Fundamental rights pertaining to all human beings, not just citizens of the Italian Republic, are recognized in the Italian Constitution. Such rights are recognized to the individual on his/her own and in his/her social relations where his/her personality is expressed. Such rights can not be renounced and can not be violated on any account. The exercise of such rights can not be limited by the State or other public powers if not temporarily and in full respect of the guarantees enunciated in the Constitution. No discrimination on the basis of race, ethnic origin, sex etc. can be tolerated in the recognition and enjoyment of such rights.

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Fundamental rights pertaining to all human beings, not just citizens of the Italian Republic, are recognized in the Italian Constitution. Such rights are recognized to the individual on his/her own and in his/her social relations where his/her personality is expressed. Such rights can not be renounced and can not be violated on any account. The exercise of such rights can not be limited by the State or other public powers if not temporarily and in full respect of the guarantees enunciated in the Constitution. No discrimination on the basis of race, ethnic origin, sex etc. can be tolerated in the recognition and enjoyment of such rights.

Amongst the rights regulated by the Constitution and referred to in Art 2 are the right to personal freedom, right to inviolability of one’s home, freedom and secrecy of correspondence, freedom of religious observance, freedom of expression of one’s thought, right of access to justice, presumption of innocence up to a definitive judgement, the right of workers to a proportionate and sufficient salary and to annual leave and weekly rest.

The Constitutional court has reaffirmed their relevance also for the non citizen, irrespective of his/her being a national of the European Union, in its judgement 62/1994. The Court’s innovation has been to affirm that enjoyment of rights does not just include those expressly indicated in the Constitution at art 13, 14, 15, 1 9, 21, 24, 27, 36, rights which had been previously affirmed by the Supreme Court ("Corte di Cassazione") as recognized constitutionally to the foreigner as well as the citizen, but also other fundamental rights which may be later specified either by accession to international instruments on rights (for instance the EU Charter on Fundamental Rights), by national law, or which may be further elaborated by the jurisprudence, for instance the right to privacy.

Art 10.2 of the Constitution states that the legal status of non-citizens can be regulated only by national laws which must be consistent with international conventions and laws. This means that the legal treatment of the non-citizen can not be left by law at the discretion of the Public Administration but must be regulated by formal legislative acts enacted by Parliament; the terms of his/her treatment can not be less favorable than what is required by international law including conventions and customary international law.

The meaning of the term "foreigner" ("straniero") has been clarified by Law 40/1998, as the introduction of the European citizenship and the development of norms for freedom of movement and establishment for European citizens had come to create confusion on who should norms on "foreigners" apply to. Law 40/1998 has clarified that the term "foreigner" can apply to non UE citizens and stateless persons.

Law 40/1998 ("Single Act"), as amended by the Law 189/2002 ("Bossi-Fini" law), reproduces the main points indicated in the constitution in its art. 2. Fundamental rights are recognized to all human beings within the territory of the State or at its borders", including also those irregularly present within or at the borders of the State. It also reaffirms the right to equal treatment to the non Italian citizen lawfully resident tin Italy on key rights: right to work, access to public services, protection by the judiciary).

On other accounts, however, the national law, particularly after the changes to the Single Act with Law 189/2002 denies access to services, such as primary, non-emergency health services to "foreigners" in certain conditions, denial which adds difficulty to the enjoyment of, or impedes or even infringes in practice some of the rights, such as the right to health, in which fundamental rights are de facto articulated.

Analysis provided by: Antonella C. Attardo PhD (History of Law), Italy.

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