Fight to illegal migration and trafficking is one of the key areas of  innovation of law 189/2002 even in respect of law 40/98.

Illegal migration per se is not a crime but a breach of administrative law. The action of remaining within the State’s borders after two expulsion orders have been enacted against an individual instead constitute a criminal act.

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Fight to illegal migration and trafficking is one of the key areas of  innovation of law 189/2002 even in respect of law 40/98.

Illegal migration per se is not a crime but a breach of administrative law. The action of remaining within the State’s borders after two expulsion orders have been enacted against an individual instead constitute a criminal act. Illegal permanence  within the country’s borders is thus qualified a criminal act rather than illegal migration. Also criminally sanctionable are all actions directed at ensuring the clandestine entry of one or more individuals within the State’s borders or within the borders of another State. In law 189/2002 all behavior is punishable including single actions which concur to trafficking, except actions which are undertaken on humanitarian grounds

Penalties are provided for the carrier of irregular migrants who arrive at the borders of Italy, as the carrier must ascertain the conformity to Italian visa and entry regulations of every passenger’s documents. In the most serious cases, the law provides for the suspension of the permit to operate transport services. In order to fight illegal migration and related crime, border police can control and inspect vehicles and transported goods, when there are well grounded reason to believe that they can be used for one ht crimes punished by this law. In certain cases vehicles and other goods can be confiscated.

An important issue in the context of Italian migration law and policy is the issue of inspection and action in international waters, especially after well known events, when boats carrying people presumably directed to the Italian shores, sank with a high number of casualties after attempts by coast guard vehicles to stop and/or inspect them. Law 189/02 confers the authority to Italian police boats who encounter in Italian waters or in waters close to the national waters a boat which is suspected to be used for, or in any case involved in, the illicit transport of migrants, to stop it, inspect it, and if facts are ascertained that confirm the suspicions about its involvement in illegal trafficking of migrants, take control over it, while towing it into one of the State’s ports. In this vigilance action Military ships can be used. The powers of inspection above can be exercised also in international waters if the suspect ship is an Italian ship or even if it is a foreign ship as long as this action is allowed by international conventions or treaties. (Law 189/02 art 12.9)

One of the main measures being reinforced is expulsion of irregular migrants. Expulsions is in the first instance an administrative sanction, not a criminal one. The authority which enacts the expulsion order is the “prefetto” who is the institutional Representative of the central government through the national territory and depends from the Ministry of the Interior. His decision must be written in the language of the foreigner involved or in English, French or Spanish. The order, like all acts enacted by the public Administration in the Italian legal system, must be motivated and must indicate how it can be appealed against. It is immediately enforceable, even if an appeal has been lodged against. It. So a foreigner can be expelled and be out of the national borders while its decree of expulsion is still being under consideration for appeal.

In some cases expulsion against irregular migrants can be a criminal sanction. According to art 211 of the Criminal Code, it is an accessory sanction for non citizens who have been already sentenced for serious crimes and are considered socially dangerous. The expulsion is carried out after the extinction of the prison term. In other cases expulsion can be sanctioned as an alternative prison term as long as this is below two years. This can happen also if there is no possibility of conditional suspension of the term and immediate implementation of the expulsion order  with enforced accompaniment to the border.

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

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