Dipartimento Amministrazione Penitenziaria (i.e. department in charge of the administration of houses of detentions) published data concerning the expulsions of foreign detainees who were freed from houses of detention in order to be repatriated as implied by Bossi-Fini law.
Data were published during the meeting between Minister Castelli and the President of the Tribunal of surveillance, the meeting took place in Rome. Giovanni Trineba, head of Dipartimento Amministrazione Penitenziaria, Emilio Di Somma, vice-president of the same department and Giovanni Tamburino, head of Ufficio Studi Dipartimento Amministrazione Penitenziaria spoke at this meeting. Pierluigi Vigna, head of Direzione Nazionale Antimafia was also there.
1553 foreign detainees were freed from houses of detention in order to be repatriated, according to given data. These expulsions took place from October 2002 to February 29th 2003. A synoptic scheme, produced by the department, shows the enormous difference before and after Bossi-Fini law (law 189/2002) enactment.
Example – In January 2002 29 foreign detainees were freed to be repatriated, in January 2004 85 foreigners were expelled. Up to Martelli law enactment the everage of expulsions was 20-25, 30 the most. From October 2002 on expelled detainees increased in numbers, today numbers have stabilized: a minimum of 70 up to a maximum of 120.
These data, which are not easy to read, refer to the whole of foreign detainees that are to be expelled. The synoptic scheme underlines the following cases:
. expulsion occurs after detention as a security measure – this is rather a rare case which concerns cases of citizens who were both sentenced to prison and to expulsion by Court.
. expulsion is ordered by the surveillance magistrate against detainees whose detention (also residual detention) does not exceed two years.
. Juridical authorities order order expulsion as a substitute to detention in case this should last less than two years.
These last two hypotheses are provided for by Immigration consolidated act art. 16, which was introduced by Boss-fini law. The hypothesis of expulsion as a mere administrative sanction to the violation of immigration laws comes next to the quoted instructions. Given data do not allow to the understanding of each case situation. Understanding numbers of expulsions linked to consolidated act art. 16 would be very interesting.
We have already talked about a Cassation court sentence that affirms the principle that lays under the quoted instructions – and we sincerely hope that this interpretation of law does not become widespread. This principle states that alternative to detention measures cannot be applied in case of detainees that are clandestines. The sentence, which represents a precedent, states that alternative to detention measures are not compatible in case of clandestine foreigners. This sentence leaves us uncertain, we shall see what happens next, whether magistrateship will follow this interpretation or not, whether Surveillance magistrates will raise objections on the constitutionality of the same quoted sentence or not. The sentence we are talking about in fact shows that EU citizens have different rights in comparison to non-EU citizens. Foreigners holding residence papers have then more rights than the ones who have no documents.
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March 17th the preliminary audience judge of Turin Court, Silvia Bersano Belger, asked Constitutional Court to express itself on the lawfulness of Immigration Consolidated act art. 12 paragraph 1 as changed and integrated by Bossi-Fini law.
This article talks about the crime of aiding illegal immigration both to and out of Italian territory. In other words, this law article, as changed by Bossi-Fini law, punishes both the ones aiding illegal entries and the ones aiding illegal immigration towards other EU and non-EU countries. Law exactly says that any action aiding illegal entries of citizens who are not entitled to stay in the country’s territory is to be punished.
Guilty citizens are punished via detention (up to three years) and fine (up to 15,000 Euro).
This new offense category raised many debates because understanding whether entries in other countries are lawful or not is very difficult, it implies that the country’s laws must be studied time by time. How can someone establish that eventual actions and behaviours that prepare the exit from Italian territory will lead to the illegal entry in another country? How can the route towards another country be established?
In fact understanding where migrants are moving to has never been easy.
The judge in Turin took care of just one of the numerous cases concerning people implied in trials against clandestines’ trade. The specific case was about a person who was charged of connecting some citizens coming from his same country of origin (and illegally living n Italy) with others who helped them in moving towards other countries. Contacts were occasional ones and their aim was to help – without making money from it – compatriots’ journeys. The judge wonders whether this rule is compatible with the principles stated in our regulation and in particular in our Constitution or not. In fact this rule is defined as ‘blank’, this means that it gives the chance of punishing actions and behaviours that are not exactly defined and this violates the constitutional principle (art. 25 Italian Constitution) according to which “Noone can be punished because of facts that are not explictly defined by law as crimes”.
Punishing someone because of facts that are not specifically defined or cannot be defined goes against Constitution. The judge in Turin underlines this and considers that anytime this kind of cases are to be sentenced courts would not know which law is being broken (in Italy illegal immigration is ruled upon not emigration!). Anytime this happens foreign laws would need to be studied. This is the greatest problem.
We shall now study the most common and occurring situations. Law provides for that people helping others, who illegally live in Italy, in leaving the territory can be punished.
For istance a citizen who drives a relative of his/her own back to their country of origin can be sentenced because of having helped illegal emigration and of having driven through a third country.
Example – A person needing lo return lo Moldova or Romania must pass through Austria, Hungary, etc. In such a case the help received to such a journey is punished. Some criminal proceedings have already started. A residence papers holder stopped in the highway while driving towards Moldova can be reported of a crime if police finds out that, for istance, he/she is travelling with a person without papers. The risk is a three-year detention and a 15,000 Euro fine each.
A relative, a compatriot that gives a lift back home can be easily charged of a crime. The same risk can be run in case of icthhikers.
We still do not know what’s to happen in case a person wants to return home via ferry, for example. This person risks the same while travelling throughinternational seas.
The interpretation of Turin court, that underlines the potential violation of Constitutional principles, can be an interesting hint for the defense. We also hope that Constitutional court agrees on this matter.
The rule we are actually studying makes things difficult, a person who is travelling back home after a regular period of employment in seasonal jobs could be charged of a crime and expulsion from Italy and from other countries as well because he/she is returning home. An eventual escort would risk the same.
The risk lays in the activity run in Italy, which is supposely aiding emigration lo third countries.
The idea of “actions that favour entries” also refers to another series of behaviours that are not well defined and that can lead to same charges. Theoretically speaking paying the travel ticket could be considered a crime as well since it helps the interested person to pass through other countries. Everything worsens the situation. Not only the so-called passeurs are punished but also many other citizens since Immigration consolidated act art. 12 paragraph 1 refers to actions and behaviours that can also be free from payment.
The case Turin court evaluated the charged person did not earn money out of what he was doing nor did he want to earn anything when connecting citizens with passeurs. The sole connection is then considered a crime.