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Ministry of Interior last memorandum: some reflections

This memorandum concerns the widespread problem of foreign citizens sentenced of some crimes. Today (on basis of Bossi-Fini law art.4) these people risk of losing papers since new law provides for that residence papers release and renewal must be rejected.

This memorandum interprets the above quoted issues and it appeared September 17 on press agencies but we haven’t seen the text so far. Lega has already said that such memorandum deeply changes Bossi-fini law sense.

The text of the decree is made up of two pages and was sent to all prefects through out Italy in order to “correctly interpret rules and instructions”. Memorandum seems to underline that law cannot be retroactive. New instructions practically concern new entries in Italian territories and residence papers renewals coming after the enactment of Bossi-Fini law.

Memorandum clearly underlines that police head of administration is entitled to reject entried of migrants sentenced of determined crimes (criminal code art. 380 paragraph 1 and 2) while the same memorandum is not so clearon residence papers renewals.

In other words according to the memorandum this new rule introduced by Bossi-Fini law would prevent sentenced migrants from entering Italian territories even if holding all requisites provided for by law (example: flows decree quota). On the other hand, the rejection of papers renewal wouldn’t automatically come but police offices need to discretionally evaluate the person everyday behaviour, his/her social integration, his/her family conditions in the country of origin.
The same occurs when renewing papers of people sentenced before the new law enactment.

It often happens that fingerprints (made compulsory by Bossi-Fini law) show sentences.
Example: a regularized in previous pardons person who has never received charges or sentences finds out of some small crimes committed when he/she was still living under clandestinity maybe because of having given a false name in. Other extremely unimprotant crimes, such as selling counterfeited goods, “stealing” electricity (the so called “misery” crimes), are now often used by many police headquarters and automatically involve residence papers renewal rejection. When this happens expulsion would immediately be ordered.

According to the memorandum what quoted above should not automatically occur but police would be obliged (in a discretional way) to evaluate the whole person behaviour.

It comes quite clear that this memorandum was thought to avoid huge numbers of papers renewal denials to people who were charged or sentenced because of misery crimes.
We shall see how the memorandum will be applied, whether it will stop automatic rejections, which we everyday face in almost all police headquarters, or not.
We anyway need to underline that this new instructions introduced by Bossi-fini law open some interpretative problems, in fact the lawfulness of excluding entries in Italy and also papers renewals according to crimes committed before the enactment of actual immigration law is to be discussed.
In other words, we shall see which guidelines the magistrateship will adopt on the effettivity of such automatism especially talking about the problem of retroactivity of law as provided for by law to behaviours occurring before the enactment of actual set of rules. Distinctions between sentences emanated during the trial or coming with bargaining agreements can or must be taken into consideration.
Bargaining agreements hold a general principle according to which complete evaluation of the facts is not compulsory therefore they cannot have an automatic consequence outside criminal court and this means that these consequences cannot occur in administrative proceedings such as papers renewal.
Magistrateship studied some similar issues connected to the non retroactivity of rules that consider that people sentenced, before the enactment of law, cannot be employed in public administration. Magistrateship states that this can be accepted only in case of sentences coming subsequentely law enforcement. This especially concerns crimes sentences via bargaining agreements.

We cannot of coarse guess what’s to come but we shouldn’t believe that each sentence because of crimes connected to criminal code art. 380, coming before new law enactment, will lead to residence papers rejection.
Memorandum seems to follow this path in order not to have people thrown into clandestinity after many years of regular stay.
We shall see whether this memorandum will be applied or not since Lega is opposing it. We hope that common and practical sense will overcome political debacles. In case all those people are put into clandestinity, this would go against the same government interests.
In fact this would take to opposite results to the one law wants to reach, this is to say favouring legality.

[ 6 ottobre 2003 ]