"Movida no more movida" for having become, that term so "in" in the Spanish evening circles of the unforgettable Eighties, now synonymous with Mala-Movida: but whose fault? Because? Until? Is it the concrete and creeping manifestation of a social unease that for several years now seems to be crossing our communities, or is it just the concrete and material boutade of a widespread "evil of living" which is expressed in a useless and degrading "protest"?
Whatever the ontological reason may be, and probably of little interest in the light of its direct and indirect effects, certainly the community, i.e. all of us, cannot be forced, and/or we cannot be forced, to live in a climate of precariousness constantly suffering the consequences. No one can be forced to tolerate the discomfort of others, if it really is discomfort. And honestly, considering the forms in which this "mala-movida" (rectius discomfort) manifests itself so often, it may well be legitimate to doubt it. In fact, it would seem that we could not take it anymore: from Cagliari to Turin to Milan to all the big Italian cities, reports from citizens arrive for noises and abuse of alcoholic substances, when not also for much more onerous circumstances directly affecting the serenity of the residents. Certainly, the strongly negative character that characterizes a phenomenon so dangerous and harmful to public peace seems to have crystallized in manifestations of so-called "anthropic pressure" (to use an expression dear to scholars of the phenomenon) weighing above all on certain portions of the territory, morphologically predisposed to the "polluting" circumstance, in particular the narrowest historical centres, which have become critical meeting points since they were conceived as physical places of concentration and/or gathering of the masses or, better, of the so-called "People of the Night" who, in recent times in in particular, it has been able to distinguish itself for unlawful conduct, even of particular seriousness.
It is bad to have to talk about it and it is extremely burdensome even just having to think of being in a position to react, in spite of ourselves, to such a structural and not only emergency "inconvenience": noise pollution, disturbance, shouts, occupation of public and even private land, lack respect for public decorum and vandalism, fights, thefts on one side, and protection of rights on the other seem to have become the keywords of a distorted representation of daily evening life. Let's be clear: can we argue that it is a problem of inefficient "governance" of the territories by our administrations? Is it possible to unload responsibility for a phenomenon which, even in economic terms, has a consistent impact, always and only on the public side? Although the latter is called to perform a control and prevention function, however, the community too should not refrain from having to do its part according to an active and collaborative behavior useful for guaranteeing the best and most aware management of the territory in its most criticisms. All the more when there are no typical measures aimed at the structural management of the phenomenon in all its abnormal deviances. And even more so when one pauses to reflect on the fact that the pure and simple contingent and urgent ordinances adopted by the various Municipalities in the event of a local health and public hygiene emergency represent a sort of derogation from the typical principles of administrative acts end up having little practical impact.
Having to limit ourselves to a list of the measures that can be adopted, we should resign ourselves to including measures such as the contingent and urgent ordinance specific to noise pollution pursuant to art. 9 law 447/95, or the ordinances issued pursuant to art. 9 of the TULPS (TU Law of Public Security referred to in rdn 773/1931), or even those issued for the violation of art. 64 of Legislative Decree no. 59/2010, entitled "administration of food and beverages". But beyond the normative datum considered in and of itself, it is easy to realize the circumstance that on the administrative "strictu sensu" considered, the instruments of protection are very limited, and even if adopted in the individual cases that have occurred, nevertheless, they would seem having proved to be poorly efficient in governing the phenomenon as they are only suitable for the production of temporary effects, and therefore, and for this very reason, incapable of making changes to the current legislation by only suspending its application.
It is not who really does not see the legal inconsistency of the nature of a potential intervention in this sense which, moreover, the Municipal Body itself is called to revoke when the state of danger ceases. But if, after all, the Public Administration seems to have its "hands" tied due to the little incident nature of its power to intervene, then what tools would citizens have at their disposal to contrast such a vulgar phenomenon? Can they think about taking a lawsuit? Against who? Against the Municipality to obtain the condemnation to take the measures best deemed useful to solve the problem? Probably not, because even if the intent were to be successful, then, upon the outcome, the administration could follow up on the conviction only through the issuance of those measures which, in various ways, and for the aforementioned reasons, would not have incidental force . At least not in terms of structural management of the problem.
In other words: apart from the fact that the citizen, in order to defend himself in the right way, would be called to anticipate the costs of a judgment often of a certain duration, if even the entity that owns the road from which the reported entries come, for example, were to be condemned to the adoption of suitable measures to stop said entries, however, that condemnation would have value and significance in the only single situation reported.
The truth seems to be one and only one and leaps to everyone's eyes: the absence of conscious and structural legislative policies, adequate and consistent with the needs of the territories too often left to their fate due to incapacity and/or contextual lack of strength intervener, probably, of the administrative and police bodies. A synergistic contribution is undoubtedly needed between legal practitioners and public administration bodies, and all citizens, to try to make up for the innumerable regulatory gaps which, despite the regulatory hyper-activity that has always characterized the country, we are still forced to suffer. It is necessary to find solutions that are as satisfactory and useful as possible for all interested parties, who, unquestionably, must find the correct measure of protection in their right to health and rest. These latter needs must necessarily find a privileged protection above the playful needs of the night population and the economic interests of certain commercial operators in the sector, often (with due exceptions of course) too unscrupulous in the management of "polluting" circumstances.
The watchword therefore must be only the one aimed at identifying ad hoc legislation which gives Administrations and Law Enforcement Forces the power to intervene with immediate and definitive effect in contrasting the "bad nightlife" phenomenon, perhaps through the drafting of a specific criminal law.
Josephine Di Salvatore
(Lawyer – Nuoro)