Pagina dettaglio corso numero uno

by Francesca Vitarelli, Research Fellow at the University of Milan

The new security decree, Legislative Decree 24/02/2026 no. 23, converted into law on 24 April 2026, represents the latest crucial turning point in a gradual paradigm shift. Criminal law, which should constitute the extrema ratio, to be used only when all other forms of public policy intervention have failed, becomes the legislature’s first response to any sign of social conflict. Whether it concerns minors committing crimes or citizens expressing dissent in public demonstrations, the response appears to be the same: repression. There is no investment in education, no social policy, no prevention. Only punishment and, above all, prison.

This approach calls into question, at its roots, the constitutional pact, as criminal law affects personal liberty, the habeas corpus of democracy. Criminal sanctions should be applied in response to harm, or the risk of harm, to a legally protected interest, and always in compliance with the principles of necessity, proportionality and subsidiarity. oday, however, we see the reverse: criminal law has become the default tool for managing social discomfort and conflict

The most evident consequence is the compression of the freedom of expression and the freedom of assembly, constitutionally guaranteed under Articles 21 and 17 of the Constitution. The previous security decree (Legislative Decree 11/04/2025 no. 48), by re-criminalising the so-called “road blockade”, has criminalised, in aggravated form if carried out collectively, forms of political expression such as sit-ins and symbolic obstruction of public roads as a means of dissent. No concrete danger or violent act is required: it is sufficient to “obstruct”, disturb, or create discomfort in relation to the dominant narrative. This is a worrying signal, because criminal law becomes detached from the actual harmfulness of the conduct. Repression is anticipated for conduct without damage, and criminal law becomes a means to repress dissent. It is a return to author-based criminal law: what is punished is not what one does, but what one is or represents in the public space.

Moving in the same direction is the newly established measure of so-called “preventive detention” (the new Article 11-bis of Legislative Decree No. 59/1978, introduced by Legislative Decree No. 23/2026), softened in the decree's language to “accompaniment to public security offices”, intended to prevent behaviour considered dangerous during public demonstrations. It introduces the possibility of holding a person for up to twelve hours on the basis of an undefined assessment of “dangerousness”, based on “well-founded reasons” that may derive not only from the possession of certain objects or previous convictions, but also simply from the circumstances of the moment. In other words, anyone could be detained for up to twelve hours in police offices based on an unspecified judgment of dangerousness. This assessment is almost entirely left to the discretion of public security authorities, with only subsequent oversight by the public prosecutor. Unlike “traditional” police detention, there is a lack of judicial validation, a constitutional guarantee provided for under Article 13 of the Constitution. The measure therefore appears difficult to reconcile with one of the fundamental principles of our legal system: personal liberty may be restricted only in exceptional cases provided by law and always under judicial control. This is the core of habeas corpus. Here, instead, significant power is vested in public security authorities, based on a vague notion such as dangerousness without the possibility of judicial oversight, whose supervision is essential to the protection of citizens' rights: a shift towards a “police state”, which weakens democratic checks and balances in the name of order and public security conceived as ends in themselves, rather than as means for exercising constitutionally guaranteed freedoms.

The issue becomes even more concerning when it involves minors. Our legal system has always struggled to build and preserve an autonomous juvenile criminal justice system, based on the educational value of measures and support for an individual still in development. The aim is not to re-educate someone who has consciously chosen to commit a crime, but to accompany a growing person along an educational path, as provided for by the Constitution and consistently reaffirmed by case law. The new measures, completing a process already set in motion by the Caivano decree (Legislative Decree 15/09/2023, no. 123), risk undermining this framework, extending police powers over minors from the age of 12 even before a criminal conviction. The “deviant” minor is thus transformed into a kind of public enemy, together with migrants and all those living in conditions of social hardship who do not meet the criteria of so-called merit. This amounts to a complete reversal: instead of strengthening schools, social services and pathways to inclusion, public intervention is shifted from the educational system to the repressive one.

This climate also frames attempts, later scaled back in the final version of the decree, to further curtail judicial oversight, as in the case of the so-called “criminal shield” for law enforcement. This provision would have allowed the public prosecutor to to omit registration of a crime report entirely where a justification, such as self-defence potentially resulting in fatal outcomes during a police operation, was deemed self-evident. The possibility of not recording conduct that qualifies as a criminal offence under our legal system, potentially even wilful homicide, would not only have called into question the constitutional principle of mandatory prosecution under Article 112, which is a fundamental safeguard for citizens, but would also have further strengthened the autonomy and discretion of public security authorities without judicial control. In its current version, Articles 12 and 13 of the decree instead introduce a system of preliminary registration in a separate register “when it appears evident that the act was committed in the presence of a justification.” Yet such self-evidence should in any case presuppose at least a minimal investigative activity. The very need to establish an ad hoc register distinct from the register of suspects therefore raises serious concerns, as it confers upon the public prosecutor a particularly delicate preliminary assessment.

The common thread running through the entire decree is clear: more power to the police, less judicial oversight; more imprisonment, fewer rights. Order and public security are constantly invoked, yet it should be recalled that public order, in itself, is not a fundamental right. According to the constitutional pact of liberal-democratic tradition, it is a means to guarantee the exercise of fundamental rights, and as such must be kept in appropriate balance with personal liberty and freedom of expression, including in its collective forms. Today, however, in the name of security, the repression of protests, street offences or ordinary forms of social conflict rooted in conditions of hardship is justified. From this perspective, a distinction is created between first-class and second-class citizens. Those deemed dangerous are isolated, not integrated; those who express dissent are silenced, not heard. This is a securitarian drift that strikes at the very essence of the liberal democratic state.