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The accused for facts connected to the traffic of persons are those who, ingeneral, have a good technical defence: hardly ever are they “unprepared”, withouta trusted lawyer and badly defended; it follows that they know very well how toprofit from the penal and procedure mechanisms to their own advantage.c) Expulsion as an alternative measure to detentionOne of the important novelties of the Law No. 189/2002 was the introduction ofthe expulsion measure as an alternative detention in prison for clandestine andirregular foreigners 98 condemned to a sentence of detention, even residual, of twoyears.Already in the original text of d.lgs. 286/1998 a facultative hypothesis ofexpulsion was foreseen for at least 5 years in substitution of the sentence of lessthan two years.The novelty of the hypothesis of an alternative measure to detention consists inthe first place of its obligatory character, for which the competent judge forsurveillance of the concession does not seem to have any discretionary power, oncethe assumption is verified and, in the second place in the possibility of interveningalso on residual sanctions. It follows that it no longer acts only on sentencesthreatened for minor crimes, but also on crimes of a notable seriousness for whichthe subject has already passed part of the sentence in prison 99 .It should be said that excluded from the application are the crimes included inthe Comprehensive Immigration Enactment (and therefore, for what is of interest,the hypothesis ex Art. 12 paragraph 3 and following) and the crimes included inArt. 407 paragraph 2 letter a) (and therefore Art. 416 bis Penal Code), but thereremain numerous questions on the utility of the measure for the fight against thetraffic.In fact having considered automatic expulsion once the ceiling of the sentenceis verified, there is the risk to repatriate subjects for which the return to the countryof origin is advantageous so as to continue their illicit traffic. The predominance ofthe logic where expulsion is always the best solution to contrast foreign criminalitycould reveal itself to be false and not help the fight against the traffic. Also themeasure poses many interrogatives on the compatibility with Art. 27 of theConstitution 100 .98The Law refers to the situation which in Art. 13 paragraph 2 of the T.U. immigration and that is when aforeigner: a) has entered into the territory of the State avoiding the border controls and has not been sentback under Art. 10; b) has remained on the territory of the State without having requested permission tostay within the prescribed terms, apart from if the delay depends on force majeure, or that the permissionhas elapsed for more than 60 days and a renewal has not been requested; c) this belongs to one of thecategories indicated in Art. 1 of the Law of 27 December 1956, No. 1423, as substitute for Art. 2 of theLaw of 3 August 1988, No. 327, or in Art. 1 of the law of 31 May 1965, No. 575, as substitute for Art.13 of the Law of 13 September 1982, No. 646.99As has already been said previously the punishment effectively served can also be quite low.100On this point, see Miro (2002, page 91) and the question of constitutionality brought up by theSurveillance Court of Alessandria with an ordinance 10.12.2002, published in “Diritto Immigrazione eCittadinanza”, No. 4/2002, page 224.