Bossi Fini law introduced serious sanctions and non-existent grants towards irregular migrant citizens who can be excluded as well.
A new fine is being introduced, this fine is provided for by art. 14 paragraph 5 ter, which states that “foreign citizens living without any justified reason in the state territory, in violation to questore’s instruction (paragraph 5 ter), are to be arrested – minimum 6 months up to year detention – in case they cannot be taken to borders”. Paragraph 5 particularly states that “crimes connected to paragraph 5 ter and 5 quarter are to be immediately arrested and straightforwarded to court”.
Therefore any foreign person being excluded and not leaving Italy is punished via a six months up to one year period detention. This is what the law states.
Asgi and the Giuristi Democratici group launched an appeal (link) which underlines the evident adnormal situation created by this sanction and also underlines the violation of Constitutional fundamental principles. In case of simple fines (such as staying in Italy despite espulsion orders) magistrates cannot order precautionary measures. This is to say that precautionary detention is NEVER provided for by our set of rules when sentencing minor crimes for which a fine is expected. The appeal underlines that though law provides for arrest in the act of the crime the migrant citizen is immediately released because no precautionary measures are allowed for a fine.
Unione delle Camere Penali Italiane clearly answered the appeal (mail), this union adhered the appeal and thinks the same on the above quoted instructions (which provide for mandatory detention) in fact depriving individual freedom is against to our Constitutional rights. Past 27 october pm Prodromo, in Florence, raised the problem of constitutional legacy of that law:
“According to the magistrate, the law violates art. 3 of Italian Constitution because it discriminates migrants citizens: migrants are to be arrestedbecause of a fine according to Bossi-Fini law whereas criminal code requires only a fine for much serious crimes. Our system provides for detention only in serious situations and detention cannot come in cases of illegal immigration.”
We are looking forward to the Constitutional Court pronunciation to come. This will take long but we are extremely happy that even people not dayly concerned with migrants are recognizing the evident violation to Constitutional laws.
This rule of the law is also vaguely exspressed. It talks of migrants staying in Italy in unjustified way, but what is justified or not is not explained. We are referring to people without the money to return home, people not holding documents or people fleeing from persecutions.
In the past Constitutional Court declared illegal the fact that a migrant person could be arrested when that person is not showing documents. I hope that the same court will state the same now.
The ones writing the law didn’t probably understand of the contradiction when providing for mandatory detention, anyway courts cannot sentence detention in case of fines.
We will underline the great Bossi-Fini gaps, starting off from residence contract rules which do not explain whether it will be a residence permit or not. We do not know either whether residence contract is to be renewed every year or is to redone every year. Law is not clear and it cannot simply be read by memorandums instructions that can only order the correct application of law.