![Sample our Politics & International Relations journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5947/TOC-Subject-Sample-2021-Politics-International-Relations.jpg"})
Abstract
This paper discusses the functioning of the Italian legal system, especially with respect to crime and immigration. While political discourse from both right and left stresses the need for the ‘security’ and ‘control’ of immigration, the larger legal-political framework only increases the number of ‘irregular persons’ whose only chance of making a livelihood is to engage in ‘irregular’ jobs. Consequently, public attitudes towards immigrants are becoming systematically tied to ‘crime’ and ‘illegality’. The Italian state draws heavily on its resources to sustain judges, prosecutors, lawyers and a large bureaucratic apparatus, repeatedly running trials that aim to punish crimes often related to the essential condition of being a migrant. Most of these crimes represent no threat to security, nor violate social norms or trust among citizens. Therefore, Italian legislation has the ultimate effect of attracting, above all, those migrants that are willing or more prone to live in a condition of illegality, rather than those that are willing to abide by the law.
Notes
1 Yet, the Federal Immigration Commission concluded, according to policy recommendations by the US Government, that Federal Regulation was not effectively excluding criminal aliens and proposed strengthening restrictions.
2 In the early 1930s, the National Commission on Law Observance and Enforcement, also known as the Wickersham Commission, devoted an entire volume of its final report to the examination of the links between immigration and crime.
3 Between 1924 and 1925, the arrival rate fell from over 6 per 1,000 to 2.5. By 1930, the immigrant arrival rate had fallen to 2 per 1,000 in the population, and it did not rise above that figure until the abolishment of the national quota system in the 1960s.
4 L. 125/2008 introduced new aggravating circumstances by amending the Italian Criminal Code.
5 Corte Costituzionale, sent. 249 del 5.7.
6 This law provided a penalty of imprisonment, from 1 up to 6 years. It was soon obvious that this crime, even if applicable to both immigrants and Italians, was designed for illegal immigrants, to impede practices like that of destroying fingerprints, for instance.
7 Art. 475 and art. 476 Italian Criminal Code.
8 VII Rapporto Nazionale sulle condizioni di detenzione, Associazione Antigone Onlus, 2011. According to the report, in the ten year’ lapse, between 2000 and 2011, the population within Italian prisons increased by 25.164 units, of which 11.107 were foreigners. Two thirds of the increase is due to foreign inmates.
9 L. 94/2009, art. 16 a introduced the crimes of illegal entry and illegal stay in the country, punishable by a fine of between €5,000 and €10,000. This penalty is ineffective, considering that irregular immigrants normally do not have this amount of money to pay.
10 Speech of Roberto Calderoli at the Festa dei Popoli Padani in Venice, September 2011 (http://www.lettera43.it/politica/34626/calderoli-le-spara-grosse.htm).
11 These are the general rules in Italian Criminal Law and Procedure: the accused may not be found at all and thus a decree of irreperebilità (impossibility of finding) is issued and the trial may be conducted without him/her. Or, police officials, knowing that the person is homeless or difficult to find, ask them to declare, as their address, that of the lawyers appointed by the Court. Also in these cases trials are conducted without the knowledge of the accused.
12 Trials for illegal entry and illegal stay in the country are run by so-called giudici di pace (‘peace judges’), persons that hold a law degree, often lawyers, but who did not formally study to become judges.
13 In Rome judges are not able to give a precise timing for hearings. Thus, it often happens that not only lawyers but also witnesses might be asked to come at a given time only to wait for many hours before being required.
14 L. 286/1998, art. 5.
15 For instance, under the last sanatoria immigrants had to pay €1,000 just to ask for legal status.
16 By law, the normal mechanism to enter the country is la chiamata nominativa (call by name). This means that a permit to stay will be released any time an Italian – or a regular foreigner – is willing to give a job to a migrant that is already in the country. Persons willing to offer a job must also be able to find the migrant accommodation and to refund travel expenses. Of course, it is unlikely that a person might decide to hire somebody who actually lives abroad, without perhaps knowing him/her. What happens instead is that they ‘hire’ somebody whose status is irregular, and when a sanatoria is adopted they make these workers suddenly appear in the country. In order to became legal, a migrant must often go through a period of illegal work.
17 As a lawyer working with Criminal Law and Immigration Law for at least 7 years in Rome, I never met or heard of someone being transferred to his/her homeland, by coercive means.
18 See art. 14 co. 1 and co. 5 bis d. lgs. 286/1998.