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Italy: Abolition of Crime of “Illegal Immigration” and the Mare Nostrum Policy

(Sept. 24, 2014) In recent years, Italy has dealt with increased illegal immigration coming through its southern border through legislation and policy measures. One important piece of legislation this year abolished the crime of “illegal immigration.” Law No. 67 of 2014 delegates legislative powers to the Executive Branch to pass legislation amending the Italian criminal punishment system, including the elimination of the crime of illegal entry and stay in the national territory, which was transformed into an administrative violation. (Law No. 67 of April 28, 2014, Granting Powers to the Government Related to Non-Imprisonment Sentences and for the Reform of the Punishment System. Contains Provisions on the Suspension of Proceedings with Probation and Against the Missing [in Italian], art. 2, GAZETTA UFFICIALE [G.U.] No. 100, May 2, 2014.)

As a result, illegal entry and stay is now punished with a fine of €5,000-€10,000 (about US$6,500-$13,000), and the penalty is imposed by Judges of the Peace. (Law No. 94 of July 15, 2009, Provisions on Public Security [in Italian], G.U. No. 170, July 24, 2009.) In cases of non-payment, the judge may impose, at the request of the convicted immigrant, a labor regime for a period of one-to-six months. (Legislative Decree No. 274 of August 28, 2000, Provisions Related to the Criminal Jurisdiction of Judges of the Peace, in Accordance with Article 14 of Law No. 468 of November 24, 1999 [in Italian], art. 55, G.U. No. 234, Oct. 6, 2000, Suppl. Ordinario No. 166.)

Judges of the Peace may substitute the above fine with the immediate expulsion of the convicted immigrant and prohibition of re-entry into Italy for a period of at least five years. (Legislative Decree No. 286 of July 5, 1998, Consolidated Text of the Provisions Concerning the Field of Immigration and Rules on the Conditions of Foreigners [in Italian], art. 16 ¶ 1, G.U. No. 191, Aug. 18, 1998.) By a decision of December 6, 2012, the European Court of Justice established that Italian judicial authorities may order the immediate expulsion of an illegal immigrant who has failed to pay the fine imposed, subject to specific, stringent conditions, e.g., the danger of flight, and that the decision “must be founded on individual examination of the case in which the person concerned is involved.” (Judgment of the Court (First Chamber) of 6 December 2012, INFOCURIA – CASE-LAW OF THE COURT OF JUSTICE.) Therefore, immediate expulsion may not be applied automatically to a foreigner based on the sole fact of an irregular immigration situation and a conviction on charges of the now-abolished crime of illegal entry. (Id.)

In addition, to deal with the record number of refugees entering its territory through its southern border since January 2014 – about 120,000 compared with an estimated 42,000 during 2013 – in October 2013 Italy enacted its “Mare Nostrum” (MN) immigration policy. (Anthony Faiola, Amid Flood of Refugees to Europe, Italy Opens a Back Door, WASHINGTON POST (Sept. 12, 2014).) MN is a military and humanitarian operation for the southern Mediterranean aimed at tackling the “exceptional influx of migrants” coming into the country through Italy’s southern border. (Temi dell’attività Parlamentare: Immigrazione (July 10, 2014), Camera dei Deputati website.)

MN involves naval and aviation personnel of the Marines, the Army, the Military Airforce, the National Police, the Finance Guard, and the Coast Guard, as well as staff of the Ministry of Interior and all other state agencies that control immigration through maritime entry ways. (Fulvio Vassallo, Mare Nostrum – Luci ed ombre sulle modalità operative: L’Europa rimane a guardare mentre l’Italia prosegue da sola con Mare Nostrum, PROGETTO MELTING POT EUROPA (Oct. 28, 2013).) MN includes measures aimed at helping “bridge the policy-implementation gap between existing Integrated Coastal Zone Management (ICZM) tools and their actual effect on the ground” in the Mediterranean zone, as well as “to improve the socio-economic and the environmental sustainability of the Mediterranean coastline while increasing its resilience to natural and man-made hazards.” (Objectives, Mare Nostrum website (last visited Sept. 23, 2014).)