Per la libertà di movimento, per i diritti di cittadinanza

Exclusion according to Bossi-Fini law

Some courts sentences

According to Bossi-Fini law instructions, exclusion must be immediately proceeded via taking the person to the borders, with no chance to appeal or safeguard. There’s the theorical chance of appealing exclusion within 60 days via Italian embassies where a lawyer, holding a special proxy, is designated. Of coarse finding from abroad such a lawyer is very hard.
When exclusion can’t be proceeded, the internment in centri di permanenza temporanea (cpt – detention centres) is provided for by law. In case holding the person inside a cpt is not possible or detention times elapsed (60 days) the head of police administration orders the migrant citizen to leave Italian territory within 5 days, otherwise arrest is to come. Conviction provides for a six months to a year detention.
Consolidated act art. 14 paragraph 5 bis states that “When detaing the person in detention centres facilities, or the 60 days elapsed, head of police administration orders the foreign person to leave Italian territory within five days. The order is written and specifies all penal consequencies in case of infringement”.

Penal consequencies are then specified in the art. 14 following paragraph 5 ter “Any foreign person staying in Italy with no justified reason in violation to head of police administration orders is punished via six months to a year detention. In such cases a new exclusion is enacted via physically taking the person to borders”.

In case a foreign person is found staying in Italy after detention and exclusion, he/she will be condemned to detention (minimum for a year maximum four years).

Magistrateship has recently started to study the application and interpretation of such rules. A recent sentence occurred in Turin is particularly interesting. The sentence studies the violation to the above quoted order. The judge takes into consideration the injuction as an order to self-expulsion which is considered by law as a residual extreme hypotesis. In fact rules provide for the taking to borders or the cpt detention.
Turin court underlines that since self-expulsion is a residual hypotesis the six months to a year arrest towards a person that could be easily taken to borders or to a detention centre shouldn’t be lawful.
In other words, the judge considers that police headquarters are obliged to show the reasons for which the taking to borders or the detention inside a cpt wasn’t technically possible.
As a result, when the quoted measures are not followed and the intimation to leave Italy within five days is immediately ordered we are facing an unlawful administrative measure.
On the other hand this measure is the presupposition to arrest.
Turin court rightly goes on stating that in case a lawful measure is from the beginning missing on the penal point of view crimes connected to art. 14 paragraph 5 ter do not exist and therefore the accused person is to be discharged because the fact doesn’t exist.

An important principle is now established, it represents the rightful interpretation of the rule: arrest because a person doesn’t leave Italian territory can occur but it can come ONLY if taking to borders or detention in cpts is objectively impossible. In case police headquarters does not justify this, they cannot possibly immediately order the foreign person to leave Italy within five days nor have he/she arrested as a consequence of not departing from the state.

On the other hand the same art. 14 paragraph 5 ter provides for arrest but a justified reason is ANYWAY compulsory. This means that in case a person doesn’t leave Italy within five days an examination of the fact is needed before the sentence occurs.

Another sentence comes from Ventimiglia court. This sentence, which concerns a clandestine Iraqi Kurd citizen previously ordered exclusion, offers a very interesting interpretation applyable to many cases.

The person wasn’t taken to borders nor was he detained in a cpt (and in case he was held at the end of the 60 days he wasn’t taken to borders).
This Kurd citizen was ordered to leave Italy within five days, which he didn’t respect. His reasons are the same of the ones that stopped police from taking him to borders. In fact there are no ways to take him to Iraqi Kurdistan (there are no air companies nor flights), in addition to this he would risk life if handed over Iraqi police.
Ventimiglia court considered the fact of not leaving Italy as clearly justified. In the sentence, court widely explains the reasons which exclude the crime existence in this case.
Criminal court, this is what stated in the sentence, needs to verify the lawfulness of administrative measure (being the assumption of the crime).
Ventimiglia court goes on underlining that deporting a migrant citizen to a country where he/she would be persecuted would be illegal according to our constitution and to the Geneva Convention on refugees. In this case the exclusion cannot occur as stated by immigration consolidated act art. 19. Therefore the administrative measure is to be considered illegal.

Many other cases could be taken into consideration. For example, people not having the money for the journey back home, people not having obtained the documents needed to repatriate. Of coarse all must be demonstrated and therefore when being ordered to leave Italy within five days the impossibility to do so must be certified. You can easily send a registered letter to the police station which ordered exclusion asking for the suspension of the order while awaiting for the documents needed. When not holding money, you can ask to be repatriated at police expenses as it happens when taken to borders.