Chronicles of ordinary racism 2011 - Cronache di ordinario razzismo

Italian legislation obsolete. Indeed, the ruling states that in cases involving the
deportation of a non EU citizen, decisions must take into account individual
circumstances rather than simply acknowledging unlawful residence. This is in stark
contrast with the periodic, almost mechanic regularity of the deportation orders issued
by the Interior Ministry. Moreover, still on the subject of the contrast between this EU
directive and Italian legislation, it is important to emphasize the fact that “recourse to
detention […] should be restricted, and at all times proportionate to the means used and the
target pursued […] if the enforcement of less coercive measures should prove insufficient”,
while Italian regulations focus on forms of immediate compulsory deportation. To this
we must add that the required approval of the police commissioner, apart from being
far from proportional, is automatically called for by national legislation for the sole
reason that the deportation may be impossible to carry out or there may be lack of
availability in the CIE. It is also necessary to bear in mind that, according to the
directive, Member States can refrain from granting a period set aside for voluntary
departure (even one lasting under a week), but only if there is a concrete risk of flight
on the part the foreigner in question, if his application to obtain a living permit was
rejected on the grounds of being either clearly unfounded or fraudulent, or, lastly, if the
foreigner is perceived as being a threat to public order, safety or national security.
Therefore deportation orders issued before the 24 th of December 2010 cannot be further
enforced nor legitimately prevent a foreigner from settling in the country, particularly
when he has expressed an interest in applying for a regular living permit, for instance
under the jurisdiction of Law 102/2009. In substance, given that the deadline for the
acknowledgement on the part of EU countries of the ruling has been and gone and
considering that the effects of the clear, detailed and unconditional measures involved
are immediately discernible, once this deadline has passed 188 it becomes necessary to do
away with the national laws deemed incompatible with the European ones.
The provision, in Italian legislation, of a criminal sanction that guards against the
flouting of a deportation order lies behind the inclusion in the administrative procedure
of a criminal conviction that leads to the loss of personal freedom. The premises and
characteristics of this measure are worlds apart from constraints on freedom that might
occur during a deportation as envisaged by the European directive, in both its abstract
and applied forms. Such a mechanism would end up entirely evading all guarantees
imposed by the directive for the safeguard of individual freedom for foreigners
undergoing a repatriation process, and thus invalidate the useful effects of the ruling
with regard to the establishment of mandatory conditions that allow a Member State to
deprive a foreigner of his or her individual freedom during repatriation procedures.
188 On this matter, with sentence n. 170/1984 the Constitutional Court had observed that “ EU legislation operates
on another plain, different from the national one. According to art 11 of our Constitution, the rulings enforced by it,
are applied directly in our country, but stand apart from the intricacies of internal legislation: and if this holds, they
cannot logically be judged by the same standards outlined for conflict resolution internal to our legislation” thus
repeating what had already been established by the European Court of Justice with sentence 183/1973 that states:
“Fundamental demands of equality and legal certainty demand that EU regulations – not to be interpreted as
sources of international, foreign or internal law – must have complete and compulsory effectiveness and direct
application in all Member States, without the need for further rulings, as acts having the resonance and validity of
laws in each EU country, so as to be simultaneously enforced and have equal and uniform power over all
addressees”
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