Is the Bossi-Fini Law (L.

189/2002) in compliance with arts 2 and 26 of the International Covenant on Civil and Political Rights?

Mario Umberto Tramontano

1

Acknowledgments This research paper would not have been possible without the support of many people, all of whom I cannot possibly thank here. However, I would like to thank a few of them directly. First, I would like to thank my supervisor Natalia Szablewska for all the support and encouragement she has shown me throughout during the writing of my paper. I would also like to thank my sisters Michela and Antonella whose advices were vital to my research. Finally, none of this would have been possible without the support of my friends. In particular I want to thank Vico for his patience and help. And to my parents, whose love and sacrifice have made it possible for me to study what I have always wanted to.

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Abstract The Italian government has shifted its approach to immigration by introducing a revolutionary bill based on zero tolerance against irregular migrants. Among other things, the Bossi-Fini Law (L.189/2002) established an “aggravating circumstance” which envisages an increase of punishment for migrants as well as different provisions that tend to criminalise irregulars. The system of annual quotas serves as a way of selecting those who are allowed to work, whereas the requirement to have a job before entering the country de facto fosters illegality. The ultimate aim of the legislation seems to be the criminalisation of the migrant population so as to allow detention and/or repatriation. Yet, the differential regime may lack the required valid justification, reasonableness and objectivity demanded by arts 2 and 26 of the ICCPR on the principle of equality before the law and non-discrimination. In order to test whether said legislation violates Italian international obligations, I will use a legal interpretative method based particularly on guidelines provided by both the Italian Civil Code and the Vienna Convention on the Law of Treaties. By analysing the jurisprudence of the Italian Constitutional Court and the Human Rights Committee I will assess the aforementioned test. The variety of sources used follow art.38 of the International Court of Justice Statute that codifies the sources of international law. I argue that the implementation overtime of L.189/2002 has put Italy in breach of its international obligations under arts 2 and 26 of the ICCPR. Despite recognising equality before the law and non-discrimination in its Constitution, the inconsistent and politically influenced process of constitutional review has allowed for some gaps in the protection of migrants from discrimination as conceived by the Human Rights Committee in its jurisprudence.

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Table of Cases Human Rights Committee Gueye v. France (196/1983) S.W.M. Broeks v. Netherlands (172/1984) In Danning v. Netherlands (180/1984) Vos v. Netherlands (218/1986) Sprenger v. Netherlands (395/1990) Oulajin and Kaiss v. Netherlands (426/1990) A.P.L.-v.d.M. v. Netherlands (478/1991) Simunek v. Czech Republic (516/1992) Somers v. Hungary (566/1993) Nahlik v. Austria (608/1995) Blazek, et al. V. Czech Republic (857/1999) Mumtaz v. Austria (965/2000) ICJ Barcelona Traction case [(Belgium v Spain) (Second Phase)], ICJ Rep 1970

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Table of abbreviations CEDAW CERD CRC CTPA ECJ ECHR ECtHR EU HR HRL HRS HRW IACHR ICCPR ICESCR ICJ PDL UDHR UNESCO TU VCLTR Convention on the Elimination of Discrimination Against Women Convention against all forms of racial discrimination Convention on the rights of the child Centre for temporary permanence and authentication European Court of Justice European Charter of Human Rights European Court of Human Rights European Union Human Rights Human Rights Law Human Rights Standards Human Rights Watch Inter-American Court of Human Rights International Covenant on Civil and Political Rights International Covenant on Economic Social and Cultural Rights International Court of Justice Popolo della libertà Universal Declaration of Human Rights United Nations Educational, Scientific and Cultural Organization Testo Unico Vienna Convention on the Law of Treaties

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Glossary de facto de relato dolus or culpa erga omnes ex ante ex post facto in re ipsa jus cogens mens rea ne bis in idem nemo tenetur by [the] fact from others negligence or fault toward all before the event after the event in itself compelling law guilty mind not twice for the same no man is bound

nullum crimen sine legem no crime, no punishment without a previous penal law onus probandi per se prima facie ratio ratio decidendi sine qua non tempus commissi delicti burden of proof in itself at first face the rationale the rationale for the decision [a condition] without which it could not be when the crime was committed

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List of contents Acknowledgements Abstract Table of cases List of abbreviations Glossary Introduction Methodology Chapter
1.1 The Bossi-Fini Law 1.2 Criminalisation of immigration and expulsions. Part 1 Criminalisation of immigration and expulsions. Part 2 1.3 Principle of equality and non-discrimination in the Italian system 1.4 Bossi-Fini application and non-discrimination 1.5 Annual quotas and discrimination 1.6 The crime of illegal stay and its consequences

p.2 p.3 p.4 p.5 p.6 p.8-12 p.13-15 p.16-17 p.18-19 p.19-20 p.21-23 p.23-24 p.24-26 p.26-27 p.27

Conclusion Chapter
2.1 Arts 2 and 26 of the ICCPR and the Committee Jurisprudence 2.2 Other grounds for discrimination 2.3 Has the Committee established a threshold for discrimination? 2.4 Other International treaties

p.28-30 p.30-32 p.32-33 p.33-34 p.34

Conclusion
3.1 Introduction to the hypothesis testing 3.2 Does the Italian immigration bill respect arts 2 and 26 of the ICCPR? Part one Does the Italian immigration bill respect arts 2 and 26 of the ICCPR? Part two 3.3 Conclusion

p.35-36

p.36-37

p.37-39 p.39-40 p.41-55

Bibliography 7

Introduction Italy was a country of migrants1 for almost a century (Levinson 2005, 1). In the last twenty years there has been an increase in immigration which found Italians unprepared. According to Caritas (Caritas 2010) the total number of migrants in Italy is 3.600.000 of which roughly 100.000 are irregular. However, people get a different picture because of the exaggerated attention media has brought to the phenomenon. There is a sort of schizophrenia towards this topic which is reflected in the complexity and inconsistency of immigration bills. The Italian immigration Bill, as every norm, does not constitute a law in itself, but it adds something to a pre-existing normative framework (Zincone 2000, 959) which is also made of international obligations based on non-discrimination. As the InterAmerican Court of Human Rights (IACHR) puts it: “the State may not subordinate or condition the observance of the principle of equality before the law and nondiscrimination to achieving the goals of its public policies, whatever these may be, including those of migratory nature. This general principle must be guaranteed always” (IACHR AO 18, para 172). The Italian Constitutional Court, in fact, often provides guidelines for interpretation against discriminatory policies by analysing national, international and constitutional provisions. Some believe it does not distinguish between citizens and non-citizens, insofar as fundamental rights2 are concerned (Pace 2010; Corte Constituzionale 2006). For this reason there is an ongoing debate on whether the criminalisation of immigration is unconstitutional, since the right to personal freedom is fundamental (Santoro 2004). In the same fashion, the finest doctrine arose many doubts on the overlapping of administrative
1

I borrow the definition of Migrant from UNESCO: "a migrant is any person who lives temporarily or

permanently in a country where he or she was not born".
2

Arts 1 to 12 of the Constitution.

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and criminal offences concerning the illegal stay of migrants (and the principle ne bis in idem, not twice for the same). The European Court of Justice (ECJ) solved the arcane in a recent decision, and ruled that said offence is incompatible with European Union (EU) law which aims at using detention as a last resort only (C61/11 PPU; Catananti 2009). In truth many national Courts and scholars had already highlighted the inconsistencies of the criminalisation of migrants ex ante with the principle of equality embedded in the Italian Constitution (art.3 of the Constitution; Palermo 2010, 6-8). By the same token, it is generally agreed that ordinary judges may “dis-apply” national laws that go against “fundamental rights”, such as the rights to equality before the law and non-discrimination (Coppola 2009, 32-34), that protect citizens and non-citizens alike (Vignudelli 2005, 109). This is certainly due to the influence international law had on the drafting of the Italian Constitution (Cassese 1975, 461; Vignudelli 2005, 111-113) which is reflected in art.10 (1) that states: “the legal system of Italy conforms to the generally recognized principles of international law” and makes international customary law automatically applicable. Formally, the TU (Testo Unico) on immigration, as amended by the Bossi-Fini law, recognises migrants‟ fundamental rights at art.2. That notwithstanding, the Constitutional Court has continued to rule on a case by case basis on the law by amending important parts of it. Other decisions have also affected regional laws concerning migrants and the respect of family life (ruling 376/2000), personal freedom (rulings 222 and 223/2004) and finally the principle of non discrimination before the law (ruling 432/2005). In the last case a law which excluded foreigners from social benefits was deemed to be against the principle of equality (art.3 of the Constitution). In sum, all fundamental rights apply to every migrant legally or illegally residing on the Italian territory, and the Constitution is protecting individuals from

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purposively discriminatory laws that maybe passed by the Parliament. Yet, legislations‟ application may be either directly or indirectly discriminatory. Among other reasons, various bills dealing with migratory flows have been justified for fighting human trafficking. Nevertheless, such restrictive measures have merely put those exploited in the shadow, whilst exploiters often get away with their violations and migrants risk to pay the highest price, namely repatriation and/or criminalisation (Geddes 2008, 360; Gramaglia 2008, 2). This is chiefly due to the arbitrary system of annual quotas for migrant labour set in the immigration bill, which does not reflect the actual need for foreign labour in the tertiary sector, since Italy suffers a low birth rate3 (McCreight 2006, 123-125; Levinson 2005, 1-4; Levy 2005, 52; Wexler 2007, 389391; Geddes 2008, 351; 362). The constructed need for “securatisation” while “waiting for the Barbarians” (Maggiano 2009, 10-14) fuels racism justified by economic deprivation and criminalises migrants (Schuster 2003, 244-246; Totah 2003, 1477-1478, 1481-1482; Welch, Schuster 2005, 342-343; Hamood 2008, 35). However, this rhetoric is frequently delegitimized by practical and real issues (Zincone 2006, 366-368; Geddes 2008, 364). Caritas has proved in various researches that migrants‟ workforce is also benefiting state finances, as workers pay more taxes than they get back in social services (Caritas 2010; Repubblica 9/6/11). Yet, as Wexler points out, despite the considerable number of human rights (HR) treaties protecting migrants, there is a lack of resources for implementation and weak enforcement measures. This, however, does not make violations less grave, especially in regards to discrimination (Wexler 2007, 375-376, 359). International treaties protect individuals against discrimination and promote equality by establishing a burden on signatory
3

See Jovins, G. „Survay Italy”, Financial Times 22 July 2002, at 6 „Italian industry cannot survive

without help of migrant workers‟.

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states, that are obliged to take positive actions in that respect (McColgan 2003; Fischer-Lescano 2009, 258-262). To date, none of the literature has focused in particular on the universal right to equality before the law and non-discrimination of migrants. Instead, much has been written on the externalisation of immigration policies (Pirjola 2009; McColgan 2003; Wexler 2007). Similarly, there is no comprehensive study on immigration policies vis à vis arts 2 and 26 of the International Covenant on Civil and Political Rights (ICCPR). This study thus focuses on the latter and aims at filling the gap in the literature by carrying out a crisp research on the compatibility of the Italian international obligations, concerning in particular the principle of non-discrimination and equality before the law as conceived by arts 2 and 26 of the ICCPR and the application of the new controversial Immigration Bill. Often do we take for granted that democratic countries avoid direct and indirect discriminatory laws, however it is also possible that gaps in human rights law (HRL) and Constitutional rights give rise to de facto unjustified differential treatments. My argument is that the implementation overtime of L.189/2002 put Italy in breach of its international obligations, which prohibit discrimination erga omnes4 under arts 2 and 26 of the ICCPR. Despite recognising equality before the law and non-discrimination in its Constitution, the inconsistent and politically influenced process of constitutional review has allowed for some gaps in the protection of migrants from discrimination as conceived by the Human Rights Committee in its jurisprudence. The study proceeds as follow: first of all I explain my methodology. In chapter one I summarise the provisions of the Bossi-Fini Law referring back to the previous legislation. The first part focuses on the “aggravating circumstance” for migrants,

4

Barcelona Traction case [(Belgium v Spain) (Second Phase)], ICJ Rep 1970, para 33.

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different forms of detention and punishment for illegal “re-entrance”. This leads us to the criminalisation of migrants and its problematiques as underlined by the Constitutional Court. It follows a detailed analysis of the constitutional principle of non-discrimination and equality before the law through the lenses of the Supreme Court‟s5 jurisprudence and the Court of Cassation. I then highlight the potentially discriminating effects of the Bossi-Fini Law and spell out additional norms set within the immigration bill that cause apprehension insofar as non-discrimination is concerned. The system of annual quotas for migrants as well as the consequences of the crime of illegal stay are therefore addressed. Chapter two turns to arts 2 and 26 of the ICCPR. I scrutinize the Human Rights Committee‟s (the Committee hereafter) jurisprudence and general comments which shed some light on the interpretation and applicability of non-discrimination and equality before the law as provided by the Covenant6. I then refer to legitimate discrimination and positive obligations of the state. In conclusion, I assess whether the Committee has established a threshold for discrimination and I break down relevant provisions of international law in light of which ICCPR‟s articles should be interpreted. The clauses of non-discrimination, included in the Convention against all forms of racial discrimination (CERD), Convention on the Elimination of Discrimination Against Women (CEDAW), the Convention on the right of the Child (CRC) and the European Convention of Human Rights (ECHR) are used as a corollary for interpretation. This leads me to test whether or not the Italian immigration bill respects arts 2 and 26 of the ICCPR (Charter 3). I conclude by explaining my findings and consequences and thus the answer to the research question and the results of the hypothesis testing.
5 6

Supreme Court and Constitutional Court will be used interchangeably thereafter. When I use the Covenant, I refer to the ICCPR.

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Methodology Research question: is the Bossi-Fini Law (L.189/2002) in compliance with arts 2 and 26 of the ICCPR?

My main hypothesis is: the implementation overtime (from 2002 till present) of L.189/2002 has put Italy in breach of its international obligations in regard to ICCPR arts 2 and 26.

My methodology functions as follow: firstly, I use guidelines on interpretation in the pre-laws of the Italian Civil Code (art.12 cc)7 so as to assess the immigration bill and I take into account the process of constitutional review which affected said law and the relevant jurisprudence of the Constitutional Court. Secondly, in order to spell out arts 2 and 26 of the ICCPR, I resort to the Vienna Convention on the law of treaties (VCLT), which clarifies that treaties should be interpreted “in good faith in accordance with the ordinary meaning” of the terms and by contextualising it in respect of its aim and purpose. Additionally, any recurring practice (customs) or rules of international law (but also preparatory works – see VCLT art.32) are vital tools (VCLT art.31) for interpretation. In that respect the International Court of Justice (ICJ) adds that “international instruments must be interpreted [...] within the overall framework of the [international] judicial system in force at the time of interpretation” (ICJ Rep 1971). I therefore look at the relevant international law within both Charter and Treaty based mechanisms (The ICCPR Art.2, 26, ICERSC Art.3, CERD Art.1-78, CRC Art.1(2) and ECHR Art.14) and consequentially to the monitoring procedures set therein. For instance, I analyse the country report of the Committee and its

7

This article repeats the same concept expressed by art.32 of the VCLT.

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recommendations. I additionally read ICCPR arts 2 and 26 through the lens of the Committee‟s jurisprudence, that also follows art.31-32 VCLT insofar as interpretation is concerned. I look at all cases dealing with discrimination and equality before the law through the search engine of the Human Rights Commission website. I finally take into account advisory opinions, general comments and

recommendations referred to Italy, reports and concluding observations of Rapporteurs‟ missions which touch upon the issue under study. In sum, legal interpretation confers meaning to laws and treaty articles in the context of a specific dispute like the one highlighted by my research question. However, there may be some potential downsides to said approach. Whether or not a legal norm is respected depends on different aspects “on the ground” and it is not solely a matter of legal interpretation. To test whether the Bossi-Fini Law respects the principle of equality and non-discrimination, I could have used quantitative collection of data to measure statistically how many breaches of arts 2 and 26 of the ICCPR said legislation caused. Interviews or focus groups would have allowed me to capture some sociological aspects which my research lacks. However, none of these methods would have been adequate to answer my research question and test my hypothesis using the same instruments as a Court8. In other words, as one of the aims of this research is to show that Italian violations can allow migrants to get remedies via a legal individual complain9, this is the best method to do so. The research question is of fundamental importance as the clause of non-discrimination is a condition sine qua non in international law while Italy represents a peculiar case

8

Noteworthy, when assessing the ordinary meaning of a term the Court can use a multidisciplinary

approach by taking into account philosophical as well as sociological (like social observation of community life) and political factors.
9

no case has been brought to the Committee so far against Italy.

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due to its legal system. In fact, despite protecting individuals against discrimination in the Constitution (which is safeguarded by the Constitutional Court), ordinary laws, if not referred to the Supreme Court by national Courts, may still result in violations of HR. In case the hypothesis is refuted, the findings will still be politically relevant in supporting a strict approach to immigration and they will make such approach also legally compatible with international law. Finally, in order to limit inherent biases and allow the research to be as objective as possible, I use a variety of sources which in part follow art.38 of the ICJ statute on the sources of international law. Therefore, Treaties and Conventions, customs, general principles of law (i.e. non-discrimination) and jurisprudence of international Courts as well as scholarly articles. As far the time frame is concerned, I consider how the policy evolves from when it came into force till today.

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1.1 The Bossi-Fini Law The Parliament, through the legislative power, promulgates laws which add something to a pre-existing normative framework. The current Italian immigration law10 substitutes a previous text, the so called Turco-Napolitano law (L.40/1998), and establishes that migrants can be expelled by the Minister of Interior for security issues or public order, and by the head of the police if they entered the territory illegally and overstayed without applying for a visa (while lacking a valid justification) as well as when they committed a crime or contracted a false marriage. Unlike the Turco-Napolitano Law, they can still appeal the decree of expulsion within 30 days through an Italian embassy in their country. However, they need to be represented by an Italian lawyer and the order to leave the country remains valid (art.13 L.189/2002). Yet, the lack of legal aid and the absence from the territory make appeals difficult as embassies abroad generally receive the expulsion notification after the deadline of 30days and in this way the migrants right of defence is jeopardised (though the Constitutional Court rulings 198/2000 - 10/1993 called for the right of defence of irregular migrants to be respected by referring to art.14 of the ICCPR). Furthermore, migrants can also be expelled by a judge after they have been sentenced for crimes provided by arts 380 and 38111 of the Code of Criminal Procedure (art.15 L.189/2002) whenever they represent a threat to the society. The expulsion order is executed either through a simple notice or by escorting them near the border. In the former case migrants have 5 days12 to leave the country. Those

10

Italy is a parliamentary democracy based on the division of powers. The governments executes

laws voted by the parliament which is divided into two chambers (Deputy and Senate) while the judiciary power represented by Courts assesses when laws apply to reality.
11 12

Particularly grave crimes for which migrants are arrested in flagrant delict. A new Law (L.129/2011) extended this period to 7 days (Repubblica 2/08/11).

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who stay illegally can be incarcerated from 6 to 18 months13 in temporary detention centres called CTPAs (art.14.5-bis L.189/2002). In 2004 Mèdecins Sans Frontières exposed the inadequacy of most of these centres (MSF 2004, 190; HRC UPR 2010, 6; Special Rapporteur Racism 2007, 18-20; CERD General Recommendation XXX, para 19; Special Rapporteur Migrants 2005, para 87) and demanded them to be closed. The mere attempt to re-enter the country illegally is a crime in itself punished with a sentence from 1 to 4 years (art.14 dl 271/2004). This circumstance has undergone some changes due to the Constitutional Court ruling 226/2004 which regarded it to be irrational as sometimes the first order to leave the country is not enforced and therefore the crime of re-entering illegally is not committed (ruling 271/2004). Though the Supreme Court in a predated judgement underlined that no criminal norm “should be automatically linked to a subjective condition or status [which] [...] in itself is not socially dangerous” (ruling 78/2007; Catanati 2010, 19), to be an illegal migrant constitutes an “aggravating circumstance” which leads to a fast-track process (L.125/2008) (Catanati 2010, 16-17; Palermo 2010, 2; 6). In other words, the mere status of an individual becomes a reason for increasing the punishment and he is deemed to be in re ipsa a dangerous person (Catanati 2010, 4). Paradoxically, such increase of punishment can apply even to minors who have entered the territory illegally but have not yet received their temporary visa provided by law to protect them. Finally, it is also a crime the mere failure to show an ID (art.6(3) TU) without a valid justification. Part of the doctrine sees this requirement as subject to interpretation. Consequentially, the judge may interpret the order to show a valid ID as illegitimate and therefore acquit the defendant (Catanati 2010, 6).

13

There has recently been an extension from 12 to 18 month (L.129/2011; Repubblica 2/08/11).

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1.2 Criminalisation of immigration and expulsions. Part 1 These legislative measures have proved a willingness to criminalise immigration (Special Rapporteur Racism 2007, 25). The Constitutional Court, in fact, (ruling 249/2010) dwelled on the risk of punishing migrants twice for the same crime (for residing illegally in the country and by making such status and “aggravating circumstance”) which is not allowed according to the principle ne bis in idem and concluded that the increase of punishment cannot apply to these crimes provided by the immigration bill (Catanati 2010, 2;18). What is more, this norm arises many doubts insofar as the principle of equality and non-discrimination is concerned since the increase of punishment applies to irregular migrants only (Palermo 2010, 6). Moreover, L.94/2009 introduced the crime of illegal stay that was harshly criticized by Human Rights Watch and PICUM (HRW 2009, PICUM 2010, 8), since the illegal entry used to be a mere administrative offence before and the same norm does not apply to other foreigners from the European Community. As a consequence, if a migrant enters Italy without a valid visa, he/she is committing a crime and his status becomes in itself a criminal offence, even though there is a clear lack of mens rea – guilty mind (Catanati 2010, 7). The government even tried unsuccessfully to constrain doctors to report illegal migrants to the police (Corriere 2009). According to the principle nullum crimen sine lege, criminal conducts which are not an offence at the time they were committed cannot be prosecuted afterwards. However, L.94/2009 establishes a permanent crime which does not ascertain the tempus comissi delicti. It would thus follow that even regular migrants who lose their job and the possibility of renewing their visa become automatically criminals. On top of that, it generally takes more than 6 months to renew Visas (permesso di soggiorno) and therefore many legal migrants find their rights restricted as they cannot access social services

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as a consequence (Special Rapporteur Migrants 2005, 11.38). All the more in a situation where an appeal to the aforementioned decision would not stop the expulsion order. It is difficult to identify the dolus or culpa. In this sinister scenario costs-benefits constrains, which are among the government‟s justification for a tough approach to immigration, are not considered as of yet. Thousands of trials are formally starting just for speeding up the process of repatriation and results are devastating for the already slow Italian judicial system.

Part 2 The criminal offence is triggered when an administrative “decree of expulsion” is not respected (and after July 2009 when entering the country illegally). In short, the head of the police issues the expulsion order for the “clandestine” and the Questore - the head of the police administrative services - executes it. However, when the former is flawed the latter automatically becomes non-executable as charges would be dismissed. The Court of Varese on the 10th of September 2005 (ruling 105) further explained that a mere decree of expulsion which does not distinguish on a case by case basis would entail an excess of administrative power as the foreigner would have to expel himself. According to the principle of definiteness the law has to be both precise and univocal so that facts can be verified by the judge. Any criminal norm in order to be interpreted and applied needs to be “a law in force at the time the offence was committed” as established by art.25 of the Italian Constitution. The Constitutional Court has made clear – when dwelling on L.271/2004 - (ruling 5/2004) that the formula [the migrant who has not left the country] “without a valid justification” present in the legislation is going to be assessed by the judge with his

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interpretation of the law. Magistrates have to consider that public order and security cannot override fundamental (and constitutional) principles such as the right to life, the right to health, the right to work, to family life and the clause of nondiscrimination. Moreover, the migrant‟s right of defence would be undermined by the fact that he has to justify his permanence on the territory even when he has to defend himself (art.17 TU). Nevertheless, the Supreme Court deems this clause to be in compliance with the Constitution as it is commonly used for special legislations and it tends to preserve the migrant‟s fundamental rights by allowing that had he “a valid justification” not to leave the country, no crime would have been committed if he overstayed. For this reason it is called “elastic clause”, because it adapts to reality. By reviewing the jurisprudence of national Courts it becomes clear that certain objective and subjective prohibitive conditions can be interpreted by the judge as a “valid justifications” not to leave the country. For instance, those who come from Sub-Saharan countries in many instances cannot afford the flight ticket as they live in poverty (nemo tenetur). Generally the period to obtain documents from their embassies is much longer than the 5 days allowed by law. Moreover, parents‟ moral and material obligation towards children as provided in arts 30 and 31 of the Italian Constitution, art.570 of the Penal Code and in detail in the CRC, may also be a valid justification not to fulfil the order to leave the country (TU art.19.2(a) prohibits expulsions of under 18 individuals unless they are a threat to the society). Insofar as the burden of the proof is concerned, the Constitutional Court specified that the attorney is to prove the absence of a “valid justification” (ruling 5/2004). Since these norms were introduced, there has been a preoccupying over-representation of immigrants in the prison population (Working group on arbitrary detention 2009, 2425).

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1.3 Principle of equality and non-discrimination in the Italian system In short, the Bossi-Fini aims at limiting illegal immigration by controlling borders, imprisoning or expelling illegal migrants which are almost 500.000 at present (Ministry of Interior 2011). However, such legislative framework arises many doubts on the full respect of the non-discrimination clause and equality before the law for migrants. In 1993 the Mancino Law (modified by L.85/2006) incorporated CERD into the Italian system and in so doing it prohibited many grounds for discrimination. Art.3 of the Italian Constitution reads: “all citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinion, personal and social conditions. It is the duty of the Republic to remove those obstacles of an economic or social nature which constrain the freedom and equality of citizens, thereby impeding the full development of the human person and the effective participation of all workers in the political, economic and social organisation of the country.” Ever since 1966 (ruling 25/1966) the Constitutional Court in one of its first interpretative rulings deemed the principle of equality to be “an ever present factor” which influences every aspect of the Italian legal system 14. One test the Court has consistently applied is the “reasonableness test”, which permits a differential treatment when the different nature of the circumstance justifies it. Therefore, privileging a group over another is also discriminatory and in breach of said principle (ruling 96/1980). All things being equal, any “unjustified and arbitrary discrimination” (ruling 111/1981) is unconstitutional (ruling 340/2004). That said, the Court has also
14

The same did the IACHR which stated “there is an inseparable connection between the obligation

to respect and guarantee human rights and the principle of equality and non-discrimination...non compliance gives rise to international responsibility...The fact that [they] are regulated in so many international instruments is evidence that there is a universal obligation to respect [said rights]. This principle may be considered peremptory under general international law, inasmuch as it applies to all States. Accordingly [said principle] belongs to jus cogens” [AO 18 para 85-86;100-101].

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specified that there may be justifiable differential treatments (ruling 276/2005). Insofar as migrants are concerned, it has constantly seen art.3 as a universal one which applies to citizens and non-citizens alike “in compliance with international law” (rulings 104 and 120/1967). Even recently, the Supreme Court maintained that the right to health is universally guarantee for everyone without discrimination (ruling 252/2001 and 32/2009) together with participation in the political life (ruling 269/2010) and the right to contract marriage (ruling 245/2011). In regard to “the right of defence” provided by art.13 of the Constitution, the Court has ruled that security and ordre public issues cannot overrule fundamental principles attached to human dignity (rulings 198/2000 and 105/2001). It went even further by asserting that migrants are entitled to enjoy all fundamental rights provided in the first part of the Constitution (art.1 to 12), recalling universal HR as conceived by the Universal Declaration of Human Rights (UDHR) and the ICCPR (ruling 10/1993; Sileoni 2010, 159-160). Accordingly, art.10 of the Constitution recognises that national laws must be in compliance with international customary law and signed treaties. The fact that the Italian judicial system is not biased towards migrants was further highlighted by recent interpretations of the Supreme Court that deemed two applications of unconstitutionality of the government against regional bills to be inadmissible. Tuscany and Emilia Romagna passed laws aimed at an improving political participation15 of foreigners by granting them the right to vote locally (rulings 372 and 379/2004). Although the right to vote is restricted to citizens (art.48 of the Constitution), the Court said that the aforementioned laws were “in harmony with the Constitution”. There is therefore a tendency to extend some constitutional rights and duties in light of the recent developments in HRL. By the same token, the Court
15

The Court took the right approach insofar as Italy signed the Convention on the Participation of

Foreigners in Public Life at Local Level (1992).

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considered a part of the financial bill of 2001 to be “illegitimate” (ruling 187/2010), due to the exclusion of disabled people without a permit of residence from social benefits. The ratio decidendi was rather peculiar, as judges referred to art.14 of the ECHR16 and additional protocol 12 as well as to the “necessity of avoiding unreasonable laws which go against [Italian] international obligations”. Thus, this approach seems to second the rule that “primary needs” cannot be subject to differential treatment even when citizens have to sustain heavy costs.

1.4 Bossi-Fini application and non-discrimination Though in theory the Italian system guarantees full protection against differential treatment for migrants, practice often differs. For instance, in Italy those sentenced to a maximum of 3 years can be considered for alternative punishments. However, the Criminal Court of Cassation established that “illegal migrants” cannot have access to such measures as they are living in “illegality” and therefore they are not identifiable and difficult to locate (Court of Cassation ruling n.30130). The ratio of the Court seems to imply that illegal migrants are dangerous for the society in re ipsa. This is not only unjustified but also incorrect as the adjective “illegal” presupposes that the migrant is committing a crime and therefore he is socially dangerous. In truth, they are merely “irregular” in the sense that they lack a regular visa. Still, once in Court they are identified and there is no reason whatsoever to apply a differential treatment as their objective status is no different from that of any other individuals. Nevertheless, the Court could have simply meant that as an illegal migrant should be escorted to the border once he enters the territory, that would preclude the possibility
16

In rulings 348 and 349/2007 the Constitutional Court deemed the ECHR to be a quasi-constitutional

instrument.

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of serving the punishment in alternative ways. Yet, no justification is provided as to the reasonableness of such differential treatment. By following the same reasoning line, illegal immigrants should not be incarcerated (and note that alternative punishments are “punishments” nonetheless), but rather immediately expelled. On the contrary, the Court does not rule out detention and says that expulsion is the only alternative to it without explaining such statement. However, the true paradox lies in the fact that for certain crimes migrants cannot be expelled, but incarceration is mandatory (TU art.407.2). Furthermore, it is not clear why an administrative wrong, the illegal entry, is affecting a criminal decision. Those who breach the law are supposed to be recovered and punishments are meant to rehabilitate as provided by art.27 of the Constitution. The only viable explanation for a differential treatment stems from the fact that irregular migrants cannot have a fixed legal residence and therefore their position is “different” from that of other groups. However, this differentiation would still seem to be unreasonable given the limitation of freedom involved.

1.5 Annual quotas and discrimination We will now shift our attention to entries that are regulated through annual quotas quantified by the government. As Caritas demonstrated in a recent study, the quota is unrealistically low whereas the demand for foreign labour is much higher, especially for the tertiary sector17 (Levinson 2005, 1; Monzini 2007, 165; Caritas 2010). That said, there seem to be a preferential treatment for those migrants who come from countries which have signed agreements on immigration with Italy
17

the Association of Industrialists has constantly pushed for “integrative” programs due to its concern

for labour shortages especially in the north (Notizie Ansa 2002).

24

(Gramaglia 2008, 2; Wayne 2004, 382). It is common for foreign workers to see their application for a temporary visa or international protection rejected, based solely on their nationality (Special Rappourteur Racism 2007, 19). This amounts to a substantial differential treatment which is solely justified by political interests but remains unreasonable as its aim is purely discriminatory. In contrast with the previous legislation, at present Italian embassies when denying visas do not have to motivate their decision. The paradoxical requirement to have a job before entering the country is proving to be flawed as in practice workers are employed illegally and afterwards, at the right time, regularised (Special Rapporteur Racism 2007, 18). Such procedure enhanced exploitation, insecurity for migrants workers, illegality and discrimination (Special Rapporteur Racism 2006, 20; 25; CERD 2008, 4 para 17-18). A huge informal economy allows those who enter the country illegally to work and get low-paid jobs (Ruhs, Anderson 2010, 2; Miggiano 2008, 17-18; Gatti 2007, 426; Wexler 2007, 389; MSF 2007). Paradoxically even migrants who work legally risk to be blackmailed by their employers as joblessness would result in illegality and repatriation. “The securitisation of illegal migrants ,[in fact], creates spaces for their exploitation inside the border” by making them “invisible” (Miggiano 2008, 2;8). The Special Rapporteur on the HR of Migrants highlighted that in southern Italy even Refugees18 are exploited and underpaid by farmers who allow them to work in unhygienic conditions (Special Rapporteur Migrants 2005, 18). In Rosarno after a

18

Art.1 Refugee Convention defines a Refugee as: “a person who owing to a well-founded fear of

being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”.

25

demonstration by migrants the local mafia organised reprisals on them by firing live ammunition (Special Rapporteurs Bustamante 2010, para 88). In conclusion, the new law also abolished sponsorships, which permitted extra-communitarians to get a temporary visa while looking for a job in the country. The sponsor had to be an Italian citizen who generally acted as a guarantor (former art.23 TU) and not necessarily the employer.

1.6 The crime of illegal stay and its consequences Despite the many doubts arisen by the Bossi-Fini system of annual quotas and its likely discriminatory effects (Special Rapporteur Racism 2007, 25), the Berlusconi government continued to modify the bill continuously by introducing new provisions. Roberto Maroni, the interior minister, declared in an interview that the criminal offence of illegal stay was introduced as an instrument for fostering expulsions (Repubblica 28/4/11). In so doing, he admitted that the current legislation jeopardises the fundamental right of defence each individual should be entitled to. When favouring expulsion in any case, the law de facto trumps said right. Regrettably the Constitutional Court (ruling 250/2010) interpreted the criminal norm as not attached to the status of the individual but rather to his conduct (namely, of entering the country without valid documents) and therefore it seconded the equation “illegal migrant equals threat to the society”. In sum, the Court justifies the differential treatment since the control of migratory flows represents a particular circumstance which [reasonably] allows the legislator to deal with it in a special way. Having said that, the supreme judges avoided to explain what makes a migrant socially dangerous ex ante. In truth, the revolutionary character of the Bossi-Fini law stems

26

from the emphasis put on expulsion and the transformation of temporary centres for identification into detention centres (Special Rapporteur Migrants 2005, para 86). However, the ECJ ruled (C-61/11 PPU) that detention must be used as last resort and for a period of time as short as possible. Further, any step towards repatriation has to take into account human rights. In that regard the Court also refers to the ECtHR‟s jurisprudence and concludes that Italian immigration law does not respect said directive (directive 2008/115/EC). Despite acknowledging that member states are solely responsible for their criminal law, said law needs to be in harmony with EU directives.

Conclusion So far we have illustrated the provisions of L.189/2002 by focusing on potentially discriminatory aspects, some of which the Constitutional Court has already dealt with. Yet, the gap left could give rise to de facto discriminatory effect. Additionally, the chapter has dealt with the discrimination caused by the politically influenced system of annual quotas for migrant workers and the crime of illegal stay.

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2.1 Arts 2 and 26 of the ICCPR and the Committee Jurisprudence The rights present in the Covenant must apply to all individuals “subject to the state jurisdiction” (art.2.1), apart from these rights which apply to citizens only (art.25). “In certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example, when considerations of nondiscrimination [...] arise” (General Comment 15, para 5). The Human Rights Drafting Committee discussed the principle of equality before the law and non-discrimination in different sessions. Unlike other human rights instruments, the ICCPR gives particular attention to equality and non-discrimination, so much so that the discussion during the preparatory works led to a series of draft articles which eventually became arts 2 and 26. While a counterpart of art.2 is present in almost every HR treaty, the same is not true of art.26. Ever since the travaux preparatoires some maintained that art.26 had to be limited to the rights within the Covenant, others thought said limitation did not apply and therefore the sentence: “[...] without discrimination [and] equal protection of the law” practically referred to any law, national as well as international. The latter position was reinforced by the Committee in General Comment 18 which at paragraph 12 underlines that art.26 guarantees equality before the law and non-discrimination on any grounds, in law as well as in all activities regulated by the state authority. Thus, unlike art.2, art.26 is not limited to the rights present in the Covenant (General Comment 18, 12), but rather it goes so far as to impose that no arbitrary decision should be taken by public authorities. In S.W.M. Broeks v. Netherlands (172/1984), in fact, Committee members maintained that any piece of legislation “should prohibit discrimination” (at para 12.4). Apart from these grounds explicitly prohibited in the art.26 (race, sex, colour etc.), individual

28

complaints have extended the basis for denouncing a discriminatory act19. In short these “other status” cited in the article have been gradually assessed by the Committee. However, migrants as a social category have so far not submitted any individual complaint (as allowed by Optional Protocol II) concerning art.26 (one exception is Oulajin and Kaiss v. Netherlands 406, 426/1990 which affected the applicant de ralato as the application had to do with child benefits and not with his status). Yet, the Committee in Broeks v. Netherlands maintained that policies, including those regulating immigration, should not be discriminatory by all means. It follows that any difference in dealing with a particular category is potentially in breach of art.26. That said, they have not clarified through which criteria it is decided whether a ground for discrimination is covered by the Covenant (Bayefsky 1990, 67). Discrimination was defined in General Comment 18 as : “any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms” (para 7). It is nonetheless clear that the onus probandi lies on the applicant who has to prove the substantial differential treatment as well as
19

The right of conscientious objection, Brinkhof v. Netherlands (402/1990); children‟s benefits, Oulajin

& Kaiss v. Netherlands (406, 426/1990);Unemployment benefits, Broeks v. Netherlands (172/1984), A.P.L.-v.d.M. v. Netherlands (478/1991), Zwaan-de Vreis v. Netherlands (182/1984), Araujo-Jongen v. Netherlands (418/1990), Pons v. Spain (454/1991); disability pensions, Danning v. Netherlands (180/1984), Hendrika Vos v. Netherlands (218/1986); educational subsidies, Blom v. Sweden (191/1985), Lindgren et al. v. Sweden (198-199/1988), Waldman v. Canada (694/1996); veterans‟ pensions, Gueye et al. v. France (196/1985); severance pay, Valenzuela v. Peru (309/1988); employment, Sprenger v. Netherlands (395/1990); property rights, Adam v. Czech Republic (586/1994); retirement pensions, Johannes Vos v. Netherlands (786/1997); survivors‟ pensions, Pauger v. Austria (415/1990), Pepels v. Netherlands (484/1991), Hoofdman v. Netherlands (602/1994).

29

the disadvantage such treatment resulted in. There are, in fact, a series of justification for differential treatment (for instance between disabled person and nondisabled person), yet such exceptions do not generate a direct detriment as they are allowed for a different category/ies. Thus, all things being equal, unless pursuing a legitimate aim, no subjective and unreasonable distinction ought to be made. For legitimate aim the Committee refers to aims in compliance with the Covenant and international law (General Comment 18, para 13). It goes without saying that the opposite is true, i.e. that a group of people who are in a different position may claim that they should be treated differently. In their individual opinion for the case Vos v. Netherlands (218/1986) B. Wennergren and F.A. Urbina stated that in case discrimination affects “individuals, a provision cannot be deemed discriminatory as such” (para 1) and that “differences in result of the uniform application of laws do not per se constitute prohibited discrimination” (Vos v. Netherlands, para 11.3). Yet again the Committee fails to explain the criteria used to determine whether the individual is part of a group which is suffering or may suffer discrimination.

2.2 Other grounds for discrimination However it is clear that isolated cases cannot automatically be seen as discriminatory, unless there is a more general trend rather than a “one off”. Further, mere policy outcomes are not tantamount to discrimination. In Danning v. Netherlands (180/1984, para 13-14) the Committee undertakes a “reasonableness and objectivity test” which takes into account whether or not the applicant can choose to be a member of a group rather than another. In the former case a

30

distinction would be “reasonable”. In addition the reasonableness of a particular law can be assessed by analyzing the purpose of said law and if it is based on objective grounds (Simunek v. Czech Republic 516/1992). This is linked to the legitimate aim of a legislation (Dissenting opinion Nahlik v. Austria 608/1995). For instance, a law that distinguishes between black and white in fulfilling the right to education would breach art.26 (despite the fact that said article is enshrined in the ICESR) since the distinction would clearly be arbitrary. On the contrary when protecting the interest of others, a difference in treatment may be justified (Somers v. Hungary 566/1993; Mumtaz v. Austria 965/2000 para 8.4; General Comment 18 para 13). The Committee also found that an international treaty like that of the EU cannot be a justification for differential treatment (Mumtaz v. Austria 965/2000). Finally, the mere administrative organisation of a state cannot be posed as a reasonable justification for discrimination (Gueye v. France 196/1983). In other words, if there are “differences resulting from the equal application of a rule” (A.P.L.-v.d.M. v. Netherlands 478/1991 para 6.4) such outcome would not be discriminatory per se. As we already discussed, states are obliged to take positive actions against discrimination and that can also happen through the implementation of policy which favours disadvantaged groups (so called relative equality) (General Comment 18, para 10). Such positive actions may also affect private activities, especially in regard to employment rules. According to General Comment 18 (para 7) indirect discrimination may also breach art.26, where there is no intent but discriminatory effects. However, the Committee has not discussed many of such cases yet. It is nonetheless clear that policies have to be “reasonable and directed towards objective purpose that are compatible” with HR (Simunek, et al. V. Czech Republic 516/1992, para 11.7). In fact, there may be

31

reasonableness and objectivity prima facie but the intent to discriminate makes a law unreasonable (Diergaardt et al. v. Namibia 760/1997, para 10.10).

2.3 Has the Committee established a threshold for discrimination? To go back to reasonableness and objectivity, it is hard to find a clear formula in the reasoning of the Committee as cases are not judged through a clear cut test, also given the difficulty in interpreting such concepts. There is no agreement on what should be the basis for comparison20. In short, ought two individuals be in the exact same situation or is it enough if they are substantially in similar circumstances? The Committee does not provide an answer to this question and its approach seems to be inconsistent. However, there are some interesting conclusion that can be found in case law. In Blazek, et al. V. Czech Republic (857/1999), for instance, a distinction based on citizenship was deemed to be unreasonable and therefore discriminatory. The test tends to verify direct discrimination. Though there is a margin of appreciation in regard to the prevailing cultural view of the society, the Committee has in Broeks v. Netherlands (172/1984) highlighted that the majority view (based on a prejudice) may also lead to unreasonable discrimination (para 8.2). In short, a society which is against illegal immigration cannot justify a discriminatory law towards immigrants. When there is a logic link between the aim of the legislation and the difference in treatment, it would seem correct to conclude that criterion are objective and reasonable as they logically follow from one another. By the same

20

Treatment of those undertaking national service is not comparable to the treatment of ordinary

civilians. In H.A.E.d.J v. Netherlands. In van Oord v. Netherlands a claim for discrimination on the basis of nationality was dismissed as the appropriate comparator was the treatment of former Dutch citizens living in the US and not those living in other states.

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token, reasonable and objective criteria may become unreasonable if the aim of a piece of legislation is to allow a differential treatment based i.e. on sex (Diergaardt et al. V. Namibia 760/1997, para 10.10). Conclusively, in his individual opinion in Sprenger v. Netherlands (395/1990) Ando, N‟diaye and Herndl maintained that “depending on the nature of the right to which the principle of non-discrimination is applied” art.26 may allow for a more or less strict application of the aforementioned three-partite test (objectivity, reasonableness and legitimate aim). Discrimination based on sex and race permits a very restricted margin of appreciation and in fact such grounds are “prioritized”. Insofar as migrants are concerned, these are often grounds for discrimination.

2.4 Other International treaties Apart from the ICCPR arts 2 and 26, also ICESCR at art.3 requires that “the States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant.” However, CERD and CEDAW include the largest number of quality provisions. While art.1 of CERD and CEDAW defines racial discrimination and discrimination against women respectively, art.5 of CERD specifically prohibits race and all other forms of discrimination by imposing on states the burden, namely a positive obligation. Likewise CEDAW imposes prohibition of discrimination against women (arts 7 and 8) and obliges the states to adopt policies in that direction. Art.1.2 of CRC prohibits discrimination against children “on the basis of the status, activities, expressed opinions, or beliefs of the child‟s parents, legal guardians, or family members”. As far as the ECHR is concerned, art.14 can be applied only if “the facts
33

at issue fall within the ambit of one or more [provisions of the Convention] (see Abdulaziz v UK). Peculiarly, this was reaffirmed by the Committee in Mumtaz v. Austria (965/2000, para 7.4) so as to highlight differences between the freestanding anti-discrimination provision of ICCPR and art.14 of ECHR. However, the application of art.14 by the Court has been inconsistent as in the Belgian Linguistic Case Judges referred to “aims and effects” of the policy by implying that also indirect discrimination might breach art.14. Thus, a policy with no legitimate aim would be unjustifiable. Despite the many reservations suffered by widely ratified treaties like CEDAW, some may argue that the clause of non-discrimination would apply nonetheless. The Committee on the Elimination of Racial Discrimination, in fact, stated (General Recommendation XIV) that “non-discrimination, together with equality before the law and equal protection of the law without any discrimination, constitutes a basic principle” of international law.

Conclusion Chapter three has been dedicated to International Human Rights Law. In particular I analysed the Committee jurisprudence, general recommendation and general comments by taking into account various grounds for discrimination and the inconsistent threshold Committee members seem to attach when assessing violations of arts 2 and 26. In conclusion, I took into account other international provisions which also provide protection against discrimination.

34

3.1 Introduction to the hypothesis test In order to assess whether the Italian bill breaches the requirements of arts 2 and 26 as conceived by the Committee, I need to assess whether the Bossi-Fini Law guarantees equal protection of the law, right to equality before the law and prohibition of discrimination. Thus, in turn I will assess whether the immigration law prohibits discrimination and if it applies equally to all migrants. As we have already extensively discussed, the Italian Constitution at art.3 guarantees that all people are equal before the law without any distinction. The Constitutional Court has interpreted this article so as to apply it to citizens and noncitizens alike (ruling 104/120 1967; CERD General Recommendation XXX, para 7). It follows that any ordinary law has to be in compliance with the Constitution, or else the Court can review and amend it. This was the case for part of the immigration bill which was meant to increase the punishment for illegal migrants (L.125/2008) but the Court deemed it to be “unreasonable” (ruling 249/2010) and manifestly discriminatory. Therefore, there is a formal protection towards purposively discriminatory legislation. The previous immigration law amended by the Bossi-Fini (TU 1998) at art.1 recognised constitutional fundamental rights (art.1 to 12 of the Italian Constitution) for migrants without distinction. It would seem that other Constitutional rights are reasonably not applicable to irregular migrants as that would be too much of a burden for those who pay taxes. Yet, unless a municipal Court requires the Supreme Court to intervene, such protection can be jeopardised. In other words, the fact that there is equality before the law does not necessarily imply that there is protection from discrimination of the law (in its application). In particular, before the Constitutional Review is completed the law still applies. For this reason

35

the provision of the ICCPR which function universally are vital in prohibiting differential treatments towards migrants.

3.2 Does the Italian immigration bill respect arts 2 and 26 of the ICCPR? Part one The Bossi-Fini law has been justified with the necessity of living in a secure society as migrants foster insecurity and with economic constrains, since the current financial situation does not allow states to welcome foreigners. Among grounds for discrimination listed in art.26, “other status” must involve a “personal characteristic” of the individual who suffers discrimination. This was the case for the increase of punishment exclusively envisaged by L. 125/2008 for illegal migrants who were deemed to be socially dangerous ex ante. That specific characteristic made the law not objective, because a group was unfavourably targeted, unreasonable since there was no justification for the differential treatment and thus aimed at discrimination (dissenting opinion Nahlik v. Austria 608/1995). The basis for comparison here are other individuals who also committed a crime. The Court of Latina, in fact, when referring the case for the unconstitutionality of said norm to the Supreme Court, specifically highlighted that it was against art.10 of the Constitution which protects international customary law and provisions of the ICCPR such as arts 2 and 26 (Palermo 2010, 17). The same goes for the crime of illegal stay (L.94/2009). However in this case the comparators are other foreigners with a valid VISA. According to the Committee, aliens should not be subject to retrospective penal legislation (General Comment 15 para 7; General Comment 30, 18), however, as I explained earlier, said crime (L.94/2009) does not ascertain the tempus comissi

36

delicti and therefore there is a risk of punishing migrants for crimes they committed before the law existed. This would be not only discriminatory but against a well established principle of criminal law which does not permit ex post facto legislations. What is more, there should be the possibility of appealing the decision before a Court (art.13 ICCPR) but, as we discussed earlier, the Bossi-Fini‟s expulsion order remains valid and de facto jeopardises chances of appealing. What makes said crime unreasonable is the lack of mens rea and the limitation of freedom envisaged by criminal law. Understandably, the decision of the ECJ constrains Italy to adapt the aforementioned crimes so that detention for migrants is used as last resort and for a period of time as short as possible. In addition, judges should always interpret the immigration law by taking into account the principle of non discrimination as dictated by art.26 (General Comment 15 para 9; General Comment 30 para 25). In fact, for what concerns the crime triggered by the failure to show an ID for foreigners in Italy, judges have already applied much discretion in interpreting the norm. A valid justification would make such requirement unreasonable, all the more since foreigners from EU countries are not subject to the same regime. In Danning v. Netherlands (180/1984) the Committee clarified that when an individual is not constrained to be part of a specific group, then the distinction would be reasonable. However, this is not the case for illegal migrants.

Part two A point of concern is also represented by the inconsistencies in tackling illegal immigration as orders of expulsion are not homogenously issued and executed due to the fact that some judges do not apply this part of the immigration law and

37

interpret the law heterogeneously (Lessi 2011). Though mere policies outcomes are not discriminatory per se (Danning v Netherlands, para 13-14), when it comes to detention measures, some deem them to be against fundamental rights, viz. tantamount to an unjustified limitation of freedom. As a matter of fact, the Constitutional Court intervened in some cases and redesigned discriminatory provisions set in the immigration bill and yet some of its decisions, for instance concerning the aggravating circumstances and the crime of illegal stay for migrants, have suffered the pressure of the political climate. Not surprisingly, in fact, the peculiar ratio decidendi in both cases contradicted previous calls for a criminal law compatible with fundamental rights and short of discriminatory effects. Likewise, the Criminal Court of Cassation on the absence of alternative measures to detention for illegal migrants (for punishments up to 3 years) seemed to beat around the bush. In truth, the justification based on the lack of a legal fixed residence might have been reasonable, if the same was true for citizens. However, homeless people of Italian nationality can benefit of alternative measures to detention and therefore grounds for said differential treatment are not objective either (Simunek v Chez Republic 516/1992). In conclusion, the system of annual quotas criticized by NGOs and academics may also be a factor of preoccupation insofar as discrimination is concerned. Despite maintaining that quotas are allocated following objective criteria, the government fails to specify what are these guidelines for granting temporary visas. Gramaglia and Wayne cast some doubts on the decision making and the assignment of said work permits and argue that nationals of Libya, Tunisia and Marocco, which have signed agreements on immigration with Italy, are de facto favoured (Gramaglia 2008, 2; Wayne 2004, 382; CERD General Recommendation XXX, para 25). Being as it may,

38

it would be an arbitrary distinction among foreigners based on mere political interests. Needless to say that such preferential treatment is unreasonable and nonobjective and it would show the clear intent to discriminate. Additionally, international agreements are no excuse for discrimination (Mumtaz v Austria 965/2000). A justification which would seem reasonable, such as protecting the security of citizens (Somers v Hungary 566/1993), becomes merely discriminatory if migrants are considered a threat to security of the society pre-emptively. Though it is generally accepted that a distinction between citizens and non-citizens, which does not affect fundamental rights, is reasonable, the Committee in some cases has used a case by case approach and deemed it to be discriminatory (Blazek et al v Chez Republic 857/1999) as the aim maybe legitimate but unreasonable or the other way round (Diergaardt et al. v. Namibia 760/1997, para 10.10). In conclusion, during the election campaign the centre-right parties PDL (Popolo della Libertà) and Lega Nord have used the fight on immigration as a way of attracting consensus. The current government, in fact, also justifies tough laws against irregular immigration as a response to “a majority view”. Yet, in Broeks v Netherlands (172/1984, para 8.2) the Committee made clear that the majority view may lead to unreasonable discrimination which would put the country in breach of its international obligations.

3.3 Conclusion Our task in this chapter was to assess whether the Bossi-Fini Law meets the requirements of arts 2 and 26 of the ICCPR. In turn I discussed equal protection of the law, right to equality before the law and prohibition of discrimination insofar as said legislation is concerned. Firstly, two crimes linked to the immigration bill, namely

39

the crime of illegal stay (L.94/2009), the increase of punishment for migrants (L. 125/2008) and the prohibition of alternative measures to detention for migrants (for punishment up to three years) breach the prohibition of discrimination set in art.26 of the ICCPR. In particular the “aggravating circumstances” make migrants less equal than others before the law, while the lack of alternative measures for them jeopardises their equal protection before Italian law. The limited right of defence granted to immigrants put Italy in breach of art.2(1) in conjunction with art.14.3(b) of the ICCPR which guarantees that everyone has “adequate time and facilities for the preparation of his defence”. Whether the basis for comparison are Italian or EU citizens these norms have no valid justification for differentiating. Conclusively, the recent ECJ ruling has further highlighted how Constitutional guarantees may be inadequate due to political pressure exercised on the Supreme Court. The former‟s ratio in Hassen El Dridi v Italy (C-61/11 PPU) has de facto overruled the Constitutional Court decisions on both the “aggravating circumstances” for migrants and detention triggered by L. 94/2009 by effectively dismissing the claim that HRL is obsolete when Constitutional guarantees cover the same rights. In the specific case a breach of arts 2 and 26 of the ICCPR does not necessarily lead to a parallel breach of art.3 of the Italian Constitution or art.14 of ECHR. For these reasons, the answer to my initial research question is positive and my hypothesis, that the implementation overtime (from 2002 till present) of L.189/2002 has put Italy in breach of its international obligations in regard to ICCPR arts 2 and 26, is confirmed.

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