For the Roman salute, the Scelba law on the apology of fascism and in particular article 5 must be contested. This is the decision of the united sections of the Supreme Court of Cassation which ordered a second appeal process for eight far-right militants who had performed the salute in during a commemoration in Milan in 2016.
Article 5 of the 1952 law cited by the Supreme Court states: «Whoever, participating in public meetings, carries out usual demonstrations of the dissolved fascist party or of Nazi organizations is punished with a prison sentence of up to three years and with a fine of two hundred thousand to five hundred thousand lire. The judge, in pronouncing the sentence, may order the deprivation of the rights provided for in article 28, second paragraph, numbers 1 and 2, of the penal code for a period of five years".
But the same Court of Cassation notes that «the call of the “present” or “Roman greeting” is a ritual evocative of the gestures typical of the dissolved fascist party and integrates the crime foreseen by article 5 of the Scelba, where, having regard to all the circumstances of the case, is suitable to integrate the concrete danger of reorganization of the dissolved fascist party ".
Furthermore, the judges believe that «under certain conditions there may also be a violation of the Mancino law, which prohibits external or usual manifestations of organisations, associations, movements or groups which have among their aims the incitement to discrimination or violence for racial, ethnic, national or religious reasons . The two crimes can concur both materially and formally in the presence of the legal conditions."
The militants on trial for the events in Milan would have been sentenced in 2023 according to the Mancino Law.
According to the defendants' lawyers, however, «the decision of the Court of Cassation establishes that the Roman salute is not a crime unless there is a concrete danger of the reconstitution of the fascist party as provided for in article 5 of the Scelba law, or there are concrete programs and current cases of racial discrimination or racial violence as provided by the Mancino law".
