has failed. Parliament is no longer able to exercise any power and is hostage to the government. On the other hand, the President of the Republic has been the true arbiter of politics since at least 2011, starting with the Monti government, since prime ministers have increasingly been the expression of presidential politics. The two political entities that have disproportionately increased their powers in recent years have been the President of the Republic and the prime minister, who are the real masters of the country without any countervailing power capable of blocking them. Italy has taken an authoritarian path of the cult of the strong man who decides alone without any real control. On the other hand, the two greatest exponents of this direction, Mr Monti and Mr Draghi, come from bureaucratic apparatuses (the European Commission and the ECB) where power is exercised without any control and above all without any democratic legitimation. The Constitutional Court, which would be the other element of guarantee, is not able to perform this function due to its composition, two-thirds of which is of political appointment, which removes any guarantee of impartiality and detachment from the government apparatus. Even more serious is the conflict of interest that characterises many supreme administrative judges of the Council of State who alternate judgeships with functions at the top of administrations as heads of cabinet, which creates an undue intermingling of judges and judged.

Mario Draghi's government has tried to impose vaccination by depriving people of both work and salary but at the same time wanting them to sign informed consent. Is this not a contradiction, and a cruel one at that?

The contradiction is obvious and must be read together with the conscious choice not to provide any compensation for the adverse effects of vaccines and to exempt vaccine doctors from criminal liability in case of death or severe injury caused by these treatments. The easy prediction is that the thousands of people harmed by Covid-19 vaccines will be denied compensation by the government, which, using the signature of the informed consent form as an excuse, will refuse to compensate them. Moreover, it should not be forgotten that the Italian republic is defined in Article 1 of the constitution as democratic and founded on labour. Prohibiting many unvaccinated people from earning a living by working was a profoundly serious and unprecedented act on the part of the Italian government, which has repudiated the foundations on which the republic is built.

Is it excessive to speak of extortion?

This is not excessive. Not only I, but also other lawyers who are protecting the fundamental rights of citizens harmed by the government's measures, have made a complaint scheme for extortion against the government available to anyone interested. Forcing someone to do something under the threat of an unjust evil (in our case the loss of a job) constitutes the crime of extortion and I know that thousands have filed such complaints. The problem will be finding a magistrate who has the courage to put Mr. Draghi, Mr. Speranza [Minister of Public Heath] and the other government ministers on trial, as would be right and proper.

What to do then?

The path I have indicated several times is that of non-violent civil disobedience and obviously that of legal action and denunciations. It is then urgently necessary to open a new constituent phase to change or rewrite the constitution. The government has too many powers and citizens must exercise that sovereignty that is also recognised to them by the existing constitution in order to put impassable limits on government action. Individual freedom, especially that of health self-determination, must be reaffirmed as an inviolable principle. As long as there is a power that can claim to exercise medical choices for citizens, not only will we not be free, but we will be hunting grounds for multinational pharmaceutical companies interested in selling their products, preferably with the help of the government.

Lastly, I would like to mention the hate campaign unleashed against those who did not want to vaccinate. What do you think about it? How do you see the future of our Republic?

The hate campaign in which numerous government ministers participated, followed by people who unworthily boast of being journalists and various protagonists of TV talk shows is one of the most shameful chapters of Italian history. Let us not forget that Italy has a very recent democracy and that it was the cradle of fascism: unfortunately, discrimination against dissenters is part of our recent past. The campaign of hatred has been all the more absurd as the doubts expressed by those who refused the experimental treatment are now daily confirmed by the ever-increasing number of cases of people with three or four doses falling ill and by the many adverse effects, even lethal ones, on which most of the media, with few exceptions, are dropping an embarrassed silence. Unfortunately, the rift between the resistance front (improperly called 'no-vax') and the rest of the country is deep and irremediable, and the reconstruction of the country from the disasters wrought by the last two governments in the name of a crazy and ineffective health policy will be very difficult and will take years.