Roman salute: the crime of apologizing for fascism is confirmed by the Italian Supreme Court of Cassation, but gives rise to differences of interpretation

The Roman salute constitutes an offense of apologizing for fascism, the Italian Supreme Court of Cassation ruled on Thursday January 18, but the “open” Constitution of the republic makes convictions very hypothetical in this matter

Roman salute: the crime of apologizing for fascism is confirmed by the Italian Supreme Court of Cassation, but gives rise to differences of interpretation

The Roman salute constitutes an offense of apologizing for fascism, the Italian Supreme Court of Cassation ruled on Thursday January 18, but the “open” Constitution of the republic makes convictions very hypothetical in this matter.

The country's highest criminal court was in session after a rally in Rome on January 7 during which hundreds of people made the fascist salute in front of the former Roman headquarters of the Italian Social Movement (MSI), a party formed by supporters of Benito Mussolini after the Second World War. The rally commemorated the murder of two teenage members of the MSI youth wing, shot dead on January 7, 1978, during the Years of Lead.

The Supreme Court of Cassation considers in its decision that the call ceremony, by which participants in a fascist demonstration respond “present”, as well as the “Roman salute” – outstretched arm – are punishable by law.

These are rituals “evocative of the gestures specific to the fascist party dissolved” after the Second World War and as such they fall within the scope of article 5 of the so-called “Scelba” law dating from 1952, the judges considered, who consider that the offense is however not manifest in the context of a commemoration if it is not proven that the people who carried it out had the intention of resuscitating the fascist party.

“In Italy, we don’t punish opinions”

“It is appropriate”, to sanction, they add, “to take into account the concrete danger of reorganization of the dissolved fascist party”, an almost insurmountable obstacle according to jurists interviewed by Agence France-Presse. Another text can, however, be invoked against such public demonstrations: the so-called “Mancino” law of 1993, which punishes acts of discrimination or violence of a racial nature.

To support their conclusions, the supreme judges decided on a new appeal trial for eight activists who had made the fascist salute during a memorial ceremony in 2016, and who had been convicted in a second instance. For the lawyer of two of them, the decision of the Supreme Court of Cassation vindicates them. “In Italy, we don’t punish opinions,” rejoiced Domenico Di Tullio, quoted by the Italian agency ANSA. The small neofascist group CasaPound hailed “a victory” while for the President of the Senate, Ignazio La Russa, an admitted fan of busts of Mussolini, the Court’s decision “needs no comment”.

For his part, the vice-president of the National Association of Italian Partisans (ANPI), Emilio Ricci, sees it as a “clarification” capable of condemning the neofascist activists. He calls on the courts to prosecute the participants in the January 7 rally. “I want the prosecution to indict them for violating the Scelba and Mancino laws,” he said.

Divergences of interpretation

The same divergences of interpretation emerged in the Italian media and on social networks. Some see it as a strengthening of the legislative arsenal against fascist resurgences, others think that it will be just as difficult as before, or even more, to repress them.

For constitutionalist Gaetano Azzariti, the Supreme Court of Cassation “confirmed the anti-fascist values” of the post-war Italian republic. It also anchors “the offense of apologizing for fascism” while leaving its terms of application to the courts. A position of balance in short, according to him.

Constitutional law professor Giulio Vigevani believes for his part that it will always remain complicated to pursue these facts based on the provisions of the Scelba law repressing the apology of fascism. “In 99% of cases it will not be possible to convict based on the Roman salute alone. The Italian Constitution defends an open democracy that is not afraid of its enemies,” he recalls.

The Prime Minister, Giorgia Meloni, co-founder of the post-fascist Fratelli d'Italia party, and former member of the MSI, was strongly criticized by the opposition for having remained silent on this demonstration whose images went around the world.