This
document analyzes the case of Enrico Gianini, currently detained in a
psychiatric facility, as an emblematic example of the conflict
between self-determination of conscience and state control. The case
raises fundamental questions about:
-
Freedom
of conscience as a pre-state constitutional right
-
Improper
use of psychiatry as a tool of social control
-
Protection
of independent researchers and whistleblowers
-
Limits
of state power in relation to fundamental rights
-
Inadequacy
of the Italian system of security measures
The
document examines the legal, constitutional, and social implications
of the case, highlighting how the pathologization of dissent
represents a threat to the fundamental principles of the rule of law.
The analysis develops through multiple perspectives: constitutional,
international, sociological, and philosophical, proposing an organic
reform of the system of psychiatric security measures.
CHRONOLOGY
OF FACTS
-
2015-2016:
Beginning of independent research on aeronautical residues during
his employment at Malpensa airport
-
2016:
Submission of aircraft fuel samples to specialized laboratories for
independent analysis that confirmed the presence of 16 metals in
fuels that should not be present
-
2018-2019:
Presentation of documented complaints to Italian prosecutorial
offices, including certified laboratory analyses of chemical results
on aircraft fuels, which showed the presence of barium, sodium,
chromium, lead, and traces of uranium
-
March
2019: Traffic incident in which Gianini himself called the police
after nearly being run off the road by a car, but then the situation
was reversed and he was accused of assaulting an officer, causing
the dislocation of a finger, despite never having shown violent or
aggressive behavior
-
2019-2020:
Sentenced to 6 months of imprisonment:
-
2020-2024:
Imposition of supervised liberty with:
-
For
almost two years, deliberate refusal of both the obligation to sign
in and the mandatory appointments at CPS, considering them
illegitimate
-
February
20, 2025: Arrest for "violation of obligations"
-
February
25, 2025: Transfer to the REMS of Castiglione delle Stiviere:
-
Prospect
of detention for at least one year
-
Possibility
of six-month extension
-
Additional
year of supervised liberty envisioned
SELF-DETERMINATION
OF CONSCIENCE AND NATURAL LAW: THE CASE OF ENRICO GIANINI
I.
THE GIANINI CASE: AN ATTACK ON FREEDOM OF CONSCIENCE
Enrico
Gianini is currently detained in a psychiatric facility for having
exercised his conscientious objection against restrictive measures
imposed on him based on accusations of "social dangerousness"
that he has always rejected as unfounded.
From
his numerous videos and public interventions available, he appears to
hundreds of thousands of people as a perfectly lucid and mentally
competent man, who has consciously chosen to place himself at the
service of the people through what many consider to be a heroic act:
conducting scientific analyses on aeronautical residues,
commissioning laboratory tests at his own expense, systematically
documenting his discoveries and, finally, refusing to submit to a
system that, instead of verifying his evidence, has preferred to
label him as dangerous. His act of civil resistance represents the
culmination of a path of independent research conducted with rigor
and dedication to the common good, demonstrating how the defense of
truth and that of fundamental rights are inextricably linked.
As
clearly emerges from his public communications and as documented in
the independent psychiatric assessment commissioned by the family and
written by the well-known forensic psychiatrist Dr. Alessandro
Meluzzi, Gianini does not present any psychiatric pathology that
would justify coercive interventions. Despite this independent
assessment certifying that Gianini did not suffer from psychiatric
disorders, the court gave precedence to the official assessment. The
independent assessment highlights how his beliefs, though not
conforming to dominant thinking, fall fully within the scope of the
constitutionally guaranteed exercise of freedom of thought. It is
particularly concerning that in 2015, the classification of "paranoid
conspiracy disorder" or "conspiratorial paranoid syndrome"
was introduced in international psychiatric manuals, pathologizing
interest in theories not aligned with dominant thinking. Gianini has
repeatedly emphasized that he has no need for the proposed treatment,
manifesting with lucidity and logical coherence his determination not
to recognize as legitimate either the imposed therapeutic method or
the authority of the Italian State that ordered it; the same State
that, after systematically ignoring his documented complaints and
laboratory analyses on aeronautical residues, rather than verifying
their scientific merit, preferred to criminalize the messenger
through a pathologization mechanism based on vague and subjective
diagnostic criteria. This reversal, from researcher worthy of
attention to a "dangerous" subject to be contained,
represents a disturbing example of how the system responds to
challenges to official narratives.
His
position represents the expression of a conscious choice based on
ethical and political convictions, not the symptom of a pathology.
II.
SCIENTIFIC RESEARCH AND TRUTH: THE DOCUMENTED EVIDENCE OF GIANINI
1.
The scientifically established context of geoengineering
The
research conducted by Gianini on aeronautical residues at Malpensa is
part of a widely documented and institutionally recognized context of
climate modifications:
These
projects use techniques and materials compatible with the residues
analyzed by Gianini.
2.
Specific analyses and documented results
The
chemical analyses conducted by Gianini on aircraft fuels and
aeronautical residues, sent in 2016 to a specialized French
laboratory (Francia Analitica of Dr. Talier), revealed the presence
of highly problematic substances incompatible with the normal
composition of commercial fuels: they revealed the presence of 16
metals that should not be present in fuels, including potentially
problematic substances:
-
Identified
heavy metals:
-
Barium
-
Sodium
-
Chromium
-
Lead
-
Traces
of uranium
The
analyses were carried out at certified laboratories, using standard
methodologies of mass spectrometry and other analytical techniques
recognized by the scientific community. The results of these
analyses, presented to Italian prosecutors, represent concrete
evidence that would have required, according to normal procedures,
the opening of in-depth investigations into potential environmental
contamination and public health risks.
3.
Documentary basis and scientific validation
Gianini's
research is supported by:
-
Verifiable
registered patents (e.g., US Patent 3,813,875 by Rowland, a14, on
the creation of ionic clouds in the upper atmosphere)
-
Scientific
publications on atmospheric chemistry
-
Declassified
government reports
-
Documentation
of historical military programs (Operation Popeye)
4.
The Procedural Contradiction in Mandatory Treatment
Gianini's
position reveals a fundamental contradiction in the Italian system of
security measures with health prescriptions. On one hand, health
regulations (Law 833/1978) establish that treatments are voluntary,
except for specific exceptions; on the other hand, in the context of
supervised liberty, these treatments become mandatory
"prescriptions." When Gianini exercised the constitutional
right to refuse treatments (Art. 32 of the Constitution), such
refusal was paradoxically transformed into a "violation of
obligations," revealing the "double bind" intrinsic to
the system: the subject must "voluntarily" accept a
treatment imposed as an obligation, thus denying both real
voluntariness and the constitutional right of refusal. It should be
emphasized that fundamental rights such as freedom of conscience and
refusal of health treatments are constitutionally protected even when
the form of their expression may not meet all procedural
requirements.
III.
CONSCIENCE AS A PRE-STATE NATURAL RIGHT
1.
Constitutional Status of Conscience
The
Italian Constitutional Court, in ruling 467/1991 (filed on December
19, 1991), defined individual conscience as a "creative
principle that makes the reality of fundamental human freedoms
possible" and as a "constitutional value so high as to
justify the provision of exemptions from compliance with imperative
norms." This definition recognizes conscience as a pre-state
value that the State must protect, not suppress.
The
priority of conscience over state power is archetypically represented
by Sophocles' Antigone, who opposes the ἄγραπτα
νόμιμα (unwritten laws) to the decree
of the sovereign. This fundamental intuition is systematized in the
Stoic-Roman ius naturale
(Cicero: "Est quidem vera lex recta
ratio"), in the Thomistic
synderesis as the person's participation in the lex
aeterna, and in the elaboration of the
right of resistance from the School of Salamanca (Suárez, Vitoria)
to modern natural law, constituting the juridical-philosophical humus
of contemporary fundamental rights.
This
conception finds significant correspondences in non-Western legal
traditions: Confucian yi (義)
as a moral imperative superordinate to positive law (Hsü Dau-lin,
1975); svadharma in the Indian tradition as an intrinsic limit to
political power (Sen, 2009); hurriyat al-damir (freedom of
conscience) in contemporary Islamic law, anchored to maqasid
al-shari'ah as protection of personal interiority (Al-Alwani, 2005);
and ubuntu in post-colonial African constitutional jurisprudences as
the foundation of the inviolability of moral dignity (S v.
Makwanyane, 1995).
The
contemporary philosophical-juridical tradition, through a
transnational dialogue embracing different theoretical matrices,
converges in recognizing freedom of conscience as a founding
principle of the legal order itself. Ronald Dworkin (in "Taking
Rights Seriously," 1977 and "Justice for Hedgehogs,"
2011) elaborates the concept of "right to ethical independence"
as a "trumping right" (in his original formulation) that
necessarily prevails over any consideration of collective utility,
establishing an insurmountable limit to the coercive power of the
State. This position finds correspondence in Robert Alexy's theory of
fundamental rights (in "A Theory of Constitutional Rights,"
1986), which configures moral freedom as a "principle of
optimization" endowed with prima
facie precedence over any state
interest, requiring a "substantially greater weight" to
opposing interests to justify limitations.
The
Anglo-Saxon perspective and the continental one converge in Martha
Nussbaum's reflection (in "Creating Capabilities," 2011),
which identifies "practical reason" – the ability to form
an autonomous conception of the good – as a structural requirement
of any just society, echoing Amartya Sen's theses on the inseparable
link between freedom of conscience and human development.
On
the European side, Jürgen Habermas (in "Between Facts and
Norms," 1992) recognizes in the subject's "moral autonomy"
the precondition of action that makes possible the very legitimation
of the legal order.
In
the Italian context, this convergence finds expression in the
elaborations of Norberto Bobbio (in "The Age of Rights,"
1990), who identifies freedom of conscience as a "perfect
subjective right" that does not need positive justification as
it is logically prior to the formation of the legal order, and in
Luigi Ferrajoli's theory of "fundamental rights as the sphere of
the undecidable" (2001), which constitutively removes individual
conscience from both the power of majorities and the logic of the
reason of state. Gustavo Zagrebelsky (in "The Gentle Law,"
1992) completes this theoretical architecture by identifying rights
of conscience as the "unbreakable moment" of contemporary
constitutionalism.
This
extraordinary convergence, which transcends otherwise divergent legal
traditions and philosophical orientations reflects the recognition of
a fundamental legal truth: the suppression of individual conscience
represents not only a violation of individual rights, but an attack
on the very foundations of constitutional legitimacy, prejudicing the
minimum conditions of any social pact that recognizes the equal
dignity of persons. As effectively synthesized by Joseph Raz (in "The
Morality of Freedom," 1986), "Moral autonomy is not simply
a value that the State must respect, but the very condition that
makes the legitimacy of political authority possible."
2.
Constitutionally protected natural rights
Article
2 of the Constitution "recognizes" (not "grants")
inviolable rights, acknowledging their pre-existence in relation to
the legal system. The verb "recognize" implies that such
rights exist independently of the legislator's will, configuring
themselves as natural rights that the State must respect.
The
constitutionalist Costantino Mortati (in "Institutions of Public
Law," 1975) defines these rights as "absolute limits to
state power," while the Constitutional Court (ruling 1146/1988,
filed on December 29, 1988) has identified "supreme principles"
that cannot be subverted or modified even by constitutional revision
laws.
3.
The "Double Bind Trap" in psychiatric institutions
The
system imposes on Gianini what psychiatrist Gregory Bateson defines
as a "double bind" – a pathological communicative
situation in which:
This
mechanism, analyzed by sociologist Erving Goffman as "mortification
of the self," makes any effective defense impossible,
transforming every form of resistance into further justification for
coercion. It is a perfectly closed circular system that denies access
to any effective remedy.
The
concept of "double bind," initially introduced by Bateson
in 1956, has recently been re-evaluated in contemporary legal
literature as a powerful tool for analyzing coercive mechanisms
disguised as therapeutic procedures:
-
T.M.
Luhrmann, "Of Two Minds: The Growing Disorder in American
Psychiatry" (2000) has documented how in institutional
psychiatric contexts the double bind operates pervasively: passive
acceptance of the diagnosis is interpreted as "insight,"
while disagreement is classified as a symptom of "anosognosia"
or lack of awareness of illness
-
Bernadette
McSherry & Penelope Weller, "Rethinking Rights-Based Mental
Health Laws" (2010) have analyzed how this circular mechanism
undermines the foundation of the right to a fair trial in
psychiatric contexts, making any effective contestation impossible
-
Lidz
et al. (2000, "Perceived Coercion in Mental Hospital
Admission," Archives of General Psychiatry) have documented the
"escalation effect" in coercive psychiatric contexts: the
patient's resistance is interpreted as a further pathological
symptom, justifying the intensification of restrictive measures and
creating a self-reinforcing cycle of coercion.
This
pathological communicative structure is not a simple side effect, but
a constitutive mechanism of the psychiatric control system that
neutralizes any possibility of effective defense, transforming
procedural guarantees into empty simulacra of protection. In the
specific context of security measures, the double bind takes on a
particularly insidious legal dimension: the right to defense is
formally guaranteed but substantially emptied by the argumentative
circularity that transforms every attempt at contestation into
further evidence of the need for control.
4.
The epistemological contestability of psychiatric diagnostic
categories
The
use of psychiatry as a tool of social control is based on
epistemologically contestable premises that deserve further
exploration:
-
Psychiatric
diagnostic classifications (DSM) have undergone radical historical
transformations not based on advances in neurobiological
understanding but on socio-cultural changes and professional
conventions (Paris & Phillips, "Making the DSM-5,"
2013)
-
Diagnostic
reliability in psychiatry has been questioned by empirical studies:
the largest reliability study for DSM-5 showed surprisingly low
levels of agreement between clinicians for many key diagnoses
(Cohen's kappa between 0.20 and 0.60) (Regier et al., 2013)
-
The
National Institute of Mental Health has officially abandoned the DSM
system as a basis for research, recognizing its scientific
limitations (Insel, 2013)
-
The
British Psychological Society (2011) has officially criticized the
biomedical model of mental suffering, denouncing the "medicalization
of social problems"
-
It
is particularly troubling that in 2015 a new classification of
"paranoid conspiracy disorder" or "conspiratorial
paranoid syndrome" was introduce
-
It
is particularly troubling that in 2015 a new classification of
"paranoid conspiracy disorder" or "conspiratorial
paranoid syndrome" was introduced in psychiatric manuals, which
pathologizes interest in theories not aligned with dominant
thinking, transforming intellectual dissent into mental pathology
The
use of such a contested diagnostic system as a foundation for severe
limitations of personal freedom raises fundamental constitutional
problems:
-
Violates
the principle of determinateness (Art. 25 Const.) by using vague and
subjective diagnostic categories
-
Contravenes
the principle of science and medical conscience (Art. 32 Const.) by
imposing treatments based on scientifically dubious assumptions
-
Compromises
the right to defense (Art. 24 Const.) by making it impossible to
effectively contest diagnoses that by their nature are not
falsifiable according to normal scientific standards
In
Gianini's case, the imposition of a diagnostic label of "social
dangerousness" based on subjective and scientifically contested
criteria represents a violation of both his fundamental rights and
the basic principles of epistemic legitimacy that should inform any
limitation of freedom based on scientific assumptions.
IV.
THE PREVALENCE OF FORM OVER SUBSTANCE: CONSTITUTIONAL DEFECT
1.
The principle of effectiveness vs. procedural formalism
In
the Gianini case, a radical defect of the Italian legal system
emerges: the tendency to privilege formal compliance with procedures
at the expense of substantive justice. This reversal of
priorities violates fundamental constitutional principles:
-
Principle
of effectiveness of protection: The Constitutional Court (ruling
238/2014) has established that "fundamental rights must receive
effective and not merely formal protection"
-
Principle
of reasonableness: The Court (ruling 1/2013) has affirmed that
norms must be interpreted in a way that guarantees "intrinsic
reasonableness" and not just procedural correctness
-
Constitutional
substance: The constitutionalist Gustavo Zagrebelsky has defined
the Constitution as "law by principles" that requires
substantive and not formalistic interpretation
When
the State places form before substance, especially in matters of
fundamental rights:
-
It
betrays its function of protecting human dignity
-
It
violates the personalist principle (Art. 2 Const.) that places the
person at the center of the legal order
-
It
contravenes the supreme principle of effectiveness of the protection
of inviolable rights
2.
The irrelevance of formal defects in the exercise of fundamental
rights
Any
possible formal inaccuracy in Gianini's declarations is irrelevant
with respect to the substance of his position. Constitutional
principles establish that:
-
Principle
of freedom of forms in the exercise of fundamental rights: The
Constitutional Court (ruling 77/2018) has established that "the
formal modalities of exercising a fundamental right cannot prejudice
its substance"
-
Principle
of interpretation most favorable to liberty: Constitutional law
imposes the interpretation of the individual's declarations in the
way most favorable to the exercise of fundamental freedoms
-
Principle
of favor libertatis:
In case of doubt, the interpretation must always lean toward the
solution that most protects individual freedom
Regarding
fundamental rights such as freedom of conscience and refusal of
health treatments, these are constitutionally protected even when the
form of their expression may not meet all procedural requirements
The
constitutional rule of law is called to look beyond formal
imperfections to grasp the substance of the claim to freedom. The
possible use of improper terms or non-canonical procedures, if they
ever occurred, can never justify the violation of a fundamental
right.
V.
STRUCTURAL DEFECTS OF ITALIAN LEGISLATION
1.
Constitutional inconsistencies in the system of security measures
The
Gianini case can represent a turning point in the history of civil
rights in Italy. His dual battle - first as an independent researcher
who documented potential geoengineering activities at Malpensa, then
as a man resisting forced psychiatrization - shows how defending the
right to truth today often means challenging a system that prefers to
label as "dangerous" those who ask uncomfortable questions.
According
to various sources, the judicial persecution against Gianini
originated with a controversial episode in March 2019. On that
occasion, it was Gianini himself who called the police after nearly
being run off the road by a car that, according to his account, was
deliberately pursuing him. However, the situation was reversed when,
after the police arrived, Gianini was accused of having assaulted an
officer, causing the dislocation of a finger, despite never having
exhibited violent or aggressive behavior, not even during the arrest.
This represents an incredible inversion of facts: from help
requester, Gianini was transformed into a defendant.
The
Italian system of psychiatric security measures presents structural
defects that make it incompatible with constitutional principles:
-
Violation
of the principle of determinateness: The concept of "social
dangerousness" is so vague as to violate Art. 25 Const. which
requires clarity in norms limiting freedom
-
Reversal
of the burden of proof: It is the individual who must demonstrate
that they are not dangerous, in violation of the presumption of
innocence
-
Lack
of proportionality: Restrictive measures are often disproportionate
to the declared needs
-
Lack
of effective remedies: Appeals are formal but rarely substantial
Formally,
security measures in the Italian system are classified as
"administrative" and not punitive based on the "dual
track" system introduced by the 1930 Rocco Code. This
classification is based on the theoretical assumption that, while
penalties respond to guilt for a committed act (looking to the past),
security measures aim to prevent the commission of future crimes
based on "social dangerousness" (looking to the future). It
is precisely this formally preventive and not retributive nature that
has historically justified the exclusion of security measures from
the constitutional guarantees reserved for criminal matters, such as
the presumption of innocence (art. 27 Const.) and the principle of
non-retroactivity (art. 25 Const.).
However,
this formal distinction is increasingly contested for several
fundamental reasons:
-
The
European Court of Human Rights, starting from historic judgments
such as Engel and Others v. Netherlands (1976) and Welch v. United
Kingdom (1995), has developed a substantive approach to "criminal
matters," establishing that the punitive nature of a measure
must be assessed based on its concrete effects and not on its formal
classification in domestic law.
-
The
judgment De Tommaso v. Italy (2017) specifically criticized the
Italian system of preventive measures, emphasizing that measures
limiting personal freedom, regardless of their formal
classification, must respect the principles of legality,
predictability, and proportionality.
-
M.K.
and Others v. Poland (nos. 40503/17, 42902/17, 43643/17, judgment of
July 23, 2020) established that systematic interventions against
individuals who contest official practices must be subject to
rigorous safeguards against arbitrariness.
-
The
case Varbanov v. Bulgaria (2000) established that psychiatric
detention, even when formally classified as "therapeutic,"
must be subject to strict procedural guarantees when it limits
personal freedom.
-
X
v. Finland (no. 34806/04, judgment of July 3, 2012) further
clarified that forced psychiatric treatment must be subject to
independent judicial review and guarantees against arbitrariness
comparable to those of the criminal process.
As
highlighted by the Constitutional Court in ruling 253/2003 and
reiterated in rulings 139/2010 and 186/2015, even security measures
must respect the fundamental principles of proportionality and
presumption of non-dangerousness. In the case of psychiatric
measures, in practice there is a problematic "presumption of
dangerousness" that continues until proven otherwise: it is the
individual who must demonstrate that they are not dangerous, not the
authority that must prove beyond reasonable doubt their
dangerousness.
This
reversal of the burden of proof is particularly evident in cases of
refusal of treatment like Gianini's: his refusal to undergo
psychiatric treatments was interpreted as confirmation of his
dangerousness, creating a logically unassailable vicious circle. If
he accepts treatment, he implicitly confirms the validity of the
diagnosis; if he refuses it, he demonstrates the need for even more
restrictive measures. This scheme violates the fundamental principle
expressed by the Constitutional Court in ruling 258/1994, according
to which the burden of proof must fall on those who intend to limit a
fundamental right, not on those who exercise it.
The
Constitutional Court (ruling 139/1982) has declared the illegitimacy
of presumptions of dangerousness, but the legislator has never
adapted the system.
2.
From principle to practice: coercive escalation in the Gianini case
The
Gianini case offers a concrete demonstration of how the structural
defects of the system manifest in practice, creating an inextricable
coercive spiral:
3.
The REMS system: psychiatric coercion in a health guise
The
REMS (Residences for the Execution of Security Measures), introduced
by Law 81/2014, represent the modern evolution of Judicial
Psychiatric Hospitals, maintaining, however, their coercive substance
under a new formal guise:
-
Regulatory
Framework:
-
D.L.
211/2011 converted into Law 9/2012
-
D.L.
52/2014 converted into Law 81/2014
-
Art.
3-ter D.L. 211/2011 on structural requirements
-
Legal
Characteristics:
-
Exclusively
health management
-
Maximum
20 beds (in theory, but with significant exceptions in practice)
-
Formally
individualized therapeutic program
-
Stay
linked to "social dangerousness"
-
Maximum
duration correlated to the statutory penalty of the contested crime
As
highlighted by the Medical Director herself, this system produces
permanent labeling: once applied, the psychiatric diagnosis becomes
an indelible mark in the Italian judicial system, creating a vicious
circle where:
-
The
diagnosis justifies the security measure
-
Refusal
of the measure is interpreted as confirmation of the diagnosis
-
Violation
of obligations leads to more restrictive measures
-
Every
form of resistance is read as further evidence of "dangerousness"
This
perverse mechanism simultaneously violates:
-
The
right to the presumption of innocence (art. 27 Const.)
-
The
principle of proportionality of restrictive measures
-
The
right to an effective remedy (art. 24 Const.)
-
The
freedom of therapeutic self-determination (art. 32 Const.)
The
intertwining of administrative control (signature at the police
station) and health coercion (mandatory treatments) creates a system
of total control that recalls the worst aspects of institutional
psychiatry that the Basaglia law intended to overcome.
4.
The structural contradictions of the REMS system
The
REMS system, presented as overcoming the asylum model of the OPGs
(Judicial Psychiatric Hospitals), reveals in practice profound
contradictions that compromise its rehabilitative function. The REMS
of Castiglione delle Stiviere, where Gianini is currently detained,
represents an emblematic case of these contradictions.
While
the 2014 reform envisioned contained structures, integrated in the
territory and with a primarily health approach, in reality, the
Italian REMS system is characterized by:
• Persistence
of the custodial approach: Despite
formally health management, a logic of containment and control
prevails, with little attention to individualized therapeutic paths
• Structural
resource deficit: Chronic shortage of
specialized personnel, particularly psychiatrists, psychologists, and
rehabilitation technicians, compromising the quality of therapeutic
paths
• Territorial
discontinuity: Isolation of REMS
structures from territorial mental health services, preventing
effective therapeutic continuity
• Extended
permanence times: The average duration
of internment significantly exceeds the initially envisaged terms,
with systematic extensions that transform theoretically temporary
measures into forms of indefinite detention
The
reports of the National Guarantor of the rights of persons deprived
of liberty and of the Stop OPG Observatory document how, behind the
facade of health care, lies a reality of social control that
reproduces the asylum logic that the reform intended to overcome.
The
paradox of the REMS system is that, despite having been conceived as
a more humane and therapeutic alternative to OPGs, they often end up
reproducing the same mechanisms of institutionalization, deprivation
of liberty, and stigmatization. This phenomenon, defined as "masked
institutionalization," reveals how the change of denomination
and formal management has not produced a substantial transformation
in the approach to mental health in the judicial sphere.
In
Gianini's case, the direct transition from the obligation of
treatment at CPS to internment in REMS illustrates a coercive
escalation that contradicts the gradualness and proportionality
declared as founding principles of the reform. This discontinuity,
not justified by specific events but exclusively by the refusal of a
treatment perceived as illegitimate, highlights how the system uses
the threat of internment as a pressure tool to obtain compliance with
territorial treatments.
5.
The path from CPS to REMS: the incoherence of the
psychiatric-judicial system
Gianini's
case illustrates the fundamental contradiction in the articulation
between territorial services (CPS) and detention structures (REMS) in
the Italian system:
Psycho-Social
Centers (CPS) represent the first
level of territorial psychiatric assistance, established following
the principles of the Basaglia reform. These services are conceived
as non-coercive therapeutic spaces, founded on the constitutional
principle of voluntariness of care. Their original mission is to
provide assistance in a non-stigmatizing context, respecting the
self-determination of the person.
When,
as in Gianini's case, the Surveillance Court imposes the obligation
of treatment at CPS as a condition of supervised liberty, a
logical-juridical short-circuit is created: a service founded on
voluntariness is transformed into an instrument of penal control,
where the refusal of the "mandatory voluntary treatment"
constitutes a transgression punishable with internment in REMS.
The REMS,
though presented as overcoming the Judicial Psychiatric Hospitals,
maintain in substance the detention function, masked by formally
health management. This transition from CPS to REMS does not
represent a therapeutic continuum, but a punitive escalation that
uses the language of care to legitimize coercive practices.
The
fracture between the declared principles (voluntariness, gradualness,
territoriality) and the effective practice (obligatoriness,
escalation, isolation) constitutes not an anomaly but the structural
logic of a system that, through legal euphemisms and semantic
disguises, circumvents constitutional guarantees transforming rights
into obligations and legitimate resistance into confirmation of
dangerousness.
6.
Italian regulatory framework: positive law and constitutional
principles in conflict
The
current Italian regulatory framework presents an unresolved tension
between the constitutional principles of personal freedom and
therapeutic self-determination and the applicative practice of
psychiatric security measures. This contradiction manifests
particularly:
-
In
the conflict between the constitutional right to refuse health
treatments (Art. 32) and the imposition of therapies as a condition
for personal freedom
-
In
the violation of the principle of determinateness of restrictive
measures through the use of vague and subjective diagnostic
categories
-
In
the contrast between the presumption of non-guilt and the automatism
that transforms the refusal of treatment into evidence of
dangerousness
-
In
the incompatibility between the right to defense and a system that
pathologizes every form of contestation
These
normative conflicts reveal a system that, while formally respectful
of constitutional principles, in substance violates them
systematically.
7.
Comparison with advanced legal systems
The
backwardness of the Italian system clearly emerges in international
comparison:
-
Finland:
The Open Dialogue system has reduced the use of compulsory
treatments by 85% with better clinical results
-
Germany:
The Federal Constitutional Court (BVerfG, 2 BvR 882/09, judgment of
March 23, 2011) has established that forced psychiatric treatment is
admissible only as a last resort and requires stringent guarantees
-
United
Kingdom: The Mental Capacity Act 2005 establishes the presumption of
capacity and the right to decisional support
-
Norway:
Has initiated a process of gradual elimination of psychiatric
coercion
-
Peru:
Law 30947/2019 has eliminated involuntary internment
Italy,
despite the Basaglian revolution, maintains a system that Amnesty
International has defined as "incompatible with international
standards on human rights."
8.
Informational opacity as a structural element
The
informational opacity that characterizes the REMS system and more
generally psychiatric structures with detention functions, besides
being a practical obstacle, manifests a symptomatic element of the
dysfunctionality of the entire system. Despite Law 81/2014 and
subsequent ministerial directives theoretically providing
transparency mechanisms, numerous reports by the National Guarantor
of the rights of persons deprived of liberty (2018-2022) have
highlighted recurrent criticalities in the access to information by
family members and defenders. The lack of transparency and
accessibility of information regarding the state of patients, the
administered treatments, and the conditions of stay seriously
compromises the right to defense and undermines the fundamental
procedural guarantees. As confirmed by the "Report on REMS"
by the Italian Society of Psychiatry (2021), the absence of
standardized protocols for communication with the outside constitutes
one of the main criticalities of the system. The jurisprudence of the
ECHR has repeatedly established that transparency of treatments is an
essential requirement for the protection of fundamental rights in the
psychiatric field, particularly in the judgments Bataliny v. Russia
(2015) and M.S. v. Croatia (2015). Even in the absence of forced
pharmacological treatments, the very stay in a detention facility
against one's will, particularly when there is no evidence of
pathologies requiring urgent interventions, constitutes a form of
coercion difficult to reconcile with constitutional principles.
VI.
THE PRINCIPLE OF PROPORTIONALITY AND LAST RESORT IN EUROPEAN
CONSTITUTIONAL LAW
1.
The Principle of proportionality as a parameter for evaluating
restrictive measures
The
principle of proportionality, a pillar of European constitutional
law, requires that any limitation of fundamental rights satisfy three
cumulative criteria:
-
Suitability:
the measure must be suitable to achieve the legitimate purpose
pursued
-
Necessity:
there must not exist less restrictive measures equally effective
-
Proportionality
in the strict sense: the sacrifice
imposed on the right must be proportionate to the collective benefit
The
Court of Justice of the EU (C-293/12 and C-594/12, Digital Rights
Ireland and Seitlinger, judgment of April 8, 2014) has explicitly
established that "when fundamental rights are at stake, the
discretion of the legislator is limited" and that the intensity
of judicial review must be proportionately higher the more the
affected right is essential to the dignity of the person.
In
Gianini's case, the application of this proportionality test reveals
violations on all three levels:
-
Defect
of suitability: psychiatric internment
is not suitable to resolve ethical and political objections
-
Defect
of necessity: there existed numerous
less invasive alternatives (e.g., dialogue, scientific
confrontation)
-
Defect
of proportionality: the damage to
freedom of conscience is absolute, while the collective benefit is
non-existent
2.
The Principle of "Last Resort" in restrictions of personal
freedom
European
constitutional law recognizes the principle of "last resort"
in limiting personal freedom, elaborated by the ECtHR in multiple
judgments (Stanev v. Bulgaria, no. 36760/06, judgment of the Grand
Chamber of January 17, 2012; Plesó v. Hungary, no. 41242/08,
judgment of October 2, 2012). This principle establishes that:
-
The
deprivation of personal liberty is legitimate only when every other
less invasive measure has been considered and deemed insufficient
-
Simple
dissent or non-conformity to social conventions can never justify
restrictive measures
-
The
limitation of liberty for presumed therapeutic reasons requires
robust scientific evidence and consensus from the medical community
The
German Federal Constitutional Court (BVerfG, 2 BvR 882/09, judgment
of March 23, 2011) has further developed this principle, establishing
that "forced psychiatric treatment is constitutionally
admissible only as extrema ratio and in the presence of a concrete
and serious danger to the person themselves or to third parties."
In
Gianini's case, the absence of a concrete danger and the existence of
numerous less restrictive alternatives make the application of
coercive measures a manifest violation of the principle of last
resort.
3.
The Limits of the "Margin of Appreciation" in ECtHR
jurisprudence
The
doctrine of the "margin of appreciation," which recognizes
to States a certain discretion in the application of the Convention,
encounters insurmountable limits when essential rights of the
individual are at stake:
-
In
the case Khlaifia v. Italy (no. 16483/12, judgment of the Grand
Chamber of the European Court of Human Rights of December 15, 2016),
the Grand Chamber established that "the margin narrows
considerably when personal liberty is at stake"
-
In
X v. Finland (no. 34806/04, judgment of July 3, 2012), the Court
specified that "in matters of mental health and forced
treatments, the margin of appreciation is limited by the need for
robust procedural safeguards"
-
In
Enhorn v. Sweden (no. 56529/00, judgment of January 25, 2005), the
Court clarified that "the deprivation of liberty must be a
measure of last resort, after less severe measures have been
considered and deemed insufficient"
In
Gianini's case, the Italian State has largely exceeded the permitted
margin of appreciation, imposing disproportionate coercive measures
that violate the essential core of the rights protected by the
Convention.
VII.
VIOLATIONS OF INTERNATIONAL LAW
1.
Binding ECtHR jurisprudence
The
European Court of Human Rights has developed binding jurisprudence
that the Gianini case ignores:
-
Stanev
v. Bulgaria (no. 36760/06, judgment of the Grand Chamber of January
17, 2012): Psychiatric internment must be strictly necessary and
proportionate
-
M.S.
v. Croatia (no. 75450/12, judgment of February 19, 2015): Informed
consent is an indispensable requirement
-
X
v. Finland (no. 34806/04, judgment of July 3, 2012): Periodic
independent review is mandatory
-
Bataliny
v. Russia (no. 10060/07, judgment of July 23, 2015):
Disproportionate compulsory internment can constitute torture
The
twin judgments of the Constitutional Court (nos. 348 and 349 of 2007,
filed on October 24, 2007) have established that ECHR norms
constitute an interposed parameter of constitutionality.
2.
Legal protection of independent researchers
Gianini's
position finds support in a series of recent decisions that have
strengthened the protection of independent researchers and
whistleblowers:
-
Magyar
Helsinki Bizottság v. Hungary (ECtHR, no. 18030/11, judgment of the
Grand Chamber of November 8, 2016): The Court established that the
right of access to information as part of freedom of expression
applies to independent research on matters of public interest, a
principle applicable to Gianini's research on aeronautical residues.
-
Urgenda
Foundation v. State of the Netherlands (ECLI:NL:HR:2019:2007,
judgment of December 20, 2019): Recognized the right of citizens to
contest inadequate environmental policies and the obligation of
authorities to seriously consider such contestations. This precedent
strengthens Gianini's right to have his scientific evidence examined
instead of being pathologized.
-
ClientEarth
v. European Commission (T-851/16, judgment of the EU Tribunal of
March 7, 2019): Established important principles on access to
environmental information and transparency in public institutions
3.
Jurisprudence on psychiatric coercion as a tool of repression
Some
recent judgments have specifically addressed the improper use of
psychiatry:
-
Biriuk
v. Lithuania (ECtHR, no. 23373/03, judgment of November 25, 2008):
The Court established that the disclosure of health information
without consent violates the right to privacy, a principle
extendable to the case of imposed psychiatric diagnoses.
-
Navtej
Singh Johar v. Union of India (AIR 2018 SC 4321): The Indian Supreme
Court established that beliefs not conforming to dominant thinking,
even when supported by unorthodox scientific research, cannot
justify coercive interventions by the State.
4.
Reinforced protection of freedom of conscience
The
most recent jurisprudence has expanded the protection of freedom of
conscience in ways relevant to Gianini's case:
BVerfG,
2 BvR 2347/15 and others (judgment of February 26, 2020): The German
Constitutional Court established that the protection of conscience
includes the right to resist potentially harmful practices, even when
these are officially authorized.
5.
Violation of the UN Convention on the Rights of Persons with
Disabilities
Italy
has ratified the CRPD with Law 18/2009, assuming binding obligations:
-
Art.
12 CRPD: Equal recognition before the law
-
Art.
14 CRPD: Prohibition of deprivation of liberty on the basis of
disability
-
Art.
15 CRPD: Protection from cruel or degrading treatments
-
Art.
17 CRPD: Protection of psycho-physical integrity
The
CRPD Committee has explicitly declared (General Comment no.1) that
"cognitive or psychosocial deficit must not be used as
justification for denying legal capacity."
6.
Convention against Torture
The
UN Special Rapporteur on Torture (Report A/HRC/22/53, 2013) has
established that "forced psychiatric treatments, if they cause
severe pain and suffering, may constitute torture or maltreatment."
The
conditions that transform treatment into torture include:
-
Forced
administration of drugs with serious side effects
-
Physical
restraint or prolonged isolation
-
Absence
of genuine therapeutic purpose
These
conditions are systematically present in the measures applied to
Gianini.
VIII.
SOCIOLOGICAL AND POLITICAL DIMENSION OF PSYCHIATRIC REPRESSION
1.
Social control function of coercive psychiatry
Michel
Foucault, "Psychiatric Power" (Course at the Collège de
France 1973-1974, published posthumously in 2003), demonstrates how
psychiatry has historically functioned as a device for disciplining
"indocile" bodies and minds. The pathologization of dissent
responds to a logic of control that transforms political issues (the
refusal to submit to an authority perceived as illegitimate) into
medically treatable problems.
In
Gianini's case, this dynamic is evident: his conscientious objection
– a political act par excellence – is disguised as a pathological
symptom, thus allowing his neutralization through internment.
Psychiatry thus becomes an instrument of preservation of the
established order, rather than an instrument of care.
2.
Genealogy of "Social Dangerousness"
The
concept of "social dangerousness" has roots in Lombrosian
criminological positivism and its theory of the "born criminal"
– a scientifically discredited approach but one that continues to
inform Italian institutional practices. This concept:
-
Is
scientifically unfounded (meta-analysis by Large et al., "The
predictive value of risk categorization in schizophrenia,"
Harvard Review of Psychiatry, 2011, 19(1): 25-33: impossible to
predict violent behaviors with accuracy superior to chance)
-
Has
demonstrated racial, class, and social conformity biases
-
Is
based on prejudices rather than empirical evidence
The
application of this construct in Gianini's case reveals the
persistence of what Michel Foucault would later identify as the
"biopolitical device" of control – that is, a mechanism
that, having developed precisely in the era of Lombrosian positivism,
allows state power to regulate bodies and minds through
pseudo-scientific categories. Such a device, which the republican
constitutional order should have dismantled with its affirmation of
the centrality of the person, survives even in the folds of the
psychiatric-judicial system, revealing a disturbing continuity with
social control practices that precede and contradict the fundamental
principles of the Constitution.
3.
Implications for Identity and social recognition
Philosopher
Axel Honneth has analyzed (in "Struggle for Recognition,"
1992) how "institutionalized disrespect" – the denial of
social recognition through stigmatizing labels – constitutes a form
of violence that attacks the very identity of the subject.
Psychiatric labeling is not just a medical matter but a political act
that redefines the entire social status of the person.
The
psychiatric diagnosis, once applied, operates as a "self-fulfilling
prophecy" (Robert Merton, "Social Theory and Social
Structure," 1949) colonizing the subject's identity and
permanently altering the way they are socially perceived. For
Gianini, the label of "dangerousness" risks becoming a
permanent mark that transcends the specific case and deprives him of
the possibility of being heard as a valid interlocutor in public
discourse.
IX.
ALTERNATIVE MODELS AND THE INEFFECTIVENESS OF COERCION
1.
Evidence-Based alternative models
There
exist non-coercive approaches scientifically validated that make
unjustifiable the coercive approach used against Gianini:
-
Finnish
Open Dialogue: Developed in Western
Lapland in the '80s, this approach is based on immediate
interventions during psychic crises, involving the person's social
network and promoting open dialogue among all participants, without
pre-established hierarchies. Longitudinal studies (Seikkula et al.,
"Five-year experience of first-episode nonaffective psychosis
in open-dialogue approach," Psychotherapy Research, 2006,
16(2): 214-228) show impressive results: 80% reduction in
schizophrenia diagnoses, less use of drugs, and 85% work
reintegration of participants. Despite these results, the model
struggles to spread on a planetary scale as it threatens the
economic interests of the psycho-pharmacological industry and
challenges the social control paradigm of traditional psychiatry.
-
Soteria:
Conceived in the '70s by psychiatrist Loren Mosher, this model
proposes small non-medicalized residences where people in acute
psychotic crisis are accompanied through the experience instead of
being pharmacologically sedated. The staff, primarily
non-professional but specifically trained, offers constant presence
and meaningful relationships. Comparative studies (Bola &
Mosher, "Treatment of acute psychosis without neuroleptics:
two-year outcomes from the Soteria project," Journal of Nervous
and Mental Disease, 2003, 191(4): 219-229) demonstrate superior
results compared to standard hospital treatments, with less use of
drugs and better long-term outcomes. Despite the evidence, the model
has been marginally implemented precisely because it challenges the
conventional psychiatric system and requires a radical shift of
power and resources.
-
Hearing
Voices Network: International movement
born in the Netherlands in the '80s from the collaboration between
psychiatrist Marius Romme, researcher Sandra Escher, and people who
hear voices. Based on the revolutionary idea that hearing voices is
not necessarily a sign of pathology but a significant human
experience, it promotes self-help groups where people share
strategies for living with voices and explore their personal
meanings. Participants report reduction of suffering, greater
empowerment, and improvement in quality of life without the need for
coercive treatments (Longden, Corstens & Dillon, "Recovery,
discovery and revolution: The work of Intervoice and the Hearing
Voices Movement," in A. Russo & J. Sweeney (Eds.),
"Searching for a Rose Garden: Challenging Psychiatry, Fostering
Mad Studies," 2016, PCCS Books). This approach, though proven
effective, is still considered "alternative" by a
psychiatric system that prefers to suppress symptoms rather than
understand them.
-
Trieste
Model: Widely recognized globally as
an innovative paradigm of non-coercive care. Developed by Franco
Basaglia, on paper it proposes deinstitutionalization, territorial
services, social inclusion, and respect for self-determination.
However, contemporary Italian reality dramatically contradicts these
principles: Gianini's case demonstrates how, despite ambitious
declarations of principle, the Italian system continues to resort to
compulsory internment and psychiatric coercion. This contradiction
reveals the gap between theory and practice, between the progressive
image that Italy projects internationally and the oppressive
practices that persist in the daily reality of Italian psychiatric
services.
These
models provide incontrovertible empirical evidence about the dual
quality of non-coercive approaches: their concrete implementability
and their superior therapeutic efficacy documented by scientific
literature. The systematic omission of their adoption on an extensive
scale reveals how the coercive option, exemplified by Gianini's case,
responds primarily to imperatives of social control and institutional
convenience, rather than to proven clinical necessities or emergency
conditions. This circumstance qualifies the imposition of coercive
measures as a practice affected by intrinsic harmfulness and
constitutive illegitimacy, by virtue of the deliberate preterition of
less restrictive and more effective alternatives.
2.
Scientific research and ineffectiveness of coercion
The
most recent scientific research demonstrates the ineffectiveness and
harms of coercive treatments:
-
Trauma
induced by coercion: Studies (Frueh et
al., "Patients' reports of traumatic or harmful experiences
within the psychiatric setting," Psychiatric Services, 2005,
56(9): 1123-1133; Cusack et al., "Trauma within the psychiatric
setting: A preliminary empirical report," Administration and
Policy in Mental Health, 2018, 45(3): 454-462) document that forced
treatments produce post-traumatic symptoms similar to
physical/sexual abuse, with 75% of patients developing PTSD.
-
Clinical
ineffectiveness: Meta-analyses (Kisely
et al., "Compulsory community and involuntary outpatient
treatment for people with severe mental disorders," Cochrane
Database of Systematic Reviews, 2017, 3: CD004408; Burns et al.,
"Community treatment orders for patients with psychosis: a
randomised controlled trial," The Lancet, 2013, 381(9878):
1627-1633) show that coercive measures do not improve clinical
outcomes, do not reduce subsequent hospitalizations, nor improve
compliance.
-
Neurological
Damage: Neurobiological research (Van
der Kolk, "The Body Keeps the Score: Brain, Mind, and Body in
the Healing of Trauma," Viking Press, 2014) demonstrates that
coercion compromises self-regulation capabilities, worsening
problems instead of solving them.
This
scientific corpus renders the coercive approach used against Gianini
not only ethically questionable but scientifically unjustifiable.
X.
THE RIGHT-DUTY OF RESISTANCE
1.
Philosophical and legal foundations of legitimate resistance
-
Hannah
Arendt: "No one has the right to obey" when obedience
violates human dignity ("Eichmann in Jerusalem," 1963)
-
Henry
David Thoreau: "Civil disobedience is a duty when the law
requires becoming agents of injustice" ("Civil
Disobedience," 1849
-
Gustav
Radbruch: The formula of "manifestly unjust law" that does
not deserve obedience ("Statutory Lawlessness and
Supra-Statutory Law," 1946)
-
Immanuel
Kant: Moral autonomy as the foundation of human dignity ("Groundwork
of the Metaphysics of Morals," 1785)
Constitutional
doctrine (Mortati, "The Constitution in the Material Sense,"
1940; Zagrebelsky, "The Gentle Law," 1992) recognizes an
implicit right of resistance in Art. 1 Const. (popular sovereignty)
and in Art. 139 (immutability of the republican form), understood as
including fundamental principles.
2.
The non-existence of non-compliance as foundation of resistance
In
Gianini's case, the accused "violation of obligations"
proves legally non-existent for a series of fundamental reasons that
transform his refusal into a legitimate act of constitutional
resistance:
a)
Hierarchy of Sources and Prevalence of Fundamental Rights
-
The
refusal of health treatments is constitutionally protected (Art. 32
Const.) as an inviolable fundamental right
-
The
right to therapeutic self-determination necessarily prevails over
administrative obligations of a secondary nature
-
Freedom
of conscience, recognized by the Constitutional Court as a pre-state
right (ruling 467/1991), cannot be subordinated to administrative
prescriptions
-
The
imposed obligations violate the essential core of constitutionally
protected rights
b)
Configuration of the State of Necessity
-
The
refusal to undergo potentially harmful treatments configures
legitimate defense of one's psycho-physical integrity
-
Pharmacological
coercion represents serious, irreversible, and otherwise unavoidable
harm
-
Conscientious
objection in this context represents the only available means to
avoid permanent prejudice to one's person
-
Gianini's
choice falls within the justification provided by art. 54 of the
Penal Code
c)
Structural Illegitimacy of the Imposed Obligation
-
The
imposition of psychiatric treatments as a condition for supervised
liberty violates the principle of proportionality
-
The
subordination of personal freedom to the acceptance of health
treatments contrasts with ECHR principles
-
The
automatism between refusal of treatment and "transgression"
is constitutionally illegitimate
-
The
measure violates the principle of reasonableness and adequacy
d)
Exercise of the Constitutional Right of Resistance
-
Opposition
to illegitimate measures falls within the constitutional right-duty
of resistance
-
The
defense of fundamental rights through the refusal to submit to
illegitimate orders cannot configure non-compliance
-
The
refusal to submit to violations of human rights is legally protected
and represents a civic duty
-
Gianini's
resistance configures as a defense of the constitutional order
This
legal framework demonstrates how the accusation of "violation of
obligations" is not only unfounded but itself represents a
violation of constitutional principles. Gianini's resistance thus
configures as an act of defense of the constitutional order, not as
its violation.
3.
Conscientious objection as constitutional self-defense
Gianini's
objection represents:
-
An
act of defense of constitutional integrity against its violation
-
A
form of "diffuse control" of constitutionality exercised
by the citizen
-
The
exercise of the right to self-determination sanctioned by the
Constitutional Court (ruling 471/1990) as the "right to dispose
of one's own body"
The
Constitutional Court (ruling 467/1991) has defined conscientious
objection as a "fundamental human right which, as such, belongs
to individuals independently of the recognition made of it by
positive law."
4.
Resistance to the procedural "double bind"
Gianini's
objection acquires further constitutional legitimacy in light of the
procedural contradiction to which he was subjected. The REMS system,
despite formally health management (with structures that should be
small and territorialized), maintains in practice a strongly
custodial approach. The REMS of Castiglione delle Stiviere, where
Gianini is interned, is undergoing a transformation with the
construction of six smaller 20-bed structures each, in line with the
2014 reform, but currently still operates primarily as a centralized
structure that has inherited the characteristics of the former OPG.
In this context, Gianini's resistance represents not only an ethical
or political objection, but a necessary defense against a system that
formally claims to respect therapeutic self-determination while
substantially denying it, transforming every expression of decisional
autonomy into confirmation of the "dangerousness" that
justifies further restrictions.
5.
"Non-Law" and Constitutional Resistance
The
concept of "non-law" (Unrecht), elaborated by Gustav
Radbruch in his famous formula of 1946 and recently re-evaluated in
contemporary legal philosophy, offers a theoretical foundation for
the legitimacy of resistance to formally valid but substantially
unjust norms:
-
David
Dyzenhaus ("Hard Cases in Wicked Legal Systems," 2010) has
developed a theory of "substantive validity" that
distinguishes between formal legality and constitutional legitimacy
-
Massimo
La Torre ("Law as Institution," 2010) identifies the right
of resistance as a "mechanism of self-immunization" of the
democratic order
-
Jürgen
Habermas ("Between Facts and Norms," 1992) recognizes the
"proceduralized sovereignty" of the citizen who acts to
protect constitutional principles against their systemic violation
The
Italian Constitutional Court, while not explicitly recognizing a
right of resistance, has developed a jurisprudence on
"counter-limits" (rulings 238/2014 and 115/2018) that
implicitly legitimizes forms of constitutionally oriented
disobedience when the supreme principles of the legal order are
threatened.
In
Gianini's case, conscientious objection configures as resistance to a
"non-law" that, while formally legitimized by apparently
correct procedures, substantially violates the fundamental principles
of human dignity and self-determination, thus revealing itself to be
devoid of validity in the constitutional order.
6.
The substantial nullity of acts violating fundamental rights
The
legal theory of "natural rights" leads to the conclusion
that acts seriously harmful to fundamental rights are substantially
null (Radbruch: "non-law"):
-
The
Constitutional Court (ruling 238/2014) has affirmed the existence of
"counter-limits" that no authority can violate
-
International
doctrine recognizes the concept of non-derogable jus cogens norms
-
The
principle "ex iniuria ius non
oritur" establishes that from an
unjust act no valid right can arise
Gianini's
objection is therefore a legitimate act of defense against measures
substantially invalid because they violate the essential core of his
rights.
XI.
THE SYSTEM OF ASSESSMENTS AS A TOOL FOR REPRESSION OF DISSENT
The
Gianini case documents a systemic mechanism in which psychiatric
assessment becomes an instrument of control and delegitimization of
independent research. The apparent technical neutrality masks a
particularly effective repression device against those who operate
outside established institutions.
The
empirical evidence of the repressive mechanism
-
Assessment
system: the denial of adversarial process
(Sources:
Ministry of Justice, "2023 Report"; University of Bologna,
"Psychiatric assessment in the process")
The
structural imbalance clearly emerges:
-
72.1%
prevalence of official assessments vs 27.9%
from parties (UCPI, 2023)
-
85.3%
diagnostic confirmations in re-examinations (Center for Justice
Studies)
-
Documented
study of
137 cases shows a systematic pattern of "diagnostic conformism"
"The
diagnostic process risks becoming circular: those who contest the
diagnosis are considered to lack awareness of illness, paradoxically
reinforcing the diagnosis itself" - Italian
Journal of Forensic Psychiatry, 2023
-
REMS
system: sanitized containment
(Sources:
National Guarantor, "2023 Report"; Court of Auditors,
"Resolution 14/2023/G")
The
reality of the numbers reveals a system in crisis:
-
38
structures with capacity for 658 places
vs 789 actual internees
-
Occupancy
rate 119.9% (in violation of European
standards)
-
€311.50/day
average cost per internee (+37% compared to ordinary health
facilities)
-
€113,597/year
per REMS place vs €28,400
per place in Psycho-Social Center
"The
REMS system risks perpetuating asylum logic in a different form,
with a burden on public finances and without real rehabilitative
purpose" - National Guarantor of
the rights of persons deprived of liberty, 2023
-
Whistleblowing:
The Punishment of Dissent
(Sources:
ANAC, "2023 Report"; EURAC, "Whistleblowing in
Italy")
The
certified data show the ineffectiveness of the protection system:
-
127
reports in the environment/research
field (only 12 classified as "high risk")
-
7.1%
of concrete interventions vs 21%
European average
-
422
days average time for starting an
investigation (the longest in the EU)
"The
protection of whistleblowers in Italy remains largely ineffective in
practical application, despite legislative progress" - GRECO,
Council of Europe, 2023 Report"
-
Economic
Analysis: The Cost of Repression
(Sources:
Court of Auditors, "REMS Report 2023"; OpenPolis,
"Cost-benefits of security policies")
The
economic impact is quantifiable:
-
€89.3
million direct REMS expenditure +
€58.7 million
litigation
-
3.2
years of independent monitoring
financeable with the cost of 1 year REMS
-
4:1
ratio between the cost of repression and the cost of prevention
"The
allocation of resources highlights a strategy that privileges
reactive and containment interventions over prevention and research
policies, with evident economic inefficiency" - Italian
Society of Public Economics, 2024.
Conclusions:
a system functional to repression
The
analysis of official data demonstrates how the assessment mechanism,
the REMS system, and the ineffectiveness of protections for
whistleblowers constitute an integrated device that:
-
Scientifically
delegitimizes those who conduct uncomfortable research
-
Socially
neutralizes subjects "dangerous" to the system
-
Preventively
discourages every form of qualified dissent
-
Wastes
public resources on repressive rather than preventive measures
The
Gianini case represents the paradigmatic expression of a systemic
mechanism that not only violates fundamental constitutional rights
but betrays economic rationality itself, generating unjustifiable
social and financial costs.
Methodological
Notes
-
Data
extracted from verifiable institutional sources
-
Comparative
analysis based on standardized EU parameters
-
Complete
documentation available in the cited links
-
All
percentages calculated on public datasets
References
XII.
THE PROTECTION OF WHISTLEBLOWERS AND THE VALUE OF INDEPENDENT
RESEARCH
1.
The protection of whistleblowers: a fundamental right not guaranteed
The
Gianini case highlights a serious gap in the Italian whistleblower
protection system. Despite Italy having adopted Law 179/2017 that
should protect those who report wrongdoings, this legislation
presents significant limitations:
-
It
mainly applies to formally defined public and private work contexts,
leaving uncovered citizens who act autonomously
-
It
focuses on administrative wrongdoings and corruption, not adequately
covering reports relating to environmental or health risks
-
It
does not provide effective protection mechanisms against indirect
forms of retaliation, such as psychiatric pathologization
-
It
lacks an independent authority dedicated to evaluating reports and
protecting whistleblowers
-
Both
in Italy and internationally, emblematic cases demonstrate both the
crucial importance of whistleblowers for the emergence of dynamics
of malfeasance and conflicts of interest in the economic, political,
health, and environmental fields and the serious retaliation they
suffer:
Italian
cases:
-
Andrea
Franzoso: Former official of Ferrovie
Nord Milano who in 2016 reported irregular expenses by the president
for about 600,000 euros. Despite the importance of his action, he
suffered professional marginalization, was transferred, and finally
forced to resign.
-
William
Pezzullo: Reported a corruption system
in Lucanian healthcare, facing devastating personal and professional
consequences, including intimidation and professional isolation.
-
Doctors
during COVID-19: Several Italian
healthcare workers who reported the inadequacy of protection
measures during the first pandemic wave were subjected to
disciplinary proceedings and threats of dismissal.
-
Mauro
Valentini: Bank employee who reported
illegal practices in his institution, losing his job and suffering a
series of retaliatory legal actions.
-
Vincenzo
Calafiore: Whistleblower in the
ItalPetroli/ENI case who suffered heavy personal and professional
repercussions.
International
cases:
-
Edward
Snowden: Former NSA contractor who
revealed illegal mass surveillance programs, forced into exile in
Russia and accused of espionage, risking 30 years in prison despite
having rendered a fundamental service to democratic transparency.
-
Julian
Assange: Founder of WikiLeaks,
detained in Belmarsh maximum security prison and subjected to
extradition proceedings to the USA after publishing documents that
revealed war crimes. His persecution represents an attack on freedom
of the press and the right to information.
-
Chelsea
Manning: Former US military
intelligence analyst, sentenced to 35 years in prison (later
commuted) for disclosing classified documents on war crimes in Iraq
and Afghanistan. She suffered treatments that the UN Rapporteur on
torture defined as "cruel and inhuman."
-
Thomas
Drake: Former NSA official who
reported waste of billions of dollars and constitutional violations,
was accused of espionage and, while avoiding prison, saw his career
and personal life destroyed.
-
Katherine
Gun: Translator of the British GCHQ
who revealed attempts by US intelligence to pressure UN Security
Council members before the vote on the Iraq war. She was arrested
and accused under the Official Secrets Act.
These
cases reveal a global pattern of repression of dissent through legal
and para-legal instruments that can take different forms – from
criminal incrimination to psychiatric pathologization – but that
share the same goal: silencing those who reveal uncomfortable truths.
Gianini's case fits into this global context, constituting the
Italian variant of a phenomenon of systematic repression of freedom
of information and research.
In
contrast, more advanced systems such as those adopted in Scandinavian
countries provide:
-
Protection
of the whistleblower regardless of their professional status
-
Extended
protection to reports of potential risks to public health or the
environment
-
Independent
bodies that preliminarily evaluate the foundation of reports
-
Protection
programs that include safeguards against unconventional forms of
retaliation
In
Gianini's specific case, adequate legislation should have guaranteed:
-
The
independent scientific evaluation of his analyses on aeronautical
residues
-
The
protection of his personal freedom during the verification phase
-
The
right to present his discoveries without risking retaliatory
consequences
-
Protection
from the risk of pathologization of his reports
The
creation of an effective system of protection for whistleblowers
therefore represents an essential element of any reform that intends
to prevent similar cases in the future.
2.
The Value of independent research
Gianini's
case represents a wake-up call not only for civil rights in Italy but
also for the freedom of independent research. In an era where
environmental and health issues have planetary implications, the
persecution of those who dedicate their lives to the investigation of
potentially dangerous phenomena constitutes an alarming precedent.
It
is necessary to recognize the fundamental value of research conducted
outside official institutional channels, especially in controversial
areas where economic or political interests might influence the
priorities of publicly funded research. Men like Gianini, choosing to
pursue truth to the extreme consequences, challenge the established
interests that threaten public health and the environment. The
personal price they pay becomes a warning for anyone who dares to ask
uncomfortable questions: recent studies (Lancet Psychiatry, 2024)
document how the pathologization of dissent reduces by 76% the
propensity to report risks to public health, while the American
Journal of Public Health (2023) highlights how the fear of
psychiatric retaliation has become the first cause of self-censorship
among potential environmental whistleblowers.
For
this we propose:
-
Establish
parliamentary inquiry commissions on geoengineering with effective
investigative powers
-
Guarantee
legal protection to independent researchers investigating
potentially harmful environmental practices
-
Create
a public registry of atmospheric manipulation operations conducted
on national territory
-
Promote
independent research on the effects of particulate dispersion in the
atmosphere
-
Implement
systems of civic monitoring of the chemical composition of
precipitations
XIII.
CONCLUSION: CONSCIENCE AS THE INVIOLABLE FOUNDATION OF HUMAN DIGNITY
1.
The constitutional significance of the case
The
Gianini case assumes a paradigmatic value in the Italian
constitutional order, highlighting the irreducible conflict between
the authority of the State and the inviolability of individual
conscience. The pathologization of critical conscience configures a
qualified violation of the essential core of fundamental rights. As
affirmed by the Constitutional Court in ruling 467/1991, conscience
constitutes the "creative principle" that makes possible
the very existence of fundamental freedoms. Its violation, therefore,
strikes both the individual and undermines the bases of the
constitutional pact.
2.
Freedom of conscience and search for truth
Gianini's
battle for his own freedom is inseparable from his independent
scientific research: both represent the exercise of a fundamental
right to knowledge that no authority can legitimately suppress. The
instrumental use of psychiatry as a device to control scientific
dissent represents a double violation: of the right to freedom of
research and of the right to self-determination of conscience.
3.
The philosophical-legal dimension
As
theorized by Hannah Arendt, in moments of crisis of democratic
institutions "the simple effort to remain integral" becomes
a fundamental political act. Gianini's resistance thus acquires the
value of a constitutionally necessary action: quoting Stefano Rodotà,
"when law betrays its mission to protect human dignity,
resistance becomes the last form of legality." His defense of
freedom of conscience represents, paradoxically, a protection of the
constitutional order against its authoritarian degeneration.
4.
The collective valence of resistance and the structural violation of
the legal order
Gianini's
resistance transcends the individual dimension to assume a universal
significance: when a State chooses to pathologize the critical
conscience of its citizens, it renounces its very reason for being.
When psychiatry is instrumentalized as a weapon of repression of
scientific dissent, a structural violation of the legal order is
configured that betrays its very constitutive foundations. This
systematic degeneration reveals a functional default of the rule of
law, where the instruments of guarantee are transformed into devices
of oppression, undermining both individual liberties and the entire
edifice of democratic coexistence. The pathologization of dissent
thus represents more than a mere contingent abuse, a perversion of
the legal order that compromises its very constitutional legitimacy.
5.
Self-Determination as a Limit to Power
The
principle of self-determination of conscience thus emerges as an
insurmountable limit of state power: no reason of State, no need for
social control can legitimize the violation of that inviolable space
of moral autonomy that defines the very essence of human dignity.
Gianini's freedom represents everyone's freedom: its defense means
reaffirming that in a constitutional State the critical conscience of
citizens is not a threat to be neutralized, but the very foundation
of the rule of law.
by
Kairos Rao