1

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

2

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.

3

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.

4

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

5

Table of abbreviations

CEDAW Convention on the Elimination of Discrimination Against Women

CERD Convention against all forms of racial discrimination

CRC Convention on the rights of the child

CTPA Centre for temporary permanence and authentication

ECJ European Court of Justice

ECHR European Charter of Human Rights

ECtHR European Court of Human Rights

EU European Union

HR Human Rights

HRL Human Rights Law

HRS Human Rights Standards

HRW Human Rights Watch

IACHR Inter-American Court of Human Rights

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic Social and Cultural Rights

ICJ International Court of Justice

PDL Popolo della libertà

UDHR Universal Declaration of Human Rights

UNESCO United Nations Educational, Scientific and Cultural Organization

TU Testo Unico

VCLTR Vienna Convention on the Law of Treaties

6

Glossary

de facto by [the] fact

de relato from others

dolus or culpa negligence or fault

erga omnes toward all

ex ante before the event

ex post facto after the event

in re ipsa in itself

jus cogens compelling law

mens rea guilty mind

ne bis in idem not twice for the same

nemo tenetur no man is bound

nullum crimen sine legem no crime, no punishment without a previous penal law

onus probandi burden of proof

per se in itself

prima facie at first face

ratio the rationale

ratio decidendi the rationale for the decision

sine qua non [a condition] without which it could not be

tempus commissi delicti when the crime was committed

7

List of contents

Acknowledgements p.2

Abstract p.3

Table of cases p.4

List of abbreviations p.5

Glossary p.6

Introduction p.8-12

Methodology p.13-15

Chapter 1.1 The Bossi-Fini Law p.16-17

1.2 Criminalisation of immigration and expulsions. Part 1 p.18-19

Criminalisation of immigration and expulsions. Part 2 p.19-20

1.3 Principle of equality and non-discrimination in the Italian system p.21-23

1.4 Bossi-Fini application and non-discrimination p.23-24

1.5 Annual quotas and discrimination p.24-26

1.6 The crime of illegal stay and its consequences p.26-27

Conclusion p.27

Chapter 2.1 Arts 2 and 26 of the ICCPR and the Committee Jurisprudence p.28-30

2.2 Other grounds for discrimination p.30-32

2.3 Has the Committee established a threshold for discrimination? p.32-33

2.4 Other International treaties p.33-34

Conclusion p.34

3.1 Introduction to the hypothesis testing p.35-36

3.2 Does the Italian immigration bill respect arts 2 and 26 of the ICCPR?

Part one p.36-37

Does the Italian immigration bill respect arts 2 and 26 of the ICCPR?

Part two p.37-39

3.3 Conclusion p.39-40

Bibliography p.41-55

8

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 Inter-

American 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 non-

discrimination 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.

9

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 (C-

61/11 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

10

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, 389-

391; 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‟.

11

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.

12

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 Supreme Court and Constitutional Court will be used interchangeably thereafter.

6 When I use the Covenant, I refer to the ICCPR.

13

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.1-7-

8, 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.

14

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.

15

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.

16

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 Particularly grave crimes for which migrants are arrested in flagrant delict.

12 A new Law (L.129/2011) extended this period to 7 days (Repubblica 2/08/11).

17

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).

18

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

19

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

20

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 non-

discrimination. 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, 24-

25).

21

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 system14. 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].

22

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).

23

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.

24

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).

25

(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”.

26

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

27

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.

28

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 non-

discrimination [...] 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

29

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, 6-

7). 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).

30

the disadvantage such treatment resulted in. There are, in fact, a series of

justification for differential treatment (for instance between disabled person and non-

disabled 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

31

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

32

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.

33

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

34

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.

35

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 non-

citizens 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

36

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

37

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

38

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,

39

it would be an arbitrary distinction among foreigners based on mere political

interests. Needless to say that such preferential treatment is unreasonable and non-

objective 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

40

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.

41

Bibliography

Adepoju, A. Van Noorloos, F. Zoomers, A. „Europe‟s migration agreements with

migrant-sending countries in the global south: a critical review‟, International

migration, Vol. 48, Issue 3, General Comment, pp. 42-75

Advisory Opinion on the Legal Consequences for States of the Continued Presence

of South Africa in Namibia, International Court of Justice (ICJ), 21 June 1971,

available at: http://www.unhcr.org/refworld/docid/4023a2531.html [Accessed on 28th

April 2011]

Amnesty International Report 2010 – Italy available from:

http://www.amnesty.org/en/region/italy/report-2010 [Accessed on 10th February

2011]

Andrijasevic, R. „DEPORTED: The right to Asylum at EU‟s External Border of Italy

and Libya‟, International Migration, Vol.48, Issue 1, pp. 148-174

Andrijasevic, R. „How to balance Rights and Responsibilities on Asylum at the EU‟s

Southern Border of Italy and Libya‟, Centre on Migration, Policy and Society,

Working Paper No.27, University of Oxford, 2006

Amood, S. „EU-Libya Cooperation on Migration: A raw deal for Refugees and

Migrants?‟, Journal of Refugee Studies, Vol. 21, No. 1, 2008, pp.19-42

42

Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain);

Preliminary Objections, International Court of Justice (ICJ), 24 July 1964, available

at: http://www.unhcr.org/refworld/docid/402391b04.html [accessed 23 August 2011]

Buergenthal, T. „International Human Rights Law and Institutions: accomplishment

and prospects‟, Washington Law Review, Vol. 63, 1988, pp. 1-20

Caritas, „Dossier immigrazione‟, 2010, available from:

http://www.caritasitaliana.it/materiali/Pubblicazioni/Libri_2010/dossier_immigrazione2

010/scheda_sintesi.pdf [Accessed on 3rd July 2011]

Cassese, A. „Current problems of International Law‟, 1975, Giuffrè, Milano

Catananti, T. „I reati in materia di immigrazione dopo la legge n.94 del 2009‟, Rivista

associazione italiana costituzionalisti, N.00, 2010

Corriere della sera, „Dal Senato via al ddl sulla sicurezza. I medici possono

denunciare i clandestini‟, 2005 available from:

http://www.corriere.it/politica/09_febbraio_05/senato_medici_denuncia_stranieri_irre

golari_a395e4c4-f36d-11dd-a8aa-00144f02aabc.shtml [Accessed on 3rd July 2011]

Choudhury, T. „The drafting of Article 26 of the International Covenant on Civil and

Political Rights: Part 1‟, European Human Rights Law Review, Issue 5, 2002, pp.

591-603

43

Choudhury, T. „The human rights commitee‟s interpretation of ICCPR Art.26‟, 2002,

available from: http://www.justice.org.uk/images/pdfs/iccprart26no2.pdf [Accessed on

15th April 2011]

Consideration of reports submitted by states parties under Art.9 of the Convention,

Concluding observations of the Committee on the Elimination of Racial

Discrimination, Italy. U.N. Doc. CERD/C/ITA/CO/15 (2008)

Coppola, P. „Il rapporto dei giudici di merito con la giurispudenza costituzionale e

comunitaria. Esame concreto di recenti provvedimenti di disapplicazione e

remissione alla Corte‟, Incontro di studio sul tema: “Il lavoro flessibile” Roma, 4 - 6

maggio 2009, available from: http://appinter.csm.it/incontri/relaz/17581.pdf [accessed

28 April 2011]

Corte Costituzionale, „I diritti fondamentali nella giurispudenza della corte

costituzionale‟, Varsavia, 30-31 March 2006, available from:

http://www.cortecostituzionale.it/documenti/convegni_seminari/STU185_principi.pdf

[Accessed on 15th April 2011]

Corte Costituzionale 13 Gennaio 2004 n.5 (respinto – causa senza giustificato

motivo e determinatezza= concetti elastici-mediazione interpretativa maggiore);15

Luglio 2004 n.223;28 Dicembre 2005 n.466

Dernbach, J. C. „A practical guide to legal writing and legal method‟ Rothman eds

1994

44

European Commission, „Technical Mission to Libya on illegal immigration‟, 27 Nov-6

Dec 2004, not officially published available leaked from www.statewatch.org

[Accessed on 15th April 2011]

European Parliament, „Study: Analysis of the External Dimension of the EU‟s Asylum

and Immigration Policies‟, 2006

Fischer-Lescano, A. Lohr, T. Tohidipur, T. „Border controls at sea: requirements

under international refugee law‟, International journal of refugee law, Vol. 21, Issue 2,

2009, pp. 256-296

Garofali, R. „Manuale di diritto penale – parte generale‟, 2006, Giuffrè, Milano

Garofali, R. „Tracce di diritto penale con giurispudenza – parte generale‟, 2011, nel

diritto editore srl

Gatti, F. „Bilal. Il mio viaggio da infiltrato nel mercato dei nuovi schiavi‟, 2007, Milano,

Rizzoli

Geddes, A. „Il rombo dei cannoni? Immigration and the centre-right in Italy‟, Journal

of European Public Policy, Vol. 15, Issue 3, April 2008, pp. 349-366

45

Gentili, G. „European Court of Human Rights: an absolute ban on deportation of

foreign citizens to countries where torture or ill-treatment is a genuine risk‟,

International Journal of Constitutional Law, Vol. 8, Issue 2, 2010, pp. 311-322

Gramaglia, E. „La schizophrenia dell‟accoglienza‟, paginauno, N. 08, Jun-Sept 2008,

pp.1-3

Human Rights Watch, „Italy: Reject Anti-Migrant Bill‟, 22/06/09 available from:

http://www.hrw.org/en/news/2009/06/21/italy-reject-anti-migrant-bill [Accessed on

10th January 2010]

Iannuzzi, A. „Il commento‟, il diritto per concorsi, n.1, 2011

Inter-American Court of Human Rights, Advisory Opinion OC-18/03, September 17,

2003 requested by The United Mexican States, „Juridical Condition and rights of

undocumented migrants‟

Italian Constitutional Court rulings can be found at:

http://www.cortecostituzionale.it/actionGiurisprudenza.do [accessed 22 August

2011]

Italian Court of Cassation penal rulings can be found at:

http://www.cortedicassazione.it/Notizie/GiurisprudenzaPenale/GiurisprudenzaPenale

.asp [accessed 22 August 2011]

46

Italian Laws are accessible from: http://www.camera.it/parlam/leggi/home.htm

[accessed 22 August 2011]. Legge Martelli (l.39/1990); Turco-Napoletano

(l.40/1998); TU Immigrazione (l.286/1998) modified with d.lgs.13Apr1998 n.113;

Bossi-Fini (l.189/2002); Reato di clandestinità (l.94/2009)

Jovins, G. „Survay Italy‟, Financial Times 22 July 2002

La Repubblica, „Eu: clandestini non punibili con il carcere. Maroni: rischi espulsioni

impossibili‟, 28/4/11, available from:

http://www.repubblica.it/esteri/2011/04/28/news/corte_ue_boccia_reato_di_clandesti

nit-15471497/ [accessed 22 August 2011]

La Repubblica, „Gli immigrati danno più di quanto ricevono. Ecco i dati INPS raccolti

e diffusi dalla Caritas‟, 9/6/11, available from:

http://www.repubblica.it/solidarieta/immigrazione/2011/06/09/news/immigrazione_e_i

npsvladimiro_polchi-17448178/ [accessed 22 August 2011]

La Repubblica, „Il decreto sui rimpatri è legge via libera definitivo in Senato‟, 2/8/11,

available from:

http://www.repubblica.it/cronaca/2011/08/02/news/il_decreto_sui_rimpatri_legge_via

_libera_definitivo_in_senato-19935843/ [Accessed on 15th August 2011]

Legge 20 Luglio 2002, n.189 „Modifica alla normative in material di immigrazione e di

asilo‟, available from: http://www.parlamento.it/parlam/leggi/02189l.htm [Accessed on

15th February 2011]

47

Lessi, D. „Immigrati espulsioni a caso‟, L‟espresso 2011, available from:

http://espresso.repubblica.it/dettaglio/immigrati-espulsioni-a-caso/2158408

[accessed 22 August 2011]

Levinson, A. „The Regularisation of Unauthorized Migrants: Literature Survey and

Country Case Studies‟, 2005

Makkonen, T. „The principle of non-discrimination in International Human Rights Law

and Eu Law‟, University of Helsinky, August 2005, pp. 1-49

McColgan, A. „Principles of equality and protection from discrimination in

international human rights law‟, European Human Rights Law Review, Issue 2, 2003,

pp. 157-175

McCreight, M. V. „Smuggling of Migrants and Human Trafficking‟, European Law

Journal, Vol. 12, No. 1, 2006, pp. 106-129

Medecins sans Frontieres, Centri di Permanenza temporanea e assistenza:

autonomia di un fallimento, Sinnos editrice, 2005

Medici Senza Frontiere, „Rapporto sui centri di Permanenza Temporanea e

Assistenza‟, 2004, Available at:

http://www.msf.it/msfinforma/dossier/missione_italia/CPT_FINALE.pdf [Accessed on

3rd July 2011]

48

Medici Senza Frontiere, „Una stagione all‟inferno. Rapporto sulle condizioni degli

immigati in agricoltura nelle regioni del Sud Italia‟, available from:

http://www.medicisenzafrontiere.it/Immigaini/file/pubblicazioni/una_stagione_all‟infer

no.pdf [Accessed on 23rd May 2011]

Miggiano, L. „States of exception: securitisation and irregular migration in the

Mediterranean‟, UNHCR Policy development and Evaluation Service, Research

Paper No. 177, 2009, pp. 1-25

Monzini, P. „Sea-Border Crossing: The Organization of Irregular Migration to Italy‟,

Mediterranean Politics, Vol.12, No. 2, 2007, pp. 163-184

Moon, G. „Complying with its international human rights obligations: the United

Kingdom and Article 26 of the International Covenant on Civil and Political Rights‟,

European Human Rights Law Review, Issue 3, 2003, pp. 283-307

Mr. Mümtaz Karakurt v. Austria, Communication No. 965/2000, U.N. Doc.

CCPR/C/74/D/965/2000 (2002)

Notizie Ansa 6 February 2002, „Immigrazione: Accordo Assindustria Udine per Case

a Immigrati gli indistriali per una Sistemazione Dignitosa Extracomunitari‟, available

at www.stranierinitalia.com [Accessed on 3rd July 2011]

49

Pace, A. „Dai diritti del cittadino ai diritti fondamentali dell‟uomo‟, Rivista

dell‟Associazione Italiana dei Costituzionalisti, 2/7/2010, pp. 1-22

Pacchetto sicurezza – aggravante clandestinità (l.125/2008) Corte Costituzionale

Sentenza 5-8 Luglio 2010 n.249

Palermo, P. „Discriminazione e aggravante della clandestinità nell‟ordinanza del

tribunale di Latina‟, Università di Genova, 2 Giugno 2010

Paoletti, E. Pastore, F. „Sharing the dirty job on the southern from? Italian-Libyan

relations on migration and their impact on the European Union‟, The IMI Working

Papers Series, Paper 29, December 2010, pp. 1-42

Pepels v. Netherlands, Communication No 484/1991, United Nations Human Rights

Committe

Pirjola, J. „European Asylum Policy – Inclusion and Exclusion under the Surface of

Universal Human Rights Language‟, European Journal of Migration and Law, Vol.11,

2009, pp. 347-366

Platform for International cooperation on Undocumented Migrants (PICUM), „Main

Concerns about the Fundamental Rights of Undocumented Migrants in Europe‟, Oct

2010, available from:

http://picum.org/picum.org/uploads/publication/Annual%20Concerns%202010%20E

N.pdf [Accessed on 10th February 2011]

50

Remeharan, B.G. „Equality and Non-Discrimination‟, in L. Henkin, ed., „The

International Bill of Rights – The Covenant on Civil and Political Rights‟, New York,

1980

Rizzo, A. „Berlusconi: Italy must not become multiethnic, multicultural country‟,

Associated Press 28/3/06, available from:

http://www.nctimes.com/news/national/article_86a1fe19-377b-5c4d-8afa-

474f8a0a068b.html [Accessed on 10th January 2010]

Ronzitti, N. „The treaty on friendship, partnership and cooperation between Italy and

Libya: New Prospects for cooperation in the Mediterranean?‟, Istituto Affari

Internationali, paper presented at the Mediterranean Strategy Group Conference,

Genoa, 11-12 May 2009

Santoro, E. „L‟esecuzione penale nei confronti dei migranti irregolari e il loro

“destino” a fine pena‟, L‟altro diritto, 2004, available from:

http://www.altrodiritto.unifi.it/adirmigranti/detenuti/migrdet.htm [Accessed on 15th

April 2011]

Schuster, L. „Common sense or racism? The treatment of asylum-seekers in

Europe‟, Patterns of Prejudice, Vol. 37, Issue 3, 2003, pp. 233-255

Servizio Studi „Immigrazione – il diritto al voto‟, 2009, available from:

51

http://legxv.camera.it/cartellecomuni/leg14/RapportoAttivitaCommissioni/testi/01/01_

cap09_sch07.htm [accessed 28 April 2011]

Sileoni, S. „Italy‟s treatment of immigrants and the European Convention on Human

Rights‟, Journal of Immigration Asylum and Nationality Law, Vol. 24, Issue 2, 2010,

pp. 159-172

Toonen v. Australia, Communication No. 488/1992, U.N. Doc

CCPR/C/50/D/488/1992. (1994)

Totah, M. „Fortress Italy: Racial politics and the new immigration amendment in Italy‟,

Fordham International Law Journal, Vol. 26, 2003, pp.1438-1504

The full jurisprudence of the Human Rights Committee can be found here:

http://tb.ohchr.org/default.aspx [accessed 22 August 2011]

UN Commission on Human Rights, Report submitted in conformity with resolution

2004/53 of the Commission on Human Rights. Visit to Italy, 15 November

2004, E/CN.4/2005/85/Add.3, available at:

http://www.unhcr.org/refworld/docid/42d66e430.html [accessed 16 August 2011]

UN Doc., General Recommendation No.30: Discrimination Against Non Citizens,

CERD, 1/10/2004

52

UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty

Series, vol. 1465, p. 85, available at:

http://www.unhcr.org/refworld/docid/3ae6b3a94.html [accessed 28 April 2011]

UN General Assembly, Convention on the Elimination of All Forms of Discrimination

Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13,

available at: http://www.unhcr.org/refworld/docid/3ae6b3970.html [accessed 28 April

2011]

UN General Assembly, Convention on the Rights of the Child, 20 November 1989,

United Nations, Treaty Series, vol. 1577, p. 3, available at:

http://www.unhcr.org/refworld/docid/3ae6b38f0.html [accessed 28 April 2011]

UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951,

United Nations, Treaty Series, vol. 189, p. 137, available at:

http://www.unhcr.org/refworld/docid/3be01b964.html [accessed 28 April 2011]

UN General Assembly, International Covenant on Civil and Political Rights, 16

December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at:

http://www.unhcr.org/refworld/docid/3ae6b3aa0.html [accessed 28 April 2011]

UN General Assembly, International Covenant on Economic, Social and Cultural

Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3, available

at: http://www.unhcr.org/refworld/docid/3ae6b36c0.html [accessed 28 April 2011]

53

UNHCR, Country Operations Plan, Italy, 2006, pp.1-5

United Nations High Commissioner for Human Rights, „UN Experts Call on Italy to

Uphold Human Rights in its response to immigration and in fighting mafia crimes and

terrorism‟, 2008, available from:

http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=9185&Lan

gID=E [Accessed on 10th January 2010]

UN Committee on the Elimination of Racial Discrimination (CERD), CERD General

Recommendation XXX on Discrimination Against Non Citizens, 1 October

2002, available at: http://www.unhcr.org/refworld/docid/45139e084.html [accessed 5

May 2011]

UN Human Rights Committee (HRC), CCPR General Comment No. 15: The Position

of Aliens Under the Covenant, 11 April 1986, available at:

http://www.unhcr.org/refworld/docid/45139acfc.html [accessed 5 May 2011]

United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI,

available at: http://www.unhcr.org/refworld/docid/3ae6b3930.html [accessed 28 April

2011]

United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United

Nations, Treaty Series, vol. 1155, p. 331, available at:

http://www.unhcr.org/refworld/docid/3ae6b3a10.html [accessed 28 April 2011]

54

UN Security Council, Report of the Working Group on Arbitrary Detention :

addendum : mission to Italy, 26 January 2009, A/HRC/10/21/Add.5, available at:

http://www.unhcr.org/refworld/docid/49a5437f2.html [accessed 22 August 2011]

United Nations, Statute of the International Court of Justice, 18 April 1946, available

at: http://www.unhcr.org/refworld/docid/3deb4b9c0.html [accessed 28 April 2011]

Vignudelli, A. „Il diritto di voto agli stranieri extracomunitari. Profili problematici‟

Istituzioni e dinamiche del diritto. Multiculturalismo, comunicazione, federalismo,

Torino, 2005

Wexler, L. „The Non-Legal Role of International Human Rights Law in Addressing

Immigration‟, The University of Chicago Legal Forum, 2007, pp.359-403

White, P. „Developing Research Questions: A Guide for Social Scientists’,

Basingstoke, Palgrave Macmillan, 2009

Williams, G. „Learning the law‟, Sweet&Maxwell, 12th Ed. 2002

Wisker, G. „The postgraduate research handbook‟, 2nd Ed., Palgrave, 2008

Zincone, G. „A model of Reasonable Integration: summary of the First Report on the

Integration of Immigrants in Italy‟, IMR, Vol.34, No.3, 2000, pp.956-968

55

Zincone, G. „The making of Policies: Immigration and Immigrants in Italy‟, Journal of

Ethnic and Migration Studies, Vol.32, Issue 3, April 2006, pp. 347-375