How would one define the actus reus of attempting the reconstitution of the fascist party? Is violence necessary? Is the participation in a manifestation while showing Nazi-fascist symbols enough?
The Act Scelba of 1952 has always granted a blurred response to these questions. Indeed, one would not be found guilty for expressing his thoughts in favour of the Fascist regime. However, the main question is: to what extent can the Act be applied, without endangering the democratic stability?
This is the question that the Italian Court of Cassation has had to deal with in the sentence n.10569/2021. In September 2009, the defendant in question was participating in two organized manifestations in Rome from the para-military associations “Sturmabteilung” (Assault squads). These associations are commonly known for being Filo-Nazist inspired. Throughout the events, the defendant had been captured by TV reporters and photographers actively manifesting. She was recognised to be wearing clothes which were a clear reference to the Nazi uniforms, while repeatedly doing the Nazi’s salute.
In court, the defence stated that while they did not deny the accused of such behaviours, these did not represent any risk to democracy and therefore did not constitute an attempt to reconstruct the Fascist party. Indeed, they declared that this was a mere nostalgic act, hence protected by the freedom of expression.
The Court of Cassation, however, decided otherwise. It declared that the behaviours held by the accused, as well as by the other members participating at the demonstration, univocally referred to the filo-nazi ideology, and to the political values of racial discrimination and bigotry sanctioned by Article 5 of Act n. 645. By stating this, the court clarified that although these actions did not contain any sort of violence towards others, they are to be considered as a concrete danger to the democratic order.
In this regard, the Act Scelba does not punish any manifestation of thought and ideology referring to the fascist ideas, as this freedom is protected by Article 21 of the Italian Constitution. However, the danger of a presumed reconstitution shall be considered “in relation to the time and the place where such actions take place. They concretely endangered the democratic values as well as its stability.”
In this case, as maintained by the court itself, there were all the assumptions needed in order to identify the cumulation of the actions as proper propaganda aimed at the spreading of violence, hatred, and racial supremacy. For these reasons, the court condemned the accused to a lump sum of 3.000€ in order to cover the procedural fees.