Chronicles of ordinary racism 2011 - Cronache di ordinario razzismo

3. Law 94/2009
The following year a new law in the same field, n. 94/2009, is enforced. In spite of
the usual tendency towards generalization, it touches on many aspects of the legal
status of immigrants. Alongside various instances of restyling and adjusting, mainly
concerning amendments introduced the previous year, the most important rulings can
be summarized as follows: 176
a) Extension of the time necessary for the foreign or stateless spouse of an Italian citizen
to acquire Italian citizenship subsequent to the marriage itself. As a result of this
amendment, in place of the six months previously required, one must now reside in the
country for a period of at least two years, or count three years from the date of the
wedding if the foreigner lives abroad (halved if children born to, or adopted by, the
couple are involved), provided that at the moment when citizenship is conferred there
has been no instance of discontinuation, annulment or termination of the civil effects of
the marriage, and that the couple is not legally separated.
b) Amendment to art. 116, par. 1 of the Civil Code after which a foreigner, in order to
obtain a marriage contract in Italy, must submit a document attesting to the regularity
of his or her residence status to the civil authority. This decree, strongly criticized from
the very first for being in contrast with articles 2 and 29 of the Constitution as well as
with international legislation (art. 16 Universal Declaration of Human Rights and art. 12
of the European Convention for the Protection of Human Rights and Fundamental
Freedoms), has since been declared constitutionally illegal in ruling 245/2011. At the
root of this decision lies its incompatibility with articles 2, 29 and 117 of the Italian
Constitution in as much as it would impact the exercise of basic human rights which,
without room for doubt, include the freedom to enter into a marriage contract, not just
for a foreigner but also for the Italian citizen whom they intend to wed.
c) Establishment of the crime of illegal entry and residence on Italian territory (art. 10bis
T.U.), signifying a criminal status for the foreign national who enters the country or
chooses to remain there, in contravention of the law. As it consequence, it has become a
felony punishable by means of a fine ranging from 5.000 to 10.000 euros, prompting
many experts to express strong doubts concerning its effectiveness as a deterrent. On
the contrary this measure strikes one as being patently counterproductive both in
rationally monitoring the migratory phenomenon and in insuring the legitimate safety
requirements of each human being, regardless of their nationality. Indeed, not counting
the fact that it steers away from several fundamental constitutional principles that
govern criminal issues, 177 its implementation gives rise to interpretative issues:
176 In this case the limited space at our disposal again obliges us to give a very brief summary of the main
amendments. A deeper reflection is necessary concerning the rules on registration procedures for the homeless and
urban patrols, namely the “associations of non armed citizens” that can be set up by mayors “in order to report local
events that may pose a threat to urban security or identify situations of social disadvantage”; This regulation was
censored with ruling n. 226/2010 by the Constitutional Court. Equally worthy of note is the law on ‘money transfer’
services that enforces the acquisition and retaining of a copy of residence papers for non-EU citizen, and states that
persons not in possession of such documents must be reported to the relevant authorities.
177 It is common knowledge that, in a democratic state, criminal law must protect the fundamental values of orderly
cohabitation amongst human beings and of their equality. In other words, considering the complexity of immigration
issues, the institution of a similar criminal offence runs the serious risk of punishing not the active behaviour but
rather the status of an individual especially in a system scarcely able to guarantee efficient procedures for entering
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