“Pantheon occupied”

On the morning of Thursday 14 September, the Roman basilica of Santa Maria ad Martyres - located as it is known in the monumental site of the Pantheon - was the scene of a protest demonstration. Specifically, the basilica was occupied by members of the 'Vele di Scampia' Committee, who were protesting against the cut in Pnrr resources earmarked for the urban regeneration project in the Neapolitan district (https://www.avvenire.it/attualita/pagine/pantheon-occupato).

The occupation ended following the intervention of law enforcement who carried out the eviction of the basilica. The protesters then moved into the latter's pronaos, remaining there for a few hours (https://www.ilmessaggero.it/vaticano/protesta_pantheon_vicariato_polizia_sgombero_manifestanti_vele_scampia_governo-7631899.html?refresh_ce).

The following day, on the website of the Diocese of Rome, a note was published containing the declaration of the Archpriest Rector of the basilica, in which he pointed out first of all that the aforementioned intervention by the police had been autonomously requested by the “Head of the State Museums of the City of Rome”. This report was accompanied by two remarks: one explanatory, aimed at specifying that it was the Ministry of Culture that was “in charge of the direct management of the Pantheon... a state property”; the other, informative, aimed at pointing out that after the eviction, the monument had been “temporarily closed to the public”.

In the continuation of the note, the most salient ecclesiastical aspect was outlined, concentrating on the highlighting of certain dystonias that had occurred with respect to what is provided for in the pactional normative complex.

In particular, in this regard, reference was made to Article 5, par. 2 of Law no. 121 of 1985 (implementing the Villa Madama Agreement), which provides that “Except in cases of urgent necessity, the police force shall not enter buildings open to worship for the purpose of carrying out its duties without first advising the ecclesiastical authority thereof”.

In the first place, the reference was intended to cast great doubt - according to the Rector - that on this occasion the events had been of such critical intensity as to render operative the safeguard clause at the beginning of the provision, i.e. the occurrence of a case of 'urgent necessity'.

The second (and more penetrating) clarification, then, was centred on the lack of compliance with the (remaining) provisions of the Agreement of 1984, since the eviction had been "ordered without notifying or involving the competent Ecclesiastical Authority in any way", and since "the police forces ... entered the basilica without having been called by the Archpriest Rector and without the necessary consent of the same".

Well, in this regard - referring to a more complete technical-legal examination of the events that occurred, and in particular of the above-mentioned remarks - some summary/minimal hints can be given here,  to focus on some specific reasons that appear to underlie the urgency felt by the Vicariate in issuing the note in question (beyond from the most evident one, i.e. to illuminate the dynamics of events with respect to a situation that is indeed peculiar and not easy to decipher for the uninitiated, such as the coincidence in a single complex of an exceptional vestige of Roman antiquity under the management of the MiC, through one of its peripheral units - the aforementioned "Direzione Musei Statali del Comune di Roma" - and a sacred building of the Catholicity where worship has been celebrated continuously for centuries, all the more endowing as basilica a special bond with the Church of Rome and the Roman Pontiff).

In the first instance, there seems to be a perceived opportunity to emphasise the existence of a particular regime of bilateral production, with the annexed international-concordatarian commitments to apply it punctually and in good faith.

As in other cases, in fact, from the other side of the Tiber comes a sort of singular reminder: concerning, after all, the application of a provision contained in a state law.

In the case in question, then, concerning a building of worship, what stands out is the fact that that provision reiterates a directrix already to be found in the Concordat of 1929, which in turn follows a general and traditional principle of Italian legislation, to be found as far back as the Civil Code of 1865.

 The principle is to respect the proper function of such immovable property (to serve directly for worship) by correlating to it a particular legal regime, consistent with that function.

As for the directrix, reflected in the current text of art. 5, par. 2 of the Agreement of Revision (as already in art. 9 of the 1929 Concordat), it delimits and conditions, in the aforementioned sense, the sphere of intervention of the law enforcement agencies in order to give concrete expression to the aforementioned principle, which underlies the idea of a State that considers the destination of worship as responding to a superior general interest.

As noted in doctrine (yesterday as today), then, that same directrix also asseverates a sort of logical corollary (descending from said principle), which calls for the intervention of the ecclesiastical authority, as such, regardless of whether or not it owns the building (in the case in point, it does not), with regard to the disposition of said buildings, allowing - among other things - the access of the law enforcement for the exercise of their functions. Hence the meaning of a provision that is independent from the subject who owns the building, and that in function of the opening to worship - an interest, as said, qualified as 'superior', serving both the libertas Ecclesiae and, as a reflection, the religious needs of the faithful - attributes to the ecclesiastical authority a conductive prerogative, to which is correlated a strong limitation of traditional public powers.

And that the limitation is intense, and therefore that the provision has a truly stringent content, appears confirmed first of all by two elements.

The first is the support in this sense provided by a Ministerial Circular issued on 20 July 1929 (with reference to the provision of Art. 9 of the Concordat that is relevant here, substantially reproduced in today's Art. 5, par. 2 of the Agreement) where it is established that the clause of "urgent necessity", the only one that makes autonomous intervention by the police force possible, "must be understood in a truly exceptional sense, taking into consideration the various circumstances inherent in the purpose" set by the latter.

The second is the clue to be found in the will of the Pactional Legislator (reiterated in 1984) not to specify the formal characteristics of the notice that the police must - in the absence of urgent necessity - give of the entry into the place of worship; limiting itself to providing that such an act be ‘prior’. This inevitably reinforcing the need for this temporal requirement to be observed in the generality of cases; and emphasising its quality as a stringent legislative canon, placed to guarantee respect for the function performed by places of worship, which framed in the light of the Republican Charter appears to be closely connected to the constitutional importance of the religious interests they aim to satisfy (Article 19 of the Constitution).

Lastly, in this regard, it can be hypothesised that the drafting of the note is also driven by more general considerations, which flank the focus on the evident ratio of the concordat norm (balancing the needs of justice with safeguarding the elective function of sacred places), concentrating on the desirability of a persistent operational register of collaboration between the two orders, reducing the margins of conflict to a minimum.

The hypothesis appears convincing, if only one considers that even in this case the unspoken invitation, in essence, would translate into a request to keep in mind the cogency of a guideline contained in the executive law of the Agreement: the crucial one of Article 1, which that "mutual collaboration" in the distinction of the respective competences assumes as the hermeneutic cornerstone of the State-Church dialectic in the country, in view of the common good and the promotion of the human person.

And given that in this case we are talking about a place of worship immersed in a setting of extraordinary cultural importance, it is important to bear in mind that the only provision of the Agreement that fully reflects this specific cooperative commitment is the one (art. 12, par. 1) that calls on the Republic and the Holy See to commit themselves together to the protection of the entire national historical and artistic heritage (in keeping with the broad notion of art. 9 of the Constitution). A provision that outlines the main road of concerted solutions, in favour of the different instances of apex level kept in mind by the two orbits: such as the one, to remain at the place in question, which led a few months ago - on 16 March 2023 - the MiC and the Chapter of the Basilica to sign an innovative convention on the regulation of the use of the latter, all focused first of all on the need to summarise the needs felt by both parties with respect to the salient fact of the uniqueness of the structure and the values connected to it ((https://www.diocesidiroma.it/la-nuova-convenzione-tra-il-pantheon-e-il-ministero-della-cultura/).

Fabiano Di Prima